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HomeMy WebLinkAboutRES 030811-P - Approve Contract FormRESOLUTION NO, 0 3o $ ( I A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS APPROVING CERTAIN STANDARD CONTRACT FORMS AND PERTAINING TO THE PROCESSING OF STANDARD CONTRACTS; PROVIDING A CONFLICT CLAUSE AND SEVERABILITY CLAUSE; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, staff has recommended certain standard agreements and agenda formats as to facilitate the processing of contracts. NOW THEREFORE BE IT RESOLVED: SECTION ONE. As it pertains to engineering, the proposed Master Services Agreement between Owner and Engineer for Professional Services is attached as Exhibit A and the redlined version of the Master Services Agreement is attached as Exhibit B. The Task Order Form and Task Order Amendment Form to be used in conjunction with the Master Services Agreement are attached as Exhibit C and Exhibit D, respectively. In presenting engineering contract agenda items, staff shall include a completed Task Order form in the agenda packet with. supporting information and documentation. Since the Task Order form references the applicable MSA, staff does not need to duplicate the Master Services Agreement form for the agenda packet. SECTION TWO. As it pertains to construction, the Standard Form of Agreement between Owner And Contractor (redlined version) is attached as Exhibit E. The General Conditions of the Construction Contract and the City's Standard Supplemental Conditions to be used in conjunction with the Standard Form of Agreement are attached as Exhibit F and G In presenting construction contract agenda items, staff shall include the completed Standard Form of Agreement (Exhibit A), the bid tabulation, if any, and recommendations with analysis in the agenda packet. Once the contract terms are approved by Council, the contract documents will be assembled in accordance with the standard forms and Council action. SECTION THREE. As it pertains to the purchase and sale of goods, the standard purchase order with standard terms and conditions to be used is attached hereto as Exhibit H In presenting procurement agenda items, staff shall include a completed Purchase Order, the bid tabulation, if any, and recommendations with analysis in the agenda packet. SECTION FOUR. The following forms, attached to this Resolution, are approved as City of Georgetown standard forms for engineering contracts, construction contracts and procurement contracts: Exhibit A Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Master Services Agreement Task Order Form Task Order Amendment Form Standard Form of Agreement (redline) General Conditions of the Construction Contract Standard Supplemental. Conditions Purchase Order and Teiinns and. Conditions SECTION FIVE If any provision of this Resolution or application thereof to any person or circumstance, shall be held invalid, such invalidity shall not affect the other provisions, or application thereof, of this Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are hereby declared to be severable. SECTION SIX This Resolution shall be effective immediately. SECTION SEVEN. The Mayor is hereby authorized to sign this Resolution and the City Secretary to attest. This Resolution shall become effective upon its adoption. PASSED AND APPROVED on the day of AT I'EST: APPROVED AS TO FORM: Mark Sokolow City Attorney 2011. CITY OF GEORGETOWN, TEXAS By George G'Garver, Mayor Exhibit A Engineers Joint Documents Committee Design and Construction Related Documents Instructions and License Agreement Instructions Before you use anv EJCDC document: 1. Read the License Agreement. You agree to it and are bound by Its terms when you use the EJCDC document. 2. Make sure that you have the correct version for your word processing software. How to Use: I. While EJCDC has expended considerable effort to make the software translations exact, it can be that a few document controls (e.g., bold, underline) did not carry over. 2. Similarly, your software may change the font specification if the font is not available in your system. It will choose a font that is close in appearance In this event, the pagination may not match the control set. If you modify the document, you must follow the instructions in the License Agreement about notification. Also note the instruction in the License Agreement about the EJCDC copyright. License Agreement You should carefully read the following terms and conditions before using this document. Commencement of use of this document indicates your acceptance of these terms and conditions. If you do not agree to them, you should promptly return the materials to the vendor, and your money will be refunded. The Engineers Joint Contract Documents Committee ("EJCDC") provides EJCDC Design and Construction Related Documents and licenses their use worldwide. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from EJCDC Design and Construction Related Documents. You acknowledge that you understand that the text of the contract documents of EJCDC Design and Construction Related Documents has important legal consequences and that consultation with an attorney is recommended with respect to use or modification of the text. You further acknowledge that FJCDC documents are protected by the copyright laws of the United States. License: You have a limited nonexclusive license to; Use EJCDC Design and Construction Related Documents on any number of machines owned, leased or rented by your company or organization. Use EJCDC Design and Construction Related Documents in printed form for bona fide contract documents. 3. Copy EJCDC Design and Construction Related Documents into any machine readable or printed form for backup or modification purposes in support of your use of EJCDC Design and Construction Related Documents. You agree that you will: 1. Reproduce and include EJCDC's copyright notice on any printed or machine-readable copy, modification, or portion merged into another document or program. All proprietary rights in EJCDC Design and Construction Related. Documents are and shall remam the property of EJCDC. 2 Not represent that any of the contract documents you generate from EJCDC Design and Construction Related Documents are EJCDC documents unless (i) the document text is used without alteration or (ii) all additions and changes to, and deletions from, the text are clearly shown. You may not use, copy, modify, or transfer EJCDC Design and Construction Related Documents, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this license. Reproduction of EJCDC Design and Construction Related Documents in printed or machine-readable format for resale or educational purposes is expressly prohibited. If you transfer possession of any copy, modification or merged portion of EJCDC Design and Construction Related Documents to another party, your license is automatically terminated. Term: The license is effective until terminated. You may terminate it at any time by destroying EJCDC Design and Construction Related Documents altogether with all copies modifications and merged portions in any form. It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy EJCDC Design and Construction Related Documents along with all copies, modifications and merged portions in any form Modified Version of EJCDC E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task order Edition Copyright tD 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Limited Warranty: EJCDC warrants the CDs and diskettes on which EJCDC Design and Construction Related Documents is furnished to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery to you as evidenced by a copy of your receipt. There is no other warranty of any kind, either expressed or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from state to state. EJCDC does not warrant that the functions contained in EJCDC Design and Construction Related Documents will meet your requirements or that the operation of EJCDC Design and Construction Related Documents will be uninterrupted or error free. Limitations of Remedies: EJCDC's entire liability and your exclusive remedy shall be: 1. the replacement of any document not meeting EJCDC's "Limited Warranty" which is returned to EJCDC's selling agent with a copy of your receipt, or 2. if EJCDC's selling agent is unable to deliver a replacement CD or diskette which is flee of defects in materials and workmanship, you may terminate this Agreement by returning EJCDC Document and your money will be refunded In no event will EJCDC be liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use EJCDC Design and Construction Related Documents even if EJCDC has been advised of the possibility of such damages, or for any claim by any other party Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. General: You may not sublicense, assign, or transfer this License except as expressly provided in this Agreement Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void. This Agreement shall be governed by the laws of the State of Virginia. Should you have any questions concerning this Agreement, you may contact EJCDC by writing to: Arthur Schwartz, Esq. General Counsel National Society of Professional Engineers 1420 King Street Alexandria, VA 22314 Phone: (703) 684-2845 Fax: (703) 836-4875 e-mail• aschwartz@nspe.org You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this agreement. Modified Version of EJCDC E-5Q5 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 0 2094 NationalSociety of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Modified Version of EJCDC No. E-5O5 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law. STANDA FO ' OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES TASK 0 '_ ER EDITION Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by XCFff ANF➢fc3N ChvucEa or FSIGINEVIINf COMPANIES National Society of aR Professional Engineers Prolessianal Engineers in Private Practice PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practice drvision of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS THE ASSOCIATED GEI\LRAL CONTRACTORS OF AMERICA American Society of Civil Engineers This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (No. C-700, 2002 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are interrelated, and a change in one may necessitate a change in the other. EJCDC No. E-505 (2004 Edition) Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright ij 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Copyright© 2004 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 703-684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W. Washington, DC 20005 202-347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 800-548-2723 www.asce org The Associated General Contractors of America 333 John Carlyle Street, Ste. 2000, Alexandria, VA 22314 703-548-3118 www.auc.org Alodified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright 2004 Na tional Society of Professional Engineers for EJCDC All rights reserved. Insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. TABLE OF CONTENTS Page Article 1 — SERVICES OF ENGINEER 1 1.01 Scope 1 1.02 Task Order Procedure 1 Article 2 — OWNER'S RESPONSIBTT ,ITIES 2 2.01 General 2 Article 3 — 1'ERM; TIMES FOR RENDERING SERVICES 2 3.01 Term 2 3.02 Times for Rendering Services 23. Article 4 — PAYMENTS TO ENGINEER 3 4.01 Invoices 3 4.02 Payments 3 Article 5 — OPINIONS OF COST 34 5.01 Opinions of Probable Construction Cost 34 5.02 Designing to Construction Cost Limit 45- 5.03 Opinions of Total Project Costs Error! Bookmark not defined 5 Article 6 — GENERAL CONSTT)ERATIONS 45 6.01 Standards of Performance 45 6.02 Design Without Construction Phase Services Error! Bookmark not defined 7 6.03 Use of Documents Error! Bookmark not defined 7 6.04 Insurance 618 6.05 Suspension and Termination 844 6.06 Controlling Law 94-4 6.07 Successors, Assigns, and Beneficiaries 1041-4 6.08 Dispute Resolution I044 6.09 Environmental Condition of Site 1115 6.10 Indemnification and Mutual Waiver 1116 6.11 Miscellaneous Provisions 134-9 Article 7 — DEFINI PIONS 1420 7.01 Defined Terms 1420 Article 8 — EXHIBITS AND SPECIAL PROVISIONS 192$ 8.01 Exhibits 1925 8.02 Total Agreement 1925 8.03 Designated Representatives 1915 Modified Version of EJCDC No. E-505 Standard Forrn of Agreement Between Owner and Engineer for Professional Services —Task Onlcr Edition Copyright © 2004 National society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City secretary's office. MASTER SERVICES AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES TASK ORDER EDITION THIS IS AN AGREEMENT effective as of ("Effective Date") between the City of Georgetown, A Texas Home Rule 1Vlunicipal Corporation ("Owner" or "City") and ("Engineer"). From time to time Owner may request that Engineer provide professional services for Specific Projects. Each engagement will be documented by a Task Order. This Agreement sets forth the general terms and conditions which shall apply to all Task Orders duly executed under this Agreement. Owner and Engineer agree as follows: ARTICLE 1- SERVICES OF ENGINEER 1.01 Scope A. Engineer's services ("Services") will be detailed in a duly executed Task Order for each Specific Project. Each Task Order will indicate the specific tasks and functions to be performed and deliverables to be provided. The general format of a Task Order is shown in Attachment 1 to this Agreement. This Agreement is not a commitment by Owner to Engineer to issue any Task Orders. D. A Task Order will be effective when executed by Owner and Engineer. Engineer shall not perfotin under any prospective Task Order unless and until a Task Order is executed by Owner and Engineer. 1.02 Task Order Procedure A. Owner and Engineer shall agree on the scope, time for perfoiivance, and basis of compensation for each Task Order. Each duly executed Task Order shall be subject to the terms and conditions of this Agreement. B. Engineer will commence performance as set forth in the Task Order When Services under a Task Order are eighty percent (80 %) complete Engineer shall provide written notice to Owner's Designated Representative (1) certifying that Engineer will complete the scope of Services for the amount of the Task Order and in the time required by the Task Order; or (2) explaining why Engineer is unable or unwilling to make such certification. When a Task Order includes more than one phase of Services, Engineer shall provide the notice at eighty percent (80%) completion of each phase Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 1 of 27 C. Changes in an approved Task Order may be initiated by the Engineer or Owner by a Task Order Amendment. The Task Order Amendment shall (i) describe a change in scope, including Services to be added, changed, or deleted; (ii) state the additional cost or cost reduction; and (iii) described schedule changes, if any. The general format of a Task Order Amendment is show in Exhibit K to this Agreement A Task Order Amendment will be effective when executed by Owner and Engineer. Engineer shall not perform under any prospective Task Order Amendment unless and until the Task Order Amendment is executed by Owner and Engineer. Oral amendments to a Task Order will have no effect, except in cases of an emergency threatening personal injury or property damage. In such case, the Owner and Engineer will document the Task Order Amendment in writing, as soon as possible. D. If Engineer becomes aware that a change concerning a Specific Project may require a Task Order Amendment to increase the scope of Services, request additional cost or request additional time, Engineer shall provide written notice to the Owner's Designated Representative within ten (10) days. If Engineer determines that a Task Order Amendment is required as a result of the change, Engineer shall initiate a Task Order Amendment within ten (10) days. 1.03 Task Order Amount. Engineer shall provide a not to exceed amount to perfonn the scope of Services included in the Task Order. A Level of Effort Table will be submitted to Owner to document and support Engmeer s calculation of the not to exceed amount, including but not limited to a Standard Hourly Rate Schedule and a Reimbursable Expense Schedule. ARTICLE 2 — OWNER'S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein, in this Agreement and in a Task Order. ARTICLE 3 3.01 Tenn — TERM; TIMES FOR RENDERING SERVICES A. This Agreement shall be effective and applicable to Task Orders issued hereunder for five (5) years from the Effective Date of the Agreement. 3.02 Times for Rendering Services A. the times for performing Services or providing deliverables will be stated in each Task Order. Time is of the essence. Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. C. If Engineer fails, through its own fault, to complete the performance required in a Task Order within the time set forth, as duly adjusted, then Owner shall be entitled to the recovery of damages resulting from such failure Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. MI rights reserved. Insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 2 of 27 ARTICLE 4 — PAYMENTS TO ENGINEER 4.01 Invoices A. Preparation and Submittal of Invoices Engineer shall prepare invoices in accordance with the specific Task Order. Engineer shall submit invoices to Owner on a monthly basis. 4.02 Payments A. Owner agrees to pay Engineer in accordance with Texas Government Code Chapter 2251. Engineer shall pay' all Consultants and other expenses incurred under the Task Order in accordance with Texas Government Code Chapter 2251. Compensation Methods. Engineering Services will be compensated in accordance with one or more of the following methods as specified in the Task Order: 1. Lwnp Sum Method. The Lump Sum will include compensation for Engineer' s services and services of Consultants, if any. Appropriate amounts will be incorporated in the Lump Sum to account for labor, overhead and profit. Owner will pay Engineer for reasonable and customary Reimbursable Expenses in addition to Lump Sum. Standard Hourly Rates Method. The cumulative hours charged to the Specific Project is calculated by multiplying each class of Engineer's employees by the Standard Hourly Rates for each applicable billing class for all Services performed on the Specific Project and Consultant's charges if any. Standard Hourly Rates include salaries and wages paid to personnel in each billing class plus the cost of Customary and statutory benefits, general and administrative overhead, non -project operating costs, and operating margin of profit. In addition, Owner will pay Engineer for reasonable and customary Reimbursable Expenses. Failure to Pay. If Owner fails to make any payment that is due, Engineer may, after giving seven (7) days written notice to Owner, suspend services under the Task Order until Owner pays the amount due. Disputed Invoices. If Owner contests an invoice, Owner may withhold only that portion so contested, and must pay the undisputed portion. ARTICLE 5 — OPINIONS OF COST 5.01 Opinions of Cost. A. Engineer's opinions of probable Construction Cost are to be made on the basis of Engineer's experience and qualifications and represent Engineer's judgment as an experienced and qualified professional generally familiar with the construction industry However, Engineer does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. Engineer's opinions of Total Project Costs are to be made on the basis of Engineer's experience and qualifications and represent Engineer's judgment as an experienced and Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright © 2004 National Society ofProfessional Engineers for EJCDC. All rights reserved. Insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page3 of 27 qualified professional generally familiar with the construction industry. However, Engineer does not guarantee that Total Project Costs will not vary from opinions of Total Project Costs prepared by Engineer. 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer in a Task Order, Engineer's rights and responsibilities with respect thereto will be governed by the terms of the Task Order. ARTICLE 6 — GENERAL CONSIDERATIONS 6.01 Standards of Performance A. The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will conform to standard engineering practices and applicable rules and regulations of the Texas Engineering Practices Act and the rules of the Texas Board of Professional Engineers Engineer warrants that the professional engineering and related services performed or furnished by Engineer under this Agreement, and Task Order issued under this Agreement, if any, shall meet or exceed such standard of care B. Owner shall not be responsible for discovering deficiencies in the technical accuracy of Engineer's services. Engineer shall correct any such deficiencies in technical accuracy without additional compensation except to the extent such corrective action is directly attnbutable to deficiencies in Owner -furnished information, not reasonably known or discoverable by Engineer. C. Engineer shall serve as Owner's prime professional under each Task Order. Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Subject to the standard of care set forth in Paragraph 6.O1.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors manufacturers, suppliers, and the publishers of technical standards. E. Engineer and Owner shall comply with applicable Laws and Regulations and additional Owner -mandated standards, if any, that Owner has provided to Engineer in writing. This Agreement is based on these requirements as of the Effective Date of each Task Order. Changes to these requirements after the Effective Date of each Task Order may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, and compensation. F. Engineer shall not be required to sign any documents, no matter by who requested, that would result in Engineer having to certify, guarantee, or warrant the existence of conditions whose existence Engineer cannot ascertain within its Services for that Specific Project. Owner agrees not to make resolution of any dispute with Engineer or payment of Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. Ail rights reserved. insertions and deletions are available to be reviewed in the document attached as Exhibit "B^ to Resolution No. in the City Secretary's office. Page 4 of 27 any amount due to the Engineer in any way contingent upon Engineer signing any such certification. G. Engineer shall not at any time supervise, direct, or have control over a Contractor's work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by a Contractor, for security or safety at any Site, for safety precautions and programs incident to a Contractor's work in progress, nor for any failure of a Contractor to comply with Laws and Regulations applicable to a Contractor's furnishing and performing the Work. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. Engineer shall not be responsible for the acts or omissions of any Contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees and its Consultants) at a Site or otherwise furnishing or performing any of a Contractor's work, or for any decision made on interpretations or clarifications of the Contract Documents given by Owner without consultation and advice of Engineer. Engineer shall at all times be an independent contractor with the sole authority to control and direct the performance of the details of the Services. Engineer shall not purport to be an employee or agent of the City and shall not have any right or power to bind the City to any obligation. K. Engineer shall procure and maintain at its expense all licenses and permits necessary to perform Services. Engineer shall require that its employees and Consultants are properly licensed to perform their respective portion of Services. The Services to be performed under this Agreement shall be performed entirely at Engineer's risk. Engineer shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Services to be performed under this Agreement. Engineer shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury, or loss to employees, the Services, endangered species, or the property affected by this Agreement. All damage or loss to any property caused in whole or in part by Engineer, Consultant, or anyone employed by either of them shall be remedied by Engineer. 6.02 Ownerships of Docznnents A. City shall have the title to and ownership of all documents produced or developed by Engineer in connection with a Task Order issued pursuant to this Agreement Documents include publications, plans drawings, designs, specifications, photographs, studies, reports schedules, computer programs, and other data and work product, in any form or media. Owner shall have sole ownership of all copyright interest in all documents to the extent that documents may be copyrighted Engineer shall deliver all documents to the Owner at completion of the Specific Project under a Task Order, termination of Services under a Task Order, or upon Owner's request. Engineer may retain copies of its work product. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. MI rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 5 of27 6.03 Insurance A. At all times for the term of this Agreement and when any Task Order is under perfoitnance, Engineer shall procure and maintain insurance as set forth in Exhibit G, 'Insurance." Engineer's failure to purchase and maintain the required insurance shall be grounds for Owner's termination or suspension of this Agreement or a Task Order. B Engineer shall cause Owner and its elected officials, officers, directors, employees, representatives and volunteers to be listed as an additional insured on any applicable general liability insurance policy carried by Engineer which is apphcable to a Specific Project. The additional insured status must cover completed operations as well, and the policy covering completed work must remain in effect until the expiration of the statute of repose. As respects the Workers Compensation policy, the Engineer will waive subrogation in favor of the Owner. C. Engineer must complete and forward the required Certificates of Insurance to the Owner when Engineer executes this Agreement as verification of coverage required as indicated. Engineer shall not provide any Services under a Task Order until the required insurance is obtained and until such insurance has been reviewed by the Owner. Approval of insurance by the Owner shall not relieve or decrease the liability of Engineer and shall not be construed to be a limitation of liability on the part of Engineer. Engineer must also complete and forward the required Certificates of Insurance to the Owner whenever a previously indentified policy period has expired as verification of continuing coverage. D. Engineer's insurance coverage shall be written by companies licensed and authorized to do business in the State of Texas before the policies are issued and shall be written by companies with A M Best rating A VIII or better. All endorsements naming the Owner as additional insured, waivers, and notices of cancellation, as well as the Certificates of Insurances shall Indicate: City of Georgetown, 300-1 Industrial Avenue, Georgetown, Texas 78626, ATTN: Contract Manager. The "other insurance" clause shall not apply to the Owner where the Owner is an additional insured shown on any policy. It is agreed that the Engineer's general liability insurance shall be considered primary with respect to any insurance or self insurance carried by the Owner. The Owner's insurance shall apply separately to each insured against whom a claim is made and/or lawsuits brought except with respect to the limits of insured's liability G. If insurance policies are not written for the specified amounts, Engineer shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified. If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. II. Owner shall be entitled, upon request and without expense, to receive "certified copies" of policies and policy endorsements and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the Parties or the underwriter on any such policies. Alodilied Version of EJCDC No. E-5D5 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright© 2D{14 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 6 of 27 Owner reserves the right to review the insurance requirements during the effective period of this Agreement and to make reasonable adjustments to insurance coverage, limits and exclusions when deemed necessary and prudent by the Owner. Owner may request, in a Task Order or Task Order Amendment, that Engineer and its Consultants provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage different limits, or revised deductibles for such periods of time as requested by Owner In the Task Order or Task Order Amendment. Engineer shall not allow any insurance to be cancelled nor permit any insurance to lapse during the term of this Agreement or as required in this Agreement. The policies must contain the following language: "This policy shall not be cancelled or not renewed until after thirty (30) days prior written notice has been given to the additional insured, the City of Georgetown." In addition, Engineer shall provide Owner thirty (30) days wntten notice of erosion of the aggregate limits below occurrence hmits for all applicable coverages indicated within the Agreement Engineer shall be responsible for premiums, deductibles and self insured retentions, if any, as stated in policies. All deductibles or self insured retentions shall be disclosed on the Certificates of Insurance. If Owner's property is being transported or stored off -site by Engineer, then the appropriate property policy will be endorsed for transit and storage in an amount sufficient to protect the Owner's property. M. The insurance coverages required under this Agreement are required mininums and are not intended to limit the responsibility or liability of Engineer. N. Without limiting any of the other obligations or Iiabilities of the Engineer, the Engineer shall require each Consultant performing work under a Task Order to maintain during the term of the Task Order, at the Consultant's expense, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above As an alternative, the Engineer may include its Consultants as additional insureds on its own coverage as prescribed under these requirements. The Engineer's Certificate of Insurance shall note in such event that the Consultants are included as additional insureds and that Engineer agrees to provide Workers Compensation for the Consultants and their employees. The Engineer shall obtain and monitor the Certificates of Insurance from each Consultant in order to comply with the insurance requirements The Engineer must retain the Certificates of Insurance for the duration of the Task Order plus five (5) years and shall have the responsibility of enforcing these insurance requirements among its Consultants. The Owner shall be entitled, upon request and without expense, to receive copies of these Certificates of Insurance O. Owner shall require Contractors to purchase and maintain general liability and other insurance in accordance with the requirements of Paragraph 5.04 of the Standard General Conditions of the Construction Contract (No. C-700, 2002 Edition) of the Fngmeers Joint Contract Documents Committee, and to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractors. Modified Version of EJCDC No. E-595 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit"B" to Resolution No. in the City Secretary's office. Pnge 7 of 27 6.04 Suspension and Termination A. Suspension Owner has the right to suspend all or any portion of the Services to be performed under a Task Order upon ten (10) days written notice to Engineer. Upon receipt of a notice of suspension, Engineer shall: a. immediately suspend Services on the date and to the extent specified in the notice; b. protect and maintain the portion of the Services completed, including the portion of the Services suspended, unless otherwise specifically stated in the notice; and c. continue to perform the Services not suspended. 2. If Owner suspends Services to be perfontned under a Task Order, Owner shall pay Engineer, as specified in the Task Order, for the Services completed to the date of suspension. Owner will also reimburse Engineer for the following costs, without duplication of any item, to the extent that such costs actually result from such suspension of Services' a. a reasonable standby charge to compensate Engineer for keeping (to the extent required in the notice) its organization and equipment committed to the Services m standby status; b. reasonable costs associated with demobilization of Engineer's facility, forces and equipment, and c. reasonable cost of maintaining and protecting that portion of the Services upon which activities have been suspended. 3. Engineer shall not be entitled to receive any other compensation or reimbursement resulting from a suspension in Services under a Task Order. 4. Upon receipt of notice to restart the suspended portion of Services, Engineer shall immediately resume performance to the extent required in the notice. Within ten (10 days after receipt of notice to resume the suspended portion the Engineer shall submit a revised schedule for approval by Owner If, as a result of any suspension the cost to Engineer of subsequently performing the Services or the time required to perform the Services is changed, Engineer may initiate a Task Order Amendment. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Copyright Ch 2004 National Society ofProfessional Engineers for EJCDC. All rights reserved. document attached as Exhibit "B" to Resolution No. Page 8 of 27 Engineer for Professional Services — Task Order Edition Insertions and deletions are available to be reviewed in the in the City Secretary's office. Termination. The obligation to provide further services under this Agreement, or under a Task Order, may be terminated: For Cause, a. The obligation to provide further services under this Agreement, or under a Task Order, may be terminated by Owner, for cause, upon ten (10) days written notice in the event of substantial failure by Engineer to perform in accordance with this Agreement or any Task Order. This Agreement, or Task Order will not terminate if the Engineer corrects the failure to perfoun and proceeds diligently to cure such failure within no more than thirty (30) days of receipt of the notice. If Engineer fails to cure the default, Owner may provide written notice of termination to Engineer. The obligation to provide further services under this Agreement, or under Task Order, may be terminated by Engineer, for cause, upon ten (10) days written notice in the event of substantial failure by Owner to perform in accordance with the teens of this Agreement or any Task Order. This Agreement, or a Task Order, will not terminate if the Owner corrects the failure to perfouii and proceeds diligently to cure such failure within no more than thirty (30) days of receipt of the notice If Owner fails to cure the default, Engineer may provide written notice of termination to Owner. 2. For Convenience, a. Owner has the right to terminate a Task Order under this Agreement for convenience at any time by providing ten (10) days written notice to Engineer. Upon receipt of a notice of termination for convenience, Engineer shall: 1) immediately cease providing Services under the Task Order, and 2) protect and maintain the portion of the Services completed, unless otherwise specifically stated in the notice. In the event of a termination for convenience, Owner shall pay Engineer, as specified in the Task Order, for the Services completed to the date of termination. Owner shall not be liable for special, incidental, consequential or punitive damages, for loss of anticipated future Services, anticipated profits, administrative costs or overhead on anticipated Services, or other indirect costs as a result of a termination for convenience. 6.05 Controlling Law A. This Agreement is to be govemed by and construed in accordance with Texas law Owner and Engineer each submit to the exclusive jurisdiction of the state and federal courts in Williamson County, Texas. Owner does not waive the defense of sovereign immunity. Modified Version of EJCDC No. E-5O5 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 9 of 27 6.06 Successors, Assigns, and Beneficiaries A. Owner and Engineer each is hereby bound and the partners, successors, executors, administrators and legal representatives of Owner and Engineer are hereby bound to the other Party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other Party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. There are no third party beneficiaries to this Agreement. The provisions of this Agreement do not, and shall not be construed to, create any legal or equitable right, remedy or claim enforceable by any person or entity other than Owner and Engineer. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in the Contract Documents. 6.07 Dispute Resolution A. If a dispute arises under this Agreement or a Task Order, Owner and Engineer agree to negotiate the dispute between them in good faith for a period of 30 days from the date of written notice of the dispute. B. If the Parties fail to resolve a dispute through negotiation under Paragraph 6.08.A, then Owner and Engineer agree that they shall submit any and all unsettled claims, counterclaims and other matters in question between them arising out of or relating to this Agreement or a Task Order to mediation. C. If mediation is unsuccessful in resolving a dispute, then any and all unsettled claims, counterclaims, and other matters in question between Owner and Engineer ansing out of or relating to this Agreement or Task Order (a) may be submitted to binding arbitration by written agreement of the Parties, or (b) may be filed by either Party in a court of competent jurisdiction D. Lpon Owner's request, Engineer shall proceed with performance of Services pending final resolution of a dispute arising under this Agreement or a Task Order. !Waddled Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 10 of 27 6.08 Environmental Condition of Site A. With respect to each Task Order, Specific Project, and Site: Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hazardous substances, and other Constituents of Concern located at or near the Site, including type, quantity, and Location. Owner represents to Engineer that to its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. 3. If Engineer encounters an undisclosed Constituent of Concern, then Engineer shall notify (a) Owner and (b) appropnate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. If Engineer or any other Party encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Specific Project affected thereby until the Site is in full compliance with applicable Laws and Regulations. 5. If the presence at the Site of undisclosed Constituents of Concern adversely affects the performance of Engineer's services under a Task Order, then the Engineer shall have the option of (a) submitting a Task Order Amendment for adjustment in its compensation or in the time of completion, or both; or (b) terminating this Agreement for cause. 6.09 Indeninification A. General Obligation to Indemnify and Defend. TO THE FULLEST EXTENT PERMITTED BY LAW, ENGINEER AGREES TO INDEMNIFY AND HOLD HARMLESS THE OWNER, ITS ELECTED OFFICIALS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES AND VOLUNTEERS OF AND FROM DAMAGES, INJURIES (INCLUDING DEATH), CLAIMS, PROPERTY DAMAGES (INCLUDING LOSS OF USE), LOSSES, DEMANDS, FORFEITURES, PENALTIES, FINES, COSTS, LAWSUITS, LIABILITIES, AC 1'IONS, AND CAUSES OF ACTION, OF EVERY KIND WHATSOEVER, AND EXPENSES, INCLUDING BUT NOT LIMITED TO FEES AND CHARGES OF ENGINEERS, ATTORNEYS, AND OTHER PROFESSIONALS, AND COURT, ARBITRATION, OR OTHER DISPUTE RESOLUTION COSTS, AND EXPENSES AND COSTS OF INVESTIGATION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY TASK ORDER, OR ANY SPECIFIC PROJECT, TO THE EXTENT CAUSED BY 1) THE NEGLIGENT ACT OR OMISSION OR WILLFUL ACTS OF ENGINEER OR ENGINEER'S OFFICERS, DIRECTORS, PARTNERS, AGENTS, EMPLOYEES, OR CONSULTANTS OR 2) MATERIAL BREACH OF THIS AGREEMENT OR TASK ORDER ENGINEER FURTHER AGREES TO DEFEND, AT ITS OWN EXPENSE, ON BEHALF OF THE OWNER AND IN THE NAME OF THE Modified Version of EJCDC No. L-595 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright © 2094 National Society of Professional Engineers for EJCDC. Alt rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page I 1 of 27 OWNER, SUITS AND PROCEEDINGS INSTITUTED AGAINST OWNER TO WHICH THE INDEMNITY OBLIGATION APPLIES, AND PAY AWARDS OF DAMAGES ASSESSED WHICH RESULT FROM ANY SUCH CLAIM, SUIT OR PROCEEDING, INCLUDING ASSOCIATED EXPENSES, ATTORNEY FEES, COSTS OF INVESTIGATION, ARBITRATION AND/OR LITIGATION. B. Intellectual Property . 1. ENGINEER AGREES TO INDEMNIFY AND HOLD HARMLESS THE OWNER, ITS ELECTED OFFICIALS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES AND VOLUNTEERS OF AND FROM DAMAGES, CLAIMS, LOSSES, DEMANDS, FORFEITURES, PENALTIES, FINES, COSTS, LAWSUITS, LIABILITIES, ACTIONS, CAUSES OF ACTION OF EVERY KIND WHATSOEVER, AND EXPENSES, INCLUDING BUT NOT LIMITED TO FEES AND CHARGES OF ENGINEERS, ATTORNEYS, AND OTHER PROFESSIONALS, AND COURT, ARBITRATION, OR OTHER DISPUTE RESOLUTION COSTS, AND EXPENSES AND COSTS OF INVESTIGATION, TO THE EXTENT CAUSED BY ALLEGED INFRINGEMENT OF PATENT OR COPYRIGHT OF THE UNITED STATES OR OF ANY TRADEMARK OR TRADE SECRET PROTECTED BY EITHER FEDERAL OR STATE LAW BY ENGINEER OR ENGINEER'S OFFICERS, DIRECTORS, PARTNERS, AGENTS, EMPLOYEES, OR CONSULTANTS. ENGINEER SHALL, AT ITS OWN EXPENSE, DEFEND SUITS OR PROCEEDINGS INSTITUTED AGAINST OWNER, AND PAY AWARDS OF DAMAGES ASSESSED WHICH RESULT FROM ANY SUCH CLAIM, SUIT OR PROCEEDING, INCLUDING ASSOCIATED EXPENSES, ATTORNEY FEES, COSTS OF INVESTIGATION, ARBITRATION AND/OR LITIGATION, AND SHALL ABIDE BY RESULTING DECREES AND COMPROMISES. 2. IF A RESTRAINING ORDER OR TEMPORARY INJUNCTION IS GRANTED, ENGINEER SHALL MAKE EVERY REASONABLE EFFORT, BY GIVING A SATISFACTORY BOND OR OTHERWISE, TO SECURE THE SUSPENSION OF ANY SUCH RESTRAINING ORDER OR TEMPORARY INJUNCTION. IF THE SERVICES ARE HELD TO CONSTITUTE AN INFRINGEMENT, AND PERMANENTLY ENJOINED, ENGINEER SHALL MAKE EVERY REASONABLE EFFORT TO SECURE FOR OWNER A LICENSE AT ENGINEER'S EXPENSE AUTHORIZING THE CONTINUED USE OF THE ALLEGED INFRINGING PORTION OF THE SERVICES. IF ENGINEER IS UNABLE TO SECURE SUCH LICENSE WITHIN A REASONABLE TIME, ENGINEER SHALL, AT ITS OWN EXPENSE AND WITHOUT IMPAIRING PERFORMANCE REQUIREMENTS, EITHER PROVIDE NON -INFRINGING REPLACEMENT OR MODIFY THE SERVICES TO ELIMINATE THE INFRINGEMENT. IN ADDITION TO INDEMNIFYING AND SAVING OWNER HARMLESS, ENGINEER SHALL REIMBURSE OWNER FOR ANY COSTS INCURRED AS A RESULT OF THE UNAVAILABILITY OF THE INFRINGING ITEM OR ITS NONINFRINGING REPLACEMENT. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —'task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 12 of27 C. Engineer's indemnity obligations are independent covenants and shall survive completion of or termination of the Agreement or any claimed breach of the Agreement. D. Owner shall promptly notify Engineer, in writing, of receipt of notice of the commencement or threatened commencement of any civil, administrative or investigative action or proceeding involving a claim for which Owner seeks indemnification. No failure to so notify Engineer shall relieve Engineer of its obligations under this Agreement except to the extent that Engineer can demonstrate damages attributable to such failure Within fifteen (15) days following receipt of written notice from the Owner, but no later than ten (10) days before the date on which any response to a complaint or summons is due, Engineer shall assume control of the defense and/or resolution of the claim. Release. Engineer assumes full responsibility for the Services to be performed and releases, relinquishes, and discharges the City, its elected officials, officers, directors, agents, employees representatives and volunteers from all claims, demands, andcauses of action of every kind and character, including the cost of defense, for any injury to or death of any person (whether employees of either Party or other third parties) and any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with Services performed under this Agreement or a Task Order. This release shall apply regardless of whether the claims, demands and/or causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Engineer, any Consultant, or any person or organization directly or indirectly employed by any of them to perform or furnish Services under this Agreement. 6.10 Miscellaneous .Provisions A. Notices. Any notice required under this Agreement will be in writing and sent to the Designated Representative by personal delivery, facsimile, registered or certified mail postage prepaid, or a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival. All express representations, waivers, indemnifications, and limitations of liability included in this Agreement wilI survive its completion or termination for any reason. Severability. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer. Waiver. A Party's non -enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. Applicability to Task Orders. The terms and conditions set forth in this Agreement apply to each Task Order as if set forth in the Task Order, unless specifically modified in the Task Order. In the event of a conflict between this Agreement and a Task Order, the conflicting provisions of the Task Order shall take precedence for that Task Order. Such amendments shall be applicable to all Task Orders issued after the effective date of the amendment if not otherwise set forth m the amendment. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright © 2064 National Society of Professional Engineers for EJCDC. All rights reserved. insertions and deletions arc available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page I3 of27 F. Non -Exclusive Agreement. Nothing herein shall establish an exclusive relationship between Owner and Engineer. Owner may enter into similar agreements with other professionals for the same or different types of services contemplated hereunder, and Engineer may enter into similar or different agreements with other owners for the same or different services contemplated hereunder. ARTICLE 7 — DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto and any Task Order) teens (including the singular and plural forms) printed with initial capital letters have the meanings indicated in the text above, m the Exhibits or Task Order, or in the following provisions: Addenda — Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services — Services to be performed for or furnished to Owner by Engineer in accordance with a Task Order which are not included in Basic Services for that Task Order. 3. Agreement — This "Master Services Agreement between Owner and Engineer for Professional Services — Task Order Edition" including those Fxhibits listed in Article 8 and any duly executed Task Order 4. Application for Payment — The form acceptable to Engineer which is to be used by a Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos — Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services — Specified services to be perfoitned for or furnished to Owner by Engineer in accordance with a Task Order. 7. Bid— The offer or proposal of a bidder submitted on the prescribed form setting forth the prices for the Work to be performed. Bidding Documents — The advertisement or invitation to Bid, instructions to bidders, the Bid foils and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. Change Order — A document recommended by Engineer, which is signed by a Contractor and Owner to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times. Modified Version of EJCDC No. E-5Q5 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright© 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 14 of27 10. Constituent of Concern — Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§9601 et seq. ("CERCLA"), (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq ; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. ("RCRA"), (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq ; (e) the Clean Water Act, 33 U.S.C. §§1251 et seq.; (f) the Clean Air Act, 42 U.S.0 §§7401 et seq., and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 11. Construction Agreement — The written instrument which is evidence of the agreement, contained in the Contract Documents, between Owner and a Contractor covering the Work. 12. Construction Contract — The entire and integrated written agreement between Owner and a Contractor concerning the Work 13. Construction Cost — The cost to Owner of those portions of an entire Specific Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or Owner's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connectionwith a Specific Project, or the cost of other services to be provided by others to Owner. Construction Cost is one of the items comprising Total Project Costs. 14. Consultants — Individuals or entities having a contract with Engineer to furnish services with respect to a Specific Project as Engineer's independent professional associates, consultants, subcontractors, or vendors. The term Engineer includes Engineer's Consultants. 15. Contract Documents — Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between Owner and a Contractor, Addenda (which pertain to the Contract Documents), a contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and Engineer's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright CO 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 15 of27 16. Contract Price — The moneys payable by Owner to a Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 17. Contract Times — The numbers of days or the dates stated in a Construction Agreement to: (i) achieve Substantial Completion, (ii) complete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment, and (iii) meet any other specified milestone. 18. Contractor — An individual or entity with whom Owner enters into a Construction Agreement for a Specific Project. 19. Correction Period — The time after Substantial Completion during which a Contractor must correct, at no cost to Owner any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescnbed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 20. Defective — An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that itdoes not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to Engineer's recommendation of final payment. 21. Documents — Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by Engineer to Owner pursuant to this Agreement 22. Drawings — That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be perfoutued by a Contractor. Shop Drawings are not Drawings as so defined. 23. Effective Date of the Construction Agreement — The date indicated in a Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 24. Effective Date of the Agreement — The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 25. Effective Date of the Task Order — The date indicated in the Task Order on which it becomes effective, but if no such date is indicated, it means the date on which the Task Order is signed and delivered by the last of the two parties to sign and deliver. 26. Field Order — A written order issued by Engineer which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. Modified Version of EJCDC No. E-505 Standard Form of Agreement Betwecn Owner and Engineer for Professional Services —Task Order Edition Copyright IC 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to he reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 15 of27 27. General Conditions — That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by a Contractor with respect to a Specific Project. The "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Document Committee (Document No. C-700, 2007 Edition) wiII be used unless both Parties mutually agree in a Task Order to use other General Conditions. 28. Hazardous Waste — The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations — Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCBs — Polychlorinated biphenyls. 3.1. Pea oleum — Petroleum, including crude oil or any fraction thereof which is liquid at 32 degrees Fahrenheit and 14.7 pounds per square inch absolute, such as fuel oil, oil. sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Radioactive Materials — Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings — The Drawings as issued for construction on which Engineer, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which Engineer considers significant based on record documents furnished by Contractor to Engineer and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses — Reasonable and customary expenses approved by Owner in a Task Order and incurred directly by Engineer in connection with the performing or furnishing of Services for a Specific Project for which Owner shall pay Engineer. 35. Resident Project Representative — The authorized representative, if any, of' Engineer assigned to assist Engineer at the Site of a Specific Project during the Construction Phase. The Resident Project Representative will be Engineer's agent or employee and under Engineer's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative will be as set forth in each Task Order. 36. Samples — Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. Modified Version of E.ICDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright . 2004 National Society of Professional Engineers for E.JCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 17 of27 37. Shop Drawings — All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for a Contractor and submitted by a Contractor to Engineer to illustrate some portion of the Work. 38. Site — Lands or areas indicated in the Contract Documents for a Specific Project as being furnished by Owner upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for use of a Contractor., 39. Specifications — That part of the Contract Documents prepared by Engineer consisting of written technical descriptions of materials equipment, systems, standards, and workmanship as applied to the Work to be performed by a Contractor and certain administrative details applicable thereto. 40. Specific Project— An undertaking of Owner as set forth in a Task Order. 41. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof 42. Supplementary Conditions — That part of the Contract Documents which amends or supplements the General Conditions. 43. Task Order — A document executed by Owner and Engineer, including amendments if any, stating the scope of services, Engineer's compensation, times for performance of services and other relevant information for a Specific Project. 44. Total Project Costs — The sum of the Construction Cost, allowances for contingencies, the total costs of services of Engineer or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or Owner's costs for legal, accounting, insurance counseling, or auditing services, or interest and financing charges incurred in connection with a Specific Project, or the cost of other services to be provided by others to Owner. 45. Work— The entire completed construction or the various separately identifiable parts thereof requiredto be provided by a Contractor under Contract Documents for a Specific Project. Work includes and is the result of a Contractor performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the applicable Contract Documents. 46. Work Change Directive — A written directive to a Contractor signed by Owner upon recommendation of the Engineer, ordering an addition, deletion or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive Avill not change the Contract Price or the Contract Times but is evidence Modified Version ofEJCDC No. E-545 Standard Form of Agreement Behveen Owner and Engineer for Professional Services —Task Order Edition Copyright© 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 18 of27 that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 47. Written Amendment — A written amendment of the Contract Documents signed by Owner and a Contractor on or after the Effective Date of a Construction Agreement and normally dealing with the non -engineering or non -technical rather than strictly construction -related aspects of the Contract Documents. ARTICLE 8 - E is ITS AND SPECIAL PROVISIONS 8.01 Exhibits (Yes Included? or No) Exhibit Letter Exhibit Title Yes Attachment 1 Task Order Foirn — No A Schedule of Engineer's Services No B Schedule of Owner's Responsibilities No C Payments to Engineer for Services and Reimbursable Expenses No D Schedule of Duties, Responsibilities and Limitations of Authority of Resident Project Representative No E Notice of Acceptability of Work (Form) No F Construction Cost Limit Yes G Insurance No H Dispute Resolution No I Allocation of Risks No J Reserved Yes K Amendment to Task Order (Foiui) 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 21 inclusive, together with the Exhibits identified as included above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. 8.03 Designated Representatives A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer's and Owner's representatives with respect to the Services to be performed or furnished by Engineer and responsibilities of Owner ender this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Agreement on behalf of each respective Party Each Task Order shall likewise designate representatives of the Parties. The Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 19 of27 Designated Representative may be changed with written notice to the Designated Representative of the other Party IN WITNESS WHEREOF, the Parties execute this Agreement. OWNER: ENGINEER: By: Name. George G. Garver Title: Mayor, City of Georgetown By: Name: Title: (Printed Name) Engineer License or Firm's Certificate No. (if required by law) State of : Date Signed: Date Signed: ATTEST: APPROVED AS TO FORM: Jessica Brettle, City Secretary Mark T. Sokolow, City Attorney STA I E OF TEXAS COUNTY OF On this day of , 20 personally appeared before me and proved to me through satisfactory evidence of identification to be the person who signed this document in my presence. [SEAL] Notary Public My Commission Expires - DESIGNATED REPRESENTATIVE DESIGNATED REPRESENTATIVE Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright© 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Page 20 of 27 (see Paragraph 8.03.A): Title: Phone Number: Facsimile Number: (see Paragraph 8.03.A): Title: Phone Number: Facsimile Number. E-Mai 1 E-Mail Address: Address: Address for giving notices: Address for giving notices: Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright © 2004 National Society of Professional Engineers for EJCDC. AR rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to Resolution No. in the City Secretary's office. Pagc21 of27 EXfIISIT G, consisting of I page, referred to in and part of the Master Services Agreement between Owner and Engineer for Professional Services — Task Order Edition dated Insurance Paragraph 6.03 of the Agreement is amended and supplemented to include the following agreement of the parties. The limits for Engineer's insurance required by paragraph 6.03 of the Agreement are as follows: Workers' Compensation with statutory limits. Engineer shall certify in writing that the Engineer provides Workers Compensation Insurance for all of Engineer's employees involved in the Project. In addition, Engineer shall meet each stipulation required by the Texas Workers Compensation Commission If you have questions concerning the requirements, you are instructed to contact the TID at (800) 252-3439. Employers Liability with minimum limits for bodily injury a) by accident, $250,000 per each accident b) by disease, $250,000 per employee with a per policy aggregate of $500,000. Commercial General Liability including, but not limited to, Premises/Operations, Personal & Advertising Injury, Products/Completed Operations, Independent Contractors and Contractual Liability with minimum combined bodily injury (including death) and property damage limits of $1,000,000 per occurrence, $2,000,000 general aggregate If the insurance is written on a claims -made form, coverage shall be continuous (by renewal or extended reporting period) for not Iess than 24 months following the last to occur: 1) expiration of this Agreement; or 2) Engineer's completion, and Owner's acceptance, of all Services provided under any and all Task Orders, if any, approved pursuant to the Agreement. Coverage, including any renewals shall have the same retroactive date as the original policy applicable to the Agreement. Business Automobile Liability covering owned, hired, and non -owned vehicles, with minimum combined bodily injury (including death) and property damage limit of $1,000,000 per occurrence Professional Liability $2,000,000 per claim. With written approval of the City's Risk Manager, a CIaims Made Policy may be accepted for Professional Liability Insurance. Georgetown — Revised 12-10 Page I of 2 Exhibit G - Insurance EJCDC E-505 Standard Form afAgreement Between Owner and Engineer for Professional Service —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Exhibit B Engineers Joint Documents Committee Design and Construction Related Documents Instructions and License Agreement Instructions Before you use any EJCDC document: 1. Read the License Agreement. You agree to it and are bound by its terms when you use the EJCDC document. Make sure that you have the correct version for your word processing software. How to Use: I While EJCDC has expended considerable effort to make the software translations exact, it can be that a few document controls (e.g., bold, underline) did not carry over. 2. Similarly, your sothvare may change the font specification if the font is not available in your system. It will choose a font that is close in appearance. In this event, the pagination may not match the control set. 3. if you modify the document, you must follow the instructions in the License Agreement about notification. 4. Also note the instruction in the License Agreement about the EJCDC copyright. License Agreement You should carefully read the following terms and conditions before using this document Commencement of use of this document indicates your acceptance of these terms and conditions, If you do not agree to them, you should promptly return the materials to the vendor, and your money will be refunded. 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You agree upon such termination to destroy EJCDC Design and Construction Related Documents along with all copies, modifications and merged portions in any form. Modified Version of EJCDC E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 02004 National Satiety of Professional Engineers far EJCDC. All rights reserved. Insertions and delusions are nsaiin bre to he reviewed in the document attached as Exhibit `D' la Resolution Ng, in the City Secretary's office. 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General: You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void. This Agreement shall be governed by the laws of the State of Virginia. Should you have any questions concerning this Agreement, you may contact EJCDC by writing to: Arthur Schwartz, Esq. General Counsel National Society of Professional Engineers 1420 King Street Alexandria, VA22314 Phone: (703) 684-2845 Fax: (703) 836-4875 e-mail: aschwartz@nspe.org You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this agreement Nits; iiled Version nr EJCDC E-505 Standard Fonn orAgreement Between Owner and Engineer ear Proressiomai Servlees — Task Order Edition Copyright 02004 National Society of Professional Engineers fur EJCDC. All rights reserved Insertions and deletions nre mailable to be re.iessnd in the document munched as Frsbibit "n" to Resolution No. in the Ciry Secretary's office. N3 edified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright O 2003 NntionniSociety of Professional Engineers for EJCDC. AD rights reserved insertions and deletions arc available to &r reviewed in the document attocked ns £zhihit "B' to Resolution No. in the City Srcrriarv'c office This document has important Iegal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law. Au ACFC ( nts�y yr t_. v rsar.r li or:tuna STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES TASK ORDER EDITION Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMll'I'k.E and Issued and Published Jointly by National Society of Professional Engineers Professional Engleeers In PNrale Practice PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA American Society f Civil Engineers This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (No. C-700, 2002 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are interrelated, and a change in one may necessitate a change in the other. EJCDC No. E-505 (2004 Edition) tiI ndified Version of EJCDC No, E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright C 2004 Notional Society of Professional Engineers for EJCDC. AU rights reserved. Imrrtions and dcictinns nre available in be reviewed in the dornmenl attached ns Eihihil "R" In Hrsnlminn Nn. in the City Secrets re's afire. Copyright° 2004 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 703-684-2882 www.nspe.ora American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 202-347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 800-548-2723 www.ascc.ora The Associated General Contractors of America 333 John Carlyle Street, Ste. 2000, Alexandria, VA 22314 703-548-3I18 www.aec.ore Modified Version of EJCDC No. E-SOS Standard Form orAgreetnent Between Chyner and Engineer ror Proressional Services— Task Order Edition Copyright 02004 National Society or Professional Engineers ror EJCBC. All rights reserved. Insertions and deletions are available to he reviewed in the dncomrnt ntrached ns Exhibit ""a" to Restitution No, in thr City Secretar is nifim. C TABLE OF CONTENTS Page Article 1 — SERVICES OF ENGINEER 1 1.01 Scope 1.02 Task Order Procedure 1 Article 2 — OWNER'S RESPONSIBILITIES 2.01 General 2 9 Article 3 —TERM; TIMES FOR RENDERING SERVICES 2 3.01 Tenn 2 3.02 Times for Rendering Services 323 Article 4 — PAYMENTS TO ENGINEER 3 4.01 Invoices 3 4.02 Payments 3 Article 5 — OPINIONS OF COST 431 5.01 Opinions of Probable Construction Cost 431 5.02 Designing to Construction Cost Limit 544 5.03 Opinions of Total Project Costs 543 Article 6 — GENERAL CONSIDERATIONS 545 6.01 Standards of Performance 515 6.02 Design Without Construction Phase Services 756 6.03 Use of Documents 7% 6.04 Insurance 867 6.05 Suspension and Termination 11814 6.06 Controlling Law 14943 6.07 Successors, Assigns, and Beneficiaries 141013 6.08 Dispute Resolution 111011 6.09 Environmental Condition of Site 151 111 6.10 Indemnification and Mutual Waiver 161115 6.I1 Miscellaneous Provisions I913-1-8 Article 7 — DEFINITIONS 20441-9 7.01 Defined Terms 201'119 Article 8—EXHIBITS AND SPECIAL PROVISIONS 254921 8.01 Exhibits 251921 8.02 Total Agreement 254924 8.03 Designated Representatives 254924 hlnditirti Version or E3CDC No. &505 Standard Form of Agreement Between Owner and Engineer for Professional Semites — Task Older Edition Copyright O 2004 National Society of Professional Engmeen for EACDC. All rights reserved. Insertions and deletion% are mailable in be reviewed in the doettntent attached its Exhibit an— to Rtsn3ution No. in the City Secretary's orrice. STANDARD FORM OF_MAS IER SERVICES AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES TASK ORDER EDITION THIS IS AN AGREEMENT effective as of ("Effective Date") between the City of Georgetown, A Texas Home Rule Municipal Corporation ("Owner' or "City") and ("Engineer"). From time to time Owner may request that Engineer provide professional services for Specific Projects. Each engagement will be documented by a Task Order This Agreement sets forth the general terms and conditions which shall apply to all Task Orders duly executed under this Agreement. Owner and Engineer agree as follows ARTICLE 1 — SERVICES OF ENGINEER 1.01 Scope A. Engineer's services ("Services") will be detailed in a duly executed Task Order for each Specific Project. Each Task Order will indicate the specific tasks and functions to be performed and deliverables to be provided. Basic and Additional Services that may be included in a Task Order ere set forth in Exhibit A. "Sch'dule of Engineer's Services." B. The general format of a Task Order is shown in Attachment I to this Agreement. C. This Agreement is not a commitment by Owner to Engineer to issue any Task Orders. D. A Task Order will be effective when executed by Owner and Engineer. Engineer shall not perforni under any prospective Task Order unless and until a Task Order is executed by Owner and Engineer. Enginccr shall not be obligated to pc -form any prospective Tail: Order unless and --until Owner —and —Engineer agree as to the partieulais—ef-the-speeiEie Project Engineer's services. Engineer's c mp..nsation, and all otheriropriute mutter:,. 1.02 Task Order Procedure A. Owner and Engineer shall agree on the scope, time for performance, and basis of compensation for each Task Order. Each duly executed Task Order shall be subject to the terms and conditions of this Agreement. B. Engineer will commence performance as set forth in the Task Order. When Services under a Task Order are eighty percent (80 %) complete. Engineer shall prop ide written notice to Owner's Designated Representative (I) certifying that Enuineer will complete the scope of Services for the amount of the Task Order and in the time required by the Task Order. or (2) cxplainina why Engineer is unable or unwilling to make such Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Omer Edition Copyright 02003 NationalSociety of Professional Engineers for EJCDC AR rights reserved. Insertions and deletions are n nibble to be reviewed in the document annebed us Exhibit 'grin Resolution No. in flit City Secretary's ellee_ Pngc 1 of fR33 certification. When a Task Order includes more than one phase of Services. Engineer shall provide the notice at eighty percent (80%) completion of each phase. C. Changes in an approved Task Order may be initiated by the Engineer or Owner by a Task Order Amendment. The Task Order Amendment shall (i) describe a change in scope. including Services to be added. chanced. or deleted (ii) state the additional cost or cost reduction: and (iii) described schedule chances. if anv. The eenerai format of a Task Order Amendment is show in Exhibit K to this Agreement. A Task Order Amendment will be effective when executed by Owner and Engineer. Enaineer shall not perform under anv prospective Task Order Amendment unless and until the Task Order Amendment is executed by Owner and Enaineer. Oral amendments to a Task Order will have no effect except in cases of an emergency threatening personal injury or property damage. In such case. the Owner and Engineer will document the Task Order Amendment in writing. as soon as possible. D. If Enemeer becomes aware that a change concemin° a Specific Project may require a Task Order Amendment to increase the scope of Services. request additional cost or request additional time. Engineer shall provide written notice to the Owner's Designated Representative within ten (10) days. if Engineer determines that a Task Order Amendment is required as a result of the change. Engineer shall initiate a Task Order Amendment within ten (10) days. 1 1.03 Task Order Amount. &Engineer shall provide a not to exceed amount to perform the scope of.- „ ---- Services included in the Task Order. A Level of Effort Table will be submitted to Owner to document and support Engineer's calculation of the not to exceed amount. including but not limited to a Standard Hourly Rate Schedule and a Reimbursable Expense Schedule. ARTICLE 2 — OWNER'S RESPONSIBILITIES 2.01 General A. Owner shall have the responsibilities set forth herein, in Exhibit B. "Schedule of Owner's Resporicibilities,"this Agreement and in each -a Task Order. B. Owner shall pay Engine-t Owner shall be rt_spon.,ible for_ and Engineer may rely upon, the eccuracy and completeness of all requirements, programs, instructions, reports -data, and other info;matten--furnishede,�r�td-h -owner to Engineer -pursuant to t greement-Engineer may use sueh requirements, programs, instructions report;, data, and information in perform:lig or furnishing services under this .Agreement. ARTICLE 3 — TERM; TIMES FOR RENDERING SERVICES 3.0I Term A. This Agreement shall be effective and applicable to Task Orders issued hereunder for fv (5) years from the Effective Date of the Agreement. Modified Version of£JCAC No.E-SOS Standard Farm of Agreement Between Owner and Engineer for Professional Services —Task Omer Edition Copyright 02004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions nre nvaiiable In he reviewed in the dncumeni attached as Exhibit -B" to Resolution No. in the Oily Secretary's nlrrce. Page 2 or 1403 Formatted• 103 (500) Formatted: Bullets and Numbering Formatted: Font: Not Italic J B. The paties- ey--eetendt-er renew this Agreement, with or with instrument establishing a new term. 3.02 Times for Rendering Services A The times for performing services Services or providing deliverables will be stated in each Task Order. Time is of the essence. If no times are so stated. Engineer will pLrform services and ruvide deli erabl^ 1thin ^ blc ; e 3. If through no fault of Engineer, such periods of time or dates are changed, or the orderly and continuous progress of Engineer's services is impaired, or Engineer's scn•iccs are delayed or suspended, then the time for completion of Enginecr's services, and the rate:, and amounts of Engineer's compensation, shall be adjusted equitably. C. If Owner auther-iees-ehano s-in-thc scope, extort', or chafact. r of the SpLcific Project then the time fo rplc En cats services, and the rates and -am^' ,-of-Engineers t • Owner shall make decisions and carry out its other responsibilities in a timely manner so as not to delay the Engineer's performance of its services. If Engineer fails, through its own fault, to complete the performance required in a Task Order within the time set forth, as duly adjusted, then Owner shall be entitled to the recovery of direct -damages resulting from such failure. ARTICLE 4 — PAYMENTS TO ENGINEER 4.01 Invoices A. Preparation and Submittal of Invoices. Engineer shall prepare invoices in accordance with its standard invoicing practices, the terms of E'ihibit C. and the specific Task Order. Engineer shall submit its invoices to Owner on a monthly basis. Invoices arc due and payable within 30 days of receipt. 4.02 Payments A. Application to Interest and Principal. Payment will be credited first to any interest owed to Engineer and then to principal. Owner agrees to pav Engineer in accordance with Texas Government Code Chapter 2251. Engineer shall pay all Consultants and other expenses incurred under the Task Order in accordance with Texas Government Code Chapter 2251. B. Compensation Methods. Engineering Services will be compensated in accordance with one or more of the following methods as specified in the Task Order: 1. Lunip Sun: Method. The Lump Sum will include compensation for Engineer's services and services of Consultants. it any. Appropriate amounts will be incorporated in the Lump Sum to account for labor. overhead and profit. Owner will pay Engineer for reasonable and customary Reimbursable Expenses in addition to Lump Sum. Mndlred Version or EJCDC Nn. E-SOS Standard Form of Agreement Between Owner and Engineer for Professional Services — Task Order Edition Copyright 0 2004 National Society orProressional Engineers for EJCPC. MI rights reserved. Insertions and drletinns nrr nanilnble to he reviewed in the document attached as Exhibit "B" to Resntntion No. in the City Secrrtarv's office. Poge 3 or-f833 Standard Hourly Rates Alethod. The cumulative hours charged to the Specific Project is calculated by multinlvine each class of Engineer's employees by the Standard Hourly Rates for each applicable billing class for al! Services performed on the Specific Project and Consultant's charges. if any Standard Houriv Rates include salaries and wages paid to personnel in each billing class plus the cost of Customary and statutory benefits. general and administrative overhead. non project operating costs. and operating margin of profit In addition_ Owner will pay Engineer for reasonable and customary Reimbursable Expenses. C. Failure to Pay. If Owner fails to make any payment that is due -En. Engineer may. after eivina seven (7) days written notice to Owner suspend services under the Task Order until Owner pays the amount due. for sew -<ges-aaid-et enses within 30 days after receipt of Engineer's invoice, then: C..tecr will be month (or the maximum rate of iatcrest perr,ittcd by law, if Iess) from said tlurtic•h day; and n 3. Engineer may, after giving seven days written not cc to '' ' e^ ^ ^end services under any Task Order issued until Owner has paid in full all amounts due for services, expenses, and other rclat^d ^ha^ges O;vn against Engineer for any such suspension. I?. Disputed Invoices. If Owner contests an invoice, Owner may withhold only that portion so contested, and must pay the undisputed portion.. Lcgis/atirc .fictions. Lf after the Effective Date of a Task Order any cavcrrmenta1 entity tafzes a legislative action that imposes tuxes, fees, or charges on Engineer's services or compensation under the Task Order, then the Engineer may invoice such new taxes, fees, sh all -be in addition to the compensation to which Engineer is cntiticd under -the terms of Exhibit C and the specific Task Order. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction -Cost A. Engineer's opinions of probable Construction Cost are to be made on the basis of Engineer's experience and qualifications and represent Engineer's best -judgment as an experienced and qualified professional generally familiar with the construction industry. However, since Engineer has no control over tit_ cost of labor, materials, equipment, OF services fumishcd by others. or over-enntractors' methods of detenttinifinneesreever competitive bidding -or -market conditions, Engineer eannet-and-does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by Engineer. A.B. Engineer's opinions of Total Project Costs are to be made on the basis of Engineer's - experience and qualifications and represent Engineer's best -judgment as an experienced Modified Version nr EJCDC No. £-595Standnrd Farm of Agreement Between Owner and Engineer for Proressional Services —Task Order Edition Copyright O2904 National Society of Professional Engineer for EJCDC. All rights reserved. insertion% and deletions are available to he rnirwed in the document attached as Exhibit "D^ to Resolution No. in the cry Secretary's office. Page 4 of 4433 ( Formatted: Butte's and Numbering and qualified professional generally familiar with the construction industry. However. Enaincer does not guarantee that Total Proicct Costs will not vary from opinions of Total Project Costs prepared by Engineer. If Ow',:rc wishes LT; atcr assurance as to probable Censtr ctien-Cost, Owner-shependent-aoJt stimator as prided --in Exhibit B. 5.02 Designing to Construction Cost Limit A. If a Construction Cost limit is established between Owner and Engineer in a Task Order, Engineer's rights and responsibilities with respect thereto will be governed by Exhibit F, `Construction Cost Limit." to this Agreement the terms of the Task Order. 5.03 Opinions of Total Project Costs A. Th. services, if any, of Engineer with respect to Total Project Costs for a Specific Project shall be limited to assisting the Owner in collating the various cost categories which comprise Total PFreject Costs. Engineer a:fumes no responsibility for the a___r__� of ^ry opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will conform to standard engineering practices and applicable rules and regulations of the Texas Engineering Practices Act and the rules of the Teas Board of Professional Engineers. be the care and skill ordirarih used by members of the subjeet-pre€essien pracctiett bayunder-similarcireumstanees-at-the same time and in the same locality. ) nginccr makes no warranties, cxpres, or implied, i tde :`'t "o ' nt other ' . ecLien with Enineer's servicesEnaineer warrants that the professional engineering and related services performed or furnished by Engineer under this Agreement. and Task Order issued under this Agreement i:f any. shall meet or exceed such standard of care.- B. Owner shall not be responsible for discovcnng deficiencies in the technical accuracy of Engineer's services. Engineer shall correct any such deficiencies in technical accuracy without additional compensation except to the extent such corrective action is directly attributable to deficiencies in Owner -furnished information- not reasonably known or discoverable by Engineer. C. Engineer shall serve as Owner's prime professional under each Task Order. Engineer may employ such Consultants as Engineer deems necessary to assist in the performance or furnishing of the services, subject to reasonable, timely, and substantive objections by Owner. D. Subject to the standard of care set forth in Paragraph 6 01 A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers. and the publishers of technical standards. Modified Versintt of EJCDC No. E-505 Standard form of Agreement ttetween Owner and Engineer for Professional Services — Task OrsiceEdition Copyright aJ 2004 National Society of Professional Engineers For E./CDC All rights reserved. Insertions and deletions are no -triable to he mimed rd in the document attached as Evhibit "Ir to Resolution Vn, in the City Secretary's once. Page 5 of 11133 E. Engineer and Owner shall comply with applicable Laws and Regulations and the additional Owner -mandated standards_ if any. that Owner has provided to Engineer in writing. This Agreement is based on these requirements as of the Effective Date of each Task Order. Changes to these requirements after the Effective Date of each Task Order may be the basis for modifications to Owner's responsibilities or to Engineer's scope of services, times of performance, and compensation. F. Engineer shall not be required to sign any documents, no matter by who requested, that would result in Engineer having to certify, guarantee, or warrant the existence of conditions whose existence Engineer cannot ascertain within its services Services for that Specific Project. Owner agrees not to make resolution of any dispute with Engineer or payment of any amount due to the Engineer in any way contingent upon Engineer signing any such certification. Engineer shall not at any time supervise, direct, or have control over a Contractor's work, nor shall Engineer have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by a Contractor, for security or safety at any Site, for safety precautions and programs incident to a Contractor's work in progress, nor for any failure of a Contractor to comply with Laws and Regulations applicable to a Contractor's furnishing and performing the Work. Engineer neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. Engineer shall not be responsible for the acts or omissions of any Contractor, subcontractor, or supplier, or of any of their agents or employees or of any other persons (except Engineer's own employees and its Consultants) at a Site or otherwise furnishing or performing any of a Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by Owner without consultation and advice of Engineer. J. Enaineer shall at all times be an independent contractor with the sole authority to control and direct the performance of the details of the Services. Eneineer shall not purport to be an employee or agent of the Citv and shall not have any right or power to bind the City to any obligation. The General Condition= r ^-ar, ^ ^,t ^n ^ ntm^t doe r^nts-prepared hereunder are to belle "Standard General Conditions of the Conatrucctiel ntract" a, prepared by the Engineers John Contract Documents Committee (Document No, C 700. 2-002 Edition) unless both parties mutually agree in a Talk Order to usc other General Conditions. K. Eneineer shall procure and maintain at its expense all licenses and permits necessary to perform Services. Enaineer shall require that its employees and Consultants are properly licensed to perform their respective portion of Services. da_:. The Services to be performed under this Agreement shall be performed entirely at Eneincer's risk. Eneineer shall be responsible for initiating. maintaining. and supervising all safety precautions and programs in connection with the Services to be performed under this Agreement. Eneineer shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damageinjury. or loss to employees. the Modified Version nFEJCDC No. E-StS Standard Fonn of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 0 2994 National Society of Professional Engineers for EJCDC. Ali rights reserved. insertions and deletions are available to be crvirwni in the document attached as Exhibit "it' to ftesnhtthm No. in the City Serreian's office. Page 6 of 4933 Services. endangered species. or the property affected by this Agreement All damage or loss to env property caused in whole or in part by Engineer. Consultant or anyone employed by either of them shall be remedied by Engineer. 6.02 Design Without Cort_•trrctron Phase Scn•iccs_ by--Task---Order or otherwise for project observation, or of a Contractor's performance, or any construction phase .,crvices, and such services will be pr vided by and --interpretation of the Contract Documents, contract administration, construction ebservatien--and review, and-all--ether—necessary cexstta:legen phase eaginecfn4 and profes.,ional services; and (3) Owner waives any claims against the Engineer that may be in any way connected thereto. In suc applicable Task Order will be considered to be completed upon completion of the -Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. and the Ta.wl. Order: - Uso Jj Dac nicntsChwners'hiss o(Docinents A. City shall have the title to and ownership of all documents produced or developed by Engineer in connection with a Task Order issued pursuant to this Agreement Documents include: publications. plans drawings. designs specifications. photographs. studies. reports schedules. computer programs. and other data and work product in any form or media. Owner shall have sole ownership of all copyright interest in all documents to the extent that documents may he copyrighted. Engineer shall deliver all documents to the Owner at completion of the Specific Project under a Task Order. termination of Services under a Task Order. or upon Owner s request. Engineer may retain copies of its work product. All Documents are instruments of service in respect to e Specific Project, and Engineer shall retain an ownership and property- interest therein (including the copyright and the right of reuse at the discretion of the Ercinct-r) whether or not the Specific Project is-eemplctcd. Owner shall not rely in any way on-any--Decumcnt unless it is in printed feigned or sealed by the-E..g_n er ens of tts Consultants ay- et•} -that data or informatien-setfarth on paper (also known as hard -espies) that the party receives from the --ether party by mail, hand delivery, or fhcsimilc. are the items that the other party intended to send. Files in electronic media format of text, data, graphics, or other types that are furnished by one party to the other are furnished only for convenience, not reliance by the receiving party. An) conclw ion or inf -..,.,lion obtained or dcris cd from „Etch electronic files will be at the u,c-'s sole risk. If there is a discrepancy between the-elecctrenic files and the hard copies, the hard copies govern. C. Because data stored in electronic media format can deteriorate or be modified on of the data' creator, the part' receiving. electronic files agrees-that-i-P.411-petfa:m dceeptanee tests -or -procedures within 60 days, after which the receiving party shall be deemed to has t_ accepted the data thus transfcrrcd. rrectcd by the party de.Iivering the electronic files. :0.f ndikrd Version of EJCDC No. E-SOS Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 0 2003 National Society o€Profession€Engineers for EJCDC. All rights reserved. Insertions and deletions are available to be reviewed in the document attached as Exhibit "B" to FtNnFution No. in the City Setretan's office_ Page 7 of-1R33 Aim When transferrng documents in electronic media-ferrnak-the-Ersnsferring party makes ne o escntations as to long-term eompatibi:ity, usability, or readability of such documents resulting -from the use of .,ofhvarc application packages, operating systems, or computer c r.—TrQrrrtnscd by the-lecuments' creator. E. Owner may make and retain copies of Documents for information and reference in connection with use 0131—t13c Specific Project by Owner. Engineer grants Owner a license to use the Documents on the Specific Project, extensions of the Specific Project, and -ether projects of Owner, aul;ject to the following limitations: (1) Owner cclmowlcdges that such Documents ere not intended or represented to be suitable for use on the Sp__if c Project unless completed by Engineer, or for use or reuse by Owner or others on extensiens of-[he-Speei4ic Project or-en--anyether project without written verification or adaptation -by Engineer; (2) any such use or reuse, or any modification of the Documents, n by Engineer, as appropriate for the specific purpose intended, will be at Osvaer's sole risk and without liability or legal exposure to Engineer or its Consultants; (3) Owner shall indemnify and hold harmlc Engineer -and Engineer's Consultants fro ^" clai ^^ "^ ages to nd a ses- including attorney without written verification, completion, or adaptation by Engineer; (i) such limited license to Owner shall not create any rights in third parties. If Engineer at Owner's request verifies sr adapts the Documents for extensions of' the Specific -Pr -eject o for--eny Dther project, then Owner shall compensate Engineef-at rates or in an amount to be agreed upon by Owner and Enginq:r Insuranc e A. At all times for the term of this Aareement and when any Task Order is under performance, Engineer shall procure and maintain insurance as set forth in Exhibit G, "Insurance." Engineer's failure to purchase and maintain the required insurance shall be grounds for Owner's termination or suspension of this Aareement or a Task Order.l;ngineer shall cruse Owner to be listed as all additional insured on any applicable general liability insurance policy carried by Engineer which is applicable to a Specific Project. B. Engineer shall cause Owner and its elected officials. officers. directors. employees. representatives and volunteers to be listed as an additional insurcd on any applicable general liability insurance policy earned by Engineer which is applicable to a Specific Protect. The additional insurcd status must cover completed operations us well, and the policy catering completed work must remain in effect until the expiration of the statute of repose. As respects the Workers Compensation policy. the Engineer will waive subroaation in favor of the Owner.At all times when any Task Order is under petd'armance, Owner shall procure and maintain insurance n f " "tl tt n Ow shalt Eng ncer and its Consultants to be listed a; additional insureds en any general-habi-lity--or property insurance-petiolesied by Owner which are applicable to a Specific Project. C. Owner shell require Contractors to purchir,e and maintain general liability and other insurance in accordar ee ,^.t *t ^ ^r fParag ^^, c nn ^err e Standard Ccneral c %tndifrd Version of E1CDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Scrveces—Task Order Edition Copyright 02004 National Society of Professional Engineers fur EJCDC. Alt rights reserved. Insertions and deletions are mniahle to he reviewed. in the document attached as Ethilrit "ft" to Resolution Nil. in the City Secretary's nlnce. Page 8 of t833 Conditions of the Consteucclien-Gent aet (No. C 700, 2002 Editio '7 o the Engineers Joint additional insureds with respect to such liability -and other insurance purchased and maintained b) Contractor.,Engineer must complete and forward the required Certificates of Insurance to the Owner when Engineer executes this Agreement as verification of coverage required as indicated. Engineer shall not provide any Services under 't Task Order until the required insurance is obtained and until such insurance has been reviewed by the Owner. Approval of insurance by the Owner shall not relieve or decrease the liability of Engineer and shall not be construed to be a limitation of liability on the part of Engineer. Engineer must also complete and forward the required Certificates of insurance to the Owner whenever a previously indentified policy period has expired as verification of continuing coverage. D. Owner and Engineer shall ach deliver to the -ether certificates of insurance evidencing -the coverages indicated in Exhibit G. Such certificates shall be furnished prior to c mmencement of Engineer's stir ices under any Task Order and at renewals thereafter during the life, of this Agicement Engineer's insurance coverage shall be written by companies licensed and authorized to do business in the State of Texas before the policies are issued and shall be written by companies with A.M. Best rating A VIII or better. E All policies of property insurance relating to a Spacific Project shall contain provisions to the effect that Engineer's and its Consultants' interest are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery -against Engineer or its Con.,ultants, or am insureds or additional insureds thereunderAll endorsements naming the Owner as additional insured. waivers. and notices of cancellation as well as the Certificates of insurances shall indicate: City of Georgetown 300-1 industrial Avenue Georgetown, Texas 78626. Al 1 N: Contract Manager. F. Under-thetefrnc ask Orderr er-after-eammeneement of p r its Consultants, at Owner's sole expense, provide additional insurance coverage, increased limits or ravised deductibles that are more protective than those specified in Exhibit G. If so requested by Owner, and if commercially available, Engineer shall ob ' tain such additional insureseductibles for such per.ods of time as requested by OwncrThe "other insurance" clause shall not applv to the Owner where the Owner is an additional insured shown on any policy. It is agreed that the Engineer's general liability insurance shall be considered priman. with respect to any insurance or self insurance earned by the Owner. The Owners insurance shall apply separately to each insured against whom a claim is made and/or lawsuits brought_ except with respect to the limits of insured's liability. G. If insurance policies are not written for the specified amounts. Engineer shall carrv4-- Umbrella or Excess Liability Insurance for any differences in amounts specified. if Excess Liability Insurance is provided. it shall follow the form of the primary coverage. 1-1. Owner shall be entitled. upon request and without expense. to receive "certified copies" of Policies and policy endorsements and may make any reasonable requests for deletion or revision or modification of particular policy terms. conditions. limitations. or exclusions Mndilird Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Tusk Order Edition Copyright 4a 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are nvailahle to he reviewed in the document attached as Exhibit -n" to Resolution No. in the City Secretan's nice. Page 9 of 1833 Formatted: Bullets and Numbering except where policy provisions are established by law or regulations binding upon either of the Parties or the underwriter on any such policies. Owner reserves the right to review the insurance requirements during the effective period of this Agreement and to make reasonable adjustments to insurance coverage. limits and exclusions when deemed necessary and prudent by the Owner. Owner may request_ in a Task Order or Task Order AmendmenL that Engineer and its Consultants provide additional insurance coverage. increased limits. or revised deductibles that are more protective than those specified in Exhibit G. Engineer shall obtain and shall require its Consultants to obtain such additional insurance coverage. different Limits. or revised deductibles for such periods of' lime as requested by Owner in the Task Order or Task Order Amendment. J. Enemeer shall not allow any insurance to be cancelled nor permit any insurance to lapse during the term of this Agreement or as required in this Agreement. The policies must contain the following language: "This policy shall not be cancelled or not renewed until after thirty (30) days prior written notice has been given to the additional insured. the City of Georgetown.' In addition. Engineer shall provide Owner thirty (30) days written notice of erosion of the aggregate limits below occurrence limits for all applicable coverages indicated within the Agreement. K. Engineer shall be responsible for premiums. deductibles and self insured retentions. if any. as stated in policies. All deductibles or self insured retentions shall be disclosed on the Certificates of Insurance. If Owner's property is being transported or stored off -site by Engineer. then the appropriate property policy will be endorsed for transit and storage in an amount sufficient to protect the Owner's property. M. The insurance coverages required under this Agreement are required mininums and are not intended to limit the responsibility or liability of Engineer. N. Without limiting any of the other obligations or liabilities of the Engineer. the Engineer shall require each Consultant perfonning work under a Task Order to maintain during the term of the Task Order. at the Consultant s expense.. the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative. the Eneincer may include its Consultants as additional insureds on its own coverage as prescribed under these requirements. The Engineer's Certificate of Insurance shall note in such event that the Consultants are included as additional insureds and that Engineer agrees to provide Workers Compensation for the Consultants and their employees. The Engineer shall obtain and monitor the Certtficatcs of Insurance from each Consultant in order to comply with the insurance requirements. The Engineer must retain the Certificates of insurance for the duration of the Tusk Order plus five (5) years and shall have the responsibility of enforcing these insurance requirements mane its Consultants. The Owner shall be entitled, upon request and without expense. to receive copies of these Certificates of Insurance F.O. Owner shall require Contractors to purchase and maintain general liability and other insurance, in accordance with the requirements of Paragraph 5.04 of the Standard General Conditions ol'the Construction Contract (No C-700. 2002 Edition) of the Engineers Joint Modified Version of EXEC Na E-505 Standard Form of Agreement Between Owner and Engineer for Professional Serytres— Task Omer Edition Copyright O 2004 National Sudety o€Professional Engineers for EJCDC. All rights reserved. I nsenions and deletions are available to be reviewed m tho document attached as Exhibit "B^ to Resnlutimt No. in the City Secretary's office. Page ID of 11433 Contract Documents Committee. and to cause Engineer and its Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractors. Ozi Suspensi on and Termination A. Suspension By Owner: Owner may suspendhas the right to suspend all or any portion of the Services to be performed under a Task Order upon seven ten (10) days written notice to Engineer. Upon receipt of a notice of suspension. Engineer shall: a. immediately suspend Services on the date and to the extent specified in the notice: b. protect and maintain the portion of the Services completed including the portion of the Services suspended_ unless otherwise specifically stated in the notice: and c, continue to_perfbrm the Services not suspended. if Owner suspends Services to be performed under a Task Order. Owner shall pay Engineer, as specified in the Task Order. for the Services completed to the date of suspension. Owner will also reimburse Engineer for the following costs. without duplication of any item. to the extent that such costs actually result from such suspension of Services: a. a reasonable standby charge to compensate Engineer for keeping (to the extent required in the notice) its organization and equipment committed to the Services in standby status: b. reasonable costs associated with demobilization of Engineer's facility. forces and equipment and c. reasonable cost of maintaining and protecting that portion of the Services upon which activities have been suspended. 3. Engineer shall not be entitled to receive any other compensation or reimbursement resulting from a suspension in Services under a Task Order. 4. Upon receipt of notice to restart the suspended portion of Services. Engineer shall immediately resume performance to the extent required in the notice. Within ten (10 days after receipt of notice to resume the suspended portion. the Engineer shall submit a revised schedule for approval by Owner. If as a result of env suspension the cost to Engineer of subsequently performing the Services or the time required to perform the Services is changed. Engineer may initiate a Task Order Amendment ;Milian! wen inn or EJCDC No, E-505 Standard Form ofAgreement Between Owner and Engineer for Processional Services —Task Order Edition Copyright O 2004 National Society orProfesnionnt Engineers for EJCDC. MI rights reserved. Insertions and deletions are available to in reviewed in the document attached as Exhibit' it to Resolution No. in the City Secretan-`s oilier. Page 11 of 4833 By' Engine r: If Engineer's services are substantially delayed through no fault of EngineeF:- Engineer may, Mier giving .,even days written notice to Owner, suspend services under a Tall; Orden Termination. The obligation to provide further services under this Agreement, or under a Task Order, may be terminated: For eauseCause. a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance svith the terms of this Agreement er any Tusk Order through no fault of the terminating party. a. The obligation to provide further services under this Agreement. or under a Task Order. may be termtnated by Owner. for cause. upon ten (10) days written notice in the event of substantial failure by Engineer to perform in accordance with this Agreement or any Task Order. This Agreement. or Task Order will not terminate if the Engineer corrects the failure to pertbrm and proceeds diligently to cure such failure within no more than thirtv (30) days of receipt of the notice. If Engineer fails to cure the default. Owner may provide written notice of termination to Engineer. b. The obligation to provide further services under this Agreement or under Task Order. may be terminated by Engineer. for cause. upon ten (10) days written notice in the event of substantial failure by Owner to perform in accordance with the terns of this Agreement or any Task Order. This Agreement or a 1 ask Order. will not terminate if the Owner corrects the failure to perform and proceeds diligently to cure such failure within no more than thirty (30) days of receipt of the notice. if Owner fails to cure the default. Engineer may provide written notice of termination to Owner. By Engineer. 1) upon seven days written notice if Owner demends that Engineer furnish er perf rm .,crviccs contrary to Engineer's responsibilities as a lit enozd profes..ional; or '} upon seven days written notice if the Engineer's services under a Task- Order are delayed or suspended for more tiler 90 days -ter reasons beyond Engineer's control. 3) Engineer shall have no liability to Owner on account of such terTuinatiol 1) Notwithstandin, the fore ,oing, neither this A? rt.enit.nt nor the Tall: 9rder will terminate under -Paragraph 6.05.B.l.a if the -party receiving such notice begins, within seven days of receipt of such notice, to correct its substanilal failure to perfo.sii and proceeds diligently to cure 3uc F ;' :' in ' an 30 o pt thereof: provided, however, that if and to the extent such substantial failure eannet-be--reasenably cured -within suety 30-da-y-peFied--and-if suety tlndircd Vrninn of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task order Edition Copyright 4) 2004 National Society al -Professional Enginren for EJCDC. All rights reserved. Insertions and deletions are mnilahie to he rrsirwed in the dncnrncnl 'lunched as Estrihit -Jr* to Resolution No. in thr CilY Secretary's office. Page 12 of4S33 Formatted: Indent: Left: 1" p� .as -diligently attempted--te-eurc--the-same-and--ther-eaftcE continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days aftee For convcnienceConvenience By Owner effective upen--En_i-neer receipt of notice from Owner Owner has the nsht to terminate a Task Order under this Agreement for convenience at any time by providing ten (10) days wntten notice to Engineer. Upon receipt of a notice of tennmation for convenience. Engineer shall: 1) immediately cease providing Services under the Task Order: and 2) protect and maintain the portion of the Services completed. unless othenvise specifically stated in the notice. In the event of a temmmation for convenience. Owner shall pav Engineer. as specified in the Task Order. for the Services completed to the date of tem- mation. Owner shall not be liable for special. incidental. consequential or punitive damages. for loss of anticipated future Services. anticipated profits_ administrative costs or overhead on anticipated Services, or other indirect costs as a result of a termination for convenience. C. Effective Date of Tcrndnation. The terminating pa Oder I'-gra ph 6.O5.B may set the effective date of termination at a time up to 30 days later than othenvise provided to allow £nginetr to demobilize persennel-and-equipment-fro he Site, to complete-taskswhose value would othenvise be lost to pr .pure notes as to th;, status of completed and uncompleted tasks, and to assemble Tn,,It Order material.) in orderly files. D. Paiiaexts Upon Tcrrniaatian In the event of :ny termination under Paragraph 6.05, Engineer soill be entitled to in eicc Owner n€d-to-feeeivc full -payment fen -all -se> lee r-pergermed-er-furneshed and all Reimbursable Expenses incurred through the effective date of termination Upon making such payment, Osvncr shall have the limited right to the use of Documents. at Owner's sole risk, subject to the pros isions of Parujuph 6.03.E. ^-. In the event of termination by Owner for cons eni mec or by Engineer for cause, Engineer shall be entitled, in addition to invoicing for those items -identified in Paragraph 6.05.D.1, to insoice Owner and to payment of a r asonablc amount for effective date of termination, such as reasst ant of-peronncl, costs of terminating contract ssith Engineer's Consultants, and other related close out costs, using met eds-and-rates-fer Additisnal-Se€ iecs as set fo€alrin-Rxhibit C. :skintii ied Version arEJCDC ND. E-505 Standard Form or Agreement Between owner and Engineer For Processional Services —Task Order Edition Copyright 02004 National Satiety orPrortssianal Engineers for EJCDC Ali rights reserved. Insertions and deletions are available to he reviewed in the document attached as Es titbit "R" to Resolution No. in the City Secretary's office. Page 13 or•N33 ngLaw Contrail( A. This Agreement is to be governed by the law of :he stctc in which the principal office of the Ownts is locatzdand construed in accordance with Texas law. Owner and Engineer each submit to the exclusive jurisdiction of the state and federal courts in Williamson County. Texas. Owner does not waive the defense of sovereign immunity. Successo rs, Assigns, and Beneficiaries A. Owner and Engineer each is hereby bound and the partners, successors, executors. administrators and legal representatives of Owner and Engineer (and to thy, cxtallt perrnitted by Paragraph 6.07 B the ^^��.r Rner-and-Engineer) are hereby bound to the other party Party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other paFt=yParty, in respect of all covenants, agreements and obligations of this Agreement. Neither Owner nor Engineer may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement There are no third party beneficiaries to this Agreement The provisions of this Agreement do not and shall not be construed to. create any legal or equitable right remedy or claim enforceable by any person or entity other than Owner and Engineer. Unless expressly provided otherwise in this Agreement: I. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by Owner or Engineer to any Contractor, Contractor's subcontractor. supplier, other individual or entity, or to any surety for or employee of any of them. ?. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of Owner and Engineer and not for the benefit of any other party. 3. The Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in any Contract Documanis prepared for any Sp cific Project under this A_rcoment. D. Owner agrees that the substance of the provisions of this Paragraph 6.07.0 shall appear in the Contract Documents. Dispute Resolution A. If a dispute arises under this Agreement or a Task Order. Owner and Engineer agree to negotiate alb -the disputes between them in good faith for a period of 30 days from the date Modified Venion of EJCDC No. E-505 Standard Farm of Agreement Detween Owner and Engineer for Professional Services — Task Order Edition Copyright C 2004 ?thalami] Society of Professional Engineers for EJCDC. AN rights reserved. Insertions and deletions are available to he reviewed in the document attached as Exhibit "B" to iiesnintion Na. in the City Secretary's office. Page rd of1833 of written notice of the dispute -prier to invoking the procedures of Exhibit -11-er-other provisions of this f grcemcnt, or exercising their rights under law. B. If the parties Parties fail to resolve a dispute through negotiation under Paragraph 6.O8.A, then Owner and Eneineer agree that they shall submit any and all unsettled claims. counterclaims. and other matters in question between them arising out of or relatine to this Agreement or a Task Order to mediation.-either--aF-betk--may-inveke-the-preeederes of Exhibit II If E\htbit H is not included, or if no dispute resolution method is specified in Exhibit 1-1, then the parties ma) exercise their rights under law. C. If mediation is unsuccessful in resolving a dispute. then any and all unsettled claims, counterclaims and other matters in question between Owner and Engineer arising out of or relatine to this Agreement or Task Order (a) may be submitted to binding arbitration by written agreement of the Parties. or (b) may be filed by either Party in a court of competent jurisdiction. D. Upon Owner's request. Engineer shall proceed with performance of Services pending final resolution of a dispute arising under this Agreement or a Task Order. B. t, :rlt mental Condition of Site A. With respect to each Task Order, Specific Project, and Site: Envtron Owner has disclosed to Engineer in writing the existence of all known and suspected Asbestos, PCBs, Petroleum, Hazardous Waste, Radioactive Material, hartrdous substances, and other Constituents• of Concern located at or near the Site, including type, quantity, and location. Owner represents to Engineer that to the best of its knowledge no Constituents of Concern, other than those disclosed in writing to Engineer, exist at the Site. 3. If Engineer encounters an undisclosed Constituent of Concern, then Engineer shall notify (a) Owner and (b) -appropriate governmental officials if Engineer reasonably concludes that doing so is required by applicable Laws or Regulations. It ie. acknowledged by Beth parties that Engineers scope of services does not include any scn•ices related to Constituents of Concern. If Engineer or any other Pparty encounters an undisclosed Constituent of Concern, or if investigative or remedial action, or other professional services, are necessary with respect to disclosed or undisclosed Constituents of Concern, then Engineer may, at its option and without liability for consequential or any other damages suspend performance of services on the portion of the Specific Project affected thereby until Owner (1)retains apprepn+ate--specialist-eensultartt(s) or contractor(s) to iden ppreprate; ebat_, remediate, or remove the Constituentr ne ^wd (2) warrants that the Site is in full compliance with applicable Laws and Regulations. Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer for Processional Services —Task Order Edition Copyright C 2004 National Society of Professional Engineers for EJCDC. Ail rights reserved. insertions and delrtinns are nvn itahie to he reviewed in the document attached as Exhibit' U' to Resolution No. in the City Secresarv's office. Page 15 or1833 If the presence at the Site of undisclosed Constituents of Concem adversely affects the performance of Engineer's services under this Agrecmcnta Task Order, then the Engineer shall have the option of (a) aeeepting an equitable submittine a Task Order Amendment for adjustment in its compensation or in the time of completion, or both; or (b) terminating this Agreement for cause on 30 days notice. 5. Owner ackno'.tt ledges that Engineer is performing profemional services for Owner and that Engineer is -net and shall not be required to become an "owner," "ana!igar," "opc-at r " "generator," or "transport..r" of hazardous substances, as defined is tho Compr..hcnsive Environmental Response, Compc.nsaton, and Liability Act (CERCLA), as amended, which are or may b;. encountered at or near the Site in connc-tion with Engineer's ectivities underis greemen fr.1 tJ1 . i } Indemnjf !cation and .ihttma! Waiver A. Indemnification by Enginacr. General Obligation to Indemnify and Defend. TO THE FULLEST EXTENT PERMITTED BY LAW, ENGINEER AGREES TO INDEMNIFY AND HOLD HARMLESS THE OWNER, ITS ELECTED OFFICIALS. OFFICERS. DIRECTORS. AGENTS. EMPLOYEES, REPRESENTATIVES AND VOLUNTEERS OF AND FROM DAMAGES, INJURIES (INC.LU➢ING DEATH), CLAIMS. PROPERTY DAMAGES (INCLUDING LOSS OF USE). LOSSES. DEMANDS, FORFEITURES. PENALTIES. FINES. COSTS, LAWSUITS, LIABILITIES. ACTIONS, AND CAUSES OF ACTION. OF EVERY KIND WHATSOEVER, AND EXPENSES. INCLUDING BUT NOT LIMITED TO FEES AND CHARGES OF ENGINEERS. ATTORNEYS. AND OTHER PROFESSIONALS. AND COURT. ARBITRATION. OR OTHER DISPUTE RESOLUTION COSTS. AND EXPENSES AND COSTS OF INVESTIGATION. ARISING OUT OF OR RELATING TO THIS AGREEMENT. ANY TASK ORDER, OR ANY SPECIFIC PROTECT, TO THE EXTENT CAUSED BY 1) THE NEGLIGENT ACT OR OMISSION OR WILLFUL ACTS OF ENGINEER OR ENGINEER'S Or'1iICERS, DIRECTORS, PARTNERS. AGENTS, EMPLOYEES. OR CONSULTANTS OR 2) MATERIAL BREACH OF THIS AGREEMENT OR TASK ORDER. ENGINEER FURTHER AGREES TO DEFEND. AT ITS OWN EXPENSE ON BEHALF OF THE OWNER AND IN THE NAME OF THE OWNER. SUITS AND PROCEEDINGS INSTITUTED AGAINST OWNER TO WHICH THE INDEMNITY OBLIGATION APPLIES. AND PAY AWARDS OF' DAMAGES ASSESSED 1� HICH RESULT FROM ANY SUCH CLAIM, SUIT OR PROCEEDING, INCLUDING ASSOCIATED EXPENSES. ATTORNEY FEES. COSTS OF INVESTIGATION, ARBITRATION AND/OR LITIGATION.To the fullest extent permitted by law, Engineer shall indemnify and hold haanlcss Owner. and Owner's officers. directors, partners, agents, consultants, and em all claims, costs, ]ossesrand•-dama_eesfincluding but-not-lintited to all fees-and-ehafges-of cninccr2, architects, attorneys, and othc- profc;rionals, and all court, arbitration, or other dispute resolution costs) arking out of or relating to this Agreement, any Task Order, Of any Specific Pralec-prev-ided-tbat any saeh zlaim, cost, loss, or damage is attributable to bodily injury, sickness, di a.se. or death, or to injury to or destruction of tangible property (ether -than -the Work itself), including the loss of use resulting therefremrbut only to the Modified Version or EJCDC No. E-505 Standard Form or Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright O 2004 National Society arPrnfessionat Engineers rar EJCDC. All rights reserved. Insertions and deletions are avnt tbte to be reviewed in the dnenment nttnched as Exhibit `B^ to Resnhdion No. in the City Setrctarv's drier. Page 16 of 1633 cxteft t—or—emission of Engineer or—Einginee-'s ofgeer , mnification provision of the preceding sentence is subject to and limited by the pro; isian., ac eed to by Owner —arm} Engineer in Exhibit 1, "Allocation of Risks," if any. B. Intellectual Property Indemnification by Chicrcr. To the fullest extent --permitted by Owner —shall indemnifyandeld—harmlcss Engineer, Engineer's officers, directors, partners, agents, employees, end Consultants from and atainst any and all claims, costs, architects, attorneys, and other profes.,ionals, and all court, arbitration, or other dispute Specific Project provided that any such claim, coal, lams, or damage is attributable to bodily injury, sic131ess, dis asc, or death or to injury to or destruction of tangible property (other than the Work itself), including the rose of uzc ^ Ming t c o t .t only to the extent caused by any negligent act or omission of Owner or Owner's officers, director., Owner with respect to this At,reement cc to the Specific -Project. ENGINEER AGREES TO INDEMNIFY AND HOLD HARMLESS THE - OWNER ITS ELECTED OFFICIALS. OFFICERS, DIRECTORS, AGENTS. EMPLOYEES. REPRESENTATIVES AND VOLUNTEERS OF AND FROM DAMAGES. CLAIMS. LOSSES. DEMANDS. FORFEITURES. PENALTIES. FINES. COSTS. LAWSUITS. LIABILITIES. ACTIONS. CAUSES OF ACTION OF EVERY KIND WHATSOEVER AND EXPENSES, INCLUDING BUT NOT LIMITED TO FEES AND CHARGES OF ENGINEERS ATTORNEYS. AND OTHER PROFESSIONALS. AND COURT. ARBITRATION, OR OTHER DISPUTE RESOLUTION COSTS, AND EXPENSES AND COSTS OF INVESTIGATION, TO TITE EXTENT CAUSED BY ALLEGED INFRINGEMENT OF PATENT OR COPYRIGHT OF THE UNITED STATES OR OF ANY TRADEMARK OR TRADE SECRET PROTECTED BY EITHER FEDERAL OR STATE LAW BY ENGINEER OR ENGINEER'S OFFICERS. DIRECTORS PARTNERS. AGENTS. EMPLOYEES. OR CONSULTANTS. ENGINEER SHALL AT ITS OWN EXPENSE, DEFEND SUITS OR PROCEEDINGS INSTITUTED AGAINST OWNER. AND PAY AWARDS OF DAMAGES ASSESSED WHICH RESULT FROM ANY SUCH CLAIM. SUIT OR PROCEEDING, INCLUDING ASSOCIATED EXPENSES, ATTORNEY FEES. COSTS OF INVESTIGATION. ARBITRATION AND/OR LITIGATION. AND SHALL ABIDE BY RESULTING DECREES AND COMPROMISES, -'14r2. IF A RESTRAINING ORDER OR TEMPORARY INJUNCTION IS GRANTED. ENGINEER SHALL MAKE EVERY REASONABLE EFFORT. BY GIVING A SATISFACTORY BOND OR OTHERWISE TO SECURE THE SUSPENSION OF ANY SUCH RESTRAINING ORDER OR TEMPORARY INJUNCTION. IF THE SERVICES ARE HELD TO CONSTITUTE AN INFRINGEMENT AND PERMANENTLY ENJOINED, ENGINEER SHALL MAKE EVERY REASONABLE EFFORT TO SECURE FOR OWNER A LICENSE AT ENGINEER'S EXPENSE AUTHORIZING THE CONTINUED USE OF THE ALLEGED INFRINGING PORTION OF Modified Version orEjCDC No. E•595 Standard Form of Agreement Between Owner and Engineer far Professional Services —Task Order Edition Copyright 02604 National Society orProfessionnl Engineers for EJCDC. All rights reserved. Insertions and detetiom are nrnilahle to be reviewed in the document attached as Exhibit "B" to Restitution No. in the City Secretor.'s office. Page I7 of 1833 Formatted: 1. (500) t Formatted: Font: Nat Bold TFIE SERVICES. iF ENGINEER IS UNABLE TO SECURE SUCH LICENSE WITHIN A REASONABLE TIME. ENGINEER SHALL, AT ITS OWN EXPENSE AND WITHOUT IMPAIRING PERFORMANCE REQUIREMENTS EITHER PROVIDE NON-1Ni' tINGING REPLACEMENT OR MODIFY THE SERVICES TO ELIMINATE THE INFRINGEMENT. IN ADDITION TO INDEMNIFYING AND SAVING OWNER HARMLESS. ENGINEER SHALL REIMBURSE OWNER FOR ANY COSTS INCURRED AS A RESULT OF THE UNAVAILABILITY OF THE INFRINGING ITEM OR ITS NONINFRINGiNG REPLACEMENT. C. Engineer's indemnity obligations are independent covenants and shall survive completion of or termination of the Agreement or any claimed breach of the Agreement. Owner shall promptly notify Engineer. in writing. of receipt of notice of the commencement or threatened commencement of any civil. administrative or investigative action or proceeding involving a claim for which Owner seeks indemnification. No failure to so notify Engineer shall relieve Engineer of its obligations under this Agreement except to the extent that Engineer can demonstrate damages attributable to such failure Within fifteen (15) days following receipt of written notice from the Owner. but no later than ten (10) days before the date on which any response to a complaint or summons is due. Engineer shall assume control of the defense and/or resolution of the claim. idcd under Para •aph 6.10.13 of this AgrccmeriL and to the fullest extent permitted by law, Owner shall indemnify and hold harmle:rz En,inecr and it, officers, directors, partners, agents, cmployc,s, and Consultslts from and against any and all claim. fosse and damages (inccleding but not limited to all fees and charg's of engineers, architects, to ruolutien costs) caused by, arising out of, relating te-or resulting froma--Constituent of Concern at, ' cd that (i) any :such claim, cost, loss, or d magc is attributable to bodily injury, sicknez, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (li) al or entity from and against the consequences of that-individua erreats-osvr-negligence-er willful misconfl eL Rt.lease. Engineer assumes full responsibility for the Services to be performed and releases. relinquishes. and discharges the City. its elected officials. officers. directors agents. employees. representatives and volunteers from all claims. demands and causes of action of every kind and character, including the cost of defense for any injury to or death of any person (whether employees of either Party or other third parties) and any loss of or damage to any property that is caused by or alleged to be caused by. ansina out of. or in connection with Services performed under this Agreement or a Task Order. This release shall apply regardless of whether the claims, demands and/or causes of action are covered in whole or in part by insurance. and in the event of injury. death. property damage. or loss suffered by the Engineer. any Consultant. or any person or organization directly or indirectly employed by any of them to performor furnish Services under this Agreement. entagc Sharc of .Negligence. To the fullest extent permitted by law, a party's total liability to the other party and anyone claimm, bs, through, or undeF-the-ether party for and-eest-losa, or dama^es caused in part by the negligence of the -pal adin +ail by the 31ndilird V'crsino of EJCDC No. E-595 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 02094 National Society of Pro(estionni Engineers for EJCDC. All righb reserved. insertions and deletions are nvnilahte to he reviewed in the document attached as Eahltil "12" to Resnlnlinn No. in the City Secrelorv's oilier. Page 18 of 1833 necgligenee-ef-thc ether party or-asir-other-;leg{ vent-enrityor individual, shall not exceed tv Engine , and all other negli ont entities and in ls. E .ihet:eal Waiver. To the fullest extent -permitted by law, Owner and ch other, and the other's emp consultants, any and all claims- for or entitlement to special, Project l{i Engineer waive against incidental, indirect, of lied to the Specific Miscella nevus Provisions A. Notices. Any notice required under this Agreement will be in writing and sent to the Designated Representative, addressed to the apprtopriatc pa; at its address on the by personal deliverv.by facsimile, by -registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. B. Survival All express representations, waivers, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Severability. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Engineer, wh Agee:ncntt .,hail be rcfoinied to rcplacc such stricken provi ion or part thereof with a ressing the intention of the stricken provision. D. Waiver. A party's Pa non -enforcement of any provision shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. E. .Irctttal of Claims. To the fullest extent permitted by lase, all causes of action arising under this Agreement shell be deemed to have accrued, and all statutory periods of limitation -shall commence, no -late Applicability to Task Orders. The terms and conditions set forth in this Agreement apply to each Task Order as if set forth in the Task Order, unless specifically modified in the Task Order In the event of a conflicts between this Agreement and a Task Order, the conflicting provisions of the Task Order shall take precedence for that Task Order. The provisions of this .1crccmcnt shall be modified only by a written ia;trument. Such amendments shall be applicable to all Task Orders issued after the effective date of the amendment if not otherwise set forth in the amendment. .l'_ Non -Exclusive Agreement Nothing herein shall establish an exclusive relationship between Owner and Engineer. Owner may enter into similar agreements with other professionals for the same or different types of services contemplated hereunder, and Modified Vrn inn or EJCDC No. E-505 Standard Form DI -Agreement Between Owner and Engineer far Professional Services —Task Order Edition Copyright 02004 Notional Society arPrnfessionl Engineers for EJCDC. AO rights reserved. Insertions and deletions are avnilah a to he rm. inved in the document attached as Eihihit `D" in Resolution No. in the City Srcrrbry's office. Page 19 of {833 Engineer may enter into similar or different agreements with other owners for the same or different services contemplated hereunder. ARTICLE 7 — DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto and any Task Order) terms (including the singular and plural forms) pnnted with initial capital letters have the meanings indicated in the text above, in the exhibits Exhibits or Task Order, or in the following provisions: 1. Addenda — Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. Additional Services — Services to be performed for or furnished to Owner by Engineer in accordance with a Task Order which are not included in Basic Services for that Task Order. 3. Agreement — This "Standard F rrn oflvlaster Services Agreement between Owner and Engineer for Professional Services — Task Order Edition" including those Exhibits listed in Article 8 and any duly executed Task Order. Application for Payment — The form acceptable to Engineer which is to be used by a Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos — Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. b. Basic Services — Specified services to be performed for or furnished to Owner by Engineer in accordance with a Task Order. Bid — The offer or proposal of a bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents — The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Cluznge Order — A document recommended by Engineer, which is signed by a Contractor and Owner to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times. 10. Constituent of Concern — Any substance, product, waste, or other material of any nature whatsoever (including, but not limited to, Asbestos, Petroleum, Radioactive Material, and PCBs) which is or becomes listed, regulated, or addressed pursuant to (a) the Comprehensive Environmental Response, Compensation and Liability Act, Mndinrd Version of EJCDC Na. E-S05 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 0 20114 National Society of Professional Engineers for EJCDC. Al rights reserved. Insertions and deletions are available to he reviewed in the document winched as Exhibit "B" to Resolution No. in the City Secretary's oilier. Page 20 of 14433 42 U.S.C. §§9601 et seq. ("CERCLA"); (b) the Hazardous Materials Transportation Act, 49 U.S.C. §§1801 et seq ; (c) the Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq. ("RCRA"); (d) the Toxic Substances Control Act, 15 U.S.C. §§2601 et seq ; (e) the Clean Water Act, 33 U.S.C. §§ 1251 et seq.; (f) the Clean. Air Act, 42 U.S.0 §§7401 et seq.; and (g) any other federal, state, or local statute, law, rule, regulation, ordinance, resolution, code, order, or decree regulating, relating to, or imposing Liability or standards of conduct concerning, any hazardous, toxic, or dangerous waste, substance, or material. 11. Construction Agreement - The written instrument which is evidence of the agreement, contained in the Contract Documents, between Owner and a Contractor covenng the Work. 12. Construction Contract - The entire and integrated written agreement between Owner and a Contractor concerning the Work. 13. Construction Cost - The cost to Owner of those portions of an entire Specific Project designed or specified by Engineer. Construction Cost does not include costs of services of Engineer or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties. or Owner's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with a Specific Project, or the cost of other services to be provided by others to Owner. Construction Cost is one of the items comprising Total Project Costs. 14. Consultants - Individuals or entities having a contract with Engineer to famish services with respect to a Specific Project as Engineer's independent professional associates, consultants, subcontractors, or vendors. The tern[ Engineer includes Engineer's Consultants. Contract Documents - Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between Owner and a Contractor, Addenda (which pertain to the Contract Documents), a contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and Engineer's wntten interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 16. Contract Price - The moneys payable by Owner to a Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 17. Contract Times - The numbers of days or the dates stated in a Construction Agreement to: (i) achieve Substantial Completion, and (1i) complete the Work so VI edified Version or FACDC No. &SOS Standard Form of Agreement Between o»ner and Engineer for Professional Services —Task Order Edition Copyright O 2004 National Society of Professional Engineers for EJCDC. All rights reserved. insertions and deletions arc available to he reviewed in the document winched as Exhibit ^II" to Resolution No. in the City Sccrcutrv's mice. Page 21 of 1833 that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. and (iiI) meet any other specified milestone. 18. Contractor — An individual or entity with whom Owner enters into a Construction Agreement for a Specific Project. 19. Correction Period — The time after Substantial Completion during which a Contractor must correct, at no cost to Owner. any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 20. Defective — An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to Engineer's recommendation of final payment. Documents — Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropnate phases by Engineer to Owner pursuant to this Agreement 22. Drawings — That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by a Contractor. Shop Drawings are not Drawings as so defined. Effective Date of the Construction Agreement — The date indicated in a Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 24. Effective Date of the Agreement — The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 25. Effective Date of the Task Order — The date indicated in the Task Order on which it becomes effective, but if no such date is indicated, it means the date on which the Task Order is signed and delivered by the last of the two parties to sign and deliver. 26. Field Order— A written order issued by Engineer which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 27. General Conditions — That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by a Contractor with respect to a Specific -Project. The "Standard General Conditions of the Construction Contract" as prepared by the Eneineers Joint Contract Document Committee (Document No. C-700, 2007 Edition) will be used unless both Parties mutually awree in a Task Order to use other General Conditions. Mollified 'Version of EJCDC No. E-505 Standard Form or Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 02004 National Soricty or Professional Engineers for EJCDC. MI rights reserved. Inrrtinns anti deletions net available to he reviewed in the document nttsrlted as Exhibit "I3" to Resolution No. in Ihr City Srcretan''s olticv. Page22 of I4 33 28 Hazardous Waste — The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. Laws and Regulations; Laws or Regulations — Any and all applicable laws, rotes, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCBs— Polychlorinated biphenyls. 31. Petroleum —Petroleum, including crude oil or any fraction thereof which is liquid at 32 degrees Fahrenheit and 14.7 pounds per square inch absolute, such as fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Radioactive lvfaterials — Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings — The Drawings as issued for constriction on which Engineer, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which Engineer considers significant based on record documents furnished by Contractor to Engineer and which were annotated by Contractor to show changes made during construction. 34. Reinfbursable Expenses — The —Reasonable and customary expenses approved by Owner in a Task Order and incurred directly by Engineer in connection with the performing or furnishing of Services for a Specific Project for which Owner shall pay Engineer -a., indicated in Exhibit C. Resident Project Representative — The authorized representative, if any, of Engineer assigned to assist Engineer at the Site of a Specific Project during the Construction Phase. The Resident Project Representative will be Engineer's agent or employee and under Engineer's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by Owner. The duties and responsibilities of the Resident Project Representative will be as set forth in each Task Order. 36. Samples — Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drawings — All drawings, diagrams, illustrations. schedules, and other data or information which are specifically prepared or assembled by or for a Contractor and submitted by a Contractor to Engineer to illustrate some portion of the Work. 38. Site — Lands or areas indicated in the Contract Documents for a Specific Project as being furnished by Owner upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for use of a Contractor. Modified 'On inn of EJCDC No. E-505 Stnndard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 02004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are nvaila ble to he reviewed in the dncumcnl attnchrd as Es hil,h `11" to Iicsnhttinn Nn. in thr City Scrretn rv's oilier. Page 23 01481.3 39. Specifications — That part of the Contract Documents prepared by Engineer consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work to be performed by a Contractor andcertain administrative details applicable thereto. 40. Specific Project ---An undertaking of Owner as set forth in a Task Order. 41. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 42. Supplenaenttry Conditions — That part of the Contract Documents which amends or supplements the General Conditions. 43. Task Order — A document executed by Owner and Engineer, including amendments if any, stating the scope of services, Engineer's compensation, times for performance of services and other relevant information for a Specific Project. 44. Total Project Costs — The sum of the Construction Cost, allowances for contingencies, the total costs of services of Engineer or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or Owner's costs for legal, accounting, insurance counseling, or auditing services, or interest and financing charges incurred in connection with a Specific Project, or the cost of other services to be provided by others to Owner pursuant to Exhibit 13 of this Agreement. 45. Work— The entire completed construction or the various separately identifiable parts thereof required to be provided by a Contractor wider Contract Documents for a Specific Project. Work includes and is the result of a Contractor performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the applicable Contract Documents. 46. Work Change Directive — A written directive to a Contractor signed by Owner upon recommendation of the Engineer, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Pnce or Contract Times. 47. Written Amendment — A written amendment of the Contract Documents signed by Owner and a Contractor on or after the Effective Date of a Construction Agreement Modified Version of EJCDC No. E-505 Standard Form orAgreement Between Owner and Engineer for Professional Services— Task Order Edition Copyright 42 2004 National Society of Professional Engineers for EJCDC. All rights reserved. Insertions and deletions are available to he reviewed in the document attached as Exhibit "n" to Resolution Na. in the City Secrehtrc's office. Pogo 24 of _ism and normally dealing with the non -engineering or non -technical rather than strictly construction -related aspects of the Contract Documents. ARTICLE 8 — EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits (Yes Included? or No) Exhibit Letter Exhibit Title Yes Attachment 1 —Task Order Form No A Schedule of Engineer's Services No B Schedule of Owner's Responsibilities No C Payments to Engineer for Services and Reimbursable Expenses No D Schedule Project of Representative Duties, Responsibilities and Limitations of Authority of Resident No E Notice of Acceptability of Work (Form) No F Construction Cost Limit Yes G Insurance No H Dispute Resolution No I AIlocation of Risls No I Reserved Yes K Amendment to Task Order (Form) 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 21 inclusive, together with the Exhibits identified as included above) constitutes the entire agreement between Owner and Engineer and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. Amendments to Task Orders shall be in writing, based upon the format provided in Exhibit K, "Amendment to Tall; Order." 8.03 Designated Representatives A. With the execution of this Agreement, Engineer and Owner shall designate specific individuals to act as Engineer's and Owner's representatives with respect to the services Services to be performed or furnished by Engineer and responsibilities of Owner under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Agreement on behalf of each respective pertyParty. Each Task Order shall likewise designate representatives of the twe partiesParties. The Designated Representative may be changed with written notice to the Designated Representative of the other Party. Mndified Version of E3CDC No. E•505 Standard Form o€Agreement Between owner and Engineer for Processional Services —Task Order Edition Copyright C 2003 National Society of Profasinnal Engineers for EJCDC. AN rights reserved. Insertions and deletions are nx:ailahle to he reviewed in the document attached as Exhibit 'B" to Resnlutinn Nn. in the City Secretary's nirirr. Page 25 of 4433 IN WITNESS WHEREOF, the parties Parties hereto -Have cteeuted- execute this Agreement. OWNER: ENGINEER: By: Name: 1 Gum=e G. Garver Title: Mayor, City of Georgetown By: Name: Title: (Printed Nome) Engineer License or Firm's Certificate No. (if required by law) State of : Date Signed. Date Signed. Al ]EST: APPROVED AS TO FORM: Jessica Brettle, City Secretary Mark T. Sokolow, City Attomey STATH OF IFXAS C:c)t:F.'1'Y (T On this day of personally appLared before mt_ and provul to me throueh sates itclon_cvidence of_ ietent(tication to be the pcisan vho signed this document in Inv presence. }SEALI Not in; Public i\! : Commission ENTi DESIGNATED REPRESENTATIVE DESIGNATED REPRESENTATIVE (see Paragraph 8 03 A): (see Paragraph 8.03.A). 1.1.111.1111.111.6 Title: Title: Modified Version or EJCDC No. E.505 Standard Form utAgreement Between Owner and Engineer tar ProressiaaaI Services— Task Order Edition Copyright 0 2004 National Society of Professional Engineers ror EICDG All rights reserved. Insertions and deletions are iwnilnhie to be reviewed in the document attached as Exhibit "6" to Resolution No. en the City Secretary's &Frc. Page 26 of 1833 Formatted Table Phone Number: Facsimile Number: E-Mail Address: Address for giving notices: Phone Number: Facsimile Number: E-Mail Address: Address for giving notices: ;Modified Version of EJCDC No. E-505 Standard Form of Agreement Between Owner and Engineer forProfessional Services —Task order Edition Copyright 0 2004 Nntiannt Society of Professional Engineers for EJCDC. AR rights reserved. lnserrians and deletions are available to he reviewed in the document ntLtched as Exhibit "13" to Resolution No. in the City Secretnn•s offer. Page27 of1833 E°,d1:IT G, consisting of 1 pages, referred to in and part of the Master Services Agreement between Owner and Engineer for Professional Services - Task Order Edition dated Insurance Paragraph 6.043 of the Agreement is amended and supplemented to include the following agreement of the parties. The limits of liability for Engineel'sthe insurance required by paragraphs 6.043.A and 6.O1.B of the Agreement are as follows: Workers' Compensation with statutory limits. Engineer shall certify in writing that the Engineer provides Workers Compensation Insurance for all of Engineer's employees involved in the Project. In addition. Engineer shall meet each stipulation required by the Texas Workers Compensation Commission. If you have questions concerning the requirements, you are instructed to contact the Tit) at (800) 252-3439. Employers Liability with minimum limits for bodily injury: a) by accident. $250,000 per each accident b) by disease, $250,000 per employee with a per policy aggregate of $500,000. Commercial General Liability including. but not limited to, Premises/Operations, Peisonal & Advertising Injury • Products/Completed Operations, Independent Contractors and Contractual Liability with minimum combined bodily injury (including death) and property damage limits of $1.000 000 per occurrence. $2,000.000 general aggregate. If the insurance is written on a claims -made form. coverage shall be continuous (by renewal or extended reporting penod) for not less than 24 months following the Iast to occur 1) expiration of this Agreement: or 2) Engineer's completion, and Owner's acceptance. of all Services provided under any and all Task Orders. it any. approved pursuant to the Agreement. Coverage.. including any renewals, shall have the same retroactive date as the original policy applicable to the Agreement. Business Automobile Liability covering owned, hired, and non -owned vehicles. with minimum combined bodily injury (including death) and property damage limit of $1.000.000 per occurrence Professional Liability $2.000.000 per claim. With written approval of the City's Risk Manager. a Claims Made Policy may be accepted for Professional Liability Insurance. By Engineer: Workers' Compensation: Employer's Liability Each Accident: Georgetown - Revised 12-10 Statutory Page 1 of2 Exhibit G - Insurance EJCDC E-505 Standard Form of Agreement Behveen Owner and Engineer for Professional Services —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Disease, Policy Limit. Disease, Each Employee: General Liability $ Each Occurrence (Bodily Injury and-lerty Damage). $ General Aggregate: Excess or Umbrella Liability Automobile Liability Bodily Injury. Each Accident Property Damage: Each Accident fed Combined Single Limit (Bodily Injury and Property Damage): Each Accident Professional Liability Each Occurrence: General Aggregate: $ Other-spee•i r.: By Owner Workers' Compensation: Statutory Employer's Liability Each Accident Disease,. Policy Limit. $ Disease, Each Employee $ Georgetown —Revised 12-10 Page 2 of 2 Exhibit G - Insurance EJCDC E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All rights reserved. Gener•.1 Liability General Aggregate: Each Occurrence (Bodily Injury and Property Damage): Excess Umbrella Liability Each Occurrence: Automobile Liability Bodily Injury - Each Accident :Property Damage: Each Accident • Combined Single Linn_it Each Accident Other (specif)): Additional Insureds listed on Owner's policies of insurance a ; a 6.d/.B. Georgetown — Revised 12-10 Page 3 of 2 Exhibit G - Insurance EJCDC E-5DS Standard Form of Agreement Beriveen Owner and Engineer for Professional Services —Task Order Edition Copyright 02004 National Society of Professional Engineers for EJCDC. All rights reserved. Exhibit C f 1 TASK ORDER Task Order 1 his ik Task Order No. , consisting of pages. In accordance with paragraph 1.01 of the Master Services Standard-af AAgreement between Owner and Engineer for Professional Services — Task Order Edition, dated ("Agreement"), Owner and Engineer agree as follows: I. Specific Project Data A. Title: B. Description: 2. C. City of Georgetown Project Number: D. City of Gcorectown General Ledger Account No.: E. City of Georgetown Purchase OrderNo.: F. Master Services Agreement. ContlactNumber: 20X r-aXX-C Services of Engineer [incorporate applicable text or paragraphs from Exhibit A, Schedule of Engineer's Services — either by reference or by insertion here. Incorporate Exhibits D andlor F if applicable — either by reference or by insertion here. Supplement or modify as needed for this specific Task Order.] 3. Owner's Responsibilities Owner shall have those responsibilities set forth in the Agreement Article 2 and in Exhibit B, subject to the following: [Here incorporate applicable text or paragraphs for this Specific Protect from Exhibit 13 Schedule of Owner's Responsibilities — either by reference or br, insertion lrere_stLrtc anyacfdiffcns or moth cations to Exhibit B, fo 4. Times for Rendering Services Phase Completion Date EJCDC E-S05 Standard Form of Agreement Between Owner and Engineer Professional Scnices—Task Order Edition Copyright 62004 National Society of Professional Engineers for EJCDC. All rights reserved. Attachment 1—Task Order Form Pnge I of3 TASK ORDER Payments to Engineer A. Owner shall pay Engineer for services rendered as follows: Category of Services Compensation Method Lump Sum: or Not to Exceed Amount &State of Compensation for Services Basic Services (Study and Report, Preliminary Design, Final Design, Bidding or Negotiating, Construction Phase) Resident Project Representative and Post- Constnrction Phase Services Additional Services C/.00sc One: A. Lump Sum B. Standard Hourly Rates C. Direct Labor Costs Times a Factor-(Fecror: ) DC. [Insert any other compensation method] Choose One: A. Lump Sum B. Standard Hourly Rates C. Dittct Labor Cests .Hmcs a Factor (Factor: ) DC. [Insert any other compensation method] :1. Lump Sum Choose One: [Oolittcd] B. Standard Hourly Rates C DtrecLabor• Costs -Times 1-actor (Factor: DC [Insert any other compensation method] CB 4-.! he terms of payment are set forth in Article 4 o Task Orderand in Exhibit C. he Agreement unless modified in thi Consultants: i. Other Modifications to Agreement: [Supplement or modify Agreement and EThibits, if appropriate.] 8. Attachments: Documents Incorporated By Reference: The Agreement. EJCDC E-505 Standard Form orAgreement Between Owner and Engineer Profession's] Services —Task Order Edition Copyright ©2004 National Society of Prafessiunnt Engineers for EJCDC Ail rights reserved. Attachment h —Task Order Form Page 2or3 Formatted: Indent: Left: 05" Formatted: Bullets and Numbering TASK ORDER (Supplement with reference to other Documents, ifappropriatce. / EJCDCESB5Slandard Form ofAgrecmcnt Between Ownernnd Engineer Professional Senicc5 Task Order Edition Copyright 6D2W3 National Society of Professional Engineers far EJCf1C. All rights resen ed. Attachment 1— Task Order Form Pngc 3 of 3 TASK ORDER Tci,lis and Conditions: Execution of this Task Order by Owner and Engineer shall make it subject to the terms and conditions of the Agreement (as modified above), which Agreement is incorporated by this reference Engineer is authorized to begin performance upon its receipt of a copy of this Task Order signed by Owner. The Effective Date of this Task Order is OWNER: By: Name. Title: ATTEST: ENGINEER: 1 Formatted Table By: Name: Title: Engineer License or Firm's Certificate No. State of: APPROVED AS TO FORM: Jessica Brcttic_ City Secretary Mark T. Sokolow. City Attorney STATE OF TEXAS COUNTY OF On this clay of inc and proved to me lhrousodsllciory evidence of ideni.ilicaLlon il(leumeni In my presence. �SEAL.j . 20 pclsonally appeared before IC who signed this Notary Public My Commission Expires: EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Seniccs—Task Order Edition Copyright i>inal Notional Society of Professional Engineers for EJ CDC. All rights reserved. Attachment I —Task Order Form Page 4 of 3 TASK ORDER DESIGNATED REPRESENTATIVE FOR TASK ORDER: Name: Title: Address: E-Mail Address: Phone: Fax: DESIGNATED REPRESENTATIVE FOR TASK ORDER: Name: Title: Address: E-Mail Address: Phone: Fax: EJCDC E-505 Standard Form of Agreement Between Owner and Engineer Professional Services —Task Order Edition Copyright 02004 National Society of Professional Engineers for EJCDG All rights reserved. Attachment I —Task Onfer Form Page of Formatted Table } Exhibit D Amendment to Task Order No. I. BackgroundSpccific Project Data: A. Title: B. Description: EXHIBIT K, consisting of pages, referred to in and part of the Master Services Agreement between Owner and Engineer for Professional Services — Task Order Edition dated C. City of Georeetown Protect Number: D. City of Georeetown General Leda erAccaunt No.: E. Cittr of Georgetown Purchase Order No.: l , Master Services Agreement Contract Number. 20XX-SXX-C Effective Date ofTask-Order Agreements l3 QwneR Engineer: d Specific Project: Nature of Amendment [Check those that are applicable and delete those that are inapplicable.] ❑ Additional Services to be performed by Engineer ❑ Modifications to Services of Engineer ❑ Modifications to Responsibilities of Owner ❑ Modifications to Payment to Engineer ❑ Modifications to Time(s) for rendering Services ❑ Modifications to other terms and conditions of the Task Order 3. Description of Modifications Page I of 2 Exhibit hi—Amendmentto Task Order EJCDC E-5D5 Standard Form of Agreement Between Owner and Engineer fur Professional Servirer—Task Order Edition Copyright 02004 National Society of Professional Engineers tar EJCDC. All rights reserved. [include the followine paraerapJzs that are appropriate and delete those not applicable to this Amendment. Refer to paragraph numbers used in the Task Order, the itgreement or a previous amendment for clarity with respect to the modifications to be made. Use paragraph numbers in this document for ease of reference herein and in Ttture correspondence or amendments. Delete this paragraph afier completing fora] Page 2 oF2 Exhibit K—Amendment to Task Order EJCDC E-5115 Standard Form orAgreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright 02004 National Society of Professional Engineers For EJCDC. All rights reserved. A. Engineer shall perform the following Additional Services: 13 The Scope of Sen'ices currently authorized to be performed by Engineer in accordance with the Task Order and previous Amendments. if any. is modified as follows: The responsibilities of Ownerare modified as follow=s: T}. For the Additional Services or the modifications to Services set forth above. Owner shall pay Engineer the following additional or modified compensation: E. The schedule for rendering Services is modified as follows: F. Other portions of the Task Order (including previous Amendments. if any) arc modified .as follows- d. 1tt chment 1. "Mod-ilktions" [List-etherAttachments—lif any]; Tenn4 and Conditions: Page 3 of 2 Exhibit K—Amendment to Task Order EJCDC E-505 Standard Form of Agreement Between Owner and Engineer fur Professional Stryker —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. A0 rights reserved. (Formatted: Font Times New Roman, 12 pt rmatted: Font Times New Roman, 12 pt 1 { Formatted: Indent Left: it J f Formatted: Indent: Left: OS" J Owner and Engineer hereby agree to modify the above -referenced Task Order as set forth in this Amendment._ All provisions of the Agreement and the Task Order not modified by this or previous Amendments remain in effect. The Effective Date of this Task Order Amendment is OWNERENG 4EEP By: Title: Title Date Signed: Sig-tcd Pngc 4 of? Exhibit K—Amendment to Task Order EJCDC E-505 Standard Form of Agreement Between Owner and Engineer for Professional Services —Task Order Edition Copyright ©2004 National Society of Professional Engineers for EJCDC. All ribts reserves!. Formatted: Font 12 pt Formatted: Font12 pt ( Forrnatts: Font: 12 pt Formatted: Font 12 pt d WNE.R: ENGINEER: By: Bv: Name. Name: Title: Tide: A t I EST: Jessica Brettle. City' Secretary STATE OF Tt: COUNfl uF- • En2inecr License or Firm's Certificate No. State of: On this day of . 20 personally appeared before me ,:uhd proved to me ihrunah satisfactory evidence of tdenLinea ion to he the person who sinned this document in nn^ presence. LEE r11_j Notary P_uhhc Ir Commission Expires: Thi; is _Attachment t, ccn:fisting of to Amendment No. , da.ad ; Task-0rder-_'ate. -WI Mentions [{nstade t}le €array inn paragraphs -that arm appropriate-and-deiete-these net-applie bte-to-this ainendment-Refer-to-paragraph-natnbers-used-in t e-Task-Order-the Agreernent, or a previous-amendmentforclarity e-modifiratio-ts is Eb mcdc. Use pi r.:;raph-numbars in this deeumeet for ease -of r.fcrente herein -and —in -future Pagel of 16 Attachment 1 thiodilcations) to Exhibit K.—Amendment In Task Order EJCDC E-Sm Standard Form of Agreement Between Owner and Engineer for Profosionnl Su -vices —Task Order Edition Copyright ©2011-1 National Society of Professional Engineer for EJCDC. All rights reserved eerre pendettc. or amendmenzs—Delete dais p'waaraph titter Eempletmo-fonn - 1. Emit eer shull-perferfrt-the-fellewing Additional SerMiees= The Scept. of Sennniectirrent etiterizcd to Ix per -formed b• ncer ID ticcvrdan c—with—the—Tas!: order ant! previous ameudment&ri-f-aily s modified as -fellows: ?. The responsibilities -of Owner are med€fied-as-€ellewsa 1. Per-the-Additional-Sewiees-or the-medfeafiuns-to-seruices set-forth-aho:c, Owner -shall pcv Enginxr th_ following addirienaFer modified-eempensatiena 5. The-sehedule-forrendeiiug rap,#iees-is-raodifEed-as-follows_ 6_ Otherportionsof--the—Tasi: Order (inehidin??—prevwieus antandtr.ent c�-mznedi€ied-as follows: Page 2 of 16 Attachment 1 (Modifications) to Exhibit K—Amendment to Task Order EJCDC [-SIPS Standard Form of Agreement Between tuner and Engineer for Professional Servicm—Task Order Edition Copyright 02O0-1 Notional Society of Professional Engineers far EJCDC. Alt rights reserved. Exhibit E Engineers Joint Documents Committee Design and Construction Related Documents Instructions and License Agreement Instructions Before you use any EJCDC document: 1. Read the License Agreement. You agree to it and are bound by its terms when you use the EJCDC document. ?. Make sure that you have the correct version for your word processing software How to Use: 1 While EJCDC has expended considerable effort to make the software translations exact, it can be that a few document controls (e.g., bold, underline) did not carry over. ?. 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General: You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void. This Agreement shall be governed by the laws of the State of Virginia. Should you have any questions concerning this Agreement, you may contact EJCDC by writing to: Arthur Schwartz, Esq. General Counsel National Society of Professional Engineers 1420 King Street Alexandria, VA 22314 Phone: (703) 684-2845 Fax: (703)836-4875 e-mail: aschwartz&spe.org You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this agreement. This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. S� CCESTED STANDARD FO BETWEEN OWNER AND CONT CONSTRUCTION CONTRACT OF AGREEMENT Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC Mltsrrcte4 Cavvea. or Evcrvrrntae Cnarcnnirs American Society of Civil Engineers National Society of Professional Engineers Professional Engineers in Private Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIh1 Y OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS Endorsed by CONSTRUCTION SPECIFICATIONS INSTITUTE CDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright CO 2007 National Society of Professional Engineers for EJCDC. All rights reserved. This Suggested Form of Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change m the other The language contained in the Suggested Instructions to Bidders (EJCDC C-200, 2007 Edition) is also carefully interrelated with the language of this Agreement. Their usage is discussed in the Narrative Guide to the 2007 EJCDC Construction Documents (EJCDC C-001, 2007 Edition). Copyright © 2007 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N. W., Washington, DC 20005 (202) 347-7474 www.acee.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 www.agc.org The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC C-520 Suggested Form of Agreement Bchvicen Owner and Contractor for Construction Contract (Stipulated Price) Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. INTRODUCTION This Suggested Form of Agreement between Owner and Contractor for Construction Contract (Stipulated Price) ("Agreement") has been prepared for use with the Suggested Instructions to Bidders for Construction Contracts ("Instructions to Bidders') (EJCDC C-200 2007 Edition)• the Suggested Bid Form for Construction Contracts (` Bid Form") (EJCDC C-410, 2007 Edition) and the Standard General Conditions of the Construction Contract ("General Conditions") (EJCDC C-700, 2007 Edition) Their provisions are interrelated, and a change in one may necessitate a change in the others See also the Guide to the Preparation of Supplementary Conditions (EJCDC C-800 2007 Edition), and the Narrative Guide to the 2007 EJCDC Construction Documents (EJCDC C-001, 2007 Edition). This Agreement form assumes use of a Project Manual that contains the following documentary information for a construction project: Bidding Requirements, which include the advertisement or invitation to bid, the Instructions to Bidders, and the Bid Form that is suggested or prescribed, all of which provide information and guidance for all Bidders; and o Contract Documents, which include the Agreement, performance and payment bonds, the General Conditions, the Supplementary Conditions, the Drawings, and the Specifications. The Bidding Requirements are not Contract Documents because much of their substance pertains to the relationships prior to the award of the Contract and has little effect or impact thereafter, and because many contracts are awarded without going through the bidding process. In some cases, however, the actual Bid may be attached as an exhibit to the Agreement to avoid extensive rekeying. (The definitions of terms used in this Agreement including `Bidding Documents," "Bidding Requirements," and 'Contract Documents," are set forth Article 1 of the General Conditions.) Suggested provisions are accompanied by "Notes to User" to assist in preparing the Agreement. The provisions have been coordinated with the other forms produced by EJCDC. Much of the language should be usable cm most projects, but modifications and additional provisions will often be necessary. When modifying the suggested language or writing additional provisions, the user must check the other documents thoroughly for conflicts and coordination of terms and make appropriate revisions in all affected documents. All parties involved in construction projects benefit significantly from a standardized approach in the location of subject matter throughout the documents Experience confirms the danger of addressing the same subject matter in more than one location: doing so frequently leads to confusion and unanticipated legal consequences. When preparing documents for a construction project, careful attention should be given to the guidance provided m the Uniform Location of Subject Matter (EJCDC N-122). EJCDC has designated Section 00520 for this Agreement. If this convention is used, the first page of the Agreement would be numbered 00520-1. If CSI's MasterFormat 0411"t is being used for the Project Manual, consult MasterFormat 04 for the appropnate section number and number the pages accordingly. For brevity, paragraphs of the Instructions to Bidders are referenced with the prefix "I," those of the Bid Form are referenced with the prefix "BF," and those of this Agreement are referenced with the prefix "A ' NOTE: EJCDC publications may be purchased from any of the organizations Listed on the page immediately following the cover page of this document. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright CO 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page i 1 1 SL: GGES-TED STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) THIS AGREEMENT is by and between the City of Georgetown, Texas, a home -rule city and municipal corporation with principal offices located a 113 East 8`h Street, Georgetown, Williamson County, Texas 78625 (owner} and (Contractor). Owner and Contractor hereby agree as follows: ARTICLE 1- WORK 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: ARTICLE 2 - THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: EJCDC C-520 Suggested Form of Agreement Between owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page I of 9 ARTICLE 3 — ENGINEER 3.01 The Project has been designed by: (Engineer), which is to act as Owner's representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 — CONTRACT TIMES 4.01 Time of the Essence A All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. NOTE TO USER Select one of the following alternatives to Paragraph 4.02 4.02 Dates for Substantial Completion and Final Payment A. The Work will be substantially completed on or before , and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions on or before 4.02 Days to Achieve Substantial Completion and Final Payment A. The Work will be substantially completed within days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within days aver the date when the Contract Times commence to run. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.02 above plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed on time Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a. penalty), Contractor shall pay Owner $ $500 for each day that expires after the tune specified in Paragraph 4 02 above for Substantial Completion until the Work is substantially complete After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within. the Contract EJCDC C-520 Suggested Form of Agreement Between owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. Alt rights reserved Page 2 of9 Time or any proper extension thereof granted by Owner, Contractor shall pay Owner S $500 for each day that expires after the time specified in Paragraph 4.02 above for completion and readiness for final payment until the Work is completed and ready for final payment. NOTE TO USER The standard liquidated damage amount is $500 per day. The liquidated damage amount may be increased for a particular Project by Task Order, as necessary. 4.04 Contractor shall continence performance of the Work on the date when the Contract Times commence to run. ARTICLE 5 — CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to Paragraphs 5.O1.A, �.�" .T�, ^ d_ro below: 1. For all Work other than Unit Price Work, a lump sum of: $ All -specific cash allowanc s arc included in the above price in accordance with Paragraph 11.02 of the Cenral Conditions. B. For al nit ' i ^' eu t equal to the sum of the established unit price for each separately identified item of Unit Price Work. times the actual quantity. of that item. Item Description Total of all Bid Prices (Unit Price Work) UNIT PRICE WORK Estimated Bid Unit Unit Quantity Pie The Bid prices for Unit Price Work set forth as of th based on estimated quantities. As provided in Paragraph 11.03 of the General Conditions, estimated. quantities are not guaranteed, andd--dctcrminations of actual quantities and wcr as provided in Pz Bid Price Conditions. ..:. For all Work, at the prices stated in Contractor's Bid, attached hereto as an exhibit. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 3 of 9 5.02 Owner agrees to pay Contractor from available funds for satisfactory performance of this Agreement in accordance with Contract Documents, and Owner antes to make patirnent on account thereof as provided in the Contract Documents. Lack of fiends shall render this Agreement null and void to the extent hinds are not available ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 6.02 Progress Payments; Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment on or about the day of each month during performance of the Work as provided in Paragraph 6 02 A 1 below. All such payments will be measured by the schedule of values established as provided in Paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements. 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Engineer may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions. 95 percent of Work completed (with the balance being retainage). If the Work has been 50 percent completed as determined by Engineer, and if the character and progress of the Work have been satisfactory to Owner and Engineer, then as long as the character and progress of the Work remain satisfactory to Owner and Engineer, there will be no additional retainage; and b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 100 percent of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 200percent of Engineer's estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society ofProfessional Engineers for EJCDC. All rights reserved. Page 4 of 9 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 14.07. ARTICLE 7 — INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest as provided in Tex. Gov. Code Chapter 2251. at the rate of percent per annum. ARTICLE 8 — CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Agreement, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and perfounnance of the Work. C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities), if any, that have been identified in Paragraph SC-4 02 of the Supplementary Conditions as containing reliable "technical data," and (2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site that have been identified in Paragraph SC-4.06 of the Supplementary Conditions as containing reliable "technical data." NOTE TO USER Modem the above paragraph if there are no such reports or drawings. E. Contractor has considered the information known to Contractor; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site -related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and (3) Contractor's safety precautions and programs. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 5 of 9 NOTE TO USER If the Contract Documents do not identify any Site -related reports and drawings, modify this paragraph accordingly. F. Based on the information and observations referred to in Paragraph 8.41.E above, Contractor does not consider that further examinations, investigations explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 9 — CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following. 1. This Agreement (pages 1 to _, inclusive). 2. Performance bond (pages to , inclusive). 3. Payment bond (pages to , inclusive). 4. Other bonds (pages to , inclusive). (pages to , inclusive). (pages to , inclusive). (pages to , inclusive). 5. General Conditions (pages to , inclusive). 6. Supplementary Conditions (pages to , inclusive). 7. Specifications as listed in the table of contents of the Project Manual. 8. Drawings consisting of sheets with each sheet bearing the following general title: [or] the Drawings listed on attached sheet index. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 6 of 9 9. Addenda (numbers to , inclusive). 10. Exhibits to this Agreement (enumerated as follows): a. Contractor's Bid (pages to , inclusive). b. Documentation submitted by Contractor prior to Notice of Award (pages to inclusive). c. [List other required attachments (if any), such as documents required by funding or lending agenciesJ. 11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed (pages to , inclusive). b. Work Change Directives. c. Change Orders. NOTE TO USER If any of the item listed are not to be included as Contract Documents, remove such item from the list and renumber the remaining items. B. The documents listed in Paragraph 9.O1.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph 3.04 of the General Conditions. E To the extent of an direct conflict or inconsistency between any of the Contract Documents the Contractor shall immediately seek clarification from the Engineer and notify the Owner that clarification has been requested. The Engineer shall clarify such discrepancy. within a reasonable time under the circumstances. ARTICLE 10 — MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 7 of 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor_, who agree that the Contract Documents shall be refouuned to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractor 's Certifications A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition; 3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid pnces at artificial, non-competitive levels; and EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 8 of 9 4. `coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 1O.06 Othcr ProvisionsWaiver of Breach A. Waiver aj'any breach of this Azree;ner2t shall not constitute waiver o v subsequent breach. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright cO 2007 National Society of Professional Engineers for EJCBC. All rights reserved. Page 9 of 9 IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. Counterparts have been delivered to Owner and Contractor. All portions of the Contract Documents have been signed or have been identified by Owner and Contractor or on their behalf. This Agreement will be effective on (which is the Effective Date of the Agreement). OWNER: CONTRACTOR City of Georgetown By: By: Title: Mayor Title: Attest: Title. City Secretary Address for giving notices: Address for giving notices: Approved as to Form Only City Attorney STATE OF TEXAS COUNTY OF WILLIAMSON CORPORATE ACKNOWLEDGMENT This instrument was acknowledged before me on this day of by in capacity as of , a on behalf of said Notary Public, State of TEXAS • EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 70 of 9 Exhibit F This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law. STANDARD GENERAL CONDITION S OF THE CONSTRUCTION CONTRACT Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly By rCEC .AMERICAN COUNCIL or E!{crntci n C Coaw Nits National Society of Professional Engineers Professional Engineers in Privale Praclice PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practrce drvision of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS This document has been approved and endorsed by fe 133 C)/ {� ' tti* it The Associated General Contractors of America Knowledge for Creating and Sustaining the Built Errvilonment Construction Specifications Institute American Society of Civil Engineers EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. MI rights reserved. 00700 - 0 Copyright ©2002 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314 American Council of Engineering Companies 1015 15th Street, N.W., Washington, DC 20005 American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor Nos. C-520 or C-525 (2002 Editions). Their provisions are interrelated and a change in one may necessitate a change in the other. Comments concerning their usage are contained in the EJCDC Construction Documents, General and Instructions (No C-00I) (2002 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. C-800) (2002 Edition). EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 1 TABLE OF CONTENTS ARTICLE 1 - DEFINITIONS AND TERMINOLOGY 1 01 Defined Terms 102 Terminology ARTICLE 2 - PRELIMINARY MATTERS 2 01 Delivery of Bonds and Evidence oflnsurance 2 02 Copies of Dontments 2 03 Commencement of Contract Times; Notice to Proceed 2 04 Starting the Work 2 05 Before Starting Construction 2.06 Preconstruction Conference 2.07 Initial Acceptance of Schedules ARTICLE 3 - CONTRACT DOCUMENTS: 1N 1 ENT, AMENDING, REUSE 3 01 Intent 3 02 Reference Standards 3.03 Reporting and Resolving Discrepancies 3 04 Amending and Supplementing Contract Documents 3 05 Reuse of Documents 3.06 Electronic Data ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability ofLands 4.02 Subsurface and Physical Conditions 4.03 Differing Subsurface or Physical Conditions 4.04 Underground Facilities 4.05 Reference Points 4.06 Hazardous Environmental Condition at Site ARTICLE 5 - BONDS AND INSURANCE 5 01 Performance, Payment and Other Bonds 5.02 Licensed Sureties and Insurers 5.03 Certificates of Insurance 5.04 Contractor's Liability Insurance 5.05 5.06 5.07 5.08 5.09 5.10 ARTICLE 601 6.02 6 03 6.04 6.05 6.06 6.07 6.08 6.09 6.10 6.11 6.12 6.13 6.14 6.15 Page Owner's Liability Insurance Property Insurance Waiver of Rights Receipt and Application of Insurance Proceeds Acceptance of Bonds and Insurance; Option to Replace Partial Utilization, Acknowledgment of Property Insurer 6 - CONTRACTOR'S RESPONSIBILITIES Supervision and Superintendence Labor; Working Hours Services, Materials, and Equipment Progress Schedule Substitutes and "Or -Equals" Concerning Subcontractors, Suppliers, and Others Patent Fees and Royalties Permits Laws and Regulations Tres 6 6 8 9 9 9 9 9 9 9 9 I0 10 10 10 11 11 11 11 I1 12 12 13 13 13 14 14 15 15 15 16 16 17 17 17 18 18 18 18 18 18 19 20 21 21 21 Use of Site and Other Areas 22 Record Documents 22 Safety and Protection 22 Safety Representative 23 Hazard Communication Pr ograms 23 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright Q 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 2 6 20 Indemnification 621 ARTICLE 701 7 02 7.03 ARTICLE 801 8 02 8 03 8.04 8.05 8.06 8.07 8.08 8.09 8.10 8.11 ARTICLE 9.01 9 02 9 03 9 04 9 05 9 06 9.07 9 08 9 09 ARTICLE 10 01 10 02 Unauthorized Changes in the Work 10.03 Execution of Change Orders 10 04 Notification to Surety 10 05 Claims ARTICLE 1101 1102 11 03 ARTICLE 12 01 12 02 12 03 ARTICLE I3 01 13 02 13 03 Tests and Inspections 13 04 Uncovering Work 13 05 Owner May Stop the Work 13 06 Correction or Removal of Defective Work 13 07 Correction Period 13 08 Acceptance of Defective Work 13 09 Owner May Correct Defective Work ARTICLE I4.01 14.02 14.03 Contractor's Warranty of Title 14.04 Substantial Completion 6.16 Emergencies 23 6.17 Shop Drawings and Samples 23 6.18 Continuing the Work 24 6.19 Contractor's General Warranty and Guarantee �4 24 Delegation of Professional Design Services 75 7 - OTHER WORK AT THE SITE 25 Related Work at Site 25 Coordination 26 Legal Relationships ?6 8 - OWNER'S RESPONSIBILITIES 26 Communications to Contractor 26 Replacement of Engineer 26 Furnish Data 26 Pay When Due 26 Lands and Easements; Reports and Tests 26 insurance 26 Change Orders 26 Inspections, Tests, and Approvals 26 Limitations on Owner's Responsibilities 27 Undisclosed Hazardous Environmental Condition 27 Evidence of Financial Arrangements 27 9 - ENGINEER'S STATUS DURING CONSTRUCTION 27 Owner's Representative 27 Visits to Site 27 Project Representative 27 Authorized Variations in Work 27 Rejecting Defective Work 27 Shop Drawings, Change Orders and Payments 28 Determinations for Unit Price Work 28 Decisions on Requirements ofContract Documents and Acceptability of Work 28 Limitations on Engineer's Authority and Responsibilities 28 10 - CHANGES IN THE WORK; CLAIMS 28 Authorized Changes in the Work 28 29 29 79 29 11 - COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK 30 Cost of the Work 30 Allowances 31 Unit Price Work 31 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 32 Change of Conti act Price 32 Change ofContract Times 33 Delays 33 I3 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 33 Notice of Defects 33 Access to Work 33 33 34 34 34 34 35 35 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 36 Schedule of Values 36 Progress Payments 36 37 37 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 3 14.05 Partial Utilization 14.06 Final Inspect ion 14.07 Final Payment 14.08 Final Completion Delayed 14.09 Waiver of Claims ARTICLE 15 01 15 02 15.03 15 04 ARTICLE 16.01 ARTICLE 170I 17 02 Computation of Times 17 03 Crunulative Remedies 17 04 Survival of obligations 17 05 Controlling Law 17 06 Headings 38 38 38 39 39 15 - SUSPENSION OF WORK AND TERMINATION 39 Owner May Suspend Work 39 owner May Terminate for Cause 39 Owner May Terminate For Convenience 40 Contractor May Stop Work or Terminate 40 16 - DISPUTE RESOLUTION 41 Methods and Procedures 41 17 - MISCELLANEOUS 41 Giving Notice 41 41 41 41 41 41 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright cU 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 4 GENERAL CONDITIONS ARTICLE 1 - DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Bidding Requirements or Contract Documents and printed with initial capital letters, the terms Listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda --Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents In case of inconsistency between the Contract Documents and any Addenda, the Addenda supersede other Contract Documents. 2. Agreement —The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Application for Payment --The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Asbestos —Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Bid —The offer or proposal of a Bidder submitted on the prescribed form setting forth the pnces for the Work to be performed. 6. Bidder —The individual or entity who submits a Bid directly to Owner. 7. Bidding Documents —The Bidding Requirements and the proposed Contract Documents (including all Addenda). 8. Bidding Requirements —The Advertisement or Invitation to Bid, Instructions to Bidders, bid security of acceptable fool', if any, and the Bid Form with any supplements. 9. Change Order —A document recommended by Engineer which is signed by Conti actor and Owner and authorizes an addition deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement. Extra Work will not be considered for a Change Order or for an adjustment in the Contract Price or the Contract Times unless the document is executed by both Owner and Contractor Furthermore, the parties agree that under no circumstances will an act or failure to act on the part of the Owner or the Engineer constitute a waiver of the written Change Order requirement for extra work. A written Change Order is a strict condition precedent for payment of extra work. 10. Claim --A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim. 11. Contract --The entire and integrated written agreement between the Owner and Contractor concerning the Work. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral including, without limitation, all prior iterations of these General Conditions, the Supplementary Conditions, or any other document not specifically listed in the Agreement. 12. Contract Documents-- The Contract Documents consist of the Agreement between Owner and Contractor, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Work Change Directive or (4) a Field Order. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or Invitation to Bid, Instructions to Bidders, sample forms, the Contractor's Bid, portions of Addenda relating to bidding requirements), Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions 13. Contract Price --The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of Paragraph 11 03 in the case of Unit Price Work). 14. Contract Times —The number of days or the dates stated in the Agreement to (i) achieve Milestones, if any, (ii) achieve Substantial Completion; and (iii) com- plete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. 15. Contractor --The individual or entity with whom Owner has entered into the Agreement. For EJCPC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 5 purposes of giving or receiving notice, directives, change orders, or any other information from the Engineer or Owner to the Contractor, the Contractor shall designate one person as Project Manager to receive such notice, directives, change orders, or other information. If the person so identified by the Contractor is not present on the job site during normal working hours for any consecutive 48-hour period the Contractor shall in writing addressed to the Engineer and Owner identify the individual who is acting as Project Manager. 16. Cost of the Work —See Paragraph 11.01.A for definition. 17. Drawings —That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor submittals are not Drawings as so defined. 18. Effective Date of the Agreement —The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. However, Contractor has no rights or remedies arising from execution of the Agreement prior to receiving a Notice to Proceed from Owner or Engineer. I9. Engineer --The individual or entity named as such in the Agreement. The Engineer shall identify a specific individual to serve as liaison between the Owner and Contractor and between Engineer and Contractor. The Engineer will notify the Owner and Contractor of the name of an acting replacement as Engineer representative whenever the person so designated is not available. Whenever the Contractor or Owner requires information, direction, or assistance, the Contractor or Owner shall notify the individual designated by the Engineer. 20 Field Order --A written order issued by Engineer which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. The Engineer will promptly obtain the signature of the Contractor on all Field Orders. This signature confirms that the Contractor is not entitled to any change in the Contract Price or the Contract Times. The Engineer will endeavor to obtain the signature of the Contractor on all Field Orders on a weekly basis 21. General Requirements —Sections of Division 1 of the Specifications. The General Requirements pertain to all sections of the Specifications. 22. Hazardous Environmental Condition —The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 23. Hazardous Waste —The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 24. Laws and Regulations; Laws or Regulations- -Any and all applicable laws, rules, regulations, ordinanc- es, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction 25. Liens —Charges, security interests, or encumbrances upon Project funds, real property, or personal property 26. Milestone —A principal event specified in the Contract Documents relating to an intermediate comple- tion date or time prior to Substantial Completion of all the Work 27. Notice of Award —The written notice by Owner to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, Owner, if the Owner decides to proceed with the Work, will sign and deliver the Agreement, to the apparent successful bidder. However, the Notice of Award shall not be construed as an agreement, meeting of the minds, contract, or any other legal obligation between Owner and Contractor. Until Contractor receives a Notice to Proceed from the Owner the Contractor has no remedy against the Owner. 28. Notice to Proceed --A written notice given by Owner to Contractor fixing the date on which the Con- tract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 29. Owner —The individual or entity with whom Contractor has entered into the Agreement and for whom the Work is to be performed. As a general matter, the Contractor should utilize the Engineer's designated representative as the liaison between the Contractor and the Owner. However, in an exceptional circumstance, the Contractor can notify Owner's designated representative. 30. PCBs —Polychlorinated biphenyls. 31. Petroleum —Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Pi ogress Schedule A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising the Contractor's plan to accomplish the Work within the Contract Times. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 6 33. Project —The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 34. Project Manual —The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 35. Radioactive Material —Source, special nucle- ar, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 36. Related Entity — An officer, director, partner, employee, agent, consultant, or subcontractor. 37. Resident Project Representative --The autho- rized representative of Engineer who may be assigned to the Site or any part thereof. 38. Samples —Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 39. Schedule of Submittals --A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 40. Schedule of Values --A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor's Applications for Payment. 4I. Shop Drawings --All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 42. Site —Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor 43. Specifcations—That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. 44. Subcontractor —An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 45. Substantial Completion —The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Owner, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 46. Successful Bidder —The Bidder submitting a responsive Bid to whom Owner makes an award. 47. Supplementary Conditions —That part of the Contract Documents which amends or supplements these General Conditions. 48. Supplier --A manufacturer, fabricator, suppli- er, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or any Subcontractor. 49. Underground Facilities —All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater storm water, other liquids or chemicals, or traffic or other control systems. 50. Unit Price Work --Work to be paid for on the basis of unit prices. 51. Work —The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all matenals and equipment into such construction, all as required by the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 7 52. Work Change Directive —A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Owner and recommended by Engineer ordenng an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 1.02 Terminology A. The following words or terms are not defined but, when used in the Bidding Requirements or Contract Documents, have the following meaning. B. Intent of Certain Terms or Adjectives I. The Contract Documents include the terms "as allowed," "as approved," "as ordered", "as directed" or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives `reasonable," "suitable," "acceptable," "proper," "satisfactory;' or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work It is intended that such exercise of professional judgment, action or determination will be solely to evaluate in general, the Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated m the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.09 or any other provision of the Contract Documents. C. Day 1. The word "day" means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective 1. The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, faulty, or deficient in that it: a. does not conform to the Contract Documents, or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents, or c. has been damaged prior to Engineer's - recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 14 04 or 14.05). E Furnish, Install, Perform, Provide 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition 2. The word "install," when used in connection with services matenals, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or "provide," when used in connection with services, materials or equipment, shall mean to furnish and install said services, materials or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "pro- vide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, "provide" is implied. F. Unless stated otherwise in the Contract Docu- ments, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 - PRELIMINARY MATTERS 2.01 Delivety of Bonds and Evidence of Insurance A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence of Insurance: Before any Work at the Site is started, Contractor shall each deliver to ONsner, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which Owner or any additional insured may reasonably request) which Contractor is required to purchase and maintain in accordance with Article 5. 2 02 Copies of Documents A. Owner shall furnish to Contractor up to four (4) pnnted or hard copies of the Drawings and Project EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 8 Manual. Additional copies will be furnished upon request at the cost of reproduction. 2.03 Commencement of Contract Times; Notice to Proceed A. TIME IS OF THE ESSENCE OF THIS CONTRACT This is a Calendar Day Contract. The Contract Times will commence to run on the day indicated in the Notice to Proceed. The Owner will provide a Notice to Proceed at a reasonable time after the effective date of the Agreement. In no event will the Owner have any obligations or duties to the Contractor under the Agreement until the Notice to Proceed is given to the Contractor. 2.04 Starting the Work A. Contractor shall start to perfoiru the Work on the date when the Contract Times commence to run as set forth in the Notice to Proceed. No Work shall be done at the Site prior to the date on which the Contract Times commence to run. 2.05 Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Owner and Engineer for timely review: I. a preliminary Progress Schedule; indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; 2. a preliminary Schedule of Submittals; and 3. a preliminary Schedule of Values for all of the Work which includes quantities and prices of items which when added together equal the Contract Price and subdi- vides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2 06 Preconstruction Conference A. Before any Work at the Site is started, a conference attended by Owner, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in Paragraph 2.05 A, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records. 2.07 Initial Acceptance of Schedules A. At least I0 days before submission of the first Application for Payment a conference attended by Contractor, Engineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submitted in accordance with Paragraph 2.05 A. Contractor shall have an additional 10 days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shalt provide for expeditious, economical, and practicable execution of the Work. The Contractor shall perform aII Work in accordance with the most recent Progress Schedule submitted to the Owner and Engineer. Nothing contained herein will impose on Owner or Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work nor interfere with or relieve Contractor from Contractor's full responsibility therefor. a. The Progress Schedule shall be m a detailed precedence -style critical path method ("CPM") or primavera-type format satisfactory to the Owner The Progress Schedule shall also (i) provide a graphic representation of all activities and events that will occur during performance of the Work; (it) identify each phase of construction and occupancy, and (hi) set forth dates that are critical in ensuring the timely and orderly completion of the Work m accordance with the requirements of the Contract Documents (hereinafter referred to as ' Milestone Dates") Upon review and acceptance by the Owner of the Milestone Dates, the Progress Schedule shall be deemed part of the Contract Documents. If not accepted, the Progress Schedule shall be promptly revised by Contractor in accordance with the recommendations of the Owner and resubmitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the Progress Schedule and shall promptly advise the Owner of any delays or potential delays. The accepted Progress Schedule shall be updated to reflect the actual conditions as set forth In Paragraph 2.6.1 or if requested by either the Owner or the Engineer. b. The parties acknowledge and agree that notwithstanding any theoretical delays or theoretical extensions of time for completion as may be shown on the Progress Schedule, the Interim Completion Dates, Milestone Dates, and the Scheduled Completion Date shall be governed by the Contract and shall be extended only in accordance with the procedures set forth in the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright cz 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 9 c In the event that the Owner or Engineer determines that the Work has not progressed or reached the level of completion required by the Contract Documents, the Owner shall have the right to order the Contractor to take corrective measures necessary to expedite the progress of construction, including, without limitation, (i) working additional shifts or overtime, (ii) supplying additional manpower, equipment, and facilities, and (iii) other similar measures. Contractor agrees to take such corrective measures to expedite the progress of construction until the progress of the Work complies with the state of completion required by the Contract Documents. d. In the event Owner or Engineer determines that Contractor is not timely performing any of its Work or that Contractor is not keeping up with the Progress Schedule, Owner may, in addition to Owner's rights stated herein, request Contractor to prepare a Recovery Schedule. In such event, Contractor will prepare a Recovery Schedule in such form and in such detail as Owner may request. Contractor further agrees that it will work as necessary to meet the requirements of the Recovery Schedule and bring its Work into compliance with the current Progress Schedule (all without any additional cost to Owner). No approval by Owner or Engineer of Contractor's Recovery Schedule pursuant to this Paragraph shall constitute a waiver by Owner of any damages or losses which Owner may suffer as a result of Contractor's failure to meet the Scheduled Completion Date. 2. Contractor's Schedule of Submittals will be acceptable to Owner and Engineer if it provides a workable arrangement for reviewing and processing the required submittals. 3. Contractor's Schedule of Values will be acceptable to Owner and Engineer as to form and substance if it provides a reasonable allocation of the Contract Price to component parts of the Work. 4. If required by Owner, Contractor shall also prepare and furnish project cash flow projections, manning charts for all key trades, and schedules for the purchase and delivery of all equipment and materials, together with the periodic updating thereof. ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one is as binding as i f required by all. B. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Docu- ments. Any labor, documentation, services, materials, or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be provided whether or not specifically called for at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article 9. D. In the event of inconsistencies within or between the parts of the Contract Documents, or between the Contract Documents and applicable standards, codes, or ordinances, the Contractor shall (i) provide the better quality or greater quantity of Work or (ii) comply with the more stringent requirement; either or both in accordance with the Engineer's interpretation. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regula- tions in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual or code, or any instruction of a Supplier shall be effective to change the duties or responsibilities of Owner, Contractor, or Engineer, or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, or Engineer, or any of, their Related Entities, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake respon- sibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies I. Contractor's Review of Contract Documents Before Starting Work. Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Owner and Engineer any conflict, error, ambiguity, or discrepancy which Contractor may discover in the Contract Documents or any condition at the site affecting the Work, and shall obtain a written interpretation or clarification from Owner and Engineer before proceeding EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright O 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - I0 with any Work affected thereby. The Contractor shall be liable to the Owner for failure to report any conflict error, ambiguity or discrepancy in the Contract Documents which the Contractor knew or reasonably should have known. 2. Contractor's Review of Contract Doctnnents During Performance of Work: If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Regulation applicable to the performance of the Work or of any standard, specification, manual or code, or of any instruction of any Supplier, Contractor shall promptly report it to Owner and Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods Indicated in Paragraph 3.04. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambigu- ity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof. 4. The terms "knowledge," `recognize," and "discover," their respective derivatives, and similar terms in the Contract Documents, as used in reference to the Contractor, shall be interpreted to mean that which the Contractor brows (or should know), recognizes (or should recognize), and discovers (or should discover) in exercising the care, skill, and diligence required by the Contract Documents Analogously, the expression "reasonably inferable" and similar terms in the Contract Documents shall be interpreted to mean reasonably inferable by a contractor familiar with the Project and exercising the care, skill. and diligence required of the Contractor by the Contract Documents. B. Resolving Discrepancies 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error ambiguity, or discrepancy between the provisions of the Contract Documents and: a. the provisions of any standard, specification, manual, code or instruction (whether or not specifically incorporated by reference in the Contract Documents), or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work can only be authorized, by one or more of the following ways: 1. A Field Order; 2. Engineer's approval of a Shop Drawing or Sample; (Subject to the provisions of Paragraph 6.17.D.3); or 3. Engineer's written interpretation or clarification. Any variations and deviations m the Work arising from any of the methods set forth in Paragraph 3.04.B will not authorize any Amendments to the Contract Price or Contract Times. The sole method to amend the Contract Price or Contract Times is pursuant to Paragraph 3.04 A. 3.05 Reuse ofDocuments A. Contractor and any Subcontractor or Supplier or other individual or entity performing or furnishing all of the Work under a direct or Indirect contract with Contractor, shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or Engineer's consultants, including electronic media editions; or 2. reuse any of such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaption by Engineer. B. The prohibition of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes. 3.06 Electronic Data A. Copies of data furnished by Owner or Engineer to Contractor or Contractor to Owner or Engineer that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole nsk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright Q 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 11 B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perfoiiu acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred Any errors detected within the 60- day acceptance period will be corrected by the transferring party. C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data's creator. ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, as a result of any delay in Owner's furnishing the Site or a part thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed and Owner's interest therein as necessary for giving notice of or filing a mechanic's or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports of explorations and tests of subsurface conditions at or contiguous to the Site that Engineer has used in preparing the Contract Documents; and 2. those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that Engineer has used in preparing the Contract Documents. B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the general accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their Related Entities with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto: or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions, or information. 4.03 Differing Subsurface or Physical Conditions A. The Contractor hereby covenants that it has examined the site of the proposed Work and is familiar with all of the conditions surrounding construction of the Project having conducted all inquiries, tests and investigations for the Work. 1. The Contractor acknowledges that he has satisfied himself as to the nature and location of the Work; the general and local conditions, particularly those bearing upon availability of transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads, and uncertainties of weather, nver/stream stages, or similar physical conditions at the site; the conformation and conditions of the ground; the character of equipment and facilities needed preliminary to and during the prosecution of the Work and all other matters which can in any way affect the work or the cost thereof under this Contract. 2. The Contractor further acknowledges that he has satisfied himself as to the character, quality, and quantity of surface and subsurface materials to be EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright ID 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - i 2 encountered from inspecting the Site and from evaluating information derived from exploratory work, if any, that has been presented in any geotechnical report, as well as from information presented in the Supplementary Conditions. Any failure by the Contractor to acquaint himself with all the available information will not relieve him from responsibility for properly estimating the difficulty or cost of successfully performing the Work. Neither the Owner nor the Engineer assume responsibility for any conclusion or interpretation made by the Contractor on the basis of the information made available by the Owner or the Engineer. All risks of differing site conditions shall be borne solely by the Contractor. 4.04 Underground Facilities A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to Owner or Engineer by the owners of such Underground Facilities, including Owner, or by others Unless it is otherwise expressly provided in the Sup- plementary Conditions: 1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data; and 2 the cost of all of the following will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data, b. locating all Underground Facilities shown or indicated m the Contract Documents and notifying Texas One Call Service, c. coordination of the Work with the owners of such Underground Facilities, including Owner, during construction, and d. the safety and protection of all such Under- ground Facilities and repairing any damage thereto result- ing from the Work. 3 Notwithstanding any other provision to the contrary, the Contractor shall be solely responsible for the location and protection of any and all public lines and utility customer service lines in the Work area, For the purposes of this section, "public lines" means the utility distribution and supply system within public rights -of - way or easements, and "utility customer service lines" (service) means any utility line connecting a utility customer to the utility distribution system. Generally, existing service connections within right-of-way or easements are not shown on the Drawings. The Contractor shall notify the Owner and "Texas One Call Service" and exercise due care to locate and to mark, uncover or otherwise protect all such lines in the construction zone and any of the Contractor's work or storage areas. The Contractor's obligation hereunder shall be primary and non -delegable The Contractor shall indemnify or reimburse such expenses or costs (Including fines that may be levied against the Owner) that may result from unauthorized or accidental damage to all public lines and utility customer service lines in the Work area. The Owner reserves the right to repair such damage the Contractor may cause, at the Contractor's expense. B. Not Shown or Indicated 1. If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, within 24 hours after the Contractor discovers and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16 A), identify the owner of such Underground Facility and give written notice to that owner and to Owner and Engineer. C. The Contractor shall take reasonable precaution to avoid disturbing primitive records and antiquities of archaeological, paleontological or historical significance No objects of this nature shall be disturbed without written permission of the Owner and the Texas Department of Antiquities Protection. When such objects are uncovered unexpectedly, the Contractor shall stop all Work in close proximity and notify Owner's Representative and the Texas Department of Antiquities Protection of their presence and shall not disturb them until written permission and permit to do so is granted. All primitive rights and antiquities uncovered on the Owner's property shall remain property of the State of Texas, the Texas Department of Antiquities Protection conforming to the Texas Natural Resources Code. If it is determined by the Owner, in consultation with the Texas Department of Antiquities Protection, that exploration or excavation of primitive records or antiquities on Project site is necessary to avoid loss, the Contractor shall cooperate in salvage work attendant to preservation. If the Work stoppage or salvage work causes an increase in the Contractor's cost of, or time required for, performance of the Work, the Contract Amount and/or Contract Time may be equitably adjusted. 4.05 Reference Points A. Engineer shall provide engineering surveys to establish reference points for construction which in Engineer's judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of -Professional Engineers for EJCDC. All rights reserved. 00700 -13 written approval of Owner. Contractor shall report to Engineer whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by a Registered Professional Land Surveyor at Contractor's expense 4.06 Hazardous Environmental Condition at Site A. Reports and Drawings: Reference is made to the Supplementary Conditions for the identification of those reports and drawings relating to a Hazardous Environmental Condition identified at the Site, if any, that have been utilized by the Engineer in the preparation of the Contract Documents. B. Limited Reliance by Contractor on Technical Data Authorized. Contractor may rely upon the general accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their Related Entities with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, bit not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions or information. C. The Contractor must take all precautions to discovery and locate any Hazardous Environmental Condition(s) at the site that may present a substantial danger to persons or property exposed thereto in connection with the Work at the site. The Contractor is responsible for any damages caused by such Hazardous Environmental Condition(s) created on the site by a Contractor, Subcontractor, Supplier, or anyone else for whom the Contractor is responsible. Within 24 hours of the time when the Contractor discovers the Hazardous Environmental Condition(s), the Contractor will follow the procedures set forth in Paragraph 4.06.D. D. If Contractor encounters a Environmental Condition or if Contractor or whom Contractor is responsible creates a Environmental Condition, Contractor shall im (i) secure or otherwise isolate such condition; Hazardous anyone for Hazardous mediately- (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 6 16.A); and (iii) notify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. E. Contractor shall not be required to resume Work in connection with such condition or in any affected area until after Owner has obtained any required permits related thereto and delivered to Contractor written notice: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, or both, as a result of such Work stop- page or such special conditions under which Work is agreed to be resumed by Contractor, either party may make a Claim therefor as provided in Paragraph 10.05. F. If after receipt of such written notice Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may make a Claim therefor as provided in Paragraph 10.05. Owner may have such deleted portion of the Work performed by Owner's own forces or others in accordance with Article 7. H. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4 06 H shall obligate Contractor to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. I. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -14 ARTICLE 5 - BONDS AND INSURANCE 5.02 Licensed Sureties and Insurers 5.01 Performance, Payment, and Other Bonds A. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all of Contractor's obligations under the Contract Documents. These bonds shall remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 13.07, whichever is later, except as provided otherwise by Laws or Regulations or by the Contract Documents. Contractor shall also furnish such other bonds as are required by the Contract Documents. B. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Compa- nies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. All bonds signed by an agent must be accompanied by a certified copy of the agent's authority to act. C. If the surety on any bond famished by Contractor is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirements of Paragraph 5 01 B, Contractor shall promptly notify Owner and Engineer and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs 5.01.B and 5.02 A. All bonds and insurance required by the Contract Documents shall be obtained from solvent surety or insurance companies that are duly licensed by the State of Texas and authorized to issue bonds or insurance policies for the limits and coverages required by the Contract Documents. The bonds shall be in a form acceptable to the Owner and shall be issued by a surety which complies with the requirements of Art. 7.19-1, Texas Insurance Code and which is otherwise acceptable to the Owner. Owner may require the surety to obtain reinsurance for any portion of the risk that exceeds 10% of the surety's capital and surplus. For bonds exceeding $100,000, the surety must also hold a certificate of authonty from the U.S. Secretary of the Treasury or have obtained reinsurance from a reinsurer that is authorized as a reinsurer in Texas and holds a certificate of authority from the U.S. Secretary of the Treasury. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 5.03 Certificates of Insurance A. Contractor shall deliver to Owner, with copies to each additional insured identified in the Supplementary Conditions certificates of insurance (and other evidence of insurance requested by Owner or any other additional insured) which Contractor is required to purchase and maintain. B. Owner shall deliver to Contractor, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Contractor or any other additional insured) which Owner is required to purchase and maintain. 5.04 Contractor's Liability Insurance A. Contractor shall purchase and maintam such liability and other insurance as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractors performance of the Work and Contractor's other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts, 2 claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -15 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sus- tained: a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor or b. by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including Loss of use resulting therefrom; and 6. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance required by this Paragraph 5.04 shall 1. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, include as additional insured (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any other individuals or entities identified in the Supple- mentary Conditions, all of whom shall be listed as addi- tional insureds, and include coverage for the respective officers, directors, partners, employees, agents, consultants and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby' 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; 3. include completed operations insurance; 4. include contractual liability insurance covering Contractor's indemnity obligations under Paragraphs 6.11 and 620; 5. contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other additional insured identified in the Supplementary Conditions to whom a certificate of Insurance has been issued (and the certificates of insurance furnished by the Contractor pursuant to Paragraph 5 03 will so provide); 6. remain in effect at least until final payment and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work in accordance with Paragraph 13.07; and 7. with respect to completed operations insur- ance, and any insurance coverage written on a claims - made basis, remain in effect for at least two years after final payment. a. Contractor shall furnish Owner and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such additional insured of continuation of such insurance at final payment and one year thereafter. Coverage. 5.05 Workers' Compensation Insurance 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-81, 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. 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 carriers, owner - operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing Iabor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.0I1(44) for all employees of the Contractor providing services on the project, for the duration of the project. EJCDC C-70D Standard General Conditions of the Construction Contract Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -16 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. 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 the project; and (2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The Contractor shall retain all required certificates of coverage for the duration of the Project and for one year thereafter. G. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery within Id days after the Contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a nonce, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. This notice does not satisfy other posting requirements imposed by the Act or other commission rules. This notice must be printed with a title in at least 30 point bold type and text in at least 19 paint normal type, and shall be in both English and Spanish and any other language common to the worker population The text for the notices shall be the following text provided by the commission on the sample notice, without any additional words or changes: "REQUIRED COVERAGE" WORKERS' COMPENSATION "The law requires that each person working on this site or providing services related to this construction project must be covered by workers' compensation insurance. This includes persons providing, hauling, or delivering equipment or materials, or providing labor or transportation or other service related to the project, regardless of the identity of their employer or status as an employee." "Call the Texas Workers' Compensation Commission at 512-440-3789 to receive information on the legal requirement for coverage, to verify whether your employer has provided the required coverage, or to report an employer's failure to provide coverage." 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 the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project, (4) obtain from each other person with whom it contracts, and provide to the Contractor: (a) a certificate of coverage, prior to the other person beginning work on the Project; and (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) 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright ©2092 National Society of Professional Engineers for EJCDC. All rights reserved. 00700- 17 J. By signing this Contract or providing or causing to be provided a certificate of coverage, the Contractor is representing to the Owner that all employees of the 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 proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self -insured, with the commission's 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 Owner to declare the Contract void if the Contractor does not remedy the breach within ten days after receipt of notice of breach from the Owner. 5.06 Builder's Risk Insurance A. Unless otherwise provided in the Supple- mentary Conditions, Contractor shall purchase and maintain property insurance upon the Work at the Site in the amount of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: I. include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured, 2. be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, false work, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage, (other than caused by flood) and such other perils or causes of loss as may be specifi- cally required by the Supplementary Conditions; 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); 4. cover matenals and equipment stored at the Site or at another location that was agreed to in wnting by Owner prior to being incorporated in the Work, provided that such materials and equipment have been included in an Application for Payment recommended by Engineer; Owner; 5. allow for partial utilization of the Work by 6. include testing and startup; and 7. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer with 30 days written notice to each other additional insured to whom a certificate of insurance has been issued B. Contractor shall purchase and maintain such boiler and machinery insurance or additional property insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured. C All the policies of insurance (and the certifi- cates or other evidence thereof) required to be purchased and maintained in accordance with Paragraph 5.06 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other additional insured to whom a certificate of insurance has been issued and will contain waiver provisions in accor- dance with Paragraph 5.07. D. Owner shall not be responsible for purchasing and maintaining any property insurance specified in this Paragraph 5.06 to protect the interests of Contractor, Subcontractors, or others in the Work to the extent of any deductible amounts that are identified in the Supple- mentary Conditions. The risk of loss within such identified deductible amount will be borne by Contractor, Subcontractors, or others suffering any such loss, and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and maintain it at the purchaser's own expense. 5.07 Waiver of Rights A. Owner and Contractor intend that all policies purchased in accordance with Paragraph 5.06 will protect Owner, Contractor, Subcontractors, and Engineer, and all other individuals or entities identified in the Supple- mentary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners employees, agents, consultants and subcontractors of each and any of them) in such policies and will provide primary coverage EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -18 for all losses and damages caused by the perils or causes of loss covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them for all losses and damages caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors, and Engineer, and all other individuals or entities identified in the Supplementary Conditions to be Listed as insured or additional insured (and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them) under such policies for losses and damages so caused None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by Owner as trustee or otherwise payable under any policy so issued. B. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them for: 2. loss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by Owner during partial utilization pursuant to Paragraph 14.05, after Substantial Completion pursuant to Paragraph 14.04, or after final payment pursuant to Paragraph 14.07. 5.08 Receipt and Application of Insurance Proceeds A. Any insured loss under the policies of insurance required by Paragraph 5.06 will be adjusted with Owner and made payable to Owner as fiduciary for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph 5.08.B. Owner shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Work and the cost thereof covered by an appropriate Change Order . B. Owner as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within 15 days after the occurrence of loss to Owner's exercise of this power If such objection be made, Owner as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, Owner as fiduciary shall adjust and settle the loss with the insurers. 5.09 Acceptance of Bonds and Insurance; Option to Replace A. If either Owner or Contractor has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the other party in accordance with Article 5 en the basis of non-conformance with the Contract Documents, the objecting party shall so notify the other party in wnting within 10 days after receipt of the certificates (or other evidence requested) required by Paragraph 2.01.B. Owner and Contractor shall each provide to the other such additional information in respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the bonds and insurance required of such party by the Contract Documents, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy, the other party may elect to obtain equivalent bonds or insurance to protect such other parry's interests at the expense of the party who was required to provide such coverage, and a Change Order shall be issued to adjust the Contract Price accordingly. 5.10 Partial Utilization, Acknowledgment of Property Insurer A. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 14.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant to Paragraph 5.06 have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES 6.01 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. Contractor shall not be responsible for the negligence of Owner or Engineer in the design or specification of a specific means, method, technique, sequence, or procedure of EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 19 construction which is shown or indicated in and expressly required by the Contract Documents. B. The Contractor shall have an English- speaking, competent Superintendent on the Work at all times that Work is in progress. Upon request of Owner, the Contractor shall present the resume of the proposed Superintendent to Owner showing evidence of experience and successful superintendence and direction of work of a similar scale and complexity. If, in the opinion of Owner, the proposed Superintendent does not indicate sufficient experience in line with the Work, he/she will not be allowed to be the designated Superintendent for the Work. The Superintendent shall not be replaced without Written Notice to Owner. If the Contractor deems it necessary to replace the Superintendent, the Contractor shall provide the necessary information for approval, as stated above, on the proposed new Superintendent. A qualified substitute Superintendent may be designated in the event that the designated Superintendent is temporarily away from the Work, but not to exceed a time limit acceptable to Owner. The Contractor shall replace the Superintendent upon the Owner's request in the event the Superintendent is unable to perform to the Owner's satisfaction. The Superintendent will be the Contractor's representative on the Work and shall have the authority to act on behalf of the Contractor. All communications given to the Superintendent shall be as binding as if given to the Contractor. Either the Contractor or the Superintendent shall provide an emergency and home telephone number at which one or the other may be reached if necessary when work is not in progress. C. The Contractor agrees to employ only orderly and competent workers, skillful in performance of the type of Work required under the Contract. The Contractor, Subcontractors, Sub -subcontractors, and their employees may not use or possess any firearms, alcoholic or other intoxicating beverages, illegal drugs or controlled substances while on the job or on the Owner's property, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. If the Owner or Owner's Representative notifies the Contractor that any worker is incompetent, disorderly or disobedient, has !glowingly or repeatedly violated safety regulations, has possessed any firearms or has possessed or was under the influence of alcohol or drugs on the job, the Contractor shall immediately remove such worker from performing Contract Work, and may not employ such worker again on Contract Work without the Owner's prior written consent. The Contractor shall at all times maintain good discipline and order on or off the site in all matters pertaining to the Project. 6.02 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Docu- ments. Contractor shall at all times maintain good disci- pline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner's written consent (which will not be unreasonably withheld) given after prior written notice to Engineer. 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start-up, and completion of the Work B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of Owner. The Contractor agrees to assign to the Owner at the time of final completion of the Work any and all manufacturer's warranties relating to materials and labor used in the Work, and the Contractor further agrees to perform the Work in such manner to preserve any and all manufacture's warranties. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. I. The Contractor shall furnish twenty-four (24) hour callback maintenance service for the equipment provided by the Contractor for a period of three (3) months after completion and acceptance of the Work. This service shall include regular examination of the equipment by competent and trained employees of the Contractor and shall include all necessary adjustments, greasing, oiling, cleaning, supplies, and parts to keep the equipment in proper operation, except parts made necessary by misuse, accident, or negligence not caused by the Contractor or any Subcontractors of any tier. C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. 6.04 Progress Schedule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.07 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -20 as it may be adjusted from time to time as provided below. 1. Contractor shall submit to Engineer for acceptance (to the extent indicated in Paragraph 2 07) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. Such adjust- ments will comply with any provisions of the General Re- quirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order. 6.05 Substitutes and "Or -Equals" A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required Unless the specification or description contains or is followed by words reading that no like, equivalent, or "or -equal" item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to Engineer for review under the circumstances described below. 1. "Or -Equal" Items: If in Engineer's sole discretion an item of material or equipment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by Engineer as an `or -equal" item, in which case review and approval of the proposed item may, in Engineer's sole discretion, be accomplished without compliance with some or all of the requirements for approval of proposed substitute items For the purposes of this Paragraph 6.05.A 1, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment Engineer determines that: 1) it is at Ieast equal in materials of construction, quality, durability, appearance strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole, 3) it has a proven record of performance and availability of responsive service; and b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times, and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2. Substitute Items a. If in Engineer's sole discretion an item of material or equipment proposed by Contractor does not qualify as an "or -equal" item under Paragraph 6.O5.A.1, it will be considered a proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow Engineer to determine that the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefor. Requests for review of proposed substitute items of material or equipment will not be accepted by Engineer from anyone other than Contractor c. The requirements for review by Engineer will be as set forth in Paragraph 6 05 A 2 d, as supplemented in the General Requirements and as Engineer may decide is appropriate under the circumstances. d. Contractor shall make written application to Engineer for review of a proposed substitute item of material or equipment that Contractor seeks to furnish or use. The application: 1) shall certify that the proposed substi- tute item will: a) perform adequately the functions and achieve the results called for by the general design, b) be similar in substance to specified, and c) be suited to the same use as specified; 2) will state: that that a) the extent, if any, to which the use of the proposed substitute item will preju- dice Contractor's achievement of Substantial Completion on time; b) whether or not use of the proposed substitute item in the Work will require a change in any of the Contract Docu- ments (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item, and EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright C 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700-21 c) whether or not incorporation or use of the proposed substitute item in con- nection with the Work is subject to payment of any license fee or royalty, 3) will identify: a) all variations of the proposed substitute item from that specified , and b) available engineering, sales, maintenance, repair, and replacement services; 4) and shall contain an itemized esti- mate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change, B. Substitute Constnwctian Methods or Proce- dures: If a specific means, method, technique sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer. Contractor shall submit sufficient information to allow Engineer, in Engineer's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for review by Engineer will be similar to those provided in Paragraph 6.05.A.2. C. Engineer's Evaluation: Engineer will be allowed seven (7) days within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.05.A and 6.05.B. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of acceptability. No "or equal" or substitute will be ordered, installed or utilized until Engineer's review is complete, which will be evidenced by either a Change Order for a substitute or an approved Shop Drawing for an "or equaI." Engineer will advise Contractor in writing of any negative determination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. E. Engineer's Cost Reirnbursernent: Engineer will record Engineer's costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6 05 A 2 and 6.05.B Whether or not Engineer approves a substitute item so proposed or submitted by Contractor, Contractor shall reimburse Owner for the charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner) resulting from the acceptance of each proposed substitute, F. Contractor's Expense: Contractor shall provide all data in support of any proposed substitute or "or -equal" at Contractor's expense. 6.06 Concerning Subcontractors, Suppliers, and Others A. Not later than 14 days after the execution of the Agreement by the Contractor and Owner, the Contractor shall furnish the Owner and the Engineer, in writing, with (1) the name, trade, and subcontract amount for each Subcontractor and (2) the names of all persons or entities proposed as manufacturers of the products identified in the Specifications (including those who are to furnish materials or equipment fabricated to a special design) and, where applicable, the name of the installing Subcontractor. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06 B), whether initially or as a replacement, against whom Owner may have reasonable objection. Contractor shall not be required to employ any Subcontractor Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection. B If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be submitted to Owner in advance for acceptance by Owner by a specified date prior to the Effective Date of the Agreement, and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individual or entity so identified may be revoked on the basis of reason- able objection after due investigation Contractor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued . No acceptance by Owner of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall consti- tute a waiver of any right of Owner or Engineer to reject defective Work C. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents: EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00709 - 22 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity, nor 2. shall anything in the Contract Documents create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. D. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. E. Contractor shall require all Subcontractors,. Suppliers, and such other individuals or entities per- forming or furnishing any of the Work to communicate with Engineer through Contractor. F. The divisions and sections of the Specifica- tions and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcon- tractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appro- pnate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as an additional insured on the property insurance provided in Paragraph 5.06, the agreement between the Contractor and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor, and Engineer„ and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. 6.07 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of Owner or Engineer its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by Owner in the Contract Documents B. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.08 Permits A. Unless otherwise provided in the Supple- mentary Conditions, Contractor shall obtain and pay for all construction permits and licenses. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 6.09 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applica- ble to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations. The Contractor shall plan and execute its operations in compliance with all applicable Federal, State and local laws and regulations, including those concerning control and abatement of water pollution and prevention and control of air pollution. The Contractor shall conduct activities in compliance with applicable laws and regulations and other requirements of the Contract relating to the environment, and its protection at all times. Unless otherwise specifically determined, the Contractor is responsible for obtaining and maintaining permits related to storm water run-off. The Contractor shall conduct operations consistent with storm water run-off permit conditions. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society or Professional Engineers for EJCDC. All rights reserved. 00700 - 23 B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and damages (including but not Iimited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work. C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragl dph 10.05. 6.10 Taxes A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. B. The Owner is an exempt organization as defined by Chapter 11 of the Property Tax Code of Texas and is thereby exempt from payment of Sales Tax under Chapter 151, Limited Use Sales, Excise and Use Tax, Texas Tax Code, and Article 1066 (C), Local Sales and Use Tax Act, Revised Civil Statutes of Texas The Owner may issue a "Texas Sales and Use Tax Exemption Certification" authorizing the Contractor to use same in the purchase of materials for the Project. 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. Contractor shall confine construction equip- ment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas resulting fromthe perfoiuiance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at Iaw. 3. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Contractor's performance of the Work. B. Removal of Debris During Performance of the Work: During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall confoini to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the com- pletion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Strictures: Contractor shall not Ioad nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents A. Contractor shall maintain in a safe place at the Site one record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings will be delivered to Engi- neer for Owner. B. The Record Documents shall be updated to show the "As -Constructed" Drawings and Specifications monthly prior to submission of periodic Applications for Payment. Failure to update the "As -Constructed" Drawings and Specifications constitutes cause for denial of a progress payment otherwise due. C. Upon Substantial Completion of the Work, these record documents, samples and Shop Drawings shall be promptly delivered to Owner. Prior to requesting a Substantial Completion inspection, Contractor shall furnish a complete set of the marked up "As -Constructed" Drawings and Specifications and one copy of same. E.ICDC C-700 Standard General Conditions of the Construction Contract. Copyright Chi 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 24 Concurrently, Contractor shall submit a preliminary copy of each operating and maintenance manual required by the Contract Documents for review by the Owner and Engineer. Once determined acceptable, Contractor shall provide Mylar prints of professionally drafted "As Constructed" Drawings and Specifications in bound volumes along with electronic copies on CD in a format acceptable to Owner, two (2) sets of photocopies of the Mylar prints, two sets of operating and maintenance manuals, two sets of approved submittals, and any other record documents required by the Contract Documents. 6.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precau- tions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Work, 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss, and shall erect and maintain all necessary safeguards for such safety and protection Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal relocation, and replacement of their property. C. All damage, injury, or Ioss to any property referred to in Paragraph 6.13.A.2 or 6 13 A 3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Draw- ings or Specifications or to the acts or omissions of Owner or Engineer or , or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). D. Contractor's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and Engineer has issued a notice to Owner and Contractor in accordance with Paragraph 14.07.B that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). E. When the Work requires excavation which either exceed four (4) feet in depth or results in any worker's upper body being positioned below grade level, the Contractor is required to submit a trenching plan to the Owner prior to commencing trenching operations. The plan is required to be prepared and sealed by a professional engineer registered in the State of Texas, and employed by the Contractor Said engineer cannot be anyone who is otherwise engaged directly or indirectly with this Project. F. The Contractor shall erect and maintain, as required by existing conditions and performance of the Contractor, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. G. When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry an such activities under supervision of properly qualified personnel. 6.14 Safety Representative A. Contractor shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. 6.15 Hazard Conimunication Programs A. Contractor shall be responsible for coordi- nating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.16 Emergencies A. In emergencies affecting the safety or protec- tion of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer written notice immediately, and in no instance more than 24 hours after the alleged emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 25 Engineer determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accor- dance with the acceptable Schedule of Submittals (as required by Paragraph 2 07). Each submittal will be identified as Engineer may require. 1. Shop Drawings a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respect to quantities dimensions, specified performance and design cntena, materials, and similar data to show Engineer the services, materials,and equipment Contractor proposes to provide and to enable Engineer to review the information for the limited purposes required by Paragraph 6.17.D. 2. Samples: Contractor shall also submit Samples to Engineer for review and approval in accor- dance with the acceptable schedule of Shop Drawings and Sample submittals. a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragraph 6.17 D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals , any related Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Submittal Procedures 1. Before submitting each Shop Drawing or Sample, Contractor shall have determined and verified: a al] field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; b. the suitability of all materials with respect to intended use, fabncation, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; c. all information relative to Contractor's responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto; and d. shalI also have reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents. 2. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor's obligations wider the Contract Documents with respect to Contractor's review and approval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations, that the Shop Drawmg or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawing's or Sample Submittal; and, m addition, by a specific notation made on each Shop Drawmg or Sample submit- ted to Engineer for review and approval of each such variation. D. Engineer's Review 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Docu- ments. 2. Engineer's review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of con- struction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any vanation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 6.17.C.3 and Engineer has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer's review and approval shall not relieve Contractor from responsibility for complying with the requirements of Paragraph 6.17 C.1 E. Resubmittal Procedures EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright CO 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 26 1. Contractor shall make corrections required by Engineer and shall return the required number of cor- rected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. 6.18 Continuing the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as Owner and Contractor may otherwise agree in writing. 6.19 Contractor's General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Engineer and its Related Entities shall be entitled to rely on representation of Contractor's warranty and guarantee. B. Contractor's warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Sub- contractors, Suppliers, or any other individual or entity for whom Contractor is responsible, or 2. nolinal wear and tear under normal usage. C. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contact Documents: 1. observations by Engineer; 2. recommendation by Engineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4 use or occupancy of the Work or any part thereof by Owner; 5. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptabil- ity by Engineer, 6. any inspection, test, or approval by others; or 7. any correction of defective Work by Owner. 620 Indemnification A. CONTRACTOR SHALL INDEMNIFY AND HOLD OWNER HARMLESS AGAINST ANY LOSS OR DAMAGE TO PERSONS OR PROPERTY AS A RESULT OF OPERATIONS GROWING OUT OF THE PERFORMANCE OF THIS CONTRACT AND CAUSED BY THE NEGLIGENCE OR CARELESSNESS OF CONTRACTOR, CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, AND AGENTS OR LICENSEES. THE CONTRACTOR SHALL UNCONDITIONALLY DEFEND AT ITS OWN COST AND SHALL INDEMNIFY AND HOLD HARMLESS THE OWNER, ENGINEER, ENGINEER'S CONSULTANTS AND SUB - CONSULTANTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS AND OTHER CONSULTANTS AND ANY OF THEM FROM AND AGAINST ALL CLAIMS, JUDGMENTS, COSTS, LIENS, LIABILITIES, LOSSES, DAMAGES, PENALTIES, INTEREST, FEES, FINES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ALL FEES AND CHARGES OF ENGINEERS, ARCHITECTS, ATTORNEYS AND OTHER PROFESSIONALS AND ALL COURT OR OTHER DISPUTE RESOLUTION COSTS) IN ANY MANNER ARISING DIRECTLY OR INDIRECTLY OUT OF, OR RESULTING FROM, THE WORK PERFORMED HEREUNDER OR THE MATERIALS TO BE FURNISHED UNDER THE CONTRACT DOCUMENTS, THAT IS: 1. ATTRIBUTABLE TO BODILY INJURY, SICKNESS, DISEASE OR DEATH (INCLUDING EMPLOYEES OF CONTRACTOR AND OWNER), OR TO INJURY TO OR DESTRUCTION OF TANGIBLE PROPERTY (INCLUDING PROPERTY OF CONTRACTOR AND OWNER AND THE WORK ITSELF), INCLUDING THE LOSS OF USE RESULTING THEREFROM, AND 2. CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT ACT, ERROR OR OMISSION; SOLE NEGLIGENCE; CONCURRENT NEGLIGENCE; JOINT NEGLIGENCE; ACTIVE OR PASSIVE NEGLIGENCE; GROSS NEGLIGENCE; NEGLIGENCE PER SE, STRICT LIABILITY; INVERSE CONDEMNATION, PATENT INFRINGEMENT; COPYRIGHT; CONDITION OF PROPERTY OR ITS PREMISES; LATENT DEFECTS; DEFECTS IN MATERIALS, WORKMANSHIP, OR DESIGN; WORKERS' COMPENSATION CLAIMS, DISABILITY ACT CLAIMS; EMPLOYEE BENEFIT CLAIMS; AND FAILURE TO COMPLY WITH ANY OF THE EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 27 PROVISIONS OF THE CONTRACT DOCUMENTS; OR OTHER ACT OR OMISSION OF CONTRACTOR, OR CONTRACTOR'S EMPLOYEES, SUBCONTRACTORS, OR AGENTS OR LICENSEES. B In any and all claims against Owner or Engineer or any of their respective consultants, agents, officers, directors, partners, or employees by any employ- ee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.20 A shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, Supplier, or other individual or entity under workers' compensation acts, disability benefit acts, or other employee benefit acts. C. The indemnification obligations of Contractor under Paragraph 6.20.A shall not extend to the liability of Engineer and Engineer's officers, directors, partners, employees, agents, consultants and subcontractors arising out of: 1. the preparation or approval of, or the failure to prepare or approve, maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. 6.21 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to Engineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy D. Pursuant to this Paragraph 621, Engineer's review and approval of design calculations and design drawings will be only for the limited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents Engineer's review and approval of Shop Drawings and other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. ARTICLE 7 - OTHER WORK AT THE SITE 7.01 Related Work at Site A. Owner may perform other work related to the Project at the Site with Owner's employees, or via other direct contracts therefor, or have other work performed by utility owners If such other work is not noted in the Con- tract Documents, then: 1. written notice thereof will be given to Contractor prior to starting any such other work. B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner and Owner, if Owner is performing other work with Owner's employees, proper and safe access to the Site, a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and shall properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering their work and will only cut or alter their work with the written consent of Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between. Owner and such utility owners and other contractors. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 09700 - 28 8.02 Replacement of Engineer C. If the proper execution or results of any part of Contractor's Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor's Work. Contractor's failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor's Work except for latent defects and deficiencies in such other work. 7.02 Coordination A. If Owner intends to contract with others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Condi- tions: i. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibili- ties will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. 7.03 .Legal Relationships A. Paragraphs 7.O1.A and 7.02 are not applicable for utilities not under the control of Owner. B. Each other direct contract of Owner under Paragraph 7.01.A shall provide that the other contractor is liable to Owner and Contractor for the reasonable direct delay and disruption costs incurred by Contractor as a result of the other contractor's actions or inactions. C. Contractor shall be Liable to Owner and any other contractor for the reasonable direct delay and disruption costs incurred by such other contractor as a result of Contractor's action or inactions. ARTICLE 8 - OWNER'S RESPONSIBILITIES 8.01 Conrniunications to Contractor A. Except as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer. A. In case of termination of the employment of Engineer, Owner shall appoint an engineer to whom Contractor makes no reasonable objection, whose status under the Contract Documents shall be that of the former Engineer. 8.03 Furnish Data A. Owner shall furnish the data required of Owner under the Contract Documents. 8.04 Pay When Due A. Owner shall make payments to Contractor when they are due as provided in Paragraphs 14.02.0 and 14.07.C. 8.05 Lands and Easements; Reports and Tests A. Owner's duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.0I and 4.05. Paragraph 4.02 refers to Owner's identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site that have been utilized by Engineer in preparing the Contract Documents. 8.06 Insurance A. Owner's responsibilities, if any, in respect to purchasing and maintaining liability and property insur- ance are set forth in Article 5. 8.07 Change Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph 10.03. 8.08 Inspections, Tests, and ,4pprovals A. Owner's responsibility in respect to certain inspections, tests, and approvals is set forth in Paragraph 1303B 8.09 Limitations on Owner's Responsibilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 09700 - 29 8.10 Undisclosed Hazardous Environmental Condition A. Owner's responsibility in respect to an undis- closed Hazardous Environmental Condition is set forth in Paragraph 4.06. ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION 9.01 Owner's Representative A. Engineer will be Owner's representative during the construction period The duties and responsi- bilities and the limitations of authority of Engineer as Owner's representative during construction are set forth in the Contract Documents and will not be changed without written consent of Owner and Engineer. 9.02 Visits to Site A. Engineer will make visits to the Site at inter- vals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor's executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer's efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will confoi in generally to the Contract Documents. On the basis of such visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer's visits and observations are subject to all the Iimitations on Engineer's authority and responsibility set forth in Paragraph 9.09. Particularly, but without limitation, dunng or as a result of Engineer's visits or observations of Contractor's Work Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Project Representative A furnish a Engineer in Work. The If Owner Resident providing authority and Engineer agree, Engineer will Project Representative to assist more extensive observation of the and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph 9.09. If Owner designates another representative or agent to represent Owner at the Site who is not Engineer's consultant, agent or employee, the responsibilities and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions.. 9.04 Authorized Variations in Work A. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Docu- ments. These may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05 9.05 Rejecting Defective Work A. Engineer will have authority to reject Work which Engineer believes to be defective, or that Engineer believes will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. The Engineer will obtain on a weekly basis the Contractor's signature on all Field Orders that will contain an acknowledgement by the Contractor that the Field Order does not involve an adjustment in the Contract Price or in the Contract Times. 9.06 Shop Drawings, Change Orders and Payments A. In connection with Engineer's authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph 6 17. B. In connection with Engineer's authority, and limitations thereof, as to design calculations and design drawings submitted in response to a delegation of professional design services, if any, see Paragraph 6.21. C. In connection with Engineer's authority as to Change Orders, see Articles I0, 11, and 12. D In connection with Engineer's authority as to Applications for Payment, see Article 14. 9.07 Determinations for Unit Price Work EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright tU' 2002 National Society of Professional Engineers for EJCDC. MI rights reserved. 00700 - 30 A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data) upon Owner and Contractor, subject to the provisions of Paragraph 10.05 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work A. Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. All matters in question and other matters between Owner and Contractor arising prior to the date final payment is due relating to the acceptability of the Work, and the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to the question B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believe that any such decision entitles them to an adjustment in the Contract Price or Contract Times or both, a Claim may be made under Paragraph 10.05. The date of Engineer's decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph 10 05 B C. Engineer's written decision on the issue referred will be final and binding on Owner and Contractor, subject to the provisions of Paragraph 10.05. D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be Iiable in connection with any interpretation or decision rendered in good faith in such capacity. 9.09 Limitations on Engineer's Authority and Responsibilities A. Neither Engineer's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by Engineer in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be respon- sible for Contractor's failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer's review of the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph 14.07.A will only be to determine generally that their content complies with the require- ments of, and in the case of certificates of inspections, tests, and approvals that the results certified indicate compliance with the Contract Documents. E. The limitations upon authority and responsi- bility set forth in this Paragraph 9.09 shall also apply to, the Resident Project Representative, if any, and assistants, if any. ARTICLE 10 - CHANGES IN THE WORK; CLAIMS 10.0I Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as othenvise specifically provided). A change in the Contract Price or the Contract Times shall be accomplished only be written Amendment, a written Change Order, or a written Work Change Directive. Accordingly, no course of conduct or dealings between the parties, no expressed or implied acceptance of alterations or additions to the Work, and no claim that the Owner has been unjustly enriched by any alterations or additions to the Work shall be the basis of any claim for an increase in any amount due under the Contract Documents or a change in any time period provided for in the Contract Documents. B. If Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -31 Directive, a Claim may be made therefor as provided in applicable bond will be adjusted to reflect the effect of Paragraph 10.05. 10.02 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3 04, except in the case of an emergency as provided in Paragraph 6.I6 or in the case of uncovering Work as provided in Paragraph 13.04.B. 10.03 Execution of Change Orders A. Owner and Contractor shall execute appropri- ate Change Orders recommended by Engineer covering: 1. changes in the Work which are: (i) ordered by Owner pursuant to Paragraph 10.01.A, (ii) required because of acceptance of defective Work under Paragraph 13.08.A or Owner's correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by Engineer pursuant to Paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. Agreements on any Change Order shall constitute a final settlement of all matters relating to the change in the Work that is the subject of a Change Order, including, but not limited to, all direct and indirect costs associated with such change and any and all adjustments to the Contract Price and the Contract Times In the event a Change Order increases the Contract Price, the Contractor shall include the Work covered by such Change Order in Applications for Payment as if such Work were originally part of the Contract Documents. 10.04 Notification to Surety A. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times) is required by the provisions of any bond to be given to a surety, the giving of any such notice will be Contractor's responsibility. The amount of each any such change. 10.05 Claims A. Engineer's Decision Required: All Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the Engineer for decision. A decision by Engineer shall be required as a condition precedent to any exercise by Owner or Contractor of any rights or remedies either may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Claims. B. Notice: Written notice stating the general nature of each Claim, shall be delivered by the claimant to Engineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibility to substantiate a Claim shall rest with the party making the Claim. Notice of the amount or extent of the Claim, with supporting data shall be delivered to the Engineer and the other party to the Contract within 60 days after the start of such event (unless Engineer allows additional time for claimant to submit additional or more accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 12.O1.B. A Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Paragraph I2.02.B. Each Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to Engineer and the claimant within 30 days after receipt of the claimant's last submittal (unless Engineer allows additional time) C. Engineer's Action: Engineer will review each Claim and, within 30 days after receipt of the last submittal of the claimant or the last submittal of the opposing party, if any, take one of the following actions in writing. 1. deny the Claim in whole or in part, 2. approve the Claim, or 3. notify the parties that the Engineer is unable to resolve the Claim if, in the Engineer's sole discretion, it would be inappropriate for the Engineer to do so. For purposes of further resolution of the Claim, such notice shall be deemed a denial. D In the event that Engineer does not take action on a Claim within said 30 days, the Claim shall be deemed denied. E. Engineer's written action under Paragraph 10.05.0 or denial pursuant to Paragraphs 10.05.C.3 or 10 05 D will be fmal and binding upon Owner and Contractor, unless Owner or Contractor invoke the E ICDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 32 dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Claim for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph 10.05. G. In calculating the amount of any claim or measure of damages for breach of contract (such provision to survive any termination of following such breach), the following standards shall apply: 1. No indirect or consequential damages will be allowed; 2. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison pf planned manloading to actual manloading, or any other analysis that is used to show damages indirectly; 3. Damages are Iimited to extra costs specifically shown to have been directly caused by a proven wrong; 4. No damages shall be allowed for delay; 5. No damages will be allowed for home office overhead or other home office charges or any Eichleay formula calculation; and 6. No profit will be allowed on any damage claim. ARTICLE 11 - COST OF THE WORK; ALLOWANCES: UNIT PRICE WORK 11.01 Cost of the Work A. Costs Included: The term Cost of the Work means the sum of all costs, except those excluded in Paragraph 11.01 B, necessarily incurred and paid by Conti actor in the proper performance of the Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Pnce is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items, and shall not include any of the costs itemized in Paragraph 11.01 B. 1 Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include, without limitation, superintendents, foremen, and other personnel employed full time at the Site. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits, which shall include social security contributions, unemployment, excise, and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized in writing by Owner. 2 Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers' field services required in connection therewith All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make pay- ments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that they may be obtained. 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor s Cost of the Work and fee as provided in this Paragraph 11.01. 4. Costs of special consultants (including but not limited to Engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work, but only to the extent authorized and approved in writing by Owner and Engineer. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the Work_ b. Cost, including transportation and mainte- nance, of all matenals, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, Iess market value, of such items used but not consumed which remain the property of Contractor. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 33 Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is Iiable, imposed by Laws and Regulations. e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. £ Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance with Paragraph 5.06.D), provided such losses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indi- rectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor's fee. g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, expresses, and similar petty cash items in connection with the Work. i. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attor- neys, auditors, accountants, purchasing and contracting agents, expediters timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor's principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.01.A 1 or specifically covered by Paragraph 11.01.A.4, all of which are to be considered administiative costs covered by the Contractor's fee. 2. Expenses of Contractor's principal and branch offices other than Contractor's office at the Site. 3. Any part of Contractor's capital expenses, including interest on Contractor's capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs 11.0I.A and 11 01.B. C. Contractor's Fee: When all the Work is performed on the basis of cost-plus, Contractor's fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order or when a • Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor's fee shall be determined as set forth in Paragraph 12.0I.C. D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs I I.01.A and 11.01.B, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Engineer an itemized cost breakdown together with supporting data. E. Pricing Information Requirements: The Contractor agrees to provide and require all Subcontractors to provide a breakdown of allowable labor and labor burden cost information as outlined herein. This information will be used to evaluate the potential cost of labor and labor burden related to Change Order Work. It is intended that this information represent an accurate estimate of the Contractor's actual labor and labor burden cost components This information is not intended to establish fixed billing or Change Order pricing labor rates. However, at the time Change Orders are priced the submitted cost data for labor rates may be used to price Change Order Work. The accuracy of any such agreed -upon labor cost components used to price Change Orders will be subject to later audit. Approved Change Order amounts may be adjusted later to correct the impact of inaccurate labor cost components if the agreed -upon labor cost components are determined to be inaccurate. 11.02 Allowances EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. Ali rights reserved. 0070U - 34 A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances 1. Contractor agrees that: a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materi- als and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor's costs for unloading and handling on the Site, labor, installation , overhead profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C. Contingency Allowance 1. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Pike will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Aereement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Pnce Work performed by Contractor will be made by Engineer subject to the provisions of Paragraph 9.07. C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor's overhead and profit for each separately identified item D. When "plan quantity" is indicated for a bid item, the Contractor shall be paid the amount specified in the Contract Documents without any measurements. E. A Major Item is any individual bid item in the Bid that has a total cost equal to or greater than five percent (5%) of the original Contract Amount or S50,000, whichever is greater, computed on the basis of bid quantities and Contract unit prices. F. The Owner or the Contractor may make a Claim for an adjustment in the Contract Amount if: 1. the actual quantity of any Major Item should become as much as twenty percent (20%) more than or twenty percent (20%) less than in the Bid; or 2. The Contractor presents proper documentation contesting the accuracy of ' plan quantity," and Owner's Representative verifies quantity and determines original quantity is in error by five percent (5%) or more. ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 12.01 Change of Contract Price A. The Contract Price may only be changed by a Change Order. 1. If the total of amount of all Change Orders, in the aggregate, involves a decrease or an increase of more than $25,000, no Change Order shall be valid unless it is approved by the City Council of the City of Georgetown. The original Contract Price may not be increased by more than twenty-five percent (25%) under any circumstances and it may not be decreased more than twenty-five percent (25%) without the consent of the Contractor to such decrease. 2. Any claim for an adjustment in the Contract Amount shall be made by Written Notice delivered by the party making the Claim to the other party promptly (but in no event later than thirty (30) calendar days) after the start of the occurrence or event giving nse to the Claim and stating the general nature of the Claim, but in any case before proceeding to execute the work considered to be additional costs (except for Emergencies as described in Article 6). Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant, and shall represent that the adjustment claimed covers all known amounts to which claimant is entitled as a result of said occurrence or event B. The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price will be determined as follows: 1. where the Work involved is covered by unit prices contained in the Contract Documents, by applica- EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright z 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -35 tion of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.01.C.2); or 3. where the Work involved is not covered by unit pnces contained in the Contract Documents and agreement to a lump sum is not reached under Paragraph 12.01.B.2, on the basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus a Contractor's fee for overhead and profit (determined as provided in Paragraph 12.O1.C). C. Contractor's Fee: The Contractor's fee for overhead and profit shall be determined as follows: 1. a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under Paragraphs 11.01.A.1 and 11.O1.A.2, the Contractor s fee shall be 10 percent; b for costs incurred under Paragraph 11.01.A.3, the Contractor's fee shall be five percent; c. where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraph 12.O1.C.2.a is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of 10 percent of the costs mcurred by such Subcontractor under Paragraphs I 1.O1.A.1 and l 1.O1.A2 and that any higher tier Subcon- tractor and Contractor will each be paid a fee of five percent of the amount paid to the next lower tier Subcon- tractor; d. no fee shall be payable on the basis of costs itemized under Paragraphs I1.Ol.A.4, 11.0I.A.5, and 11.01.B, e. the amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost plus a deduction in Contractor's fee by an amount equal to five percent of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in Contractor's fee shall be computed on the basis of the net change in accordance with Paragraphs 12.01 C 2 a through 12.01.C.2.e, inclu- sive. 12.02 Change of Contract Times A. The Contract Times may only be changed by a Change Order. Any Claim for an adjustment in the Contract Times shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05 B. Any adjustment of the Contract Times covered by a Change Order or any Claim for an adjustment in the Contract Times will be determined in accordance with the provisions of this Article 12. C. All time limits stated in the Contract Documents are of the essence of the Agreement. The Contractor acknowledges and understands that failure by the Contractor to complete the Work in accordance with the construction schedule will cause significant damages to the Owner, and subject Contractor to Liquidated Damages as stated in the Agreement. 12.03 Delays A. Where Contractor is prevented from completing any part of the Work within the Contract Times due to delay beyond the control of Contractor, the Contract Times will be extended in an amount equal to the time lost due to such delay if a Claim is made therefor as provided in Paragraph 12 02 A Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by Owner, acts or neglect of utility owners or other contractors performing other work as contemplat- ed by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. B. If Owner, Engineer, or other contractors or utility owners performing other work for Owner as contemplated by Article 7, or anyone for whom Owner is responsible, delays, disrupts, or Interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times, or both. Contractor's entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor's ability to complete the Work within the Contract Times. C If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor's ability to complete the Work within the Contract Times. Such an adjustment shall be Contractor's sole and exclusive remedy for the delays described in this Paragraph 12.03.C. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright C0 2002 National Society of Professional Engineers for EJCDC. A11 rights reserved. 00700 - 36 D. Owner, Engineer and the Related Entities of each of them shall not be Liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of Engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. E. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. F. Notwithstanding anything to the contrary in the Contract Documents an extension in the Contract Times, to the extent permitted under Paragraphs 12.02 and 12.03, shall be the sole and exclusive remedy of the Contractor for any (1) delay in the commencement, prosecution, or completion of the Work; (2) hindrance or obstruction in the performance of the Work, (3) loss of productivity, or (4) other similar claims (collectively referred to in this paragraph as "Delays") whether or not such Delays are foreseeable. In no event shall the Contractor be entitled to any compensation or recovery of any damages, in connection with any Delay, including, without limitation, consequential damages, lost opportunity costs, impact damages, or other similar remuneration. The Owner's exercise of any of its rights or remedies under the Contract Documents (including, without limitation, ordering changes in the Work, directing suspension, rescheduling, or correction of the Work, or terminating this Agreement for its convenience), regardless of the extent or frequency of the Owner's exercise of such rights or remedies, shall not be construed as active interference with the Contractor's performance of the Work. If the Contractor submits a progress report indicating, or otherwise expressing an intention to achieve, completion of the Work prior to any completion date required by the Contract Documents or expiration of the Contract Time, no liability of the Owner to the Contractor for any failure of the Contractor to so complete the Work shall be created or implied. G. Under a Calendar Day Contract, the Contractor may also be granted an extension of time because of unusual inclement weather that is beyond the normal weather expected for the Georgetown, Texas area. Normal weather which prevents the Contractor from performing Work is expected during a Calendar Day Contract, and is not a justification for an extension of time. The following delineates the number of days per month for which, for purposes of Calendar Day Contracts, expected normal weather will prevent performance of Work: January 7 days February 7 days March 7 days April 7 days May 8 days June 6 days July 6 days August 5 days September 7 days October 7 days November 7 days December 7 days Days per month exceeding the number shown above may be credited as Rain Days if a Claim is made in accordance with this Article I2 and meets the following definition: a "Rain Day" is any day in which a weather event occurs at the site and is sufficient to prevent the Contractor from performing units of Work critical to maintaining the Progress Schedule. ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Notice of Defects A. Prompt notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. All defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspecting, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor's Site safety procedures and programs so that they may comply therewith as applicable. I3.03 Tests and Inspections A. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B Owner shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except: 1. for inspections, tests, or approvals covered by Paragraphs 13.03.0 and 13.03.D below; 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph 13.04.B shall be paid as provided in said Paragraph 13.04.C; and EJCDC C-709 Standard General Conditions of the Construction Contract. Copyright Cal 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 90700-37 3. as othenvise specifically provided in the Con- tract Documents C if Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Owner's and Engineer's acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Engineer. E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of Engineer, it must, if requested by Engineer, be uncovered for observation. F. Uncovering Work as provided in Paragraph 13.03.E shall be at Contractor's expense unless Contractor has given Engineer timely notice of Contractor's intention to cover the same and Engineer has not acted in the time set forth in the Contractor's notice. 13.04 Uncovering Work A. If any Work is covered contrary to the written request of Engineer, it must, if requested by Engineer, be uncovered for Engineer's observation and replaced at Contractor's expense. B. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, Contractor, at Engineer's request, shall uncover, expose, or othenvise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. C. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others), unless the Contractor fails to provide written notice as required by Paragraph 13.03.F; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph 10.05. D. If, the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. 13.05 Owner May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 13.06 Correction or Removal of Defective Work A. Promptly after receipt of notice, Contractor shall correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by Engineer, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or removal (including but not limited to all costs of repatr or replacement of work of others). B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner's special warranty and guarantee, if any, on said Work. 13.07 Correction Period A. If within one year after the date of Substantial Completion (or such longer period of time as may be prescnbed by the terms of any applicable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for Conti actor's use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.1I.A is found to be defective, Contractor shall promptly, without cost to EJCDC C-70D Standard General Conditions of the Construction Contract Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 3S Owner and in accordance with Owner's written instructions: 1. repair such defective land or areas; or 2. correct such defective Work: or 3. if the defective Work has been rejected by Owner remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of Owner's written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work re- moved and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not Limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service for the benefit of the Owner before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor's obligations under this Paragraph I3.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitation or repose. 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer's recommendation of final payment, Engineer) prefers to accept it, Owner may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner's evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and the diminished value of the Work to the extent not othenvise paid by Contractor pursuant to this sentence. If any such acceptance occurs pnor to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph 1.0.05. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. 13.09 Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work or to remove and replace rejected Work as required by Engineer in accordance with Paragraph I3.06.A or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 13.09 Owner shall proceed expeditiously In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor's services related thereto, take posses- sion of Contractor's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees, Owner's other contractors, and Engineer and Engineer's consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropnate decrease in the Contract Price If the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as provided in Paragraph 10.05. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor's defective Work. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 -39 D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner's rights and remedies under this Paragraph 13.09. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Values A. The Schedule of Values established as provid- ed in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Applica- tion for Payment acceptable to Engineer. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.02 Progress Payments A. Applications for Payments 1. At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to Engineer for review an Application for Payment filled out and sib ed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect Owner's interest therein, all of which must be satisfactory to Owner. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor s legitimate obligations associated with prior Applications for Payment. 3. The OWNER will pay to the CONTRACTOR the total amount of approved Application for Payment, less five percent (5%) of the amount thereof, which five percent (5%) or the highest maximum amount of retainage as may be allowed under Government Code Chapter 2253 will be retained until thirty (30) days after Final Completion of the Work, less all previous payments and less all sums that may be retained by the OWNER under the terms of this Contract. The CONTRACTOR, at the OWNER'S option, may be relieved of the obligation to complete the Work and, thereupon, the CONTRACTOR shall receive payment of the balance due under the Contract subject to the conditions stated under paragraph 15.2. 4. Each application for payment shall be accompanied by the following, all in form and substance satisfactory to the Owner: a. A current Contractor's lien waiver and duly executed and acknowledged sworn statement showing all Subcontractors and material suppliers with whom the Contractor has entered into Subcontracts, the amount of each such Subcontract, the amount requested for any Subcontractor and matenal supplier in the requested progress payment, and the amount to be paid to the Contractor from such progress payment, together with similar sworn statements from all such Subcontractors and material suppliers; b. Duly executed waivers of mechanics' and material suppliers' Iiens from all Subcontractors and, when appropriate, from material suppliers and lower -tier Subcontractors establishing payment or satisfaction of payment of all amounts requested by the Contractor on behalf of such entities or persons in any previous application for payment; updated Progress Schedule; d. monthly subcontractor report; e. Contractor's estimate of the amount of the Work performed, Iabor furnished, and materials included m the Work using the agreed schedule of values; and any other documentation required under the Supplementary Conditions or elsewhere m the Contract Documents; and g. All information and materials required to comply with the requirements of the Contract Documents or reasonably requested by the Owner or the Engineer. 5. The Contractor shall also comply with the following specific requirements: a. With each application for payment, the Contractor shall submit to the Owner a written list identifying each location where materials are stored off the project site and the value of the materials at each location. The Contractor shall procure insurance satisfactory to the Owner for material stored off the project site in an amount not less than the total value thereof. b. The consent of any surety shall be obtained to the extent required prior to payment for any matenals stored off the project site. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright «©2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 40 B. Review ofApplications 1. Engineer will, within 10 days after receipt of each Application for Payment either indicate in writing a recommendation of payment and present the Application to Owner or return the Application to Contractor indicating in writing Engineer's reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. Engineer's recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based. on Engineer's observations on the Site of the executed Work as an experienced and qualified design professional and on Engineer's review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer's knowledge, information and belief: a. the Work has progressed to the point indicat- b. the quality of the Work is generally in accor- dance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for Unit Price Work under Paragraph 9.07, and to any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled m so far as it is Engineer's responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. that there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. 4. Neither Engineer's review of Contractor's Work for the purposes of recommending payments nor Engineer's recommendation of any payment, including final payment, will impose responsibility on Engineer a. to supervise, direct, or control the Work, or b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or c. for Contractor's failure to comply with Laws and Regulations applicable to Contractor's performance of the Work, or d. to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer's opinion, it would be incorrect to make the representations to Owner stated in Paragraph 14.02.B.2. Engineer may also refuse to recommend any such payment or, because of subse- quently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer's opinion to protect Owner from. loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement b. the Contract Price has been reduced by Change Orders; c. Owner has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or d Engineer has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A. C. Payment Becomes Due 1. Ten days after presentation of the Application for Payment to Owner with Engineer's recommendation, the amount recommended will (subject to the provisions of Paragraph 14 02 D) become due and when due will be paid by Owner to Contractor. D. Reduction in Payment 1. Owner may refuse to make payment of the full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor's performance or furnishing of the Work; b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 41 bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. there are other items entitling Owner to a set-off against the amount recommended, d. Owner has actual knowledge of the occurrence of any of the events enumerated in Paragraphs 14.02.B.5.a through 14 02.B.5.c or Paragraph 15.02.A; e. reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Amount; f. damage to the Owner or another contractor; g. reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; h. failure of the Contractor to submit a schedule of values in accordance with the Contract Documents; i. failure of the Contractor to submit a submittal schedule in accordance with the Contract Documents; j. failure of the Contractor to submit or update construction schedules, including Progress Schedule(s), in accordance with the Contract Documents; k. failure of the Contractor to maintain a Record Documents; I. failure of the Contractor to maintain weekly payroll reports; m. failure of the Contractor to submit monthly Subcontractor reports; n. the Contractor's neglect or unsatisfactory prosecution of the Work, including failure to clean up; o. assessment of fines and/or penalties for violations of any federal or state law; p. notice of potential claims by subcontractors or suppliers; or q. failure of the Contractor to comply with any provision of the Contract Documents. 2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor corrects to Owner's satisfaction the reasons for such action. 3. If it is subsequently determined that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph 14.02.C.1. E. No money shall be paid by the Owner upon any claim, debt, demand or account whatsoever, to any person, firm or corporation who is in arrears to the City of Georgetown for taxes; and the City of Georgetown shall be entitled to counterclaim and offset against any such debt, claim, demand or account in the amount of taxes so in arrears and no assignment or transfer of such debt, claim, demand or account after said taxes are due, shall affect the right of the Owner to so offset said taxes, and associated penalties and interest if applicable, against the same. 14.03 Contractor's Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to Owner no later than the time of payment free and clear of all Liens. (1) The Contractor further expressly undertakes to defend the Owner and Engineer, at the Contractor's sole expense, against any actions, lawsuits, or proceedings brought against the Owner, Engineer, or any third party as a result of liens filed against the Work, the site of any of the Work, the project site and any improvements thereon, payments due the Contractor, or any portion of the property of the Owner, Engineer, or third party. The Contractor hereby agrees to indemnify and hold the Owner, Engineer, and third parties harmless against any such Liens or claims of lien and agrees to pay any judgment or lien resulting from any such action, lawsuit, or proceeding. (2) The Owner shall release any payments withheld due to a lien or claim of lien if the Contractor obtains security acceptable to the Owner or a lien bond that is (i) issued by a surety acceptable to the Owner; (ii) in a form and substance satisfactory to the Owner; and (iii) m an amount not less than two hundred percent (200%) of such lien claim. By posting a lien bond or other acceptable security, however, the Contractor shall not be relieved of any responsibilities or obligations under this paragraph, including, without limitation, the duty to defend and indemnify the Owner and Engineer The cost of any premiums incurred in connection with such bonds and securities shall be the responsibility of the Contractor and shall not be part of, or cause any adjustment to, the Contract Price (3) The Contractor agrees to waive any right that it may have to assert a mechanic's or other lien against the project site and any improvements thereon, including without limitation, the Work itself. Furthermore, the Contractor will cause a similar provision, waiving all rights to a mechanic's or other lien against the property, EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright C0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 42 to be included in aII of its subcontracts, any sub - subcontracts, and all contracts with material suppliers. (4) Notwithstanding the foregoing, the Owner reserves the nght to settle any disputed mechanic's or material supplier's lien claim by payment to the lien claimant or by such other means as the Owner, in the Owner's sole discretion, determines is the most economical or advantageous method of settling the dispute. The Contractor shall promptly reimburse the Owner, upon demand, for any payment so made. 14.04 Substantial Completion A. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that the entire Work is substantially complete (except for items specifically listed by Contractor as incomplete) and request that Engineer issue a certificate of Substantial Completion. B. Promptly after Contractor's notification, , Owner, Contractor, and Engineer shall make an inspection of the Work to determine the status of completion. If Engineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. If, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will within 14 days after submission of the tentative certificate to Owner notify Contractor in writing, stating the reasons therefor. if, after consideration of Owner's objections, Engineer considers the Work substantially complete, Engineer will within said 14 days execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or correct- ed) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommen- dation as to division of responsibilities pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless Owner and Contractor agree otherwise in writing and so inform Engineer in writmg prior to Engineer's issuing the definitive certificate of Substantial Completion, Engineer's aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to complete or correct items on the tentative list. 14.05 Partial Utilization A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its Intended purpose without significant interference with Contractor's performance of the remainder of the Work, subject to the following condi- tions. 1. Owner at any time may request Contractor in writing to permit Owner to use or occupy any such part of the Work which Owner believes to be ready for its intended use and substantially complete. If and when Contractor agrees that such part of the Work is substantially complete, Contractor will certify to Owner and Engineer that such part of the Work is substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 2. Contractor at any time may notify Owner and Engineer in venting that Contractor considers any such part of the Work ready for its intended use and substan- tially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph I4.04 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.I0 regarding property insurance. 14.06 Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals EJCDC C-700 Standard General Conditions of the Construction Contrast_ Copyright © 2002 National Society of Professional Engineers for EJCDC. MI rights reserved. 00700 - 43 that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.07 Final Payment A. Application for Payment 1 After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance certificates of inspection, marked -up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.B.7; b. consent of the surety, if any, to final payment; c. a list of all Claims against Owner that Contractor believes are unsettled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien nghts arising out of or Liens filed in connection with the Work. e. Non -Use of Asbestos Affidavit (After Construction); f. Affidavit that all payrolls, bills for materials and equipment, subcontracted Work, and all indebtedness connected with the Work, except as specifically noted, are paid or will be paid, or will be otherwise satisfied within the period of time required by Chapter 2251 of the Texas Government Code. Contractor's affidavit shall include documentation establishing payment or satisfaction of all such obligations such as receipts, releases, and waivers of claims and liens arising out of the Contract. The Contractor may not subsequently submit a claim on behalf of a subcontractor or vendor unless the Contractor's affidavit notes that claim as an exception; and g Other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. 3. In lieu of the releases or waivers of Liens specified in Paragraph I4.07.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner or Owner's property might in any way be responsible have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien. B. Engineer's Review of Application and Acceptance 1. If, on the basis of Owner's and Engineer's observation of the Work during construction and final inspection, and Owner's and Engineer's review of the final Application for Payment and accompanying docu- mentation as required by the Contract Documents, Owner and Engineer are satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Engineer will, within ten days after receipt of the final Application for Payment, indicate in writing Engineer's recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give wntten notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph 14.09. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due 1. Thirty days after the presentation to Owner of the Application for Payment and accompanying docu- mentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against Engineer's recommendation, including but not limited to liquidated damages, will become due and, will be paid by Owner to Contractor. 14.08 Final Completion Delayed A. If, through no fault of Contractor, final completion of the Work is significantly delayed, and if Engineer so confirms, Owner shall, upon receipt of Contractor's final Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required in Paragraph 5.01, the wntten consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright ©2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 44 payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. 14.09 Waiver of Claims A. The making and acceptance of final payment will constitute: 1. a waiver of all Claims by Owner against Contractor, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to Paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from Contractor's continuing obligations under the Contract Documents; and 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION 15.0I Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in wasting to Contractor and Engineer which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjust- ment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension if Contractor makes a Claim therefor as provided in Paragraph 10.05. 15.02 Owner May Terminate for Cause A. The occurrence of any one or more of the following events will justify termination for cause: 1. Contractor's persistent failure to perfoiiii the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04); 2. Contractor's disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor's disregard of the authority of Engineer; or 4. Persistent failure to prosecute the Work in accordance with the Contract, and to insure its completion within the time, or any approved extension thereof, specified in this Contract; and/or 5. Failure to remedy defective Work condemned by the Owner; and/or 6. Failure to pay subcontractors, laborers, and material suppliers pursuant to Tex. Gov't Code Chapter 2251; and/or 7. Persistent endangerment to the safety of labor or of the Work; and/or 8. Failure to supply or maintain statutory bonds or to maintain required insurance, pursuant to the contract; and/or 9. If the CONTRACTOR is adjudged a bankrupt, or makes a general assignment for the benefit of creditors, or if a receiver is appointed for the benefit of creditors, or if a receiver is appointed on account of CONTRACTOR's insolvency, or if CONTRACTOR has otherwise demonstrated financial inability to perform the Work; and/or 10. Contractor's violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in Paragraph 15.02.A occur, Owner may, after giving Contractor (and surety ) seven days written notice of its intent to terminate the services of Contractor: 1. exclude Contractor from the Site, and take possession of the Work and of all Contractor's tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or conversion), 2. incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere, and 3. complete the Work as Owner may deem expedient. C. If Owner proceeds as provided in Paragraph 15.02.B, Contractor shall not be entitled to receive any further payment until the Work is completed If the unpaid balance of the Contract Price exceeds all claims, costs, Iosses, and damages (including but not limited to all fees and charges of engineers architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. if such claims, costs, losses, and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 45 damages exceed such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph Owner shall not be required to obtain the lowest price for the Work performed. D. Notwithstanding Paragraphs 15.02.B and 15 02 C, Contractor's services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. E Where Contractor's services have been so terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability. F. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.0I .A, the termination procedures of that bond shall supersede the provisions of Paragraphs 15.02.B, and 15.02.C. G. In the event that Owner's termination under Paragraph I5.02 is determined to be wrongful, the termination will automatically become a termination for convenience under Paragraph 15.03, and Contractor's remedy for wrongful termination shall be limited to recovery of payments permitted for termination for convenience under paragraph 15.03. 15.03 Owner May Terminate For Convenience A. The Owner may, at any time, terminate the Contract in whole or in part for the Owner's convenience and without cause. Termination by the Owner under this paragraph shall be by a notice of termination delivered to the Contractor specifying the extent of termination and the effective date. B. Upon receipt of a notice of termination for convenience, the Contractor shalt immediately, in accordance with instructions from the Owner, proceed with performance of the following duties regardless of delay in determining or adjusting amounts due under this paragraph: 1. cease operations as specified in the notice; 2. place no further orders and enter into no further subcontracts for materials, labor, service, or facilities except as necessary to complete continued portions of the Contract, 3. terminate all subcontracts and orders to the extent they relate to the Work terminated; 4. proceed to complete the performance of the Work not terminated, and 5. take actions that may be necessary, or that the Owner may direct, for the protection and preservation of the terminated Work. C. Upon such termination, the Contractor shall recover as its sole remedy payment of the percentage of the Contract Price equal to the percentage of the Work performed satisfactorily and not previously paid for as determined by the Engineer. The Contractor hereby waives and forfeits all other claims for payment and damages, including, without limitation, anticipated profits or revenue or other economic loss arising out of or resulting from such termination. D. The Owner shall be credited for (1) payments previously made to the Contractor for the terminated portion of the Work; (2) claims that the Owner has against the Contractor under the Contract; and (3) the value of the materials, supplies, equipment, or other items that are to be disposedof by the Contractor that are part of the Contract Price. ARTICLE 16 - DISPUTE RESOLUTION 16.01 Methods and Procedures A. CIaims shall be made by Written Notice delivered by the party making the Claim to the other party within thirty (30) calendar days after the start of the occurrence or event giving rise to the Claim and stating the general nature of the Claim. Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant and shall represent that the adjustment claimed covers all known amounts to which claimant is entitled B. Within thirty (30) calendar days of receipt of notice of the amount of the Claim with supporting data, Owner and the Contractor shall meet to discuss the Claim, after which an offer of settlement or notification of no settlement offer wilt be made to claimant. If claimant is not satisfied with the proposal presented, claimant shall have thirty (30) calendar days in which to: .1 submit additional supporting data requested by the other party; 2 modify the initial Claim; or .3 request Alternative Dispute Resolution. 16.02 Alternative Dispute Resolution EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright �c© 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 46 A. If a dispute exists concerning a Claim, the parties agree to use the following procedure prior to pursuing any other available remedies. The Owner reserves the right to include Engineer as a party. B. Either party may give the other party written notification of any dispute not resolved m the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other party a written response. The notice and response shall include (a) a statement of that party's position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person will accompany that executive C. Within thirty (30) days after delivery of the initial notice, the executives of both parties shall meet in Georgetown, Texas at a mutually acceptable time and location, and thereafter as often as they deem reasonably necessary to attempt to resolve the dispute. D. All reasonable requests for information made by one party to the other will be honored. E. All negotiations are confidential and shall be treated as compromise and settlement negotiations for purpose of applicable rules of evidence. F. Each party is required to continue to perform its obligations under the Contract Documents pending final resolution of any dispute arising out of or relating to the Contract Documents. 16.03 Mediation A. If the procedure described in Paragraph 16.02 proves unsuccessful or is waived pursuant to its terms, the parties shall initiate the mediation process, as follows: B. Any CIaim arising out of or related to the Contract, shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. C. The parties shall endeavor to resolve their Claims by mediation. Request for mediation shall be filed in writing with the other party. The request may be made concurrently with the filing of a lawsuit but, in such event, mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. D. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in Georgetown, Texas, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. J. Claims not resolved by mediation shall be decided by litigation. Venue shall be proper only in Williamson County, Texas. ARTICLE 17 - MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if: 1. delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or 2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 17.02 Computation of Times A. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such penod. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable Jurisdiction, such day will be omitted from the computation. B. The following legal holidays are observed by the Owner. Holiday New Year's Day January 1 Date Observed Martin Luther King, Jr.'s Third Monday Birthday in January Memorial Day Last Monday in May Independence Day July 4 Labor Day Thanksgiving Day First Monday in September Fourth Thursday in November Friday after Friday after Thanksgiving Thanksgiving Christmas Eve December 24 Christmas Day December 25 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 0070D-47 C. If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. If Christmas Eve falls on a Saturday or a Sunday, the preceding Friday is observed as the Christmas Eve holiday. If Christmas Day falls on a Saturday or a Sunday, the following Monday is observed as the Christmas Day holiday 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regula- tions, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. B. The Contractor and Owner waive all Claims against each other for consequential damages arising out of or relating to this Contract; provided, however, that in no event shall this mutual waiver be deemed to preclude an award of liquidated damages recoverable under the Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with this Contract. 17.04 Survival of Obligations A. All representations, indemnifications, warran- ties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Docu- ments, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor. 17.05 Controlling Law A. This Contract is to be governed by the law of the State of Texas. 17.06 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 48 Exhibit G Project Number City of Georgetown Project Name SECTION 00800 SUPPLEMENTARY CONDITIONS GENERAL These Supplementary Conditions amend or supplement the Standard General Conditions of the Construction Contract and other provisions of the Contract Documents as indicated below. All provisions which are not so amended or supplemented remain in full force and effect. The terms used in these Supplementary Conditions will have the meanings indicated in the General Conditions. Additional terms used in these Supplementary Conditions have the meanings indicated below which are applicable to both the singular and plural thereof. SC-I.01 DEFINED TERMS Add the following defined terms to Section 1.01: 53 Calendar Day: "Calendar Day" is any day of the week or month, no days being excepted. 54 Working Day: A "Working Day" is defined as any day not including Saturdays, Sundays or any legal holidays, in which weather or other conditions, not under the control of the CONTRACTOR, will permit construction of the principal units of the work for a period of not less than seven (7) hours between 7:00 a m. and 6:00 p.m. 55 Working Times: Times of day(s) during which work may be performed. Unless authorized by the City of Georgetown, all Work shall be performed between 7:00am and 6:OOpm on weekdays and, if previously authorized by as provided for in Section 6.02 herein, as applicable, between 9 00 am and 6:00 pm on Saturdays, Sundays, or Legal Holidays. When the CONTRACTOR has been authorized to perform Work during hours outside Working Times, such hours shall be considered time worked on Working days. Notwithstanding the preceding, emergency work may be done without prior permission only as provided in paragraph 6.16 herein. 56 Proposal: Proposal of Offeror, under Local Government Code section 271.113 providing for alternative project delivery methods, on prescribed forms setting forth prices for performing the Work described in the Contract Documents. 57 Proposal Documents: The advertisement or invitation for Proposals, Instruction to Offerors, the Proposal form, the Contract Documents and Addenda (NOTE' this definition only applies where proposals, rather than bids have been solicited and where allowed under the Local Government Code). SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 1 of 13 Project Number City of Georgetown Project Name SC-4.01 AVAILABILITY OF LANDS Add the following defined terms to Section 4.01: D. The Site for this project shall include the temporary and pent anent easements as indicated on the Drawings SC-4.02 SUBSURFACE AND PHYSICAL CONDITIONS Add the following paragraph immediately after paragraph 4.02.B: C. In the preparation of the Contract Documents ENGINEER relied upon the following reports of explorations and tests of subsurface conditions at the Site: 1. Soil reports, if any, on file with the City. 2. Copies of the report listed in SC-4.02.C.1 that are not included with the Bidding Documents may be examined at the offices of ENGINEER during regular business hours, or may be obtained from the ENGINEER. This report is not part of the Contract Documents, but the "`technical data" contained therein upon which CONTRACTOR may rely as identified and established above are incorporated therein by reference CONTRACTOR is not entitled to rely upon other information and data utilized by ENGINEER in the preparation of Draw ings and Specifications. 3. CONTRACTOR represents that he has satisfied himself as to the subsurface conditions at the Site of the Work. The Contract Documents, including subsurface conditions, but excluding the "technical data" referenced in SC-4 02 C 2 above, are for information purposes only and are not warranted or represented in any manner to accurately show the conditions at the Site of the Work. All asks of differing site conditions shall be borne solely by the CONTRACTOR. SC-5.02 LICENSED SURETIES AND INSURERS Add the following to Section 5.02 A: Surety and insurance companies from which the bonds and insurance for this Project are purchased shall have a Best's rating of no less than A'VII, in addition to other requirements specified herein. SC-5.04 CONTRACTOR'S LIABILITY INSURANCE SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 2 of 13 Project Number City of Georgetown Project Name Add the following to Section 5.04.B.1: Include the following parties or entities as additional insured Engineer on the Project SC-5.04 Contractor's Liability Insurance Replace Paragraph 5.04 with the following SC-5.04 5.04 Other Requirements: Band and Insurance. A. General Requirements: 1. CONTRACTOR shall purchase and maintain insurance in the types and amounts indicated below for the duration of the Contract (unless a longer duration is specified), which shall include items owned by OWNER in the care, custody and control of CONTRACTOR prior to and during the tern of the Contract and all warranty periods. Failure to purchase and maintain the required insurance shall be grounds for Termination of the Contract or Suspension of the Work by OWNER. Except for the Worker's Compensation policy, the other insurance policies required by the Contract to be obtained by CONTRACTOR must state that OWNER, its officials, directors, employees, representatives, and volunteers are added as additional insureds with regard to operations and activities by or on behalf of the named insureds performed under contract with OWNER. The additional insured status must cover completed operations as well, and the policy covering completed work must remain in effect until the expiration of the statue of repose. 2. CONTRACTOR must complete and forward the required Certificates of Insurance to OWNER before the Contract is executed as verification of coverage required below. CONTRACTOR shall not commence Work until the required insurance is obtained and until such insurance has been reviewed by OWNER Approval of insurance by OWNER shall not relieve or decrease the liability of CONTRACTOR hereunder and shall not be construed to be a limitation of liability on the part of CONTRACTOR. CONTRACTOR must also complete and forward the required Certificates of Insurance to OWNER whenever a previously identified policy period has expired as verification of continuing coverage. Contractor's insurance coverage is to be written by companies licensed to do business in the State of Texas at the time the policies are issued and shall be written by companies with A.M. Best ratings of B+VII or better, except for hazardous material insurance which shall be written by companies with A.M. Best ratings of A- or better. SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 3 of 13 Project Number City of Georgetown Project Name All endorsements naming the OWNER as additional insured, waivers, and notices of cancellation endorsements as well as the Certificate of Insurance shall indicate. City of Georgetown, 113 E. 8th Street, Georgetown, Texas 78626 ATTN: Director of Finance and Administration. The "other" insurance clause shall not apply to the OWNER where the OWNER is an additional insured shown on any policy. It is agreed that the CONTRACTOR's insurance shall be considered primary with respect to any insurance or self insurance carried by OWNER. The CONTRACTOR'S insurance shall apply separately to each insured against whom a claim is made and/or lawsuits brought, except with respect to the limits of insurer's liability. If insurance policies are not written for amounts specified below, CONTRACTOR shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified If Excess Liability Insurance is provided, it shall follow the form of the primary coverage. 7. OWNER shall be entitled, upon request and without expense, to receive certified copies of policies and endorsements thereto and may make any reasonable requests for deletion or revision or modification of particular policy terms, conditions limitations, or exclusions except where policy provisions are established by law or regulations binding upon either of the parties hereto or the underwriter on any such policies. 8. OWNER reserves the right to review the insurance requirements set forth during the effective period of this Contract and to make reasonable adjustments to insurance coverage, limits, and exclusions when deemed necessary and prudent by OWNER based upon changes in statutory law, court decisions, the claims history of the industry or financial condition of the insurance company as well as CONTRACTOR. 9. CONTRACTOR shall not cause any insurance to be canceled nor pei„ lit any insurance to lapse during the term of the Contract or as required in the Contract. 10. CONTRACTOR shall be responsible for premiums deductibles and self -insured retentions, if any, stated in policies. All deductibles or self -insured retentions shall be disclosed on the Certificate of Insurance. 11. The policies must contain the following language "This policy shall not be cancelled, materially changed, or not renewed until after thirty (30) days prior written notice has been given to OWNER." In addition, CONTRACTOR shall provide OWNER thirty (30) days written notice of erosion of the aggregate limits below occurrence limits for all applicable coverages indicted within the Contract. 12. If OWNER -owned property is being transported or stored off -Site by CONTRACTOR, then the appropriate property policy will be endorsed for transit and storage in an amount sufficient to protect OWNER s property. SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 4 of 13 Project Number City of Georgetown Project Name I3. The insurance coverages required under this contract are required minimums and are not intended to limit the responsibility or liability of CONTRACTOR. 14. Without Limiting any of the other obligations or liabilities of the CONTRACTOR, the CONTRACTOR shall require each Subcontractor performing work under the Contract, at the Subcontractor's own expense, to maintain during the term of the Contract, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown above. As an alternative, the CONTRACTOR may include its Subcontractors as additional insureds on its own coverage as prescribed under these requirements. The CONTRACTOR's certificate of insurance shall note in such event that the Subcontractors are included as additional insureds and that CONTRACTOR agrees to provide Workers Compensation for the Subcontractors and their employees. The CONTRACTOR shall obtain and monitor the certificates of insurance from each Subcontractor in order to assure compliance with the insurance requirements. The CONTRACTOR must retain the certificates of insurance for the duration of the Contract plus 5 years and shall have the responsibility of enforcing these insurance requirements among its subcontractors. The OWNER shall be entitled, upon request and without expense, to receive copies of these certificates. B. Business Automobile Liability Insurance. Provide coverage for all owned, non - owned and hired vehicles in an amount not less than $1,000,000 combined single limit per accident for bodily injury and property damage The policy shall contain the following endorsements in favor of OWNER: Waiver of Subrogation endorsement TE 2046A; 30 day Notice of Cancellation endorsement 1 E 0202A; and Additional Insured endorsement TE 9901 B. Provide coverage in the following types and amounts: A minimum combined bodily injury and property damage limit of $1,000,000 per occurrence. No aggregate shall be permitted for this type of coverage. Such insurance shall include coverage for loading and unloading hazards. C. Workers' Compensation and Employers' Liability Insurance. Coverage shall be consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Section 40I). CONTRACTOR shall assure compliance with this Statute by submitting two (2) copies of a standard certificate of coverage (e g. ACCORD forrn) to Owner's Representative for every person providing services on the Project as acceptable proof of coverage. The required Certificate of Insurance must be presented as evidence of coverage for CONTRACTOR. Workers' Compensation Insurance coverage written by the Texas Workers Compensation SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 5ofI3 Project Number City of Georgetown Project Name Fund is acceptable to OWNER. CONTRACTOR's policy shall apply to the State of Texas and include these endorsements in favor of OWNER: Waiver of Subrogation, form WC 420304; and 30 day Notice of Cancellation, form WC 420601. The minimum policy limits for Employers' Liability Insurance coverage shall be the minimum amounts required to meet the statutory requirements of Texas Labor Code, Section 401.011(44), or the following, whichever is greater: $1,000,000 bodily injury per accident, and $1,000,000 bodily injury by disease policy limit; and $1,000,000 bodily injury by disease each employee; and $1,000,000 EmpIoyer's Liability. D. Commercial General Liability Insurance. The Policy shall contain the following provisions: Blanket contractual liability coverage for liability and indemnifications assumed under the Contract and all contracts relative to this Project. Completed Operations/Products Liability until the end the statute of repose period. Explosion, Collapse and Underground (X, C & U) coverage. Independent Contractor's coverage Aggregate limits of insurance per project, endorsement CG 2503. OWNER listed as an additional insured, endorsement CG 2010. 30 day notice of cancellation in favor of OWNER, endorsement CG 0205. Waiver of Transfer of Recovery Against Others in favor of OWNER, endorsement CG 2404 fully insuring CONTRACTOR'S or Subcontractor's liability for bodily injury and property damages with a combined bodily injury (including death) and property damage minimum limit of: $1,000,000 per occurrence SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 6 of 13 Project Number City of Georgetown Project Name $2,000,000 general aggregate $2,000,000 products and completed operations aggregate Coverage shall be on an "occurrence" basis E. Property Floater. Contractor shall obtain and maintain Property Floater in an amount sufficient to cover the replacement value of' materials on site. F. Umbrella Liability Insurance. The CONTRACTOR shall obtain, pay for, and maintain umbrella liability insurance dunng the contract term, insuring the CONTRACTOR (or subcontractor) for an amount not less than $5,000,000 that provides coverage at least as broad and applies in excess of and follows the form of the primary liability coverages required in Article 5. The policy shall provide "drop down" coverage where underlying primary insurance coverages limits are insufficient or exhausted. G. Asbestos Abatement Liability Insurance. If the Work or the Project involves asbestos containing materials, the CONTRACTOR shall obtain Asbestos Abatement Liability Insurance for liability arising from the encapsulation, removal, handling, storage, transportation and disposal of asbestos containing matenals. The combined single limit for bodily injury and property damage shall be a minimum of $1,000,000 per occurrence. If claims made, the claims - made, the claims made form shall provide that the period of coverage shall be - Continuous coverage for the term of the Contract plus the warranty period of at least one (1) year, and an extended discovery period for a minimum of five (5) years, which shall begin at the end of the warranty period. H. Completed Work Insurance. SC-5.045 Bonds. A. General. 1. Bonds, when required by the Contract or by Chapter 2253 of the Texas Government Code, shall be executed on forms furnished by or acceptable to OWNER All bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. 2. If the surety on any bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right to do business is terminated in the State of Texas or it ceases to meet the requirements of the preceding paragraph, CONTRACTOR shall within ten (10) days thereafter substitute another bond and surety, both of which must be acceptable to OWNER. 3. When Performance Bonds and/or Payment Bonds are required, each shall be issued in an amount of one hundred percent (100%) of the Contract Amount as security for the SECTION 00800 SUPPLEMENTARY CONDITIONS 32011 Section 00800 Supplementary Conditions Page 7of13 Project Number City of Georgetown Project Name faithful perfoiniance and/or payment of all CONTRACTOR's obligations under the Contract Documents. Performance Bonds and Payment Bonds shall be issued by a solvent surety company authorized to do business in the State of Texas, and shall meet any other requirements established by law or by OWNER pursuant to applicable law. Any surety duly authorized to do business in Texas may write Perfoiniance and Payment Bonds on a project without reinsurance to the Limit of 10 percent of its capital and surplus. Such a surety must reinsure any obligations over 10 percent. Performance Bond. If the Contract Amount exceeds $100,000, CONTRACTOR shall furnish OWNER with a Performance Bond in the form set out by OWNER. The Performance Bond shall be effective for the Contract Time and through all warranty period(s) If the Contract Amount exceeds $25,000 but is Iess than or equal to $100,000, CONTRACTOR shall furnish OWNER with a Performance Bond in the form set out by OWNER, unless the original Contract Time is 60 Calendar Days or less, in which case CONTRACTOR can agree to the following terms and conditions for payment in lieu of providing a Performance Bond: no money will be paid to CONTRACTOR until completion and acceptance of the Work by OWNER, CONTRACTOR shall be entitled to receive 95% of the Contract Amount following Final Completion, and the remaining 5% of the Contract Amount following the one year warranty period. If the Contract Amount is less than or equal to $25,000, CONTRACTOR will not be required to furnish a Performance Bond. If a Performance Bond is required to be furnished, it shall extend for the one year warranty period, or Ionger if the warranty periods are longer. C. Payment Bond. If the Contract Amount exceeds $50,000, CONTRACTOR shall furnish OWNER with a Payment Bond in the form set out by OWNER. If the Contract Amount is less than or equal to $50,000, CONTRACTOR will not be required to furnish a Payment Bond; provided that no money will be paid to CONTRACTOR until completion and acceptance of the Work by OWNER. Power of Attorney. Each bond shall be accompanied by a valid Power of - Attorney (issued by the surety company and attached, signed and sealed with the corporate embossed seal, to the bond) authorizing the attorney in fact who signs the bond to commit the company to the terms of the bond, and stating any limit in the amount for which the attorney can issue a single bond. SECTION 00800 SUPPLEMENTARY CONDITIONS 3,2011 Section 00800 Page 8 of 13 Supplementary Conditions Project Number City of Georgetown Project Name E. Bond Indemnification. The process of requiring and accepting bonds and making claims thereunder shall be conducted in compliance with Tex Gov't Code, Chapter 2253 IF FOR ANY REASON A STATUTORY PAYMENT OR PERFORMANCE BOND IS NOT HONORED BY THE SURETY, THE CONTRACTOR SHALL FULLY INDEMNIFY AND HOLD THE OWNER HARMLESS OF AND FROM ANY COSTS, LOSSES OBLIGATIONS OR LIABI I ITIES IT INCURS AS A RESULT. F. Furnishing Bond Information. OWNER shall furnish certified copies of the payment bond and the related Contract to any qualified person seeking copies who complies with Tex. Gov't Code, §2253.026. G. Claims on Payment Bonds. Claims on payment bonds must be sent directly to the CONTRACTOR and his surety in accordance with Tex. Gov't Code § 2253.041 All Payment Bond claimants are cautioned that no lien exists on the funds unpaid to the CONTRACTOR on such Contract, and that reliance on notices sent to the OWNER may result in loss of their rights against the CONTRACTOR and/or his surety. The OWNER is not responsible in any manner to a claimant for collection of unpaid bills, and accepts no such responsibility because of any representation by any agent or employee. Minimum Standards for Sureties. Sureties shall be listed on the US Department of the Treasury's Listing Approved Sureties stating companies holding Certificates of Authority as acceptable sureties on Federal Bonds and acceptable reinsuring companies (Department Circular 570). SC-6.02 LABOR; WORKING HOURS Add the following defined terns to Paragraph 6.02: C. Regular Working Hours shall be between 7 am and until 30 minutes prior to sunset or 6 pm whichever is earlier and, if previously authorized in writing by the City of Georgetown, between 9:00 am and 6:00 pm on Saturdays, Sundays, or Legal Holidays. D. The Contractor shall work Regular Working Hours on normal Working Days as defined in Section 1.01. Add the following provision on prevailing wages to Paragraph 6.02: E. PREVAILING WAGE RATES: This Contract is subject to Govemment Code Chapter 2258 concerning payment of Prevailing Wage Rates. The Contractor will determine what are the general prevailing rates in accordance with the statute. The applicable provisions include, but are not limited to the following: § 2258.021. Right to be Paid Prevailing Wage Rates SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 9 of 13 Project Number City of Georgetown Project Name (a) A worker employed on a public work by or on behalf of the state or a political subdivision of the state shall be paid: (1) not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the work is perfoinied, and (2) not less than the general prevailing rate of per diem wages for legal holiday and overtime work. (b) Subsection (a) does not apply to maintenance work. (c) A worker is employed on a public work for the purposes of this section if the worker is employed by a contractor or subcontractor in the execution of a contract for the public work with the state, a political subdivision of the state, or any officer or public body of the state or a political subdivision of the state. § 2258.023. Prevailing Wage Rates to be Paid by Contractor and Subcontractor; Penalty (a) The contractor who is awarded a contract by a public body or a subcontractor of the contractor shall pay not less than the rates determined under Section 2258.022 to a worker employed by it in the execution of the contract. (b) A contractor or subcontractor who violates this section shall pay to the state or a political subdivision of the state on whose behalf the contract is made, $60 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 the contract. A public body awarding a contract shall specify this penalty in the contract. (c) A contractor or subcontractor does not violate this section if a public body awarding a contract does not determine the prevailing wage rates and specify the rates in the contract as provided by Section 2258.022. (d) The public body shall use any money collected under this section to offset the costs incurred in the administration of this chapter. (e) A municipality is entitled to collect a penalty under this section only if the municipality has a population of more than 10,000. § 2258.024. Records (a) A contractor and subcontractor shall keep a record showing: (1) the name and occupation of each worker employed by the contractor or subcontractor in the construction of the public work; and SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Page 10 of 13 Supplementary Conditions Protect Number City of Georgetown Project Name (2) the actual per diem wages paid to each worker. (b) The record shall be open at all reasonable hours to inspection by the officers and agents of the public body. § 2258.025. Payment Greater Than Prevailing Rate Not Prohibited This chapter does not prohibit the payment to a worker employed on a public work an amount greater than the general prevailing rate of per diem wages. SC-6.13.B Trench and Shoring Safety SC-14.02 Add the following Paragraph 6 13 B 1 As required by the Texas Health & Safety Code, Title 9, Subtitle A, Chapter 756, Subchapter C, Contractor is required to comply with the trench safety standards of the Occupational Safety and Health Administration, 29 C F.R. 1926, Subpart P, Excavations, in effect during the period of construction of the Project. Contractor agrees to comply with and Owner agrees to include in the Bid Documents, a copy of any special shoring requirements, if any, required for the Project. Owner agrees to furnish to Contractor a copy of any geotechnical information that was obtained by the Owner for use by the Contractor in the design of the trench safety system, if any. Article 14 - Payments To Contractor And Completion Change the 151 sentence in Paragraph 14.02.C.1 from "Ten days after presentation of the Application for Payment to OWNER " to "Thirty (30) days after presentation of the Application for Payment to OWNNER..." SC-17.02 Delete the second sentence of Paragraph 17.02. SC-17.07 Independent Contractor Add the following Paragraph 17.07: The Contract shall not be construed as creating an employer/employee relationship, a partnership, or a joint venture. The Contractor's services shall be those of an independent contractor The Contractor agrees and understands that the Contract does not grant any rights or privileges established for employees of the Owner. SC-17.08 Prohibition of Gratuities Add the following Paragraph 17.08: SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 11 of 13 Project Number City of Georgetown Project Name The Owner may, by Written Notice to the Contractor, terminate the Contract without liability if is determined by the Owner that gratuities were offered or given by the Contractor or any agent or representative of the Contractor to any officer or employee of the Owner with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such Contract. In the event the Contract is te„uinated by the Owner pursuant to this provision, the Owner shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the Contractor in providing such gratuities. SC-17.09 Prohibition Against Personal Interest in Contracts Add the following Paragraph 17.09 No officer, employee, independent consultant, or elected official of the Owner who is involved in the development, evaluation, or decision -making process of the perfoiinance of any solicitation shall have a fmancial interest, direct or indirect, in the Contract resulting from that solicitation. Any violation of this provision, with the knowledge, expressed or implied, of the Contractor shall render the Contract voidable by the Owner. SC-18. Article 18 — Right to Audit Add the following Article 18. 18.01 Whenever the Owner enters into any type of contractual arrangement with the Contractor, then the Contractors "records" shall upon reasonable notice be open to inspection and subject to audit and/or reproduction during normal business working hours. The Owner's representative, or an outside representative engaged by the Owner, may perform such audits. The Contractor shall maintain all records relating to this Contract for four (4) years from the date of final payment under this Contract, or until pending litigation has been completely and fully resolved, whichever occurs later. 18.02 The Owner shall have the exclusive right to examine the records of the Contractor. The term "records' as referred to herein shall include any and all information, materials and data of every kind and character, including without limitation records, books, papers, documents, contracts, schedules commitments, arrangements, notes, daily diaries reports, drawings, receipts, vouchers and memoranda, and any and all other agreements, sources of information and matters that may, in the Owner's judgment, have any bearing on or pertain to any matters, rights, duties or obligations under or covered by any contract document. Such records shall include (hard copy, as well as electronic data), written policies and procedures, time sheets, payroll registers, cancelled checks, personnel file data, correspondence, e- mail, general ledger entries, and any other record in the Contractor's possession which may have a bearing on matters of interest to the Owner in connection with the Contractor s dealings with the Owner (all of the foregoing are hereinafter referred to as "records"). In addition, the Contractor shall permit interviews of employees as well as agents, representatives, vendors, Subcontractors and other third parties paid by the Contractor to the extent necessary to adequately permit evaluation and verification of the following: SECTION 00800 SUPPLEMENTARY CONDITIONS 32011 Section 00800 Supplementary Conditions Page 12 of 13 Project Number City of Georgetown Project Name A. The Contractor's compliance with Contract Documents; B. The Contractor's compliance with the Owner's business ethics policies; and C If necessary, the extent of the Work performed by the Contractor at the time of Contract termination 18.03 The Contractor shall require all payees (examples of payees include Subcontractors, insurance agents, material suppliers, etc.) to comply with the provisions of this Article 17 by securing the requirements hereof in a written agreement between the Contractor and payee. Such requirements include a flow -down right of audit provision in contracts with payees that also apply to Subcontractors and Sub -subcontractors, material suppliers, etc. The Contractor shall cooperate fully and shall require Payees and all of the Contractor s Subcontractors to cooperate fully in furnishing or in making available to the Owner from time to time whenever requested, in an expeditious manner, any and all such information, materials, and data. 18.04 The Owner's authorized representative or designee shall have reasonable access to the Contractor's facilities, shall be allowed to interview all current or former employees to discuss matters pertinent to the perfoi„tance of this Contract, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with this Article 17. 18.05 If an audit inspection or examination in accordance with this Article 17 discloses overpricing or overcharges of any nature by the Contractor to the Owner in excess of one-half of one percent (0.5%) of the total contract billings, then the reasonable actual cost of the Owner's audit shall be reimbursed to the Owner by the Contractor. Any adjustments and/or payments, which must be made as a result of any such audit or inspection of the Contractor's invoices and/or records, shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of the Owner's findings to the Contractor. 18.06 The Contractor shall take reasonable actions to prevent any actions or conditions which could result in a conflict with the Owner's best interests. These obligations shall apply to the activities of the Contractor's employees, agents, Subcontractors, etc. in their dealings and relations with the Owner's current and former employees and their relatives. For example, the Contractor's employees, agents or Subcontractors should not make or provide to be made any employment, gifts, extravagant entertainment, payments, loans or other considerations to the Owner's representatives, employees or their relatives. 18.07 It is also understood and agreed by the Contractor that any solicitation of gifts or any other item of value by anyone representing the Owner is to be reported within two (2) business working days to the Owner at the following telephone number: 512-930-3723 Failure to report any such solicitations or offers shall be deemed a material breach of contract entitling the Owner to pursue damages resulting from the failure to comply with this provision. END OF SECTION SECTION 00800 SUPPLEMENTARY CONDITIONS 3.2011 Section 00800 Supplementary Conditions Page 13 of 13 Exhibit H LSI.!MA G EORGETOWN TEXAS VENDOR: ADDRESS: VENDOR CONTACT: QUOTE DATE: REFERENCE: ITEM Terms PURCHASE ORDER NUMBER CITY OF GEORGETOWN PURCHASING OFFICE Order Date: INVOICE TO: THE CITY OF GEORGETOWN ACCOUNTS PAYABLE PO BOX 409 GEORGETOWN, TX 78626 SHIP TO: DESCRIPTION QUANTITY FOB: 'Delivery: This order is issued under and governed by the City of Georgetown's standard Terms and Conditions Please reference purchase order number on all correspondence and packages. UNIT UNIT COST TOTAL: EXTENSION 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Trine Bickford, Purchasing Manager Date TEXAS CITY OF GEORGETOWN GEORGETOWN Standard Terms and Conditions By acceptance of a purchase order or agreement, or response to a solicitation, Vendor agrees the following terms and conditions, without modification, will govern: I. DEFINFIIONS The following definitions shalt be used to identify terms throughout procurement documents: A. AGREEMENT/CONTRACT— A mutually binding legal document obligating the Vendor to furnish the goods, equipment or services specified within the solicitation and obligating the City to pay for the goods, equipment, or services specified. B. BID/PROPOSAL /RESPONSE/OFFER/QUOTATION—A complete, properly signed response to a solicitation that, if accepted, would bind the Respondent to perform the resulting contract. C. BIDDER/PROPOSER/RESPONDENT/OFFERER—The Respondent identified throughout the solicitation that they consider themselves qualified to provide the goods, equipment or services specified herein, and are interested in making an offer to provide the goods, equipment or services to the City. D. CITY —The City of Georgetown, located in Williamson County, Texas. E. GOODS —Materials, supplies, commodities and/or equipment. F. PIGGYBACK CONTRACT —A contract or agreement that has been competitively bid in accordance with State of Texas statutes, rules, policies and procedures and has been extended far the use of state and local agencies and active State of Texas CO-OP entities. G. PURCHASE ORDER —An order placed by the City for the purchase of goods or services issued on the City's standard purchase order form and which, when accepted by the Vendor, becomes a contract. The purchase order is the Vendor's authority to deriver and invoice the City for goods or services specified, and the City's commitment to accept the goods or services for an agreed upon price. H. SERVICES — Work performed to meet the requirements and demand of the purchase order. The furnishing of tabor, time, or effort by the Vendor and their ability to comply with promised delivery dates, specification and technical assistance specified. SOLICITATION/INVITATION TO BID/REQUEST FOR PROPOSALS/REQUEST FOR QUOTES —The solicitation document issued by the City containing terms, conditions and specifications for the service or commodity to be procured. J. SUBCONTRACTOR — Any person or business enterprise providing goods, labor, and/or services to a Vendor if such goods, equipment, labor, and/or services are procured or used in fulfillment of the Vendor's obligations arising from a contract with the City K. VENDOR/CONTRACTOR — Person or business enterprise providing goods, equipment, tabor and/or services to the City as fulfillment of obligations arising from an agreement or purchase order. II. SOLICITATIONS A CONFLICT OF INTEREST: Effective January 1, 2006, Chapter 176 of the Texas Local Government Code (HB 914) requires an entity contracting or seeking to contract for the sale or purchase of property, goods, or services with a local govemmental entity to disclose any affiliation or business relationship which might create a conflict of interest with a local government entity. The Conflict of Interest Questionnaire is available from the Texas Ethics Commission at www.ethics.state.tx.us and completed forms must be submitted to the appropriate records administrator of the City not later than the seventh business day after the date the entity begins contract discussions or negotiations with the focal governmental entity, or submits to the local governmental entity an application, response to a Request for Proposals or Bids, correspondence, or another writing related to a potential Agreement with the local governmental entity. If responding to a Solicitation, the Conflict of Interest Form may be submitted with the Response. The completed forms may be mailed or hand delivered to the City Secretary at the following address: The City of Georgetown, Office of the City Secretary, City Hall, 113 East 8th Street, Georgetown, TX 78626. This legislation is subject to change and each entity should consult its own attorney regarding the current law. Any attempt to intentionally or unintentionally conceal a conflict of interest may result in disqualification of any response to a solicitation. The validity of the Contract is not affected solely because of failure to comply with the conflict of interest disclosure requirements. B, COMMUNICATIONS WITH THE CITY: To insure the proper and fair evaluation of a Solicitation, the City prohibits ex parte communication (e.g., unsolicited) initiated by the Offeror to the City Official or Employee evaluating or considering the Responses prior to the time an award has been made. Communication between Offeror and the City will be initiated by the appropriate City Official or Employee in order to obtain information or clarification needed to develop a proper and accurate evaluation of the Solicitation. Ex parte communication may be grounds for disqualifying the offending Offeror from consideration or award of the Solicitation then in evaluation, or any future Solicitation. 1 Unless otherwise specified, all requests for clarification or questions regarding a Solicitation must be directed to the City of Georgetown Purchasing Office, Attn.: Purchasing Manager, PO Box 409, 300-1 Industrial Avenue, Georgetown, TX 78627, 512-930-3647, FAX. 512-930-9027, purchasing(aigeorgetown.org. C. DISCLOSURE OF PENDING LITIGATION: Each Respondent shall include in its proposal a complete disclosure of any material civic or criminal litigation or pending investigation which involves the Respondent or in which the Respondent has been judged guilty. D. CONFIDENTIALITY OF RESPONSES, PUBLIC INFORMATION ACT: All Responses are subject to release as public information unless the Response or specific parts of the Response can be shown to be exempt from the Texas Public Information Act. Respondents are advised to consult with their legal counsel regarding disclosure issues and take the appropriate precautions to safeguard trade secrets or any other proprietary information. The City assumes no obligation or responsibility for asserting legal arguments on behalf of potential Respondents. If a Respondent believes that a Response or parts of a Response are confidential, then the Respondent shall so specify. The Respondent shall stamp in bold red letters the term "CONFIDENTIAL" on that part of the Response, which the Respondent believes to be confidential. Vague and general claims as to confidentiality shall not be accepted. All Responses and parts of Responses that are not marked as confidential will be automatically considered public information. Notwithstanding, responses to Requests for Proposals shall be opened in a manner that avoids disclosure of the contents to competing offeror and keeps the proposals secret during negotiations as provided for in Section 252.049 of the Local Government Code. E. CLARIFICATIONS. WAIVER OF MINOR TECHNICALITIES OR DISCREPANCIES: The City reserves the right to request clarification or additional information specific to any response after all Responses have been received and the Solicitation due date has passed. Additionally, the City reserves the right to accept or reject all or part of any Response, waive any formalities or technical inconsistencies, delete any requirement or specification from the Solicitation, or terminate the Solicitation when deemed to be in City's best interest. F. COST OF PREPARATION OF RESPONSE: All costs directly or indirectly related to preparation of a Response to this Solicitation or any oral presentation required to supplement and/or clarify a Response which may be required by the City shall be the sole responsibility of the Respondent. CS. RESPONSES BECOME PROPERTY OF THE CiTY: Submissions received in response to a Solicitation become the sole property of the City. WITHDRAWAL OFA RESPONSE: A Response may be withdrawn prior to the submission deadline by submitting a written request for its withdrawal to the Purchasing Manager. A new Response may be submitted and must be received prior to the submission deadline to be considered. Modifications offered in any manner will not be considered if submitted after the submission deadline. DETERMINATION OF AWARD, RESULTING AGREEMENT: In determining award, the City reserves the right to select the acceptable Respondent who will offer contractual terms and conditions most favorable to the City. All requirements stated in the Solicitation shall become a part of any Contract, Agreement or Purchase Order awarded as a result of the Solicitation, and any deviations from these requirements must be specifically stated and defined by the Respondent in their Response. Requests for clarification and the responses(s) shall also become a part of any Contract, Agreement or Purchase Order resulting from the Solicitation. AFFIRMATIONS AND CERTIFICATIONS: By signature on and submission of a Response, Respondent certifies they have not conspired with any other potential supplier in any manner to attempt to control competitive pricing. By signature on and submission of a Response, Respondent certifies they are duly qualified, capable and a bondable business entity not in receivership or contemplating same, and has not filed for bankruptcy. By signature on and submission of a Response, Respondent affirms that they will not discriminate against any employee or applicant as prohibited by law. C, REQUIREMENTS FOR SUBMISSION OF RESPONSE: 1. All Responses must be submitted on the form provided by the City, and accompanied by all required attachments. Each Response shall be placed in a separate envelope and properly identified with Solicitation Number and Opening Date. Responses must be time -stamped at the Purchasing Office, 300-1 Industrial Avenue, PO Box 409, Georgetown, TX 78626, on or before due date and time shown on the Solicitation form. Late Responses will not be considered. 2. If applicable, Respondent will show exact cost to deliver. Responses must specify unit price on the quantity specified, extend and show total. Unit prices shall govern, including in case of errors. Pricing will be considered firm for acceptance for a minimum of 60 days after the due date unless otherwise specified in the Solicitation. The validity period may be extended beyond that date on agreement of parties. Cash discounts will not be considered in determining award; all cash discounts offered will be taken if earned. Respondent will list and deduct all discounts not based on early payment from prices quoted. The City is exempt from all federal excise, state and local taxes unless otherwise stated. The City claims exemption from under Texas Tax Code §151309, as amended. Texas Limited Sales Tax Exemption Certificates will be furnished upon request. Do not include taxes in Response to any Solicitation. Unless stated otherwise, any catalog, brand name or manufacturer's reference used in the Solicitation is descriptive (not restrictive), and is used to indicate type and quality desired. Responses on brands of like nature and quality will be considered. if quoting on other than referenced specifications, the Response MUST show manufacturer brand or trade name and description of product offered. Illustrations and complete descriptions of product offered should be made part of the Response. If Respondent does not identify exceptions to the specifications shown in this Invitation, Respondent will be required to furnish brand names, numbers, etc., as shown in the Solicitation. Response must show the number of days required to deliver items or provide services to the City's designated location under normal conditions. Unrealistically short or long delivery promises may cause Response to be disregarded. Failure to state delivery time obligates Respondent to complete delivery in 14 calendar days. III. PURCHASE ORDERS A. GENERAL TERMS AND CONDITIONS 1. ACCEPTANCE A Purchase Order is the City's commitment to make procurement and is subject to Vendor's acceptance of the City's terms and conditions 2. ABSENCES OF PURCHASE ORDER OR AGREEMENT: The City is not responsible for delivery of any materials or services without a proper Purchase Order 3. VENDOR'S OBLIGATIONS: The Vendor shall fully and timely provide all deliverables described in the Solicitation and in the Vendor's Offer in strict accordance with the terms, covenants, and conditions of the Agreement and all applicable Federal, State, and local laws, rules, and regulations. 4. EFFECTIVE DATE/TERM: Unless otherwise specified in the Solicitation, this Agreement shall be effective as of the date the City issues and signs the Purchase Order, and shall continue in effect until all obligations are performed in accordance with the Agreement. 5. SUBCONTRACTORS: If the Vendor utilizes Subcontractors in providing the goods and/or services under this Purchase Order, the Vendor shall be fully responsible to the City for all acts and omissions of the Subcontractors just as the Vendor is responsible for the Vendors own acts and omissions. The Vendor shall: a. Require that all deliverables to be provided by the Subcontractor be provided in strict accordance with the provisions, specifications and terms of the Agreement; b. Prohibit the Subcontractor from further subcontracting any portion of the Agreement without the prior written consent of the City and the Vendor. The City may require, as a condition to such further subcontracting, that the Subcontractor post a payment bond in farm, substance and amount acceptable to the City; c. Require Subcontractors to submit all invoices and applications for payments, including any claims for additional payments, damages or otherwise, to the Vendor in sufficient time to enable the Vendor to include same with its invoice or application for payment to the City in accordance with the terms of the Agreement; d. Require that all Subcontractors obtain and maintain, throughout the term of their contract, insurance in the type and amounts specified for the Vendor, with the City being a named insured as its interest shall appear; e. Require that the Subcontractor indemnify and hold the City harmless to the same extent as the Contractor is required to indemnify the City; and f. Shall pay each Subcontractor its appropriate share of payments made to the Vendor not later than ten (10) calendar days after receipt of payment from the City. 6. DELAYS: The City may delay scheduled delivery or other due dates by written notice to the Vendor if the City deems it is in its best interest If such delay causes an increase in the cost of the work under the Agreement, the City and the Vendor shalt negotiate an equitable adjustment for costs incurred by the Vendor in the Agreement price and execute an amendment to the Agreement. The Vendor must assert its right to an adjustment within ten (10) calendar days from the date of receipt of the notice of delay. Failure to agree on any adjusted price shall be handled under the Dispute Resolution Process specified in Section Z. However, nothing in this provision shall excuse the Vendor from delaying the delivery as notified. T. FORCE MAJEURE: Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement if, while and to the extent such default or delay is caused by acts of God, fire, riots, civil commotion, labor disruptions, sabotage, sovereign conduct, or any other cause beyond reasonable control. In the event of default or decay in performance due to any of the foregoing causes, then the time for completion of the services will be extended; provided, however, in such an event, a conference will be held within three (3) business days to establish a mutually agreeable period of time reasonably necessary to overcome the effect of such failure to perform. $. INSURANCE REQUIREMENTS: Unless specific insurance requirements are noted, Vendor shall maintain insurance coverage appropriate for the fulfillment of the Purchase Order. In the event the Vendor, its employees, agents or subcontractors enter premises occupied by or under the control of the City, the Vendor agrees to maintain public liability and property damage insurance in reasonable limits covering the obligations set forth in this Purchase Order, and will maintain Workers' Compensation coverage (either by insurance ar if qualified pursuant to law, through a self-insurance program) covering all employees performing on premises occupied by or under control of the City. Upon request, Vendor shall provide a copy of its insurance policies to the City. 9. EXCEPTIONS TO SPECIFICATIONS: Any deviation from the specifications must be clearly indicated in the Response to the Solicitation or promptly documented in writing at or before the time of the award. Any deviations or exceptions are subject to review by the City and may be grounds for rejection. 10. TRAVEL EXPENSES: All travel, lodging and/or per diem expenses associated with providing the materials, equipment or services specified must be included in the original Quotation and/or the resulting Purchase Order or Agreement. All travel expenses are subject to review by the City and documentation of actual itemized expenses may be requested. No reimbursement will be made without prior authorization, or for expenses not actually incurred. Airline fares in excess of coach or economy will not be reimbursed. 11. HUB REQUIREMENTS: The City complies with the requirements of the State of Texas Local Government Code, Chapter 252, Section 252.0215. 12. SPECIAL TOOLS AND EQUIPMENT: If the price stated in the Offer includes the cost of any special tooling or special test equipment fabricated or required by the Vendor to fulfill the Agreement, such special tooling and/or equipment and all process sheets associated thereto shall become the property of the City and shall be identified by the Vendor as such. SERVICES 1. PLACE AND CONDITIONS OF WORK, ACCESS TO SITE: If Services are to be performed principally on the City's premises or in public rights of way, the City shall provide the Vendor access to the sites where the Vendor is to perform the Services as required in order for the Vendor to perform in a timely and efficient mariner, in accordance with and subject to applicable security laws, rules and regulations. The Vendor acknowledges that it has satisfied itself as to the nature of the City's service requirements and specifications, the location and essential characteristics of the work sites, the quality and quantity of the materials, equipment, labor and facilities necessary to perform the Services and any other conditions or states of fact which could, in any way, affect performance of the Vendor's obligations under the Agreement. The Vendor shall promptly notify the City if the actual site or service conditions differ from the expected conditions and falling to do so, hereby releases and holds the City harmless from and against any liability ar claim for damages of any kind or nature. 2. VENDOR TO PROVIDE ALL MATERIAL, EQUIPMENT, LABOR: Vendor shall provide all goods and labor necessary to perform Services. All material must be new and all equipment utilized must be in good safe working condition and suitable for Services. Vendor shall employ all personnel for Services in accordance with the requirements of applicable local, state, and federal law. 3. WORKFORCE: If Services are to be performed principally on the City's premises or on public right-of-ways: a. Vendor shall employee only orderly and competent workers, skilled in the performance of the Services which they will perform under the Agreement. b. Vendor, its employees, subcontractors and subcontractor's employees while engaged in participating in a Solicitation or while in the course and scope of delivering goods and services under City Purchase Order or Agreement may not: i. use or possess a firearm, including a concealed handgun that is licensed under state law, except as required by the terms of the Agreement; or ii. use or posses alcoholic or other intoxicating beverages, illegal drugs or controlled substances, nor may such workers be intoxicated or under the influence of alcohol or drugs while on the job. c. If the City or the City's representative notifies the Vendor that any work is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed firearms, or has possessed or was under the influence of alcohol or drugs on the job, the Vendor shall immediately remove such worker from Agreement Services and may not employ such worker again on Agreement Services without the City's pnor consent. COMPLIANCE WiTH ALL SAFETY AND ENVIRONMENTAL REQUIREMENTS: If Services are to be performed principally on the City's premises or on public rights of way, the Vendor, its subcontractors and their respective employees, shall comply fully with all applicable federal, state and local health, safety and environmental laws, ordinances, rules and regulations in the performance of the Services, including but not limited to those promulgated with the City and the Occupational Safety and Health Administration (OSHA). In the case of conflict, the most stringent safety requirement shall govern. The Vendor shall defend, indemnify and 4 hold the City harmless from and against all claims, demands, suits, actions, judgments, fines, penalties and liabilities of any kind or nature arising from the breach of the Vendor's obligations under this paragraph. STOP WORK NOTICE: The City may issue an immediate Stop Work Notice in the event the Vendor is observed performing in a manner that is in violation of Federal, State or local guidelines, or in a manner that is determined by the City to be unsafe to either life or property. Upon notification, the Vendor shall cease all work until notified by the City that the violation or unsafe condition has been corrected. The Vendor shall be liable for all costs incurred by the City as a result of the issuance of such Stop Work Notice. WARRANTY OF SERVICES: Vendor warrants and represents that all Services to be provided to the City under the Agreement will be fully and timely performed in good and workmanlike manner in accordance with generally accepted industry standards and practices, the terms, conditions and covenants of the Agreement and all applicable Federal, State and local laws, rules or regulations. This warranty may not be limited, excluded or disclaimed and any attempt to do so will be without force or effect. Unless otherwise specified, the warranty period shall be a minimum of one year from acceptance by the City of Services. In the event any applicable warranty is breached, the Vendor shall promptly upon receipt of demand of performance, perform the Services again in accordance with the above standard at no additional costs to the City. All costs incidental to such additional performance shall be borne solely by the Vendor. The City shall endeavor to give the Vendor written notice of the breach of warranty within thirty (30) calendar days of discovery of the breach of warranty, but failure to give timely notice shall not impair the City's rights under this section. In the event the Vendor is unable or unwilling to perform the Services in accordance with the above standards as required by the City, then in addition to any other available remedy, the City may reduce the amount of Services originally required to purchase from the Vendor under the Agreement and procure conforming Services from other sources. In such event, the Vendor shall pay the City upon demand the increased cost, if any, incurred by the city to procure such services from an alternative source. C. COMMODITIES/EQUIPMENT 1. MATERIAL SAFETY DATA SHEETS: Under the "Hazardous Communication Act," commonly known as the 'Texas Right to Know Act," a Vendor must provide to the City WITH EACH DELIVERY Material Safety Data Sheets, which are applicable to hazardous substances as defined In the Act. GOODS: Goods furnished shall be the latest improved model in current production, as offered to commercial trade, and shall be of quality workmanship and material. The Vendor represents that all goods and equipment offered shall be new. Unless otherwise specified, used, shopworn, demonslo ator, prototype or discontinued models are not acceptable. 3. PACKAGING OF DELIVERABLES: Vendor must package deliverables in accordance with good commercial practice and shall include a packing list showing the description of each item, the quantity and the unit price. Unless otherwise provided in writing by the City, each shipping container shall be clearly and permanently marked with the Vendor's name and address, and the City's name, address and Purchase Order number. Vendor shall bear all costs of packaging. Deliverables must be suitably packed to secure lowest transportation cost, conform with requirements of common carriers and ensure safe delivery. The City's count or weight shall be final and conclusive on shipments not accompanied by packing lists. 4. WARRANTY: The goods or equipment specified shall be warranted against defects in material or workmanship for a period of not less than twelve (12) months from date of acceptance by the Gty. If the manufacturer's warranty exceeds twelve (12) months, then the manufacturer's warranty shall be in effect. Vendor shall furnish a copy of the manufacturer's warranty at the time of delivery. S. NO LIMITATION OF MANUFACTURERS' WARRANTIES: Vendor may no limit exclude or disclaim any warranty provided by manufacturer. D. DELIVERY 1. DELIVERY TERMS, TRANSPORTATION CHARGES, FOB: Deliverables shall be shipped FOB point of delivery unless otherwise specified on the Purchase Order or in the Solicitation. The Vendor's price shall be deemed to include all delivery and transportation charges. The City shall have the right to designate what method of transportation shall be used to ship deliverables The place of delivery shall be specified in the Purchase Order. 2. NO SUBSTITUTIONS OR CANCELLATIONS: Unless specifically permitted in writing by the City, no substitutions or c2ncellations shall be acceptable. 3. NOTICE OF DELAY IN DELIVERY: If a delay in delivery Is anticipated, Vendor shall give written notice to the City. The City has the right to extend the delivery time/service date, or to cancel the Purchase Order or Agreement. Vendor shall keep the City advised at all times of the status of the order. Default in promised delivery, service or failure to meet specifications authorizes the City to procure the goods or services from an altemate source and charge the full increase, if any, in cost and handling to defaulting Vendor. Default on delivery may result in legal action and recourse. 5 4. DELIVERY LOCATION. HOURS, DAYS, HOLIDAYS: Unless otherwise specified, all deliveries must be made to City of Georgetown, Central Receiving, 300-1 industrial Avenue, Georgetown, TX, between the hours of 8AM and 4PM (CST), Monday through Friday except regularly observed state and federal holidays (see http://eeoreetown.ore/contact-us/holiday-schedule/ for schedule). Receipt of goods or materials does not signify acceptance. 5. NO SHIPMENT UNDER RESERVATION: Vendor Is not authorized to ship deliverables under reservation and no tender of bill of lading will operate as a tender of deliverables. 6. TITLE/RISK OF LOSS: Title to and risk of loss of the deliverables shall pass to the City only when the City actually receives and accepts the deliverables (no delivery, no sale). 7. RIGHT OF INSPECTION AND REJECTION: The City expressly reserves all rights under law, including but not limited to, the Uniform Commerdal Code, to inspect the deliverables at delivery or at a reasonable time subsequent to delivery, and to reject defective or non- conforming deliverables. if the City has the right to inspect the Vendor's or the Vendor's subcontractors facilities, or the deliverables at the Vendor's or the Vendor's subcontractors premises, the Vendor shall furnish or shall cause to be furnished without additional charge all reasonable facilities and assistance to the City to facilitate such inspection. 8. ACCEPTANCE OF INCOMPLETE OR NON -CONFORMING GOODS: If, instead of requiring immediate correction or removal and replacement of defective or non -conforming deliverables, the City prefers to accept such deliverables, the City may do so. The Vendor shalt pay all claims, losses and damages attributable to the City's evaluation of and determination to accept such defective or non -conforming deliverables. If any such acceptance occurs prior to final payment, the City may deduct such amounts as are necessary to compensate the City for the diminished value of the defective or non -conforming deliverables. If discovery that the deliverables are defective or non -conforming occurs after final payment, Vendor may be required to refund such amounts to the City. PAYMENT 1. TAX EXEMPT STATUS: The City is exempt from all federal excise, state and local taxes unless otherwise stated in this document. The City claims exemption from all sales and/or use taxes under Texas Tax Code 5151.309, as amended. Texas Limited Sales Tax Exemption Certificates are furnished upon request. Vendor will not charge for such taxes. if billed, the City will not remit payment until a corrected invoice is received. 2. INVOICING REQUIREMENTS: Unless otherwise specified, all invoices shall be submitted to City of Georgetown, Accounts Payable, PO Box 409, Georgetown, TX 78627, and issued as required by the Purchase Order or Agreement. Each Invoice must reference the unique Purchase Order number, and include the Vendor's complete name and remit to address. If applicable, transportation and delivery charges must be itemized an the each invoice. A copy of the bill of lading and the freight waybill must be submitted with the invoice if applicable. Invoices for labor must include a copy of all time sheets with labor rate and Purchase Order or Agreement number clearly identified. Invoices for labor shall also include a tabulation of hours worked at the appropriate rates and grouped by work order number, if applicable. Time billed for labor shall be limited to hours actually worked at the work site. 3. PAYMENTTERMS: All payments will be processed in accordance with Texas Prompt Payment Act, Texas Government Code, Subtitle F, Chapter 2251. The City will pay Vendor within thirty daysafter acceptance of goods, supplies, materials, equipment or the day of performance of services was completed, or the day of receipt of a correct invoice for goods, supplies, materials, equipment or services, whichever is later. The Vendor may charge a late fee (fee shall not be greater than that permitted under the Texas Prompt Payment Act) for payments not made in accordance with this prompt payment policy; however, the policy does not apply to payments made by the City in the event: (a) there is a bona fide dispute between the City and Vendor concerning the goods, supplies, materials, equipment delivered, or the services performed, that causes the payment to be late; (b) the terms of a federal agreement, grant, regulation or statute prevents the City from making a timely payment with Federal funds; (c) there is a bona fide dispute between the Vendor and a subcontractor and its suppliers concerning goods, supplies, material or equipment delivered, or the services performed, which caused the payment to be late; or (d) the invoice is not mailed to the City in strict accordance with instructions on the Purchase Order or Agreement, or other such contractual agreement. 4. RIGHT TO AUDIT: The Vendor agrees that the representatives of the City shall have access to, and the rights to audit, examine, or reproduce, any and all records of the Vendor related to the performance under this Agreement. The Vendor shall retain all such records for a period of four (4) years after final payment on this Agreement or until all audit and litigation matters that the City has brought to the attention of the Vendor are resolved, whichever is longer. The Vendor agrees to refund to the City any overpayments disclosed by any such audit. 5. FIRM PRICING: The price shall remain firm for the duration of the Purchase Order or Contract, or extension periods. No separate line item charges shall be permitted for either bidding or invoice purposes, which shall include equipment rental, demurrage, fuel surcharges, delivery charges, and cost associated with obtaining permits or any other extraneous 6 charges. Vendor further certifies that the prices in the Offer have been arrived at independently without consultation, communication, or agreement for the purpose of restricting competition, as to any matter relating to such fees with any other firm or with any competitor. 6. PRICE WARRANTY: The Vendor warrants the prices quoted are not materially higher than the Vendors current prices an orders by others for like deliverables under similar terms of purchase. In addition to any other remedy available, the City may deduct from any amounts owed to the Vendor, or otherwise recover, any amounts paid for items materially in excess of the Vendor's current prices on orders by others for like deliverables under similar terms of purchase. 7. VENDOR OWING TAXES OR FEES TO THE CITY: Payment will not be made to any person, firm or in arrears in taxes or fees to the City. IV. TERMS, CONDITIONS AND ADDITIONAL REQUIREMENTS A. VENDOR'S OBLIGATION: Vendor shall fully and timely provide all deliverables described in Solicitation, Vendor's Offer in strict accordance with the terms, covenants and conditions of the Agreement and all applicable federal, state and local laws, rules and regulations. B. DEFAULT: Vendor shall be in default under the Agreement if the Vendor (a) fails to fully, timely and faithfully perform any of its material obligations under the Agreement, (b) becomes insolvent or seeks relief under the bankruptcy laws of the United States or (c) makes a material misrepresentation in Vendor's Offer, or in any report or deliverable required to be submitted by Vendor to the City. C. ABANDONMENT OR DEFAULT: A Vendor who abandons or defaults the work on the Agreement and causes the City to purchase the services elsewhere may be charged the difference in service if any and may not be considered in the re -advertisement of the service and may be rejected as an irresponsible bidder and not considered in future Solicitations for the same type of service unless the scope of work is significantly modified. D. TERMINATION/CANCELLATION: 1. TERMINATION FOR CAUSE: In the event of default by the Vendor, the City shall have the right to terminate the Agreement for cause, by written notice effective ten (10) calendar days, unless otherwise specified, after the date of such notice, unless the Vendor, within such ten (10) day period cures such default, or provides evidence sufficient to prove to the City's satisfaction that such default does not, in fact, exist. In addition to any other remedies available under law or in equity, the City shall be entitled to recover all actual damages, costs, losses and expenses incurred by the City as a result of the Vendor's default, including without limitation, cost of cover, reasonable attorneys' fees, court costs and prejudgment and post -judgment interest at the maximum lawful rate. Additionally, in the event of default by the Vendor, the City may remove the Vendor from the City's Vendor List and any Offer submitted by the Vendor may be disqualified for up to three (3) years. All rights and remedies under the Agreement are cumulative and not exclusive of any other right or remedy provided by law. 2. TERMINATION WITHOUT CAUSE: The City shall have the right to terminate the Agreement, in whale or in part, without cause any time upon thirty (30) calendar days' prior written notice. Upon receipt of a notice of termination, the Vendor shall promptly cease ail further work pursuant to the Agreement, with such exceptions, if any, specified in the notice of termination. The City shall pay the Vendor, to the extent of funds appropriated or otherwise legally available for such purposes, for all goods delivered and services performed and obligations incurred prior to the date of termination in accordance with the terms hereof. 3. NON -APPROPRIATION: The resulting Agreement is a commitment of the City's current revenues only. It is understood and agreed that the City shall have the right to terminate the Agreement at the end of any City fiscal year (September 30`h) if the governing body of the City does not appropriate funds sufficient to purchase the estimated yearly quantities, as determined by the City's budget for the fiscal year in question. The City may effect such termination by giving the Vendor a written notice of termination at the end of its then current fiscal year. 4. CANCELLATION: The City reserves the right to oncel the Agreement for default all or any part of the delivered portion of the deliverables if the Vendor breaches any term hereof including warranties, or becomes insolvent or commits acts of bankruptcy. Such right of cancellation is in addition to and not in lieu of any remedies which the City may have in law or in equity. FRAUD: Fraudulent statements by the Vendor on any Offer or in any report or deliverable required to be submitted by the Vendor to the city shall be grounds for termination of the Agreement for cause by the City and may result in legal action. INDEMNITY: VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CAUSES OF ACTION, CANS, DEMANDS, DAMAGES, JUDGMENTS, LOSSES, LIENS, COSTS, EXPENSES, ATTORNEYS' FEES AND ANY AND ALL OTHER COSTS, FEES AND/OR CLAIMS OF ANY KIND OR DESCRIPTION ARISING OUT OF, IN CONNECTION WiTH OR RESULTING FROM THE AGREEMENT OR THE GOODS OR SERVICES PROVIDED UNDER THE AGREEMENT. 7 IF THE VENDOR AND THE CITY ARE CONCURRENTLY NEGLIGENT, EACH PARTY'S LIABILITY SHALL BE LIMITED TO THAT PORTION OF NEGLIGENCE ATTRIBUTABLE TO IT AS DETERMINED UNDER THE APPLICABLE PROPORTIONATE RESPONSIBILITY RULES OF THE STATE OF TEXAS. G. LIABILITY: Any person, firm or corporation performing services pursuant to this Agreement or Purchase Order shall be liable for all damages incurred while in the performance of such services. Vendor assumes full responsibility for the work to be performed hereunder and hereby releases, relinquishes, and discharges the City, its officers, agents and employees from all claims, demands and causes of action of any nature including the cost of defense thereof, for any injury to, including death of, any person whether that person be a third party, supplier or an employee of either of the parties hereto, and any loss of or damage to property, whether the same be that of either of the parties, caused by or alleged to have been caused by, arising out of or in connection with the issuance of the Agreement or Purchase Order to the Vendor and the negligence of the Vendor, whether or not said claims, demands and causes of action in whole or in part are covered by insurance. Certificates of insurance may be required for, but not limited to, Commercial General Liability, Business Auto Liability, Workers Compensation and Professional Liability Insurance. INFRINGEMENT: Vendor represents and warrants to the City that: (a) Vendor shall provide the City good and indefeasible title to the deliverables and (b) the deliverables supplied by the Vendor in accordance with the specifications of the Agreement shall not infringe, directly or contributory, any patent, trademark, copyright, trade secret or any other intellectual property right of any kind of any third party; that no claims have been made by an person or entity with respect to the ownership or operation of the deliverables and the Vendor does not know of any basis for any such claims. Vendor shall, at its sole expense, defend, indemnify and hold the City harmless from and against all liability, damages and costs (including court costs and reasonable fees of attorneys and other professionals) arising out of or resulting from: (a) any claim that the City's exercise anywhere in the world of the rights associated with the City's ownership, and if applicable, License rights, and its use of the deliverable infringes the intellectual property rights of any third party; or (b) Vendor's breach of any of the Vendor's representations or warranties stated in this Agreement. In the event of any such claim, the City shall have the right to monitor such claim or, at its option, engage its own separate counsel to act as co -counsel on the City's behalf. Further, Vendor agrees that the City's specifications regarding the deliverables shall in no way diminish Vendor's warranties or obligations under the Section, and the City makes no warranty that the products, development or delivery of such deliverables will not impact such warranties of Vendor. DAMAGE TO CITY PROPERTY: Vendor shall be responsible for any and all damage to the City's equipment and/or property, the workplace and Its contents, by its work, negligence in work, its personnel and equipment. Vendor shall be responsible and liable for the safety, injury and health of its working personnel while its employees are performing service work. 1. OVERCHARGES: Vendor hereby assigns to the City any and ail claims for overcharges associated with this Agreement which arise under the antitrust laws of the United States, 15 USCA Section 1 et seq., and/or which arise under the antitrust taws of the State of Texas, Business and Commerce Code Ann., Section 15.01, et seq. K. CONFIDENTIALITY: In order to provide the deliverables to the City, Vendor may require access to certain of the City's and/or its licensors' confidential information (including, but not limited to, inventions, employee information, trade secrets, confidential know-how, confidential business information and other information which the City or its licensors consider confidential)(collectively, "Confidential Information"). Vendor acknowledges and agrees that the Confidential Information is the valuable property of the City and/or its licensors, and any unauthorized use, disclosure, dissemination or other release of the Confidential Information will substantially injure the City and/or its licensors. The Vendor (including its employees, subcontractors, agents or representatives) agrees that it will maintain the Confidential Information in strict confident and shall not disclose, disseminate, copy, divulge, recreate or otherwise use the Confidential Information without the prior written consent of the City, or in a manner not expressly permitted under this Agreement, unless the Confidential Information is required to be disclosed by law or as a result of an order of any court or other govemmental authority with proper jurisdiction, provided the Vendor promptly notifies the City prior to disclosing such information so as to permit the City reasonable time to seek an appropriate protective order. The Vendor agrees to use protective measures no less stringent than the Vendor uses within its own business to protect its own most valuable information, which protective measures shall under all circumstances be at least reasonable measures to ensure the continued confidentiality of the Confidential information. L. CODES, PERMITS, LICENSES: Vendor shall comply with all federal, state and local standards, codes and ordinances and the terms and conditions of the services of the electric utility, as well as other authorities that have jurisdiction pertaining to equipment and materials used and their application. None of the terms or provisions of the specification shall be construed as waiving any rules, regulations or requirements of these authorities. Vendor shall be responsible for obtaining all necessary permits, certificates and/or licenses to fulfill contractual obligations to the City. M. ADVERTISING/PUBLICITY: Vendor shall not advertise or otherwise publicize, without the City's prior written consent, the fact that the City has entered into the Agreement, except to the extent required by applicable law. N. INDEPENDENT CONTRACTOR: The Agreement shall not be construed as creating an employer/employee relationship, a partnership or joint venture. The Vendor's services shall be those of an independent contractor. The Vendor agrees and understands that the 8 Agreement does not grant any rights or privileges established for employees of the City. Vendor shall not be within protection or coverage of the City's Worker Compensation insurance, Health Insurance, liability Insurance or any other insurance that the City, from time to time, may have in force. O. LIENS: Vendor shall defend, indemnify and hold the City harmless from and against any and all liens and encumbrances for all labor, goods and services provided under this Agreement. At the City's request, the Vendor or its subcontractors shall provide a proper release of all liens ar satisfactory evidence of freedom from liens shall be delivered to the City. P. ASSIGNMENT/DELEGATION: The Agreement shall be binding upon and endure to the benefit of the City and the Vendor, and their respective successors and assignees, provided however, that no right or interest in the Agreement shall be assigned and no obligation shall be delegated by the Vendor without the prior written consent of the City. Any attempted assignment or delegation by the Vendor shall be void unless made in conformity with this Section. The Agreement is not intended to confer any rights or benefits on any person, firm or entity not a party hereto; it being the intention of the parties that there be no third party beneficiaries to the Agreement. Q. INTERPRETATION: The Agreement is intended by both parties as the final, complete and exclusive statement of the terms of their agreement. No course of prior dealing between the parties or course of performance or usage of the trade shall be relevant to supplement or explain any term used in the Agreement. Although the Agreement may have been substantially drafted by one party, it is the intent of the parties that all provisions be construed in a manner fair to both parties, reading no provision more strictly against one party of the other. Whenever a term defined by the Uniform Commercial Code (the "UCC"), as enacted by the State of Texas, is used in the Agreement, the UCC definition shall control unless otherwise defined in the Agreement. R. GOVERNING LAW AND VENUE: This Agreement is made under and shall be governed by the laws of the State of Texas, including when applicable, the UCC as adopted in Texas, VTCA, Business & Commerce Code, Chapter 1, excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction. This Agreement is fully performable in Georgetown, TX, and the venue for any action related to this Agreement shall be Georgetown, TX. All issues arising from this Agreement shall be resolved in the courts of Williamson County, Texas and the parties agree to submit to the exclusive personal jurisdiction of such courts. The foregoing, however, shall not be construed or interpreted to limit ar restrict the right or the ability of the City to seek and secure injunctive relief from any competent authority as contemplated herein and does not waive the city's defense of sovereign immunity. S, INTERLOCAL COOPERATIVE PURCHASING/PIGGYBACK CONTRACTS: Other governmental entities may be extended the opportunity to purchase from Solicitations of the City, with the consent and agreement of the awarded Vendor(s) and the City. Such consent and agreement shall be conclusively inferred from lack of exception to this clause in Vendor's Response. However, all parties indicate their understanding and all parties hereby expressly agree that the City is not an agent of, partner to or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that arise out of such independently negotiated piggyback procurements. T. SURVIVABILITY OF OBLIGATIONS: All provisions of the Agreement that impose continuing obligations on the parties, including but not limited to the warranty, indemnity and confidentiality obligations of the parties, shall survive the expiration or termination of the Agreement. U. CLAIMS: If a claim, demand, suit or other action is asserted against the Vendor which arises under or concerns the Agreement, or which could have a material adverse effect on the Vendor's ability to perform thereunder, the Vendor shall give written notice to the City within ten (10) calendar days after receipt of notice by the Vendor. Such notice to the City shall state the date of notification of any such claim, demand, suit or other action; the names and address of the claimant(s); the basis thereof; and the name of each person against whom such claim is asserted. Such notice shall be delivered to the Purchasing Department as set forth below and to the City Attorney at PO Box 409, Georgetown, TX 78627. V. NOTICES: Unless otherwise specified, all notices, requests or other communications required or appropriate to be given under the Agreement shall be in writing and deemed delivered three (3) business days after postmarked if sent by US Postal Service Certified or Registered Mail, Return Receipt Requested Notices delivered by other means shall be deemed delivered upon receipt by the addressee. Routine communications may be made by first class mail, fax, or other commercially accepted means. Notices to the Vendor shall be sent to the address specified in the Vendor's Offer or at such other address as a party may notify the other in writing. Notices to the City shall be addressed to: City of Georgetown, Purchasing Office, PO Box 409, Georgetown, TX 78627 and marked to the attention of the Purchasing Manager. W. GRATUITIES: The City may, by written notice to the Vendor, cancel the Agreement without liability if it is determined by the City that gratuities were offered or give by the Vendor or any agent or representative of the Vendor to any officer or employee of the City with the intent of securing the Agreement or securing favorable treatment with respect to awarding or amending or the making of any determinations with respect to performing of the Agreement. In the event the Agreement is cancelled by the City pursuant to this Section, the City shall be entitled, in addition to any other rights and remedies, to recover the benefits or payments to the Vendor, as a result of the gratuities. 9 X. PERSONAL INTEREST PROHIBITED: No officer, employee, independent consultant or elected official of the City who is involved in the development, evaluation or decision -making process of the performance of the any Solicitation shall have a financial interest, direct or indirect, in the resulting Agreement. Any willful violation of this Section shall constitute impropriety in office, and any officer or employee guilty thereof shall be subject to disciplinary action up to and including dismissal. In the event a member of the governing body or an appointed board or commission of the City belongs to a cooperative association, the City may purchase equipment or supplies for the association only if no member of the governing body, board or commission will receive pecuniary benefit from the purchase, other than as reflected as in increase in dividends distributed generally to members of the association. Any violation of this provision with the knowledge, expressed or implied, by the Vendor shall render the Agreement voidable by the Clty. Nevertheless, the City may obtain the equipment or service if a conflict of interest affidavit is filed and the Council member recuses his/herself. Y. WAIVER: No claim or right arising out cif a breach of the Agreement tan be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party. No waiver by either the Vendor or the Clty of any one or more events of default by the other party shall operate as, or be construed to be, a permanent waiver of any rights or obligations under the Agreement, or an express or implied acceptance of any other existing or future default(s), whether of similar or different character. Z. DISPUTE RESOLUTION: If either the Vendor or the City has a claim, dispute or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a good faith effort, in person or through generally accepted means, to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with, this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation upon written consent of authorized representatives of both parties in accordance with the Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation than in effect. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. AA. INVALIDITY: The invalidity, illegality or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other portion or provision of the Agreement. Any void provision shall be deemed severed from the Agreement and the balance of the Agreement shall be construed and enforced as if the Agreement did not contain the particular portion or provision held to be void. The parties further agree to reform the Agreement to replace the stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent the entire Agreement From being void should a provision which is the essence of the Agreement be determined to be void. BB. RIGHT TO ASSURANCES: In the event the City, in good faith, has reason to question the intent of the Vendor to perform, the City may demand written assurances of the intent to perform. In the event no written assurance is given within the time specified, the City may treat this failure as an anticipatory repudiation of the Agreement. 10