Southwestern Water Tower Improvements Joel Brown-CN 2021-01-28BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
City of Coppell, Texas
This Agreement is made by and between the City of Coppell, Texas, a home -rule municipality
(hereinafter referred to as the "Owner") and J.B. & Co., LLC , (hereinafter referred to as the "Contractor") for
Southwestern Water Tower Site Improvements (hereinafter referred to as the "Project"), the Owner and the Contractor
hereby agreeing as follows:
ARTICLE I
THE CONTRACT AND THE CONTRACT
DOCUMENTS
1.1 THE CONTRACT
1.1.1 The Contract between the Owner and the
Contractor, of which this Agreement is a part, consists
of the Contract Documents. It shall be effective on the
date this Agreement is executed by the last party to
execute it.
1.2. THE CONTRACT DOCUMENTS
1.2.1 The Contract Documents consist of this
Agreement, the Invitation to Bid, Requirements and
Instructions to Bidders, the Specifications, the
Drawings, the Project Manual, all Change Orders and
Field Orders issued hereafter, any other amendments
hereto executed by the parties hereafter, together with
the following (if any):
Documents not enumerated in this Paragraph 1.2.1 are
not Contract Documents and do not form part of this
Contract.
1.3 ENTIRE AGREEMENT
1.3.1 This Contract, together with the
Contractor's performance and payment bonds for the
Project, all General Conditions, Special Conditions,
Plans and Specifications, and Addenda attached
thereto, constitute the entire and exclusive agreement
between the Owner and the Contractor with reference
to the Project. Specifically, but without limitation, this
Contract supersedes any bid documents and all prior
written or oral communications, representations and
negotiations, if any, between the Owner and
Contractor not expressly made a part hereof.
1.4 NO PRIVITY WITH OTHERS
1.4.1 Nothing contained in this Contract shall
create, or be interpreted to create, privity or any other
contractual agreement between the Owner and any
person or entity other than the Contractor.
1.5 INTENT AND INTERPRETATION
1.5.1 The intent of this Contract is to require
complete, correct and timely execution of the Work.
Any Work that may be required, implied or inferred by
the Contract Documents, or any one or more of them,
as necessary to produce the intended result shall be
provided by the Contractor for the Contract Price.
1.5.2 This Contract is intended to be an
integral whole and shall be interpreted as internally
consistent. What is required by any one Contract
Document shall be considered as required by the
Contract.
1.5.3 When a word, term or phrase is used in
this Contract, it shall be interpreted or construed, first,
as defined herein; second, if not defined, according to
its generally accepted meaning in the construction
industry; and third, if there is no generally accepted
meaning in the construction industry, according to its
common and customary usage.
1.5.4 The words "include", "includes", or
"including", as used in this Contract, shall be deemed
to be followed by the phrase, "without limitation".
1.5.5 The specification herein of any act,
failure, refusal, omission, event, occurrence or
condition as constituting a material breach of this
Contract shall not imply that any other, non-specified
act, failure, refusal, omission, event, occurrence or
condition shall be deemed not to constitute a material
breach of this Contract.
1.5.6 Words or terms used as nouns in this
Contract shall be inclusive of their singular and plural
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
forms, unless the context of their usage clearly
requires a contrary meaning.
1.5.7 The Contractor shall have a continuing
duty to read, carefully study and compare each of the
Contract Documents, the Shop Drawings, the Product
Data, and any Plans and Specifications, and shall give
written notice to the Owner of any inconsistency,
ambiguity, error or omission which the Contractor
may discover with respect to these documents before
proceeding with the affected Work. The issuance, or
the express or implied approval by the Owner or the
Architect of the Contract Documents, Shop Drawings
or Product Data shall not relieve the Contractor of the
continuing duties imposed hereby, nor shall any such
approval be evidence of the Contractor's compliance
with this Contract. The Owner has requested the
Architect to only prepare documents for the Project,
including the Drawings and Specifications for the
Project, which are accurate, adequate, consistent,
coordinated and sufficient for construction.
HOWEVER, THE OWNER MAKES NO
REPRESENTATION OR WARRANTY OF ANY
NATURE WHATSOEVER TO THE
CONTRACTOR CONCERNING SUCH
DOCUMENTS. By the execution hereof, the
Contractor acknowledges and represents that it has
received, reviewed and carefully examined such
documents, has found them to be complete, accurate,
adequate, consistent, coordinated and sufficient for
construction, and that the Contractor has not, does not,
and will not rely upon any representation or warranties
by the Owner concerning such documents as no such
representation or warranties have been or are hereby
made. Further, the Contractor represents and warrants
that it has had a sufficient opportunity to inspect the
Project site and assumes any and all responsibility for
inadequacies or ambiguities in the plans, drawings or
specifications as well as for latent conditions of the site
where the work is to be performed.
1.5.8 As between numbers and scaled
measurements on the Drawings and in the Design, the
numbers shall govern, as between larger scale and
smaller scale drawings, the larger scale shall govern.
1.5.9 Neither the organization of any of the
Contract Documents into divisions, sections,
paragraphs, articles, (or other categories), nor the
organization or arrangement of the Design, shall
control the Contractor in dividing the Work or in
establishing the extent or scope of the Work to be
performed by Subcontractors.
1.6 OWNERSHIP OF
CONTRACT DOCUMENTS
1.6.1 The Contract Documents, and each of
them, shall remain the property of the Owner. The
Contractor shall have the right to keep one record set
of the Contract Documents upon completion of the
Project; provided, however, that in no event shall
Contractor use, or permit to be used, any or all of such
Contract Documents on other projects without the
Owner's prior written authorization.
ARTICLE II
THE WORK
2.1 The Contractor shall perform all of the
Work required, implied or reasonably inferable from,
this Contract.
2.2 WORK
2.2.1 The term "Work" shall mean whatever is
done by or required of the Contractor to perform and
complete its duties under this Contract, including the
following: construction of the whole or a designated
part of the Project; furnishing of any required surety
bonds and insurance, and the provision or furnishing
of labor, supervision, services, materials, supplies,
equipment, fixtures, appliances, facilities, tools,
transportation, storage, power, permits and licenses
required of the Contractor, fuel, heat, light, cooling
and all other utilities as required by this Contract. The
Work to be performed by the Contractor is generally
described as follows: The Base Bid consists of the
furnishing of all labor, materials, services, and
equipment required in conjunction with or properly
incidental to the construction of the Biodiversity
Education Center Nature Explorer Playground
demolition, grading, entry trellis, composite deck and
ramp, concrete sidewalk, decorative paving and
concrete paver base, concrete ramp, storm drainage
system, playground curb and playground ramps,
playground surfacing, flagstone walkway, playground
equipment installation, decomposed granite surfacing,
bender board edging, shade structure, labyrinth,
landscape, minus canopy and ornamental trees,
complete and in place as shown on the plans,
specifications and addenda.
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
2.2.2 The Contractor shall be responsible for
paying for and procuring all materials and labor and
furnishing all services necessary or appropriate for the
full performance of the Work and the for the full
completion of the Project. All materials shall be new
and materials and workmanship shall be of good
quality. Upon request, the Contractor shall furnish
satisfactory proof of the type, kind, and quality of
materials.
ARTICLE III
CONTRACT TIME
3.1 TIME AND LIQUIDATED DAMAGES
3.1.1 The Contractor shall commence the
Work within 10 days of receipt of a written Notice to
Proceed and shall achieve Substantial Completion of
the Work no later than 150 calendar days from the date
specified in the Notice to Proceed. The parties
acknowledge that time is of the essence in the
performance of the terms of this Contract. The term
"calendar days" shall mean any and all days of the
week or month, no days being excepted. "Hours
worked before 8:00 a.m. after 5:00 p.m., all weekends
and holidays are subject to overtime. Overtime request
must be made in writing and approved by the City of
Coppell. Seventy-two hours' notice required. All
overtime incurred by the City for inspection services
shall be paid by the Contractor. If not paid, such cost
may be deducted from partial payments." It is
contemplated by the parties that the progress of the
Work may be delayed by certain conditions beyond
the control of the parties; these delays have been
contemplated by the parties and considered in the time
allotted for performance specified herein and includes,
but is not limited to delays occasioned on account of
adverse weather, temporary unavailability of
materials, shipment delays, and the presence and
potential interference of other contractors who may be
performing work at the Project site unrelated to this
agreement.
The number of calendar days from the date on which
the Work is permitted to proceed, through the date set
forth for Substantial Completion, shall constitute the
"Contract Time".
3.1.2 The Contractor shall pay the Owner the
sum of $250.00 per day for each and every calendar
day of unexcused delay in achieving Substantial
Completion beyond the date set forth herein for
Substantial Completion of the Work. Any sums due
and payable hereunder by the Contractor shall be
payable, not as a penalty, but as liquidated damages
representing an estimate of delay damages likely to be
sustained by the Owner, estimated at or before the time
of executing this Contract. When the Owner
reasonably believes that Substantial Completion will
be inexcusably delayed, the Owner shall be entitled,
but not required, to withhold from any amounts
otherwise due the Contractor an amount then believed
by the Owner to be adequate to recover liquidated
damages applicable to such delays. if and when the
Contractor overcomes the delay in achieving
Substantial Completion, or any part thereof, for which
the Owner has withheld payment, the Owner shall
promptly release to the Contractor those funds
withheld, but no longer applicable, as liquidated
damages.
3.1.3 In the event that the Contractor achieves
certification of substantial completion prior to the
scheduled completion date, the Owner shall pay to the
Contractor the sum of $0.00 per day for each calendar
day that substantial completion is certified in advance
of the scheduled completion date.
3.1.4 No claim shall be made by the
Contractor to the Owner, and no damages, costs or
extra compensation shall be allowed or paid by the
Owner to the Contractor for any delay or hindrance
from any cause in the progress or completion of the
Work or this Contract. The Contractor's sole remedy
in the event of any delay or hindrance shall be to
request time extensions by written change orders as
provided for hereinafter. Should the Contractor be
delayed by an act of the Owner, or should the Owner
order a stoppage of the Work for sufficient cause, an
extension of time shall be granted by the Owner by
written authorization upon written application, which
extension shall not be unreasonably denied, to
compensate for the delay.
3.1.5 The Owner shall have the authority to
suspend the Work wholly or in part for such period or
periods of time as it may deem appropriate due to
unsuitable conditions considered unfavorable for the
proper prosecution of the Work or for the failure of the
Contractor to carry out instructions from the Owner or
Owner's representative. During any period in which
the Work is stopped or during which any of the Work
is not actively in progress for any reason, Contractor
shall properly protect the site and the Work from
damage, loss or harm.
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
3.2 SUBSTANTIAL COMPLETION
3.2.1 "Substantial Completion" shall mean
that stage in the progression of the Work when the
Work is sufficiently complete in accordance with this
Contract that the Owner can enjoy beneficial use or
occupancy of the Work and can utilize the Work for
its intended purpose, even though minor
miscellaneous work and/or adjustment may be
required.
3.3 TIME IS OF THE ESSENCE
3.3.1 All limitations of time set forth in the
Contract Documents are of the essence of this
Contract.
ARTICLE IV
CONTRACT PRICE
4.1 THE CONTRACT PRICE
4.1.1 The Owner shall pay, and the Contractor
shall accept, as full and complete payment for all of
the Work required herein, the fixed sum of
$216,519.75
The sum set forth in this Paragraph 4.1 shall constitute
the Contract Price which shall not be modified except
by written Change Order as provided in this Contract.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 SCHEDULE OF VALUES
5.1.1 Within ten (10) calendar days of the
effective date hereof, the Contractor shall submit to the
Owner and to the Architect a Schedule of Values
allocating the Contract Price to the various portions of
the Work. The Contractor's Schedule of Values shall
be prepared in such form, with such detail, and
supported by such data as the Architect or the Owner
may require substantiating its accuracy. The
Contractor shall not imbalance its Schedule of Values
nor artificially inflate any element thereof. The
violation of this provision by the Contractor shall
constitute a material breach of this Contract. The
Schedule of Values shall be used only as a basis for
the Contractor's Applications for Payment and shall
only constitute such basis after it has been
acknowledged and accepted in writing by the
Architect and the Owner.
5.2 PAYMENT PROCEDURE
5.2.1 The Owner shall pay the Contract Price
to the Contractor as provided below.
5.2.2 PROGRESS PAYMENTS - Based upon the
Contractor's Applications for Payment submitted to
the Architect and upon Certificates for Payment
subsequently issued to the Owner by the Architect, the
Owner shall make progress payments to the Contractor
on account of the Contract Price.
5.2.3 On or before the 25th day of each month
after commencement of the Work, the Contractor shall
submit an Application for Payment for the period
ending the 15th day of the month to the Architect in
such form and manner, and with such supporting data
and content, as the Owner or the Architect may
require. Therein, the Contractor may request payment
for ninety percent (90%) of that portion of the Contract
Price properly allocable to Contract requirements
properly provided, labor, materials and equipment
properly incorporated in the Work, less the total
amount of previous payments received from the
Owner. Such Application for Payment shall be signed
by the Contractor and shall constitute the Contractor's
representation that the Work has progressed to the
level for which payment is requested in accordance
with the Schedule of Values, that the Work has been
properly installed or performed in full compliance
with this Contract, and that the Contractor knows of
no reason why payment should not be made as
requested. Thereafter, the Architect will review the
Application for Payment and may also review the
Work at the Project site or elsewhere to determine
whether the quantity and quality of the Work is as
represented in the Application for Payment and is as
required by this Contract. The Architect shall
determine and certify to the Owner the amount
properly owing to the Contractor. The Owner shall
make partial payments on account of the Contract
Price to the Contractor within thirty (30) days
following the Architect's receipt and approval of each
Application for Payment. The amount of each partial
payment shall be the amount certified for payment by
the Architect less such amounts, if any, otherwise
owing by the Contractor to the Owner or which the
Owner shall have the right to withhold as authorized
by this Contract. The Architect's certification of the
Contractor's Application for Payment shall not
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
preclude the Owner from the exercise of any of its
rights as set forth in Paragraph 5.3 hereinbelow.
5.2.4 The Contractor warrants that title to all
Work covered by an Application for Payment will pass
to the Owner no later than the time of payment. The
Contractor further warrants that upon submittal of an
Application for Payment, all Work for which
payments have been received from the Owner shall be
free and clear of liens, claims, security interest or other
encumbrances in favor of the Contractor or any other
person or entity whatsoever.
5.2.5 The Contractor shall promptly pay each
Subcontractor out of the amount paid to the Contractor
on account of such Subcontractor's Work, the amount
to which such Subcontractor is entitled. In the event
the Owner becomes informed that the Contractor has
not paid a Subcontractor as herein provided, the
Owner shall have the right, but not the duty, to issue
future checks in payment to the Contractor of amounts
otherwise due hereunder naming the Contractor and
such Subcontractor as joint payees. Such joint check
procedure, if employed by the Owner, shall create no
rights in favor of any person or entity beyond the right
of the named payees to payment of the check and shall
not be deemed to commit the Owner to repeat the
procedure in the future.
5.2.6 No progress payment, nor any use or
occupancy of the Project by the owner, shall be
interpreted to constitute an acceptance of any Work
not in strict accordance with this Contract.
5.3 WITHHELD PAYMENT
5.3.1 The Owner may decline to make
payment, may withhold funds, and, if necessary, may
demand the return of some or all of the amounts
previously paid to the Contractor, to protect the Owner
from loss because of:
(a) defective Work not remedied by the
Contractor nor, in the opinion of the
Owner, likely to be remedied by the
Contractor;
(b) claims of third parties against the Owner
or the Owner's property;
(c) failure by the Contractor to pay
Subcontractors or others in a prompt and
proper fashion;
(d) evidence that the balance of the Work
cannot be completed in accordance with
the Contract for the unpaid balance of the
Contract Price,
(e) evidence that the Work will not be
completed in the time required for
substantial or final completion;
(f) persistent failure to carry out the Work in
accordance with the Contract;
(g) damage to the Owner or a third party to
whom the Owner is, or may be, liable.
In the event that the Owner makes
written demand upon the Contractor for amounts
previously paid by the Owner as contemplated in this
Subparagraph 5.3.1, the Contractor shall promptly
comply with such demand. The Owner shall have no
duty to third parties to withhold payment to the
Contractor and shall incur no liability for a failure to
withhold funds.
5.4 UNEXCUSED FAILURE TO PAY
5.4.1 If within fifteen (15) days after the date
established herein for payment to the Contractor by the
Owner, the Owner, without cause or basis hereunder,
fails to pay the Contractor any amount then due and
payable to the Contractor, then the Contractor may
after ten (10) additional days' written notice to the
Owner and the Architect, and without prejudice to any
other available rights or remedies it may have, stop the
Work until payment of those amounts due from the
Owner have been received. Late payments shall not
accrue interest or other late charges.
5.5 SUBSTANTIAL COMPLETION
5.5.1 When the Contractor believes that the
Work is substantially complete, the Contractor shall
submit to the Architect a list of items to be completed
or corrected. When the Architect on the basis of an
inspection determines that the Work is in fact
substantially complete, it will prepare a Certificate of
Substantial Completion which shall establish the date
of Substantial Completion, shall state the
responsibilities of the Owner and the Contractor for
Project security, maintenance, heat, utilities, damage
to the Work, and insurance, and shall fix the time
within which the Contractor shall complete the items
listed therein. Guarantees required by the Contract
shall commence on the date of Substantial Completion
of the Work. The Certificate of Substantial
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Completion shall be submitted to the Owner and the
Contractor for their written acceptance of the
responsibilities assigned to them in such certificate.
Upon Substantial Completion of the Work, and
execution by both the Owner and the Contractor of the
Certificate of Substantial Completion, the Owner shall
pay the Contractor an amount sufficient to increase
total payments to the Contractor to one hundred
percent (100%) of the Contract Price less three
hundred percent (300%) of the reasonable cost as
determined by the Owner and the Architect for
completing all incomplete Work, correcting and
bringing into conformance all defective and
nonconforming Work, and handling all unsettled
claims.
5.6 COMPLETION AND FINAL PAYMENT
5.6.1 When all of the Work is finally complete
and the Contractor is ready for a final inspection, it
shall notify the Owner and the Architect thereof in
writing. Thereupon, the Architect will make final
inspection of the Work and, if the Work is complete in
full accordance with this Contract and this Contract
has been fully performed, the Architect will promptly
issue a final Certificate for Payment certifying to the
Owner that the Project is complete and the Contractor
is entitled to the remainder of the unpaid Contract
Price, less any amount withheld pursuant to this
Contract. If the Architect is unable to issue its final
Certificate for Payment and is required to repeat its
final inspection of the Work, the Contractor shall bear
the cost of such repeat final inspection(s) which cost
may be deducted by the Owner from the Contractor's
final payment.
5.6.1.1 If the Contractor fails to achieve final
completion within the time fixed therefor by the
Architect in its Certificate of Substantial Completion,
the Contractor shall pay the Owner the sum set forth
hereinabove as liquidated damages per day for each
and every calendar day of unexcused delay in
achieving final completion beyond the date set forth
herein for final completion of the Work. Any sums
due and payable hereunder by the Contractor shall be
payable, not as a penalty, but as liquidated damages
representing an estimate of delay damages likely to be
sustained by the Owner, estimated at or before the time
of executing this Contract. When the Owner
reasonably believes that final completion will be
inexcusably delayed, the Owner shall be entitled, but
not required, to withhold from any amounts otherwise
due the Contractor an amount then believed by the
Owner to be adequate to recover liquidated damages
applicable to such delays. If and when the Contractor
overcomes the delay in achieving final completion, or
any part thereof, for which the Owner has withheld
payment, the Owner shall promptly release to the
Contractor those funds withheld, but no longer
applicable, as liquidated damages.
5.6.2 The Contractor shall not be entitled to
final payment unless and until it submits to the
Architect its affidavit that all payrolls, invoices for
materials and equipment, and other liabilities
connected with the Work for which the Owner, or the
Owner's property might be responsible, have been
fully paid or otherwise satisfied; releases and waivers
of lien from all Subcontractors of the Contractor and
of any and all other parties required by the Architect
or the Owner; consent of Surety, if any, to final
payment. If any third party fails or refuses to provide
a release of claim or waiver of lien as required by the
Owner, the Contractor shall furnish a bond satisfactory
to the Owner to discharge any such lien or indemnify
the Owner from liability.
5.6.3 The Owner shall make final payment of
all sums due the Contractor within ten (10) days of the
Architect's execution of a final Certificate for
Payment.
5.6.4 Acceptance of final payment shall
constitute a waiver of all claims against the Owner by
the Contractor except for those claims previously
made in writing against the Owner by the Contractor,
pending at the time of final payment, and identified in
writing by the Contractor as unsettled at the time of its
request for final payment.
5.6.5 Under no circumstance shall Contractor
be entitled to receive interest on any payments or
monies due Contractor by the Owner, whether the
amount on which the interest may accrue is timely,
late, wrongfully withheld, or an assessment of
damages of any kind.
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
ARTICLE VI
THE OWNER
6.1 INFORMATION, SERVICES AND THINGS
REQUIRED FROM OWNER
6.1.1 The Owner shall furnish to the
Contractor, at the time of executing this Contract, any
and all written and tangible material in its possession
concerning conditions below ground at the site of the
Project.
Such written and tangible material is furnished to the
Contractor only in order to make complete disclosure
of such material and for no other purpose. By
furnishing such material, the Owner does not
represent, warrant, or guarantee its accuracy either in
whole, in part, implicitly or explicitly, or at all, and
shall have no liability therefor. The Owner shall also
furnish surveys, legal limitations and utility locations
(if known), and a legal description of the Project site.
6.1.2 Excluding permits and fees normally the
responsibility of the Contractor, the Owner shall
obtain all approvals, easements, and the like required
for construction and shall pay for necessary
assessments and charges required for construction, use
or occupancy of permanent structures or for permanent
changes in existing facilities.
6.1.3 The Owner shall furnish the Contractor,
free of charge, one copy of the Contract Documents
for execution of the Work.
6.2 RIGHT TO STOP WORK
6.2.1 If the Contractor persistently fails or
refuses to perform the Work in accordance with this
Contract, or if the best interests of the public health,
safety or welfare so require, the Owner may order the
Contractor to stop the Work, or any described portion
thereof, until the cause for stoppage has been
corrected, no longer exists, or the Owner orders that
Work be resumed. In such event, the Contractor shall
immediately obey such order.
6.3 OWNER'S RIGHT TO PERFORM WORK
6.3.1 If the Contractor's Work is stopped by
the Owner under Paragraph 6.2, and the Contractor
fails within seven (7) days of such stoppage to provide
adequate assurance to the Owner that the cause of such
stoppage will be eliminated or corrected, then the
Owner may, without prejudice to any other rights or
remedies the Owner may have against the Contractor,
proceed to carry out the subject Work. In such a
situation, an appropriate Change Order shall be issued
deducting from the Contract Price the cost of
correcting the subject deficiencies, plus compensation
for the Architect's additional services and expenses
necessitated thereby, if any. If the unpaid portion of
the Contract Price is insufficient to cover the amount
due the Owner, the Contractor shall pay the difference
to the Owner.
ARTICLE VII
THE CONTRACTOR
7.1 The Contractor is again reminded of its
continuing duty set forth in Subparagraph 1.5.7. The
Contractor shall perform no part of the Work at any
time without adequate Contract Documents or, as
appropriate, approved Shop Drawings, Product Data
or Samples for such portion of the Work. If the
Contractor performs any of the Work knowing it
involves a recognized error, inconsistency or omission
in the Contract Documents without such notice to the
Architect, the Contractor shall bear responsibility for
such performance and shall bear the cost of correction.
7.2 The Contractor shall perform the Work
strictly in accordance with this Contract.
7.3 The Contractor shall supervise and direct
the Work using the Contractor's best skill, effort and
attention. The Contractor shall be responsible to the
Owner for any and all acts or omissions of the
Contractor, its employees and others engaged in the
Work on behalf of the Contractor.
7.3.1 The Contractor shall give adequate
attention to the faithful prosecution of the Work and
the timely completion of this Contract, with authority
to determine the manner and means of performing
such Work, so long as such methods insure timely
completion and proper performance.
7.3.2 The Contractor shall exercise all
appropriate means and measures to insure a safe and
secure jobsite in order to avoid and prevent injury,
damage or loss to persons or property.
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7.4 WARRANTY
7.4.1 The Contractor warrants to the Owner
that all labor furnished to progress the Work under this
Contract will be competent to perform the tasks
undertaken, that the product of such labor will yield
only first-class results, that materials and equipment
furnished will be of good quality and new unless
otherwise permitted by this Contract, and that the
Work will be of good quality, free from faults and
defects and in strict conformance with this Contract.
All Work not conforming to these requirements may
be considered defective.
7.5 The Contractor shall obtain and pay for
all permits, fees and licenses necessary and ordinary
for the Work. The Contractor shall comply with all
lawful requirements applicable to the Work and shall
give and maintain any and all notices required by
applicable law pertaining to the Work.
7.6 SUPERVISION
7.6.1 The Contractor shall employ and
maintain at the Project site only competent supervisory
personnel. Absent written instruction from the
Contractor to the contrary, the superintendent shall be
deemed the Contractor's authorized representative at
the site and shall be authorized to receive and accept
any and all communications from the Owner or the
Architect.
7.6.2 Key supervisory personnel assigned by the
Contractor to this Project are as follows:
NAME FUNCTION
So long as the individuals named above remain
actively employed or retained by the Contractor, they
shall perform the functions indicated next to their
names unless the Owner agrees to the contrary in
writing. In the event one or more individuals not listed
above subsequently assume one or more of those
functions listed above, the Contractor shall be bound
by the provisions of this Subparagraph 7.6.2 as though
such individuals had been listed above.
7.7 The Contractor, within fifteen (15) days of
commencing the Work, shall submit to the Owner and
the Architect for their information, the Contractor's
schedule for completing the Work. The Contractor's
schedule shall be revised no less frequently than
monthly (unless the parties otherwise agree in writing)
and shall be revised to reflect conditions encountered
from time to time and shall be related to the entire
Project. Each such revision shall be furnished to the
Owner and the Architect. Failure by the Contractor to
strictly comply with the provisions of this Paragraph
7.7 shall constitute a material breach of this Contract.
7.8 The Contractor shall continuously
maintain at the site, for the benefit of the owner and
the Architect, one record copy of this Contract marked
to record on a current basis changes, selections and
modifications made during construction.
Additionally, the Contractor shall maintain at the site
for the Owner and Architect the approved Shop
Drawings, Product Data, Samples and other similar
required submittals. Upon final completion of the
Work, all of these record documents shall be delivered
to the Owner.
7.9 SHOP DRAWINGS, PRODUCT
DATA AND SAMPLES
7.9.1 Shop Drawings, Product Data, Samples
and other submittals from the Contractor do not
constitute Contract Documents. Their purpose is
merely to demonstrate the manner in which the
Contractor intends to implement the Work in
conformance with information received from the
Contract Documents.
7.9.2 The Contractor shall not perform any
portion of the Work requiring submittal and review of
Shop Drawings, Product Data or Samples unless and
until such submittal shall have been approved by the
Architect. Approval by the Architect, however, shall
not be evidence that Work installed pursuant thereto
conforms with the requirements of this Contract.
7.10 CLEANING THE SITE
AND THE PROJECT
7.10.1 The Contractor shall keep the site
reasonably clean during performance of the Work.
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Upon final completion of the Work, the Contractor
shall clean the site and the Project and remove all
waste, rubbish, temporary structures, and other
materials together with all of the Contractor's property
therefrom. Contractor shall dispose of all refuse at a
Texas Natural Resource Conservation Commission
approved landfill. The Contractor shall further restore
all property damaged during the prosecution of the
Work and shall leave the site in a clean and
presentable condition. No additional payment shall be
made by the Owner for this work, the compensation
having been considered and included in the contract
price.
7.11 ACCESS TO WORK AND INSPECTIONS
7.11.1 The Owner and the Architect shall have
access to the Work at all times from commencement
of the Work through final completion. The Contractor
shall take whatever steps necessary to provide access
when requested. When reasonably requested by the
Owner or the Architect, the Contractor shall perform
or cause to be performed such testing as may be
necessary or appropriate to insure suitability of the
jobsite or the Work's compliance with the Contract
requirements. All overtime incurred by the City for
inspection services shall be paid by the Contractor. If
not paid, such cost may be deducted from partial
payments."
7.12 INDEMNITY AND DISCLAIMER
7.12.1 OWNER SHALL NOT BE LIABLE OR
RESPONSIBLE FOR, AND SHALL BE
INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY CONTRACTOR FROM AND
AGAINST ANY AND ALL SUITS, ACTIONS,
LOSSES, DAMAGES, CLAIMS, OR LIABILITY
OF ANY CHARACTER, TYPE, OR DESCRIPTION,
INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES FOR
INJURY OR DEATH TO ANY PERSON, OR
INJURY OR LOSS TO ANY PROPERTY,
RECEIVED OR SUSTAINED BY ANY PERSON
OR PERSONS, INCLUDING THE CONTRACTOR,
OR PROPERTY, ARISING OUT OF, OR
OCCASIONED BY, DIRECTLY OR INDIRECTLY,
THE PERFORMANCE OF CONTRACTOR UNDER
THIS AGREEMENT, INCLUDING CLAIMS AND
DAMAGES ARISING IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF OWNER,
WITHOUT, HOWEVER, WAIVING ANY
GOVERN -MENTAL IMMUNITY AVAILABLE TO
THE OWNER UNDER TEXAS LAW AND
WITHOUT WAIVING ANY DEFENSES OF THE
PARTIES UNDER TEXAS LAW. THE
PROVISIONS OF THIS INDEMNI-FICATION ARE
SOLELY FOR THE BENEFIT OF THE PARTIES
HERETO AND NOT INTENDED TO CREATE OR
GRANT ANY RIGHTS, CONTRACTUAL OR
OTHERWISE, TO ANY OTHER PERSON OR
ENTITY. IT IS THE EXPRESSED INTENT OF THE
PARTIES TO THIS AGREEMENT THAT THE
INDEMNITY PROVIDED FOR IN THIS
CONTRACT IS AN INDEMNITY EXTENDED BY
CONTRACTOR TO INDEMNIFY AND PROTECT
OWNER FROM THE CONSEQUENCES OF THE
CONTRACTOR'S AS WELL AS THE OWNER'S
NEGLIGENCE, WHETHER SUCH NEGLIGENCE
IS THE SOLE OR PARTIAL CAUSE OF ANY
SUCH INJURY, DEATH, OR DAMAGE. IN
ADDITION, CONTRACTOR SHALL OBTAIN
AND FILE WITH OWNER CITY OF COPPELL A
STANDARD CERTIFICATE OF INSURANCE
AND APPLICABLE POLICY ENDORSEMENT
EVIDENCING THE REQUIRED COVERAGE
AND NAMING THE OWNER CITY OF COPPELL
AS AN ADDITIONAL INSURED ON THE
REQUIRED COVERAGE.
7.12.2 The Contractor will secure and maintain
Contractual Liability insurance to cover this
indemnification agreement that will be primary and
non-contributory as to any insurance maintained by
the Owner for its own benefit, including self-
insurance. In addition, Contractor shall obtain and file
with Owner City of Coppell a Standard Certificate of
Insurance and applicable policy endorsement
evidencing the required coverage and naming the
Owner City of Coppell as an additional insured on the
required coverage.
7.12.3 In claims against any person or entity
indemnified under this Paragraph 7.12 by an employee
of the Contractor, a Subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts
they may be liable, the indemnification obligation
under this Paragraph 7.12 shall not be limited by a
limitation on amount or type of damages,
compensation or benefits payable by or for the
Contractor or a Subcontractor under workers'
compensation acts, disability benefit acts or other
employee benefit acts.
7.13 NONDISCRIMINATION
7.13.1 The Contractor shall not discriminate in
any way against any person, employee or job applicant
on the basis of race, color, creed, national original,
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religion, age, sex, or disability where reasonable
accommodations can be effected to enable the person
to perform the essential functions of the job. The
Contractor shall further insure that the foregoing
nondiscrimination requirement shall be made a part
and requirement of each subcontract on this Project.
7.14 PREVAILING WAGE RATES
7.14.1 The Contractor shall comply in all
respects with all requirements imposed by any laws,
ordinances or resolutions applicable to the Project with
regard to the minimum prevailing wage rates for all
classes of employees, laborers, subcontractors,
mechanics, workmen and persons furnishing labor and
services to the Project. The City of Coppell has
adopted a Prevailing Wage Rate Schedule, available to
the Contractor by request, which specifies the classes
and wage rates to be paid to all persons. The
Contractor shall pay not less than the minimum wage
rates established thereby for each class, craft or type
of labor, workman, or mechanic employed in the
execution of this Contract. The failure of the
Contractor to comply with this requirement shall result
in the forfeiture to the City of Coppell of a sum of not
less than Sixty Dollars ($60.00) for each person per
day, or portion thereof, that such person is paid less
than the prevailing rate. Upon request by the Owner,
Contractor shall make available for inspection and
copying its books and records, including but not
limited to its payroll records, account information and
other documents as may be required by the Owner to
insure compliance with this provision.
7.15 JOB SITE SAFETY PRECAUTIONS
7.15.1 The Contractor shall at all times exercise
reasonable precautions for the safety of its employees,
laborers, subcontractors, mechanics, workmen and
others on and near the jobsite and shall comply with
all laws, ordinances, regulations, and standards of
federal, state and local safety laws and regulations.
The Contractor shall provide such machinery guards,
safe walk -ways, ladders, bridges, and other safety
devices as may be necessary or appropriate to insure a
safe and secure jobsite and shall require its
subcontractors to comply with this requirement. The
Contractor shall immediately comply with any and all
safety requirements imposed by the Architect during
the progress of the Work.
7.16 WARNING DEVICES AND BARRICADES
7.16.1 The Contractor shall furnish and maintain
such warning devices, barricades, lights, signs,
pavement markings, and other devices as may be
necessary or appropriate or required by the Architect
to protect persons or property in, near or adjacent to
the jobsite, including . No separate compensation
shall be paid to the Contractor for such measures.
Where the Work is being conducted in, upon or near
streets, alleys, sidewalks, or other rights-of-way, the
Contractor shall insure the placement, maintenance
and operation of any and all such warning devices as
may be required by the City of Coppell and shall do so
until no longer required by the City. Such devices
shall be in compliance with and conform to the manual
and specifications for the uniform system of traffic
control devices adopted by the Texas Department of
Transportation.
7.17 PROTECTION OF UTILITIES
AND OTHER CONTRACTORS
7.17.1 The Contractor shall use best efforts to
leave undisturbed and uninterrupted all utilities and
utility services provided to the jobsite or which
presently exists at, above or beneath the location
where the Work is to be performed. In the event that
any utility or utility service is disturbed or damaged
during the progress of the Work, the Contractor shall
forthwith repair, remedy or restore the utility at
Contractor's sole expense.
7.17.2 The Contractor understands and
acknowledges that other contractors of the Owner or
of other entities may be present at the jobsite
performing other work unrelated to the Project. The
Contractor shall use best efforts to work around other
contractors without impeding the work of others while
still adhering to the completion date established
herein. In the event that the Contractor's work is or
may be delayed by any other person, the Contractor
shall immediately give notice thereof to the Architect
and shall request a written Change Order in
accordance with the procedures set forth by this
Contract. The Contractor's failure to provide such
notice and to request such Change Order shall
constitute a waiver of any and all claims associated
therewith.
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ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 THE ARCHITECT
8.1.1 When used in this Contract the term
"Architect" does not necessarily denote a duly
licensed, trained or certified architect; as used herein,
the term shall be used interchangeably and shall mean
a designated Architect, Engineer, or Contract
Administrator (who may not be an architect or
engineer) for the Owner, said person to be designated
or predesignated by the Owner prior to or at any time
during the Work hereunder. The Architect may be an
employee of the Owner or may be retained by the
Owner as an independent contractor but, in either
event, the Architect's duties and authority shall be as
set forth hereinafter. The Contractor understands and
agrees that it shall abide by the decisions and
instructions of the Architect notwithstanding the
contractual relationship between the Owner and
Architect. All of the Owner's instructions to the
Contractor shall be through the Architect.
In the event the Owner should find it necessary or
convenient to replace the Architect, the Owner shall
retain a replacement Architect and the status of the
replacement Architect shall be that of the former
Architect.
8.2 ARCHITECT'S ADMINISTRATION
8.2.1 The Architect, unless otherwise directed
by the Owner in writing, will perform those duties and
discharge those responsibilities allocated to the
Architect as set forth in this Contract. The Architect
shall be the Owner's representative from the effective
date of this Contract until final payment has been
made.
8.2.2 The Owner and the Contractor shall
communicate with each other in the first instance
through the Architect.
8.2.3 The Architect shall be the initial
interpreter of the requirements of the drawings and
specifications and the judge of the performance
thereunder by the Contractor. The Architect shall
render written or graphic interpretations necessary for
the proper execution or progress of the Work with
reasonable promptness on request of the Contractor.
8.2.4 The Architect will review the
Contractor's Applications for Payment and will certify
to the Owner for payment to the Contractor, those
amounts then due the Contractor as provided in this
Contract.
8.2.5 The Architect shall have authority to
reject Work which is defective or does not conform to
the requirements of this Contract. If the Architect
deems it necessary or advisable, the Architect shall
have authority to require additional inspection or
testing of the Work for compliance with Contract
requirements.
8.2.6 The Architect will review and approve,
or take other appropriate action as necessary,
concerning the Contractor's submittals including Shop
Drawings, Product Data and Samples. Such review,
approval or other action shall be for the sole purpose
of determining conformance with the design concept
and information given through the Contract
Documents.
8.2.7 The Architect will prepare Change
Orders and may authorize minor changes in the Work
by Field Order as provided elsewhere herein.
8.2.8 The Architect shall, upon written request
from the Contractor, conduct inspections to determine
the date of Substantial Completion and the date of final
completion, will receive and forward to the Owner for
the Owner's review and records, written warranties
and related documents required by this Contract and
will issue a final Certificate for Payment upon
compliance with the requirements of this Contract.
8.2.9 The Architect's decisions in matters
relating to aesthetic effect shall be final if consistent
with the intent of this Contract.
8.3 CLAIMS BY THE CONTRACTOR
8.3.1 The Architect shall determine all claims
and matters in dispute between the Contractor and
Owner with regard to the execution, progress, or
sufficiency of the Work or the interpretation of the
Contract Documents, including but not limited to the
plans and specifications. Any dispute shall be
submitted in writing to the Architect within seven (7)
days of the event or occurrence or the first appearance
of the condition giving rise to the claim or dispute who
shall render a written decision within a reasonable
time thereafter. The Architect's decisions shall be
final and binding on the parties. In the event that either
party objects to the Architect's determination as to any
submitted dispute, that party shall submit a written
objection to the Architect and the opposing party
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within ten (10) days of receipt of the Architect's
written determination in order to preserve the
objection. Failure to so object shall constitute a waiver
of the objection for all purposes.
8.3.2 Pending final resolution of any claim of
the Contractor, the Contractor shall diligently proceed
with performance of this Contract and the Owner shall
continue to make payments to the Contractor in
accordance with this Contract.
8.3.3 CLAIMS FOR CONCEALED, LATENT OR
UNKNOWN CONDITIONS - The Contractor expressly
represents that it has been provided with an adequate
opportunity to inspect the Project site and thoroughly
review the Contract Documents and plans and
specifications prior to submission of its bid and the
Owner's acceptance of the bid. Subject to the
conditions hereof, Contractor assumes full
responsibility and risk for any concealed, latent or
unknown condition which may affect the Work. No
claims for extra work or additional compensation shall
be made by Contractor in connection with concealed,
latent or unknown conditions except as expressly
provided herein. Should concealed, latent or unknown
conditions encountered in the performance of the
Work (a) below the surface of the ground or (b) in an
existing structure be at variance with the conditions
indicated by this Contract, or should unknown
conditions of an unusual nature differing materially
from those ordinarily encountered in the area and
generally recognized as inherent in Work of the
character provided for in this Contract, be
encountered, the Contract Price shall be equitably
adjusted by Change Order upon the written notice and
claim by either party made within seven (7) days after
the first observance of the condition. As a condition
precedent to the Owner having any liability to the
Contractor for concealed or unknown conditions, the
Contractor must give the Owner and the Architect
written notice of, and an opportunity to observe, the
condition prior to disturbing it. The failure by the
Contractor to make the written notice and claim as
provided in this Subparagraph shall constitute a waiver
by the Contractor of any claim arising out of or relating
to such concealed, latent or unknown condition and the
Contractor thereby assumes all risks and additional
costs associated therewith.
8.3.4 CLAIMS FOR ADDITIONAL COSTS - If the
Contractor wishes to make a claim for an increase in
the Contract Price, as a condition precedent to any
liability of the Owner therefor, the Contractor shall
give the Architect written notice of such claim within
seven (7) days after the occurrence of the event, or the
first appearance of the condition, giving rise to such
claim. Such notice shall be given by the Contractor
before proceeding to execute any additional or
changed Work. The failure by the Contractor to give
such notice and to give such notice prior to executing
the Work shall constitute a waiver of any claim for
additional compensation.
8.3.4.1 In connection with any claim by the
Contractor against the Owner for compensation in
excess of the Contract Price, any liability of the Owner
for the Contractor's costs shall be strictly limited to
direct costs incurred by the Contractor and shall in no
event include indirect costs or consequential damages
of the Contractor. The Owner shall not be liable to the
Contractor for claims of third parties, including
Subcontractors. The Owner shall not be liable to the
Contractor for any claims based upon delay to the
Contractor for any reason whatsoever including any
act or neglect on the part of the Owner.
8.3.5 CLAIMS FOR ADDITIONAL TIME - If the
Contractor is delayed in progressing any task which at
the time of the delay is then critical or which during
the delay becomes critical, as the sole result of any act
or neglect to act by the Owner or someone acting in
the Owner's behalf, or by changes ordered in the Work,
unusual delay in transportation, unusually adverse
weather conditions not reasonably anticipated, fire or
any causes beyond the Contractor's control, then the
date for achieving Substantial Completion of the Work
shall be extended upon the written notice and claim of
the Contractor to the Owner and the Architect, for such
reasonable time as the Architect may determine. Any
notice and claim for an extension of time by the
Contractor shall be made not more than seven (7) days
after the occurrence of the event or the first appearance
of the condition giving rise to the claim and shall set
forth in detail the Contractor's basis for requiring
additional time in which to complete the Project. In
the event the delay to the Contractor is a continuing
one, only one notice and claim for additional time shall
be necessary. If the Contractor fails to make such
claim as required in this Subparagraph, any claim for
an extension of time shall be waived. The procedures
and remedies provided by this provision shall be the
sole remedy of Contractor and Contractor shall not
assert nor be entitled to any additional delays or
damages associated therewith.
8.4 FIELD ORDERS
8.4.1 The Architect shall have authority to
order minor changes in the Work not involving a
change in the Contract Price or in Contract Time and
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not inconsistent with the intent of the Contract. Such
changes shall be effected by Field Order and shall be
binding upon the Contractor. The Contractor shall
carry out such Field Orders promptly.
8.5 MEDIATION
8.5.1 In the event that a dispute arises under
the terms of this Contract, following an adverse
determination by the Architect and proper
preservation of the issue as required herein, the parties
agree to submit to mediation. In such event, the parties
shall agree to a designated person to serve as mediator
and each party shall be responsible for payment of
one-half of the total mediation fees. The parties shall
submit the dispute to mediation as soon as practical
and in no event later than one (1) year after the
Architect's written decision on the matter. At least one
designated representative of each party must attend
and participate in good faith in an effort to resolve the
matters in dispute.
8.5.2 In no event shall the foregoing provision
justify or authorize any delay in the progress of the
Work; the parties shall abide by the decision of the
Architect in accomplishing the timely completion of
the Project.
ARTICLE IX
SUBCONTRACTORS
9.1 DEFINITION
9.1.1 A Subcontractor is an entity which has a
direct contract with the Contractor to perform a
portion of the Work. No Subcontractor shall be in
privity with the Owner.
9.2 AWARD OF SUBCONTRACTS
9.2.1 Upon execution of the Contract, the
Contractor shall furnish the Owner, in writing, the
names of persons or entities proposed by the
Contractor to act as a Subcontractor on the Project.
The Owner shall promptly reply to the Contractor, in
writing, stating any objections the Owner may have to
such proposed Subcontractor. The Contractor shall
not enter into a subcontract with a proposed
Subcontractor with reference to whom the Owner has
made timely objection. The Contractor shall not be
required to subcontract with any party to whom the
Contractor has objection.
9.2.2 All subcontracts shall afford the
Contractor rights against the Subcontractor which
correspond to those rights afforded to the Owner
against the Contractor herein, including those rights
afforded to the Owner by Subparagraph 12.2.1 below.
All subcontracts shall incorporate by reference the
provisions hereof and shall provide that no claims,
causes or demands shall be made by any Subcontractor
against the Owner.
9.2.3 The Contractor shall indemnify, defend
and hold harmless the Owner from and against any and
all claims, demands, causes of action, damage, and
liability asserted or made against the Owner by or on
behalf of any Subcontractor.
ARTICLE X
CHANGES IN THE WORK
10.1 CHANGES PERMITTED
10.1.1 Changes in the Work within the general
scope of this Contract, consisting of additions,
deletions, revisions, or any combination thereof, may
be ordered without invalidating this Contract, by
Change Order or by Field Order.
10.1.2 Changes in the Work shall be performed
under applicable provisions of this Contract and the
Contractor shall proceed promptly with such changes.
10.2 CHANGE ORDER DEFINED
10.2.1 Change Order shall mean a written order
to the Contractor executed by the Owner and the
Architect, issued after execution of this Contract,
authorizing and directing a change in the Work or an
adjustment in the Contract Price or the Contract Time,
or any combination thereof. The Contract Price and
the Contract Time may be changed only by written
Change Order.
10.3 CHANGES IN THE CONTRACT PRICE
10.3.1 Any change in the Contract Price
resulting from a Change Order shall be determined as
follows: (a) by mutual agreement between the Owner
and the Contractor as evidenced by (1) the change in
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the Contract Price being set forth in the Change Order,
(2) such change in the Contract Price, together with
any conditions or requirements related thereto, being
initialed by both parties and (3) the Contractor's
execution of the Change Order, or (b) if no mutual
agreement occurs between the Owner and the
Contractor, then, as provided in Subparagraph 10.3.2
below.
10.3.2 If no mutual agreement occurs between
the Owner and the Contractor as contemplated in
Subparagraph 10.3.1 above, the change in the Contract
Price, if any, shall then be determined by the Architect
on the basis of the reasonable expenditures or savings
of those performing, deleting or revising the Work
attributable to the change, including, in the case of an
increase or decrease in the Contract Price, a reasonable
allowance for direct job site overhead and profit. In
such case, the Contractor shall present, in such form
and with such content as the Owner or the Architect
requires, an itemized accounting of such expenditures
or savings, plus appropriate supporting data for
inclusion in a Change Order. Reasonable expenditures
or savings shall be limited to the following: reasonable
costs of materials, supplies, or equipment including
delivery costs, reasonable costs of labor, including
social security, old age and unemployment insurance,
fringe benefits required by agreement or custom, and
workers' compensation insurance, reasonable rental
costs of machinery and equipment exclusive of hand
tools whether rented from the Contractor or others,
reasonable costs of premiums for all bonds and
insurance, permit fees, and sales, use or other taxes
related to the Work, and reasonable cost of direct
supervision and jobsite field office overhead directly
attributable to the change. In no event shall any
expenditure or savings associated with the
Contractor's home office or other non jobsite overhead
expense be included in any change in the Contract
Price. Pending final determination of reasonable
expenditures or savings to the Owner, payments on
account shall be made to the Contractor on the
Architect's Certificate for Payment.
10.3.3 If unit prices are provided in the
Contract, and if the quantities contemplated are so
changed in a proposed Change Order that application
of such unit prices to the quantities of Work proposed
will cause substantial inequity to the Owner or to the
Contractor, the applicable unit prices shall be
equitably adjusted.
10.4 MINOR CHANGES
10.4.1 The Architect shall have authority to
order minor changes in the Work not involving a
change in the Contract Price or an extension of the
Contract Time and not inconsistent with the intent of
this Contract. Such minor changes shall be made by
written Field Order, and shall be binding upon the
owner and the Contractor. The Contractor shall
promptly carry out such written Field Orders.
10.5 EFFECT OF EXECUTED
CHANGE ORDER
10.5.1 The execution of a Change Order by the
Contractor shall constitute conclusive evidence of the
Contractor's agreement to the ordered changes in the
Work, this Contract as thus amended, the Contract
Price and the Contract Time. The Contractor, by
executing the Change Order, waives and forever
releases any claim against the Owner for additional
time or compensation for matters relating to or arising
out of or resulting from the Work included within or
affected by the executed Change Order.
10.6 NOTICE TO SURETY; CONSENT
10.6.1 The Contractor shall notify and obtain
the consent and approval of the Contractor's surety
with reference to all Change Orders if such notice,
consent or approval are required by the Contractor's
surety or by law. The Contractor's execution of the
Change Order shall constitute the Contractor's
warranty to the Owner that the surety has been notified
of and consents to, such Change Order and the surety
shall be conclusively deemed to have been notified of
such Change Order and to have expressly consented
thereto.
ARTICLE XI
UNCOVERING AND CORRECTING WORK
11.1 UNCOVERING WORK
11.1.1 If any of the Work is covered contrary to
the Architect's request or to any provisions of this
Contract, it shall, if required by the Architect or the
Owner, be uncovered for the Architect's inspection
and shall be properly replaced at the Contractor's
expense without change in the Contract Time.
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11.1.2 If any of the Work is covered in a manner
not inconsistent with Subparagraph 11.1.1 above, it
shall, if required by the Architect or Owner, be
uncovered for the Architect's inspection. If such Work
conforms strictly with this Contract, costs of
uncovering and proper replacement shall by Change
Order be charged to the Owner. If such Work does not
strictly conform with this Contract, the Contractor
shall pay the costs of uncovering and proper
replacement.
11.2 CORRECTING WORK
11.2.1 The Contractor shall immediately
proceed to correct Work rejected by the Architect as
defective or failing to conform to this Contract. The
Contractor shall pay all costs and expenses associated
with correcting such rejected Work, including any
additional testing and inspections, and reimbursement
to the Owner for the Architect's services and expenses
made necessary thereby.
11.2.2 If within one (1) year, after Substantial
Completion of the Work any of the Work is found to
be defective or not in accordance with this Contract,
the Contractor shall correct it promptly upon receipt of
written notice from the Owner. This obligation shall
survive final payment by the Owner and termination
of this Contract. With respect to Work first performed
and completed after Substantial Completion, this one
year obligation to specifically correct defective and
nonconforming Work shall be extended by the period
of time which elapses between Substantial Completion
and completion of the subject Work.
11.2.3 Nothing contained in this Paragraph 11.2
shall establish any period of limitation with respect to
other obligations which the Contractor has under this
Contract. Establishment of the one year time period in
Subparagraph 11.2.2 relates only to the duty of the
Contractor to specifically correct the Work.
11.3 OWNER MAY ACCEPT DEFECTIVE
OR NONCONFORMING WORK
11.3.1 If the Owner chooses to accept defective
or nonconforming Work, the Owner may do so. In
such event, the Contract Price shall be reduced by the
greater of (a) the reasonable cost of removing and
correcting the defective or nonconforming Work, and
(b) the difference between the fair market value of the
Project as constructed and the fair market value of the
Project had it not been constructed in such a manner
as to include defective or nonconforming Work. If the
remaining portion of the unpaid Contract Price, if any,
is insufficient to compensate the Owner for its
acceptance of defective or nonconforming Work, the
Contractor shall, upon written demand from the
Owner, pay the Owner such remaining compensation
for accepting defective or nonconforming Work.
ARTICLE XII
CONTRACT TERMINATION
12.1 TERMINATION BY THE CONTRACTOR
12.1.1 If the Work is stopped for a period of
ninety (90) days by an order of any court or other
public authority, or as a result of an act of the
Government, through no fault of the Contractor or any
person or entity working directly or indirectly for the
Contractor, the Contractor may, upon ten (10) days'
written notice to the Owner and the Architect,
terminate performance under this Contract and recover
from the Owner payment for the actual reasonable
expenditures of the Contractor (as limited in
Subparagraph 10.3.2 above) for all Work executed and
for materials, equipment, tools, construction
equipment and machinery actually purchased or rented
solely for the Work, less any salvage value of any such
items.
12.1.2 If the Owner shall persistently or
repeatedly fail to perform any material obligation to
the Contractor for a period of fifteen (15) days after
receiving written notice from the Contractor of its
intent to terminate hereunder, the Contractor may
terminate performance under this Contract by written
notice to the Architect and the Owner. In such event,
the Contractor shall be entitled to recover from the
Owner as though the Owner had terminated the
Contractor's performance under this Contract for
convenience pursuant to Subparagraph 12.2.1
hereunder.
12.2 TERMINATION BY THE OWNER
12.2.1 FOR CONVENmNCE
12.2.1.1 The Owner may for any reason
whatsoever terminate performance under this Contract
by the Contractor for convenience. The Owner shall
give written notice of such termination to the
Contractor specifying when termination becomes
effective.
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
12.2.1.2 The Contractor shall incur no further
obligations in connection with the Work and the
Contractor shall stop Work when such termination
becomes effective. The Contractor shall also
terminate outstanding orders and subcontracts. The
Contractor shall settle the liabilities and claims arising
out of the termination of subcontracts and orders. The
Owner may direct the Contractor to assign the
Contractor's right, title and interest under terminated
orders or subcontracts to the Owner or its designee.
12.2.1.3 The Contractor shall transfer title and
deliver to the Owner such completed or partially
completed Work and materials, equipment, parts,
fixtures, information and Contract rights as the
Contractor has.
12.2.1.4 (a) The Contractor shall submit a
termination claim to the Owner and
the Architect specifying the amounts
due because of the termination for
convenience together with costs,
pricing or other data required by the
Architect. If the Contractor fails to file
a termination claim within one (1) year
from the effective date of termination,
the Owner shall pay the Contractor, an
amount derived in accordance with
subparagraph (c) below.
(b) The Owner and the Contractor may
agree to the compensation, if any, due
to the Contractor hereunder.
(c) Absent agreement to the amount due
to the Contractor, the Owner shall pay
the Contractor the following amounts:
(i) Contract prices for labor, materials,
equipment and other services accepted
under this Contract;
(ii) Reasonable costs incurred in
preparing to perform and in
performing the terminated portion of
the Work, and in terminating the
Contractor's performance, plus a fair
and reasonable allowance for
overhead and profit thereon (such
profit shall not include anticipated
profit or consequential damages),
provided however, that if it appears
that the Contractor would have not
profited or would have sustained a loss
if the entire Contract would have been
completed, no profit shall be allowed
or included and the amount of
compensation shall be reduced to
reflect the anticipated rate of loss, if
any;
(iii) Reasonable costs of settling and
paying claims arising out of the
termination of subcontracts or orders
pursuant to Subparagraph 12.2.1.2 of
this Paragraph. These costs shall not
include amounts paid in accordance
with other provisions hereof.
The total sum to be paid the Contractor under this
Subparagraph 12.2.1 shall not exceed the total
Contract Price, as properly adjusted, reduced by the
amount of payments otherwise made, and shall in no
event include duplication of payment.
12.2.2 FOR CAUSE
12.2.2.1 If the Contractor persistently or
repeatedly refuses or fails to prosecute the Work in a
timely manner, abandons the jobsite and fails to
resume work within five (5) days of written notice
thereof by the Owner, fails to grant or allow access to
the jobsite by the Owner or Architect, fails to supply
enough properly skilled workers, supervisory
personnel or proper equipment or materials, fails to
make prompt payment to Subcontractors or for
materials or labor, persistently disregards laws,
ordinances, rules, regulations or orders of any public
authority having jurisdiction, or otherwise is guilty of
a violation of a material provision of this Contract,
then the Owner may by written notice to the
Contractor, without prejudice to any other right or
remedy, terminate the employment of the Contractor
and take possession of the site and of all materials,
equipment, tools, construction equipment and
machinery thereon owned by the Contractor and may
finish the Work by whatever methods it may deem
expedient. In such case, the Contractor shall not be
entitled to receive any further payment until the Work
is finished.
12.2.2.2 If the unpaid balance of the Contract
Price does not exceed the cost of finishing the work,
including compensation for the Architect's additional
services and expenses made necessary thereby, such
difference shall be paid by the Contractor to the
Owner. This obligation for payment shall survive the
termination of the Contract.
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
12.2.2.3 In the event the employment of the
Contractor is terminated by the Owner for cause
pursuant to Subparagraph 12.2.2 and it is subsequently
determined by a Court of competent jurisdiction that
such termination was without cause, such termination
shall thereupon be deemed a Termination for
Convenience under Subparagraph 12.2.1 and the
provisions of Subparagraph 12.2.1 shall apply.
ARTICLE XIII
I h6 IRKWES10
13.1 CONTRACTOR SHALL
MAINTAIN INSURANCE
13.1.1 The Contractor at his own expense shall
purchase, maintain and keep in force during the life of
this contract, adequate insurance that will protect the
Contractor and/or any Additional Insured from claims
which may arise out of or result from operations under
this contract. The insurance required shall provide
adequate protections from all claims, whether such
operations be by the Contractor or by any Additional
Insured or by any Subcontractor or by anyone directly
or indirectly employed by any of them, or by anyone
whose acts of any of them may be liable and from any
special hazards, such as blasting, which may be
encountered in the performance of this contract in the
amounts as shown below in Paragraph 13.2.1.
13.1.2 The Contractor shall not commence
work on any Contract in the City of Coppell until the
Contractor has obtained all the insurance required
under this paragraph and such insurance has been
approved by the City.
13.2 TYPES AND AMOUNTS OF
CONTRACTOR'S INSURANCE
13.2.1. The Contractor shall furnish and
maintain during the life of the contract adequate
Worker's Compensation and Commercial General
Liability (Public) Insurance in such amounts as
follows:
Tyne of Insurance Amount
Worker's Compensation as set forth in the Worker's
Compensation Act.
Commercial General $1,000,000 Each
Accident/Occurrence.
Liability (Public) $1,000,000 Aggregate
$1,000,000 Products &
Completed Operations
Aggregate.
Owner's Protective $600,000 per occurrence
Liability Insurance $1,000,000 aggregate
Excess/Umbrella Liability $1,000,000 per occurrence
w/drop down coverage
Endorsement CG 2503 Amendment Aggregate
Limit of Insurance per
Project or Owner's and
Contractor's Protective
Liability Insurance for the
Proj ect.
Automobile Liability $500,000 Combined
single limit per
occurrence.
13.3 ADDITIONAL INSURED
The Owner shall be named as an additional insured on
the Commercial General Liability (Public), Owner's
Protective Liability, and Excess/Umbrella Liability
Insurance Policies furnished by the Contractor.
13.4 WRITTEN NOTIFICATION
Each insurance policy shall contain a provision
requiring that thirty (30) days prior to expiration,
cancellation, non -renewal or any material change in
coverage, a notice there of shall be given by certified
mail to the Division of Purchasing, City of Coppell,
255 Parkway Blvd., Coppell, Texas, 75019.
13.5 PREMIUMS AND ASSESSMENTS
Companies issuing the insurance policies shall have no
recourse against the City for payment of any premiums
or assessments for any deductibles which are at the
sole responsibility and risk of the Contractor.
13.6 CERTIFICATE OF INSURANCE
Proof that the insurance is in force shall be furnished
to the City on City of Coppell Standard Certificate of
Insurance Forms. In the event any insurance policy
shown on the Certificate of Insurance has an
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
expiration date that is prior to the completion and final
acceptance of the project by the City of Coppell, the
(5) retain all required certificates of coverage
contractor shall furnish the City proof of identical
on file for the duration of the project and
continued coverage no later than thirty(30) days prior
for one year thereafter;
to the expiration date shown on the Certificate of
Insurance.
(6) notify the governmental entity in writing
13.7 PRIMARY COVERAGE
by certified mail or personal delivery,
within 10 days after the contractor knew or
The coverages provided herein shall be primary and
should have known, of any change that
noncontributory with any other insurance maintained
materially affects the provision of coverage
by the City of Coppell, Texas, for its benefit, including
of any person providing services on the
self-insurance.
project;
13.8 WORKER'S COMPENSATION
(7) post a notice on each project site informing
INSURANCE COVERAGE
all persons providing services on the
project that they are required to be covered,
13.8.1 The Contractor shall:
and stating how a person may verify
current coverage and report failure to
(1) provide coverage for its employees
provide coverage. This notice does not
providing services on a project, for the
satisfy other posting requirements imposed
duration of the project based on proper
by the Act or other commission rules. This
reporting of classification codes and
notice must be printed with a title in at least
payroll amounts and filing of any coverage
30 point bold type and text in at least 19
agreements;
point normal type, and shall be in both
English and Spanish and any other
(2) provide a certificate of coverage showing
language common to the worker
workers' compensation coverage to the
population. The text for the notices shall
governmental entity prior to beginning
be the following text provided by the Texas
work on the project;
Worker's Compensation Commission on
the sample notice, without any additional
(3) provide the governmental entity prior to
words or changes:
the end of the coverage period, a new
certificate of coverage showing extension
of coverage, if the coverage period shown
REQUIRED WORKERS' COMPENSATION
on the contractor's current certificate of
COVERAGE
coverage ends during the duration of the
project;
"The law requires that each person working on this site
or providing services related to this construction
(4) obtain from each person providing services
project must be covered by workers' compensation
on a project, and provide to the
insurance. This includes persons providing, hauling,
governmental entity:
or delivering equipment or materials, or providing
labor or transportation or other service related to the
(A) a certificate of coverage, prior to that
project, regardless of the identity of their employer or
person beginning work on the project,
status as an employee."
so the governmental entity will have
on file certificates of coverage
"Call the Texas Workers' Compensation Commission
showing coverage for all persons
at 512-440-3789 to receive information on the legal
providing services on the project; and
requirement for coverage, to verify whether your
(B) no later than seven days after receipt
employer has provided the required coverage, or to
by the contractor, a new certificate of
report an employer's failure to provide coverage."
coverage showing extension of
coverage, if the coverage period
and
shown on the current certificate of
coverage ends during the duration of
the project;
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BID Q-1121-01
SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
(8) contractually require each person with
whom it contracts to provide services on a
project, to:
(A) provide coverage based on proper
reporting of classification codes and
payroll amounts and filing of any
coverage agreements for all of its
employees providing services on the
project, for the duration of the
proj ect;
(B) provide a certificate of coverage to
the contractor prior to that person
beginning work on the project;
(C) include in all contracts to provide
services on the project the language
in subsection (e)(3) of this rule;
(D) provide 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;
(E) obtain from each other person with
whom it contracts, and provide to
the Contractor:
(i) a certificate of coverage,
prior to the other person
beginning work on the
project; and
(ii) prior to
the end of
the
coverage
period, a new
certificate
of coverage
showing
extension of
the
coverage
period, if
the
coverage
period shown
on
the current certificate
of
coverage
ends during
the
duration of
the project;
(F) retain all required certificates of
coverage on file for the duration of
the project and for one year
thereafter;
(G) 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
(H) contractually require each other
person with whom it contracts, to
perform as required by sub-
paragraphs (A) - (H) of this
paragraph, with the certificate of
coverage to be provided to the
person for whom they are providing
services.
ARTICLE XIV
MISCELLANEOUS
14.1 LAWS AND ORDINANCES
14.1.1 The Contractor shall at all times and in
all respects observe and comply with all federal, state
and local laws, ordinances, and regulations applicable
to the Project and Work. The Contractor shall further
insure that all Subcontractors observe and comply with
said laws, ordinances and regulations.
14.2 GOVERNING LAW
14.2.1 The Contract shall be governed by the
laws of the State of Texas. Venue for any causes of
action arising under the terms or provisions of this
Contract or the Work to be performed hereunder shall
be in the courts of Dallas County, Texas.
14.3 SUCCESSORS AND ASSIGNS
14.3.1 The Owner and Contractor bind
themselves, their successors, assigns and legal
representatives to the other party hereto and to
successors, assigns and legal representatives of such
other party in respect to covenants, agreements and
obligations contained in this Contract. The Contractor
shall not assign this Contract without written consent
of the Owner.
14.4 SURETY BONDS
14.4.1 If the Contract Price exceeds the sum of
$50,000.00, the Contractor shall furnish separate
performance and payment bonds to the Owner,
according to the requirements set out in the bid
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BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
documents and state statutes to guaranty full and
faithful performance of the Contract and the full and
final payment of all persons supplying labor or
materials to the Project. Each bond required by the bid
documents or state statute shall set forth a penal sum
in an amount not less than the Contract Price. Each
bond furnished by the Contractor shall incorporate by
reference the terms of this Contract as fully as though
they were set forth verbatim in such bonds. In the
event the Contract Price is adjusted by Change Order
executed by the Contractor, the penal sum of both the
performance bond and the payment bond shall be
deemed increased by like amount. The performance
and payment bonds furnished by the Contractor shall
be in form suitable to the Owner and shall be executed
by a surety, or sureties, reasonably suitable to the
Owner and authorized to do business in the State of
Texas by the State Board of Insurance.
14.4.2 If the Contract Price exceeds the sum of
$50,000.00, the Contractor, upon execution of the
Contract and prior to commencement of the Work,
shall furnish to the Owner a two-year maintenance
bond in the amount of one hundred percent (100%) of
the Contract Price covering the guaranty and
maintenance prescribed herein, written by an approved
surety authorized and duly licensed to conduct
business in the State of Texas. The cost of said
maintenance bond shall be included in the
Contractor's unit bid prices and shall be paid by the
Contractor.
14.5 SEVERABILITY
14.5.1 The provisions of this Contract are
herein declared to be severable; in the event that any
term, provision or part hereof is determined to be
invalid, void or unenforceable, such determination
shall not affect the validity or enforceability of the
remaining terms, provisions and parts, and this
Contract shall be read as if the invalid, void or
unenforceable portion had not be included herein.
14.6 AMENDMENTS
14.6.1 This Contract may be amended by the
parties only by a written agreement duly executed by
both parties. The failure of the Owner to object to any
nonperformance or nonconforming work or to enforce
any provision hereof shall in no event be regarded as
or construed to be a waiver, release or modification of
any term or provision in this Contract, nor shall such
failure to object or enforce estop the Owner from
insisting on strict compliance with this Contract or
from recovering damages, costs or expenses arising as
a result of such nonperformance or nonconforming
work.
14.7 NOTICES
14.6.1 All notices required by this Contract
shall be presumed received when deposited in the mail
properly addressed to the other party or Architect at
the address set forth herein or set forth in a written
designation of change of address delivered to all
parties and the Architect.
CITY OF COPPELL • PROCUREMENT SVCS. DEPARTMENT • 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Page 20
BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE IMPROVEMENTS
EXECUTED in single or multiple originals, this 28th day of January , 2021.
CITY OF COPPELL
CONTRACTOR:
J.B. & Co. LLC
Q&d 34'--'UHf'
( gnature)
Joel Brown, Manager
(Type/Print Name and Title)
2626 Cole Ave. Suite #300
(Street Address)
allacTX 75204
(City/State/Zip)
CITY OF COPPELL • PROCUREMENT SVCS. DEPARTMENT • 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Page 21
BID Q-1121-01 SOUTHWESTERN WATER TOWER SITE 1WROVEMENTS
CORPORATE ACKNOWLEDGMENT
THE STATE OF Texas
COUNTY OF Dallas
BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally
appeared:
Joel Broom Manager
(Print Name) (Print Title)
of J.B. & Co. LLC 'the Contractor designated hereinabove, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of
the said Contractor, a corporation, that he was duly authorized to perform the same by appropriate resolution of the
board of directors of such corporation and that he executed the same as the act and deed of such corporation for the
purposes and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICt this the 28th day of January A.D., 2021 .
CYNTHIA BENTLEY^ Notary P lic In and For
MyNotary
�I�D{_# 11.32204443 county,�sZ� G�
:�jF SOF ZE+� Exries October 9, 2023
CITY MANAGER'S ACKNOWLEDGMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this
day personally appeared the undersigned, City Manager of the City of Coppell, Texas, a municipal corporation, known
to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that
the same was the act of the said City of Coppell, Texas, a municipal corporation, that he/she was duly authorized to
perform the same by appropriate resolution of the City Council of the City of Coppell and that he/she executed the
same as the act of the said City for purpose and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this da ofCJU. U A.D.,
202 . -�'
11 jjA-
r Notary Public inTo
r the State of Texas
My Commission expires: 02- 2T �23
"" r '', ASHLEY M. OWENS
afaPGe'.
Notary Public, State of Texas
Comm. Expires 02-24-2023
00
Notary ID 130128128
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