Ordinance No. 10,922 ORMNANCI�,.,' NO. 10,922 AN ORDINANCF. OF THE CITY COUNC,11, OFTIR CITY OF BAYTOWN, TI`1XAS, AUTI--IORIZING AND DIRT CTING THE CITY MANA(iER AND CITY CLERK TO EXECUTE AND ATTF'STTO A CONTRACT WIFF11 TROY CONSTRUCTION, LI-C, FOR THE EROSION PROTI',CTION INSTALLATION AT 3030 F'ERRY ROAD CLOSED I.,,ANDF'ILI, SITE PROJECT; AU111ORIZING PAYMENT OF A SUM OF SEVEN HUNDRE"'D FIFTY-l"OU R THOU SAND AN]') NO/100 DOLLARS ($754,000.00); MAKING OTHER PROVISIONS AND PROVIDING FOR 1TIE EFFECTIVE DATETI I FREOF. WHEREAS, the City COUncil of' the City of Baytown did advertise for bids for the Erosion Protection Installation at 3030 Ferry Road Closed Landfill Site Project to be received on June 16, 2008; and WHERFAS, notice to bidders as to the time and place, when and where (lie bids would be public]), opened and read aaloud W,1S pLib]iSllCCI pursuant to Provisions of'Fcxas Local Government Code Annotated §252.04 1-, and WHERF"AS, all bids were opened and pUblicly read at City Hall at 1 1:00 o'clock a.rn,, Monday, June 16, 2008, as per published notice to bidders, NOW ITIERFFORE Bt,', ITOR-DAINED BYTII; CITY CO(JNCIL OFTI]ECITY OF BAY'"I'OWN, TEXAS: Section 1: That the City Council of the of Baytown hereby accepts the bid of Troy Construction, LIX, for the Erosion Protection Installation at 3030 Ferry Road Closed Landfill Site Project according to tile plans and specifications set forth by the City`s engineer, and authorizes payment of an amount of SEVEN HUNDRED I"IFTY-FOUR "HIOUSAND AND NO/100 DOLLARS ($754,000.0(0); based upon the unit prices specified in the bid, and the City Manager and the City Clerk of (lie City are hereby authorized and directed to CXCCLItC and attest to a contract with Troy Construction, Ll-C, for the above-described proJect, said contract containing the plalls, specifications, and reqUit-CIIICIAS Of' the City'S engineer and appropriate bond reqUirements in accordance with tile provisions of Texas Government Code, Chapter 225'3. Section 2: That pursuant to the provisions of Texas Local Government Code Annotated § 252.048, the City Manager is hereby granted general authority to approve any change order involving as decrease or all increase in costs of—IA%/ NTY-F1VI`1 THOUSAND AND NO/]00 DOLLARS ($25,000.00) or- less,, subject to the provision that the original, contract price may not be increased by more than twenty dive percent (25%) or decreased by more than twenty-five percent (25%j) WithOLIA the consent of the contractor to such decrease. Section 3: This ordinance shall lake cl't'cet Immediately from all fter its passage by the City Council ofthe City of'Baytown. / 11 INTRODUC13D, READ and PASSF'D by the affirmative vote 0, th, City Council of the City of Baytown this the 10"' day of July, 2008. -,,I?I I EN H, DONCARLOS, Mayor AT I-ST: Ile, its pass I Cit Council Y Id i A 1; KA'v,rf d DARNE.1,L, City Clerk fl"; APPROVED AS TO FORM: n4f ,IN��A60—OkAMIREZ, SR., City ttorney ttorlic R"KarelIT'iles"City Couni h0rdinances\200M.1 Lily I 0\AwardF1-a.itDi.qtj ictE,.ri).si�)iiCotiliolllro.icet doc V. ' STANDARD FORM OF AGREEMENT: BETWEEN OWNER AND CONTRACTOR ' THIS AGREEMENT is entered into by and between the City of Baytown (the "OWNER") and --rybu cms*amoa, L.•L— c• (the "CONTRACTOR!') for the EROSION RE DY-3030 FERRY ROAD CLOSED LANDFILL SITE PROJECT. ' 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(Bid Form),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 the Notice to Bidders, Instructions to Bidders, Proposal(Bid Form),the Standard Form of Agreement,Performance Bond,Payment Bond, Scope of Work, any and all Technical Specifications for General Requirements and Site Work; 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. ' -1- Updated 04212008 i �77 i -- 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 materlalmen 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 71 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 b or satisfactory to OWNER. p Y rY 1.08 NONCONFORMING WORK. f_ 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 the OWNER and inspect and issue instructions, but shall not directly supervise the p 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. 7 _2_ Updated 04212008 7 L-i 1 1 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 in the Scope of Work. If specified_._. p p ed 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 ---1 p p prised 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 a order shall be fully and finally completed within thirtycalendar da s from its y issuance, unless otherwise expressly stated in the work order. i 2. CONTRACT DOCUMENTS. 2.01 COMPLEMENTARY DOCUMENTS. The Contract Documents comprise the entire agreement between the OWNER and the CONTRACTOR concerning the project. The Contract Documents are l complementary,and what is called for by any one shall be as binding as if called for by all. 7 2.02 PRIORITY OF DOCUMENTS. In case of conflict between any of the Contract Documents,priority of interpretation 7 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, 7 2.02.06 Plans, 7 -3- Updated 04212008 U 2.02.07 Specifications, 2.02.08 Performance and Payment Bonds, and 2.02.09 Proposal(Bid Form). 1 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 SPECIFICATIONS. 2.05.01 The CONTRACTOR shall distribute p copies of the specifications to p suppliers and subcontractors as necessary. The CONTRACTOR 77 shall keep at least one copy of the specifications accessible at the s_f work site with the latest revisions noted thereon. 2.05.02 All specifications and copies thereof furnished by the OWNER shall I 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 j granting the CONTRACTOR,any subcontractor or supplier or other person or organization performing or furnishing any of the work 7 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. a 3.01 RESPONSIBILITY AND AUTHORITY. The project shall be administered by the OWNER'S REPRESENTATIVE, which shall assume all duties and responsibilities and have the rights and authority assigned ~r either to it or the OWNER in the Contract Documents,including,but not limited to, the following: LJ 3.01.01 The OWNERS REPRESENTATIVE shall periodically review and shall inspect the work of the CONTRACTOR as described in Section 3.02. i -4- Updated 04212008 l� 3.01.02 The OWNER'S REPRESENTATIVE shall appoint from time to time such subordinate supervisors or inspectors as the OWNER'S REPRESENTATIVE may deem proper to inspect the work p p -- performed under this Agreement and ensure that said work is performed in accordance with these Contract Documents. . 3.01.03 The CONTRACTOR shall regard and obey the directio ns and instructions of OWNER'S REPRESENTATIVE, any subordinate supervisors or inspectors appointed by the OWNER'S REPRESENTATIVE provided such directions and instructions are consistent with the obligations of this Agreement. 3.01.04 Should the CONTRACTOR object to an orders b the OWNER'S� J Y y WNER S REPRESENTATIVE or any subordinate supervisor or inspector 79 appointed by the OWNER'S REPRESENTATIVE, the �l CONTRACTOR 'may within two (2) calendar days from receipt of such order make written appeal to the OVTNER'S 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 veri fY CONTRACTOR'S payment requests,and as OWNER'S REPRESENTATIVE and/or OWNER deems necessary,in order to observe as an experienced and qualified d71 esign desi q g professional the progress and quality of the Work. Such visits and observations by 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 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. 77 3.03 LINES AND GRADES. Unless otherwise specified,all lines and grades, p g des,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. _A -5- Updated 04212008 79 77 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 b him or his employees, such stakes marks etc, shall e Yb replaced at the CONTRACTOR'S expense. 71 3.04 PAYMENTS FOR WORK. The OWNER'S REPRESENTATIVE shall review CONTRACTOR'S applications 77 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 OWNER'S REPRESENTATIVE'S professional judgment that the work has _ progressed to the point indicated to the best of his knowledge,information and belief, but such approval of an application for payment to CONTRACTOR shall not be 79 deemed as a representation by OWNER'S REPRESENTATIVE that OWNER'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. 71 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 y teleco ier� the corporation for whom it is intended, or if delivered at or sent b p , 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. 1I.__J 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. _6_ Updated 04212008 7 l_J 5.03 The work shall be commenced within ten(10)calendar days of the datespecified yin 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. i 5.04 Time is of the essence in this Agreement. 6. WORK. 6.01 The CONTRACTOR shall complete and be responsible for all work a p s specified, indicated, or described in the Contract Documents. The CONTRACTOR shall complete and be responsible for all Extra Work as described in this Agreement. All work done and all materials furnished shall be in strict conformity with this Agreement,the Specifications,and other Contract Documents. In the event that the CONTRACTOR fails to perform the work as required for final completion, the OWNER may contract with a third party to complete the work and the CONTRACTOR shall assume and pay the costs of the performance of the work specified or contemplated by the Contract Documents. 6.02 Unless otherwise stipulated, the CONTRACTOR p � R shall provide and pay for all materials, supplies, machinery, equipment, tools, superintendents, laborers, - insurance, fuel,transportation, and all other facilities and utilities necessary for the execution and completion of the work specified or contemplated by the Contract Documents. 6.03 PERMITS FEES AND LEGAL COMPLIANCE. 6.03.01 The CONTRACTOR shall secure and pay all permits,fees,licenses, and inspections necessary for the proper execution and completion of the work. The CONTRACTOR will not,however,be required to pay for any permit fees for permits to be issued by the City of Baytown, i' which will be waived in conjunction with this Agreement. 6.03.02 The CONTRACTOR shall give all notices required by law and comply with all laws,ordinances,regulations,codes,rules and lawful orders of all public authorities bearing on the performance of the work. 6.04 TAXES. The OWNER qualifies for exemption from state and local sales tax 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 pa sales, consumer, use and similar taxes as Y � legally required. _7_ Updated 04212008 79 _J 1 7 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 FM 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 j� 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 _ relieve the CONTRACTOR from responsibilityfor deviations from drawings or g specifications,unless he has in writing called the OWNER'S REPRESENTATIVE'S r 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 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 improvements in conformity with the plans and specifications, and shall not relieve the CONTRACTOR of his duty as an independent contractor as previously set forth, 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. t___s 7 i 7. TIME. COMPLETION DATES, EXTENSIONS, DELAYS. 7.01 The date of beginning and the date for final completion of work as specified in this I Agreement are essential conditions of this Agreement. 7.02 The work will commence within ten(10)calendar days of the issuance of a notice to proceed or a work order, whichever is applicable, and will be completed within i�._� p ninety-(90) 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 date specified on the 7 notice to proceed or work order. -g- Updated 04212008 7.03 EXTENSIONS. 7.03.01 The CONTRACTOR has submitted its bid in full recognition of the -J time -required for the completion of this project taking into consideration all factors, including, but not limited to, the average climatic range and industry conditions. 7.03.02 The CONTRACTOR has considered the liquidated damage 79 provision, and understands and agrees that it shall not be entitled to, _-J 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. 77 7.03.03 Within seven (7) calendar days of any act or incident that the CONTRACTOR reasonably believes may justify�� Y an extension of time for final completion,the CONTRACTOR may apply in writing for an extension of such time, submitting therewith all written justification as may be required by OWNER. Thereafter, the OWNER'S REPRESENTATIVE,within seven(7)calendar days after receipt of a written request for an extension of time from the CONTRACTOR, which is supported by all requested documentation, shall then grant or deny such written request. 7.04 DELAYS. 7.04.01 The CONTRACTOR,in undertaking to complete the work within the time herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such work,whether growing out of delays in securing material or workmen or weather or otherwise. 7.04.02 No charge whatsoever shall be made by the CONTRACTOR for hindrances or delays from any cause whatever, except where the i.� p 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 r_ 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. 7 7 -9- Updated 04212008 i 1 I r 4J 7.04.03 It is agreed that the granting g g tang 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 writing OWNER immediate notice in wr --� g of the cause of the detention or delay. 7.04.04 In case the work is stopped b an act of the pp y OWNER, then the expenses of the same, as determined by the OWNER'S REPRESENTATIVE, shall be paid by the OWNER to the CONTRACTOR. 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, 7 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 h L_ te work under this Agreement and the OWNER agrees to a t g pay he CONTRACTOR based upon the unit prices enumerated in the OWNER'S Invitation to Bid the total of which shall not exceed the total amount bid,for the completed and accepted work ad'E as set forth and dusted 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 1� p g p y 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 7 Agreement,the OWNER shall make progress payment on account of La 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 -10- i Updated 04212008 lam.! I which payment has already been made under a prior progress payment or a portion thereof, is determined to be either (1) not in accordance with the Agreement,the work write-up,specifications or __J 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 OWNER'S REPRESENTATIVE and/or OWNER may determine and may withhold in accordance with this Agreement. 8.02.03 The OWNER'S 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 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. 8.03 RETAINAGE. From each approved statement, the OWNER shall retain until final payment 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 L total Contract Price at time of Contract execution is less than Four Hundred Thousand Dollars($400,000.00). The OWNER may also retain from each approved statement any sums authorized under other terms of this Agreement. 8.04 ; FINAL PAYMENT. After final completion and acce ptance eptance of the work specified in '1he-.p1ans--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 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 � py unit price method, then payment shall be for the actual amount of accepted work done and materials furnished on the project. -11- Updated 04212008 i 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 p p above or below 20% of the estimated quantity. 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 an nature on behalf of the O- y 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. L31 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 fit in the dimensions, plans or materials, or any part thereof, for the 7 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 7 shall not constitute the basis for any claim for damages or anticipated profits on the work that may be dispensed with. The CONTRACTOR shall never be entitled to anticipated or lost profits 7 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 7! -12- Updated 04212008 i f the increased work can be fairly classified und er the specifications, such increase shall be paid according to the quantity actually done and at the unit price established for such work under this Agreement; g 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 alreadyfurnished or used sed in said work, then the OWNER shall recompense the CONTRACTOR for any material or labor so used and for any actual loss, other than lost profits occasioned by such change due to actual expenses incurred g p in preparation for the work as originally planned. 8.09.03 Changes and alterations that are authorized through change orders g g may be made or approved by the OWNER provided that the change g order does not increase or decrease this Agreement by more than the u amount specified in the Ordinance passed b the City Council Y tY 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 proposed 0 the p sed change or the right to payment for Extra Work shall be waived. I 8.10 EXTRA WORK CHARGES. L 8.10.01 The term "Extra Work" shall be understood to mean and include work not covered or contemplated b the Contract Documents p Y that ' may be required by the OWNER or the OV`JNER'S REPRESENTATIVE and approved by the OWNER in writing prior to its being done by the CONTRACTOR to accomplish any change, -j alteration, or addition to the work as shown on the Specifications p bons or Contract Documents. i �--± 8.10.02 It is agreed that the CONTRACTOR shall perform all Extra Work under the direction of the OWNER'S REPRESENTATIVE when presented with a written work order signed by the OWNER. i -13- Updated 04212008 i 77 8.10.03 No claim for Extra Work of an kind will be allowed unless prior to Y , the work being done,it is ordered in writing by the OWNER. In case 77 , any orders or instructions appear to,the CONTRACTOR to involve Extra Work for which it should receive additional compensation or an adjustment in the construction time,the CONTRACTOR shall make 771 written request to the OVYJNER for a written order from OWNER �j authorizing such Extra Work. 7 8.10.04 It is agreed that the basis of compensation to the CONTRACTOR for work either added or deleted by a Change Order or for which a claim for Extra Work is made shall be determined by one or more of the 7 following methods: _J Method(A) - By agreed unit prices; or Method(B) - By agreed lump sum; or Method(C) - If neither Method (A) nor Method (B) is agreed upon before the Extra Work is commenced, then the CONTRACTOR shall 77 be paid the "actual field cost" of the work. 8.10.05 In the event said Extra Work is performed and paid for under Method 71 (C),then the provisions of this paragraph shall apply and the "actual field cost" is hereby defined to include the cost to the CONTRACTOR of all applicable workmen, such as foreman, timekeepers,mechanics and laborers,and materials,supplies,teams, trucks, rentals on machinery and equipment, for the time actually employed or used on such Extra 'Work, plus actual transportation charges necessarily incurred,together with all power,fuel,lubricants, water and similar operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work,including social security, old-age benefits and other payroll taxes, and a rateable proportion of premiums on Performance and Payment Bonds Public Liabilityand Property roperty 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 comp ensate the CONTRACTOR for LIJ -14- Updated 04212008 I the CONTRACTOR'S R S profit, overhead, general superintendence, field office expenses,and all other elements of costs and expenses not embraced within the actual field costs as herein defined. Actual field costs shall not exceed the prevailingmarket rice therefor with p in reasonable tolerances as determined by the OWNER'S 77 REPRESENTATIVE. 7 9. INDEPENDENT CONTRACTOR. 9.01 In all activities or services performed hereunder, the CONTRACTOR is and at all times shall remain an independent contractor, not an agent or employee of the OWNER 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 LJJ 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 7 shall have the sole obligation to employ, direct control supervise, se, 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 7 supervision over the employees of the CONTRACTOR's subcontractors except to the limited extent provided for in this Agreement. 9.02 The work to be provided on this project shall include the furnishing g of all labor, materials, equipment, and other services necessary or reasonably incidental to the performance of the work by the CONTRACTOR. It shall be the responsibility of the } L` CONTRACTOR to furnish a completed work product that meets the requirements of the OWNER. An additional work material,,or equipment needed to meet the intent of this specification shall be supplied by the CONTRACTOR without claim for 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 g CONTRACTOR shall appoint and keep on the project during the progress of the work a competent Project Superintendent-Manager and any necessary assistants, all satisfactoryto OWNER, to �act as the CONTRACTOR s representative and to supervise its -- employees and subcontractors. All directions given to the Project Superintendent- i L_J -15- i e Updated 04212008 i Manager shall be binding as if given to the CONTRACTOR. supervision Adequate q 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.g t. 9.04 Unless otherwise stipulated, the CONTRACTOR shall provide and pay for all materials, labor, tools, equipment, transportation, and other facilities necessary for the performance and completion of the work. 10. DISORDERLY EMPLOYEES. The CONTRACTOR agrees to employ only orderly and persons, com etent skillful in the p 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 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 REPRESENTATIVE,incompetent,unfaithful or disorderly,such person or persons shall be discharged and shall not again be employed to perform an work on the project with p y p � out such OWNER's or OWNER'S REPRESENTATIVE's prior written consent. ova 11. NATURE OF THE WORK. It is understood and agreed that the CONTRACTOR has,by careful examination, satisfied ! itself as to the nature and location of the work, the confirmation of the ground and soil,the nature of any structures,the character,quality and quantity of the material to be utilized,the character of equipment and facilities needed for and during the prosecution of the work,the time needed to complete the work, CONTRACTOR's ability to meet all deadlines and schedules required by this Agreement,the general and local conditions,and all other matters that in any way affect the work under this Agreement. 12. PROGRESS OF WORK. 12.01 Unless otherwise specifically provided herein, the CONTRACTOR may prosecute Y 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 y p( 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. -16- 1 Updated 04212008 i 12.02 Further, the parties shall be :subject to the following: 12.02.01 The OWNER reserves the right to enter the property Y b such employee(s) or agent(s)as it may elect for the purpose of inspecting the work. 12.02.02 The Project Sup perintendent/Manager shall coordinate its activities and work with the OWNER. If required by the Owner, the CONTRACTOR shall provide a weekly schedule of planned activities,which may be reviewed on a daily basis. In the case of any completed work or material that is to be covered over by other material,the Project Superintendent/Manager shall provide notice to the OWNER no later than twenty-four (24) hours before the anticipated cover-up of the previously completed work or material. In the event, however, that such notice is provided on a Friday the OWNER will have until the following Monday afternoon to approve -� y pp 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 by the OWNER or the OWNER'S REPRESENTATIVE upon twenty-four (24)hours' notice unless otherwise agreed by the parties. 12.02.05 When the OWNER is having other work done, by its own force approved by the OWNER'S REPRESENTATIVE, the OWNER'S REPRESENTATIVE may direct the time and manner of work done � under this Agreement, so that conflicts will be avoided and the various work being done by and for the OWNER shall be coordinated. 13. SITE CONDITIONS AND MANAGEMENT. 13.01 Where the CONTRACTOR is working around or in existing structures,it shall verify conditions at the site,including,but not limited to,door openings and An passages. Y items constructed or manufactured off-site or outside of buildings shall be done so -17- Updated 04212008 l I _ 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 } connections to buildings. To this end, owners of all known underground lines and structures,including gas,water,electrical cables,telephone cables,sanitary sewers, storm sewers, industrial pipelines, and appurtenances thereto have been contacted 7 and the information provided by them is shown on the plans. Where as water,and g > 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's responsibility to notify various-----� p ty fy 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 'i__. 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 keepp the working area free from debris of all types, and remove from premises all rubbish, resulting from any work being done by him. At the completion of the work, the CONTRACTOR shall leave the premises in a clean and finished condition. Any failure to do so may be remedied by the OWNER or its designee and charged back to the CONTRACTOR. 14. LAYOUT OF WORK. Except as specifically provided herein the CONTRACTOR shall L-J p Y p 11 lay out all work in a manner acceptable to the OWNER in accordance with applicable codes and ordinances of the city, county and state. The OWNER'S REPRESENTATIVE will review the CONTRACTOR'S layout of all structures and any other layout work done by the CONTRACTOR,but this review does not relieve the CONTRACTOR of the responsibility of accurately locating all work in accordance with the specifications and Contract Documents. 15. CONTRACTOR'S STRUCTURES. H 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 Ll 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. 1 7 -18- L;j Updated 04212008 I i i. 15.02 The CONTRACTOR shall provide and maintain necessary sanitary conveniences for 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. 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. 16.02 Materials and supplies utilized in the final product that will be turned over to the OWNER shall be new and of good quality. Upon request,the CONTRACTOR shall supply proof of quality and manufacturer. [� 16.03 No refurbished,reconditioned or other previously utilized materials or supplies will be used without the signed authorization of OWNER. J 16.04 Where the product is to be turned over to the OWNER, the CONTRACTOR may utilize substitutes of equal quality and function as provided for in the specifications. _ 16.05 The OWNER shall have full and final decision over the use of substitute materials and supplies. ;U 16.06 The CONTRACTOR shall certify to the OWNER that all materials installed are free from asbestos containing material. I_J 17. OBSERVATION, INSPECTIONS, TESTS. 7 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 an �__ � p q � Y keys or Y information necessary for the OWNER or the OWNER'S REPRESENTATIVE to LJ 7 -19- Updated 04212008 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 LJ 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 give ample notice as to the time each part of the work will be ready for such i_+ observation. 17.03 The OWNER or the OWNER'S REPRESENTATIVE may reject anv 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 oversight� through r g g o 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 CONTRACTOR from its obligation to perform the work in accordance with the requirements of the Contract Documents. L_ 17.04 The OWNER or the OWNER'S REPRESENTATIVE upon approval of the OWNER x�., 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 b .._. p q Y 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. _J 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 immediately under any one or more of the following conditions: -20- i Updated O4212008 S ' LJ 7 I �- 18.01.01 the work may be ordered stopped immediately if in the judgment of Y pp Y 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 Y work is being performed so as to create a hazardous condition. 18.02 Such stoppage or suspension shall neither invalidate any of the CONTRACTOR's performance obligations under this Agreement, including time of performance and deadlines therefor,nor will extra charge be allowed the CONTRACTOR by reason of such stoppage or suspension. 19. REJECTED WORK. 19.01 The OWNER or the OWNER'S REPRESENTATIVE, in its discretion, may reject 3 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. 79 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: _J 19.02.01 At the option of the OWNER,the CONTRACTOR may be required 79 to remedy such work so that it shall be in full compliance with this Agreement. As soon as possible but not later than seven(7)calendar -21- Updated 04212008 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. f 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 Agreement, an equitable deduction for the 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. J 20. SUBCONTRACTORS. Lj 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. LJ 20.02 All subcontractors must be approved by the OWNER'S REPRESENTATIVE prior to performing any work on the Project. 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. 20.06 Nothing contained herein shall create relations between any subcontractor and the L i OWNER or the OWNER'S REPRESENTATIVE. 7 -22- L Updated 04212008 20.07 RESPONSIBILITY FOR PAYMENT OF SUBCONTRACTO RS. The CONTRACTOR shall be solely and exclusively responsible for compensating any of the CONTRACTOR'S employees, subcontractors,materialmen and/or suppliers of �- any type or nature whatsoever. The CONTRACTOR shall further be exclusively responsible for ensuring that no claims or liens of any type are filed against any property owned by the OWNER arising out of or incidental to the performance of any services performed pursuant to this Agreement. In the event a statutory lien notice is sent to the OWNER or the OWNER'S REPRESENTATIVE, the t 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 CONTRACTOR defaults in the provision of the bond the OWNER may withhold such funds as are necessary to ensure the payment of such claim until litigation determines to whom payment shall be made. 21. POSSESSION AND USE OF COMPLETED PORTIONS. 71 The OWNER shall have the right to take possession of and use an completed or partially Y p p Y 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. 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 p y payments due under this Agreement or that may become due under this Agreement until the necessary permits, licenses and/or certificates are procured and delivered. 77 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 .f resulting therefrom, which may appear after final acceptance of the work. r 7M -23- Updated 04212008 24. WARRANTY. Upon acceptance of the work by the OWNER,the CONTRACTOR warrants for 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---� gr' approved in writing by 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. 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 warranty is specified for individual products,work or materials, the longer warranty shall govern. 24.05 This warranty obligation shall be covered by any performance or payment bonds j tendered in Agreement. compliance with this A p g 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. 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. Li The cost of the work shall be paid by the CONTRACTOR. -24- L.+ Updated 04212008 ,I i f � i MIT 7 L 25.03 The cost of all materials, arts, labor, transportation, supervision, special p p p p instruments, and supplies required for replacement or repair of parts and for LJ correction of defects, 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 that are part of this project, whether or not a warranty is specified in the individual section prescribing that particular aspect of the work. 26. LIQUIDATED DAMAGES. 26.01 It is expressly understood and agreed by the parties that time is of the essence to this Agreement and that the date set for the final completion of the work described herein I 1 u is an essential condition of this Agreement. It is further understood and agreed that the date for final completion of the work is reasonable dates for the completion of the i project, taking into consideration all conditions, including, but not limited to, the u average climatic change and conditions and usual industrial conditions prevailing in p g this locality. 26.02 If the CONTRACTOR should neglect, fail, or refuse to complete the work required for final completion within the date specified in this Agreement, or any proper xr extension that is granted in writing by the OWNER,then the CONTRACTOR hereby agrees, as a part of the consideration for the awardingAgreement,of this that the 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. f LJ 26.03 The amount of liquidated damages for the CONTRACTOR's failure to meet the 71, deadline for final completion is fixed and agreed on by the CONTRACTOR because of the impracticability and extreme difficulty in fixing and ascertaining actual damages that the OWNER would in such an event sustain. The amounts to be :., charged are agreed to be the damages that the OWNER would sustain and may,at the LJ option of the OWNER, be retained from either current progress payment or from final payment. y1 l� 17- -2S- I-J Updated 04212008 i 7 J 27. WITHHOLD PAYMENT AND CONTRACTOR'S PAYMENT. 27.01 Regardless of any bond, the OWNER'S REPRESENTATIVE may, on account of subsequently y s quently discovered evidence,withhold payment or nullify the whole or art of fy p any acceptance or certificate to such extent as may be necessary to protect the OWNER from loss on account of: ! 1. Defective work or work that is not in strict accordance with the terms of this 0 Agreement, the Specifications, or the other Contract Documents; a 2. Claims filed or reasonable evidence indicating probable filing of claims, as determined at the sole discretion of the OWNER; 3. Failure of the CONTRACTOR to make prompt payments to subcontractors or for material or labor or materialmen; I 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 OVYJNER, that the work can be completed for the unpaid balance o p p f 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; a 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 LA, made by the OWNER to correct damage to other property; y; 9. Claims filed or reasonable evidence as determined at the sole discretion of r..,; the OWNER indicating unremedied damage to property owned b(^� g p p y y the OWNER; or j...., 10. Other amounts authorized under this Agreement. � 3 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 g p y due within 15 days after receipt of an invoice therefore unless expressly stated otherwise. p Y Payments required by CONTRACTOR and/or its surety,which are not timely made, shall accrue interest at a rate of one percent per month. -26- Updated 04212008 F 711. Ll I 28. CHARGES FOR INJURY OR REPAIR. 28.01 The CONTRACTOR shall be liable and responsible for any damages incurred or repairs made necessary by reason of its work and/or caused by it. Repairs of any kind required by the OWNER or the OWNER'S REPRESENTATIVE will be made and charged to the CONTRACTOR by the OWNER. 28.02 The CONTRACTOR shall take the necessary precautions to protect any areas adjacent to its work. 28.03 The work specified consists of all work,materials and labor required by the OWNER 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 -LiI accordance with the "Manual of Accident Prevention in Construction" of the Associated General Contractors of America except where incompatible with Federal, r State, or Municipal laws or regulations. The CONTRACTOR shall provide such j 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. 79 ` 29. PAYMENT OF EMPLOYEES AND FOR MATERIALS. .J 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 NO/100 DOLLARS($60.00)for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in this Contract. Li _27_ Li Updated 04212008 l ! 29.02 The CONTRACTOR and each of the subcontractors shall a each of its employees pY 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 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. ft 30. INSURANCE. 30.01 Throughout the term of this Agreement,the CONTRACTOR at its own expense shall purchase,maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the CONTRACTOR'S operations and/or performance of the work under this Agreement,whether such operations and/or performance be by the CONTRACTOR, its agents, representatives, volunteers, employees or subcontractors or by anyone ! directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. 30.02 The CONTRACTOR's insurance coverage shall be primary insurance with respect to p the OWNER and his volunteers and agents. Any insurance or self-insurance maintained by the OWNER,its officials,employees or volunteers 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. r 30.03 The following is a list of standard insurance policies along with their respective p minimum coverage amounts required in this contract: (1) Workers' Compensation Policy ■ Statutory amounts required by Texas law. ■ Employer's Liability: $500,000 ' (2) Commercial General Liabili Polic Liability Y ■ General aggregate of$1,000,000 ■ Owners' and Contractors' Protective Liability of$500,000 ■Products and Completed Operations of$1,000,000 ■ Personal and Advertising Injury of$1,000,000 ■ Minimum of$500,000 per occurrence -28- Updated 04212008 .I 77 7.::. i ■ Coverage shall be at least as broad as ISO CG 00 01 10 93. ■ No coverage exclusions shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 77 (3) Automobile Liability Policy ■ Combined single limits of$1,000,000 ■ Coverage for"Any Auto." 71 (4) Installation Floater ■ Limit: 100% of insurable value of the equipment installed. ■ City of Baytown will be named loss-payee. 30.04 Prior to or upon the execution of this Agreement and before commencing any of the 7M work, CONTRACTOR shall file with the OWNER valid Certificates of Insurance and endorsements acceptable to the OWNER. Such Certificates shall contain a i 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. �i The CONTRACTOR shall also file with the OWNER valid Certificates of Insurance covering all Subcontractors. The OWNER reserves the right to reject any bid that does not meet the minimum insurance requirements as outlined above. 30.05 The following are general requirements, which are applicable to all policies: Li 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. 30.05. 2 0 Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. u 30.05.03 Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis. 7 30.05.04 Claims-made policies will not be accepted. e -29- �.i Updated 04212008 7 i MIT L__,1 7 30.05.05 The OWNER,its officials,employees and volunteers,are to be added as"Additional Insureds"to all liability policies. The coverage shall contain no special limitation on the scope of protection afforded to the OWNER, its officials, employees or volunteers. Y 30.05.06 A waiver of subrogation in favor of the OWNER with respect to Workers' Compensation Insurance must be included. 71 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 to the OWNER. 30.06 Certificates of Insurance shall be prepared and executed b the insurance comp,an or -� Y p Y its authorized agent, and shall contain the following provisions and warranties: 3 0.06.01 All endorsements and insurance coverages g according to requirements and instructions contained herein. 79 30.06.02 The form of the notice of cancellation t ermination, or change in coverage provisions to the OWNER'S REPRESENTATIVE. 77 3 0.06.03 Original endorsements affecting coverage required '__ i g g q d by this Section 30 shall be furnished with the certificates of insurance. 30.06.04 Upon request of and without cost to the OWNER or t 'he OWNER S REPRESENTATIVE, insurance policies shall be p furnished to OWNER. J 30.06.05 Upon request of and wit p q bout cost to the OWNER, loss runs (Claims 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 Hof the Texas Administrative Code which is in 'incorporated herein as Exhibit B for all intents and -' purposes. In addition thereto,the contractor shall perform and maintain compliance ompliance with all provisions of Texas Worker's Compensation Commission Rules, Rule 110.110,(c 2 . However,it is ex ( ) � expressly y understood and agreed that in the event of -� a conflict between the provisions of this Section 30 and the provision con tained ntalned in Exhibit"B,"the more stringent shall control. 79 —J 71 -30- Updated 04212008 _J jj i L x. 3 1. PERFORMANCE AND PAYMENT BONDS. ICI 31.01 The CONTRACTOR shall furnish separate performance and payment bonds,each in the sum of one hundred percent(100%) of the total contract in such forms as p price, 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. 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 completion of the work and shall be extended for any warranty work to cover the L_j 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 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. 31.04 The CONTRACTOR shall make such changes and alterations as the OWNER may f 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 I alterations diminish the quantity of the work to be done,they shall not constitute the basis for any claim for damages or anticipated profits on the work that may be 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 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. f 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: -31- Updated 04212008 l_� E 79 i 33.01.01 The CONTRACTOR shall perform and require all subcontractors to 79 perform the work in accordance with applicable laws, codes, ordinances, and regulations of the State of Texas and the United States and in compliance with OSHA and other laws as they may apply. In the event an of the conditions of the specifications violate the code for any industry, then such code conditions shall prevail. 79 33.01.02 The CONTRACTOR shall follow all applicable state and federal laws, J municipal ordinances and guidelines concerning soil erosion and sediment control throughout the project and warranty period. 79 33.01.03 The CONTRACTOR agrees to abide by all federal, state or local regulations relative to equal opportunity to all persons, without discrimination as to race,color,creed,religion,national origin,sex,marital status, age and status with regard to public assistance or disability. 79 33.02 If the CONTRACTOR observes that the plans and specifications are at variance with applicable laws,rules and/or regulations,the CONTRACTOR shall promptly notify the OWNER'S REPRESENTATIVE in writing. If the CONTRACTOR performs 79 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 _J costs arising therefrom. 79 34. SAFETY PRECAUTIONS. 71 34.01 Safety precautions at the site are a part of the construction techniques and processes for which the CONTRACTOR shall be solely responsible. The CONTRACTOR is ' solely responsible for handling and use of hazardous materials or waste and 79 informing employees of any such hazardous materials or waste. ` 34.02 The CONTRACTOR has the sole obligation to protect or warn an individual of . 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 rime i gar as prime during construction. ,, 34.03.01 During normal construction,the CONTRACTOR shall not hinder or inconvenience travel of streets or intersecting alleys for more than 79 two blocks at any one time. The CONTRACTOR shall use warning signs as necessary to adequately protect the traffic. If the OWNER or 79 -32- Updated 04212008 other appropriate entity approves a street closure_ pp , the CONTRACTOR shall furnish and maintain at each end of the closed section, at all intersecting streets within the section, and in all I j 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 required operation that will close a street or streets until the re._� q 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 E 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 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 .tg _. 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 OWNERS 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 bo th oth the moving traffic and the contractor's operations. The flagmen shall wear an orange fluorescent vest over their normal work clothes. -33- i Updated 04212008 c i i I 34.04 The CONTRACTOR shall be held responsible for all damages ages to property,personal injuries and/or death due to failure to use safet .devices of an y ny type or nature that may be required to protect or warn any individual of potential hazards created b ... y the performance of the work; and when any property damage is incurred the damaged g � g portion shall immediately be replaced or compensated for by the CONTRACTOR at its own cost and expense. 34.05 The CONTRACTOR shall indemnif hold harmless and y� defend the OWNER its officers a ents and em to ees includi ' � p v , ng the OWNER'S REPR.ESENTA •TIVE hereinafter in this subsection collectively referred to as "OWNER" from an ty liabili of whatev er nature caused bv the CONTRACTOR'S failu Li re to comply with aviDlicable federal state or local reLyulations that touch upon n or concern the maintenance of a safe and Protected working environment and the safe use and o eration of 'p machinery and equipment in that workiny environment no matter where faul t or res onsibilit lies. Such indemnityshall indemnif and Protect the 7 OWNER from the � i conse uences of the OVVNER S own ne l ence when that nediLrence is the concurrinLy cause of the ur in' death 1 y, or � � dama es and from the conse uences of the CONTRACTOR'S '-i oint or sole ne li ence. It is the expressed intention of the Parties hereto both the CONTRACTOR and the OWNER that the indem 'ni rovided for in this ParaLyraph is an indemnitv bv the Protect and defend the OWNER V'�NER .� CONTRACTOR to indemniffrom the consequences of the OWNER'S ',� own nc�ligcncc where that ne li ence is a concurring cause of the injury, death or dama a and from the CONTRACTOR's own negligence where that ne li ence is the sole or concurrin cause of the in'g fury, death or damage. Furthermore the indemnitv Provided for in this ParaLyraph shall have no application to anv claim loss dama a cause of ' � , action, suit and liability where the in death or dama e results from the sole ne-eliLyence of the OWNER unmixed with the fault of any other person or entity. I ` L -34- Updated 04212008 i i !II 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 liabilitv of every kind includin all LJ expenses of liti ation court costs and a ' p g ttorneys fees for injury to or death of any person,or for damage to any property, arising out of or t in connection with the work done bv the CONTRACTOR under this Contract, where such injuries, death or damages are caused by the sole or ioint negligence of the CONTRACTOR or the i oint Li negligence of the OWNER and any other person or entity. It is the expressed intention of the parties hereto, both the CONTRACTOR and the OWNER that the indemnity provided for in this ra ara h g p is an indemni b-v the CONTRACTOR to indemnify., protect and defend the OWNER from the consequences of the OWNER'S own negligence,where that ne li ence is a concurring cause of the iniury, death or dama a and from the conse uences of the CONTRACTOR'S own ne li ence where that ne li ence is the sole i ' or concurrinLy cause of the iniury,death or dama e. Furthermore the indemnity provided for in this paragraph shall have no a lication to the OWNER for an claim loss dama a cause of �_ action, suit and liability where the ini ury, death or damage results from the sole negligence of the OWNER, unmixed with the fault of any other person or entity. 35.02 The CONTRACTOR shall indemnify, protect and defend the OWNER from the consequences of the OWNER'S concurrent neligence i g n accordance with Section 35.01 for all work done by the CONTRACTOR includin but not limitedAo,the followin s ecific g p instances: u ILLJ -35- Updated 04212008 f { iI{ 7 35.02.01 In the event the OWNER is damned due to the ac t, omission, mistake, fault or default of the CONTRACTOR4 then the CONTRACTOR shall ---� indemn ify and hold the OWNER AND THE OWNER'S REPRESENTATIVE harmless for such damaLye. 35,02,02 The CONTRACTOR shall indemnifv and hold the OWNER harmless from an claims of v material -_� suppliers, mechanics laborers or other her subcontractors. 35,02,03 The CONTRACTOR shall indemnifv and hold the OWNER harmless from any and all in to or claims of ad'acent Property owners caused -by the _ CONTRACTOR it s agents, employees and representatives. 35.02,04 The CONTRACTOR shall be responsible for an damage to the floors, walls, etc., caused by the CONTRACTORA, its aLyents, employees and representatives or their equipment during installation. f - 35,02.05 The CONTRACTOR shall also be responsible for all subcontractors hired by it. 35.03 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. 35.04 The indemnities provided for herein includine, but not limited to those contained in articles 34, 35 and 37, will survive the expiration or termination of this A reement. -36- Updated 04212008 1 k i i 1ll 36. RELEASE. By this Agreement, the OWNER does not consent to litigation and expressly revokes any 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 This release includes the cost of parties). defense of any claim and any loss of or damage to property(whether property of the parties or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the CONTRACTOR'S work to be performed under p 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. f The CONTRACTOR shall pay all royalties and license fees,and shall provide for the use of any design, device, material or process covered by letters patent or copyright by suitable legal agreement with the patentee or owner.The CONTRACTOR warrants that the products herebv incorporated into the Proiect and/or an product v� used in association with the PrQject does not infrin e upon or violate any patent, l copyri�ht trade secret or anv other Proprietarl right of anv third part; in the event of anv claim bv anv third 12artv a ainst the OWNER or its officers aLrents, and/or employees, includiny, the OWNER'S REPRESENTATIVE hereinafter in this section collectiveiv referred to as "OWNER" the OWNER shall notifv 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 a ainst anv and all claims darnaLyes, losses � causes of action suits and liabili of ever kind includin but not limited f d to all expenses of litigation, court cost and attorne s' fees for inuur death or damage to anv third Partv arisiny out of or in connection with 1 theProduct(s) used in the performance of this Contract and regardless of whether such claim bv and anv resulting in Wry, death or darnaLre to third parties is caused in part by the acts and/or omissions of the OWNER. It is the expressed intention of the parties hereto both the CONTRACTOR and the OWNER that the indernnitv provided for in this iDaragrnh is an indemni by the CONTRACTOR to indemnify, protect and defend the _37_ Updated 04212008 i E OWNER i from the consequences of the OWNER'S acts and/or omissions where the OWNER'S acts and/or omissions are the concurrin cause of the infringement upon or violation r t tra de anV patent copy secret or other •proprietary right and any resulting injury, death, or dama a of anv third Partv in connection with the Products provided, incorporated, or used in the ro•ect under this Contract an d/or 0i) from the conse uences of the CONTRACTOR'S acts and/or omissions where the CONTRACTOR'S acts and/or omissions are the sole or concurring cause of the infrin ement upon or violation of an ate '- g p v patent,copyright,trade secret or other Proprietary riLyht and anv resulting iplurv, death or dama a of any third Partv in connection with the Products ro idC d,p p V LA incorporated,or used in the proJect under this Contract. Furthermore the indemnitv Provided for in this paraLyraph shall have no application to the OWNER for any-claim loss d • • , amage, cause of action, suit, and liability where the infringement upon or violation of any patent, co ri ht trade secret or other proprietary rights and resulting iniury, death or dama e 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. d 38. ABANDONMENT. � 38.01 In case the CONTRACTOR should abandon fail or refuse to resume work within hin ten (10) days after written notification from the OWNER or the OWNER'S REPRESENTATIVE, or if the CONTRACTOR fails to comply with the orders of E - the OWNER or the OWNER'S REPRESENTATIVE, when such orders are consistent with the Contract Docu ments,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 CONTRACTOR. 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 work, may be held for use on the work by the OWNER or the surety on the performance bond, or another contractor in completion of the work; and the CONTRACTOR shall not receive any rental or credit therefor, it being understood ( that the use of such equipment and materials will ultimately y reduce the cost to complete the work and be reflected in the final settlement. -38- lit Updated 04212008 I r 4 J 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 CONTR.ACTOR's obligation under 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 .Y OWNER. If the OWNER elects to complete the work itself or by others,pursuant to the foregoing, then the CONTRACTOR will reimburse the OVYJNER 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 J ry ui q p e d 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 f terminated work (including, but not limited to, the rotection of the OWNER'S Jp 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 r termination; u (b) Place no further orders or subcontracts for services,equipment, or material, except as may be necessary for completion of such portion of the work as is not terminated; (c) Immediately terminate all orders and subcontracts to the extent that they relate to the performance of the work terminated by the notice of termination; i -39- Updated 04212008 { i ; LJ rq -.i L (d) Assign to the OWNER, in the manner and to the extent directed by it, all of the right, title and interest of the CONTRACTOR under the orders or 7 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 pp g claims arising out of such termination, orders and subcontracts; (f) Deliver to the OATNER, when directed by the OWNER, all documents and all property, which if the work had been completed, the CONTRACTOR would have been required to account for or deliver to the OWNER, and transfer title to such property to the OWNER to the extent not already transferred; 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. E 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 to carrying out the unterminated portion or taking close-out measures. 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 r 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; -40- Updated 04212008 4 41.01.04 If within five (5) calendar days after written notice thereof from the 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 7 reimbursable costs incurred prior to the effective date of the termination and shall no t be entitled to receive any further progress payment he reunder 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 p g 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 p y 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 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. 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 and shall not be entitled to receive any further progress payment hereunder and shall be further subject to any claim the OWNER may have against the CONTRACTOR under other provisions of this Agreement or as a matter of law, including the refund of any overpayment of reimbursable costs and/or progress payment. -41- l Updated 04212008 i i 1 Li 43. COMPLETION AFTER ABANDONMENT OR TERMINATION. 43.01 In the event that the CONTRACTOR has abandoned the projector 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 LJ AT ITS OPTION provide for completion of the work in either of the following elective manners: i 43.01.01 The OWNER may employ such force of men and use such machinery,equipment,tools,materials,and supplies as said OWNER f 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 may paid by the OWNER out of such monies as or that may y be due, Y thereafter at any time become due to the CONTRACTOR under and by virtue of this Agreement. In case such expense is less than the sum which would have been payable under this contract if the same e had been completed by the CONTRACTOR, then said CONTRACTOR and/or its surety hereby waives any and all f privileges,rights, and claims to receive the difference. In case such expense is greater than the sum which would have been payable under this contract, if the same had been completed by said surety CONTRACTOR, then the CONTRACTOR and/or its sure shall i� 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 b p q Y 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 hereby waives any and all privileges, rights, and claims to such excess. .i -42- l! J Updated 04212008 I f I Imo_: 43.02 In the event of abandonment by the CONTRACTOR, the CONTRACTOR shall assign to the OWNER, in the manner and to the extent directed by the OWNER,all of the right,title,and interest of the CONTRACTOR in and to any and all materials located on the property and any subcontracts for work to be performed on the property; in which case the OWNER shall have the right to settle or pay all claims arising out of the termination of such orders and subcontracts. 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 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: 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 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 Ll 44.01.03 If the CONTRACTOR commits a substantial default under any of the terms, provisions, conditions, or covenants contained in this Agreement. 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. f 7J,i 43- Updated 04212008 t�J 7 46. ENTIRE AGREEMENT. It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements,arrangements or understandings�' � g g 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, Li 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. C r, 47. AMENDMENT. No amendments to this Agreement shall be effective and binding Y until the are reduced to writing and signed by duly authorized representatives of both parties. 48. TEXAS LAW. t This Agreement has been g made under and shall be governed by the laws of the State of Texas. 49. PLACE OF PERFORMANCE. The place of making and the place of performance for all shall be Baytown,Harris purposes Y s County, Texas. 50. NON-WAIVER. 50.01 Failure of any party,at any time,to enforce a provision of this Agreement shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement or part hereof or the right of the OWNER 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 Li 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. 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 -44- Updated 04212008 f U 51. HEADINGS. The article headings are used in this Agreement for convenience and reference purposes only 4 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. i 52. GENDER AND NUMBER. Words of any gender used in this Agreement shall be held and construed to include any other gender,and words in the singular number shall be held to include the plural,and vice versa, unless context requires otherwise. 53. CONSTRUCTION OF AGREEMENT. E The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. C 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 E empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations and/or business entities. 55. AGREEMENT READ. The parties acknowledge that they have read,understand and intend to be bound by m 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. 1 -45- Updated 04212008 i i i i ' 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. This Agreement shall inure to the benefit of and be binding upon the CONTRACTOR and its ' successors and assigns. 58. MULTIPLE ORIGINALS. ' It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. ' IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple p g p copies,each of which shall be deemed to an on al but all of which shall constitute but one and II' the same Agreement on the day of ,2008,the date of execution by the City Manager of the City of Baytown. ' i ro ( 0 11 C. (Co n Name) i (Si nature) (Printed Name) Vi(1, Idery' (Title) ' -46- Updated 04212008 CITY F'B71, GARkS BRUMBAC ,City Manager EST: �� A-11 : KA T IE DARN LL, City rk ; APPROVED AS TO FORM: ACIO RAMIREZ, SR., Ci ttorney STATE OF TEXAS § § COUNTY OF HARRIS § ' Before me on this day personally pp ersonall appeared Glen 0%,11AW ,in his/her capacity as �1(,GMoid of TfOW (D�e L,-L-k. , on behalf of such corporation 9r other business entity, ✓ known tome; ' proved to me on the oath of ; or proved to me through his/her current {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} ' (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 11*day of ',f�, ,2008. SHARI HUGHES�• NOTARY PUBLIC,STATE OFTEXAS Notary Public in and for the State of MY COMMISSION EXPIRES Texas 0510312012 My commission expires: -j- 0 2i -47- Updated 04212008 Cy"Y1 yf?�nl'Ij'• r F�!rG�ll art. 'lli�II�•j•� +g EXHIBIT A (WAGE RATES) yAy .:II:;III.77I11M li�hill 'il�jllll '�I y •r/llll J?I�IJ 'I WAIS Document Retrieval Page 1 of 3 GENERAL DECISION: TX20080104 02/08/2008 TX104 L Date: February 8, 2008 General Decision Number: TX20080104 02/08/2008 Lti J Superseded General Decision Number: TX20070106 State: Texas Construction Types: Heavy Tunnel Counties: Bell, Bexar, Bowie, Brazoria, Brazos, Cameron, LJ Collin, Comal, Cor ell Dallas Cory ell, Denton, Ector, E1 Paso, Ellis, Fort Bend, Galveston, Grayson, Gregg, Guadalupe, Hardin, Harris, Harrison, Hays, Hidalgo, Jefferson, Johnson, Kaufman, L _ Liberty, Lubbock, McLennan, Midland, Montgomery, Nueces, Orange, Parker, Potter, Randall, Rockwall, San Patricio, Smith, Tarrant, Taylor, Tom Green, Travis, Victoria, Waller, Webb, Wichita and Williamson Counties in Texas. TUNNEL CONSTRUCTION PROJECTS (BORED, 48" IN DIAMETER OR MORE) ;.l Modification Number Publication Date 0 02/08/2008 SUTX1992-010 01/15/1992 Rates Fringes { Carpenter (Including Form -� Setting - Wood Forms ONLY) . . . .$ 10. 67 . 92 79 Electrician. . . . . . . . . . . . . . . . . . . .$ 12.21 .92 �i Ironworker, Reinforcing (Shaft Collar & Surface ONLY) . . . . . . . . . . . . . . . . . . . . . . . . . .$ 12.03 4.09 Laborers: Miner. . . . . . . . . . . . . . . . . . . . . . .$ 11.77 1.28 Surface. . . . . . . . . . . . . . . . . . . . .$ 7 .53 Tunnel. . . . . . . . . . . . . . . . . . . . . . $ 9.24 Mechanic (Maintenance and repair on trucks and power equipment) . . . . . . . . . . . . . . . . . . . . .$ 11.77 .92 79 Oiler (Services trucks and power equipment) . . . . . . . . . . . . . . . $ 9. 69 1.50 Power equipment operators: Backhoe Operator (1 1/2 CY or more) . . . . . . . . . . . . . . . . .$ 11.40 1.50 Backhoe Operator (Less than 1 1/2 CY) . . . . . . . . . . . . . .$ 10. 68 -t Bulldozer. . . . . . . . . . . . . . . . . . .$ 13.00 Crane (1 1/2 CY or more) . . . . $ 12. 82 1.50 I Crane (Less than 1 1/2 - CY) . . . . . . . . . . . . . . . . . . . . . . . . . $ 11. 89 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 7 WAIS Document Retrieval Pa ge 2 of 3 Front End Loader (2 1/2 j CY or more) . . . . . . . . . . . . . . . . .$ 12. 17 Front End Loader (less than 2 1/2 CY) . . . . . . . . . . . . . .$ 10. 16 Locomotive Operator. . . . . . . . .$ 9. 00 1.50 7 Road Head Operator. . . . . . . . . .$ 14. 12 1.21 Tunnel/Boring Machine Operator. . . . . . . . . . . . . . . . . . . .$ 13. 61 ._a Truck drivers: Semi. . . . . . . . . . . . . . . . . . . . . . . . $ 6.50 1.05 Single Axle, Light. . . . . . . . . .$ 7.55 i ! Welder. . . . . . . . . . . . . . . . . . . . . . . . .$ 11.58 LABORER CLASSIFICATIONS SURFACE - Air Tool Operator (Surface Only) , Batch Plant 7 Laborer, Changehouseman, Dumpman (Outside, Tool Man) . TUNNEL - Air Tool Operator (Tunnel Only) , Bull Gang (Muckers/Trackmen) , Cabletender, Concrete Crew (Rodders/Spreaders) , Concrete Finisher in Tunnel, Concrete 7 Screed Man, Conveyor Operator, Headerman, High Pressure Nozzleman, Hoist Operator, Jumbo Man, Loading/Unloading Agitator Cars, Nipper, Nozzleman-Slice Line, Pot Tender, r Primer Man, Reboundman, Shaft/Raise Work (Below Ground) , Shotcrete Man, Slusher Operator, Steel Form Raiser s/Setters, (metal forms only) Swamper (Brakeman/Switchman) , Timberman, Troweling/Grout Machine Operator, Tugger, Vibratorman, Jack Hammer, Pneumatic Tools (Except Driller) , Vibratorman, Pavement Breakers. MINER - Drill Doctor, Bit Sharpener, Bit Grinder, Rebar (Tunnel Only) , Jack Leg Miner, Shaft Drill Operator ---------------------------------------------------------------- WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. � j Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) ------------------------------------- I 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 _1 prevailing. ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS 1. ) Has there been an initial decision in the matter? This can be. Li http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 7 WAIS Document Retrieval Page 3 of 3 * an existingpublished wage p determination --` * a survey underlying e determination Y g a wage * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including 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 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 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 a 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. Washington, DC 20210 4. ) All decisions by the Administrative Review Board are final. L 1 END OF GENERAL DECISION .i http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Pagel of 3 GENERAL DECISION: TX20080096 02/08/2008 TX96 Date: February 8, 2008 I General Decision Number: TX20080096 02/08/2008 Superseded General Decision Number: TX20070098 State: Texas Construction Type: Heavy Dredging Counties: Texas Statewide. DREDGING PROJECTS ALONG THE TEXAS GULF COAST AREA INCLUDING ALL PUBLIC CHANNELS, HARBORS, RIVERS, TRIBUTARIES AND THE GULF INTRACOASTAL WATERWAYS Modification Number Publication Date 0 02/08/2008 * SUTX1994-001 01/18/1994 Rates Fringes Derrick Operator. . . . . . . . . . . . . . . . .$ 5. 85 Dozer Operator. . . . . . . . . . . . . . . . . . .$ 5. 85 Dredge 16" and Over DECKHAND. . . . . . . . . . . . . . . . . . . .$ 5.85 DREDGE TENDER OPERATOR. . . . . .$ 5. 85 FIREMAN. . . . . . . . . . . . . . . . . . . . . $ 5.85 FIRST ASSISTANT ENGINEER. . . .$ 6. 06 (_ LEVERMAN. . . . . . . . . . . . . . . . . . . .$ 6. 10 OILER. . . . . . . . . . . . . . . . . . . . . . .$ 5. 85 SECOND ASSISTANT ENGINEER. . .$ 5.85 SHOREMAN. . . . . . . . . . . . . . . . . . . .$ 5. 85 7-j THIRD ASSISTANT ENGINEER. . . .$ 5.85 TRUCK DRIVER. . . . . . . . . . . . . . . .$ 5. 85 r WELDER. . . . . . . . . . . . . . . . . . . . . .$ 5.85 I� Dredge Under 16" DECKHAND. . . . . . . . . . . . . . . . . . . .$ 5. 85 DREDGE TENDER OPERATOR, . . . . .$ 5. 85 LEVERMAN. . . . . . . . . . . . . . . . . . . .$ 5.85 OILER. . . . . . . . . . . . . . o - - - oo . . .$ 5. 85 WELDER, . . . . . . . 00 . . . . . . . 0 . . . .$ 5.85 Hydraulic Dredging FIRST COOK. , . . . . . . . . . o . . . . o .$ 5.85 HANDYMAN. . . . . . . . . . . . . . . . . . . .$ 5. 85 JANITOR - CABIN PERSON. . . . . .$ 5. 85 MESS PERSON. , . . . . . . . . . . . . . o .$ 5.85 SECOND COOK. . . . . . . . . . . . . . . . .$ 5.85 Marsh Buggy Dragline OILER. . . . . . . . . . . 0 . . 0 . . . . * * * *$ 6.33 OPERATOR. . . . . . . . . 0 . . 000 . . * o . $ 6.70 L_; ---------------------------------------------------------------- 7 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 2 of 3 WELDERS - Receive rate prescribed for craft performing g operation to which welding is incidental. " Unlisted classifications needed for work not included within `---J the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii) ) . -------------------------------------------------------- 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. ---------------------------------------------------------------- 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 L,J On survey related matters, initial contact, including 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 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. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the 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 7 j The request should be accompanied by a full statement of the { http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 3 of 3 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. Washington, DC 20210 -A 4 . ) All decisions by the Administrative Review Board are final.a . END OF GENERAL DECISION i..s i f_J i I �� http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 1 of 4 GENERAL DECISION: TX20080080 02/08/2008 TX80 Date: February 8, 2008 71 General Decision Number: TX20080080 02/08/2008 Superseded General Decision Number: TX20070082 State: Texas Construction Types: Heavy 71 Counties: Brazoria, Fort Bend, Galveston, Harris, Matagorda, Montgomery, Waller and Wharton Counties in Texas. BRAZORIA, FORT BEND, GALVESTON, HARRIS, MONTOGOMERY, AND WALLER ._ COUNTIES: FLOOD CONTROL PROJECTS ONLY, (Does not Include any Water & Sewer Line work; Sewage Collection and Disposal Lines; 77 Sewers (Sanitary Storm, etc. ) , or Shoreline Maintenance Water Mains and Water Supply Lines) . MATAGORDA & WHARTON COUNTIES ONLY: 71 FLOOD CONTROL AND WATER AND SEWER LINES, including: Breakwaters, Channels, Channel Cut-offs, Dikes, Drainage Projects, Flood Control Projects, Irrigation Projects, Jetties, 79 Land Drainage (not incidental to other construction) , Land Leveling (not incidental to other construction) , Land Reclamation, Levees, Pipelines, Ponds, Pumping Stations (prefabricated drop- in not building) , Revetments, Sewage Collection and Disposal Lines, Sewers (Sanitary, Storm, etc. ) , Shoreline Maintenance Water Mains and Water Supply Lines (not incidental to building) . Modification Number Publication Date L_A 0 02/08/2008 SUTX1998-009 03/26/1998 Rates Fringes Mill- Asphalt Distributor. . . . . . . . . . . .$ 9. 47 �.._� Asphalt Paving Machine. . . . . . . . .$ 10.05 Asphalt Raker. . . . . . . . . . . . . . . . . .$ 8.28 Asphalt Shoveler. . . . . . . . . . . . . . .$ 7.45 l � Batching Plant Weigher. . . . . . . . .$ 11. 11 --� Broom or Sweeper Operator. . . . . .$ 8.01 Bulldozer. . . . . . . . . . . . . . . . . . . . . .$ 9. 91 Carpenter. . . . . . . . . . . . . . . . . . . . . .$ 10.35 Concrete Curbing Mach. . . . . . . . . .$ 8. 80 Concrete Finisher-Paving. . . . . . .$ 9. 87 Concrete Finisher-Structures. . .$ 9. 86 Concrete Finishing Machine. . . . .$ 11.79 � j Concrete Joint Sealer. . . . . . . . . .$ 10.50 Concrete Paving Float. . . . . . . . . .$ 9.30 Concrete Paving Saw. . . . . . . . . . . . $ 10.01 Concrete Paving Spreader. . . . . . .$ 9.32 Concrete Rubber. . . . . . . . . . . . . . . .$ 9.00 Crane, Clamshell, Backhoe, Derrick, Dragline, Shovel. . . . . .$ 11.35 A Crusher or Screening Plant :a http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 2 of 4 r g L Operator. . . . . . . . . . . . . . . . . . . . . . . $ 11. 00 7 Electrician. . . . . . . . . . . . . . . . . . . . $ 16. 15 Flagger. . . . . . . . . . . . . . . . . . . . . . . .$ 6. 66 Form Builder (Structures) . . . . . .$ 9. 96 Form Liner - Paving & Curb. . . . . $ 9. 03 I Form Setter (PAVING/CURB) . . . . . . $ 8. 86 Form Setter-Structures. . . . . . . . .$ 9.05 Foundation Drill Operator, Crawler Mounted. . . . . . . . . . . . . . . . $ 12. 59 Foundation Drill Operator, Truck Mounted. . . . . . . . . . . . . . . . . .$ 12.73 Front End Loader. . . . . . . . . . . . . . .$ 9.29 L Labor Common. . . . . . . . . . . . . . . . . . .$ 7.45 Laborer-Utility. . . . . . . . . . . . . . . .$ 8.53 Lineperson. . . . . . . . . . . . . . . . . . . . .$ 7.50 Manhole Builder (Brick) . . . . . . . .$ 8.49 Li Mechanic. . . . . . . . . . . . . . . . . . . . . . . $ 11.38 Milling Machine Operator. . . . . . .$ 10. 43 Mixer. . . . . . . . . . . . . . . . . . . . . . . . . .$ 7 . 94 3 Motor Grader t-� FINE GRADE. . . . . . . . . . . . . . . . . .$ 11. 11 Other. . . . . . . . . . . . . . . . . . . . . . .$ 10. 67 Oiler. . . . . . . . . . . . . . . . . . . . . . . . . .$ 9.56 Painter-Structures. . . . . . . . . . . . .$ 14.00 Pavement Marking Machine. . . . . . .$ 7.45 Piledriver. . . . . . . . . . . . . . . . . . . . .$ 10. 96 l Pipe layer. . . . . . . . . . . . . . . . . . . . .$ 8.49 Reinforcing Steel Setter Paving$ 12.50 Reinforcing Steel Setter Structures. . . . . . . . . . . . . . . . . . . . .$ 12.47 Roller, Pneumatic, Self Propelled. . . . . . . . . . . . . . . . . . . . . .$ 7. 96 79 Roller, Steel Wheel Other Flatwheel or Tamping. . . . . . . . . . .$ 7. 61 Roller, Steel Wheel Plant Mix Pavements. . . . . . . . . . . . . . . . . . . . . .$ 9.25 Scraper. . . . . . . . . . . . . . . . . . . . . . . .$ 8. 69 Servicer. . . . . . . . . . . . . . . . . . . . . . .$ 9.51 Sign Erector. . . . . . . . . . . . . . . . . . .$ 10. 06 Sign Installer. . . . . . . . . . . . . . . . .$ 7 .45 Slipform Machine Operator. . . . . .$ 9.20 Spreader Box Operator. . . . . . . . . .$ 9.08 Steelworker Structural. . . . . . . . . $ 10.35 Tractor-Crawler Type. . . . . . . . . . .$ 10. 12 i Tractor-Pneumatic. . . . . . . . . . . . . .$ 8.99 L- Traveling Mixer. . . . . . . . . . . . . . . .$ 9.35 Trenching Machine, Heavy. . . . . . .$ 13.56 Trenching Machine, Light. . . . . . .$ 10.50 Truck Driver Lowboy Float. . . . . .$ 11.29 Truck Driver Single Axle Heavy.$ 8.76 Truck Driver Single Axle, Light$ 8.15 Truck Driver Tandem Axle Semi- Trailer. . . . . . . . . . . . . . . . . . . . . . . .$ 8.00 Wagon Drill, Boring Machine. . . .$ 10. 15 Welder. . . . . . . . . . . . . . . . . . . . . . . . .$ 10.43 Work Zone Barricade. . . . . . . . . . . .$ 7.45 ---------------------------------------------------------------- i:rm WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. htt ://frweb ate.access. o. ov/c i-bin/ etdoc.c i? _ - _p g gp g g g g dbname Davis Bacon&docld TX2008... 5/20/2008 J WAIS Document Retrieval Page 3 of 4 17 L Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses 7 (29CFR 5.5 (a) (1) (ii) ) . ---------------------------------------------------------------- _J 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_�r ff i` ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS 1. ) Has there been an initial decision in the matter? This can be. 7 * an existing published wage determination �_e 1 * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter 7i! * a conformance (additional classification and rate) ruling Lj On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour 7 Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the 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. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the 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 s 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 3 -' 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. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 4 of 4 3. ) If the decision of the Administrator is not favorable, an _i 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. Washington, DC 20210 4. ) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION i 7 � i t.___j 7 L. L__ 17 I 's LAi i 4 1-j http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Pagel of 3 GENERAL DECISION: TX20080056 02/08/2008 TX56 Date: February 8, 2008 General Decision Number: TX20080056 02/08/2008 i Superseded General Decision Number: TX20070058 State: Texas l Construction Type: Heavy 17 Counties. Texas Statewide. Pipeline-Off-Shore Construction Modification Number Publication Date 0 02/08/2008 * SUTX1990-021 01 31 1990 Rates Fringes Anchor Operator. . . . . . . . . . . . . . . . . .$ 10.75 . 68 Cook, Chief. . . . . . . . . . . . . . . . . . . . . .$ 7.59 .48 L=! Cook, Second. . . . . . . . . . . . . . . . . . . . .$ 6.50 .41 7 Crane Operator. . . . . . . . . . . . . . . . . . .$ 11.50 .72 L 5. 8 Deckhand. . . . . . . . . . . . . . . . . . . . . . . . .$ 5 .32 Ditches & Sideboom Operator. . . . . .$ 11.55 .73 1 Diver. . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 11. 62 1.75 Electrician ectrician. . . . . . . . . . . . . . . . . . . . . .$ 11. 40 .72 Hoist & Deck Engine, Fork Lift & Mixer Operator, Pot Tj Firemen. . . . . . . . . . . . . . . . . . . . . . . . . .$ 8.45 53 Laborer. . . . . . . . . . . . . . . . . . . . . . . . . .$ 5.85 .35 Mechanic. . . . . . . . . . . . . . . . . . . . . . . . .$ 11.40 .72 Orderly. . . . . . . . . . . . . . . . . . . . . . . . . .$ 5.85 .35 Pipeline Welder. . . . . 14 .00 .88 Rigger. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 8.50 .54 Lj Semi-Skilled Laborer. . . . . . . . 6.54 .41 Spacer. . . . . . . . . . . . . . . . . . . . . . . . . . .$ 12.25 .77 Spray Painter, Barge. . . . . . . . . . . . .$ 8.25 .52 Spray Painter, Fabrication. . . . . . .$ 10.16 .64 http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008O.. 5/20/2008 wAIS Document Retrieval Page 2 of 3 17 Stabber. . . . . . . . . . . . . . . . . . . . . . . . . .$ 7.25 .46 Stalking Machine Operator. . . . . . . .$ 9.75 . 61 I Tender. . . . . . . . . . . . . . . . . . . . . . . . . . .$ 6.22 . 93 Utility Welder. . . . . . . . . . . . . . . . . . .$ 11.00 . 69 E i_ WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. fi --------------------------------------------------- WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. r� Unlisted classifications needed for work not included within ,. the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses `-' (29CFR 5.5 (a) (1) (ii) ) . ---------------------------------------------------------------- i In the listing above, the "SU" designation means that rates listed under the identifier do not reflect collectively r bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS l. ) 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 On survey related matters, initial contact, including requests f for summaries of surveys, should be with the Wage and Hour __j Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the 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. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the 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 Lj http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 3 of 3 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 7 (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. LLj Washington, DC 20210 The request should be accompanied by a full statement of the l___1 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 no t favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board) . Write to: I+ Administrative Review Board U.S. Department of Labor ,., 200 Constitution Avenue, N.W. Washington, DC 20210 4. ) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION i� i l Li f _I 1 Ll http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 1 of 3 7 7 GENERAL DECISION: TX20080055 02/08/2008 TX55 Date: February 8, 2008 7 General Decision Number: TX20080055 02/08/2008 Superseded General Decision Number: TX20070057 State: Texas f LA Construction Types: Heavy 7 PIPELINE - ON-SHORE PIPELINE CONSTRUCTION: Counties: Texas Statewide. 7 PIPELINE - ON-SHORE CONSTRUCTION Modification Number Publication Date 0 02/08/2008 7 SUTX1997-002 01/01/1997 Rates Fringes Laborers: Drillers. . . . . . . . . . . . . . . . . . . .$ 16.08 2 .01 Hot Pay. . . . . . . . . . . . . . . . . . . . .$ 15.58 2. 01 -� Jackhammermen. . . . . . . . . . . . . . .$ 15.58 2.01 Loaders. . . . . . . . . . . o . . o . . . oo .$ 16.08 2.01 Powderman, blasters & shooters. . . . . . . . . . . . . . . . . . . .$ 16.58 2. 01 Unskilled. . . . . . . . . . . . . . . . . . .$ 15. 08 2.01 Pipefitter. . . . . . . . . . . . . . . . . . . . .$ 36.49 7.45 i� Power equipment operators: Group 1. . . . . . . . . . . . . . . . . . . . .$ 22. 95 6.05 Group 2. . . . . . . . . . . . . . . . . . . . .$ 17.54 4.80 Group 3. . . . . . . . . . . . . . . . . . . . .$ 12.37 3.55 Truck drivers: Group 1. . . . . . . . . . . . . . . . . . . . .$ 18.82 a Group 2. . . . . . . . . . . . . . . . . . . . .$ 18.82 a Group 3. . . . . . . . . . . . . . . . . . . . .$ 16.81 a Group 4. . . . . . . . . . . . . . . . . . . . .$ 16.04 a Group 5. . . . . . . . . . . . . . . . . . . . .$ 15.71 a FOOTNOTE a - $2.52 PER HOUR PLUS $41.00 PER WEEK WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. TRUCK DRIVER CLASSIFICATIONS GROUP 1 - Truck Mechanics GROUP 2 - Lowboy, rollagon or similar type equipment GROUP 3 - A-Frame, Gin pole, Tandem float (4 & 5 axle) , http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008..o 5/20/2008 WAIS Document Retrieval Page 2 of 3 79 rubber- tired tractor, fork lift, winch truck, track truck equipment, stringing truck GROUP 4 - Single axle float (3 axle) , flat bed truck (3 axle) dump truck (3 axle) , skid truck (3 axle) , hot pass (2 axle) , Flat bed truck (2 axle) dump truck (2 axle) , skid truck (2 axle) water truck (2 axle) , pick up, bus jeep, staion wagon, 79 swamp buggy or similar type equipment. __J GROUP 5 - Stringer bead & hot pass (2 axle, flat bed truck (2 axle) , dump truck (2 axle) , skid truck (2 axle) , water truck 71 (2 axle) , pick-up, bus jeep, station wagon, swamp buggy or similar type equipment. POWER EQUIPMENT OPERATOR CLASSIFICATIONS a GROUP 1 - Backhoe, dragline, clam, crane, ditching machine, L-3 side booms (except those in GROUP 2) , mechanic, operator on dredges, bulldozer, cleaning machine, coating machine, back filler, motor grader, end LLJ loader (3 yd. & over) , blending machine, wate-kote machine,equipment welder, track tractor dream Pipe GROUP 2 - truck or winch truck with p gin poles when used for hoisting, side boom (cradling rock drill) , tow tractor. , farm tractor, road boring machine, end loader (under 3 y.d) , fork lift (industrial type) , pot fireman �- (power agitated) ; straightening machine, boring machine, bombardier (track or tow rig) , mobile lubrication & service engineer, hydrostatic testing operator, rollagon or similar type equipment GROUP 3 Fuel man, oiler or swamper (on trenching machine or shovel- type equipment) I 4 ------------.---------.---------------.------------------------------ 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 Li award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii) ) . -J ---------------------------------------------------------------- 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. ---------------------------------------------------------------- WAGE DETERMINATION APPEALS PROCESS 1. ) Has there been an initial decision in the matter? This can be: �a http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cg i?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 7 WAIS Document Retrieval Page 3 of 3 * 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 On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour a5' Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial 7 contact is not satisfactory, then the process described in 2. ) Li and 3. ) should be followed. With regard to any other matter not yet ripe for the formal i process described here, initial contact should be with the 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 i 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 [__J (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, 7_i,i etc. ) that the requestor considers relevant to the issue. 3. ) If the decision of the Administrator is not favorable, an 7interested 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. Washington, DC 20210 I 4. ) All decisions by the Administrative Review Board are final. �7 END OF GENERAL DECISION i http.1/frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi.dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Pagel of 3 GENERAL DECISION: TX20080052 04/11/2008 TX52 Date: April 11, 2008 General Decision Number: TX20080052 04/11/2008 i� Superseded General Decision Number: TX20070054 7 State: Texas E_.-j Construction Type: Heavy County: Harris County in Texas. HEAVY CONSTRUCTION PROJECTS Including Water and Sewer Lines (Does Not Include Flood Control) . Modification Number Publication Date 0 02/08/2008 1 03/28/2008 �-' 2 04/11/2008 * SFTX0669-001 04/01/2008 Rates Fringes !` SPRINKLER FITTER (Fire -J Sprinklers) . . . . . . . . . . . . . . . . . . . . . .$ 25.30 13.30 ---------------------------------------------------------------- SUTX2005-019 08/16/2005 L__J Rates Fringes CARPENTER. . . . . . . . . . . . . . . . . . . . . . . .$ 14.04 0.00 CEMENT MASON/CONCRETE FINISHER. . .$ 12.50 1.17 Li ELECTRICIAN. . . . . . . . . . . . . . . . . . . . . .$ 17.00 0.04 j Formbuilder/Formsetter. . . . . . . . . . .$ 13.84 1. 17 IRONWORKER, REINFORCING. . . . . . . . . .$ 11.28 0. 00 Laborers: Common. . . . . . . . . . . . . . . . . . . . . .$ 8. 94 0.00 t Landscape. . . . . . . . . . . . . . . . . . .$ 7.35 0.00 Mason Tender Cement. . . . . . . . .$ 9. 94 0. 00 Pipelayer.. . . . . . . . . . . . . . . . . . .$ 10. 14 0. 00 P I P E F I T T E R. . . . . . . . . . . . . . . . . . . . . . .$ 17.00 0.04 ! POWER EQUIPMENT OPERATOR: I�l Backhoe. . . . . . . . . . . . 0 . . . 0 . . . .$ 13.47 0.00 Bulldozer. . . . . . . . . . . . . . . . . . .$ 12.58 0.00 Crane. . . . . . . . . . . . . . . . . . . . . . .$ 15.33 0.57 ! � Excavator. . . . . . . . . . . . . . . . . . .$ 16.37 0.00 Front End Loader. . . . . . . . . . . .$ 12. 16 0.00 Grader. . . . . . . . . . . . . . . . . . . . . .$ 12.20 1. 48 Tractor. . . . . . . . . . . . . . . . . . . . .$ 15.00 0.00 �_J http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 WAIS Document Retrieval Page 2 of 3 TRUCK DRIVER. . . . . . . . . . . . . . . . . . . . .$ 12.02 1.02 ---------------------------------------------------------------- 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 {- award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii) ) . rA, i ---------------------------------------------------------------- In the listing above, the "SU" designation means that rates listed under the identifier do not reflect collectively i- bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. u ---------------------------------------------------------------- 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 U a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests (i 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 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. ;., With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the 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 Li interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 C FR Part 1. 8 and 29 CFR Part 7) . Write to: f Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 http://frwebgate-access.gpo.gov/cgi-bin/getdoc.cgi?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 ,,,, WAIS Document Retrieval Page 3 of 3 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. Washington, DC 20210 4. ) All decisions by the Administrative Review Board are final. LJ L END OF GENERAL DECISION 7 L 41 LJ l i ' u http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgl?dbname=Davis-Bacon&docid=TX2008... 5/20/2008 7 EXHIBIT "B" Article B-1 Workers' Compensation Insurance Coverage. A. Definitions: Certificate of coverage (certificate)--A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-8 1, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. �J 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 CONTRACTOR and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor p 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 p g, gor 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 �J delivery of portable toilets. B. The CONTRACTOR shall 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 employees of the CONTRACTOR providing services on the project, for the duration of the project. _J C. The CONTRACTOR must provide a certificate of coverage to the governmental entity prior 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 has been extended. 7 7 7 LJ 1 Updated 04212008 J I,r 1 E. The CONTRACTOR shall obtain from each person providing services on a project, and provide to the governmental entity: (1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on theproject; 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 7 proj ect. U F. The CONTRACTOR shall retain all required certificates of coverage for the duration of the project and for one year thereafter. L 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. 7 H. The CONTRACTOR shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons 7 providing services on the project that they are required to be covered, and stating how a Li person may verify coverage and report lack of coverage. 7 I. The CONTRACTOR shall contractually require each person with whom it contracts to provide services on a project, to: (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 its employees providing services on the project, for the duration of the project; (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 of the project; (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; 2 Updated 04212008 I I 7 (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 7 beginning work on the project; and g g p J (b) a new certificate of coverage showing extension of _._ coverage, prior to the end of the coverage period, if the coverage period 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 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 7 (7) contractually require each person with whom it contracts, to perform as required by paragraphs (1)-(7), with the certificates of coverage to be provided to the person for whom they are providing services. u . 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 j CONTRACTOR who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on p g p J � g 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 commissions 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. 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 the CONTRACTOR does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. I l Updated 04212008 7 l..__j 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 Y imposed b the Act or other commission rules. This notice must be p 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 followingr text provided vi ded by the commission on the sample notice, without any additional words or changes: 4 � L i REQUIRED WORKERS' COMPENSATION COVERAGE The law requires that each person working on this site or providing services 7 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 7�1 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 i provide coverage. Article B-3 Required Contract Provision, The CONTRACTOR shall include in all contracts to provide service on the project the following 7 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 the project will be covered by workers compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be LJ 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, criminal penalties, civil penalties, or other civil actions. ,9 4 Updated 04212008 1 7 Article B-4 Applicability. I. The coverage requirement in this Exhibit "B" does not apply to sole proprietors, partners, and corporate officers who meet the requirements of the Act,.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). 7 7 7 7 7 5 Updated 04212008