Ordinance No. 9,469ORDINANCE NO. 9469
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, REJECTING THE BIDS FOR THE TREMCO ROOFING SYSTEM
REPAIR OF THE STRUCTURE LOCATED AT 3110 NORTH MAIN STREET;
AWARDING THE TREMCO ROOFING SYSTEM REPAIR OF THE
STRUCTURE LOCATED AT 3110 NORTH MAIN STREET — REBID TO
PYRAMID WATERPROOFING, INC., AND AUTHORIZING PAYMENT BY
THE CITY OF BAYTOWN, THE SUM OF FORTY -NINE THOUSAND SEVEN
HUNDRED AND NO 1100 DOLLARS ($49,700.00); MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
WHEREAS, the City Council of the City of Baytown did authorize the Purchasing
Department for the City of Baytown to advertise for bids for the Tremco Roofing System repair of
the structure located at 3110 North Main Street to be received September 23, 2002; and
WHEREAS, the City of Baytown's Purchasing Department advertised again for bids for the
Tremco Roofing System repair of the structure located at 3110 North Main Street to be received
October 17, 2002;
WHEREAS, notice to bidders as to the time and place, when and where the contract would
be let was published pursuant to the provisions of Chapter 252 of the Texas Local Government
Code; and
WHEREAS, all bids were opened and publicly read at City Hall at 2:00 p.m., Thursday,
October 17, 2002, as per published notice to bidders; and
WHEREAS, upon rebidding this contract Pyramid Waterproofing, Inc., submitted the most
economical bid; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown hereby rejects the bids that were
received on September 23, 2002, for the Tremco Roofing System repair of the structure located at
3110 North Main Street.
Section 2: That the City Council of the City of Baytown hereby accepts the bid of
Pyramid Waterproofing, Inc., for the Tremco Roofing System repair of the structure located at 3110
North Main Street for the sum of FORTY -NINE THOUSAND SEVEN HUNDRED AND NO 1100
DOLLARS ($49,700.00), and authorizes payment thereof.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated
. §252.048, the City Manager is hereby granted general authority to approve any change order
involving a decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO1100
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DOLLARS ($25,000.00) or less, subject to the provision that the original contract price may not be
increased by more than twenty-five percent (25 %) or decreased by more than twenty -five percent
(25 %) without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown, this the 14th day of November, 2002.
x�iCrli e dt-L
PETE C. ALFARO, Mayor
ATTEST:
f(l�
GAY SMITH, City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, , City Attorney
F:Ueanenc\My Documents \Council \02 -03\ November\ RejectBid& AwardBid4TremcoRepairFireAdminBuilding .doc
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CITY OF BAYTOWN
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONTRACTOR
THIS AGREEMENT is entered into by and between the City of Baytown(the"OWNER") and PYRAMID
WATERPROOFING,INC., (the"CONTRACTOR") for installation of Tremco Metal Roofing System of
the Fire Administration Building located at 3110 North Main Street,Baytown, Texas.
1. DEFINITIONS OF TERMS
1.01 CITY or OWNER.
Whenever the word City or Owner is used, it shall mean and be understood as referring to the City
of Baytown,Texas, its officers, agents, representatives, and employees.
1.02 CONTRACT DOCUMENTS.
The Contract Documents shall consist of the Signed Standard Form of Agreement,Performance and
Payment Bonds (when required), Addenda, Specifications, CONTRACTOR'S bid documents, and
all modifications thereof incorporated in any of the documents before the execution of the
Agreement.
1.03 CONTRACTOR.
Whenever the word CONTRACTOR is used, it shall mean the person, persons, partnership, or
corporation who has agreed to perform the work embraced in these Contract Documents, including
any and all Specifications; General and Special Conditions; all Performance and Payment Bonds;
and CONTRACTOR's Bid.
1.04 EXTRA WORK.
The term Extra Work as used in this contract shall be understood to mean and include all work that
may be required by the OWNER in writing prior to the work being done by the CONTRACTOR to
accomplish any change, alteration or addition to the work shown upon the plans, or reasonably
implied by the specifications.
1.05 FINAL COMPLETION.
The term final completion as used in this Agreement shall mean the CONTRACTOR has notified
the OWNER'S representative that all work has been completed, all work has been inspected and
completed to the satisfaction of the OWNER'S representative„ all payments to materialmen and
subcontractors have been made, all documentation and warranties have been submitted and all
closeout documents have been executed and approved by the OWNER's representative.
1.06 INTERPRETATION OF PHRASES.
Whenever the words directed, permitted, designated, required, considered necessary, prescribed,
or words of like import are used, it is understood that the direction, requirement, permission, order,
designation, or prescription of the OWNER is intended. Similarly, the words approved, acceptable,
satisfactory, or words of like import shall mean approved by, accepted by or satisfactory to
OWNER.
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1.07 NONCONFORMING WORK.
The term nonconforming work shall mean the work or any part thereof rejected by the OWNER as
not conforming to the Contract Documents.
1.08 OWNER'S REPRESENTATIVE.
Whenever the words OWNER'S REPRESENTATIVE or Representative are used, they shall mean
and be understood as referring to the person who is hereby authorized to act for the OWNER and
inspect and issue instructions, but shall not directly supervise the CONTRACTOR or men acting on
behalf of the CONTRACTOR.
1.09 PARTIES.
The term parties shall include the OWNER and the CONTRACTOR.
1.10 PROJECT.
The term project as used in this agreement shall be understood to mean and include all that is
required to obtain a final product that is acceptable to the OWNER. The term work shall have like
meaning.
1.11 SUBCONTRACTOR.
The term subcontractor, as employed herein, includes only those hired by and having a direct
contract with the CONTRACTOR for performance of any work or service relating in any way to the
project. The OWNER shall have no responsibility to any subcontractor employed by
CONTRACTOR for performance of work on the project contemplated by this Agreement, and any
said subcontractors shall look exclusively to the CONTRACTOR for any payments due the
subcontractor.
1.12 WORK.
The term work as used herein shall mean and include all that is required to obtain a final product
acceptable to the OWNER. The term project shall have like meaning. This project includes the
installation of Tremco Metal Roofing System located at the Fire Administration Building located at
3110 North Main Street, Baytown, Texas, as further described in the Specifications.
1.13 CALENDAR DAY.
The term calendar day as used herein shall mean and include any day of the week or month, no
days being excepted.
2. CONTRACT DOCUMENTS
2.01 COMPLEMENTARY DOCUMENTS.
The Contract Documents comprise the entire agreement between the OWNER and the
CONTRACTOR concerning the Project. The Contract Documents are complementary, and what is
called for by any one shall be as binding as if called for by all.
2.02 PRIORITY OF DOCUMENTS.
In case of conflict between any of the Contract Documents, priority of interpretation shall be in the
following order:
2.02.01 Addenda to this Agreement,
2.02.02 This Signed Standard Form of Agreement,
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2.02.03 Performance and Payment Bonds,
2.02.04 Specifications, and
2.02.05 Bid Documents.
2.03 AMENDING CONTRACT DOCUMENTS.
No amendments to this Agreement shall be effective and binding until it is reduced to writing and
signed by the duly authorized representatives of both parties.
2.04 ACCESSIBILITY OF THE SPECIFICATIONS.
The CONTRACTOR will be furnished two (2) sets of Contract Documents for its use during
construction. Specifications provided for use during construction shall be furnished directly to the
CONTRACTOR only.
2.05 SPECIFICATIONS
2.05.01 The CONTRACTOR shall distribute copies of the specifications to suppliers and subcontractors
as necessary. The CONTRACTOR shall keep one copy of the specifications accessible at the work
site with the latest revisions noted thereon.
2.05.02 All specifications and copies thereof furnished by the OWNER shall not be reused on other work,
and, with the exception of the signed contract sets, are to be returned to OWNER on request, at the
completion of the work. Nothing herein shall be construed as granting the CONTRACTOR, any
subcontractor or supplier or other person or organization performing or furnishing any of the work
pursuant to this Agreement any title or ownership rights in any of the drawings, specifications or
other documents (or copies thereof)prepared by the OWNER'S REPRESENTATIVE.
3. OWNER'S REPRESENTATIVE
3.01 RESPONSIBILITY AND AUTHORITY. The project shall be administered by the OWNER'S
REPRESENTATIVE who shall assume all duties and responsibilities and have the rights and
authority assigned either to it or the OWNER in the Contract Documents, including,but not limited
to,the following:
3.01.01 The OWNER'S REPRESENTATIVE may periodically review and inspect the work of the
CONTRACTOR.
3.01.02 The OWNER'S REPRESENTATIVE shall appoint from time to time such subordinate
supervisors or inspectors as the OWNER'S REPRESENTATIVE may deem proper to inspect the
work performed under this Agreement and ensure that said work is performed in accordance with
these Contract Documents.
3.01.03 The CONTRACTOR shall regard and obey the directions and instructions of OWNER'S
REPRESENTATIVE or any subordinate supervisors or inspectors appointed by the OWNER'S
REPRESENTATIVE, provided such directions and instructions are consistent with the obligations
of this Agreement.
3.01.04 Should the CONTRACTOR object to any orders by the OWNER or any subordinate supervisor or
inspector appointed by the OWNER'S REPRESENTATIVE, the CONTRACTOR may within two
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(2) calendar days from receipt of such order make written appeal to the CITY MANAGER for his
decision.
4. COMMUNICATIONS.
4.01 The CONTRACTOR shall forward all communications, written or oral, to the OWNER through the
OWNER'S REPRESENTATIVE.
4.02 WRITTEN NOTICE.
Unless otherwise specified, written notice shall be deemed to have been duly served if delivered in
person to the individual or to a member of the firm or to an officer of the corporation for whom it is
intended, or if delivered at or sent by telecopier, overnight or facsimile transmission or if delivered
or sent by certified or registered mail to the last business address as indicated herein. Each party
will have the right to change its business address by giving at least thirty(30) calendar days' written
notice to the other party of such change. Notice given by mail shall be deemed given three (3)
calendar days after the date of the mailing thereof.
5. AWARD OF CONTRACT.
5.01 On or before the execution of this Agreement, the CONTRACTOR shall deliver to the OWNER all
documents, bonds, and certificates of insurance required herein.
5.02 The CONTRACTOR shall be prepared to perform the work in the most expedient manner possible
due to the commencement of the time for final completion.
5.03 The work shall be commenced on the date to be specified in the notice to proceed. A notice to
proceed may be given by oral or written notification. In the event of any dispute, the record of the
OWNER shall be conclusive evidence as to the date specified on the notice to proceed.
5.04 Time is of the essence in this agreement.
6. WORK
6.01 The CONTRACTOR shall complete and be responsible for all work as specified, indicated, or
described in the Contract Documents. The CONTRACTOR shall complete and be responsible for
all extra work as described in this Agreement. All work done and all materials furnished shall
be in strict conformity with this Agreement, the Specifications, and other Contract
Documents. In the event that the CONTRACTOR fails to perform the work as required for final
completion, the OWNER may contract with a third party to complete the work and the
CONTRACTOR shall assume and pay the costs of the performance of the work specified or
contemplated by the Contract Documents.
6.02 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all materials, supplies,
machinery, equipment, tools, superintendents, laborers, insurance, fuel, transportation, and all other
facilities and utilities necessary for the execution and completion of the work specified or
contemplated by the Contract Documents.
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6.03 PERMITS,FEES AND LEGAL COMPLIANCE.
6.03.01 The CONTRACTOR shall secure and pay all permits, fees, licenses, and inspections necessary for
the proper execution and completion of the work. The CONTRACTOR will not, however, be
required to pay for any permit fees for permits of the City of Baytown, which will be waived in
conjunction with this Agreement.
6.03.02 The CONTRACTOR shall give all notices required by law and comply with all laws, ordinances,
regulations, codes, rules and lawful orders of all public authorities bearing on the performance of
the work.
7. TIME: COMPLETION DATES,EXTENSIONS,DELAYS.
7.01 The date of beginning and the date for final completion of work as specified in this Agreement are
essential conditions of this Agreement.
7.02 The work will be completed within thirty (30) working days with allowances for days of greater
than 30% prediction of rain from the date specified on the notice to proceed that is given by the
OWNER. In the event of any dispute, the record of the OWNER shall be conclusive evidence as to
the date specified on the notice to proceed.
7.03 EXTENSIONS.
7.03.01 The CONTRACTOR has submitted its bid in full recognition of the time required for the
completion of this project taking into consideration all factors, including, but not limited to, the
average climatic range and industry conditions.
7.03.02 The CONTRACTOR has considered the liquidated damage provision, and understands and agrees
that it shall not be entitled to, nor will it request an extension of time for final completion under this
Agreement, except if the work has been delayed by an act or neglect of the other contractors, if any,
employed by the OWNER or by changes ordered in the work,or reductions thereto in writing.
7.03.03 Within seven(7) calendar days of any act or incident that the CONTRACTOR reasonably believes
may justify an extension of time for final completion, the CONTRACTOR may apply in writing for
an extension of such time, submitting therewith all written justification as may be required by
OWNER. Thereafter, the OWNER,within seven(7) calendar days after receipt of a written request
for an extension of time from the CONTRACTOR, which is supported by all requested
documentation, shall then grant or deny such written request.
7.04 DELAYS.
7.04.01 The CONTRACTOR, in undertaking to complete the work within the time herein fixed, has taken
into consideration and made allowance for all hindrances and delays incident to such work,whether
growing out of delays in securing material or workmen or weather or otherwise.
7.04.02 No charge whatsoever shall be made by the CONTRACTOR for hindrances or delays from any
cause whatever during the progress of any portion of the work contemplated by the specifications,
but the OWNER may grant an extension of time for the completion of the work, provided the
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OWNER is satisfied that such delays or hindrances were due to the extraordinary causes or to the
acts of omission or commission by the OWNER.
7.04.03 It is agreed that the granting of such extensions of time shall in no instance exceed the time
actually lost by the CONTRACTOR for reason of such causes, provided that the CONTRACTOR
shall give OWNER immediate notice in writing of the cause of the detention or delay.
7.05 FINAL COMPLETION. The CONTRACTOR shall notify the OWNER'S
REPRESENTATIVE when the CONTRACTOR believes that the work is finally completed as
defined in section 1.05 herein. If the OWNER'S REPRESENTATIVE accepts the project as finally
completed, the OWNER shall be so notified. If OWNER accepts and deems such work finally
complete, the CONTRACTOR shall be so notified and a certificate of final completion, as provided
herein, shall be issued. Thereafter,the OWNER shall pay the total amount due.
8. PAYMENT.
8.01 PAYMENT AMOUNT. The CONTRACTOR agrees to perform the work and the OWNER
agrees to pay the CONTRACTOR the total of FORTY-NINE THOUSAND SEVEN
HUNDRED DOLLARS AND NO/100 ($49,700.00) as a lump sum payment upon
completion and final acceptance work as set forth and adjusted in accordance with the terms of this
Agreement.
8.02 PAYMENT BASED ON ACTUAL WORK AND MATERIALS. If the actual amount of the work
to be done and the materials to be furnished differ from estimate and where the basis for payment is
the unit price method, then payment shall be for the actual amount of accepted work done and
materials furnished on the project.
8.03 REDUCTION IN SCOPE OR QUANTITY. Reduction in the scope or quantity of work on unit
price items shall merely reduce the number of units. The CONTRACTOR shall never be entitled to
anticipated or lost profits on the deleted or reduced portion of a job whether bid on a unit price or
lump sum basis.
8.04 OTHER CHARGES. The CONTRACTOR shall have the sole obligation to pay any and all
charges and fees and give all notices necessary to and incidental to the lawful prosecution of the
work hereunder. The CONTRACTOR shall not, and shall have no authority whatsoever to,
obligate the OWNER to make any payments to another party nor make any promises or
representations of any nature on behalf of the OWNER,without their specific written approval.
8.05 CHANGES AND ALTERATIONS.
8.05.01 No changes shall be made, nor will bills for changes, alterations, modifications, deviations, and
extra orders be recognized or paid for except upon a written change order from the OWNER or the
OWNER'S REPRESENTATIVE.
8.05.02 The CONTRACTOR further agrees that either before or after the beginning of construction, the
OWNER, may make such changes and alterations as the OWNER sees fit in the dimensions, plans
or materials, or any part thereof, for the work contemplated under this Agreement without affecting
the validity of this Agreement or the accompanying bonds. If such changes or alterations diminish
the quantity of work to be done, they shall not constitute the basis for any claim for damages or
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anticipated profits on the work that may be dispensed with. The Contractor shall never be entitled
to anticipated or lost profits on the deleted or reduced portion of the project whether bid on a unit or
lump sum basis. If such changes increase the amount of work, and the increased work can be fairly
classified under the specifications, such increase shall be paid according to the quantity actually
done and at the unit price established for such work under this agreement; otherwise, such
additional work shall be paid for as provided under Extra Work. In case the OWNER shall make
such changes or alterations as shall make useless any work already done or material already
furnished or used in said work, then the OWNER shall recompense the CONTRACTOR for any
material or labor so used and for any actual loss, other than lost profits occasioned by such change
due to actual expenses incurred in preparation for the work as originally planned.
8.05.03 Changes and alterations that are authorized through change orders may be made or approved by
the OWNER provided that the change order does not increase or decrease this Agreement by more
than the amount specified in the Ordinance passed by the City Council approving this contract on
NOVEMBER 14, 2002. Any requests by the CONTRACTOR for a change in original Payment
Amount shall be made prior to the beginning of the work covered by the proposed change or the
right to payment for extra work shall be waived.
8.06 EXTRA WORK CHARGES.
8.06.01 The term "Extra Work" shall be understood to mean and include work not covered or
contemplated by the Contract Documents that may be required by the OWNER and approved by the
OWNER in writing prior to its being done by the CONTRACTOR to accomplish any change,
alteration, or addition to the work as shown on the Specifications or Contract Documents.
8.06.02 It is agreed that the CONTRACTOR shall perform all extra work under the direction of the
OWNER'S REPRESENTATIVE when presented with a written work order signed by the
OWNER.
8.06.03 No claim for extra work of any kind will be allowed unless, prior to the work being done, it is
ordered in writing by the OWNER. In case any orders or instructions appear to the
CONTRACTOR to involve extra work for which it should receive additional compensation or an
adjustment in the construction time, the CONTRACTOR shall make written request to the
OWNER for a written order from OWNER authorizing such extra work.
8.06.04 It is agreed that the basis of compensation to the CONTRACTOR for work either added or deleted
by a Change Order or for which a claim for Extra Work is made shall be determined by one or more
of the following methods:
Method(A) - By agreed unit prices; or
Method(B) - By agreed lump sum; or
Method(C) - If neither Method (A) nor Method (B) is agreed upon before the Extra Work is
commenced, then the CONTRACTOR shall be paid the "actual field cost" of the
work.
8.06.05 In the event said Extra Work is performed and paid for under Method (C), then the provisions of
this paragraph shall apply and the "actual field cost" is hereby defined to include the cost to the
CONTRACTOR of all applicable workmen, such as foreman, timekeepers,mechanics and laborers,
and materials, supplies, teams, trucks, rentals on machinery and equipment, for the time actually
employed or used on such Extra Work, plus actual transportation charges necessarily incurred,
together with all power, fuel, lubricants, water and similar operating expenses, also all necessary
incidental expenses incurred directly on account of such Extra Work, including social security, old-
age benefits and other payroll taxes, and a rateable proportion of premiums on Performance and
Payment Bonds, Public Liability and Property Damage and Workers' Compensation, and all other
insurance as may be required by any law or ordinance, or directed by the OWNER. The actual
field costs to be paid to the CONTRACTOR shall cover and compensate the CONTRACTOR for
the CONTRACTOR'S profit, overhead, general superintendence, field office expenses, and all
other elements of costs and expenses not embraced within the actual field costs as herein defined.
Actual field costs shall not exceed the prevailing market price therefor within reasonable tolerances
as determined by the OWNER.
9. INDEPENDENT CONTRACTOR.
9.01 In all activities or services performed hereunder, the CONTRACTOR is and at all times shall
remain an independent contractor,not an agent or employee of the OWNER. The CONTRACTOR,
as an independent contractor, shall be solely responsible for the final product contemplated under
this Agreement. Except for materials furnished by the OWNER, the CONTRACTOR shall supply
all materials, equipment and labor required for the execution of the work on the project. The
CONTRACTOR shall have ultimate control over the execution of the work under this Agreement.
The CONTRACTOR shall have the sole obligation to employ, direct, control, supervise, manage,
discharge and compensate all of its employees and subcontractors and the OWNER shall have no
direct control of or supervision over the employees of the CONTRACTOR'S subcontractors except
to the limited extent provided for in this Agreement.
9.02 The work to be provided on this project shall include the furnishing of all labor, materials,
equipment, and other services necessary or reasonably incidental to the performance of the work by
the CONTRACTOR. It shall be the responsibility of the CONTRACTOR to furnish a completed
work product that meets the requirements of the OWNER. The CONTRACTOR without claim for
additional payment shall supply any additional work, material, or equipment needed to meet the
intent of this specification, even though not specifically mentioned herein.
9.03 The CONTRACTOR shall retain personal control and shall give its personal attention to the faithful
prosecution and completion of the work and fulfillment of this Agreement. The subletting of any
portion or feature of the work or materials required in the performance of this Agreement shall not
relieve the CONTRACTOR from its obligations to the OWNER under this Agreement. The
CONTRACTOR shall appoint and keep on the project during the progress of the work a competent
Project Superintendent-Manager and any necessary assistants, all satisfactory to OWNER, to act as
the CONTRACTOR'S representative and to supervise its employees and subcontractors. All
directions given to the Project Superintendent-Manager shall be binding as if given to the
CONTRACTOR. Adequate supervision by competent and reasonable representative of the
CONTRACTOR is essential to the proper performance of the work, and lack of such supervision
shall be grounds for suspending the operations of the CONTRACTOR and is in breach of this
Agreement.
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9.04 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all materials, labor,
tools, equipment, transportation, and other facilities necessary for the performance and completion
of the work.
10. DISORDERLY EMPLOYEES.
The CONTRACTOR agrees to employ only orderly and competent persons, skillful in the
performance of the type of work required under this contract, to do the work. Furthermore, the
CONTRACTOR agrees that whenever the OWNER shall inform the CONTRACTOR in writing
that any person or persons performing any of the requisite work are, in the opinion of the OWNER,
incompetent, unfaithful or disorderly, such person or persons shall be discharged and shall not again
be employed to perform any work on the project without the OWNER'S prior written consent.
11. NATURE OF THE WORK.
It is understood and agreed that the CONTRACTOR has, by careful examination, satisfied itself as
to the nature and location of the work, the confirmation of the ground and soil, the nature of any
structures, the character, quality and quantity of the material to be utilized, the character of
equipment and facilities needed for and during the prosecution of the work, the time needed to
complete the work, CONTRACTOR'S ability to meet all deadlines and schedules required by this
Agreement, the general and local conditions, and all other matters that in any way affect the work
under this Agreement.
12. PROGRESS OF WORK.
12.01 Unless otherwise specifically provided herein, the CONTRACTOR may prosecute its work
at such time and sessions, in such order of precedence, and in such manner as shall be most
conducive to the economy of the project; provided; however, that the order and time of prosecution
shall be such that the work shall be finally completed as a whole, in accordance with this
Agreement, the Specifications, and other Contract Documents and within the time of completion
designated in the proposals and schedules agreed upon by the parties.
12.02 Further,the parties shall be subject to the following:
12.02.01 The OWNER reserves the right of entry to the property by such employee(s) or agent(s) as it may
elect for the purpose of inspecting the work.
12.02.02 The Project Superintendent/Manager shall coordinate its activities and work with the OWNER.
If required by the Owner, the CONTRACTOR shall provide a weekly schedule of planned
activities, which may be reviewed on a daily basis. In the case of any completed work or material
that is to be covered over by other material, the Project Superintendent/Manager shall provide
notice to the OWNER no later than twenty-four (24) hours before the anticipated cover-up of the
previously completed work or material. In the event, however, that such notice is provided on a
Friday the OWNER will have until the following Monday afternoon to approve the previously
completed work and its cover-up and the CONTRACTOR shall take no action until such approval
is given by OWNER'S REPRESENTATIVE.
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12.02.03 The CONTRACTOR shall submit at such time as may reasonably be requested by OWNER,
further schedules that shall list the order in which the CONTRACTOR proposes to carry on the
work with dates at which the CONTRACTOR will start the several parts of the work and the
estimated dates of completion of the several parts.
12.02.04 The CONTRACTOR shall attend additional meetings called by the OWNER'S
REPRESENTATIVE upon twenty-four(24) hours notice unless otherwise agreed by the parties.
12.02.05 When the OWNER is having other work done, by its own force, the OWNER'S
REPRESENTATIVE may direct the time and manner of work done under this Agreement, so that
conflicts will be avoided and the various work being done by and for the OWNER shall be
coordinated.
13. SITE CONDITIONS AND MANAGEMENT.
13.01 Where the CONTRACTOR is working around or in existing structures, it shall verify conditions at
the site, including, but not limited to, door openings and passages. Any items constructed or
manufactured off-site or outside of buildings shall be done so that they are not too bulky for
existing facilities. The CONTRACTOR shall provide special apparatus as required to handle any
such items. All special handling equipment charges shall be at the CONTRACTOR'S sole cost and
expense.
13.02 Throughout the progress of the work, the CONTRACTOR shall keep the working area free from
debris of all types, and remove from premises all rubbish, resulting from any work being done by
him. At the completion of the work, the CONTRACTOR shall leave the premises in a clean and
finished condition. Any failure to do so may be remedied by the OWNER or its designee and
charged back to the CONTRACTOR.
14. LAYOUT OF WORK.
Except as specifically provided herein, the CONTRACTOR shall lay out all work in a manner
acceptable to the OWNER in accordance with applicable codes and ordinances of the city, county
and state. The OWNER'S REPRESENTATIVE will review the CONTRACTOR'S layout of all
structures and any other layout work done by the CONTRACTOR, but this review does not relieve
the CONTRACTOR of the responsibility of accurately locating all work in accordance with the
specifications.
15. CONTRACTOR'S STRUCTURES.
15.01 Whenever the CONTRACTOR erects, installs, or uses additional structures on the property for the
storage, maintenance of materials or use of employees and subcontractors, such structure shall not
damage the property and the CONTRACTOR shall maintain sanitary conditions in and about such
structures at all times in a manner satisfactory to the OWNER.
15.02 The OWNER may charge the CONTRACTOR for any damage or injury to the OWNER, its
property or third persons as a result of the location or use of such structures.
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16. MATERIALS.
16.01 Materials or work described in words which when so applied have well-known technical or trade
meaning shall be held to refer to such recognized standards. All work shall be done and all
materials furnished in strict conformity with the Contract Documents and recognized industry
standards.
16.02 Materials and supplies utilized in the final product that will be turned over to the OWNER shall be
new and of good quality. Upon request, the CONTRACTOR shall supply proof of quality and
manufacturer.
16.03 No refurbished,reconditioned or other previously utilized materials or supplies will be used without
the signed authorization of OWNER.
16.04 Where the product is to be turned over to the OWNER, the CONTRACTOR may utilize substitutes
of equal quality and function as provided for in the specifications.
16.05 The OWNER shall have full and final decision over the use of substitute materials and supplies.
17. OBSERVATION,INSPECTIONS,TESTS.
17.01 The OWNER reserves the right to entry of the property by such employee(s) or agent(s) as he may
elect for the purpose of inspecting the work. In accordance therewith, the CONTRACTOR shall
supply the OWNER, upon request, with any keys or information necessary for the OWNER to have
access to the property. The OWNER shall have the right to enter the property or location of the
work for the purpose of performing such collateral work as the OWNER deems necessary or
appropriate.
17.02 The OWNER shall have the right, at any reasonable time, to observe and test the work. The
CONTRACTOR shall make necessary arrangements and provide proper facilities and access for
such observation and testing at any location wherever the work or any part thereof is in preparation
or progress. The CONTRACTOR shall ascertain the scope of any observation that may be
contemplated by the OWNER and shall give ample notice as to the time each part of the work will
be ready for such observation.
17.03 The OWNER may reject any work found to be defective or not in accordance with the Contract
Documents, regardless of the state of its completion or the time or place of its discovery regardless
of whether the OWNER has previously accepted the work through oversight or otherwise. Neither
observations by the OWNER nor inspections, tests, or approvals made by the OWNER, or persons
authorized under this Agreement to make such inspections, tests, or approvals, shall relieve the
CONTRACTOR from its obligation to perform the work in accordance with the requirements of the
Contract Documents.
17.04 The OWNER may require the CONTRACTOR to remove, dismantle or uncover work completed.
In the event that the CONTRACTOR has failed to perform the work as required by the
specifications, or drawings, or other Contract Documents, CONTRACTOR shall assume and pay
the costs of repair and restoration of the work required to be removed, dismantled,or uncovered. In
the event that the CONTRACTOR has performed the work correctly to specifications, OWNER
shall assume and pay the cost of restoration of the construction to the point that the OWNER has
required the work to be uncovered or dismantled.
18. WORK STOPPAGE.
18.01 The OWNER shall have the right to order the work of the CONTRACTOR or any subcontractor
wholly or partially stopped immediately under any one or more of the following conditions:
18.01.01 The work may be ordered stopped immediately if in the judgment of the OWNER, any of the
materials furnished or the work being done is not in strict accordance with this Agreement;
18.01.02 The work may be ordered stopped immediately until any objectionable person or material is
removed from the premises; or
18.01.03 The work may be ordered stopped immediately if any portion of the work is being performed so
as to create a hazardous condition.
18.02 Such stoppage or suspension shall neither invalidate any of the CONTRACTOR's performance
obligations under this Agreement, including time of performance and deadlines therefor, nor will
extra charge be allowed the CONTRACTOR by reason of such stoppage or suspension.
19. REJECTED WORK.
19.01 The OWNER, in its discretion, may reject any and all work that is found to be defective or deemed
not in conformity with this Agreement. The OWNER may reject said work or any portion thereof
regardless of the stage of its completion or time or place of discovery of such errors. Further, the
OWNER may reject said work regardless of whether the OWNER has previously accepted the work
through oversight or otherwise. Neither observations by the OWNER nor inspections, tests,
certificates or approvals made by the OWNER, or persons authorized under this Agreement to
make such inspections, tests, certificates or approvals, shall relieve the CONTRACTOR from its
obligation to perform the work in accordance with the requirements of this Agreement and the other
Contract Documents.
19.02 In the event that any work or any part thereof is rejected by the OWNER, the CONTRACTOR
shall, at its sole expense and after receipt of written notice thereof from the OWNER remove such
material and rebuild or otherwise remedy such work so that it shall be in full compliance with this
Agreement and the other Contract Documents, as follows:
19.02.01 At the option of the OWNER, the CONTRACTOR may be required to remedy such work so that
it shall be in full compliance with this Agreement. As soon as possible but not later than seven(7)
calendar days after receipt of notice from the OWNER, the CONTRACTOR shall, at its sole
expense,replace or repair all rejected work or materials so as to conform with this Agreement.
19.02.02 If the OWNER in its discretion deems it inexpedient to correct work damaged or not done in
accordance with this Agreement, an equitable deduction for the Payment Amount may be made by
the OWNER.
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19.02.03 If the CONTRACTOR does not remove or replace any rejected work within seven (7) calendar
days after receipt of notice from the OWNER, then the OWNER may have the work removed,
replaced or repaired at the CONTRACTOR'S expense.
20. SUBCONTRACTORS.
20.01 The CONTRACTOR shall retain personal control and give its personal, utmost attention to the
faithful prosecution and completion of the work and fulfillment of this Agreement. The subletting
of any portion or feature of the work or materials required in the performance of this Agreement
shall not relieve the CONTRACTOR from its obligations to the OWNER under this Agreement.
20.02 All subcontractors must be approved by the OWNER prior to hiring.
20.03 If the OWNER judges any subcontractor to be failing to perform the work in strict accordance with
the drawings and specifications, the CONTRACTOR shall discharge the same, but this shall in no
way release the CONTRACTOR from its obligations and responsibility under this Agreement.
20.04 Every subcontractor shall be bound by the terms and provisions of this Agreement as far as
applicable to its work.
20.05 The CONTRACTOR shall be fully responsible to the OWNER for the acts and omissions of its
subcontractors.
20.06 Nothing contained herein shall create relations between any subcontractor and the OWNER.
20.07 RESPONSIBILITY FOR PAYMENT OF SUBCONTRACTORS. The CONTRACTOR shall be
solely and exclusively responsible for compensating any of the CONTRACTOR'S employees,
subcontractors, materialmen and/or suppliers of any type or nature whatsoever. The
CONTRACTOR shall further be exclusively responsible for ensuring that no claims or liens of any
type are filed against any property owned by the OWNER arising out of or incidental to the
performance of any services performed pursuant to this Agreement. In the event a statutory lien
notice is sent to the OWNER, the CONTRACTOR shall, where no payment bond covers the work,
upon written notice from the OWNER, immediately obtain bond at the CONTRACTOR'S sole
expense and hold the OWNER harmless from any losses that may result from the filing or
enforcement of any said lien notice. In the event that the CONTRACTOR defaults in the provision
of the bond, the OWNER may withhold such funds as are necessary to ensure the payment of such
claim until litigation determines to whom payment shall be made.
21. POSSESSION AND USE OF COMPLETED PORTIONS.
The OWNER shall have the right to take possession of and use any completed or partially
completed portions of the work, notwithstanding the time for completing the entire work or such
portions may not have expired, but such taking possession and use shall not be deemed an
acceptance of any work not completed in accordance with the Contract Documents.
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22. PERMITS AND CERTIFICATES.
The CONTRACTOR shall secure and pay for all necessary permits, licenses and/or certificates
issued by the state, municipality or other authorities and submit the same to the OWNER. The
OWNER may withhold any payments due under this Agreement or that may become due under this
Agreement until the necessary permits, licenses and/or certificates are procured and delivered.
23. FAULTY WORKMANSHIP.
Neither the final payment nor any acceptance nor certificate nor any provision of this Agreement
shall relieve the CONTRACTOR of any responsibility for faulty workmanship or materials. At the
option of the OWNER, as provided in this Agreement, the CONTRACTOR shall remedy any
defects thereto and pay for any damage to other work resulting therefrom, which may appear after
final acceptance of the work.
24. WARRANTY.
Upon issuance of a certificate of final completion, the CONTRACTOR warrants for a period of two
(2) calendar years from the date thereof as follows:
24.01 The CONTRACTOR warrants to the OWNER that all materials provided to the OWNER under
this Agreement shall be new unless otherwise approved in writing by the OWNER and that all work
will be of good quality, free from faults and defects, and in conformance with this Agreement.
24.02 All work not conforming to these requirements, including, but not limited to, substitutions not
properly approved and authorized, may be considered defective.
24.03 This warranty is in addition to any rights or warranties expressed or implied by law and consumer
protection claims arising from misrepresentations by the CONTRACTOR.
24.04 Where more than a two (2) year warranty is specified for individual products, work or materials, the
longer warranty shall govern.
24.05 This warranty obligation shall be covered by any performance or payment bonds tendered in
compliance with this Agreement.
25. DEFECTIVE WORK DISCOVERED DURING WARRANTY PERIOD.
If within two (2) calendar years after the date of acceptance by the OWNER of designated
equipment or within such longer period of time as may be prescribed by law or by the terms of any
applicable special warranty required by this Agreement, any of the work is found or determined to
be defective, including obvious defects, or otherwise not in accordance with this Agreement, the
Contractor shall correct it PROMPTLY.
25.01 After receipt of written notice from the OWNER to begin corrective work, the CONTRACTOR
shall promptly begin the corrective work. This obligation shall survive the termination of this
Agreement. The guarantee shall not constitute the exclusive remedy of the OWNER, nor shall
other remedies be limited to either warranty or guarantee period.
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25.02 If within seven (7) calendar days after the OWNER has notified the CONTRACTOR of a defect,
failure or abnormality in the work, the CONTRACTOR has not started to make the necessary
corrections or adjustments, the OWNER is hereby authorized to make the corrections or
adjustments, or to order the work to be done by a third party. The cost of the work shall be paid
by the CONTRACTOR.
25.03 The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies
required for replacement or repair of parts and for correction of defects, shall be paid by the
CONTRACTOR or by the surety.
25.04 The two (2) calendar year warranty shall cover all work, equipment, and materials that are part of
this project, whether or not a warranty is specified in the individual section prescribing that
particular aspect of the work.
26. LIQUIDATED DAMAGES.
26.01 It is expressly understood and agreed by the parties that time is of the essence to this Agreement and
that the date set for the final completion of the work described herein is an essential condition of
this Agreement. It is further understood and agreed that the date for final completion of the work is
reasonable for the completion of the project, taking into consideration all conditions, including, but
not limited to, the average climatic change and conditions and usual industrial conditions prevailing
in this locality.
26.02 If the CONTRACTOR should neglect, fail, or refuse to complete the work required for final
completion within the date specified in this Agreement, or any proper extension that is granted in
writing by the OWNER, then the CONTRACTOR hereby agrees, as a part of the consideration for
the awarding of this Agreement, that the OWNER may withhold permanently from the
CONTRACTOR'S total Payment Amount the sum of Two Hundred Dollars ($200) for each and
every calendar day that the CONTRACTOR is in default after the date stipulated for either
substantial or final completion as the case may be, not as a penalty, but as liquidated damages for
the breach of the Agreement.
26.03 The amount of liquidated damages for the CONTRACTOR'S failure to meet the deadline for final
completion is fixed and agreed on by the CONTRACTOR because of the impracticability and
extreme difficulty in fixing and ascertaining actual damages that the OWNER would in such an
event sustain. The amounts to be charged are agreed to be the damages that the OWNER would
sustain and may, at the option of the OWNER, be retained from either current progress payment or
from final payment.
27. WITHHOLD PAYMENT.
Regardless of any bond, the OWNER may, on account of subsequently discovered evidence,
withhold payment or nullify the whole or part of any acceptance or certificate to such extent as may
be necessary to protect the OWNER from loss on account of:
27.01 Defective work or work that is not in strict accordance with the terms of this Agreement, the
Specifications, or the other Contract Documents;
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27.02 Claims filed or reasonable evidence indicating probable filing of claims, as determined at the sole
discretion of the OWNER;
27.03 Failure of the CONTRACTOR to make prompt payments to subcontractors or for material or labor
or materialmen;
27.04 Claims filed or reasonable evidence, as determined at the sole discretion of the OWNER,of damage
to another contractor or a third party, including adjacent property owners;
27.05 Reasonable doubt, as determined at the sole discretion of the OWNER, that the work can be
completed for the unpaid balance of the contract amount;
27.06 Reasonable indication, as determined at the sole discretion of the OWNER, that the work will not
be completed within the contract time;
27.07 Liquidated damages and administrative charges, as determined by the OWNER at its sole
discretion;
27.08 Charges made for repairs to the CONTRACTOR'S defective work or repairs made by the OWNER
to correct damage to other property;
27.09 Claims filed or reasonable evidence as determined at the sole discretion of the OWNER indicating
unremedied damage to property owned by the OWNER; or
27.10 Other amounts authorized under this Agreement.
28. CHARGES FOR INJURY OR REPAIR.
28.01 The CONTRACTOR shall be liable and responsible for any damages incurred or repairs made
necessary by reason of its work and/or caused by it. Repairs of any kind required by the OWNER
will be made and charged to the CONTRACTOR by the OWNER.
28.02 The CONTRACTOR shall take the necessary precautions to protect any areas adjacent to its work.
28.03 The work specified consists of all work, materials and labor required by the OWNER to repair any
damage to the property of the OWNER, including, but not limited to, structures, roadways, curbs,
parking areas and sidewalks, to an equal or better condition than before such property was
damaged.
29. PAYMENT OF EMPLOYEES AND FOR MATERIALS.
29.01 Wage rates paid on this project shall not be less than specified in the schedule of general prevailing
rates of per diem rates, if applicable to this Agreement and attached hereto and incorporated herein
for all intents and purposes.
29.02 The CONTRACTOR and each of the subcontractors shall pay each of its employees engaged in
work on the project under this Agreement in full (less mandatory legal deductions), in cash or by
check readily cashable,without discount,no less than once every two (2)weeks.
29.03 The OWNER may, prior to final acceptance of the project, require the CONTRACTOR to execute
an affidavit in legal form stating that all bills for labor, materials, and incidentals incurred have
been paid in full and that there are no claims pending of which the CONTRACTOR has been
notified.
30. INSURANCE.
30.01 Throughout the term of this Agreement, the CONTRACTOR at its own expense shall purchase,
maintain and keep in force and effect insurance against claims for injuries to or death of persons or
damages to property which may arise out of or result from the CONTRACTOR'S operations and/or
performance of the work under this Agreement, whether such operations and/or performance be by
the CONTRACTOR, its agents, representatives, volunteers, employees or subcontractors or by
anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them
may be liable.
30.02 The CONTRACTOR'S insurance coverage shall be primary insurance with respect to the OWNER,
its officers, agents and employees. Any insurance or self-insurance maintained by the OWNER, its
officials, agents and employees shall be considered in excess of the CONTRACTOR'S insurance
and shall not contribute to it. Further, the CONTRACTOR shall include all subcontractors as
additional insureds under its commercial general liability policies or shall furnish separate
certificates and endorsements for each subcontractor. All coverages for subcontractors shall be
subject to all of the requirements stated herein.
30.03 The following is a list of standard insurance policies along with their respective minimum coverage
amounts required in this contract:
(1) Workers' Compensation Policy
• Statutory amounts required by Texas law.
• Employer's Liability: $500,000
• Waiver of Subrogation Required
(2) Commercial General Liability Policy;
• General aggregate of$1,000,000
• Products & Completed Operations Aggregate: $500,000
• Personal &Advertising Injury: $1,000,000
• Minimum of$500,000 per occurrence.
• Fire Damage: $50,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage exclusions shall be deleted form standard policy without notification of
individual exclusions being attached for review and acceptance.
(3) Automobile Liability Policy, which shall include all owned and hired autos, if
applicable; and
• Combined single limits of$500,000 or
• BI Per Person: $250,000
• BI Per Accident: $500,000, and
• PD Per Accident: $250,000
• Coverage for"Any Auto"
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30.04 Upon execution of this contract, CONTRACTOR shall file with the OWNER valid Certificates of
Insurance and endorsements acceptable to the OWNER. Such Certificates shall contain a provision
that coverages afforded under the policies will not be canceled, suspended, voided, or reduced until
at least thirty(30) days prior written notice has been given to the OWNER via certified mail, return
receipt requested.
The CONTRACTOR shall also file with the OWNER valid Certificates of Insurance covering all
Subcontractors. The OWNER reserves the right to reject any bid that does not meet the minimum
insurance requirements as outlined above.
30.05 The following are general requirements that are applicable to all policies:
30.05.01 AM Best Rating of A:VII or better.
30.05.02 Only Insurance Carriers licensed and admitted to do business in the State of Texas will be
accepted.
30.05.03 Liability policies will be on occurrence form.
30.05.04 The OWNER, its officials and employees are to be added as Additional Insured to liability
polices.
30.05.05 Upon request of and without cost to OWNER, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to the OWNER's representative. Certificates of
insurance showing evidence of insurance coverage shall be provided to OWNER's representative
prior to execution of this agreement.
30.05.06 Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all
insurance coverage shall be furnished to OWNER's representative.
31. PROJECT UNDER CONTRACTOR'S CONTROL.
Any injury or damage caused to the CONTRACTOR or the project prior to and including the date
of final completion caused by an act of God, natural cause, a party or entity not privy to this
Agreement, or other force majeure shall be assumed and borne by the CONTRACTOR.
32. COMPLIANCE WITH LAW.
The CONTRACTOR'S work and materials shall comply with all state and federal laws, municipal
ordinances, regulations and direction of inspectors appointed by proper authorities having
jurisdiction including, without limitation, the following:
32.01 The CONTRACTOR shall perform and require all subcontractors to perform the work in
accordance with applicable laws, codes, ordinances, and regulations of the State of Texas and the
United States and in compliance with OSHA and other laws as they may apply. In the event any of
the conditions of the specifications violate the code for any industry, then such code conditions
shall prevail.
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32.02 The CONTRACTOR shall follow all applicable state and federal laws, municipal ordinances and
guidelines concerning soil erosion and sediment control throughout the project and warranty period.
32.03 The CONTRACTOR agrees to abide by all federal, state or local regulations relative to equal
opportunity to all persons, without discrimination as to race, color, creed, religion, national origin,
sex, marital status, age and status with regard to public assistance or disability.
33. SAFETY PRECAUTIONS.
33.01 Safety precautions at the site are a part of the construction techniques and processes for which the
CONTRACTOR shall be solely responsible. The CONTRACTOR is solely responsible for
handling and use of hazardous materials or waste, and informing employees of any such hazardous
materials or waste.
33.02 The CONTRACTOR has the sole obligation to protect or warn any individual of potential hazards
created by the performance of the work set forth herein. The CONTRACTOR shall, at its on
expense, take such precautionary measures for the protection of persons, property and the work as
may be necessary.
33.03 The CONTRACTOR shall be held responsible for all damages to property, personal injuries and/or
death due to failure to safety devices of any type or nature that may be required to protect or warn
any individual of potential hazards created by the performance of the work site forth herein; and
when any property damage is incurred, the damaged portion shall immediately be replaced or
compensated for by the CONTRACTOR at its own cost and expense.
34. INDEMNITY
34.01 The CONTRACTOR shall indemnify, hold harmless, and defend the OWNER, ITS
OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO AS
"OWNER" IN THIS PARAGRAPH) from any liability of whatever nature caused by the
CONTRACTOR'S failure to comply with applicable federal, state, or local regulations that
touch upon or concern the maintenance of a safe and protected working environment and the
safe use and operation of machinery and equipment in that working environment no matter
where fault or responsibility lies. Such indemnity shall indemnify and protect the OWNER
from the consequences of (i) the OWNER'S own negligence, when that negligence is the
concurring cause of the injury, death or damages, and/or (ii) the CONTRACTOR'S own
negligence, when the negligence is the sole or concurring cause of the injury death or
damages. It is the expressed intention of the parties hereto, both the CONTRACTOR and the
OWNER, that the indemnity provided for in this paragraph is an indemnity by the
CONTRACTOR to indemnity, protect and defend the OWNER from the consequences of(i)
the OWNER'S own negligence where that negligence is a concurring cause of the injury,
death or damage and (ii) the consequences of the CONTRACTOR'S negligence where that
negligence is the sole or concurring cause of the injury, death or damage. Furthermore, the
indemnity provided for in this paragraph shall have no application to any claim, loss damage,
cause of action, suit and liability where the injury, death or damage results from the sole
negligence of the OWNER unmixed with the fault of any other person or entity.
34.02 The CONTRACTOR shall indemnify, protect and defend the OWNER from the
consequences of the OWNER, its officers', agents', and employees' sole and/or concurrent
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negligence in accordance with Section 34.01 for all work done by the CONTRACTOR,
including, but not limited to, the following specific instances:
34.02.01 In the event the OWNER, its officers', agents', and/or employees' are damaged due to the
act, omission, mistake, fault or default of the CONTRACTOR, then the CONTRACTOR
shall indemnify and hold the OWNER AND THE OWNER'S REPRESENTATIVE harmless
for such damage.
34.02.02 The CONTRACTOR shall indemnify and hold the OWNER, its officers', agents', and/or
employees' harmless from any claims of material suppliers, mechanics, laborers, or other
subcontractors.
34.02.03 The CONTRACTOR shall indemnify and hold the OWNER, its officers', agents', and/or
employees' harmless from any and all injuries to or claims of adjacent property owners
caused by the CONTRACTOR, its agents, employees and representatives.
34.02.04 The CONTRACTOR shall be responsible for any damage to the floors, walls, etc., caused
by the CONTRACTOR its agents, employees and representatives or their equipment during
installation.
34.02.05 The CONTRACTOR shall also be responsible for all subcontractors hired by it.
35. RELEASE.
By this Agreement, the OWNER does not consent to litigation and expressly revoke any consent to
litigation that they may have granted by the terms of this Agreement, any charter, or applicable state
law. The CONTRACTOR assumes full responsibility for the work to be performed and releases,
relinquishes, and discharges the OWNER, its officers, agents and employees from all claims,
demands and causes of action of every kind and character for any injury to, including, but not
limited to, death of any person (whether third persons, the CONTRACTOR, or employees of either
of the parties). This release includes the cost of defense of any claim and any loss of or damage to
property(whether property of the parties or of third parties) that is caused by or alleged to be caused
by, arising out of, or in connection with the CONTRACTOR'S work to be performed under this
Agreement whether or not said claims, demands, and causes of action are covered in whole or in
part by insurance.
36. ROYALTIES AND LICENSING FEES.
The CONTRACTOR shall pay all royalties and license fees, and shall provide for the use of any
design, device, material or process covered by letters patent or copyright by suitable legal
agreement with the patentee or owner. The CONTRACTOR warrants that the products hereby
incorporated into the project and/or any product used in association with the project does not
infringe upon or violate any patent, copyright, trade secret or any other proprietary right of
any third party; in the event of any claim by any third party against the OWNER or its
officers, agents, and/or employees, the OWNER shall notify the CONTRACTOR and the
CONTRACTOR shall defend such claim, in the OWNER name, but at the CONTRACTOR'S
expense, and shall indemnify, hold harmless, and defend the OWNER and its officers, agents,
and anyone directly or indirectly employed by the OWNER from and against any and all
claims, damages, losses, causes of action, suits, and liability of every kind, including, but not
limited to, all expenses of litigation, court cost, and attorney's fees, for injury, death, or
damage to any third party arising out of or in connection with the product(s) used in the
performance of this Contract and regardless of whether such claim by and any resulting
injury, death, or damage to third parties is caused in part by the acts and/or omissions of the
OWNER, its officers', agents', and/or employees'. It is the expressed intention of the parties
hereto, both the CONTRACTOR and the OWNER'S, that the indemnity provided for in this
paragraph is an indemnity by the CONTRACTOR to indemnify, protect and defend the
OWNER from the consequences of the OWNER'S acts and/or omissions, where the
OWNER'S acts and/or omissions are the concurring cause of the infringement upon or
violation of any patent, copyright, trade secret, or other proprietary right and any resulting
injury, death, or damage of any third party in connection with the products provided,
incorporated, or used in the project under this Contract. If the material, design, service,
product or process specified or required by the OWNER is an infringement, the CONTRACTOR
shall be responsible for such loss, unless he promptly gives such information to the OWNER.
37. ABANDONMENT.
37.01 In case the CONTRACTOR should abandon, fail or refuse to resume work within ten (10) days
after written notification from the OWNER, or if the CONTRACTOR fails to comply with the
orders of the OWNER, when such orders are consistent with the Contract Documents, then, and in
that case, (i) where performance and payment bonds exist, the sureties on these bonds shall be
notified in writing and directed to complete the work, and a copy of said notice shall be delivered to
the CONTRACTOR.
37.02 After receiving said notice of abandonment, the CONTRACTOR shall not remove from the work
any machinery, equipment, tools, materials, or supplies then on the job, but the same, together with
any materials and equipment under contract for the work, may be held for use on the work by the
OWNER or the Surety on the performance bond, or another contractor in completion of the work;
and the CONTRACTOR shall not receive any rental or credit therefor, it being understood that the
use of such equipment and materials will ultimately reduce the cost to complete the work and be
reflected in the final settlement.
38. BREACH OF CONTRACT.
The OWNER shall have the right to declare the CONTRACTOR in breach of this Agreement for
cause when the OWNER determines that this Agreement is not being performed according to its
understanding of the intent and meaning of this Agreement. Such breach shall not in any way
invalidate, abrogate or terminate the CONTRACTOR'S obligation under this Agreement.
39. TERMINATION.
39.01 If this Agreement is terminated for cause, the OWNER shall have the right but shall not be
obligated to complete the work either itself or by others; and to this end, the OWNER shall be
entitled to take possession of and use such equipment and materials as may be on the job site and to
exercise all rights, options and privileges of the CONTRACTOR under its subcontracts, purchase
orders or otherwise; and the CONTRACTOR shall promptly assign such rights, options, and
privileges to the OWNER. If the OWNER elects to complete the work itself or by others, pursuant
to the foregoing, then the CONTRACTOR will reimburse the OWNER for all costs incurred
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(including, without limitation, applicable, general and administrative expenses, and field overhead,
and the cost of necessary equipment, materials and field labor) in correcting work by the
CONTRACTOR that fails to meet the requirements of the Contact Documents.)
39.02 After receipt of a notice of termination, the CONTRACTOR shall, in good faith and to the best of
its ability, do all things necessary in light of such notice to assure the efficient and proper close-out
of the terminated work (including, the protection of the OWNER'S property). Among other things
the CONTRACTOR shall, except as otherwise directed or approved by the OWNER, do the
following:
(a) Stop the work on the date and to the extent specified in the notice of termination;
(b) Place no further orders or subcontracts for services, equipment, or material, except as may be
necessary for completion of such portion of the work as is not terminated;
(c) Immediately terminate all orders and subcontracts to the extent that they relate to the performance
of the work terminated by the notice of termination;
(d) Assign to the OWNER, in the manner and to the extent directed by it, all of the right, title and
interest of the CONTRACTOR under the orders or subcontracts so terminated in which case, the
OWNER shall have the right to settle or pay any or all claims arising out of the termination of such
orders and subcontracts;
(e) With the approval of the OWNER, settle all outstanding liabilities and all claims arising out of such
termination, orders and subcontracts; and/or
(f) Deliver to the OWNER, when directed by the OWNER, all documents and all property, which if
the work had been completed, the CONTRACTOR would have been required to account for or
deliver to the OWNER, and transfer title to such property to the OWNER to the extent not already
transferred.
39.03 In the event of such termination, there shall be an equitable reduction of the Payment Amount to
reflect the reduction in the work. Costs incurred after the effective date of the notice of termination
shall not be treated as reimbursable costs unless they relate to carrying out the unterminated portion
or taking close-out measures.
40. TERMINATION FOR CAUSE.
40.01 Without prejudice to any other legal or equitable right or remedy that the OWNER would otherwise
possess hereunder or as a matter of law, the OWNER, upon giving the CONTRACTOR five (5)
days' prior written notice, shall be entitled to terminate this Agreement in its entirety at any time for
the following:
40.01.01 If the CONTRACTOR becomes insolvent, commits any act of bankruptcy, makes a general
assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under
any statute or law for the relief of debtors;
40.01.02 If a receiver, trustee or liquidator of any of the property or income of the CONTRACTOR shall
be appointed;
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40.01.03 If the CONTRACTOR shall fail to prosecute the work or any part thereof with diligence
necessary to ensure its progress and completion as prescribed by the time schedules;
40.01.04 If within five (5) calendar days after written notice thereof from the OWNER, the
CONTRACTOR shall fail to remedy any defective work or work that does not conform to the
requirements of this Agreement, the specifications, and other Contact Documents, or any other
default under any of the terms, provisions, conditions, or covenants contained in this Agreement or
any other current agreement between the CONTRACTOR and another OWNER for similar
construction work on other property; or
40.01.05 If the CONTRACTOR shall fail for any reason other than the failure by the OWNER to make
payment called upon when due.
40.02 In the event of such termination for cause, the CONTRACTOR shall only be paid its reimbursable
costs incurred prior to the effective date of the termination and shall not be entitled to receive any
further progress payment hereunder and shall be further subject to any claim that the OWNER may
have against the CONTRACTOR under the provisions of this Agreement or as a matter of law,
including the refund of any overpayments of reimbursable costs or progress payments.
41. TERMINATION FOR CONVENIENCE.
41.01 The performance of the work may be terminated at any time in whole or in part,by the OWNER for
its convenience. Any such termination shall be effected by delivery to the CONTRACTOR of a
written notice (notice of termination) specifying the extent to which performance of the work is
terminated and the date upon which termination becomes effective. If, for whatever reason, this
contract is terminated for cause that is later determined not to exist, the parties agree that the
contract will be deemed to be terminated for convenience.
41.02 In the event of termination for convenience, the CONTRACTOR shall only be paid its reimbursable
costs incurred prior to the effective date of the termination notice and shall not be entitled to receive
any further progress payment hereunder and shall be further subject to any claim the OWNER may
have against the CONTRACTOR under other provisions of this Agreement or as a matter of law,
including the refund of any overpayment of reimbursable costs and/or progress payment.
42. COMPLETION AFTER ABANDONMENT OR TERMINATION.
42.01 In the event that the CONTRACTOR has abandoned the project or the OWNER has terminated the
contract for cause and where there is no performance bond provided or where there is a surety but
such surety, within seven (7) calendar days after the notice demanding completion is sent, fails to
commence the completion and diligent prosecution of the work in compliance with this Agreement
, then the OWNER may AT ITS OPTION provide for completion of the work in either of the
following elective manners:
42.01.01 The OWNER may employ such force of men and use such machinery, equipment, tools,
materials, and supplies as said OWNER may deem necessary to complete the work and charge the
expense of such labor, machinery, equipment, tools, materials, and supplies to said
71
CONTRACTOR, and expense so charged shall be deducted and paid by the OWNER out of such
monies as may be due, or that may thereafter at any time become due to the CONTRACTOR under
and by virtue of this Agreement. In case such expense is less than the sum which would have been
payable under this contract, if the same had been completed by the CONTRACTOR, then said
CONTRACTOR and/or its surety hereby waives any and all privileges,rights, and claims to receive
the difference. In case such expense is greater than the sum which would have been payable under
this contract, if the same had been completed by said CONTRACTOR, then the CONTRACTOR
and/or its surety shall, within seven (7) calendar days, pay the amount of such excess to the
OWNER.
42.01.02 The OWNER, under sealed bids, after notice published as required by law at least twice in a
newspaper having general circulation in the county of the location of the work, may let the contract
for the completion of the work under substantially the same terms and conditions which are
provided in this contract. In case any increase in cost to the OWNER under the new contract as
compared to what would have been the cost under this contract, such increase shall be charged to
the CONTRACTOR and the surety shall be and remain bound therefor. However, should the cost
to complete any such new contract prove to be less than what would have been the cost to complete
under this contract, the CONTRACTOR and/or its Surety hereby waives any and all privileges,
rights and claims to such excess.
42.02 In the event of abandonment by the CONTRACTOR, the CONTRACTOR shall assign to the
OWNER, in the manner and to the extent directed by the OWNER, all of the right, title, and interest
of the CONTRACTOR in and to any and all materials located on the property and any subcontracts
for work to be performed on the property; in which case the OWNER shall have the right to settle
or pay all claims arising out of the termination of such orders and subcontracts.
43. DAMAGES.
43.01 Without prejudice to any other legal or equitable right or remedy that the OWNER would otherwise
possess hereunder or as a matter of law, the OWNER upon giving the CONTRACTOR five (5)
days' prior written notice shall be entitled to damages for breach of contract,upon but not limited to
the following occurrences:
43.01.01 If the CONTRACTOR shall fail to remedy any default after written notice thereof from the
OWNER; or
43.01.02 If the CONTRACTOR shall fail for any reason other than the failure by the OWNER to make
payments called upon when due; or
43.01.03 If the CONTRACTOR commits a substantial default under any of the terms, provisions,
conditions or covenants contained in this Agreement.
44. INVALIDITY.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or
other tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. The parties shall use their best
efforts to replace the respective provisions or provisions of this Agreement with the legal terms and
conditions approximating the original intent of the parties.
24
45. ENTIRE AGREEMENT.
It is understood that this Agreement contains the entire agreement between the parties and
supersedes any and all prior agreements, arrangements or understandings between the parties
relating to the subject matter. There are no oral understandings, statements, promises or
inducements contrary to the terms of this Agreement. This Agreement cannot be changed or
terminated orally. No verbal agreement or conversation with any officer, agent, representative or
employee of the OWNER either before or after the execution of this Agreement, shall affect or
modify any of the terms or obligations hereunder.
46. AMENDMENT.
No amendments to this Agreement shall be effective and binding until they are reduced to writing
and signed by duly authorized representatives of both parties.
47. LITIGATION COSTS.
In the event of litigation, the CONTRACTOR agrees to pay and shall pay all of the attorney's fees,
court costs and other litigation costs of the OWNER.
48. TEXAS LAW.
This Agreement has been made under and shall be governed by the laws of the State of Texas.
49. PLACE OF PERFORMANCE.
The place of making and the place of performance for all purposes shall be Baytown, Harris
County, Texas.
50. WAIVER.
Failure of any party, at any time, to enforce a provision of this Agreement shall in no way constitute
a waiver of that provision, nor in any way affect the validity of this Agreement or part hereof or the
right of the OWNER thereafter to enforce each and every provision hereof. No term of this
Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and
signed by the party claimed to have waived the same. Furthermore, any consent to or waiver of a
breach will not constitute consent to or waiver of or excuse of any other different or subsequent
breach.
51. HEADINGS.
The article headings are used in this Agreement for convenience and reference purposes only and
are not intended to define, limit or describe the scope or intent of any provision of this Agreement
and shall have no meaning or effect upon its interpretation.
75
.
52. GENDER AND NUMBER.
Words of any gender used in this Agreement shall be held and construed to include any other
gender, and words in the singular number shall be held to include the plural, and vice versa, unless
context requires otherwise.
53. CONSTRUCTION OF AGREEMENT
The parties agree that this Agreement shall not be construed in favor of or against any party on the
basis that the party did or did not author this Agreement.
54. AUTHORITY TO ENTER CONTRACT.
Each party has the full power and authority to enter into and perform this Agreement, and the
person signing this Agreement on behalf of each party has been properly authorized and empowered
to enter into this Agreement. The persons executing this Agreement hereby represent that they have
authorization to sign on behalf of their respective corporations and/or business entities.
55. AGREEMENT READ.
The parties acknowledge that they have read, understand and intend to be bound by the terms and
conditions of this Agreement.
56. ASSIGNMENT.
CONTRACTOR may not assign or otherwise transfer this agreement or any rights or obligations
hereunder without the prior written consent of the OWNER.
57. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the CONTRACTOR and its
successors and assigns.
58. MULTIPLE ORIGINALS.
It is understood and agreed that this Agreement may be executed in a number of identical
counterparts each of which shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,
each of which shall be deemed t an original, but all of which shall constitute but one and the
same Agreement on the4t'day of � , 2002, the date of execution by the
City Manager of the City of Baytown.
PYRAMID WA ' RPROOFING, INC.
(Name f - •ctor)
(Si a . e)
1
•
MARK BECKENDORF
(Printed Name)
Vice President
(Title)
CITY OF BAYTOWN
GARY JACK O , Interim City Manager
ATTEST:
//)
G S TH, City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, SR ity Attorney
STATE OFTEXAS :
•
COUNTY OF HARRIS :
Before me on this day personally appeared Mark Beckendorf , in his capacity as
Vice President of Pyramid Waterproofing Inc., on behalf of such corporation or
o4 business entity, known to me to be the person whose name is subscribed to the foregoing instrument
P .,_,: .•: .q�1edged to me that he executed the same for the purposes and consideration therein expressed.
J ti P09 G/
$ tS w' 1..` D A SIATO'. beftre me this 4th day of December , 2002.
•
�• ,
• 'It u =•' b :• 'n . d or e St.to of Texas
39
SureTec Insurance Company
5000 Plaza on the Lake, Suite 290
Austin, Texas 78746
512-732-0099
TEXAS STATUTORY PAYMENT BOND
(Public Works)
Bond No.:4341434
KNOW ALL MEN BY THESE PRESENTS:
THAT, PYRAMID WATERPROOFING, INC (hereinafter called the Principal), as principal, and
SureTec Insurance Company, a corporation organized and existing under the laws of the State of Texas,
licensed to do business in the State of Texas and admitted to write bonds, as surety, (hereinafter called the
Surety), are held and firmly bound unto CITY OF BAYTOWN (hereinafter called the Obligee), in the amount
of
FORTY-NINE THOUSAND SEVEN HUNDRED AND 00/100 Dollars ( $49,700.00 ) for the payment
whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors,
successors, and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain contract with the Obligee, dated the 14TH day of
NOVEMBER , 2002 for TREMCO ROOFING SYSTEM REPAIR OF THE FIRE ADMINISTRATION
BUILDING which contract is hereby referred to and made a part hereof as fully and to the same extent as if
copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the said Principal
shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work
provided for in said contract, then, this obligation shall be null and void; otherwise to remain in full force and
effect;
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of
the Texas Government Code and all liabilities on this bond shall be determined in accordance with the
provision, conditions and limitations of said Chapter to the same extent as if it were copied at length herein.
IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this
20TH day of NOVEMBER, 2002.
Principal: P ATERPROOFING INC
By:
Surety: eTec Ins nce C mpany
By: ----
Cheryl A. i lenbrand
Attorney-in-Fact
SureTec
POWER OF ATTORNEY
Know All Men by These Presents, That SURETEC INSURANCE COMPANY (the "Company"), a corporation duly organized and
existing under the laws of the State of Texas,and having its principal office in Houston,Harris County, Texas,does by these presents
make,constitute and appoint
Michael C.Vecellio,Cheryl A. Hillenbrand
of Houston,Texas its true and lawful Attorney(s)-in-fact, with full power and authority hereby conferred in its name,place and stead,
to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of
suretyship to include waivers to the conditions of contracts and consents of surety,providing the bond penalty does not exceed
Five Million Dollars ($5,000,000)and to bind the Company thereby as fully and to the same extent as if such bonds were signed by
the President, sealed with the corporate seal of the Company and duly attested by its Secretary, hereby ratifying and confirming all
that the said Attorney(s)-in-Fact may do in the premises. Said appointment is made under and by authority of the following
resolutions of the Board of Directors of the SureTec Insurance Company:
Be it Resolved, that the President, any Vice-President, any Assistant Vice-President, any Secretary or any Assistant
Secretary shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as
Attorney(s)-in-Fact to represent and act for and on behalf of the Company subject to the following provisions:
Attorney-in-Fact may be given full power and authority for and in the name of and of behalf of the Company, to execute,
acknowledge and deliver, any and all bonds, recognizances, contracts, agreements or indemnity and other conditional or
obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder,
and any such instruments so executed by any such Attorney-in-Fact shall be binding upon the Company as if signed by the
President and sealed and effected by the Corporate Secretary.
Be it Resolved, that the signature of any authorized officer and seal of the Company heretofore or hereafter affixed to any
power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile
signature or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it
is attached. (Adopted at a meeting held on 20th of April, 1999.)
In Witness Whereof, SURETEC INSURANCE COMPANY has caused these presents to be signed by its President, and its
corporate seal to be hereto affixed this l lth day of June,A.D. 2002.
SURETEC INSURANCE COMPANY
Corporate Seal Skuw►NCFc+
c.),/ X 9 ; By
i=ut 11104p,..
5 2
State of Texas ""' *'". Joh px,Jr.,
County of Harris ss: m' Preside4t
On this 11th day of June A.D. 2002 before me personally came John Knox, Jr., to me known, who, being by me duly sworn, did
depose and say, that he resides in Houston, Texas, that he is President of SURETEC INSURANCE COMPANY, the company
described in and which executed the above instrument;that he knows the seal of said Company;that the seal affixed to said instrument
is such corporate seal; that it was so affixed by order of the Board of Directors of said Company; and that he signed his name thereto
by like order.
DONNA U.JUAREZ t Q,K,.i.. .,r
# '1'' Mmory►ublic.Um*M Aw
')/.: 1yC MoMn E*.s
Notary Seal onna U.Ibanez,Notary c
JUKE 11,:00e My commission expires June 11,2006
I,Michael P. Whisenant,Vice President and Assistant Secretary of SURETEC INSURANCE COMPANY, do hereby certify that the
above and foregoing is a true and correct copy of a Power of Attorney, executed by said Company, which is still in full force and
effect;and furthermore,the resolutions of the Board of Directors,set out in the Power of Attorney are in full force and effect.
In Witness Whereof, I have hereunto set my hand and affixed the seal of said Company t..4aat Houston, Texas this 20th day of
November 2002 20 , A.D. �� �',-,��'
SURANCF
Ga''rI •'CO
1.
Corporate Seal r W� Michael P.Whisenant,
s�',. 11t Vice President,Assistant Secretary
PYRAMID
WATERPROOFING INC.
November 15, 2002
City of Baytown
Attn: Travis Doughty, Purchasing Manager
P.O. Box 424
Baytown, Texas 77522-0424
Re: Project: Tremco Roofing System Repair of the Fire Administration Building
Contractor: Pyramid Waterproofing, Inc. / Project No:0209-07
Contract Amount: $49,700.00
Dear Mr. Doughty:
As part of our program to enhance our credit and provide you with the protection of 100%
performance and payment bonds, we have entered into a Disbursement Services Agreement with
our surety, SureTec Insurance Company. Under the terms of this agreement, we are requesting
that you send all contract proceeds, payable to Pyramid Waterproofing, Inc., directly to the project
disbursing agent, SureTec Information Systems, Inc. at the following address:
SureTec Information Systems, Inc.
Attn: Funds Disbursement Dept.
5000 Plaza on the Lake, Suite 290
Austin, Texas 78746
(866) 732-0099
Under the terms of our agreement, this directive is irrevocable and may only be changed by
written directive of SureTec Insurance Company. Your signature below, indicating your
agreement to make payment in this manner, and your forwarding of payment in the manner
requested, is a condition to the execution of the performance and payment bonds on this project.
Thank you for your cooperation in this regard. We are looking forward to a very successful
project.
PYRAMID WATERPROOFING, INC.
Ronald Nau
President
Owner's Agreement and Acknowledgment:
By: cf9)214,a,r_Llief: 1 Date: l/ • 0
Authorized Representat" e
19QAA- 1—) 114 (71
Title Phone umber/Email address
A ROOFING & WATERPROOFING COMPANY
P.O. BOX 16069 • HOUSTON,TEXAS 77222-6069 OFF: (713) 699-4777 • FAX: (713)697-8434
INVITATION TO BID Bidder Must Fill In&Sign
Name of Firm,Company
•
F B. ASS Pyramid Waterproof inq, Inc.
�•:" +� :o Agent's Name
Mark Beckendorf
j; AS* Agent's Title
Vice President
Mailing Address
P.O. Box424 P.O. Box 16069
Baytown,Texas 77522-0424 City State Zip
Houston TX 77222-6069
Telephone
713 699-4777
BID TITLE: TREMCO ROOFING SYSTEM REPAIR OF Fax No.
THE FIRE ADMINISTRATION BUILDING-REBID 71 3 697-8434
NUMBER: 0209-07-REBID Email Address•
mbec ramidwater roofing.com
BID OPENING DATE 2:00 P.M., MONDAY,
OCTOBER 14,2002
IZED SIGNATURE
LATE BIDS WILL NOT BE CONSIDERED. FAIL TO MANUALLY SIGN
SHALL DISQUALIFY BID 7/_Qe_70 2,/
BIDDER AGREES TO COMPLY WITH ALL CONDITIONS BELOW, ATTACHED SPECIFICATIONS, AND NOTES. BIDDER HAD
READ AND AGREES TO COMPLY WITH ALL TERMS AND CONDITIONS ON BACK OF INVITATION TO BID. PURCHASES
MADE FOR CITY USE ARE EXEMPT FROM THE STATE SALES TAX AND FEDERAL EXCISE TAX. DO NOT INCLUDE TAXES
IN YOUR BID. BIDDER GUARANTEES PRODUCT OFFERED SHALL MEET OR EXCEED MINIMUM SPECIFICATION
IDENTIFIED IN THIS INVITATION TO BID.
BUILDING LOCATED AT 3110 NORTH MAIN STREET, BAYTOWN, TEXAS
SHIPMENT DESTINATION 77521
ITEM NO. ITEM AND DESCRIPTION QUANTITY UNIT PRICE EXTENSION
TREMCO ROOFING SYSTEM REPAIR
OF THE FIRE ADMINISTRATION
BUILDING-REBID, LOCATED AT 3110
NORTH MAIN STREET, BAYTOWN,
TEXAS, per attached specifications.
1• Roofing Project
1 lot GRAND $ 4 9 , 7 0 0 . 0 0
Eligible Contractors attended a TOTAL:
Mandatory Pre-bid Conference held
at 9:00 a.m., Tuesday,
September 17, 2002, located at 3110
North Main Street, Baytown, Texas
•
77521. This packet is a duplicate of
the specifications handed out at that
meeting. Only attendees of the
mandatory meeting are eligible to
REBID this contract.
"By the signature hereon affixed, the bidder hereby certifies that neither the bidder nor the firm,cooperation,partnership,or institution represented by
the bidder, or anyone acting for such firm, corporation, or institution had violated the antitrust laws of the State, codified in Section 15.01, et seq.,
Texas Business and Commerce Code, or the Federal antitrust laws, nor communicated directly or indirectly the bid made to any competitor or any
other person engaged in such line of business."
TERMS AND CONDITIONS
I. The City of Baytown will accept sealed bids Monday through Friday,8:00 a.m.— 12:00 p.m.and 1:00 p.m.—5:00 p.m. Purchasing Department
is closed from 12:00 p.m. to 1:00 p.m. Bids must be received by the PURCHASING DEPARTMENT before the specified hour and date of the
opening. At that time the bids will be publicly opened and read aloud.
2. All bids should be submitted on the original forms provided. Each bid should be placed in a properly identified envelope with bid number,
time and date of opening.
3. Late bids properly identified will be UNOPENED. Late bids will not be considered under any circumstances.
4. Bids CANNOT be altered or amended after opening time. Any alterations made before opening time must be initialed by bidder or his
authorized agent. No bid may be withdrawn after opening without approval,and based on a written acceptable reason.
5. The City of Baytown reserves the right to revise or amend the specifications prior to date set for opening bids. Such revisions or amendments,if
any, will be announced by amendments or addendum to these specifications. Copies of such amendments or addendum so issued will be
furnished to all prospective bidders. If bidder demonstrates just reason for a change,the City of Baytown must have at least five working days
notice prior to bid opening date.
6. Should bidder find discrepancies in or omissions from the specifications or other documents or be in doubt as to their meaning, bidder
should at once notify the Purchasing Department and obtain clarification prior to submitting a bid.
• 7. QUOTE F.O.B. destination. Price should include all costs including shipping, handling, and other related costs. Bid unit price on quantity
specified—extend'and show total. In case of errors in extension, UNIT prices shall govern. Bids subject to unlimited price increases will not
be considered.
8. Bid offered shall be valid for ninety(90)days from opening date.
9. The City of Baytown is exempt from taxes. DO NOT INCLUDE TAX IN BID.
10. The City of Baytown reserves the right to terminate this contract for any reason by notifying the Contractor/Supplier in writing thirty(30)days
prior to the termination of this agreement.
11. Bidder MUST give full firm name and address. FAILURE TO MANUALLY SIGN BID SHALL DISQUALIFY IT. Person signing bid
should show TITLE or AUTHORITY TO BIND HIS FIRM IN A CONTRACT. Authorized signature should appear on each page of the bid,in
the space provided.
12. Any catalog, brand name or manufacturer's reference used in bid invitation is descriptive—NOT restrictive—it is to indicate type and quality
desired. Bids on brands of like nature and quality will be considered. If bidding on other than reference specifications, bidder must show
manufacturer, brand or trade name, lot number, etc., of article offered. If other than brand(s) specified is offered, illustrations and complete
description should be made part of the bid. If bidder takes no exceptions to specifications or reference data,he will be required to furnish brand
names, numbers, etc., as specified. All items bid shall be new, in first class condition and manufacturer's latest model and design including
containers suitable for shipment and storage, unless otherwise indicated in bid invitation. Verbal agreements to the contrary will not be
recognized.
13. If the brochure or information included with your bid does not exactly describe the item to be furnished, then notes in the attached form,
"EXCEPTIONS TO BIDDER'S PROPOSAL,"must explain the difference. Comments in this form signify that your proposal takes exception
to the stated specifications. Exceptions taken may be just cause to disqualify bid.
14. NO substitutions or cancellations permitted without written approval of the City of Baytown.
15. All bidders must meet or exceed the minimum specifications to be considered as a valid bid. The City of Baytown reserves the right to
accept or reject all or any part of any bid,waive minor technicalities and award the bid either to the lowest responsible bidder or to the bidder
who provides goods or services at the best value for the City of Baytown.
16. DELIVERY: Specifications indicate number of days required to place material in receiving department designated location under normal
conditions. A difference in delivery promise may break a tie bid. Unrealistically short or long delivery promises may cause bid to be
disregarded. Consistent failure to meet delivery promises without valid reason may cause removal from bid list. Delivery shall be made during
normal working hours only,8:00 a.m.to 5:00 p.m.unless prior approval for late delivery has been obtained.
17. Consistent and continued tie bidding could cause rejection of bids by the City of Baytown and/or investigation for Anti-Trust violations.
18. The Contractor/Supplier agrees to protect the City of Baytown from claims involving infringement of patents or copyrights.
19. Purchase order number should be on original invoice and invoice sent to the City of Baytown, PO Box 424, Baytown,TX 77522-0424;Attn:
Accounts Payable.
20. The City of Baytown shall pay for the product/service within thirty(30)days of receipt and acceptance. Acceptance by the City of Baytown
shall constitute all items bid being received and in good working order to the City of Baytown's satisfaction.
6-264)2 revised
3
CITY OF BAYTOWN
-SPECIFICATIONS-
INSTALLATION OF TREMCO ROOFING SYSTEM
FOR THE FIRE ADMINISTRATION BUILDING-REBID
BID NUMBER 0209-07-REBID
The City of Baytown seeks competitive bids for the installation of a Tremco Roofing System for the Fire
Administration Building located at 3110 North Main Street, Baytown, Texas. The purpose of these
specifications is to describe the minimum requirements of the City of Baytown for such construction
work. The Scope of work and all specifications, requirements, and exhibits are attached as
"Attachment B."
REQUIREMENTS: Any variance in any item must be specified clearly under the attached Exceptions
to Bidder's Proposal in order to have a valid bid. Bids shall include all materials, equipment, and
manpower to perform installation of Tremco Roofing System located at 3110 North Main Street,
Baytown, Texas.
DESCRIPTION AND SPECIFICATIONS OF WORK TO BE PERFORMED: Questions
regarding scope of work should be directed to Travis Doughty, Purchasing Manager, at 281-420-
6525. Applicable permits shall be obtained by licensed trades at no cost for this project.
NOTES:
MANDATORY PRE-BID CONFERENCE AND SITE VISITATION: Eligible Contractors
attended a Mandatory Pre-bid Conference held at 9:00 a.m., Tuesday,
September 17, 2002, located at 3110 North Main Street, Baytown, Texas 77521.
This packet is a duplicate of the specifications handed out at that meeting. Only
attendees of the mandatory meeting are eligible to REBID this contract. Contact person is
Travis Doughty, Purchasing Manager, at 281-420-6525.
SUPPLIER REPRESENTATIVE: Successful bidder shall appoint, by name, a company
representative who will be responsible for servicing this contract. The appointed representative will be
responsible for coordination of all work and communication with the City of Baytown.
ACCEPTANCE AND NONCONFORMING STANDARDS: All deliveries shall be accepted subject
to inspection, count and/or testing. A waiver on one occasion does not constitute a waiver on future
occasions.
NON-FUNDING CLAUSE: The City of Baytown's budget is funded on an October 1st to September
30th fiscal year basis. Accordingly, the City of Baytown reserves the right to terminate this contract
by giving Bidder thirty (30) days written notice, without liability to the City, in the event that
funding for this contract is discontinued or is no longer available.
EVALUATION CRITERIA: The award of bid shall be based on the total bid, per specifications.
Contract will be awarded to the bidder who provides goods or services at the best value for the City of
Baytown. All supervision, materials, labor, tools, and other construction equipment necessary to complete
4
the above-referenced project are to be included in the bid. Contractor shall review the attached sample
contract. Attached contract (Attachment "A") shall be executed within ten (10) calendar days from award
of bid. The City of Baytown reserves the right to accept or reject all or any part of any bid, waive minor
technicalities and award the bid to best serve the interest of the City of Baytown.
CONTRACT PERIOD: All required documents, insurance, bonds, and signing of attached contract shall
be turned in and executed within ten (10) calendar days after award of this contract. Construction shall
begin as soon as possible, but no later than two (2) weeks after award of bid. Completion of this contract
shall be within thirty(30) working days with allowances for days of=renter than 30% prediction of rain.
PERFORMANCE BOND: Both the Contractor and the City agree, that when required by law, the
Contractor will execute separate performance and payment bonds, each in the sum of one hundred
percent (100%) of the total contract price, in standard forms for this purpose, guaranteeing faithful
payment to all persons supplying labor and materials or furnishing the Contractor any equipment in the
execution of the Contract, and it is agreed that this Contract shall not be in effect until such performance
and payment bonds are furnished and approved by the City. The cost of the premium for the
performance and payment bonds shall be included in the Contractor's bid. Pursuant to the Texas
Government Code, a performance bond is required if the Contract is in excess of
$100,000 and a payment bond is required if the Contract is in excess of$25,000.
If a bond is submitted, it shall be executed by the bidder and by a corporate surety, the qualifications of
which shall be as required below. Such performance bond shall expressly provide that the principal and
surety shall be liable to the City for the full amount of such performance bond, thereby agreed upon and
admitted as the amount of the damages to be suffered by the City on account of the failure of the bidder
to so comply with the terms of his bid. If the bidder furnishes a deposit instead of a performance bond,
such deposit shall secure the City to the same purpose and effect, as the nature of the security which
would have been provided had a performance bond been furnished. The performance bond must be
issued by a reliable surety company authorized to do business in the State of Texas.
PRICING: The price shall include all costs including shipping, handling, pickup, delivery, materials,
labor, supervision, and any other related costs. All quotes shall be F.O.B. destination 3110 North Main
Street, Baytown, Texas.
INVOICE: Bidder shall include Purchase Order number on corresponding invoice. Invoices shall be
sent to the following:
CITY OF BAYTOWN
P. O. BOX 424
BAYTOWN, TEXAS 77522-0424
ATTENTION: ACCOUNTS PAYABLE
PAYMENT: The City of Baytown shall pay for the completion of construction within thirty (30) days
of receipt and acceptance. Acceptance shall constitute all work being completed to the satisfaction of
the City of Baytown designated personnel.
BID DELIVERY: The City of Baytown Purchasing Department shall accept bids Monday through
Friday, 8:00 a.m. - 12:00 p.m. and 1:00 p.m. - 5:00 p.m. Bids must be received by the Purchasing
Department before the specified hour and date of the opening. The Purchasing Department is closed
from 12:00 p.m. - 1:00 p.m. Bid is to be properly identified with bid number, time and date of bid
opening.
Submit to:
CITY OF BAYTOWN
PURCHASING DEPARTMENT
2123 MARKET STREET
BAYTOWN, TX 77520
sih/0209-07-REBID
10-01-2002
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BIDDER'S CERTIFICATION
The 1985 Texas Legislature passed the specific HB620 statute relating to bids by nonresident contractors. The pertinent
portion of the Act has been extracted and is as follows:
Section 1. (a)
(2) "Nonresident bidder" means a bidder whose principal place of business is not in this state, but
excludes a contractor whose ultimate parent company or majority owner has its principal place
of business in this state.
(3) "Texas resident bidder" means a bidder whose principal place of business is in this state, and
includes a contractor whose ultimate parent company or majority owner has its principal place
of business in this state.
(b) The state or a governmental agency of the state may not award a contract for general construction,
improvements, services, or public works projects or purchases of supplies, materials, or equipment to a
nonresident bidder unless the nonresident's bid is lower than the lowest bid submitted by a responsible
Texas resident bidder by the same amount that a Texas resident bidder would be required to underbid a
nonresident bidder to obtain a comparable contract in the state in which the nonresident's principal
place if business is located.
I certify that is a resident bidder of Texas as defined in FIB 620.
(Company Name)
Signature
Print Name
I certify that is a Nonresident bidder as defined in FIB 620
(Company Name)
and our principal place of business is
(City and State)
Signature
Print Name
•
EXCEPTIONS TO SPECIFICATIONS
If any item, material or equipment submitted as a part of this bid does not fully meet or exceed the minimum
specifications as published, the exception(s) MUST be listed on this sheet and attached to the bid.
Section Item/Material/Equipment Bid Reason
If no exceptions are listed, it will be assumed that the bid meets or exceeds the minimum specifications and any
purchase contract as a result of this bid will be contingent on that condition.
Company
Agent
s
SUPPLIER INFORMATION FORM
COMPANY'S FULL BUSINESS NAME:
PHYSICAL ADDRESS:
PHONE#:
FAX#:
CONTACT PERSON:
PHONE #:
REMITTANCE ADDRESS:
PHONE#:
FAX#: _
CONTACT PERSON:
PHONE#:
PAYMENT TERMS DISCOUNT:
COMPANY TAX ID#:
PLEASE FILL OUT THIS FORM AND FAX OR RETURN TO PURCHASING
OR PURCHASING USE ONLY
VD#:
Entere Date:
d in
system
by:
W-9 Received:
Form
sent:
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SAMPLE QUESTIONNAIRE
In an effort to better serve our suppliers, the City of Baytown Purchasing
Department is conducting the following survey. We appreciate the time and effort
expended to submit your offer. Please take an additional moment to complete the
survey below. If you have any questions or need more information, please call our
Purchasing Department at 281-420-6524.
HOW DID YOU RECEIVE NOTICE OF THIS REQUEST FOR BID OR
PROPOSAL?
Local Newspaper advertisement
Internet Access
Word of Mouth
Other (Please explain
Are you a member of Demandstar by Onvia?
THANK YOU!
1-7-02
in
CITY OF BAYTOWN
PURCHASING DEPARTMENT
NO BID NOTIFICATION
BID TITLE:
BID NUMBER:
SUPPLIER NAME:
ADDRESS:
AGENT'S NAME: TELEPHONE:
The CITY OF BAYTOWN is interested in receiving competitive pricing on all items bid. We also desire
to keep your firm as a bidder and a supplier of materials and equipment. Therefore, it is important for us
to determine why you are not bidding on this item. We will analyze your input carefully and try to
determine if future changes are needed in our specifications and procedures.
I did not bid for the following reasons: (PLEASE CHECK ONE OF THE LISTED REASONS)
Do not supply the requested product.
Quantities offered are too small or too large to be supplied by your company. (Please circle one of
the underlined.)
Specifications are"too tight"or written around a particular product. (Please elaborate on this item.)
Cannot bid against manufacturer or jobber on this item. (Please circle one of the underlined).
Time frame for bidding was too short for my organization.
Not awarded a previous contract by the City when you felt you were low bidder.
Other
•
If you wish to remain on the City's bid list for this item,please indicate:
I wish to remain. I do not wish to remain.
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ATTACHMENT "A"
SAMPLE CONTRACT