Ordinance No. 10,838ORDINANCE NO. 10.838
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS. AUTHORIZING AND DTRECTING THE CITY MANAGER AND
INTERIM CITY CLERK TO EXECUTE AND ATTEST TO A CONTRACT
WITH TEAMWORK CONSTRUCTION SERVICES_ INC.. FOR THE
BAYTOWN FIRE FIGHTERS MEMORIAL PROJECT: AUTHORIZING
CHANGE OIZDER NO. I FOR SUCH PROJECT: AUTHORIZING PAYMENT
OF A SUM OF ONE H - TNDRED SEVENTY THOUSAND EIGHT HUNDRED
FORTY -SIX A_ND 25/100 DOLLARS (S170,846.25)-, MAKING OTHER
PROVISIONS RELATED Tl- IERETO: AND PROVIDING FOR THE
EFFECTIVE- DATE THHRE-OF.
WHEREAS. the City Council of the City of Baytown did advertise for bids for the
Bayto%vn Fire Fighters Memorial Project to be received on Noven-lber 8. 2007; and
WHEREAS. notice to bidders as to the tune and place, when and where the bids would
be publicly opened and read aloud was published pursuant to provisions of Texas Local
Government Code Annotated § 252.041: and
WHEREAS. all bids Nvere opened and publicly read at City Hall at 2:00 o'clock p.1-11._
ThLirsday_ Noy ember 8. 2007- as per published notice to bidders;
WHEREAS. the City Council of the City of Bayto%vn desires to award the contract to the
lowest responsible bidder Teamwork Construction Services Inc., with a decrease in the amount
of - granite to be used in the project and with other appropriate adjustments: and
WHEREAS. Teamwork Constriction Services. Inc._ has agreed such decrease described
in Change Order No. 1; NOW THEREFORE
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF I3AYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown hereby accepts the bid of
Teamwork Construction Services. Inc., for the Baytown Fire Fighters Memorial Project
according to the plans and specifications set forth by the City's Engineer for the suns of TWO
HUNDRED NINE THOUSAND SEVEN HUNDRED SIXTY -SIX AND 25/100 DOLLARS
(S209,766.25). The City Manager and the Interim City Clerk of the City are hereby authorized
and directed to execute and attest to a contract witli Teatnv.,ork Construction Services, Inc._ for
the above- described project. said contract containing the plans, specifications_ and requirements
of the City and appropriate bond requirements in accordance with the provisions of Texas
Government Cade, Chapter 2253.
Section 2: That the City Council does hereby authorize Change Order No. l .with
Teamwork Construction. which decreases the contract price by THIRTY- EIGHT THOUSAND
NINE HUNDRED TWENTY AND N01100 DOLLARS (538,920.00). A copy of said change
order is attached hereto as Exhibit "A'- and incorporated herein for all intents and purposes.
Section 3: 'Finn the City (ouncH of the City of Baytown hemby WHAzes INquim
or the amount or mi K 11 LNDF�'AD SL,AT,'N,1T)' THOU'ii,A N1) EIGHT III. J)RE,F) T'ORTY-S1,X'
AND 2511M DOIAARS (SIT),84125) Wd Lpon the unit 1xices sp"Mul At to bid W We
(Rduct change Lader,
Section 4: That pursuant lo the provisions ()f' Tcxas Local (Jovernnient Codc
Anmomed § 25ID41 the Ciq Wiper is heTby gninwd general authAly to alq)n)ve ap
a)r(jej- jujnojvmj; it decrease or wn increase W com of TNV.LXJ`��-J:9Vl,
AND No IN IXRLARS (S25JAROD) or. les Q,mt to Me proviskm thm the cn-igirml cu inracl
[)fLj1,:C IVIL1� MX 1-W Quin 1,c,,1,scC[ b.y morc ihan twenlY-Rve pemeM (25%) or decrumed by nme dmva
m enty_live pervem 425 % without the consent of the cowractor to such dccrensc.
Section 5: , -Gain Ordinance di'di lake effm irmnediately From and akcr its I'm
the Oy (Amna I of the Oty of Bapown,
INTRODUCK). RRAD and b,,,, the r =ot ''
(ty cW BaDown Ods aw 280 day or FeNmay. 2M Cil�l COLIHICil OfthC
TyY
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D(TNCARL,O,S. Mayor
BAYTOWN
Brief Description of Changes:
CITY OF BAYTOWN
Change Order No.1
Baytown Firefighter Memorial
February 22, 2008
This change order is prepared to modify contract quantities to reflect an adjusted scope of work.
Add or Delete Items:
Item
Description
Unit
Quantity
Unit Price
Total
2
(delete line #2) Site grading
LS
1
(1,500.00)
$ (1,500.00)
2a
(adjusted) Site grading
LS
1
1,475.00
$ 1,475.00
3
(delete line #3) Electrical
LS
1
(10,000.00)
$ (10,000.00)
3a
(adjusted) Electrical
LS
1
9,200.00
$ 9,200.00
4
1 (delete line #4) Concrete walk
SF
2640
(11.00)
$ (29,040.00)
4a
(adjusted) Concrete walk
SF
960
19.75
$ 18,960.00
5
(delete line #5) Donar pavers (Not Engraved)
SF
375
(7.00)
$ (2,625.00)
5a
(adjusted) Donor pavers (Not Engraved)
SF
200
5.00
$ 1,00000
9
(delete line #9) 12 "x12" Granite pavers
SF
755
(23.00)
$ (17,365.00)
9a
(adjusted) 12 "x12" Granite pavers
SF
200
23.00
$ 4,600.00
10a
(Added) Plaza heavy sandblast finish
SF
670
4.50
$ 3,015.00
13
(delete line #13) Granite seatwall
LF
80
(325.00)
$ (26,000.00)
13a
(adjusted) Granite seatwall
LF
40
325.00
$ 13,000.00
20
(delete line #20) Payment & performance bonds
LS
1
(6,000.00)
$ (6,000.00)
20a
(adjusted) Payment & performance bonds
LS
1
5,000.00
$ 5,000.00
21
(delete line #21) Mobilization
LS
1
1 (18,000.00)
$ (18,000.00)
21a
I (adjusted) Mobilization
LS
1
1 15,000.00
1 $ 15,000.00
I otai
Contract Summary:
(39,2au.0u)
Original Contract Price
$ 210,126.25
Previous Change Orders
$ -
This Change Order
(39,280.00)
Kevisea contract rnce
I lu,tt4t5.25
)riginal Contract Duration - Calendar Days 12
'revious Time Extensions
'his Change Order
I
evised Contract Duration - Calendar Days 12
Teamwork Construction. Inc. Date
Director of Finance Date
Owner Date
City Manager Date
Engineer Date
EMIT A
CITY OF BAYTOWN
Change Order No.1
Baytown Firefighter Memorial
BAYT4
February 22, 2008
Brief Description of Changes:
�• This change order is prepared in order to adjust contract quantities to reflect scope of work. .
Add or Delete Items:
Item Description Unit Quantity Unit Price Total
2 (delete line#2) Site grading LS 1 (1,500.00) $ (1,500.00)
2a (adjusted) Site grading LS 1 1,475.00 $ 1,475.00
3 (delete line#3) Electrical LS 1 (10,000.00) $ (10,000.06)
3a (adjusted) electrical LS 1 9,200.00 $ 9,200.00
4 delete line#4 Concrete walk SF 2640 11.00) $ (29,040.00)
4a (adjusted) concrete walk SF 1 960 19.75 $ 18,960.00
5 (delete line#5) donar pavers SF 375 (7.00) $ (2,625.00)
5a (adjusted) donor pavers SF 200 5.00 $ 1,000.00
9 (delete line#9) 12"x12" granite pavers SF 755 (23.00) $ (17,365.00)
9a (adjusted) 12"x12" granite pavers SF 200 23.00 $ 4,600.00
10a Plaza heavy sandblast finish SF 670 4.50 $ 3,015.00
13 (delete line#13) granite seatwall LF 80 325.00) $ (26,000.00)
13a (adjusted) Granite seatwall LF 40 325.00 $ 13,000.00
20 (delete line#20) Payment&performance bonds LS 1 (6,000.00) $ (6,000.00)
20a (adjusted) Payment&performance bonds LS 1 5,000.00 $ 5,000.00
21 (delete line#21) mobilization I LS 1 1 (18,000.00) $ (18,000.00)
21a I(adjusted) mobilization Ls 1 15,000.00 $ 15,000.00
Total $ (39,280.00)
Contract Summary:
Original Contract Price $ 210,126.25
Previous Change Orders $ -
This Change Order 39,280.00)
Revised Contract Price $ 170,846.25
A
Original Contract Duration -Calendar Days 0
Previous Time Extensions
This Change Order
Revised Contract Duration- Calendar Days 0
/r
11 IZlo i i- iz -bY
T amwor onstruction, Inc. JDate Owner ` Date
i
(:?Director of Fi ce Dat City Manager Date
_r
Engineer Date
9*
28 TAC§110.110
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 -T�,AMu-"�-CCn-j�kfUC-h'6Y1SSpLLi�a5f Inc.(the "CONTRACTOR") for the
1. DEFINITIONS OF TERMS
—' 1.01 CALENDAR DAY
The term calendar day means any day of the week or month,no days being excepted.
' 1.02 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.
1.03 CONTRACT DOCUMENTS.
The Contract Documents shall consist of the Signed Standard Form of Agreement,
Performance and Payment Bonds (when required),Addenda,Plans, Specifications,
Proposal, Notice to Bidders, Instructions to Bidders, Scope of Work and all
modifications thereof incorporated in any of the documents before the execution of
the Agreement.
1.04 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; all Performance and
Payment Bonds; and CONTRACTOR's Bid.
1.05 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 or the OWNER'S
REPRESENTATIVE if approved by the OWNER in writing prior to the work being
� done by the CONTRACTOR to accomplish any change,alteration or addition to the
plans and specifications or any work order issued under this Contract if the work is
not reasonably implied by the specifications as determined by the OWNER.
L
28 TAC§110.110
1.06 FINAL COMPLETION.
The term final completion as the same pertains to the plans and specifications or a
work order shall mean that all work has been completed in accordance with the plans
and specifications or work order, all such work has been inspected and satisfactorily
completed as determined by the OWNER'S REPRESENTATIVE, all payments to
materialmen and subcontractors have been made for the work specified in the plans
} and specifications or work order,all documentation and warranties,if any,have been
submitted and all closeout documents have been executed and approved by the
OWNER'S REPRESENTATIVE and the OWNER.
1.07 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.
1.08 NONCONFORMING WORK.
V' The term nonconforming work shall mean the work or any part thereof rejected by the
OWNER'S REPRESENTATIVE or the OWNER as not conforming to the Contract
Documents.
1.09 OWNER'S REPRESENTATIVE.
Whenever the words OWNER'S REPRESENTATIVE or REPRESENTATIVE are
used, they shall mean and be understood as referring to the City Engineer or his
designee or the professional engineer designated by the City Council under whose
supervision the Specifications were prepared and who is hereby authorized to act for
1
the OWNER and inspect and issue instructions, but shall not directly supervise the
CONTRACTOR or persons acting on behalf of the CONTRACTOR.
1.10 PARTIES.
The term parties shall include the OWNER and the CONTRACTOR.
1.11 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. This project includes all work required as
outlined in the Scope of Work. If specified in the Scope of Work,the project shall be
- identified in separate work orders issued by the Owner's Representative and may be
required to be performed after normal working hours if so stated by the OWNER in
the work order.
28 TAC§110.110
79
1.12 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.
1.13 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 all work required as outlined in the Scope of Work. If specified
s in the Scope of Work. If specified in the Scope of Work, the work required herein
shall be specified in separate work orders issued by the Owner's Representative and
may be required to be performed after normal working hours if so stated by the
OWNER in the work order.
1.14 WORK ORDER.
' If specified in the Scope of Work, this contract shall be comprised of separate work
orders,which shall cover the OWNER'S annual project needs as contemplated at the
time of the execution of this Agreement, including emergency repairs. Each work
order shall be full and finally completed within thirty (30) calendar days from its
Y Y P Y Y
issuance, unless otherwise expressly stated in the work order.
2. CONTRACT DOCUMENTS.
2.01 COMPLEMENTARY DOCUMENTS.
The Contract Documents comprise the entire agreement between the OWNER and t
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,
2.02.03 Scope of Work,
2.02.04 Instructions to Bidders,
2.02.05 Notice to Bidders,
`- 2.02.06 Plans,
2.02.07 Specifications,
2.02.08 Performance and Payment Bonds, and
2.02.09 Proposal.
{
28 TAC§110.110
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 CONTRACT DOCUMENTS.
Where applicable, 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 PLANS AND SPECIFICATIONS.
2.05.01 The CONTRACTOR shall distribute copies of the plans and
._ specifications to suppliers and subcontractors as necessary. The
CONTRACTOR shall keep at least one copy of the plans and
specifications accessible at the work site with the latest revisions
noted thereon.
2.05.02 All plans and specifications and copies thereof furnished b the
P p p y
' 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, which
.J 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 shall periodically review and
shall inspect the work of the CONTRACTOR as described in Section
-' 3.02.
. 1.02 The OWNER'S REPRESENTATIVE shall
3 0 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
.P
performed in accordance with these Contract Documents.
7
i:Y,!
28 TAC§110.110
3.01.03 The CONTRACTOR shall regard and obey the directions and
instructions of OWNER'S REPRESENTATIVE, any subordinate
I
supervisors or inspectors appointed by the OWNER'S
REPRESENTATIVE provided such directions and instructions are
7 consistent with the obligations of this Agreement.
3.01.04 Should the CONTRACTOR object to any orders by the OWNER'S
REPRESENTATIVE or any subordinate supervisor or inspector
7 appointed by the OWNER'S REPRESENTATIVE, the
CONTRACTOR may within two (2) calendar days from receipt of
7 such order make written appeal to the OWNER'S City Manager or
�J Interim City Manager for his decision.
3.02 INSPECTIONS. The OWNER'S REPRESENTATIVE shall make visits to the site at
intervals appropriate to the various stages of construction, appropriate to verify
CONTRACTOR'S payment requests,and as OWNER'S REPRESENTATIVE and/or
", OWNER deems necessary,in order to observe as an experienced and qualified design
professional the progress and quality of the Work. Such visits and observations b
p p �' q Y Y
OWNER'S REPRESENTATIVE are not intended to be exhaustive or to extend to
every aspect of CONTRACTOR'S work in progress or to involve detailed inspections
of CONTRACTOR'S work in progress beyond the responsibilities specifically
Y
assigned to OWNER'S REPRESENTATIVE by the OWNER. Based on information
obtained during such visits and such observations, OWNER'S REPRESENTATIVE
will determine if CONTRACTOR'S work is proceeding in accordance with the
Contract Documents, and OWNER'S REPRESENTATIVE shall keep OWNER
informed of the progress of the Work.
3.03 LINES AND GRADES. Unless otherwise specified, all lines and grades,including
horizontal and vertical control data points to establish baselines and benchmarks for
locating the Work, shall be furnished by the OWNER'S REPRESENTATIVE;
however, construction staking shall be performed by the CONTRACTOR.
Whenever necessary,construction work shall be suspended to permit performance of
this work,and the CONTRACTOR shall be allowed no extra compensation therefor.
The CONTRACTOR shall give the OWNER'S REPRESENTATIVE ample notice
- of the time and place where lines and grades will be needed. All stakes,marks,etc.,
shall be carefully preserved by the CONTRACTOR, and in case of careless
destruction or removal by him or his employees, such stakes, marks, etc., shall be
replaced at the CONTRACTOR'S expense.
3.04 PAYMENTS FOR WORK.
The OWNER'S REPRESENTATIVE shall review CONTRACTOR'S applications
for payment and supporting data,determine the amount owed to the CONTRACTOR
and approve,in writing,payment to CONTRACTOR in such amounts;such approval
of payment to CONTRACTOR constitutes a representation to the OWNER of
28 TAC§110.110
77
OWNER'S REPRESENTATIVE'S judgment rofessional that the work has
p
to the point indicated to the best of his knowledge,information and belief,
progressed
but such approval of an application for payment to CONTRACTOR shall not be
t deemed as a representation by OWNER'S REPRESENTATIVE that OWNER'S
_s REPRESENTATIVE has made any examination to determine how or for what
purpose CONTRACTOR has used the monies paid on account of the Contract price.
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 within ten(10)calendar days of the date specified in
the notice to proceed or work order. In the event of any dispute,the records of the
OWNER shall be conclusive evidence as to the commencement date.
5.04 Time is of the essence in this Agreement.
If.
28 TAC§110.110
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
-J CONTRACTOR shall assume and pay the costs of the performance of the work
specified or contemplated by the Contract Documents.
(-A 6.02 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all
materials, supplies, machinery, equipment, tools, superintendents, laborers,
7 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.
6.03 PERMITS, FEES AND LEGAL COMPLIANCE.
d 6.03.01 The CONTRACTOR shall secure an a permits,fees licenses
pay all p >
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 to be issued by the City of Baytown,
which will be waived in conjunction with this Agreement.
7 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
L-1 work.
6.04 TAXES. The OWNER qualifies for exemption from state and local sales tax
7 pursuant to the provisions of Article 20.4(F)of the Texas Limited Sales,Excise and
Use Tax Act. However,if any taxes are applicable to the Work,the CONTRACTOR
shall pay sales, consumer, use and similar taxes as legally required.
�.i
6.05 SHOP DRAWINGS. The CONTRACTOR shall submit to the OWNER'S
REPRESENTATIVE,with such promptness as to cause no delay in his own work or
-° in that of any other contractor,four checked copies,unless otherwise specified,of all
shop and/or setting drawings and schedules required for the work of the various
trades, and the OWNER'S REPRESENTATIVE shall pass upon them with
reasonable promptness, making desired corrections. The CONTRACTOR shall
make any corrections required by the OWNER'S REPRESENTATIVE,file with him
two corrected copies and furnish such other copies as may be needed. The
OWNER'S REPRESENTATIVE'S approval of such drawings or schedules shall not
i
!T%
.5
relieve the CONTRACTOR from responsibility for deviations from drawings or
specifications,unless he has in writing called the OWNER'S REPRESENTATIVE'S
-J, attention to such deviations at the time of submission, nor shall it relieve him from
responsibility for errors of any sort in shop drawings or schedules. It shall be the
CONTRACTOR'S responsibility to fully and completely review all shop drawings to
i ascertain their effect on his ability to perform the required contract work in
accordance with the plans and specifications and within the contract time.
Such review by the OWNER'S REPRESENTATIVE shall be for the sole purpose of
determining the sufficiency of said drawings or schedules to result in finished
17 improvements in conformity with the plans and specifications, and shall not relieve
�--` the CONTRACTOR of his dutyas an independent contractor as previously set forth
p P Y
it being expressly understood and agreed that the OWNER'S REPRESENTATIVE
does not assume any duty to pass upon the propriety or adequacy of such drawings or
schedules, or any means or methods reflected thereby, in relation to the safety of
either person or property during CONTRACTOR'S performance hereunder.
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
7.02 The work will commence within ten(10)Calendar Days of the issuance of a notice
7 to proceed or a work order, whichever is applicable, and will be completed in full
L within One Hundred Twenty (120) Calendar Days from the date so specified
unless a different amount of time is authorized in writing by the OWNER. In the
event of any dispute,the records of the OWNER shall be conclusive evidence as to
the dates specified on the notice to proceed or work order.
P
7.03 EXTENSIONS.
7.03.01 The CONTRACTOR has submitted its bid in full recognition of the
S , time required for the completion of this project taking into
consideration all factors including, but not limited to, the average
g
climatic range and industry conditions.
Li 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.
i
28 TAC§110.110
17 7.03.03 Within seven (7) calendar da s of an act or incident that the
Y Y
Li CONTRACTOR reasonablybelieves ma 'ustif an extension of time
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17
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'S
REPRESENTATIVE,within seven(7)calendar days after receipt of a
j 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;provided that the request for an extension
is not based upon weather conditions. Should an extension be
requested within the seven (7) calendar-day period based upon
weather conditions,the OWNER'S REPRESENTATIVE shall grant
or deny such a written request upon Final Completion of the Work
based upon any variation from the average climatic range.
LLJ 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
LA otherwise.
7 7.04.02 No charge whatsoever shall be made by the CONTRACTOR for
hindrances or delays from any cause whatever,except where the work
is stopped by order of the OWNER, during the progress of any
portion of the work contemplated by the specifications, but the
OWNER'S REPRESENTATIVE may grant an extension of time for
the completion of the work, provided the 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.
t
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.
7.04.04 In case the work is stopped by an act of the OWNER, then the
expenses of the same, as determined by the OWNER'S
REPRESENTATIVE, shall be paid by the OWNER to the
CONTRACTOR.
28 TAC§110.110
7 1 7.05 FINAL COMPLETION. The CONTRACTOR shall notify the OWNER'S
REPRESENTATIVE and OWNER when the CONTRACTOR believes that the work
for each change is finally completed as defined in section 1.06 herein. If the
OWNER'S REPRESENTATIVE accepts the project as finally completed, the
CONTRACTOR shall be so notified and a certificate of final completion,as provided
herein, shall be issued. Thereafter, the OWNER shall pay the balance due, if any
and less any retainage, which shall be held for a period of thirty (30) calendar days
after final completion. At the expiration of the thirty (30) calendar day period, the
OWNER'S REPRESENTATIVE may release any unclaimed retainage.
8. PAYMENT.
8.01 PAYMENT AMOUNT. The CONTRACTOR agrees to perform the work for all of
the work under this Agreement and the OWNER agrees to pay the CONTRACTOR
based
upon the unit prices enumerated in the OWNER'S Invitation to Bid the total
p
of which shall not exceed the total amount bid,for the completed and accepted work
as set forth and adjusted in accordance with the terms of this Agreement.
8.02 PROCEDURE FOR PROGRESS PAYMENTS. The Contractor shall submit
applications to the Owner's Representative for progress payments as provided for
LJ herein no more often than once a month Application for payment will be processed
by the OWNER'S REPRESENTATIVE.
8.02.01 Subject to the terms of this paragraph and the other provision of this
Agreement,the OWNER shall make progress payment on account of
the agreed price on the basis of the CONTRACTOR's application for
payment as approved by the OWNER'S REPRESENTATIVE.
Whenever the CONTRACTOR's application for payment includes
payment for work that is determined to be either(1)not in accordance
with this Agreement, the work write-up, specifications, or other
Contract Documents, or (2) defective, the OWNER may, in his sole
discretion, withhold progress payments whenever some work for
which payment has already been made under a prior progress payment
or a portion thereof, is determined to be either(1) not in accordance
,ems with the Agreement, the work write-up, specifications or other
Contract Documents or(2) defective.
8.02.02 Subject to the foregoing, progress payments will be made, less the
normal retainage specified below and additional amounts as the
s
OWNER'S REPRESENTATIVE and/or OWNER may determine and
may withhold in accordance with this Agreement.
28 TAC§110.110
8.02.03 The OWNERS REPRESENTATIVE and/or OWNER may, at any
time,suspend progress payments on the work if,in the sole discretion
of the OWNER'S REPRESENTATIVE and/or OWNER, it
determines that the projected liquidated damages may exceed the
retainage.
8.02.04 The OWNER'S REPRESENTATIVE and/or OWNER may, at any
time, suspend progress payment if it believes that the
771 CONTRACTOR will not complete the work due to actual default or
that the CONTRACTOR has represented or done some act that
indicates that the CONTRACTOR will not complete the work within
the dates specified in this Agreement for final collection or that it will
otherwise not complete the work in accordance with this Agreement.
p g
8.02.05 Payments by the OWNER under this Agreement shall be due within
30 calendar days after the date the OWNER receives an approved
application for payment from the OWNER'S REPRESENTATIVE.
i Late payments will accrue interest in accordance with Section
2251.025 of the Texas Government Code
19
pp
8.03 RETAINAGE. From each approved statement the OWNER shall retain until final
t
payment a ment five percent(5%)if the total Contract Price at time of Contract execution is
Four Hundred Thousand Dollars ($400,000.00) or more or ten percent (10%) if the
total Contract Price at time of Contract execution is less than Four Hundred
Thousand Dollars($400,000.00). The OWNER ma also retain from each a roved
Y pp
statement any sums authorized under other terms of this Agreement.
i
8.04 FINAL PAYMENT. After final completion and acceptance of the work specified in
,IF the plans and specifications or in a work order, if the contract is issued on a work
� order basis, the OWNER shall pay the CONTRACTOR the remainder of the price
due under this Agreement less any sums withheld under other terms of this
r Agreement.
8.05 PAYMENT BASED ON ACTUAL WORK AND MATERIALS. Except as
provided in Section 8.04, 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.
8.06 MAJOR ITEMS
'' In case the actual quantity of any major item should become as much as 20% more
than, or 20% less than the estimated or contemplated quantity for such items, then
either party to this Agreement, upon demand, shall be entitled to a revised
' consideration upon the portion of the work above or below 20% of the estimated
quantity.
7
. ,
i
28 TAC§110.110
A "Major Item" shall be construed to be any individual bid item incurred in the
proposal that has a total cost equal to or greater than five (5) per cent of the total
contract cost, computed on the basis of the proposal quantities and the contract unit
prices.
8.07 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.
8.08 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
or make any promises or representations of any nature on behalf of the OWNER,
without their specific written approval.
- 8.09 CHANGES AND ALTERATIONS.
8.09.01 No changes shall be made and no bills for changes, alterations,
-� modifications,deviations,and extra orders shall be recognized or paid
for except upon a written change order from the OWNER or the
OWNER'S REPRESENTATIVE.
8.09.02 The CONTRACTOR further agrees that either before or after the
beginning of the work, the OWNER, acting solely through the
OWNER'S REPRESENTATIVE, may make such changes and
alterations as OWNER'S REPRESENTATIVE and/or OWNER sees
7j� 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 anticipated
f 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
LIJ the increased work can be fairlyclassified under the specifications,
p
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
i
28 TAC§110.110
7 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
U
originally planned.
8.09.03 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
7 approving this contract. 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.
7
8.10 EXTRA WORK CHARGES.
7
8.10.01 The term "Extra Work" shall be understood to mean and include
LI work not covered or contemplated by the Contract Documents that
may be required by the OWNER or the OWNER'S
i
REPRESENTATIVE and approved by the OWNER in writing prior
LJ� 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.
8.10.02 It is agreed that the CONTRACTOR shall perform all Extra Work
under the direction of the OWNER'S REPRESENTATIVE when
resented with a written work order signed b
p � Y the OWNER.
8.10.03 No claim for Extra Work of any kind will be allowed unless,prior to
the work beingdone,it is ordered in writing b the OWNER. In case
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any orders or instructions appear to the CONTRACTOR to involve
LJ 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
7 authorizing such Extra Work.
8.10.04 It is agreed that the basis of compensation to the CONTRACTOR for
i 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
7 following methods:
Method (A) - By agreed unit prices; or
Method (B) - By agreed lump sum; or
7
28 TAC§110.110
7 Method (C) - If neither Method (A) nor Method (B) is
agreed upon before the Extra Work is
commenced, then the CONTRACTOR shall
7 be paid the "actual field cost" of the work.
79 8.10.05 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,
7 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
7 charges necessarily incurred,together with all power,fuel,lubricants,
water and similar operating expenses, also all necessary incidental
7 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,
p > g p
field office expenses,and all other elements of costs and expenses not
7 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'S
7 REPRESENTATIVE.
7 9. INDEPENDENT CONTRACTOR.
9.01 In all activities or services performed hereunder, the CONTRACTOR is and at all
7 times shall remain an independent contractor, not an agent or employee of the
OWNER or the OWNER'S REPRESENTATIVE. 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 and the
OWNER'S REPRESENTATIVE 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.
i
if
_l
28 TAC§110.110
9.02 The work to be provided on this project shall include the furnishing of all labor,
Li p P J g
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
L
CONTRACTOR to furnish a completed work product that meets the requirements of
the OWNER. Any additional work,material,or equipment needed to meet the intent
of this specification shall be supplied by the CONTRACTOR without claim for
i_ additional payment, 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
g
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.
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.
i
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 or the OWNER'S
7 REPRESENTATIVE shall inform the CONTRACTOR in writing that any person or persons
performing any of the requisite work are, in the opinion of the OWNER or the OWNER'S
7 REPRESENTATIVE,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 such
OWNER's or OWNER'S REPRESENTATIVE'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
a7r.•J
I
Li
28 TAC§110.110
' ability all deadlines and
time needed to complete the work, CONTRACTOR s ability to meet a de
`-� schedules required b this Agreement,the general and local conditions,and all other matters
7 q Y g
that in any way affect the work under this Agreement.
12, PROGRESS OF WORK.
►J
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 to enter the property b such
g p p Y Y
employee(s)or agent(s) as it may elect for the purpose of inspecting
the work.
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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
3
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
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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.
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 b the
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OWNER or the OWNER'S REPRESENTATIVE upon twenty-four
(24) hours' notice unless otherwise agreed by the parties.
�i
28 TAC§110.110
12.02.05 When the OWNER is having other work done, by its own force
approved b the OWNER'S REPRESENTATIVE, the OWNER'S
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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
.j
coordinated.
7 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 It is the intention of the OWNER'S REPRESENTATIVE to show on the plans the
approximate location of all underground utility lines and structures except service
pp g Y p
connections to buildings. To this end, owners of all known underground lines and
structures,including gas, water, electrical cables, telephone cables, sanitary sewers,
LJ storm sewers, industrial pipelines, and appurtenances thereto have been contacted
and the information provided by them is shown on the plans. Where gas,water,and
1 sewer lines exist in the vicinity, the CONTRACTOR shall assume that service
connections exist to each building and exercise appropriate caution during
excavation. It is the CONTRACTOR' responsibility to notify various owners in
advance when excavation is to be done in the vicinity of their underground lines and
structures. Damage to such underground lines and structures,whether or not shown
on the plans, shall be the responsibility of the CONTRACTOR and he shall bear the
cost of necessary repair or replacement of damaged parts.
13.03 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
.i
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
r_f
7 28 TAC§110.110
but this review does not relieve the CONTRACTOR of the responsibility
CONTRACTOR,b p y
of accuratelylocating all work in accordance with the specifications and Contract
g p
Documents.
79 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.
---A
15.02 The CONTRACTOR shall provide and maintain necessary sanitary conveniences for
7 the use of laborers on the work. Such conveniences shall be properly secluded from
public observation and shall be in a location approved by the OWNER'S
REPRESENTATIVE.
' 15.03 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 any of
CONTRACTOR'S structures.
IIM
r 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.
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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
7 supply proof of quality and manufacturer.
7 16.03 No refurbished,reconditioned or other previously utilized materials or supplies will
LJ be used without the signed authorization of OWNER.
16.04 Where the product is to be turned over to the OWNER, the CONTRACTOR may
f
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.
16.06 The CONTRACTOR shall certify to the OWNER that all materials installed are free
from asbestos containing material.
-J
28 TAC§110.110
17. OBSERVATION, INSPECTIONS, TESTS.
17.01 The OWNER and the OWNER'S REPRESENTATIVE reserve the right to enter 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 or the OWNER'S REPRESENTATIVE, upon request, with any keys or
information necessary for the OWNER or the OWNER'S REPRESENTATIVE to
have access to the property. The OWNER and the OWNER'S REPRESENTATIVE
shall have the right to enter the property or location of the work for the purpose of
performing such collateral work as the OWNER or the OWNER'S
REPRESENTATIVE deems necessary or appropriate.
- 17.02 The OWNER and the OWNER'S REPRESENTATIVE 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 or the OWNER'S REPRESENTATIVE and shall
T' give ample notice as to the time each art of the work will be ready for such
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observation.
17.03 The OWNER or the OWNER'S REPRESENTATIVE 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 or the OWNER'S REPRESENTATIVE has previously accepted the work
through oversight or otherwise. Neither observations by the OWNER or the
OWNER'S REPRESENTATIVE nor inspections, tests, or approvals made by the
OWNER or the OWNER'S REPRESENTATIVE, or persons authorized under this
Agreement to make such inspections, tests, or approvals, shall relieve the
j CONTRACTOR from its obligation to perform the work in accordance with the
requirements of the Contract Documents.
=-t 17.04 The OWNER or the OWNER'S REPRESENTATIVE upon approval of 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.
I
�T 28 TAC§110.110
18, WORK STOPPAGE.
18.01 The OWNER or the OWNER'S REPRESENTATIVE shall have the right to order
the work of the CONTRACTOR or any subcontractor wholly or partially stopped
_.J
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 or the OWNER'S REPRESENTATIVE, 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
F f work is being performed so as to create a hazardous condition.
18.02 Such stoppage or suspension shall neither invalidate an of the CONTRACTOR's
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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 or the OWNER'S REPRESENTATIVE, 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 or the OWNER'S REPRESENTATIVE 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 or the OWNER'S
REPRESENTATIVE may reject said work regardless of whether the OWNER or the
OWNER'S REPRESENTATIVE has previously accepted the work through oversight
} or otherwise. Neither observations by the OWNER or the OWNER'S
REPRESENTATIVE nor inspections, tests, certificates or approvals made by the
OWNER or the OWNER'S REPRESENTATIVE, 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.
q g
19.02 In the event that any work or any part thereof is rejected by the OWNER or the
OWNER'S REPRESENTATIVE,the CONTRACTOR shall,at its sole expense and
after receipt of written notice thereof from the OWNER or the OWNER'S
REPRESENTATIVE 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:
7
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7 28 TAC§110.110
7
i_ 19.02.01 At the option of the OWNER the CONTRACTOR may be required
p � Y
to remedy such work so that it shall be in full compliance with this
.J Agreement. As soon as possible but not later than seven(7)calendar
days after receipt of notice from the OWNER or the OWNER'S
REPRESENTATIVE or such other period of time specified by the
OWNER'S REPRESENTATIVE in writing, 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 or the OWNER'S REPRESENTATIVE in its
discretion deems it inexpedient to correct work damaged or not done
_- in accordance with this � an Agreement, equitable deduction for the
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Payment Amount may be made by the OWNER.
19.02.03 If the CONTRACTOR does not remove or replace any rejected work
within the time specified in Section 19.02.01, then the OWNER or
the OWNER'S REPRESENTATIVE 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.
J 20.02 All subcontractors must be approved by the OWNER'S REPRESENTATIVE prior to
performing any work on the Project.
1- 20.03 If the OWNER'S REPRESENTATIVE 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 and the OWNER'S
REPRESENTATIVE for the acts and omissions of its subcontractors.
t
20.06 Nothing contained herein shall create relations between any subcontractor and the
OWNER or the OWNER'S REPRESENTATIVE.
Ll
28 TAC§110.110
2007 RESPONSIBILITYM FOR PAYMENT OF SUBCONTRACTORS. The
L-J CONTRACTOR shall be solely and exclusively responsible for compensating any of
the CONTRACTOR'S employees, subcontractors,materialmen and/or suppliers of
7 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 or the OWNER'S REPRESENTATIVE, the CONTRACTOR
shall, where no payment bond covers the work, upon written notice from the
OWNER or the OWNER'S REPRESENTATIVE, 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
►A 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.
7
f 117,
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.
22, PERMITS AND CERTIFICATES.
j 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'S REPRESENTATIVE. The OWNER may withhold any payments due under this
_a Agreement or that may become due under this Agreement until the necessary permits,
licenses and/or certificates are procured and delivered.
7
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
17 resulting therefrom, which may appear after final acceptance of the work.
7-j"
1
4
28 TAC§110.110
24, WARRANTY.
Upon acceptance of the work by the OWNER,the CONTRACTOR warrants for a period of
one (1) calendar year 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 b
g pp g y
the OWNER'S REPRESENTATIVE and that all materials and work will be of good
quality, free from faults and defects, and in conformance with this Agreement.
i
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 one(1)year warrant is specified for individual products,work or
y y p
materials, the longer warranty shall govern.
shall be covered b an performance or payment bonds
24.05 This warranty obligationy y p p y
tendered in compliance with this Agreement.
-t
25. DEFECTIVE WORK DISCOVERED DURING WARRANTY PERIOD.
If within one (1) calendar year 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.
L_J
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.
7j,,
28 TAC§110.110
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,
7 shall be paid by the CONTRACTOR or by the surety.
25.04 The one (1) calendar year warranty shall cover all work, equipment, and materials
T , 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
7 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
f
the date for final completion of the work is reasonable dates 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
k 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
7 OWNER may withhold permanently from the CONTRACTOR's total Payment
Amount the sum of FIVE HUNDRED AND NO/100 DOLLARS ($500.00)for each
and every calendar day that the CONTRACTOR is in default after the date
stipulated for final completion, not as a penalty, but as liquidated damages for the
breach of the Agreement.
7 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
7 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
7 option of the OWNER, be retained from either current progress payment or from
final payment.
27. WITHHOLD PAYMENT AND CONTRACTOR'S PAYMENT,
27.01 Regardless of any bond, the OWNER'S REPRESENTATIVE 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
s
OWNER from loss on account of:
Li
7 28 TAC§110.110
1. Defective work or work that is not in strict accordance with the terms of this
Agreement, the Specifications, or the other Contract Documents;
2. Claims filed or reasonable evidence indicating probable filing of claims, as
determined at the sole discretion of the OWNER;
j 3. Failure of the CONTRACTOR to make prompt payments to subcontractors
or for material or labor or materialmen;
4. 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;
5. 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;
6. Reasonable indication, as determined at the sole discretion of the OWNER,
that the work will not be completed within the contract time;
7. Liquidated damages and administrative charges, as determined by the
OWNER at its sole discretion;
8. Charges made for repairs to the CONTRACTOR'S defective work or repairs
made by the OWNER to correct damage to other property;
9. Claims filed or reasonable evidence as determined at the sole discretion of the
OWNER indicating unremedied damage to property owned by the OWNER;
or
10. Other amounts authorized under this Agreement.
• 27.02 Whenever the CONTRACTOR and/or its surety is required to make a payment under
�-- this Contract, it is expressly understood and agreed that such payment shall be due
p Y g pY
within 15 days after receipt of an invoice therefore unless expressly stated otherwise.
Payments required by CONTRACTOR and/or its surety,which are not timely made,
shall accrue interest at a rate of one percent per month.
28. CHARGES FOR INJURY OR REPAIR.
28.01 The CONTRACTOR shall be liable and responsible for any damages incurred or
repairs made necessary b reason of its work and/or caused b it. Repairs of an kind
p Y Y Y p Y
required by the OWNER or the OWNER'S REPRESENTATIVE will be made and
charged to the CONTRACTOR by the OWNER.
`I
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28 TAC§110.110
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
or the OWNER'S REPRESENTATIVE 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.
28.04 The CONTRACTOR shall at all times exercise reasonable precautions for the safety
of employees and others on or near the work and shall comply with all applicable
provisions of Federal,State,and Municipal safety laws and building and construction
codes. All machinery and equipment and other physical hazards shall be guarded in
;1 accordance with the "Manual of Accident Prevention in Construction" of the
Associated General Contractors of America except where incompatible with Federal,
State, or Municipal laws or regulations. The CONTRACTOR shall provide such
machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety
devices. The safety precautions actually taken and their adequacy shall be the sole
responsibility of the CONTRACTOR, acting at his discretion as an independent
- contractor.
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 attached hereto as Exhibit "A" and
incorporated herein for all intents and purposes. Should the CONTRACTOR or any
of its subcontractors fail to pay the general prevailing rate to a worker performing
work on the project, the CONTRACTOR shall pay to the OWNER SIXTY AND
NOI100 DOLLARS ($60.00)for each worker employed for each calendar day or part
y _ of the day that the worker is paid less than the wage rates stipulated in this Contract.
29.02 The CONTRACTOR and each of the subcontractors shall pay each of its employees
_E 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 or OWNER'S REPRESENTATIVE may,prior to final acceptance of
the project,require the CONTRACTOR to execute an affidavit in legal form stating
L 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.
Lill
28 TAC§110.110
30o 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, 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
i_ the OWNER and his agents. Any insurance or self-insurance maintained by the
OWNER, its officials, employees or agents 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
policies or shall furnish separate certificates and endorsements for each
subcontractor. All coverage's 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
Li minimum coverage amounts required in this contract:
7
(1) Workers' Compensation Policy
■ Statutory amounts required by Texas law.
__a ■ Employer's Liability: $500,000
(2) Commercial General Liability Policy
■ General aggregate of$1,000,000
7 ■ Owners' and Contractors' Protective Liability of$500,000
■Products and Completed Operations of$1,000,000
■ Personal and Advertising Injury of$1,000,000
7 ■ Minimum of$500,000 per occurrence
■ Coverage shall be at least as broad as ISO CG 00 01 10 93.
7 ■ No coverage exclusions shall be deleted from standard policy
without notification of individual exclusions being attached
for review and acceptance.
(3) Automobile Liability Policy
■ Combined single limits of$1,000,000
■ Coverage for"Any Auto."
(4) Builder's Risk
■ Limit: 100% of insurable value, replacement cost basis.
0 City of Baytown will be named loss-payee.
28 TAC§110.110
30.04 Prior to or upon the execution of this Agreement and before commencing any of the
work, CONTRACTOR shall file with the OWNER valid Certificates of Insurance
7 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. Prior to the end of each
coverage period during the term of this Agreement, new Certificates of Insurance
must be filed with the OWNER evidencing continuation of coverage.
�t
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
79
does not meet the minimum insurance requirements as outlined above.
30.05 The following are general requirements, which are applicable to all policies:
30.05.01 All insurance coverage required herein, except for Workers'
Compensation Insurance, shall be written by a carrier with an A.M.
Best Rating of B+or higher in accordance with the current Best Key
_-� Rating Guide.
79
30.05.02 Only Insurance Carriers licensed and admitted to do business in the
State of Texas will be accepted.
30.05.03 Deductibles shall be listed on the Certificate of Insurance and are
acceptable only on a per occurrence basis.
30.05.04 Claims-made policies will not be accepted.
30.05.05 The OWNER, its officials, employees and agents are to be added as
"Additional Insureds" to all liability p coverage policies. The e shall
g
contain no special limitation on the scope of protection afforded to
the OWNER, its officials, employees or agents.
30.05.06 A waiver of subrogation in favor of the OWNER with respect to
Workers' Compensation Insurance must be included.
30.05.07 Upon request, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to the OWNER at no cost
LJ' to the OWNER.
30.06 Certificates of Insurance shall be prepared and executed by the insurance company or
its authorized agent, and shall contain the following provisions and warranties:
30.06.01 All endorsements and insurance coverages according to requirements
and instructions contained herein.
f
1
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28 TAC§110.110
30.06.02 The form of the notice of cancellation, termination or change in
J
coverage provisions to the OWNER'S REPRESENTATIVE.
30.06.03 Original endorsements affecting coverage required by this Section 30
shall be furnished with the certificates of insurance.
�j 30.06.04 Upon request of and without cost to the OWNER or the OWNER'S
REPRESENTATIVE, insurance policies shall be furnished to
y OWNER.
30.06.05 Upon request of and without cost to the OWNER, loss runs (Claims
7 listing) of any and/or all insurance coverages shall be furnished to
OWNER.
30.07 The CONTRACTOR shall comply with Section 110.110 of Title 28 of the Texas
f Administrative Code,which is incorporated herein as Exhibit"B" for all intents and
purposes. However, it is expressly understood and agreed that in the event of a
conflict between the provisions of this Section 30 and the provision contained in
Exhibit "B," the more stringent shall control.
3
-' 31. PERFORMANCE AND PAYMENT BONDS.
31.01 The CONTRACTOR shall furnish separate performance and payment bonds,each in
the sum of one hundred percent (100%) of the total contract price, in such forms as
the OWNER may approve and with sureties as the OWNER may approve, for this
purpose, guaranteeing faithful payment to all persons supplying labor and materials
' or furnishing any equipment in the execution of the Agreement. The cost of such a
bond shall be included in the CONTRACTOR'S proposed price.
I
31.02 All performance, payment, and special bonds required herein shall remain in effect
throughout the term of this Agreement and for a period of one (1) year after the
LJ
completion of the work and shall be extended for any warranty work to cover the
warranty period.
31.03 If at any time during the execution of this Agreement or in the required period
thereafter, the bond or bonds become invalid or ineffective for any reason, the
CONTRACTOR shall promptly supply within ten (10) days such other bond or
7 bonds,which bond or bonds shall assure performance or payment as required. Such
replacement bond(s) shall be issued by a surety acceptable to the OWNER.
r
28 TAC§110.110
31.04 The CONTRACTOR shall make such changes and alterations as the OWNER may
Y
see fit in the work herein contemplated, or any part thereof without affecting the
validity of this Agreement and any work accompanying bond. If such changes or
alterations diminish the quantity of the work to be done,they shall not constitute the
basis for an claim for damages or anticipated profits on the work that may be
Y g p p Y
dispensed with. In case that the OWNER makes changes or alterations as shall make
useless any work already done or material already used in said work, then the
OWNER shall recompense the CONTRACTOR for any material or labor so used and
for any actual loss occasioned by such change due to actual expenses incurred in
preparation for the work as originally planned.
32. PROJECT UNDER CONTRACTOR'S CONTROL.
Any injury or damage caused to the CONTRACTOR or the project prior to and including the
-f 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.
33. COMPLIANCE WITH LAW.
r' 33.01 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:
33.01.01 The CONTRACTOR shall perform and require all subcontractors to
�
perform the work in accordance with� p 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.
,. 33.01.02 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.
_t
33.01.03 The CONTRACTOR agrees to abide by all federal, state or local
regulations relative to equal opportunity to all persons, without
Li discrimination as to race,color,creed,religion,national origin,sex,marital
g
status, age and status with regard to public assistance or disability.
_i
'r
28 TAC§110.110
r observes that the plans and specifications are at variance with
33.02 If the CONTRACTORobs p
applicable laws,rules and/or regulations,the CONTRACTOR shall promptly notify
the OWNER'S REPRESENTATIVE in writing. If the CONTRACTOR performs
any work knowing it to be contrary to such laws, rules and regulations and without
notice to the OWNER'S REPRESENTATIVE, the CONTRACTOR shall bear all
costs arising therefrom.
1__
34. SAFETY PRECAUTIONS.
34.01 Safety precautions at the site are a part of the construction techniques and processes
7 for which the CONTRACTOR shall be solely responsible. The CONTRACTOR is
�-J solely responsible for handling and use of hazardous materials or waste, and
informing employees of any such hazardous materials or waste.
7
Ems' 34.02 The CONTRACTOR has the sole obligation to protect or warn an individual of
g p y
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.
34.03 The safety of the public and convenience of traffic shall be regarded as prime
importance during construction.
p g
34.03.01 During normal construction,the CONTRACTOR shall not hinder or
inconvenience travel of streets or intersecting alleys s for more than
7 two blocks at any one time. The CONTRACTOR shall use warning
Li signs as necessary to adequately protect the traffic. If the OWNER or
other appropriate entity approves a street closure, the
CONTRACTOR shall furnish and maintain at each end of the closed
7 section, at all intersecting streets within the section, and in all
intersecting streets at a distance of one block on each side of the
work,properly worded signs and barricades announcing the closure to
,._. the public. The CONTRACTOR shall not be allowed to start any
operation that will close a street or streets until the required
barricades are in place. Barricades and warning signs shall meet the
=� specifications as shown in the plans and/or specifications. Warning
lights shall be kept burning from sunset to sunrise. When a street is
to be closed, the CONTRACTOR must notify the OWNER'S
Engineering and Public Works Departments 48 hours in advance of
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the closure.
34.03.02 The CONTRACTOR shall remove, as soon as practicable,
accumulated rubbish, surplus dirt, etc., from the construction site,
thereby opening each block for public use. Use by the public,
however, of any portion of a street where work has been done, shall
not constitute in itself acceptance of the work done therein. Backfill
I'
i
28 TAC§110.110
and shape trenches across street intersections or driveways to permit
-' safe usage at night. If trenches must be left open for any length of
time,the CONTRACTOR shall span with wooden mats or bridges to
permit traffic flow and prevent injury to the public. When driveways
are cut,the OWNER may direct the immediate placement of mats for
ingress and egress of vehicles if, in the OWNER'S
REPRESENTATIVE or OWNER'S opinion, undue hardship to
property owners would otherwise result.
34.03.03 The CONTRACTOR shall not block ditches,inlets,fire hydrants,etc.
The CONTRACTOR shall provide temporary drainage where
necessary or as directed by the OWNER'S REPRESENTATIVE or
the OWNER.
34.03.04 When persons or equipment are working in streets open to moving
�- ' traffic, or if otherwise ordered by the OWNER'S
REPRESENTATIVE,the CONTRACTOR shall furnish flagmen for
direction of traffic to protect both the moving traffic and the
contractor's operations. The flagmen shall wear an orange fluorescent
vest over their normal work clothes.
I �
34.04 The CONTRACTOR shall be held responsible for all damages to property,personal
injuries and/or death due to failure to use 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; 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.
34-05 The CONTRACTOR shall indemnify,hold harmless,and defend the
�-J OWNER, its officers, agents and employees, including the
OWNER'S REPRESENTATIVE, (hereinafter in this subsection
collectively referred to as"OWNER")from any liability of whatever
nature caused by the CONTRACTOR'S failure to comely with
i
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
� t equipment in that working environment no matter where fault or
responsibility lies. Such indemnity shall indemnify and protect the
OWNER from the consequences of the OWNER'S own negligence,
when that negligence is the concurring cause of the injury, death or
damages and from the consequences of the CONTRACTOR'S Joint
or sole negligence. It is the expressed intention of the parties hereto,
both the CONTRACTOR and the OWNER, that the indemnity
i
28 TAC§110.110
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 own negligence where that
-- negligence is a concurring cause of the iixiur-v, death or damage and
from the CONTRACTOR's own negligence where that negligence is
the sole or concurring cause of the iniury, 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 igiury,death or damage results from the sole
negligence of the OWNER unmixed with the fault of any other
person or entity.
35, INDEMNITY.
35.01 The CONTRACTOR agrees to and shall indemnify, hold harmless
-- and defend, the OWNER, its officers, agents and employees,
including the OWNER'S REPRESENTATIVE, (hereinafter in this
_ article 35 and all sections hereunder collectively referred to as
"OWNER"), from and against any and all claims, losses, damages,
causes of action, suits and liability of every kind, including all
- expenses of litigation,,court costs,and attorneys'fees for illiury to or
death of any person,or for damage to any property,arising out of or
in connection with the work done b the CONTRACTOR under this
Contract, where such iyOuries, death or damages are caused by the
sole or Joint negligence of the CONTRACTOR or the joint
-' negligence of the OWNER and any other person or entity. It is the
expressed intention of the parties hereto, both the CONTRACTOR
J and the OWNER,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 own
-j negligence,where that negligence is a concurring cause of the injury,
death or damage and from the consequences of the
CONTRACTOR'S own negligence,where that negligence is the sole
or concurring cause of the iidury, death, or damage. Furthermore,
the indemnity provided for in this paragraph shall have no
auulication to the OWNER for any claim, loss, damage, cause of
action, suit and liability where the injury, death or damage results
from the sole negligence of the OWNER, unmxed with the fault of
any other person or ent
ity.
Li
r�
�. 28 TAC§110.110
i_
35.02 The CONTRACTOR shall indemnify, protect and defend the
OWNER from the consequences of the OWNER'S concurrent
nealieence in accordance with Section 35.01 for all work done by the
7 CONTRACTOR,including, but not limited to,the following speciffc
� instances:
MAIN In the event the OWNER is damaged due to the act,
�+o omission, mistake, fault or default of the
I CONTRACTOR, then the CONTRACTOR shall
indemnify and hold the OWNER AND THE OWNER'S
REPRESENTATIVE harmless for such damage.
�a 35*02.02 The CONTRACTOR shall indemnify and hold the
Li OWNER harmless from any claims of material
suppliers,mechanics,laborers,or other subcontractors.
� 35.02,903 The CONTRACTOR shall indemnify and hold the
�+e OWNER harmless from any and all injuries to or claims
_ of adjacent property owners caused by the
CONTRACTOR, its agents, employees and
7 representatives.
7 35.02.04 The CONTRACTOR shall be responsible for any
damage to the floors, walls, etc., caused by the
CONTRACTOR, its aeents, employees and
representatives or their equipment during installation.
735.02.05 The CONTRACTOR shall also be responsible for all
subcontractors hired by it.
35oO3 IN THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE OWNER BY REASON OF ANY OF
THE INDEMNITIES PROVIDED FOR HEREIN, INCLUDING.
BUT NOT LIMITED TO, THOSE INCLUDED IN ARTICLES 34,
35 AND 37 OF THIS AGREEMENT., THE CONTRACTOR
FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE OWNER.
I-,
L'
u
7 28 TAC§110.110
IM 35.04 The indemnities provided for herein, including, but not limiteL-i
d to,
those contained in articles 34, 35 and 37, will survive the expiration
7
or termination of this Agreement.
i_
36. RELEASE.
By this Agreement, the OWNER does not consent to litigation and expressly revokes any
7 consent to litigation that it 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
7 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
7 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.
37. 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
L-
agreement with the patentee or owner. The CONTRACTOR warrants that the
products hereby incorporated into the uroiect and/or any product used in
association with the proiect does not infringe upon or violate any patent,
L_J right,trade secret or an other proprietary right of any third party;in
the event of any claim by any third party against the OWNER or its
7 officers, agents, and/or employees, including the OWNER'S
REPRESENTATIVE,(hereinafter in this section collectively referred to as
"OWNER") the OWNER shall notify the CONTRACTOR and the
CONTRACTOR shall defend such claim, in the OWNER'S name, but at
the CONTRACTOR'S expense, and shall indemnify, hold harmless, and
defend 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 attorneys' 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 iniury,death,or damage to third
parties is caused in cart by the acts and/or omissions of the OWNER. It is
L;
� 28 TAC§110.110
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 indemnify, protect and defend the
-� OWNER (i) from the consequences of the OWNER'S acts and/or
omissions, where the OWNER'S acts and/or omissions are the concurring
�_i
cause of the infringement upon or violation of any patent,copyright,trade
secret, or other proprietary right and any resulting igiury, death, or
7 damage of any third warty in connection with the products provided,
incorporated, or used in the proiect under this Contract and/or (ii) from
the consequences of the CONTRACTOR'S acts and/or omissions, where
the CONTRACTOR'S acts and/or omissions are the sole or concurring
cause of the infringement upon or violation of any patent,copyright,trade
secret, or other proprietary right and any resulting iaiury, death, or
L ' damage of any third warty in connection with the products provided,
incorporated,or used in the proiect under this Contract. Furthermore,the
� indemnity provided for in this paragraph shall have no application to the
OWNER for any claim, loss, damage, cause of action, suit, and liability
where the infringement upon or violation of any patent, copyright, trade
secret or other proprietary rights and resulting iniury, death, or damage
results from the sole acts and/or omissions of the OWNER, unmixed with
the fault of any other person or entity. If the material, design, service,product or
process specified or required by the OWNER'S REPRESENTATIVE is an infringement,the
CONTRACTOR shall be responsible for such loss, unless he promptly gives such
_ information to the OWNER'S REPRESENTATIVE.
L_ 38, ABANDONMENT,
38.01 In case the CONTRACTOR should abandon,fail or refuse to resume work within ten
--J (10) days after written notification from the OWNER or the OWNER'S
REPRESENTATIVE,or if the CONTRACTOR fails to comply with the orders of the
OWNER or the OWNER'S REPRESENTATIVE, when such orders are consistent
7with the Contract Documents,then,and in that case,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
1 CONTRACTOR.
7 38.02 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
7 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
28 TAC§110.110
CONTRACTOR shall not receive an rental or credit therefor, it being understood
Y � g
that the use of such equipment and materials will ultimately reduce the cost to
Y
complete the work and be reflected in the final settlement.
i
39. 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
11 77 this Agreement.
40., TERMINATION.
40.01 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 by the OWNER'S REPRESENTATIVE, (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.
40.02 After receipt of a notice of termination, whether with or without cause, 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, but not limited to, 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
r relate to the performance of the work terminated b the notice of termination;
p Y
28 TAC§110.110
Assi n to the OWNER in the manner and to the extent directed b it all of
(d) g � y
f 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;
(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
_..s to such property to the OWNER to the extent not already transferred; and/or
(g) Take actions necessary or as otherwise directed by the OWNER'S
REPRESENTATIVE or the OWNER for the protection and preservation of
the work.
40.03 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
Jf to carrying out the unterminated onion or taking close-out measures.
Y g p g
41. TERMINATION FOR CAUSE.
41.01 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:
41.01.01 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;
41.01.02 If a receiver,trustee or liquidator of any of the property or income of
the CONTRACTOR shall be appointed;
41.01.03 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;
I
_J
28 TAC§110.110
41. 1. 4 If within five (5) calendar da s after written notice thereof from the
0 0 y
r
OWNER or the OWNER'S REPRESENTATIVE, the
CONTRACTOR shall fail to remedy any defective work or work that
does not conform to the requirements of this Agreement,
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
41.01.05 If the CONTRACTOR shall fail for any reason other than the failure
by the OWNER to make payment called upon when due.
41.02 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'S REPRESENTATIVE or 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.
42, TERMINATION FOR CONVENIENCE.
42.01 The performance of the work may be terminated at any time in whole or in part, by
,., the OWNER'S REPRESENTATIVE 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
LJ contract is terminated for cause, which is later determined not to exist, the parties
agree that the contract will be deemed to be terminated for convenience.
Lj 42.02 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
77 and shall not be entitled to receive any further progress payment hereunder and shall
L 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.
L
79
i
28 TAC§110.110
43. COMPLETION AF
TER ABANDONMENT OR TERMINATION.
43.01 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:
43.01.01 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 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
4
sum which would have been payable under this contract,if the same
79 had been completed by the CONTRACTOR, then said
CONTRACTOR and/or its surety hereby waives any and all
� g ri hts and claims to receive the difference. In case such
privileges,
77
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.
43.01.02 The OWNER,under sealed bids,after notice published as required by
L law at least twice in a newspaper having general circulation in the
city, 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 y hereb waives any and all
privileges, rights and claims to such excess.
28 TAC§110.110
43.02 In the event of abandonment b the CONTRACTOR the CONTRACTOR shall
y ' .
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.
44. DAMAGES.
44.01 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
i
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:
IT
44.01.01 If the CONTRACTOR shall fail to remedy any default after written
notice thereof from the OWNER or the OWNER'S
REPRESENTATIVE; or
J
44.01.02 If the CONTRACTOR shall fail for any reason other than the failure
by the OWNER to make payments called upon when due; or
44.01.03 If the CONTRACTOR commits a substantial default under any of the
terms, provisions, conditions or covenants contained in this
Agreement.
7
45, 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.
46. ENTIRE AGREEMENT.
P
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.
YP
L 28 TAC§110.110
47. AMENDMENT.
f
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.
j 48. TEXAS LAW.
This Agreement has been made under and shall be governed by the laws of the State of
L
Texas.
1
49. PLACE OF PERFORMANCE.
The place of making and the place of performance for all purposes shall be Baytown,Harris
County,Texas.
50. NON-WAIVER.
J1 50.01 Failure of an art at an time to enforce a provision of this Agreement shall in no
Y party, Y � p g
`�' wayconstitute a waiver of that provision, nor in an way affect the validity of this
p Y Y Y
Agreement or part hereof or the right of the OWNER or the OWNER'S
REPRESENTATIVE 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.
i
50.02 Nothing contained in this Agreement or any of the Contract Documents shall be
deemed to limit or waive the sovereign immunity of the Owner
E
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.
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.
f
'" i
28 TAC§110.110
53. CONSTRUCTION OF AGREEMENT.
The parties agree that this Agreement shall not be construed in favor of or against any party
U 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.
e 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.
56.01 CONTRACTOR may not assign or otherwise transfer this Agreement or any rights or
obligations hereunder without the prior written consent of the OWNER.
56.02 CONTRACTOR hereby assigns to OWNER any and all claims for overcharges
associated with this Project,which arise under the antitrust laws of the United States.
CONTRACTOR shall require all subcontractors to make the same assignment to the
OWNER prior to performing any work under this Contract.
57. SUCCESSORS AND ASSIGNS.
a
This Agreement shall inure to the benefit of and be binding upon the CONTRACTOR and its
successors and assigns.
i
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 to be an original,but all of which shall constitute but one and
the same Agreement effective on the 7"' day of November, 2008.
CITY O Y O
7
GARRISON C UMBACK City Manager
er
�
ATTEST:
KAY IE DARNELL, City Clerk
� U=
� •�ti
APPROVED AS TO FORM: •"•••»•••••'''••
1
ACIO RAMIREZ, SR., C Attorney
' TEAMWORK CONSTRUCTION
SERVICES,INC.
( Lignature)
(Printed Name)
Y\,0-0- 1)1-'-'--'S I."�ewui
(Title)
STATE OF TEXAS §
COUNTY OF.HARRIS §
Before me on this day personally appeared ,:��Chjo EpC�E� vD c ,in his/her
capacity as of TEAMWORK CONSTRUCTION SERVICES,INC.,
p ty
on behalf of such corporation or other business entity,
known to me;
proved to me on the oath of ; or
` proved to me through his/her current
[e xas ryes uct-c'Islp f description of identification card
or other document issued by the federal government or any state government that
contains the photograph and signature of the acknowledging person}
z (check one)
to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that
he/she executed that instrument for the purposes and consideration therein expressed.
Given under my hand and seal of office this JLII'day of y(f vvq he r ,20 C6.
J No Public in and for the State of
1177 - Texas
���?�`p''d�% KAREN L.HORNER
Notary Public,State of Texas M1-1c)y commission expires: --
ICI �
9l, �f Commission Expires May 9,2010
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WAIS Document Retrieval Page 1 of 3
GENERAL DECISION: TX20070075 02/09/2007 TX75
Date: February 9, 2007
General Decision Number: TX20070075 02/09/2007
Superseded Gene
ral Decision Number: TX20030075
State: Texas
7M
Construction Types: Building
Counties: Anderson, Cherokee, Henderson, Van Zandt and Wood
Counties in Texas.
BUILDING CONSTRUCTION PROJECTS (does not include residential
construction consisting of single family homes and apartments
up to and including 4 stories)
Modification Number Publication Date
0 02/09/2007
SUTX1990-004 01/26/1990
Rates Fringes
Bricklayer, Stonemason. . . . . . . . .$ 14.75 .55
Carpenter. . . . . . . . . . . . . . . . . . . . . .$ 9.38
Cement Mason. . . . . . . . . . . . . . . . . . .$ 8.10
- Electricians:
Cable Splicers. . . . . . . . . . . . . .$ 15.23 1.00+80
Electricians. . . . . . . . . . . . . . . .$ 14.64 1.00+80
Glazier. . . . . . . . . . . . . . . . . . . . . . . .$ 10.45
i
Iro
nworker. . . . . . . . . . . . . . . . . . . . .$ 6.11
Laborers:
Common. . . . . . . . . . . . . . . . . . . . . .$ 5.15
Mason Tenders. . . . . . . . . . . . . . .$ 6.31
ax.
Painter. . . . . . . . . . . . . . . . . . . . . . . . 7.00
__ Plumbers and Pipef i tters. . . . . . .$ 8.00
rM Roofer. . . . . . . . . . . . . . . . . . . . . . . . .$ 10.00
Sheet metal wo
rker. . . . . . . . . . . . .$ 13.92 1.83+3%
Soft Floor Layer. . . . . . . . . . . . . . .$ 8.81
Tile Setter. . . . . . . . . . . . . . . . . . . .$ 9.00
----------------------------------------------------------------
WELDERS - Receive rate prescribed for craft performing
operation to which welding is incidental.
Unlisted classifications needed for work not included within
the scope of the classifications listed may be added after
h ttn:Hfrwebeate.access.izpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX20070075 6/4/2007
WAIS Document Retrieval Page 2 of 3
award only as provided in the labor standards contract clauses
(29CFR 5.5 (a) (1) (ii) ) .
----------------------------------------------------------------
1_
In the listing above, the "SU" designation means that rates
listed under the identifier do not reflect collectively
bargained wage and fringe benefit rates. Other designations
indicate unions whose rates have been determined to be
prevailing.
l -----------------------------------------------
WAGE DETERMINATION APPEALS PROCESS
1. ) Has there been an initial decision in the matter. This can
be:
* an existing published wage determination
* a survey underlying a wage determination
a Wage and Hour Division letter setting forth a position on
a wage determination matter
* a conformance (additional classification and rate) ruling
related matters initial contact including On survey g requests
for summaries of surveys, should be with the Wage and Hour
Regional Office for the area in which the survey was conducted
because those Regional Offices have responsibility for the
J Davis-Bacon survey program. If the response from this initial
contact is not satisfactory, then the process described in 2. )
and 3. ) should be followed.
i
With regard to any other matter not yet ripe for the formal
process described here, initial contact should be with the
F" Branch of Construction Wage Determinations. Write to:
�- Branch of Construction Wage Determinations
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
2. ) If the answer to the question in 1. ) is yes, then an
` interested party (those affected by the action) can request
review and reconsideration from the Wage and Hour Administrator
(See 29 CFR Part 1.8 and 29 CFR Part 7) . Write to:
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
The request should be accompanied by a full statement of the
interested party's position and by any information (wage
payment data, project description, area practice material,
etc. ) that the requestor considers relevant to the issue.
�- 3. ) If the decision of the Administrator is not favorable, an
interested party may appeal directly to the Administrative
Review Board (formerly the Wage Appeals Board) . Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
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i
28 TAC§110.110
EXHIBIT "B"
Article B-1 Workers' Compensation Insurance Coverage.
A. Definitions:
of covera e (certificate)--A co of a certificate of insurance a certificate of
Certificateg copy ,
authority to self-insure issued by the commission, or a coverage agreement (TWCC-81,
TWCC-82,TWCC-83, or TWCC-84), showing statutory workers'compensation insurance
�1
coverage for the person's or entity's employees providing services on a project, for the
duration of the project.
Duration of the project--includes the time from the beginning of the work on the project until
the CONTRACTOR's/person's work on the project has been completed and accepted by the
governmental entity.
Persons providing services on the project(subcontractor in 406.096)--includes all persons or
entities performing all or part of the services the CONTRACTOR has undertaken to perform
on the project, regardless of whether that person contracted directly with the
7 CONTRACTOR and regardless of whether that person has employees. This includes,
i �
without limitation, independent contractors, subcontractors, leasing companies, motor
p g
carriers, owner-operators, employees of any such entity, or employees of any entity which
furnishes persons to provide services on the project. Services include, without limitation,
providing,hauling,or delivering equipment or materials,or providing labor,transportation,
or other services related to a project. Services do not include activities unrelated to the
project, such as food/beverage vendors, office supply deliveries, and delivery of portable
toilets.
B. The CONTRACTOR shall provide coverage, based on proper reporting of classification
� codes and payroll amounts and filing of an coverage agreements,which meets the statutory
p Y g Y g g
requirements of Texas Labor Code, Section 401.011(44) for all employees of the
Ll
CONTRACTOR providing services on the project, for the duration of the project.
C. The CONTRACTOR must provide a certificate of coverage to the governmental entity prior
7 to being awarded the contract.
D. If the coverage period shown on the CONTRACTOR'S current certificate of coverage ends
during the duration of the project,the CONTRACTOR must,prior to the end of the coverage
period,file a new certificate of coverage with the governmental entity showing that coverage
7 has been extended.
E. The CONTRACTOR shall obtain from each person providing services on a project, and
provide to the governmental entity:
i
(1) a certificate of coverage, prior to that person beginning work on the project, so the
28 TAC§110.110
governme
ntal entitywill have on file certificates of coverageshowingcoverage for
all persons providing services on the project; and
(2) no later than seven days after receipt by the CONTRACTOR, a new certificate of
coverage showing extension of coverage,if the coverage period shown on the current
certificate of coverage ends during the duration of the project.
F. The CONTRACTOR shall retain all required certificates of coverage for the duration of the
project and for one year thereafter.
�.
G. The CONTRACTOR shall notify the governmental entity in writing by certified mail or
personal delivery,within 10 days after the CONTRACTOR knew or should have known,of
any change that materially affects the provision of coverage of any person providing services
on the project.
H. The CONTRACTOR shall post on each project site a notice in the text form and manner
p p J >
prescribed by the Texas Workers' Compensation Commission, informing all persons
providing services on the project that they are required to be covered, and stating how a
` person may verify coverage and report lack of coverage.
require each person with whom it contracts to
I. The CONTRACTOR shall contractually equ e p so
provide services on a project, to:
7 (1) provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meets the
statutory requirements of Texas Labor Code, Section 401.011(44) for all of
7 its employees providing services on the project, for the duration of the
project;
7 (2) provide to the CONTRACTOR, prior to that person beginning work on the
project,a certificate of coverage showing that coverage is being provided for
all employees of the person providing services on the project,for the duration
LI of the J
ro'ect•
p
(3) provide to the CONTRACTOR, prior to the end of the coverage period, a
new certificate of coverage showing extension of coverage, if the coverage
period shown on the current certificate of coverage ends during the duration
of the project;
(4) obtain from each other person with whom it contracts, and provide to the
CONTRACTOR:
(a) a certificate of coverage, prior to the other person beginning
7 work on the project; and
k.
S
28 TAC§110.110
77
a new certificate of covera e showin extension of covera e,
(b) g g g
-� prior to the end of the coverage period,if the coverage period
79 shown on the current certificate of coverage ends during the
duration of the project;
(5) retain all required certificates of coverage on file for the duration of the
project and for one year thereafter;
(6) notify the governmental entity in writing by certified mail or personal
�J delivery,within 10 days after the person knew or should have known,of any
change that materially affects the provision of coverage of any person
providing services on the project; and
_ter
(7) contractually require each person with whom it contracts, to perform as
required by paragraphs (l)-(7), with the certificates of coverage to be
provided to the person for whom they are providing services.
7 J. By signing this contract or providing or causing to be provided a certificate of coverage,the
CONTRACTOR is representing to the governmental entity that all employees of the
CONTRACTOR who will provide services on the project will be covered by workers'
7`s compensation coverage for the duration of the project, that the coverage will be based on
l�� re reporting of classification codes and payroll amounts, and that all coverage
proper p g pY
agreements will be filed with the appropriate insurance carrier or, in the case of a self-
insured, with the commission's Division of Self-Insurance Regulation. Providing false or
misleading information may subject the CONTRACTOR to administrative penalties,
7 criminal penalties, civil penalties, or other civil actions.
K. The CONTRACTOR's failure to comply with any of these provisions is a breach of contract
by the CONTRACTOR which entitles the governmental entity to declare the contract void if
7 the CONTRACTOR does not remedy the breach within ten days after receipt of notice of
breach from the governmental entity.
7
Article B-2 Required Notice.
The CONTRACTOR shall post a notice on each project site informing all persons providing
services on the project that they are required to be covered, and stating how a person may verify
current coverage and report failure to provide coverage. This notice does not satisfy other posting
requirements imposed by the Act or other commission rules.This notice must be printed with a title
in at least 30 point bold type and text in at least 19 point normal type, and shall be in both English
and Spanish and any other language common to the worker population.The text for the notices shall
be the following text provided by the commission on the sample notice, without any additional
words or changes:
i
28 TAC§110.110
I; REQUIRED WORKERS' COMPENSATION COVERAGE
J
The law requires that each person working on this site or providing services related to
! this construction project must be covered by workers'compensation insurance.This
includes persons providing, hauling, or delivering equipment or materials, or
providing labor or transportation or other service related to the project,regardless of
_ the identity of their employer or status as an employee.
Call the Texas Workers' Compensation Commission at 512-440-3789 to receive
T information on the legal requirement for coverage, to verify whether your employer
has provided the required coverage, or to report an employer's failure to provide
Y
coverage.
1 'J
Article B-3 Required Contract Provision.
The CONTRACTOR shall include in all contracts to provide service on the project the following
language:
By signing this contract or providing or causing to be provided a certificate of
coverage,the person signing this contract is representing to the governmental entity
that all employees of the person signing this contract who will provide services on
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the project will be covered by workers'compensation coverage for the duration of the
�a project, that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the
appropriate insurance carrier or, in the case of a self-insured, with the commission's
�_.__r Division of Self-Insurance Regulation. Providing false or misleading information
may subject the contractor to administrative penalties, criminal penalties, civil
penalties, or other civil actions.
0
Article B-4 Applicability.
I. The coverage requirement in this Exhibit"B"does not apply to sole proprietors,partners,and
f corporate officers who meet the requirements of the Acts 406.097(c),and who are explicitly excluded
from coverage in accordance with the Act,.406.097(a) (as added by House Bill 1089, 74th
Legislature, 1995,.1.20). This subsection applies only to sole proprietors, partners, and corporate
executive officers who are excluded from coverage in an insurance policy or certificate of authority
to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996.
II. The coverage requirement in this Exhibit "B" does not apply to motor carriers who are
required pursuant to Texas Civil Statutes, Article 6675c, to register with the Texas Department of
Transportation and who provide accidental insurance coverage pursuant to Texas Civil Statutes,
Article 6675c%40).