HomeMy WebLinkAboutRes 2023-02-1376 Change Order 1 & 2 for Fire Station 2- 6 Bay StationCITY OF ANNA, TEXAS
RESOLUTION NO.
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING
THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING AND
APPROVING CHANGE ORDER NO. 1 AND CHANGE ORDER NO. 2 TO THE
CONTRACT FOR DESIGN -BUILD SERVICES WITH CROSSLAND CONSTRUCTION,
INCORPORATED FOR THE DESIGN AND CONSTRUCTION OF FIRE STATION 2 AS
A SIX BAY STATION IN THE AMOUNT NOT TO EXCEED FOUR MILLION SIX
HUNDRED THOUSAND DOLLARS ($4,600,000); AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, Anna voters approved Bond Proposition "A" in May of 2021 for Public Safety
improvements, including the construction of a new fire station; and,
WHEREAS, the original identified budget established in 2019 for the design and
construction of Fire Station 2 was $6,400,000; and,
WHEREAS, the City selected Crossland Construction Incorporated as one of the three
pre -qualified Design -Build firms in the Multi -Disciplinary RFQ process in 2021 as
documented in Resolution 2021-07-940; and,
WHEREAS, Change Order No. 1 and No. 2 are required to fully fund the construction of
Fire Station No. 2 as a six bay station due to the additional materials required for three
additional bays and the unforeseen and unprecedented inflation in 2022, resulting in
increased costs for building materials and labor; and,
WHEREAS, the approval of Change Order No. 1 and No 2 will increase the project budget
for the design and construction of Fire Station 2 to $11,000,000; and,
WHEREAS, the funding for Change Order No. 1 and Change Order No. 2 shall come
from PID Fees, which are paid by developers as a part of creating public improvement
districts for new master -planned developments; and,
WHEREAS, Change Order No. 1 and No. 2 will not require any additional taxpayer
funding or an increase in the City's tax rate; and,
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 2. Authorization of Agreement and Funding.
That the City Council of the City of Anna hereby authorizes the City Manager to execute
Change Order 1 in the amount of $1,600,000, and Change Order No. 2 in the amount of
$3,000,000, increasing the project budget to $11,000,000 for the design and construction
of Fire Station 2 as a six bay fire station.
That funding for Change Order No. 1 and Change Order No. 2 shall come from PID
Fees.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this L&
day of February 2023.
ATTEST:
City Secretary, Carrie Land
Exhibit A — Change Order 1
CROSSLAND Owner Change Order
C91STA99TION COMPANY, INC.
Anna Fire Station #2 -22TX29KRHC 22TX29KRHC
N Standddge Blvd.
Anna TX 15402
Date: 219/2023 Contract Date:
To: Kyle Roberts Contract Number: 0001
Crossland Construction Comoeny, Inc. Change Order Number: 01
731 Industry Way
Prosper, TX 75078
The Contract Is hereby revised by the following items:
Revised Budget Base Bid (3) Bays
Item Number Description
01 Prima Contract Revised Budget
Anwthrt
$1,634,808.00
Theoriginal Contract Value was..................................................... ................. .......
$8.313,137.00
Sum of changes by prior Owner Contract Change Orders............. ........................ ...........
1 $0.00
The Contract Value prior to this Owner Contract Change Order was ....................................
$6,313,137.00
The Contract Value will be changed by this Owner Contract Change Order in the amount of....
$1,634,808.00
The new Contract Value including this Owner Change Order will be ........................
$7.947.945.00
The Contract duration will be changed by.................................................................
0 Days
Notes
Crossland Construction Company, Inc. City of Anne
C TRACTOR OWNER
731 Industry Way
Prosper, TX 75078
By
Signature
Dale
111 N Powell Parkway PO Box 776
Anna,TX 76409
By
Signature
Date
Exhibit B — Change Order 2
CROSSLAND 1 Owner Change Order
CONSTRUCTION COMPANY. INC.
Anna Fire Station #2 - 22TX29KRHC 22TX29KRHC
N Slaedridge Blvd.
Anna. TX 75409
Date: 2IM023 Contract Date:
To: Kyle Roberts Contract Number: 0001
Crossland Construction Company, Inc. Change Order Number: 02
731 Industry Way
Prosper. TX 75078
The Contract Is hereby revised by the following Items:
Additional Bays Revised Budget GMP.
Item Number Description
01 Prime Contract Revised Budget GMP
Amount
$2,875.490.00
The original Contract Value was ........ .......................................... I ............... I ........ _
$6.313,137.00
Sum of changes by prior Owner Contract Change Orders .................................................
51,634,808.00
The Contract Value prior to this Owner Contract Change Order was ....................................
37,947,945.00
The Contract Value will be changed by this Owner Contract Change Order in the arramt of....
$2,876,490.00
The new Contract Value including this Owner Change Order will be ........................
$10.823.435.00
The Contract duration will be changed by..... ....... ................... ................................
0 Days
Notes
Crossland Construction Company, Inc.
CONTRACTOR
731 Industry Way
Prosper. TX 75078
By
Signature
Date
City of Anna
UMER
t t t N Powell Parkway PO SM 776
Anna. TX 75409
By
Signature
Dale
CROSSLAHO
CONSTRUCTION COMPANY, INC.
Owner Change Order
Anna Fire Station #2 - 22TX29KRHC 22TX29KRHC
N Standridge Blvd.
Anna, TX 75409
Date: 2/9/2023
To: Kyle Roberts
Crossland Construction Company, Inc.
731 Industry Way
Prosper, TX 75078
The Contract is hereby revised by the following items:
Revised Budget Base Bid (3) Bays
Item Number Description
01 Prime Contract Revised Budget
Contract Date:
Contract Number: 0001
Change Order Number: 01
Amount
$1,634,808.00
The original Contract Value was............................................................................. $6,313,137.00
Sum of changes by prior Owner Contract Change Orders .................................... I............ $0.00
The Contract Value prior to this Owner Contract Change Order was .................................... $6.313,137.00
The Contract Value will be changed by this Owner Contract Change Order in the amount of.... $1,634,808.00
The new Contract Value including this Owner Change Order will be ........................ $7,947,945.00
The Contract duration will be changed by................................................................. 0 Days
Notes
Crossland Construction Company, Inc. City of Anna
CONTRACTOR OWNER
731 Industry Way 111 N Powell Parkway PO Box 776
Prosper TX 75078 Anna, TX 75409
By By
�r
Signature Signature /N
Date
Date axis 1 a"5
Design Development Estimate Summary
Project: Anna Fire Station #2
Date: December 25, 2022
Bid
Package
01A
Description
General Requirements
Site
S 60,777
2.248
SlAcre
':
Building
$ 182332
14,248
S/SF
-:
TOTAL
$ 243,109
14,248
018
MwI.rl.1T.atfrQ
By Owner
02A
Existing Conditions
S
S
S
31A
Earthwork
$ 175.696
-
S 60.564
$ 236,260
32A
Site Pa lag
S 388.959
$
$ 388959
328
Landscs in 81rt1 atlon
S 174.749
-
S
$ 174749
32C
Fencing
S 23,800
S
$ 23,200
32D
Retainin Walls
8 27.360
3
S 27,360
33A
Site Utilities
S 194.74D
$
it 194.740
03A
Cast-ImPlace Concrete
S
S 503.664
S 503664
030
Polished Concrete
S
$ 21,900
S 21,900
NA
Masonry
S
$ 387.736
S 387736
C
OSA
Structural B Miscellaneous Steel
S 15,800
S "6,536
i
S 465,336
06A
Woods and Plastics
S
Is
170.680
$ 170,680
'.
068
Het, Timber
S
$
$
07A
Roofing
S
S 340,785
$ 340785
D78
Waterproofing
$ 5.967
5
$ 49662
$ 55629
07C
Flw..ft.g
S 15.000
$ 15000
070
Metal Panels
3
$ 168,625
-
$ 168625
07E
EIFS
$
S
S
07E
Fiber Cement Board Siding
9
S 41,350
-
$ 41,850
08A
Doors 6 Hardwme
$
S 118.500
:
$ 118,600
>
080
Glass 6Glati
$
S 37.9DO
$ 37,900
P -
No
Overhead Doors
S
3 147.528
_
$ 147528
-
09A
onnegit6Awostkal
$
S 536,841
=
$ 536.841
098
Flooring
S
-
S 41.916
-
$ 41,916
-
09C
Tile
$
S 72AOO
$ 72.400
09D
Painting
S
S 65.000
$ 65800
S
ME
Plaster
3
$
$
10A
Miscallenta,usSpecallies
S
S 22.520
$ 2ZS20
-.
10B
na
S
:-
$ 25.083
i
ioc
Pre -Manufactured! Canopies
9
$
IOD
Lockers
$
-
$ 18200
;
11A
Equipment
S
-
$ 68,050
i
12A
Furnishings
8
H
;
$ 5,430
13p
Special Construction
S
14A
Co n ui m
S21A
Flro Prctectbn
8
I S 68932
22A
Plumbing
3
Is 464,353
$ 464353
23A
HVAC
S
I S 270,935
$ 370935
S
26A
Electrical
9 36250
S 628.946
$ 665,196
;
27A
Communicaions
S
S 24.934
$ 24934
5
27B
AudioMsual
S
S 14,248
$ 14,248
29A
Fire Alarm
3
-
S 21372
$ 21,372
28B
Security
S
S 14,248
$ 14,249
28C
Acme Controls
S
S 14.248
$ 14240
28D
Discatch Alerting System
8
S
By Owner
28E
Ernmency Radio Coewnunleatlon Brener,S
S
$
Subtotal Mead Cut a/Wark
S 1,107.098
8 492v1e1
$ 5171.817
6 362.99
S 6278,914
$ 440.69
79.00%
Design/fatimating CornMency
S 28,535
s 130.424
S 158,959
Constru4Wn Contingency
S 28,535
-
$ 130,424
$ 158959
Escalation Contingency
S
S
$
owners Contingency
S
Is
B7 Owner
Building Permit and Feet,
S
s
_
By owner
'
Payment and Performance Bond
5 11.599
S 53,474
-
S 65173
,
General Liabilryinsto,once
$ 10,701
$ 48,909
$ 59610
-
BullderaRisklnsurance
S Z854
S 13.042
$ 15,896
General Condition.
S 71.125
S 213.376
S 284,500
Design -Build Fee
S 166,216
S 759,718
S 925. 336
TOTAL
{
CROSSLAND
CONSTRUCTION COMPANY. INC.
Owner Change Order
Anna Fire Station #2 - 22TX29KRHC 22TX29KRHC
N Standridge Blvd.
Anna. TX 75409
Date: 2/9/2023
To: Kyle Roberts
Crossland Construction Company, Inc.
731 Industry Way
Prosper, TX 75078
The Contract Is hereby revised by the following items:
Additional Bays Revised Budget GMP.
Item Number Description
01 Prime Contract Revised Budget GMP
Contract Date:
Contract Number: 0001
Change Order Number: 02
Amount
$2,875,490.00
The original Contract Value was.............................................................................
$6,313,137.00
Sum of changes by prior Owner Contract Change Orders .................................................
$1.634,808.00
The Contract Value prior to this Owner Contract Change Order was ....................................
$7,947,945.00
The Contract Value will be changed by this Owner Contract Change Order In the amount of.... $2,875,490.00
The new Contract Value including this Owner Change Order will be ........................
$10,823,435.00
The Contract duration will be changed by.................................................................
0 Days
Notes
Crossland Construction Company, Inc.
City of Anna
CONTRACTOR
OWNER
731 Industry Way
111 N Powell Parkway PO Box 776
Prosper. TX 75078
Anna,TX 75409
By
By
Signature
Signature A�
?
Date OTI I;�d 7
Date
Additional Bays Alternate
Project: Anna fire Station #2
Date: February 9, 2023
•ackage
GerleralR ,n
dremmts
Site
S 11,643
$/Acfe
>
$ , 34.928
-'
TOTAL
$ 46,577
OlA
Die
Materiel Testing
S
S
By Owners
02A
Exkalno Conditions
S
S
$
31A
Earthwork
$
32A
Site Paving
S 132.000
$
$ 132000
-
32B
Landsce &Its alkm
S
it
$
32C
Fend
$
$
$
320
Bebinin Walls
S
3
$
33A
Site Utilities
$
-
S
$
03A
Cast -in Piece Conde
S
$
S
03B
Polished Concrete
3
S
$
MA
Masonry
BSA
Structural& Miscellaneous Steel
S
3 2150,000
S 2,150000
06A
Woods and Plastics
S
S
$
066
Hea Timber
S
S
$
VA
Rear
$
8
$
078
Water roots
$
3
$
07C
Fire moon
S
S
$
07D
Metal Panels
8
S
$
07E
EIFS
3
a
$
07E
Fiber Cement Board Siding
$
Is
$
BOA
Doors&Held..
S
$
$
080
Glass & Glazing
S
Is
S
08C
Overhead Doors
$
S
$
09A
DrywalliliAcousticel
8
$
$
09B
Hearing
3
$
$
09C
The
S
8
$
09D
Palnlin
$
8
$
09E
Plaster
3
8
$
l0A
Miscellaneous 5 ecieBies
S
S
$
100
SI nee
S
S
$
10C
Pre -Manufactured Ca ten
$
S
$
10D
Lockers
S
s
$
11A
Equipment
8
$
$
12A
Furnishings
8
S
$
13A
Special Construction
8
$
$
I"
Corwaybril EgWp. M
$
3
$
21A
Fire Protection
8
$
22A
Plumbing
S
9
$
23
HVAC
$
8
S
26A
Electrical
S
S
$
27A
Cammunicatians
S
$
$
278
AudloMsual
S
-
S
$
28A
Fire Alarm
'S
Is
S
28B
Security
$
S
S
2BC
Access Controls
$
$
$
28D
Dispatch Alerting tent
S
$
$
2BE
Enter Radio Canmunicauon Swam
S
$
$
Subtatel DiM440ostofwadr
$ 143643
S 6908
S AlKO28
S 75396
S Z328
$KI63A3
W.98%
Construction Conl en
$ 14,378
S 43,133
$ 57510
Escalation Conlin en
9
S
$
Owner's Contin en
3
S
By Owner
Buildin Permit and Fees
$
S
By Owner
Payment and Performance Bond
S SA95
S 17,684
$ 23 579
General Jablifty Insurance
S 5,392
-
S 16,175
-
$ 21,566
,
Builder's Risk Insurance
3 1582
Ganeral Conditions
S 25,736
S 77207
$ 102,943
Oasi rFBuiltl Fee
TOTAL:t
S 83,749
S 251,246
$ 334,995
I
CITY OF ANNA, TEXAS
RESOLUTION NO. 404-Qq--1156
A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A CONTRACT FOR DESIGN -BUILD SERVICES, IN A
FORM APPROVED BY THE CITY ATTORNEY, WITH CROSSLAND CONSTRUCTION,
INCORPORATED FOR THE DESIGN AND CONSTRUCTION OF FIRE STATION 2 IN
THE AMOUNT NOT TO EXCEED SIX MILLION FOUR HUNDRED THOUSAND
DOLLARS ($6,400,000); AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, Anna voters approved Bond Proposition "Kin May of 2021 for Public Safety
improvements, including the construction of a new fire station; and,
WHEREAS, the Developer of the Hurricane Creek Subdivision has agreed to dedicate
property to the City of Anna at the northwest corner of Standridge Parkway and Creek
Meadow Drive for a new fire station; and,
WHEREAS, the identified budget for the design and construction of Fire Station 2 is
$6,400,000; and,
WHEREAS, the City selected Crossland Construction Incorporated as one of the three
pre -qualified Design -Build firms in the Multi -Disciplinary RFQ process in 2021 as
documented in Resolution 2021-07-940; and,
WHEREAS, the City of Anna interviewed the three pre -qualified firms and selects
Crossland Construction, Inc. as the highest scoring firm for the Fire Station 2 project: and,
WHEREAS, the City Attorney shall review and approve all contracts by and between the
City of Anna and Crossland Construction, Incorporated prior to execution by the City
Manager; and,
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals above are incorporated herein as if set forth in full for all purposes.
Section 2. Authorization of Agreement and Funding.
That the City Council of the City of Anna hereby authorizes the City Manager to execute
a design -build contract in an amount not to exceed $6,400,000.00 to Crossland
Construction, Incorporated for the design and construction of Fire Station 2.
That funding for the project shall come from the voter approved 2021 Bond Funds.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this aYA-
day of April 2022.
ATTEST: 0OFu�nl,
. /v""/'•
City Secretary, Carrie Land
, Nate Pike
Project Location Map - Fire Station 2
�� < 1' it �a, ,� �6}-••y� �`-:.
Ros
` �`Pa rkw-
-
Proposed Fire
H'
Station 2
Existing
,? 1
Central Fire
_
i f
' FM 455 -
R-z
r - z
I _I_
BID # 01-2022
RFQ: Fire Station 2
CATEGORY: Design/Build
CATEGORY NAME: Design/Build
DATE DISTRIBUTED TO EVAL TEAM: 4/20/2022
DATE RETURNED: 4/21/2022
Evplanation on Ratings O-5 (Evaluators may assignpointsin.25 increments-em 329 or 4.75)
O=Non-Responsive; no information included
1= Minimally responsive; meets a few needs
2 = Fair; meet some of the needs
3 = Good; meets all of the neeeds
14= Better; meet all the basic needs and Exceeds in some areas
5=Excellent•, innovatively Exceeds in All Needs
Bidder. CrosslarM
BID NO.:
Category Lefler Category Name
EVALUATOR'A'
EVALUATOR'B'
EVALUATOR'L'
TOTAL
Weight % EVALUATION CRITERIA
Score Comments
Score Comments
Score Comments
3.875
S.t Totals
25 FIRM INFORMATION& SERVICES (Tab 1)
1000
Ifatory and phlosophy of the Firm
3
4
3
3.333
Firm's principal officers and profassion ta,
4
3.5
q
3.833
Areas of Expertise ariNor speciaihatlon
q
CS
5
00
(a¢lian of Hcma and Branch Offices
q
g
4
C o33
60 Firm's Expetiersre.(Tab 2)
2400
Pertinent related professional experience of case Firm for tie selected category
4
4
4.000
Ran's culture and overall approach to Prolett Mane mem and mmmunleadon
4
4
3
3.667
Esperienee vith Ue Nil range of napweablues mntemplacad for ch. to"
4
u
s
4.500
Exprdeme licensing and gwlifiokom of the key svtf who mould man likely le,
a slgned to the work
4
3.5
q
3.833
Quality Control/quality Assurance Procuus
3
4
4
3,667
15
References (Tab 3)
_
0.475
Firm's performance on prior projett re:a[ed to :he o:egory, performed in the
waireMyeus.
5
4.5
5
-
4.833
Ua of all proleats comenW under mnuaa for die selected ategory, and their
anticipated campledon date.
5
4
5
4.667
Eaplanation on Ratings 0—S(Evaluators may assign points in Xi Increments -ax: 3J or 4.7S)
ALL SCORES ABOVE AND BELOW A"3' REQUIRE COMMENTS
O=Non-Responsive; no information included
1= Minimally responsive; meets a few needs
2= Fair; meet some of the needs
3 = Good; meets all of the needs
4 = Better, meet all the basic needs and Exceeds in some areas
5= Excellent InnuvatiyNy Exceeds in All Needs
Bidder: Byme
BID NO.:
Category Loner Calepory Name
EVALUATOR'A'
EVALUATOR'B'
TOTAL
Wei h1 % EVALUATION CRITERIA
5cpre COmnIMm
$COIe COmmenl5
Score
1846
25 FIRM INFORMATION 65ERVICES (Tab t)
iEV#AWATOR
6YRT0[als
Halory and pM1gpsppM1y of Vie Finn
1
0.896
15
q
Firm's pdrKpel olfirnm aM pMessbnak
0
500
3.333
4
1
Areas of Expertlse anNor spedagvibn
q
3.333
4
5
Localbn o1 Home and Branch Offical,
3
4.333
3.5
3
16]
3J,SCO
60
Flrm's. ExpeNentz.(iab2)
Pertinent lebree protef suml opernttofNe Rrm br the sekctetl ategory4Fmrfs
u1Nrt aM avera0 approaN m Proiut Manegemem m
444,S
54
4.5
4
tlual�ry convpl/Om!irywssunace Praeses
4
4.5
1
t5
References (Tab 3)
633
Firms perfonnanee an pnor projm related m the rategory, per(prmetl in the
0.425
put five (3)years.
5
lirt Of all proleN curl under ronmaR for Me seleRed otegpry and Heir
4
4
4.130
annawted tcmpledon date
4
5
4.167
Explanation oo Ratings 0-5 (Enluatars may assign points In.15 inwemenb • ea; 3.25 or 4.]5)
ALL SCORES ABOVE AND BELOW A'3' REQUIRE COMMENfs
O=Nan-Respomive; no information included
1= Minimally responsive; meets a few needs
2=Fair, meet some of the needs
3 = Good; meets all of Me needs
4= Better; meet all the basic needs and Exceeds in some areas
S=Excellent; innovatively Exceeds in All Needs
Bidders Speed! FebCmia I
BID flat
GWlloq Lenz Cale4ory Wme
EVALUATOR'A'
EVALUATOR-8- EVALUATOR'C TOTAL
Wel ht %
EVALUATIONCRNERIA
Score
Comments
Stem
Comments
Scom
I Comments
Sub.SM
Tools
25
FIRM INFORMATION& SERVICES (Tab 1)
History antl pM1llosopM1y of the Fum
3
0.5 6
d
5
Firm's pdadW officers and p rmionals
4.000
3
5
g
Amax of Ea eNsa anNw spededin bn
°
67
°
°
4.
00003
Lp¢Litn of Homo and Brmch Otfcas
3
3.5
a
3.500
60 _..
Firon. Eatedanbe (Tabi2),.
2300
Palinenl Mttetl prplealwulmpwience of the fVm for geulected category
3
4.5
5
Rrm'r Nroan and Nwall approa[h m vn)m ManXemem and
4.167
Nmmunbdon
3
4
°
E+Dwimoe waa qe IuE nnge of respomibladn mntemplared lw qe oteµry
3.66]
3
4S
4
fag and OwFifinironi ofge key apflwho w4uM molt I&e
3.833
e uto theperienm,
be to the work
3
4
4
quallry Control/quality Asmrance Processes
3.86
3
3.5
5
3P:Xs
15
References(Tab 3)
pedwmantt en :eer prje,l related to :he n[eZory, pedermM in the
D'42
past Fnc 151 years.
4
❑se of all Proje¢a mrrenuntlw cenmm is, one selected otegory, and Nei
4.5
5
a.500
ndnpamd mmPienpn datat e.
4
4
4
a.000
CITY OF ANNA, TEXAS
CONTRACT DOCUMENTS
FOR:
FIRE STATION #2 DESIGN/BUILD, for facilities to be located on
Standridge Boulevard, Anna, Texas 75409
("Fire Station #2")
THE CITY OF
TABLE OF CONTENTS
CONTRACTAGREEMENT...........................................................................................................................1
Section 1.
DOCUMENTS INCORPORATED BY REFERENCE........................................................1
Section 2.
REPRESENTATIONS OF THE CONTRACTOR...............................................................2
Section 3.
INTENT AND INTERPRETATION.....................................................................................3
Section 4.
CONTRACTOR'S PERFORMANCE.................................................................................4
Section 5.
TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS...............................................4
Section 6.
FIXED PRICE AND CONTRACT PAYMENTS..................................................................6
Section 7.
INFORMATION AND MATERIAL SUPPLIED BY THE CITY..........................................10
Section 8.
CEASE AND DESIST ORDERlCITY'S RIGHT TO PERFORM WORK ..........................10
Section 9.
CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES ........................10
Section10.
INDEMNITY.....................................................................................................................14
Section 11.
CLAIMS BY THE CONTRACTOR...................................................................................15
Section12.
SUBCONTRACTORS......................................................................................................16
Section13.
CHANGE ORDERS.........................................................................................................16
Section 14.
DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK.............19
Section 15.
CITY'S RIGHT TO SUSPEND CONTRACTORS PERFORMANCE..............................19
Section16.
TERMINATION BY THE CITY.........................................................................................21
Section17.
INSURANCE....................................................................................................................23
Section18.
BONDS............................................................................................................................24
Section19.
PROJECT RECORDS.....................................................................................................25
Section20.
APPLICABLE LAW..........................................................................................................25
Section 21.
SUCCESSORS AND ASSIGNS......................................................................................25
Section 22.
MISCELLANEOUS PROVISIONS...................................................................................26
Section23.
ENTIRE AGREEMENT....................................................................................................28
Section24.
SEVERABILITY...............................................................................................................29
Section25.
WAIVER.......................................................................................................................... 29
APPENDIX................................................................................................................................................. Al
BIDDER'S BOND....................................................................................................................................... Al
PERFORMANCEBOND............................................................................................................................ A3
A5
PAYMENTBOND.......................................................................................................................................
CERTIFICATEOF INSURANCE................................................................................................................ A7
NOTICETO
PROCEED............................................................................................................................. A8
CHANGEORDER...................................................................................................................................... A9
CONFLICT OF INTEREST QUESTIONNAIRE........................................................................................
A10
AFFIDAVIT AGAINST PROHIBITED ACTS.............................................................................................
Al2
FORM1295
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A13
CONTRACT AGREEMENT
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This Contract Agreement for FIRE STATION #2 DESIGNIBUILD, for facilities to be located on
, Anna, Texas 75409 ("Fire Station #2") project for construction of building and
site improvements, (hereinafter this "Contract Agreement"), is entered into this day of
, 2022 by and between the CITY OF ANNA, TEXAS, a Texas municipal corporation,
("City") and CROSSLAND CONSTRUCTION COMPANY, INC., with an office at 731 Industry Way,
Prosper, TX 75078("Contractor").
WITNESSETH:
WHEREAS, the City wishes to contract for the project identified as Fire Station #2 (the
"Project"); and
WHEREAS, the Project shall include all work, undertakings, services, and activities necessary
to complete the following scope of work (hereinafter referenced as "Work"): design -build services for
construction of a municipal fire station, in accordance with the Contract Documents as that term is
defined herein; and
WHEREAS, the Contractor has represented to the City that its personnel are qualified to
provide the Work required in this Contract Agreement in a professional, timely manner as time is of the
essence; and
WHEREAS, following a thorough review of Contractor's submitted materials, City staff has
determined that Contractor's Statement of Qualifications satisfied the City's initial requirements, and
identified Contractor as a finalist for award of the Project; and
WHEREAS, Contractor has submitted a proposal committing to performance of the Work to the
City's standards under a reasonable Guaranteed Maximum Price and Design -Build Service Fee, and
subject to further terms and conditions required by the City; and
WHEREAS, the City has relied upon the above representations by the Contractor, and based
on the evaluation criteria and weighting factors set out its proposal invitation materials, the City has
determined that Contractor's offering provides the best value for the City; and
WHEREAS, the City's staff and engineer have recommended that a suitable agreement for
aforesaid construction be entered into with the Contractor to perform the Work for payment not to
exceed the Guaranteed Maximum Price;
NOW, THEREFORE, for and in consideration of these premises, of the mutual covenants herein
set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. DOCUMENTS INCORPORATED BY REFERENCE
This Contract Agreement includes the recitals set forth above and the following documents:
• Two -Step Request for Qualifications — Request for Qualifications for Various
Professional and Engineering Services, Category D. Facility Architecture and Design -
Build and associated exhibits, including without limitation its Design Criteria, Civil
Construction Plans, General Notes, Planting Specifications, Code Planting Plan,
Page 1 of 46
Planting Schedule, Irrigation Plan, Irrigation Notes and Details (collectively "RFQ-RFP");
•
Contractor's Statement of Qualifications and Proposal(s)s for the Project;
+
Qualification Statement of Bidder's Surety;
•
Prevailing Wage Rates for Municipal Construction in Anna, Texas;
•
Vendors Compliance to State Law;
•
Conflicts of Interest Questionnaire;
•
Affidavit Against Prohibited Acts;
•
Proposal for Design -Build Services (dated the day of , 2022);
+
Request for Certificate of Exemption from Texas Limited Sales, Excise and Use Tax;
•
Contract Agreement;
•
Bidders Bond;
•
Performance Bond;
•
Payment Bond;
+
Certificate of Insurance;
•
Notice to Proceed;
•
Any executed Change Orders;
•
Supplementary General Provisions and Technical Specifications; and,
•
Plans, Specifications and Drawings and all other documents made available for
Contractor's inspection in conjunction with the City's RFQ-RFP';
all of which are hereby incorporated herein by reference, whether or not attached hereto, and made a
part hereof (hereinafter along with this Contract Agreement and referenced collectively as the
"Contract" {"Contract Agreement") or "Contract Documents"). Change Orders issued hereafter,
Construction Change Directives, a Direction for a Minor Modification in the Work issued by the City, and
any other amendments executed by the City and the Contractor, shall become and be a part of the
Contract Documents. Documents not listed or expressly contemplated in this Section 1 do not, and
'Y shall not, form any part of the Contract. The Contract Documents are intended to be complementary,
and a requirement in one document shall be deemed to be required in all documents. However, in the
event of any conflict between any of the above -listed incorporated documents and this Contract
Agreement shall control over all provisions incorporated by reference.
Section 2. REPRESENTATIONS OF THE CONTRACTOR
In order to induce the City to execute the Contract and recognizing that the City is relying thereon, the
Contractor, by executing the Contract, makes the following express representations to the City:
2.01 The Contractor is fully qualified to act as the general contractor for the Project and has, and
shall maintain, any and all licenses, permits or other authorizations necessary to act as the
general contractor for, and to construct the Project.
2.02 The Contractor has become familiar with the Project site and the local conditions under which
the Project is to be constructed and operated.
2.03 The Contractor has received, reviewed and examined all of the documents which make up the
Contract, including, but not limited to all plans and specifications, and has found them to the
best of Its knowledge, to be complete, accurate, adequate, consistent, coordinated and
sufficient for construction.
f
If plans, specifications, drawings, or other documents are too bulky or cumbersome to be physically bound or if
' any document is not physically bound to this Contract Agreement for any reason, such materials and documents
are to be considered Incorporated by reference into the Contract Agreement.
Design Build Contract Page 2
Section 3. INTENT AND INTERPRETATION
�1r
With respect to the intent and interpretation of the Contract Agreement, the City and the Contractor
agree as follows:
3.01 This Contract Agreement (along with its exhibits and other documents expressly referenced in
Section 1, above), together with the Contractor's and Surety's bid/proposal bond, performance
and payment bonds, constitute the entire and exclusive agreements between the parties with
reference to the Project, and this Contract Agreement supersedes any and all prior discussions,
communications, representations, understandings, negotiations, or agreements.
3.02 The Contract Price shall not be exceeded, subject to additions and deductions by changes in
the Work as provided in the Design -Build Documents. Such maximum sum is referred to in the
Design -Build Documents as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without
reimbursement by the City.
3.03 Nothing contained in this Contract Agreement shall create, nor be interpreted to create, privity or
any other relationship whatsoever between the City and any person except the Contractor.
3.04 When a word, term, or phrase is used in this Contract Agreement, it shall be interpreted or
construed first, as defined herein; second, if not defined, according to its generally accepted
meaning in the construction industry; and third, if there is no generally accepted meaning in the
construction industry, according to its common and customary usage.
3.05 Wherever the Contract calls for "strict" compliance or conformance with the Contract Documents
as to matters —other than compliance with time limits, providing an updated schedule, and claim
and change order procedures--Ahe term shall mean within tolerances as described specifically
in the Contract Documents, or if not specifically described, within industry standards and
tolerances for deviation for the specific item or procedure in question.
3.06 The words "include", "includes", or "including", as used in the Contract, shall be deemed to be
followed by the phrase, "without limitation".
3.07 The listing herein of any items as constituting a material breach of this Contract Agreement shall
not imply that any other, non -listed items will not constitute a material breach of this Contract
Agreement.
3.08 The Contractor shall have a continuing duty to read, examine, review, compare and contrast
each of the documents which make up this Contract Agreement, shop drawings, and other
submittals and shall give written notice to the City of any conflict, ambiguity, error or omission
which the Contractor may find with respect to these documents, before proceeding with the
associated part of the Work. The express or implied approval by the City or its designee of any
shop drawings or other submittals shall not relieve the Contractor of the continuing duties
imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with
the Contract. if the Contractor performs any activity knowing it involves an error, inconsistency
or omission which was recognized, obvious, or reasonably should have been recognized,
without such notice to the City, the Contractor shall assume responsibility for such performance
and shall bear the costs for correction.
3.09 in the event of any conflict, discrepancy, or inconsistency among any of the documents which
make up the Contract, the following shall control:
Design Build Contract Page 3
(1) as between this Contract Agreement and any other document, this document shall
govern; or,
(2) in the case of any conflict, discrepancy or inconsistency among any of the other Contract
Documents, and such conflict is not resolved by reference to the Supplementary General
Provisions and Technical Specifications, then the Contractor shall notify the City
immediately upon discovery of same for resolution.
Section 4. CONTRACTOR'S PERFORMANCE
The Contractor shall perform all of the Work required, implied or reasonably inferable from this Contract
Agreement including, but not limited to, the following:
4.01 The Contractor will complete the entire Work described in the Contract Documents, except as
specifically identified therein as the Work of other parties or expressly excluded by specific
reference, in accordance with the terms herein.
4.02 The furnishing of any and all required surety bonds and insurance certificate(s) and
endorsement(s).
4.03 The provision or furnishing, and prompt payment therefor, of labor, supervision, services,
materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage,
disposal, power, fuel, heat, light, cooling, or other utilities, required for construction and all
necessary building permits and other permits or licenses required for the construction of the
Project.
4.04 The creation and maintenance of a detailed and comprehensive copy of the drawings,
specifications, addenda, change orders and other modifications depicting all as -built
construction. Said items shall be submitted to the City, along with other required submittals
upon Completion of the Project, and receipt of same by the City shall be a condition precedent
to final payment to the Contractor. The Contractor shall prepare and submit final as -built
drawings to the City.
Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS
5.01 The Contractor shall commence the performance of the Contract on the date set forth in the
Notice to Proceed issued by the City Manager or the City Manager's designee and shall
diligently continue its performance to and until Completion of the Project. The Contractor shall
accomplish Substantial Completion (as defined herein below) of the Project not more
than 545 calendar days after the issuance of the Notice to Proceed, (sometimes hereinafter
referred to as the "Contract Time"). This Contract Time includes 30 inclement weather days. By
signing the Contract, the Contractor agrees that the Contract Time is a reasonable time for
accomplishing Completion of the Project and completion of the Project within the Contract Time
is of the essence.
5.02 For each and every calendar day of unexcused delay in achieving Substantial Completion
beyond the date set forth herein for Substantial Completion, the Contractor shall pay the City
the following sum per calendar day (or said per -day sum shall be deducted by the City from the
monies due the Contractor): Five Hundred dollars and no cents ($500.00). Any sums due and
payable under this paragraph by the Contractor shall be payable, not as a penalty, but as
liquidated damages representing an estimate of delay damages likely to be sustained by the
Design Build Contract Page 4
City, estimated at the time of executing the Contract as such damages are difficult to calculate.
When the City reasonably believes that Substantial Completion will be inexcusably delayed, the
` City shall be entitled, but not required, to withhold from any amounts otherwise due the
Contractor an amount then believed by the City to be adequate to recover liquidated damages
applicable to such delays. if and when the Contractor overcomes the delay in achieving
Substantial Completion, or any part thereof, for which the City has withheld payment, the City
shall promptly release to the Contractor those funds withheld over and above what ultimately
came due as liquidated damages.
6.03 The term "Substantial Completion", as used herein, shall mean the point at which, as certified in
writing by the City's consulting architectlengineer or other appropriate independent contractor or
representative and approved by the City, the Project is at a level of completion in strict
compliance with the Contract such that the City or its designee can enjoy beneficial use or
occupancy and can legally occupy, use or operate it in all respects, for its intended purpose.
Partial use or occupancy of the Project shall not result in the Project being deemed substantially
complete, and such partial use or occupancy shall not be evidence of Substantial Completion.
6.04 All limitations of time set forth herein are material and are of the essence of the Contract.
6.06 Contractor agrees to punctually and diligently perform all parts of the Work at the time
scheduled in this Contract Agreement. In this connection, Contractor agrees that it will keep
itself continually informed of the progress of the job and will, upon its own initiative, confer with
the City so as to plan its Work in coordinated sequence with the work of the City, if any, and of
others and so as to be able to expeditiously undertake and perform its Work at the time most
beneficial to the entire Project.
6.06 if the Contractor is delayed at any time in the progress of the Work by any separate contractor
employed by the City, or by changes in the Work, or by labor disputes, fire, unusual delay in
transportation, unusually severe weather conditions, unavoidable casualties, delays specifically
authorized by the City, or by causes beyond the Contractors control, avoidance, or mitigation, and
without the fault or negligence of the Contractor and/or subcontractor or supplier at any tier, then the
contract time shall be extended by Change Order for such reasonable time, if any, as the City may
determine that such event has delayed the progress of the Work, or overall completion of the Work if
the Contractor complies with the notice and documentation requirements set forth below.
(1) if the Contractor is delayed, obstructed, hindered or interrupted for a period of time
exceeding seven calendar days by any act or neglect of the City, an adjustment shall be
made for any increase in the direct cost of performance of this Contract Agreement
(excluding profit, extended home office overhead, incidental or consequential damages
or disruption damages) and the Contract modified in writing accordingly. The Contractor
must assert its right under this section by giving written notice to the City Manager
within10 calendar days of the beginning of a delay, obstruction, hinderance or
interruption by the City. No adjustment shall be made for any delay, obstruction,
hindrance or interruption after final payment under this Contract Agreement or to the
extent that performance would have been so delayed, obstructed, hindered or
interrupted by any other cause, including, but not limited to concurrent cause or fault or
negligence of the Contractor, or for which an equitable adjustment is provided for or
excluded under any other term or condition of this Contract Agreement. The direct costs
described above shall be limited to those direct costs attributable solely to this Project,
and shall be subject to documentation and verification of costs as required by the City. If
unit prices are established in the Contract Documents or subsequently agreed upon,
they shall form the basis for cost calculations under any claims for delay.
Design Build Contract Page 5
(2) Any claim for extension of time shall be made in writing to the City, not more than five
calendar days from the beginning of the delay and failure to provide the written notice
within said five-day period shall be deemed a waiver by Contractor of any claim for delay
or related payment or other relief. The notice shall indicate the cause of delay upon the
progress of Work. If the cause of the delay is continuing, the Contractor must give such
written notice of continuing delay to be submitted with each new pay application
following the initial notice and failure to provide written notice with each new pay
application shall be deemed a waiver by Contractor of any claim for delay or related
payment or other relief. Within 15 calendar days after the elimination of any such delay
for which all timely written notice(s) were provided, the Contractor shall submit further
documentation of the delay and a formal Change Order requesting an extension of time
for such delay.
(3) The written request for a time extension shall state the cause of the delay, the number of
calendar days extension requested, and such analysis and other documentation as is
reasonably requested by the City to demonstrate a delay in the progress of the Work or
the overall project completion. If the Contractor does not comply with the above notice
and documentation requirements, the claim for the delay shall be deemed waived by the
Contractor. The above notice and documentation requirements shall also be a condition
precedent to the Contractor's entitlement to any extension of time.
(4) Extensions of time will be the contractor's primary remedy for any and all delays,
obstructions, hindrances, or interference. Payment or compensation, for direct costs only
(as set forth above), may be made to the Contractor for hindrances or delays solely
caused by the City if such delays or hindrances are within the City's ability to control and
are not partially caused by the Contractor or any of its agents, subcontractors or others
for whom it is responsible. No payment or compensation will be made for interference,
obstructions, hinderances or delays which are not solely caused by the City and which
the City fails to cure after a reasonable period after written notice.
(5) Without limitation, the City's exercise of its rights under provisions related to changes to
the Work, regardless of the extent or number of such changes, or the City's exercise of
any of its remedies or any requirement to correct or re -execute defective Work, shall not
under any circumstances be construed as delays, hindrances or interference
compensable further than as described herein.
Section 6. FIXED PRICE AND CONTRACT PAYMENTS
6.01 The City shall pay, and the Contractor shall accept, as full and complete payment for the
Contractor's timely performance of its obligations hereunder, a "Design -Build Service Fee" equal
to 11.66% (eleven and sixty-five hundredths percent) of the Guaranteed Maximum Price for
the Project. As of execution of this Contract Agreement, the Guaranteed Maximum Price for the
Project is $5,654,400. The price paid to Contractor as set forth in this Section 6.01 shall
constitute the "Contract Price" for purposes of the Contract Agreement, as modified solely
through Change Order or adjustment pursuant to approved unit prices, if any, as provided in the
Contract.
6.02 The City shall pay the Contract Price to the Contractor in accordance with the procedures set
forth in this Section 6 and as set forth here:
On or before the 10t" calendar day of each month after commencement of performance, but no more
frequently than once monthly, the Contractor may submit a payment request for the period ending the
last calendar day of the previous month (the "Payment Request"). Provided that an Application for
Design Build Contract Page 6
Payment is received not later than the 10t' day of month, the City shall make payment to the Contractor
not later than the 1st day of the next month. If an Application for Payment is received by the City after
the application date fixed above, payment shall be made by the City not later than thirty days after the
City receives the Application for Payment. Said Payment Request shall be in such format and include
whatever supporting information as may be required by the City. Therein, the Contractor may request
payment for 90% of that part of the Contract Price (inclusive of the corresponding portion of the Design -
Build Service Fee) allocable to Contract requirements properly provided, labor, materials and
equipment properly incorporated in the Project, and materials or equipment necessary for the Project
and properly stored at the Project site (or elsewhere if offsite storage is approved in writing by the City),
less the total amount of previous payments received from the City. Payment for materials stored offsite
shall be at the discretion of the City and if approved, the Contractor shall provide appropriate
documentation to substantiate materials are stored in a bonded warehouse or facility, title or other proof
of ownership has been transferred to the City, and that materials have been purchased and paid for by
the Contractor (copies of paid invoices must be submitted to the City with payment request). Risk of
loss shall be borne by, and insurance must be provided by the Contractor while in storage, transit and
use during construction. At 75% completion of the Contract, by dollar value, and at the option of the
City, retainage may be reduced to 5% plus an additional amount as detailed in Section 6.06 below for
any part of the Work that is defective or non -conforming and in Section 6.02 above for anticipated
liquidated damages.
(1) Amounts reflected in Change Orders may be included in Payment Requests to the
extent they are not in dispute
(2) Each Payment Request shall be signed by the Contractor and shall constitute the
Contractor's representation that the quantity of Work has reached the level for which
payment is requested, that the Work has been properly installed or performed in strict
compliance with the Contract, and that the Contractor knows of no reason why payment
should not be made as requested.
(3) Thereafter, the City shall review the Payment Request and may also review the Work at
the Project site or elsewhere to determine whether the quantity and quality of the Work is
as represented in the Payment Request and is as required by the Contract. The amount
of each such payment shall be the amount approved for payment by the City less such
amounts, if any, otherwise owing by the Contractor to the City or which the City shall
have the right to withhold as authorized by the Contract. The City shall, within seven
days after receipt of the Contractor's Application for Payment, issue to the Contractor a
written acknowledgement of receipt of the Contractor's Application for Payment
indicating the amount the City has determined to be properly due and, if applicable, the
reasons for withholding payment in whole or in part. Approval of the Contractor's
Payment Requests shall not preclude the City from the exercise of any of its rights as set
forth in Section 6.06 below.
The submission by the Contractor of a Payment Request also constitutes an affirmative representation
and warranty that all Work for which the City has previously paid is free and clear of any lien, claim, or
other encumbrance of any person/entity whatsoever. As a condition precedent to payment, the
Contractor shall, if required by the City, also furnish to the City properly executed waivers of lien or
claim, in a form acceptable to the City, from all subcontractors, materialmen, suppliers or others having
lien or claim rights, wherein said subcontractors, materialmen, suppliers or others having lien or claim
rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests except for the
immediately previous Payment Request (thus allowing an approximately 60 day time frame for receipt
of these waivers) and waive and relinquish any liens, lien rights or other claims relating to the Project
site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request
submitted, title to all Work included in such payment shall be vested in the City, and Contractor is solely
Design Build Contract Page 7
responsible for ensuring equitable distribution and timely delivery of funds to Contractor's employees
and subcontractors.
y
6.03 When payment is received from the City, the Contractor shall within the time permitted by
applicable state law or seven calendar days (whichever is longer) pay all subcontractors,
material men, laborers and suppliers the amounts they are due for the Work covered by such
payment. In the event the City becomes informed that the Contractor has not paid a
subcontractor pursuant to the terms of the Contractor's applicable agreement with the
subcontractor (which may include terms that permit non-payment of amounts for which
Contractor has not been paid by City), material man, laborer, or supplier as provided herein, the
City shall have the right, but not the duty, to issue future checks and payment to the Contractor
of amounts otherwise due hereunder naming the Contractor and any such subcontractor,
material man, laborer, or supplier as joint payees. The City shall notify the Contractor of its
intent to implement such a procedure and will give the Contractor a reasonable period to cure
any such failure prior to implementing the procedure. Such joint -check procedure, if employed
by the City, shall create no rights in favor of any person or entity beyond the right of the named
payees to payment of the check as a co -payee and shall not be deemed to commit the City to
repeat the procedure in the future.
6.04 Neither payment to the Contractor, full or partial utilization of the Project for any purpose by the
City, nor any other act or omission by the City shall be interpreted or construed as an
acceptance of any Work of the Contractor not strictly in compliance with the Contract.
6.06 After written notice to the Contractor and a reasonable opportunity to cure (which period shall
not exceed 30 days unless agreed to in writing by the City), the City shall have the right to
refuse to make payment, in whole or in part, and, if necessary, may demand the return of a
portion or all (to the extent reasonably necessary to protect itself) of the amount previously paid
to the Contractor (and Contractor shall pay the City such amount) due to:
(1) The quality of a portion, or all, of the Contractor's Work not being in accordance with the
requirements of the Contract;
(2) The quantity of the Contractor's Work not being as represented in the Contractor's
Payment Request, or otherwise;
(3) The Contractor's rate of progress being such that, in the reasonable opinion of the City,
Substantial Completion may be inexcusably delayed;
(4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City,
to pay Contractor's Project -related obligations including, but not limited to,
subcontractors, laborers and material and equipment suppliers;
(5) Claims made, or likely to be made, against the City or its property for which the
Contractor or its agents or subcontractors or others for whom it is responsible are, or
reasonably appear to be at fault unless security acceptable to City has been delivered by
the Contractor;
(6) . Loss caused by the Contractor;
(7) The Contractor's failure or refusal to perform any of its obligations to the City, after
written notice and a reasonable opportunity to cure as set forth above.
Design Build Contract Page s
If at any time after Contract completion or termination, circumstances as described in
Subsections (4) or (5), above, occur or are discovered, the City's right to demand payment or
t`
security from Contractor in an amount sufficient to protect City and its property from such claims
shall survive termination of this Contract. When the said reasons for withholding payment are
removed, payment will be made for amounts previously withheld. If for reasons other than those
enumerated in this section 6.05, the City does not issue a payment within the time period
required by Section 6.02 above, then the Contractor may, upon seven additional days' written
notice to the City, stop the Work until payment of the amount owing has been received. The
Contract Time shall be extended appropriately and the Contract Price shall be increased by the
amount of the Contractor's reasonable costs of shutdown, delay and start-up, plus interest as
provided for in the Contract.
6.06 When the Contractor believes that Substantial Completion has been achieved, the Contractor
shall notify the City in writing and shall furnish a listing of those matters, if any, yet to be
finished. The City will thereupon conduct a site review to confirm that the Project is in fact
substantially complete. If the City, through its review, finds that the Contractor's Work is not
substantially complete, and if required to repeat all, or any portion, of such review, the
Contractor shall bear the cost of such repeat site review(s), which cost may be deducted by the
City from any payment then or thereafter due to the Contractor. Guarantees and equipment
warranties required by the Contract shall commence on the date of Substantial Completion.
Upon Substantial Completion, the City shall pay the Contractor an amount sufficient to increase
total payments to the Contractor to 100% of the Contract Price less any amounts attributable to
damages, liquidated or otherwise, and less 150% of the costs, as reasonably determined by the
City, incurred for the City to complete any incomplete Work, correcting and bringing into
conformance all defective and nonconforming Work, and handling any outstanding or
threatened claims. Such a calculation by the City of costs for completing all incomplete Work,
correcting and bringing into conformance all defective and nonconforming Work, and handling
any outstanding or threatened claims shall not bar the City from exercising its stated rights
elsewhere in the Contract, or otherwise as provided by law for any incomplete, defective or
nonconforming Work or claims that are discovered by the City after the date of making such
calculation or after the date of any partial or final payment, whether or not such incomplete,
defective or nonconforming Work or claims were obvious or should have been discovered
earlier.
6.07 When the Project is finally complete and the Contractor is ready for a final review, it shall notify
the City thereof in writing. Thereupon, the City will perform a final site review of the Project. If
the City concurs that the Project is complete in full accordance with the Contract and that the
Contractor has performed all of its obligations to the City hereunder, the Contractor will furnish a
final Approval for Payment to the City certifying to the City that the Project is complete and the
Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld
pursuant to the Contract. If the City is unable to issue its final Approval for Payment for any
reason relating to the quality of the Project not meeting the requirements of the Contract and is
required to repeat its final review of the Project, the Contractor shall bear the cost of such repeat
review(s), which costs may be deducted by the City from the Contractor's final payment.
6.08 The City shall, subject to its rights set forth in Section 6.06 above and elsewhere in the
Contract, make final payment of all sums due the Contractor within 30 calendar days of the final
Approval for Payment, with the exception of items in dispute or concerning which the City has
exercised any of its rights to investigate or remove. Payments due from City and unpaid to
Contractor (whether progress payments or final payment) and which are subject to a dispute or
rights of City investigation or removal shall accrue no interest; but once those issues are
resolved, Contractor may provide the City written notice that interest shall accrue at an annual
rate of 2 % (two percent), pro -rated on a monthly basis, beginning 15 calendar days following
Design Build Contract Page 9
receipt of such notice by the City. Failure to provide such notice constitutes Contractor's waiver
of rights to payment for accrued interest associated with this Agreement.
Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY
7.01 To the best of its knowledge, the City has furnished to the Contractor, prior to the execution of
this Contract Agreement, all written and tangible material in its possession relevant to the
conditions at the site of the Project. Such written and tangible material has been furnished to the
Contractor only in order to make complete disclosure of such material as being in the
possession of the City and for no other purpose. By furnishing such material, the City does not
represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at
all.
7.02 Differing site conditions. The Contractor shall promptly, and before such conditions are
disturbed, notify the City in writing of. (1) subsurface or latent physical conditions at the site
differing materially from those indicated in the Contract, or (2) unknown physical conditions at
the site, of an unusual nature, differing materially from those ordinarily encountered and
generally recognized as inherent in Work of the character provided for in this Contract. The City
shall investigate the conditions, and if it finds that such conditions do materially so differ and
cause an increase or decrease in the Contractor's cost of, or the time required for, performance
of any part of the Work under the Contract, whether or not changed as a result of such
conditions, an adjustment shall be made, through negotiation and mutual agreement, and the
Contract modified in writing accordingly.
Section 8. CEASE AND DESIST ORDER/C1TY'S RIGHT TO PERFORM WORK
8.01 in the event the Contractor fails or refuses to perform the Work, or any separable part thereof,
as required herein, or with the diligence that will ensure its proper, timely completion in
accordance with the contract documents, the City may instruct the Contractor, by written notice,
to cease and desist further Work, in whole or in part, or to correct deficient Work. Upon receipt
of such instruction, the Contractor shall immediately cease and desist, or proceed, as instructed
by the City. In the event the City issues such instructions to cease and desist, the Contractor
must, within seven calendar days of receipt of the City's instructions, provide a written, verified
plan to eliminate or correct the cause of the City's order, which plan appears to the City to be
reasonable, actually attainable and In good faith. In the event that the Contractor fails and/or
refuses to provide such a plan or diligently execute an approved plan, then the City shall have
the right, but not the obligation, to carry out the Work, or any portion thereof, with its own forces,
or with the forces of another contractor, and the Contractor shall be fully responsible and liable
for the costs of the City performing such Work, which costs may be withheld from amounts due
to the Contractor from the City. The rights set forth herein are in addition to, and without
prejudice to, any other rights or remedies the City may have against the Contractor. If Work
completed by the City or other contractor affects, relates to, or is to be attached onto or
extended by later Work of the Contractor, the Contractor shall, prior to proceeding with the later
Work, and to the extent visible, report any apparent defects or variance from the Contract
requirements which would render the Contractor's later Work not in compliance with the
Contract requirements or defective or not in compliance with warranties or other obligations of
the Contractor hereunder.
8.02 The provisions of this section shall be in addition to the City's ability to remove portions of the
Work from the Contract and complete it separately.
r
Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
Design Build Contract Page 10
In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in the
Contract Documents, the Contractor shall have and perform the following duties, obligations and
f responsibilities to the City:
9.01 Reference is hereby made to the continuing duties set forth in Section 3.08 above, which are
by reference hereby incorporated in this Section 9.01. The Contractor shall not perform any
Work without adequate plans and specifications, or without, as appropriate, approved shop
drawings, or other submittals. If the Contractor performs Work knowing or believing, or if
through exercise of reasonable diligence it should have known that such Work involves an error,
inconsistency or omission in the Contract without first providing written notice to the City, the
Contractor shall be responsible for such Work and shall correct same bearing the costs set forth
in Section 3.08 above and other applicable provisions of this Contract Agreement.
9.02 All Work shall strictly conform to the requirements of the Contract. To that end, the Contractor
shall be solely responsible for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work, unless otherwise
specified in the Contract Documents. Contractor shall be solely responsible for the selection,
supervision, training, and quality of performance of persons ensuring that the final Project shall
fully comply with all applicable disability access standards, including but not necessarily limited
to the current requirements of the Americans with Disabilities Act of 1990 ("ADA"), as amended
at the time any of the Work is performed and the current requirements Texas Accessibility
Standards ("TAS"), as amended at the time any of the Work is performed.
9.03 The Work shall be strictly supervised, the Contractor bearing full responsibility for any and all
acts, errors or omissions of those engaged in the Work on behalf of the Contractor, including,
but not limited to, all subcontractors and their employees. The Contractor shall maintain an on -
site superintendent while any portion of the Work is being performed. The Contractor shall
operate exclusively in the capacity of the City's independent contractor as to all Work it performs
under the Contract, and not as an agent, employee, or representative of the City. All licensed
engineers or registered architects are required to perform their respective services relating to
the Work with the professional skill and care ordinarily provided by competent engineers or
architects practicing under the same or similar circumstances and professional license, and as
expeditiously as is prudent considering the ordinary professional skill and care of a competent
engineer or architect.
9.04 The Contractor hereby warrants that all laborers furnished under the Contract shall be qualified
and competent to perform the tasks undertaken, that all materials and equipment provided shall
be new (unless otherwise specified) and of high quality unless otherwise required or permitted
by the Contract, that the completed Work will be complete, of high quality, without defects not
inherent in the Project specifications, or otherwise required by law, and that the Work will
conform to the requirements of the Contract Documents, and that all Work strictly complies with
the requirements of the Contract. Any Work not strictly complying with the requirements of the
Contract shall constitute a breach of the Contractor's warranty. The Contractor's warranty
excludes remedy for damage or defect caused by abuse (use of the system or any components
in a way not reasonably anticipated or expected), modifications executed by any party other
than Contractor, improper or insufficient maintenance (for example, but not as a limitation,
maintenance performed by uncertified parties or parties not approved by the manufacturer of
the applicable component), improper operation or normal (reasonably anticipated or expected)
wear and tear and normal usage (in other words, systems, components and materials are not
expected to operate as "brand new" as time goes by).
Design Build Contract Page 11
9.06 The Contractor will be responsible for acquiring all required permit(s)—except as specifically
stated in Section 22.01 below —and calling for all required or routine inspections. The
Contractor will cooperate with and abide by the decision of inspectors having jurisdiction.
Should the Contractor have a dispute with any inspector or entity having jurisdiction, the
Contractor shall promptly notify the City Manager or the City Manager's designee. The
Contractor shall comply with all legal requirements applicable to the Work.
9.06 The Contractor shall employ and maintain at the Project site only competent, qualified full-time
supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are
as follows:
NAME FUNCTION
If at any time the City reasonably determines that any employee of the Contractor
is not properly performing the Work in the best interest of the City or the Project, or
is hindering the progress of the Work, or is otherwise objectionable, the City shall
so notify the Contractor, which shall replace the employee as soon as possible, at
no increased cost to the City.
9.07 The Contractor must submit to the City the Contractor's schedule for completing the Work prior
to submittal of the first application for payment. The City will not review any payment request
until such schedule has been submitted and approved. Such schedule shall be in a form as
specified in the Contract or which shall have been approved by the City Manager or the City
Manager's designee, and which shall provide for expeditious and practicable construction of the
Project. The Contractor's schedule shall be updated no less frequently than monthly (unless the
parties otherwise agree in writing) and shall be updated to reflect conditions encountered from
time to time and shall apply to the total project. Each such revision shall be furnished to the City.
Strict compliance with the requirements of this Section 9.07 shall be a condition precedent to
payment to the Contractor.
9.08 The Contractor shall keep an updated copy of the Contract Documents at the site. Additionally,
the Contractor shall keep a copy of approved shop drawings and other submittals. All of these
items shall be available to the City during all regular business hours.
9.09 Shop drawings and other such submittals from the Contractor do not constitute a part of the
Contract. The Contractor shall not do any Work requiring shop drawings or other submittals
unless such shall have been approved in writing by the City or as required by the Contract
Documents. All Work requiring approved shop drawings or other submittals shall be done in
strict compliance with such approved documents or Contract requirements. However, approval
by the City shall not be evidence that Work installed pursuant thereto conforms with the
requirements of the Contract and shall not relieve the Contractor of responsibility for deviations
from the Contract unless the City has been specifically informed of the deviation by a writing
incorporated in the submittals and has approved the deviation in writing.
Design Build Contract Page 12
The delivery of submittals shall constitute a representation by the Contractor that it has verified
that the submittals meet the requirements of the Contract, or will do so, including field
ymeasurements, materials, and field construction criteria related thereto.
The City shall have no duty to review partial submittals or incomplete submittals. The Contractor
shall have the duty to carefully review, inspect, examine and provide the applicable required
certifications (including any necessary physical stamps or "wet" signatures reasonably
requested by the City) for any and all submittals before submission of same to the City. When
the Contract requires professional design services or certifications related to systems, materials
or equipment, or when the Contractor in its discretion provides such design services or
certifications through a separate contractor, the Contractor shall cause professional design
services or certifications to be provided by a properly licensed design 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 professionals, if prepared by others,
shall bear such design professional's written approval. The City shall be entitled to rely upon the
adequacy, accuracy and completeness of the services, certifications or approvals performed by
such design professionals.
9.10 The Contractor shall maintain the Project site and adjacent areas affected by its Work and/or
the acts of its employees, materialmen and subcontractors in a reasonably clean condition
during performance of the Work. Upon substantial completion, the Contractor shall thoroughly
clean the Project site of all debris, trash and excess materials or equipment. If the Contractor
fails to do so, the City may complete the cleanup, by its own forces or by separate contract, and
shall be entitled to charge the Contractor for same through the collection or withholding of funds
through the mechanisms provided elsewhere in this Contract Agreement or as otherwise
permitted by law.
9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to
enter upon the Project site and any offsite lay down areas, safety permitting, and to review or
inspect the Work and any materials on any such site, without formality or other procedure.
9.12 The Contractor recognizes that the City may enter into other contracts to perform Work relating
to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its
forces reasonably accommodate the forces of the City and other contractors hired by the City.
The Contractor shall coordinate its schedule with the Work of other contractors. if the Contractor
claims that delay or damage results from these actions of the City, it shall promptly submit a
claim as provided herein.
9.13 Protection of persons and property.
(1) It shall be the responsibility of the Contractor to initiate, continue and supervise all safety
programs and precautions in the performance of the terms of the Contract. The
Contractor shall take reasonable precautions for the safety of, and shall provide
reasonable protection to prevent damage, injury or loss to its employees, subcontractors'
employees, employees of the City and members of the public, the Work itself and
unassembled components thereof, and other property at the site or adjacent thereto. As
part of the Contractor's obligations hereunder, the Contractor shall erect and maintain all
necessary and prudent safeguards, barriers, signs, warnings, etc.
(2) With notice to the City, the Contractor shall promptly remedy loss or damage to the Work
or any person or property described herein to the extent caused in whole or in part by
the acts of the Contractor or any of Contractor's agents (inclusive of all subcontractors,
Design Build Contract Page 13
sub -subcontractors or materialmen) except damage or loss attributable to acts or
omissions of the persons subject to City control. This obligation shall be in addition to the
��- requirements of Section 10 herein. The City may direct the Contractor to remedy known
s
violations of applicable laws, rules, regulations, and interpretations related to safety
when and if observed on the site. However, through exercising this authority the City
shall not incur any obligations to monitor, initiate, continue, or supervise safety programs
and precautions such to diminish the Contractor's primary role in same. The City shall
have the right to report suspected safety violations to the Occupational Safety and
Health Administration (OSHA) or other appropriate authorities.
(3) The Contractor shall promptly notify the City upon discovery of any unidentified material
which Contractor reasonably believes to be asbestos, lead, PCB, or other hazardous
material, and shall immediately stop Work in the affected area of the Project. The
Contractor shall not be responsible for removal or other Work with regard to such
hazardous material unless otherwise agreed between the City and the Contractor.
Contractor has the right to stop Work due to the discovery of hazardous materials until
they have been removed or rendered harmless. The Contract time shall be extended
and the Contract sum shall be increased in the amount of the Contractor's reasonable
additional costs of shutdown, delay and start-ups, which shall be accomplished as
provided in Section 13 below. Work will resume in the affected area of the Project
immediately after such time as the hazardous material has been removed or rendered
harmless, as certified by an industrial hygienist to be engaged by the City.
9.14 The Contractor warrants to the City that materials and equipment furnished under the Contract
are of good quality and new unless otherwise required or permitted under the Contract
Documents, that the Work will be free from defects not inherent in the Project specifications, or
otherwise required by law, and that the Work will conform to the requirements of the Contract
Documents. Work not conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective. The Contractor's warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the Contractor,
improper or insufficient maintenance not the fault of the Contractor, improper operation not the
fault of the Contractor, or normal wear and tear and normal usage. If required by the City, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.
Section 10. INDEMNITY
Except for expenses or liabilities ansing from the negligence of the City, the Contractor hereby
expressly agrees to indemnify and hold the City harmless against any and all expenses and
liabilities arising out of the performance or default of the Contract as follows:_
10.01 Contractor shall indemnify. -and hold harmless to the maximum extent permitted by law
City and its officials officers agents, employees, representatives, and consultants from
and against any and all liability. damages, losses, including personal iniury, accidental
death or property damage, and costs (including reasonable attorney's fees and related
expenses and expert fees and related expenses incurred in an matter includin a
proceeding to enforce this Section 10) to the extent caused by the negligence,
recklessness or wrongful conduct of the Contractor and persons employed by or utilized
by the Contractor in Contractor's performance of this Contract Agreement.
10.02 Contractor's obligation to indemnify, defend and hold harmless shall remain in effect and
shall be binding upon Contractor whether such iniury or damage shall accrue, or *may be
discovered, before or after termination of the Contract.
Design Build Contract Page 14
10.03 Contractor's failure to comply with this section's provisions shall constitute a material
breach upon which City may immediately terminate or suspend this Contract Agreement.
Section 11. CLAIMS BY THE CONTRACTOR
Claims by the Contractor against the City, other than for time extensions covered by Section 6 hereof,
are subject to the following terms and conditions:
11.01 All Contractor claims against the City shall be initiated by a written claim submitted to the City.
Notice of such claim shall be received by the City no later than either 21 calendar days after the
event, or 21 calendar days after the first appearance of the circumstances causing the claim,
whichever is sooner, and same shall set forth in detail all known facts and circumstances
supporting the claim. All known costs associated with any claim upon which notice has been
filed must be submitted in writing to the City within 30 calendar days after notice has been
received or such claims shall be deemed waived by the Contractor.
11.02 The Contractor and the City shall continue their performance hereunder regardless of the
existence of any claims submitted by the Contractor including claims set forth in Section f
hereof.
11.03 In the event the Contractor discovers previously concealed and unknown site conditions which
are materially at variance from those typically and ordinarily encountered in the general
geographical location of the Project, the Contract Price may, with the approval of the City, be
modified, either upward or downward, upon the written notice of claim made by either party
within 10 calendar days after the first appearance to such party of the circumstances. All known
costs must be submitted within 30 calendar days after such notice is received by the City,
unless extended by written agreement of the parties or such claims shall be deemed waived by
the Contractor. As a condition precedent to the City having any liability to the Contractor due to
concealed and unknown conditions, the Contractor must give the City written notice of, and an
opportunity to observe, such condition prior to disturbing it. Provided however, that the City
recognizes some disturbance of the conditions may have occurred in the discovery of the
condition, and this type of "disturbance" does not waive or invalidate the City's liability
obligation. The failure by the Contractor to timely give the written notice and make the claim as
provided by this Section 11.03 and as required elsewhere under the Contract shall constitute a
waiver by the Contractor of any rights arising out of or relating to such concealed and unknown
condition. In an emergency affecting safety of persons or property, the Contractor shall act, at
the Contractor's discretion, to prevent or mitigate threatened damage, injury or loss. Additional
compensation or extension of time claimed by the Contractor on account of an emergency shall
be determined as provided in Section 13.
11.04 In the event the Contractor seeks to make a claim for an increase in the Contract Price, as a
condition precedent to any liability of the City therefor, unless emergency conditions exist, the
Contractor shall strictly comply with the requirements of this Section 11 and such claim shall be
made by the Contractor before proceeding to execute any Work for which a claim is made.
Failure to comply with this condition precedent shall constitute a waiver by the Contractor of any
claim for additional compensation.
11.05 In connection with any claim by the Contractor against the City that would result in
compensation in excess of the Contract Price, any liability of the City for the Contractor's cost in
this regard shall be limited to those cost categories set forth in Section 13.07 below.
Design Build Contract Page 15
Section 12. SUBCONTRACTORS
j 12.01 Prior to execution of the Contract, the Contractor shall have identified to the City in writing,
those parties to be used as subcontractors on the Project. Any changes to this list at any time
shall be subject to the prior approval of the City. The City shall, in writing, state any objections
the City may have to one or more of such subcontractors. The Contractor shall not enter into a
subcontract with an intended subcontractor to whom the City objects. If at any time the City
objects to a subcontractor, the Contractor shall solicit proposals from potential replacements
and shall submit the three lowest responsible proposals to the City, along with the Contractor's
proposed choice as replacement. If the approved replacement subcontractor's cost is verified to
be higher than the removed subcontractor, the excess shall be added to the Contract Price,
unless the subcontractor in question has to be removed due to a default, or deficient
performance.
If the approved replacement subcontractor's cost is lower than the removed subcontractor, the
difference shall be deducted from the Contract Price. Subcontractor markups shall be limited to
those listed in Section 13.07 below.
All subcontracts shall afford the Contractor rights against the subcontractor which correspond to
those rights afforded to the City against the Contractor herein, including those rights of Contract
termination as set forth herein below.
12.02 Each and every subcontract related to the Project is hereby assigned by the Contractor to the
City, contingent upon the termination of the Contract for default or convenience as provided
herein, and only as to those subcontracts which the City accepts in writing directed to the
Contractor. This contingent assignment is subject to the prior rights of any surety obligated
under a bond related to the Contract. This contingent assignment will operate prospectively from
the effective date of assignment and will not obligate the City to any liabilities existing on the
effective date of the assignment, or arising from events, acts, failures to act, facts or
circumstances existing prior to the effective date of the assignment. The contracts subject to this
contingent assignment shall also be further assignable by the City, at the City's sole option. The
Contractor shall bear the responsibility of notifying subcontractors of this contingent assignment
and including it in all subcontracts in connection with the Project.
Section 13. CHANGE ORDERS
13.01 The City Manager or the City Manager's express designee shall be the sole authorized
representative of the City. Other than in matters of public safety or in time of emergency
management, the Contractor shall not take direction or act upon information from any City
personnel other than the City Manager's expressly authorized designees).
13.02 One or more changes to the Work within the general scope of the Contract, may be ordered by
Change Order. The City may also issue written directions for minor changes in the Work and
may issue Construction Change Directives, as set forth below. The Contractor shall proceed
with any such changes or Construction Change Directives without delay and in a diligent
manner, and same shall be accomplished in strict accordance with the terms and conditions set
forth herein.
13.03 "Change Order" shall mean a written order directed to the Contractor and executed by the City
and by Contractor after execution of the Contract, directing a change in the Work. A Change
Order may include a change in the Contract Price, (other than a change attributable to damages
for delay as provided in Section 6 hereof), or the time for the Contractor's performance, or any
Design Build Contract Page 16
combination thereof. Where there is a lack of total agreement on the terms of a Change Order
or insufficient time to execute a bilateral change, the City may also direct a change in the Work
in the form of a Construction Change Directive, which will set forth the change in the Work and
i the change, if any, in the Contract Price or time for performance, for subsequent inclusion in a
Change Order; Construction Change Directives shall include a not -to -exceed preliminary price,
against which the Contractor may begin billing (subject to the requirements for pay applications
elsewhere herein) as the Work is performed.
(1) The Contractor shall furnish a price breakdown, itemized as required and within the time
specified by the City, with any proposal for a contract modification.
(2) The price breakdown
(a) . must include sufficient detail to permit an analysis of all costs for material, labor,
equipment and subcontracts, and
(b) must cover all Work involved in the modification, whether the Work was deleted,
added or changed.
(3) The Contractor shall provide similar price breakdowns to support any amounts claimed
for subcontracts.
(4) The Contractor's proposal shall include a complete justification for any time
extension proposed.
13.04 Any change in the Contract Price resulting from a Change Order shall be determined as follows:
(1) By mutual agreement between the City and the Contractor as evidenced by (a) the
change in the Contract Price being set forth in the Change Order, (b) such change in the
Contract Price, together with any conditions or requirements relating thereto, being
initialed by both parties and (c) the Contractor's execution of the Change Order; or,
(2) If no mutual agreement occurs between the City and the Contractor, the change in the
Contract Price, if any, shall be derived by determining the reasonable actual costs
incurred or savings achieved, resulting from revisions in the Work. Such reasonable
actual costs or savings shall include a component for direct job site overhead and profit
but shall not include home -office overhead or other indirect costs or components. The
calculation of actual costs shall conform to the markup schedule in Section 13.07 below.
Any such costs or savings shall be documented in the format, and with such content and
detail as the City requires.
The Contractor shall promptly submit such documentation and other supporting materials as the
City may require in evaluating the actual costs incurred or to be incurred.
13.06 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the
Contractor's agreement to the ordered changes in the Work, the Contract as thus amended, the
Contract Price and the time for performance by the Contractor, regardless of the nature, amount
or extent of the changes. The Contractor, by executing the Change Order, waives and forever
releases any claim against the City for additional time or compensation for matters relating to,
arising out of, or resulting from the Work included within or affected by the executed Change
Order of which the Contractor knew or should have known.
Design Build Contract Page 17
13.06 The Contractor shall notify and obtain the consent and approval of the Contractor's surety with
reference to all Change Orders if such notice, consent or approval are required by the City, the
' Contractor's surety or by law. The Contractor's execution of the Change order shall constitute
is
the Contractor's warranty to the City that the surety has been notified of, and consents to, such
Change Order and the surety shall be conclusively deemed to have been notified of such
Change Order and to have expressly consented thereto.
13.07 For the purpose of Change Orders, the following definitions of terms and other restrictions
apply:
Contractor's or Subcontractor's Materials shall include the cost of materials, sales tax,
and the cost of all transport. The cost of items listed shall be directly related to the
Change Order. Indirect costs not specifically related to the Change Order shall not be
considered.
Contractor's or Subcontractor's Direct Labor Cost shall be limited to the hourly rate of
directly involved workmen, employer contributions towards company standard benefits,
pensions, unemployment or social security (if any), and employer costs for paid sick and
annual leave.
Contractor's or Subcontractor's Overhead shall include license fees, bond premiums,
supervision, wages of timekeepers and clerks, incidentals, home and field office
expense, and vehicle expense directly related to the Project, and all other direct Project
expenses not included in the Contractor's materials, direct labor, and equipment costs.
The allowance for Overhead and Profit shall be limited to the following schedule:
1. For the Contractor, for any Work performed by the Contractor's own forces, 10%
of the Subtotal of Costs to the Contractor.
2. For the Contractor, for any Work performed by its Subcontractor, 5% of the
amount due the Subcontractor.
3. For each Subcontractor or Sub -subcontractor involved, for any Work performed
by their own forces, 10% of their materials and direct labor costs.
4. For each Subcontractor, for Work performed by its Sub-subcontractor(s), 5% of
the amount due the Sub -subcontractor.
For Change Orders, the total cost or credit to the City shall be based on the following
schedule:
Contractor's Materials Cost
+ Contractor's Direct Labor Costs
+ Contractor's Equipment Costs (includes owned/rental equipment)2
2 Owned Eguipmen For equipment owned by the Contractor, actually used in Change Order work including sales tax, or any
related business entity, regardless of whether Contractor leases such equipment from the related business entity, the cost
shall be the lesser of (i) the Contractor's actual ownership cost, or (ii) 85% of the applicable ownership cost listed In the most
recent edition of the Contractor's Equipment Cost Guide, published by Dataquest.
Design Build Contract Page 15
+ Applicable Subcontractor Costs
=Subtotal of Costs to the Contractor
+ Contractor's Overhead and Profit
=Total Cost or Credit to the City
13.08 Nothing Contained in this section shall be deemed to contradict or limit the terms of Section
6.06 above.
Section 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK
14.01 In the event that the Contractor covers, conceals or obscures its Work in violation of the
Contract or in violation of an instruction from the City, such Work shall be uncovered and
displayed for review by the City and/or its consultants upon request, and shall be reworked at no
cost in time or money to the City.
14.02 If any of the Work is covered, concealed or obscured in a manner not covered by Section 14.01
above, it shall, if directed by the City, be uncovered and displayed for the City and/or its
consultants. If the uncovered Work conforms strictly with the Contract, the costs incurred by the
Contractor to uncover and subsequently, replace such Work shall be borne by the City.
Otherwise, such costs shall be borne by the Contractor.
14.03 The Contractor shall, at no cost in time or money to the City, correct Work rejected by the City
as defective or failing to conform to the Contract. Additionally, the Contractor shall reimburse the
City for all testing, review, inspections and other expenses incurred as a result thereof.
j k 14.06 In addition to its warranty obligations set forth elsewhere in this Contract Agreement and any
manufacturer's warranties provided on the Project, and in addition to other remedies provided
herein or by law to the City, the Contractor shall be specifically obligated to promptly correct any
and all defective or nonconforming Work, whether obvious or after -discovered, for a period of 12
months following Substantial Completion upon written direction from the City.
14.06 The City may, but shall in no event be required to, choose to accept defective or nonconforming
Work. In such event, the Contract Price shall be reduced by the greater of (1) the reasonable
costs of removing and correcting the defective or nonconforming Work, or (2) the difference
between the fair market value of the Project as constructed and the fair market value of the
Project had it not been constructed in such a manner as to include defective or nonconforming
Work. If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate
the City for the acceptance of defective or nonconforming Work, the Contractor shall, upon
written demand from the City, accompanied by a detailed accounting of the costs to finish the
defective or non -conforming Work, pay the City such costs. The Contractor shall have an
opportunity to correct any defect or non-conformance prior to the City taking the above actions.
The Contractor, upon written notice of any defect or non-conformance, shall have 10 calendar
days to make corrections, unless the City agrees that the correction will reasonably require
more than 10 calendar days to correct.
Section 16. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE
Third P ental Eauipment For equipment actually rented by the Contractor, actually used in Change Order work
Including sales tax, from an unrelated third party, the cost shall be the lesser of (I) the Contractor's actual rental cost, or (cH)
85% of the applicable equipment rates based on the most recent edition of the Rental Rate Bluebook for Construction
published by Dataquest. A reasonable rental cost shall be allowed as determined by the City Manager or the City Manager's
designee when machinery and construction equipment not so listed is required.
Design Build Contract Page 19
16.01 In addition to the City's rights under Section 8 and elsewhere in this Contract Agreement, the
City shall have the right at any time to direct the Contractor to suspend its performance, or any
designated part thereof when in the interests of the City. If any such suspension is directed by
the City, the Contractor shall immediately comply with same.
16.02 In the event the City directs a suspension of performance under this section, through no fault of
the Contractor, if the suspension is lifted other than by Termination, the City shall pay the
Contractor as full compensation for such suspension and for the Contractor's ordinary and
reasonable costs, actually incurred and paid, of:
(1 } demobilization and remobiiization, including such justifiable costs paid to subcontractors
(cost categories and markups limited to those set forth in Section 13.07 above);
(2) preserving and protecting Work in place;
(3) approved storage of materials or equipment purchased for the Project, including
insurance thereon; and
(4) substantiated extended field office overhead but no home -office overhead.
15.03 Following notice and a reasonable time to cure provided to Contractor and its surety, the City
may order suspension of the Work in whole or in part for such time as deemed necessary
because of the failure of the Contractor to comply with any of the requirements of this Contract
Agreement, provided that such failure to comply is likely to have a negative impact on the
project quality or completion time, and the Contract Agreement's completion date shall not be
extended on account of any such suspension of Work, except to the extent it is later determined
that City's determination to suspend Work was not reasonable, When the City orders any
suspension of the Work under this Section 16.03, the Contractor shall not be entitled to any
payment for Work which the Contractor performs after notice of suspension and/or during the
suspension period and shall not be entitled to any costs or damages resulting from such
suspension.
16.04 The City's rights under this Section 15 shall be in addition to those contained elsewhere in the
Contract or provided by law.
16.05 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive
days through no act or fault of the Contractor, its Subcontractors or their agents or employees or
any other persons or entities performing portions of the Work under direct or indirect contract
with the Contractor, for any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires
all Work to be stopped;
.2 an act of government, such as a declaration of national emergency which requires all Work
to be stopped;
.3 the City has failed to make payment to the Contractor in accordance with the Contract
Documents.
The Contractor may terminate the Contract if, through no act or fault of the Contractor, its
Subcontractors or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions,
delays or interruptions of the entire Work by the City, constitute in the aggregate more than 100
percent of the total number of days scheduled for completion, or 120 days in any 365-day
period, whichever is less. If one of the reasons described in in this Section 15.05 exists, the
Design Build Contract Page 20
Contractor may, upon seven days' written notice to the City, terminate the Contract and recover
_ from the City payment for Work executed and for proven loss with respect to materials,
equipment, tools, and construction equipment and machinery, including reasonable overhead,
profit and damages.
For purposes of subsections 15.05.1 and 15.05.2, determination of whether an event "requires
all Work to be stopped" shall be based on an objective comparison between the activities
constituting the Work and the legal effect of the order or act at issue. An order or act which
increases Contractor's expense or imposes other burdens to Contractor (e.g., an order requiring
masks or other PPE due to COVID-19 concerns), but still provides lawful means for Contractor
to continue carrying out the Work, shall not be a basis for termination of the Contract under this
section unless and until Contractor and City have engaged in good faith negotiations regarding
suitable Change Orders or other contract amendments to address the issues. If such
negotiations cannot resolve the issues within 90 days of stoppage of the Work in response to an
event described in 15.05.1 or 15.05.2, Contractor will thereafter be entitled to terminate the
Contract in accordance with this paragraph.
Section 16. TERMINATION BY THE CITY
The City may terminate the Contract in accordance with the following terms and conditions:
16.01 Termination for Convenience. The City may, when in the interests of the City, terminate
performance under the Contract by the Contractor, in whole or in part, for the convenience of
the City. The City shall give written notice of such termination to the Contractor specifying when
termination becomes effective. The Contractor shall incur no further obligations in connection
with the Work so terminated, other than warranties and guarantees for completed Work and
installed equipment, and the Contractor shall stop Work when such termination becomes
effective. The Contractor shall also terminate outstanding orders and subcontracts for the
affected Work. The Contractor shall settle the liabilities and claims arising out of the termination
of subcontracts and orders. The City may direct the Contractor to assign the Contractors right,
title and interest under termination orders or subcontracts to the City or its designee. The
Contractor shall transfer title and deliver to the City such completed or partially completed Work
and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has
in its possession or control. When terminated for convenience, the Contractor shall be
compensated as follows:
(1) The Contractor shall submit a termination claim to the City specifying the amounts due
because of the termination for convenience together with costs, pricing or other data
required by the City. if the Contractor fails to file a termination claim within three months
from the effective date of termination, the City shall pay the Contractor, an amount
derived in accordance with subsection (3) below.
(2) The City and the Contractor may agree to the compensation, if any, due to the
Contractor hereunder.
(3) Absent agreement to the amount due to the Contractor, the City shall pay the Contractor
the following amounts:
(a) Contract costs for labor, materials, equipment and other services actually and
satisfactorily performed as required under the Contract, including but not limited
to satisfaction of all conditions and requirements for City acceptance of tendered
Y
delivery of goods or services;
Design Build Contract Page 21
(b) Reasonable costs incurred in preparing to perform and in performing the
terminated portion of the Work, and in terminating the Contractor's performance,
>, plus a fair and reasonable allowance for direct job site overhead and earned
k profit thereon (such profit shall not include anticipated profit or consequential
damages); provided however, that if it reasonably appears that the Contractor
would have not profited or would have sustained a loss if the entire Contract
would have been completed, no profit shall be allowed or included and the
amount of compensation shall be reduced to reflect the anticipated rate of loss, i
any;
(c) Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Subsection (3)(a) above —if contingent
assignment of such contracts has not been elected as provided herein ---shall not
include amounts paid in accordance with other provisions of the Contract. This
clause is subject to and the Contractor shall be limited by the City's rights to
direct the replacement of subcontractors under Section 12.01.
The total sum to be paid the Contractor under this Subsection (3)'shall not exceed the
total Contract Price, as properly adjusted, reduced by the amount of payments otherwise
made, and shall in no event include duplication of payment.
16.02 Termination for Cause. If the Contractor does not perform the Work, or any part thereof, in a
timely manner, supply adequate labor, supervisory personnel or proper equipment or materials,
or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to
disobey applicable law, or otherwise commits a violation of a material provision of the Contract,
then the City, in addition to any other rights it may have against the Contractor or others, may
terminate the performance of the Contractor, in whole or in part at the City's sole option, and
assume possession of the Project site and of all materials and equipment at the site and may
complete the Work. If any surety timely provides the City with written notice of intent to cure
Contractor's breach, and further commits to doing so within a reasonable time of such notice
and provides security acceptable to the City, the City may elect to withhold termination of the
Contract pending such completion of remedial performance, but without waiver of that right to
terminate if surety's promises are not fulfilled.
In such case, the Contractor shall not be paid further until the Work is complete. After Completion has
been achieved, if any portion of the Contract Price, as it may be modified hereunder, remains after the
cost to the City of completing the Work, including all costs and expenses of every nature incurred, has
been deducted by the City, such remainder shall belong to and inure to the benefit of the City.
Otherwise, the Contractor shall pay and make whole the City for such cost. This obligation for payment
shall survive the termination of the Contract.
in the event the employment of the Contractor is terminated by the City for cause pursuant to
this Section 16.02 and it is subsequently determined by a Court of competent jurisdiction that
such termination was without cause, such termination shall thereupon be deemed a Termination
for Convenience under Section 16.01 and the provisions of Section 16.01 shall apply.
16.03 Termination for Non Appropriation. The City may also terminate the Contract, in whole or in
part, for non -appropriation of sufficient funds to complete or partially complete the Project,
regardless of the source of such funds, and such termination shall be on the terms of Section
16.01.
16.04 The City's rights under this Section shall be in addition to those contained elsewhere herein or
provided by law.
Design Build Contract Page 22
Section 17. INSURANCE
17.01 Contractor shall be responsible for all damage to persons and or property resulting from its
negligent acts, reckless or intentional misconduct, errors or omissions or those of their
subcontractors, agents or employees in connection with such services and shall be responsible
for all parts of its Work, both temporary and permanent.
17.02 Contractor shall, at its own expense, procure and maintain throughout the term of this Contract
Agreement, with insurers acceptable to City, the types and amounts of insurance conforming to
the minimum requirements set forth in this Contract Agreement. Contractor shall not commence
Work until the required insurance is in force and evidence of insurance acceptable to City has
been provided to, and approved by, the City. The Contractor's current Certificate of Insurance is
Incorporated into this Agreement, and a form substantially similar to the example attached shall
be satisfactory evidence of insurance if it is subsequently changed. Until such insurance is no
longer required by the Contract, Contractor shall provide the City with renewal or replacement
evidence of insurance at least 30 days prior to the expiration or termination of such insurance.
17.03 Contractor's policies shall provide no less than the following coverage:
Workers' Compensation/Employer's Liability Insurance
Worker's Compensation Insurance in accordance with statutory requirements, and Employers'
Liability Insurance with limits of not less than $1,000,000 for each accident.
General Liability Insurance
Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000
for each occurrence and not less than $2,000,000 in the aggregate, and with property damage
limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the
aggregate.
Automobile Liability Insurance
Automobile Liability Insurance with bodily injury limits of not less than $1,00,000 for each person
and not less than $1,000,000 for each accident, and with property damage limits of not less than
$1,000,000 for each accident.
Other Errors and Omissions
Insurance policies of Contractor and subcontractors must provide coverage for defective
performance, including without limitation errors and omissions, associated with ensuring the
design and construction of the Project fully complies with ADA and TAS standards and naming
the City as an additional insured for same.
17.04 Contractor shall fumish insurance certificates or insurance policies at the City's request to
evidence such coverages. Except for workers compensation, the insurance policies shall name
the City as an additional insured, and shall contain a provision that such insurance shall not be
canceled or reduced with respect to by coverages or endorsements without 30 days' prior
written notice to City. in such event, Contractor shall, prior to the effective date of the change or
cancellation, obtain substitute policies furnishing the same coverage in full force.
Design Build Contract Page 23
17.05 Compliance with these insurance requirements shall not limit the liability of Contractor. Any
remedy provided to the City by any insurance maintained by the Contractor shall be in addition
to and not in lieu of any other remedy (including, but not limited to, as an indemnitee of
Contractor) available to the City under the Contract or otherwise.
17.06 Neither approval nor failure to disapprove insurance furnished by Contractor shall relieve
Contractor from responsibility to provide insurance as required by this Contract Agreement.
17.07 Contractor shall deliver to City the required certificate(s) of insurance and endorsement(s)
before City signs this Contract Agreement.
17.08 Contractor's failure to obtain, pay for, or maintain any required insurance shall constitute a
material breach upon which City may immediately terminate or suspend this Contract
Agreement. In the event of any termination or suspension, City may use the services of another
consultant or consultants, without City's incurring any liability to Contractor.
17.09 If Contractor fails to obtain or maintain the insurance required by this Agreement, then the City
may obtain or renew Contractor insurance, and City may pay all or part of the premiums. Upon
demand, Contractor shall repay City all monies paid to obtain or renew the insurance. City may
offset the cost of the premium against any monies due Contractor from City.
17.10 The Contractor shall furnish to the City Certificates of Insurance allowing thirty (30) days' notice
for any insurance change, cancellation, or non -renewal. Such Certificates shall contain the
following wording:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE
THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS
PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN."
If the insurance policies expire during the terms of the Contract, a renewal certificate or binder
shall be filed with the City at least 30 days prior to the renewal date.
17.11 In addition to the coverages required herein, the Contractor shall furnish and maintain all-risk
builder's risk property insurance, satisfactory to the City, upon the entire Work at the site to the
full replacement cost of the completed project. This coverage shall name City as an additional
insured, must include the interests of the Contractor, subcontractors and sub -subcontractors in
the Work, and must be procured from an insurer licensed to do business in the State of Texas
with a Beat's rating of "A+, A, A-". The policy must insure against perils including, but not limited
to, earthquake, fire, extended coverages, windstorm, lightning, flood, and physical loss or
damage, including theft, vandalism and malicious mischief.
Section 18. BONDS
18.01 Contractor shall provide City with a Performance Bond, and a Payment Bond, meeting the
standards specified in the Contract Documents, on the forms provided by the City, and attached
hereto, with a Power of Attorney Affidavit, each in an amount not less than the Contract Price.
18.02 Sureties' qualifications. All bonds, to the extent required under the Contract, including, but not
by way of limitation, any Bid/Proposal Bond, Performance Bond, or Payment bond, shall be
written through a reputable and responsible surety bond agency licensed to do business in the
State of Texas and with a surety which holds a certificate of authority authorizing it to write
surety bonds in Texas and maintains a current certificate of authority as an acceptable surety on
Federal Bonds in accordance with U.S. Department of Treasury Circular 570. However, if the
Design Build Contract Page 24
amount of the bond exceeds the underwriting limitations set forth in the Circular, in order to
qualify, the net retention of the surety company shall not exceed the underwriting limitation in
the Circular and the excess risk must be protected by co-insurance, reinsurance, or other
methods in accordance with Treasury Circular 297, revised September 1, 1978 (3) CFR Section
223.10 - Section 223.111 and the surety company shall provide the City with evidence
satisfactory to the City, that such excess risk has been protected in an acceptable manner.
18.03 Additional or replacement bond. The City shall approve bonds as to form. It is further mutually
agreed between the parties hereto that if, at any time, the City shall reasonably deem the surety
or sureties upon any bond to be unsatisfactory, or if, for any reason, such bond (because of
increases in the Work or otherwise) ceases to be adequate, the Contractor shall, at its expense
within five days after the receipt of notice from the City so to do, furnish an additional or
replacement bond or bonds in such form, amount, and with such surety or sureties as shall be
satisfactory to the City. In such event, no further payments to the Contractor shall be deemed to
be due under the Contract until such new or additional security for the faithful performance of
the Work shall be furnished in manner and form satisfactory to the City. A failure to reject a
surety who is unacceptable or fails to perform its obligations shall incur no liability to the City.
18.04 As applicable to all bonds required under the Contract, the surety company shall have a Texas
agent whose name shall be listed in the prescribed space on the forms provided by the City for
all bonds required by the City, or otherwise listed therein if the form of the Bond is not
prescribed by the City.
Section 19. PROJECT RECORDS
All documents relating in any manner whatsoever to the Project, or any designated portion thereof,
which are in the possession of the Contractor, or any subcontractor of the Contractor, shall be made
available to the City and/or its consultants for inspection and copying upon written request by the City.
Furthermore, said documents shall be made available, upon request by the City, to any state, federal or
other regulatory authority and any such authority may review, inspect and copy such records. Said
records include, but are not limited to, all drawings, plans, specifications, submittals, correspondence,
minutes, memoranda, tape recordings, videos, or other writings or things which document the Project,
its design, and its construction. Said records expressly include those documents reflecting the cost of
construction to the Contractor. The Contractor shall maintain and protect these documents for not less
than four years after completion of the Project, or for any longer period of time as may be required by
law or good construction practice. The Contractor further agrees to include these provisions in any
subcontracts issued by him in connection with this Contract Agreement.
Contractor shall provide copies of documents relating to the Project to the City within 5 business days
of receipt of a written request from the City.
Section 20. APPLICABLE LAW
The laws of the State of Texas shall govern this Contract Agreement. In any litigation arising under this
Contract Agreement, venue for all suits is agreed to be in a state district court of Collin County, Texas.
Section 21. SUCCESSORS AND ASSIGNS
Each party binds itself, its successors, assigns, executors, administrators or other representatives to
the other party hereto and to successors, assigns, executors, administrators or other representatives of
such other party in connection with all terms and conditions of the Contract. The Contractor shall not
assign the Contract without prior written consent of the City.
Design Build Contract Page 25
Section 22. MISCELLANEOUS PROVISIONS
22.01 Construction Permits. The City hereby agrees to waive the charge for a City -issued building
permit for this Project. However, the Contractor is responsible for obtaining all permits or fees
otherwise required of the Contractor by the Contract Documents, or permits and fees
customarily the responsibility of the Contractor.
22.02 Compliance By Contractor: Nondiscrimination. Contractor shall comply with all Federal, State
and local laws, ordinances, rules and regulations of any authorities throughout the duration of
the Contract. The Contractor shall be responsible for compliance with any such law, ordinance,
rule or regulation and shall hold City harmless and indemnify same in the event of non-
compliance. Contractor further agrees to abide by the requirements under Federal Executive
Order Number 11246, as amended, including specifically the provisions of the equal opportunity
clause.
22.03 State and Local Taxes. Except as otherwise provided, contract prices shall include all applicable
state and local taxes. Contractor shall indemnify and hold harmless the City for any loss, cost or
expense incurred by, levied upon or billed to the City as a result of Contractor's failure to pay
any tax of any type due in connection with this Contract Agreement. Contractor shall ensure that
the above sections are included in all subcontracts and sub -subcontracts, and shall ensure
withholding on out of state sub and sub -subcontractors to which withholding is applicable.
22.04 Any and all notices required to be sent under the Contract or otherwise shall be sent to the
following addresses by certified U.S. mail, return receipt request (in which case notice shall be
deemed delivered 3 days after proper deposit with USPS, postage prepaid) or by overnight
delivery via FedEx or UPS (in which case notice shall be deemed delivered upon actual receipt):
If to the City:
City of Anna
Attn: City Manager
120 W Seventh Street
Anna, Texas 75409
With a mandatory copy to:
Clark McCoy
Wolfe, Tidwell & McCoy, LLP
2591 N. Dallas Parkway, Suite 300
Frisco, TX 75034
If to the Contractor:
Design Build Contract Page 26
22.06 Protection of the Public. For protection and convenience of the public and emergencies, the
successful bidder shall furnish the City with a telephone number where the Contractor can be contacted
24 hours a day during the entire construction period of this project. This telephone number shall be
€ furnished to the City In writing prior to the beginning of construction.
22.06 Affidavit Against Prohibited Acts. It shall be Contractor's responsibility to complete the affidavit
against prohibited acts, completed and return on the form specified by the City, prior to execution of the
Contract Agreement by the City of Anna. Failure to complete this form may prohibit the Contractor's
ability to secure the Contract.
22.07 Contractor shall pay or cause to be paid, without cost or expense to the City, all Social Security,
Unemployment, and Federal income Withholding taxes for all Contractor's employees and
subcontractors, and all of Contractor's employees and subcontractors shall be paid wages and benefits
as required by federal and/or state law.
22.08 Pursuant to Chapter 2270, Texas Government Code, Contractor certifies that Contractor (s)
does not currently boycott Israel; and (b) will not boycott Israel during the Term of this Agreement.
Contractor acknowledges that this Agreement may be terminated and payment withheld if this
certification is inaccurate. Contractor further certifies that it is not identified on any list referenced by
Texas Government Code Section § 2252.152.
22.09 Claims for Consequential Damages. Contractor and City waive claims against each other for
consequential damages arising out of or relating to the Contract. This mutual waiver includes:
.1 damages incurred by the City for rental expenses, for losses of use, income, profit,
financing, business and reputation, and for loss of management or employee productivity or
of the services of such persons; and
.2 damages incurred by the Contractor for principal office expenses including the
compensation of personnel stationed there, for losses of financing, business and
reputation, and for loss of profit.
This mutual waiver is applicable, without limitation, to all consequential damages due to either party's
termination in accordance with this Contract. Nothing contained in this Section shall be deemed to
preclude an award of liquidated direct damages, when applicable, in accordance with the requirements
of the Contract Documents.
22.10 The City shall, at the request of the Contractor, prior to execution of the Contract and promptly
upon request thereafter, furnish to the Contractor reasonable evidence that financial arrangements
have been made to fulfill the City's obligations under the Contract Documents.
22.11 Form 1295. Submitted herewith is a completed Form 1295 generated by the Texas Ethics
Commission's (the "TEC") electronic filing application in accordance with the provisions of Section
2252.908 of the Texas Government Code and the rules promulgated by the TEC (the "Form 1295").
The City hereby confirms receipt of the Form 1295 from the Contractor, and the City agrees to
acknowledge such form with the TEC through its electronic filing application not later than the 30th day
after the receipt of such form.
22.12 Energy Companies. In accordance with Section 2274.001(1), Texas Government Code, as
enacted by Acts 2021, 87th Leg., Ch. 529 (Senate Bill 13), Contractor hereby verifies that it and its
parent company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not boycott
energy companies and will not boycott energy companies during the term of this Agreement. The
foregoing verification is made solely to enable the City to comply with such Section and to the extent
such Section does not contravene applicable Federal or Texas law. As used in the foregoing
verification, "boycott energy companies," a term defined in Section 2274.001(1), Texas Government
Design Build Contract Page 27
Code (as enacted by such Senate Bill) by reference to Section 809.001, Texas Government Code (also
as enacted by such Senate Bill), shall mean, without an ordinary business purpose, refusing to deal
with, terminating business activities with, or otherwise taking any action that is intended to penalize,
inflict economic harm on, or limit commercial relations with a company because the company (a)
engages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel -
based energy and does not commit or pledge to meet environmental standards beyond applicable
federal and state law; or (b) does business with a company described by (a) above.
22.13 Firearms Companies. In accordance with Section 2274.001(2), Texas Government Code, as
enacted by Acts 2021, 87th Leg., Ch. 530 (Senate Bill 19), Contractor hereby verifies that it and its
parent company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not have a
practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association and will not discriminate against a firearm entity or firearm trade association during the term
of this Agreement. The foregoing verification is made solely to enable the City to comply with such
Section and to the extent such Section does not contravene applicable Federal or Texas law. As used
in the foregoing verification and the following definitions: (a) "discriminate against a firearm entity or
firearm trade associationt , a term defined in Section 2274.001(3), Texas Government Code (as enacted
by such Senate Bill), means, with respect to the firearm entity or firearm trade association, to (i) refuse
to engage in the trade of any goods or services with the firearm entity or firearm trade association
based solely on its status as a firearm entity or firearm trade association, (ii) refrain from continuing an
existing business relationship with the firearm entity or firearm trade association based solely on its
status as a firearm entity or firearm trade association, or (iii) terminate an existing business relationship
with the firearm entity or firearm trade association based solely on its status as a firearm entity or
firearm trade association and (B) does not include (i) the established policies of a merchant, retail
seller, or platform that restrict or prohibit the listing or selling of ammunition, firearms, or firearm
accessories and (ii) a company's refusal to engage in the trade of any goods or services, decision to
refrain from continuing an existing business relationship, or decision to terminate an existing business
relationship (aa) to comply with federal, state, or local law, policy, or regulations or a directive by a
regulatory agency or (bb) for any traditional business reason that is specific to the customer or potential
customer and not based solely on an entity's or association's status as a firearm entity or firearm trade
association; (b) "firearm entity", a term defined in Section 2274.001(6), Texas Government Code (as
enacted by such Senate Bill), means a manufacturer, distributor, wholesaler, supplier, or retailer of
firearms (defined in Section 2274.001(4), Texas Government Code, as enacted by such Senate Bill, as
weapons that expel projectiles by the action of explosive or expanding gases), firearm accessories
(defined in Section 2274.001(5), Texas Government Code, as enacted by such Senate Bill, as devices
specifically designed or adapted to enable an individual to wear, carry, store, or mount a firearm on the
individual or on a conveyance and items used in conjunction with or mounted on a firearm that are not
essential to the basic function of the firearm, including detachable firearm magazines), or ammunition
(defined in Section 2274.001(1), Texas Government Code, as enacted by such Senate Bill, as a
loaded cartridge case, primer, bullet, or propellant powder with or without a projectile) or a sport
shooting range (defined in Section 250.001, Texas Local Government Code, as a business
establishment, private club, or association that operates an area for the discharge or other use of
firearms for silhouette, skeet, trap, black powder, target, self-defense, or similar recreational shooting);
and (c) "firearm trade association", a term defined in Section 2274.001(7), Texas Government Code (as
enacted by such Senate Bill), means any person, corporation, unincorporated association, federation,
business league, or business organization that (i) is not organized or operated for profit (and none of
the net earnings of which inures to the benefit of any private shareholder or individual), (ii) has two or
more firearm entities as members, and (iii) is exempt from federal income taxation under Section
501(a), Internal Revenue Code of 1986, as an organization described by Section 501(c) of that code."
Section 23. ENTIRE AGREEMENT
Design Build Contract Page 28
Aside from duly authorized Change Orders, any modification to this Contract Agreement must be
supported by an additional, articulated consideration, and must either be in writing, executed by the
`. parties hereto, which writing should state the consideration which supports the modification. Nothing in
this Section shall be construed to limit the City's authority to issue changes set forth in Section 14
herein.
Section 24. SEVERABILITY
If any term or condition of the Contract or the application thereof to any person(s) or circumstances is
held invalid, this invalidity shall not affect other terms, conditions or applications which can be given
effect without the invalid term, condition, or application. To this end, the terms and conditions of the
Contract are agreed to be severable.
Section 26. WAIVER
Failure of a party to require performance by another party under the contract will not affect the right to
require performance in the future. No delay, failure, or waiver of either party's exercise or partial
exercise of any right or remedy under the contract shall operate to limit, impair, preclude, cancel, waive
or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the contract
will not be construed as a waiver of any continuing or successive breach.
IN WITNESS WHEREOF, the Parties have executed this Contract Agreement under their
respective seals on the day and year first written above.
[SIGNATURE PAGE(S) FOLLOW, REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
Design Build Contract Page 29
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Deslgn BuNe Contract Page 30
APPENDIX
BIDDER'S BOND
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)), as Principal(s), and
(hereinafter called the Surety(s)),
as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of: Dollars ($ ) (an amount
equal to five percent of the Total Bid Price, including Cash Allowances and Alternate Bids, if any)
lawful money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has submitted on or about this day a proposal offering to
perform the following project:
Fire Station #2, Design Build project for construction of building and site improvements
NOW, THEREFORE, if the said Principal's bid as stated in its proposal is accepted by the
City, and said Principal executes and returns to the City the number of original counterparts of
the Contract Agreement required by the City, on the forms prepared by the City, for the work
described herein and also executes and returns the same number of the Performance, Payment
and Maintenance Bonds (such bonds to be executed by a Corporate Surety authorized by the
State Board of Insurance to conduct insurance business in the State of Texas, and having an
underwriting limitation in at least the amount of the bond) in connection with the work described
herein, within the time specified, then this obligation shall become null and void; otherwise it is
to remain in full force and effect.
In the event that the Principal is unable to or fails to perform the obligations undertaken
herein, the undersigned Principal and Surety shall be liable to the City for the full amount of this
obligation which is hereby acknowledged as the amount of damages which will be suffered by
the City on account of the failure of such Principal to perform such obligations, the actual amount
of such damages being difficult to ascertain.
Notices required or permitted hereunder shall be in writing and shall be deemed delivered
when actually received or, if earlier, on the third day following deposit in a United States Postal
Service post office or receptacle, with proper postage affixed (certified mail, return receipt
requested), addressed to the respective other party at the address prescribed in the Contract
Documents, or at such other address as the receiving party may hereafter prescribe by written
notice to the sending party.
IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
Principal
*By: By:
(Title)
PRINT NAME:
By:
ADDRESS:
PHONE/FAX: By:
(Title)
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in
Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and
hereby designates , an agent resident in
County, Texas, to whom any requisite notices may be delivered and on whom service of process
may be had in matters arising out of such suretyship.
Surety
By
PRINT NAME:
ADDRESS:
PHONE/FAX:
7
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)), as Principal(s), and
(hereinafter called the Surety(s)),
as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of. Dollars ($ ) lawful
money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract Agreement with the Obligee,
dated the day of , for the following project:
Fire Station #2, Design Build project for construction of building and site improvements
and said Principal under the law is required before commencing the work provided for in said
Contract Agreement to execute a bond in the amount of said Contract Agreement, which
Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
Principal shall faithfully perform the work in accordance with the plans, specifications and
- contract documents, then this obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter
2253 of the Texas Government Code (Article 5472d for Private Work)3 of the Revised Civil
Statutes of Texas as amended and all liabilities on this bond shall be determined in accordance
with the provisions of said Article to the same extent as if it were copied at length herein.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract Agreement, or to the work performed
thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway
affect its obligation on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the Contract Agreement, or to the work to be
performed thereunder.
IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
Principal
3 Not applicable for federal work. See "The Miller Act," 40 U.S.C. S270.
*By: By:
(Title) (Title)
PRINT NAME: By:
ADDRESS:
PHONE/FAX:
By:
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas and
is listed on the U.S. Department of the Treasury list of approved sureties, and hereby
designates , an agent resident in County,
Texas, to whom any requisite notices may be delivered and on whom service of process may
be had in matters arising out of such suretyship.
Surety
By:
PRINT NAME:
ADDRESS:
PHONE/FAX:
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)) as Principal(s), and
(hereinafter called the Surety(s)), as
Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of: Dollars ( )
lawful money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has entered into a certain written Contract Agreement with the
Obligee, dated the day of , for the.
Fire Station #2, Design Build prolect for construction of building and site improvements
and said Principal under the law is required before commencing work provided for in said
Contract Agreement to execute a bond in the amount of said Contract Agreement, which
Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
w. Principal shall pay all claimants supplying labor and material to him or a subcontractor in the
prosecution of the work provided for in said Contract Agreement, then this obligation shall be
void; otherwise to remain in full force and effect;
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter
2253 of the Texas Government Code as amended and all liabilities on this bond shall be
determined in accordance with the provisions of said Article to the same extent as if it were
copied at length herein.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract Agreement, or to the work performed
thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway
affect its obligation on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the Contract Agreement, or to the work to be
performed thereunder.
IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
*By:
(Title)
Principal
(Title)
PRINT NAME:
ADDRESS:
PHONE/FAX:
By:
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas and
is listed on the U.S. Department of the Treasury list of approved sureties, and hereby
designates , an agent resident in County,
Texas, to whom any requisite notices may be delivered and on whom service of process may
be had in matters arising out of such suretyship.
Surety
By:
PRINT NAME:
ADDRESS:
PHONE/FAX:
CERTIFICATE OF INSURANCE
JIMA TO ISSUE ACORD FORM]
NOTICE TO PROCEED
Project: Fire Station #t2 — City of Anna, TX
Issued To: Crossland Construction Company, Inc. Date Issued:
731 Industry Way,
Prosper, TX 75078
You are hereby notified to commence work in accordance with the Agreement dated the
day of , , on or before the day of and
substantially complete all of the work within consecutive calendar days thereafter.
The date of final completion for all work shall therefore be the day of ,
Issued by: City of Anna, Texas (Owner)
Jim Proce
City Manager
ACCEPTANCE OF NOTICE:
Y Receipt of the above notice to proceed is hereby acknowledged by Crossland Construction
Company, Inc, this day of ,
A:
Contractor
CHANGE ORDER
Date of Issuance:
Effective Date:
Owner: City of Anna, TX
Project: Fire Station #2
Contract changes are approved as follows:
Description of changes:
Reason for Change Order:
Attachments:
CONTRACT PRICING
Original Contract Amount including Add/Alternates:
$
Net Increase from Previous Change Orders:
$
Contract Price Prior to this Change Order:
$
Net Increase/Decrease of this Change Order:
$
Contract Price with All Approved Change Orders:
$
City of Anna, TX
By. vlanny
�.�..�r... 4'{t
Date: oZ' I S a3
Please sign both copies; return one copy to:
City of Anna, TX
c/o Justin Clay
3223 N. Powell Parkway
Anna, TX 75409
Crossland Construction Company, Inc.
By: Rocky Hussman
Date:
CONFLICT OF INTEREST QUESTIONNAIRE
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 801h Log., Regular Session.
ibis questionnaire is being flied In accordance with Chapter 176, Local Government Code
oy a person who has a business relationship as defined by Section 176.001(1-a) with a local
governmental entity and the person meets requirements underSection 176.006(a).
BY law this questionnaire must be filed with the records administrator of the local governmental
entity not later than the 7th business day after the date the person becomes aware of facts
that require the statement to be filed. See Section 176.006, Local Government Code.
A person commits an offense If the person knowingly violates Section 176.006, Local
Government Code. An offense under this section Is a Class C misdemeanor.
Name of person who has a business relationship with local governmental entity.
Checkthis box if you are filing an updateto a previousiyfrled questionnaire.
OFFICE USE ONLY
Date Received
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7th business day after the date the originally filed questionna€re becomes Incomplete or inaccurate.)
Name of local government offlcerwith whom filer has employment or business relationship.
Name of Officer
This section (item 3 including subparts A, B, C & D) must be completed for each officer with whom the filer has an
k. employment or other business relationship as defined by Section 176.001 (1 -a), Local Government Code. Attach additional
J, pages to this Form CIO as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than Investment
income, from the filer of the questionnaire?
Yes F� No
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the
direction of the local government officer named In this section AND the taxable income is not received from the local
governmental entity?
Q Yes 1::1 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local
government officer serves as an officer or director, or holds an ownership of 10 percent or more?
F7 Yes FlNo
D. Describe each employment or business relationship with the local government officer named in this section.
signature of person doing business with the governmental entity
Date
Adopted 06/29/2007
AFFIDAVIT AGAINST PROHIBITED ACTS
1 hereby affirm that I am aware of the provisions of Texas Penal Code Section 36.02,
36.08, 36.09 and 36.10 dealing with Bribery and Gifts to Public Servants. I further affirm that I
will adhere to such rules and instruct and require all agents, employees, and sub -contractors to
do the same. I am further aware that any violation of these rules subjects the Contract
Agreement for this project to revocation, my removal from bid lists, prohibiting future
contract/subcontract work, revocation of permits, and prosecution.
Signature
ATTEST (if corporation)
Date
Date
FORM 1295
CERTIFICATE OF INTERESTED PARTIES FORM 1295
OFFICE USE ONLY
Complete Nos. 1 - a and 6 if there are interested patties.
Complete Nos. 1, 2, 3, 6, and 6 if there are no Interested parties.
1 Name of business entity tiling form, and the city, state and country of the business
entity's place of business.
2 Name of governmental entity or state agency that is a party to the contract for
which the form Is being filed.
s Provide the identification number used by the governmental entity or state agency tot k * dentlfy the contract,
and provide a description of the services, goods, or other property to be provided a contract.
A
Name of interested Party
City, State, Country
(place of business) C C10
ature of interest (check applicable)
Controlling
intermediary
5 ❑Check only !f there t retested Patty.
e UNSWORN DEN
W name Is ` and my date of birch Is
Mty addre�w
(street) (call} (state) (ZIP code) (country)
�er
penally of penury that the faragoing Is We and correct.
Wonted In county, State of , on the day of 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
ADD ADDITIONAL PAGES AS NECESSARY
Farr provided by Taxes eldcs Corrunisdan wwwAhImslate.bLus Revised 1=2 017
CITY OF ANNA, TEXAS
CONTRACT DOCUMENTS
FOR:
FIRE STATION #2 DESIGN/BUILD, for faces to be located on
Standridge Boulevard, Anna, Texas 75409
("Fire Station #2")
TABLE OF CONTENTS
CONTRACTAGREEMENT..
I I . . . . . . . . . . . . . . . . . . . . . . * 4 . . b . . . . . . . . . . . . . . 4 . . . . . . . . d . . 4 . . 4 . 4 . . 4 . . . . . . . . . d . . . . . . . . . 4 . . 4 . . w . w . I w I . . b . . 4 . . . . . . . . . 4
4 . . . 4 . .
Section 1.
DOCUMENTS INCORPORATED BY REFERENCE.. ..... w4l'L ... 4 .......... ...... 4 ........
4 ..... 4.1
Section 2.
REPRESENTATIONS OF THE CONTRACTOR.................................................4...........4.2
Section 3.
INTENT AND INTERPRETATION................................................................................4....3
Section 4.
CONTRACTOR'S PERFORMANCE.. .... 4 ... w.wwo ............ 4 ..... w., A ..... 4 .......... w.ww,,d ..... 4 ........
4 ..... 44
Section 5.
TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS..,., ......... 4.4..4.4 w .... w 4 ..... 4.4 ..........
4
Section 6.
FIXED PRICE AND CONTRACT PAYMENTS...... ....... 4w.w4 ...... 4 ... 4 ... I ... W.111 ........... L .........
4 ... 6
Section 7.
INFORMATION AND MATERIAL SUPPLIED BY THE CITY...........................4....4.4...4...10
Section 8.
CEASE AND DESIST ORDER/CITY'S RIGHT TO PERFORM WORK ...................4......10
Section 9.
CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES ..........4.4...........10
Section10.
INDEMNITY.....................................................................................................................14
Section 11.
CLAIMS BY THE CONTRACTOR.. .... ................... . . . . . . . . . . 4
Section 12.
SUBCONTRACTORS........ d L . . . . . 4 . . . . . . . . W ' W 4 . . . . . . . . . . 4 ' ' 4 ' dA ..................
1 6
Section13.
CHANGE ORDERS..........................................................................................4..............16
Section 14.
DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK.. ........
ww.19
Section 15.
CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE...................4..........19
Section 16.
TERMINATION BY THE CITY..............................................................................4.4........21
Section17.
INSURANCE.. ..... 0 . & . . . . . . . 4 . . . . . . . . . w I I . . . . . . . 4 . . 4 . . . W W , W & . . . . . . 4 . 4 . 4 . . I . W 1 0 . b . . . L .................
4 w 2 3
Section18.
BONDS....... b . b . 4 . d . . . . . L . . . . . 4 .......... ....... ....... . w % ............ ....... 4 ....
4 ... 4 ... 24
Section19.
PROJECT RECORDS..............................................................................................4.....425
Section20.
APPLICABLE LAW..............................................................................................4.....4..4..25
Section 21.
SUCCESSORS AND ASSIGNS......................................................................................25
Section 22.
MISCELLANEOUS PROVISIONS.................................................................................4.26
Section23.
ENTIRE AGREEMENT....................................................................................................28
Section24.
SEVERABILITY................................................................................................4..............29
Section25.
WAIVER...............................................................................................................4...........29
APPENDIX.................................................................................................................................................
Al
BIDDER'S BOND
.....................................................................................................................................4.
Al
PERFORMANCEBOND................................................................................................4...........................
A
PAYMENTBOND........................................................................................................................0..............
A
CERTIFICATEOF
INSURANCE................................................................................................................
A7
NOTICETO
PROCEED........................................................................................................4.4...............A..
A8
CHANGEORDER.........................................................................................................................4............
A
........
CONFLICT OF INTEREST QUESTIONNAIRE................................................................................
A 1 0
AFFIDAVIT AGAINST PROHIBITED ACTS.............. I ................ w . . w . w w ............ 4..4..4 w.. w,. * d. & .................. 4..
w w. w. Al
FORM1295
..........................................................................................................................4.4.................
Al
CONTRACT AGREEMENT
This Contract Agreement for FIRE STATION #2 DESIGN/BUILD, for facilities to be located on
, Anna, Texas 75409 ("Fire Station #2") project for construction of building and
site improvements, (hereinafter this "Contract Agreement"), is entered into this day of
, 2022 by and between the CITY OF ANNA, TEXAS, a Texas municipal corporation,
("City") and CROSSLAND CONSTRUCTION COMPANY, INC., with an office at 731 Industry Way,
Prosper, TX 75078("Contractor").
WITNESS ETH:
WHEREAS, the City wishes to contract for the project identified as Fire Station #2 (the
Project"); and
WHEREAS, the Project shall include all work, undertakings, services, and activities necessary
to complete the following scope of work (hereinafter referenced as "Work"): design -build services for
construction of a municipal fire station, in accordance with the Contract Documents as that term is
defined herein; and
WHEREAS, the Contractor has represented to the City that its personnel are qualified to
provide the Work required in this Contract Agreement in a professional, timely manner as time is of the
essence:and
WHEREAS, following a thorough review of Contractor's submitted materials, City staff has
determined that Contractor's Statement of Qualifications satisfied the City initial requirements, and
identified Contractor as a finalist for award of the Project; and
WHEREAS, Contractor has submitted a proposal committing to performance of the Work to the
City standards under a reasonable Guaranteed Maximum Price and Design -Build Service Fee, and
subject to further terms and conditions required by the City; and
WHEREAS, the City has relied upon the above representations by the Contractor, and based
on the evaluation criteria and weighting factors set out its proposal invitation materials, the City has
determined that Contractor's offering provides the best value for the City; and
WHEREAS, the City's staff and engineer have recommended that a suitable agreement for
aforesaid construction be entered into with the Contractor to perform the Work for payment not to
exceed the Guaranteed Maximum Price;
NOW, THEREFORE, for and in consideration of these premises, of the mutual covenants herein
set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. DOCUMENTS INCORPORATED BY REFERENCE
This Contract Agreement includes the recitals set forth above and the following documents:
Two -Step Request for Qualifications —Request for Qualifications for Various
Professional and Engineering Services, Category D. Facility Architecture and Build and and associated exhibits, including without limitation its Design Criteria, Civil
Construction Plans, General Notes, Planting Specifications, Code Planting Plan,
Page 1 of 46
Planting Schedule, Irrigation Plan, Irrigation Notes and Details (collectively "RFQ-RFP
Contractor's Statement of Qualifications and Proposal(s)s for the Project;
Qualification Statement of Bidder's Surety;
Prevailing Wage Rates for Municipal Construction in Anna, Texas;
• Vendors Compliance to State Law;
• Conflicts of Interest Questionnaire;
• Affidavit Against Prohibited Acts;
• Proposal for Design -Build Services (dated the _ day of 2022);
• Request for Certificate of Exemption from Texas Limited Sales, Excise and Use Tax;
• Contract Agreement;
• Bidders Bond;
• Performance Bond;
• Payment Bond;
• Certificate of Insurance;
• Notice to Proceed;
• Any executed Change Orders;
• Supplementary General Provisions and Technical Specifications; and,
• Plans, Specifications and Drawings and all other documents made available for
Contractor's inspection in conjunction with the City's RFQ-RFP';
all of which are hereby incorporated herein by reference, whether or not attached hereto, and made a
part hereof (hereinafter along with this Contract Agreement and referenced collectively as the
'Contract" ("Contract Agreement") or "Contract Documents"). Change Orders issued hereafter,
Construction Change Directives, a Direction for a Minor Modification in the Work issued by the City, and
any other amendments executed by the City and the Contractor, shall become and be a part of the
Contract Documents. Documents not listed or expressly contemplated in this Section 1 do not, and
shall not, form any part of the Contract. The Contract Documents are intended to be complementary,
and a requirement in one document shall be deemed to be required in all documents. However, in the
event of any conflict between any of the above -listed incorporated documents and this Contract
Agreement shall control over all provisions incorporated by reference.
Section 2. REPRESENTATIONS OF THE CONTRACTOR
In order to induce the City to execute the Contract and recognizing that the City is relying thereon, the
Contractor, by executing the Contract, makes the following express representations to the City:
2.01 The Contractor is fully qualified to act as the general contractor for the Project and has, and
shall maintain, any and all licenses, permits or other authorizations necessary to act as the
general contractor for, and to construct the Project.
2002 The Contractor has become familiar with the Project site and the local conditions under which
the Project is to be constructed and operated.
2.03 The Contractor has received, reviewed and examined all of the documents which make up the
Contract, including, but not limited to all plans and specifications, and has found them to the
best of its knowledge, to be complete, accurate, adequate, consistent, coordinated and
sufficient for construction.
� If plans, specifications, drawings, or other documents are too bulky or cumbersome to be physically bound or if
any document is not physically bound to this Contract Agreement for any reason, such materials and documents
are to be considered incorporated by reference into the Contract Agreement.
Design Build Contract Page 2
Section 3. INTENT AND INTERPRETATION
With respect to the intent and interpretation of the Contract Agreement, the City and the Contractor
agree as follows:
3.01 This Contract Agreement (along with its exhibits and other documents expressly referenced in
Section 1, above), together with the Contractor's and Surety's bid/proposal bond, performance
and payment bonds, constitute the entire and exclusive agreements between the parties with
reference to the Project, and this Contract Agreement supersedes any and all prior discussions,
communications, representations, understandings, negotiations, or agreements.
3.02 The Contract Price shall not be exceeded, subject to additions and deductions by changes in
the Work as provided in the Design -Build Documents. Such maximum sum is referred to in the
Design -Build Documents as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by the Contractor without
reimbursement by the City.
3.03 Nothing contained in this Contract Agreement shall create, nor be interpreted to create, privity or
any other relationship whatsoever between the City and any person except the Contractor.
3.04 When a word, term, or phrase is used in this Contract Agreement, it shall be interpreted or
construed first, as defined herein; second, if not defined, according to its generally accepted
meaning in the construction industry; and third, if there is no generally accepted meaning in the
construction industry, according to its common and customary usage.
3.05 Wherever the Contract calls for "strict" compliance or conformance with the Contract Documents
as to matters —other than compliance with time limits, providing an updated schedule, and claim
and change order procedures —the term shall mean within tolerances as described specifically
in the Contract Documents, or if not specifically described, within industry standards and
tolerances for deviation for the specific item or procedure in question.
3.06 The words "include", "includes", or "including", as used in the Contract, shall be deemed to be
followed by the phrase, "without limitation".
3,07 The listing herein of any items as constituting a material breach of this Contract Agreement shall
not imply that any other, non -listed items will not constitute a material breach of this Contract
Agreement,
3.08 The Contractor shall have a continuing duty to read, examine, review, compare and contrast
each of the documents which make up this Contract Agreement, shop drawings, and other
submittals and shall give written notice to the City of any conflict, ambiguity, error or omission
which the Contractor may find with respect to these documents, before proceeding with the
associated part of the Work. The express or implied approval by the City or its designee of any
shop drawings or other submittals shall not relieve the Contractor of the continuing duties
imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with
the Contract. If the Contractor performs any activity knowing it involves an error, inconsistency
or omission which was recognized, obvious, or reasonably should have been recognized,
without such notice to the City, the Contractor shall assume responsibility for such performance
and shall bear the costs for correction.
3.09 In the event of any conflict, discrepancy, or inconsistency among any of the documents which
make up the Contract, the following shall control:
Design Build Contract Page 3
(1) as between this Contract Agreement and any other document, this document shall
govern; or,
(2) in the case of any conflict, discrepancy or inconsistency among any of the other Contract
Documents, and such conflict is not resolved by reference to the Supplementary General
Provisions and Technical Specifications, then the Contractor shall notify the City
immediately upon discovery of same for resolution.
Section 4. CONTRACTOR'S PERFORMANCE
The Contractor shall perform all of the Work required, implied or reasonably inferable from this Contract
Agreement including, but not limited to, the following:
4.01 The Contractor will complete the entire Work described in the Contract Documents, except as
specifically identified therein as the Work of other parties or expressly excluded by specific
reference, in accordance with the terms herein.
4.02 The furnishing of any and all required surety bonds and insurance certificate(s) and
endorsement(s).
4.03 The provision or furnishing, and prompt payment therefor, of labor, supervision, services,
materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage,
disposal, power, fuel, heat, light, cooling, or other utilities, required for construction and all
necessary building permits and other permits or licenses required for the construction of the
Project.
4.04 The creation and maintenance of a detailed and comprehensive copy of the drawings,
specifications, addenda, change orders and other modifications depicting all as -built
construction. Said items shall be submitted to the City, along with other required submittals
upon Completion of the Project, and receipt of same by the City shall be a condition precedent
to final payment to the Contractor. The Contractor shall prepare and submit final as -built
drawings to the City.
Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS
5.01 The Contractor shall commence the performance of the Contract on the date set forth in the
Notice to Proceed issued by the City Manager or the City Manager's designee and shall
diligently continue its performance to and until Completion of the Project. The Contractor shall
accomplish Substantial Completion (as defined herein below) of the Project not more
than 545 calendar days after the issuance of the Notice to Proceed, (sometimes hereinafter
referred to as the "Contract Time"). This Contract Time includes 30 inclement weather days. By
signing the Contract, the Contractor agrees that the Contract Time is a reasonable time for
accomplishing Completion of the Project and completion of the Project within the Contract Time
is of the essence.
5.02 For each and every calendar day of unexcused delay in achieving Substantial Completion
beyond the date set forth herein for Substantial Completion, the Contractor shall pay the City
the following sum per calendar day (or said per -day sum shall be deducted by the City from the
monies due the Contractor): Five Hundred dollars and no cents ($500.00). Any sums due and
payable under this paragraph by the Contractor shall be payable, not as a penalty, but as
liquidated damages representing an estimate of delay damages likely to be sustained by the
Design Build Contract Page 4
City, estimated at the time of executing the Contract as such damages are difficult to calculate.
When the City reasonably believes that Substantial Completion will be inexcusably delayed, the
City shall be entitled, but not required, to withhold from any amounts otherwise due the
Contractor an amount then believed by the City to be adequate to recover liquidated damages
applicable to such delays. If and when the Contractor overcomes the delay in achieving
Substantial Completion, or any part thereof, for which the City has withheld payment, the City
shall promptly release to the Contractor those funds withheld over and above what ultimately
came due as liquidated damages.
5.03 The term "Substantial Completion", as used herein, shall mean the point at which, as certified in
writing by the City's consulting architect/engineer or other appropriate independent contractor or
representative and approved by the City, the Project is at a level of completion in strict
compliance with the Contract such that the City or its designee can enjoy beneficial use or
occupancy and can legally occupy, use or operate it in all respects, for its intended purpose.
Partial use or occupancy of the Project shall not result in the Project being deemed substantially
complete, and such partial use or occupancy shall not be evidence of Substantial Completion.
5.04 All limitations of time set forth herein are material and are of the essence of the Contract.
5.05 Contractor agrees to punctually and diligently perform all parts of the Work at the time
scheduled in this Contract Agreement. In this connection, Contractor agrees that it will keep
itself continually informed of the progress of the job and will, upon its own initiative, confer with
the City so as to plan its Work in coordinated sequence with the work of the City, if any, and of
others and so as to be able to expeditiously undertake and perform its Work at the time most
beneficial to the entire Project.
5.06 If the Contractor is delayed at any time in the progress of the Work by any separate contractor
employed by the City, or by changes in the Work, or by labor disputes, fire, unusual delay in
transportation, unusually severe weather conditions, unavoidable casualties, delays specifically
authorized by the City, or by causes beyond the Contractor's control, avoidance, or mitigation, and
without the fault or negligence of the Contractor and/or subcontractor or supplier at any tier, then the
contract time shall be extended by Change Order for such reasonable time, if any, as the City may
determine that such event has delayed the progress of the Work, or overall completion of the Work if
the Contractor complies with the notice and documentation requirements set forth below.
(1) If the Contractor is delayed, obstructed, hindered or interrupted for a period of time
exceeding seven calendar days by any act or neglect of the City, an adjustment shall be
made for any increase in the direct cost of performance of this Contract Agreement
(excluding profit, extended home office overhead, incidental or consequential damages
or disruption damages) and the Contract modified in writing accordingly. The Contractor
must assert its right under this section by giving written notice to the City Manager
within10 calendar days of the beginning of a delay, obstruction, hinderance or
interruption by the City. No adjustment shall be made for any delay, obstruction,
hindrance or interruption after final payment under this Contract Agreement or to the
extent that performance would have been so delayed, obstructed, hindered or
interrupted by any other cause, including, but not limited to concurrent cause or fault or
negligence of the Contractor, or for which an equitable adjustment is provided for or
excluded under any other term or condition of this Contract Agreement. The direct costs
described above shall be limited to those direct costs attributable solely to this Project,
and shall be subject to documentation and verification of costs as required by the City. It
unit prices are established in the Contract Documents or subsequently agreed upon,
they shall form the basis for cost calculations under any claims for delay.
Contract Page 5
(2) Any claim for extension of time shall be made in writing to the City, not more than five
calendar days from the beginning of the delay and failure to provide the written notice
within said five-day period shall be deemed a waiver by Contractor of any claim for delay
or related payment or other relief. The notice shall indicate the cause of delay upon the
progress of Work. If the cause of the delay is continuing, the Contractor must give such
written notice of continuing delay to be submitted with each new pay application
following the initial notice and failure to provide written notice with each new pay
application shall be deemed a waiver by Contractor of any claim for delay or related
payment or other relief. Within 15 calendar days after the elimination of any such delay
for which all timely written notice(s) were provided, the Contractor shall submit further
documentation of the delay and a formal Change Order requesting an extension of time
for such delay.
(3) The written request for a time extension shall state the cause of the delay, the number of
calendar days extension requested, and such analysis and other documentation as is
reasonably requested by the City to demonstrate a delay in the progress of the Work or
the overall project completion. If the Contractor does not comply with the above notice
and documentation requirements, the claim for the delay shall be deemed waived by the
Contractor. The above notice and documentation requirements shall also be a condition
precedent to the Contractor's entitlement to any extension of time.
(4) Extensions of time will be the contractor's primary remedy for any and all delays,
obstructions, hindrances, or interference. Payment or compensation, for direct costs only
(as set forth above), may be made to the Contractor for hindrances or delays solely
caused by the City if such delays or hindrances are within the City's ability to control and
are not partially caused by the Contractor or any of its agents, subcontractors or others
for whom it is responsible. No payment or compensation will be made for interference,
obstructions, hinderances or delays which are not solely caused by the City and which
the City fails to cure after a reasonable period after written notice.
(5) Without limitation, the City's exercise of its rights under provisions related to changes to
the Work, regardless of the extent or number of such changes, or the City's exercise of
any of its remedies or any requirement to correct or re -execute defective Work, shall not
under any circumstances be construed as delays, hindrances or interference
compensable further than as described herein.
Section 6. FIXED PRICE AND CONTRACT PAYMENTS
6.01 The City shall pay, and the Contractor shall accept, as full and complete payment for the
Contractor's timely performance of its obligations hereunder, a "Design -Build Service Fee" equal
to 11.65% (eleven and sixty-five hundredths percent) of the Guaranteed Maximum Price for
the Project. As of execution of this Contract Agreement, the Guaranteed Maximum Price for the
Project is $5,654,400. The price paid to Contractor as set forth in this Section 6.01 shall
constitute the "Contract Price' for purposes of the Contract Agreement, as modified solely
through Change Order or adjustment pursuant to approved unit prices, if any, as provided in the
Contract.
6.02 The
City shall pay the
Contract Price
to the Contractor in accordance with the procedures set
forth
in this Section 6
and as set forth
here:
p On or before the 10"' calendar day of each month after commencement of performance, but no more
frequently than once monthly, the Contractor may submit a payment request for the period ending the
last calendar day of the previous month (the "Payment Request"). Provided that an Application for
Design Build Contract Page 6
Payment is received not later than the 10"' day of month, the City shall make payment to the Contractor
not later than the 1st day of the next month. If an Application for Payment is received by the City after
the application date fixed above, payment shall be made by the City not later than thirty days after the
City receives the Application for Payment. Said Payment Request shall be in such format and include
whatever supporting information as may be required by the City. Therein, the Contractor may request
payment for 90% of that part of the Contract Price (inclusive of the corresponding portion of the Design -
Build Service Fee) allocable to Contract requirements properly provided, labor, materials and
equipment properly incorporated in the Project, and materials or equipment necessary for the Project
and properly stored at the Project site (or elsewhere if offsite storage is approved in writing by the City),
less the total amount of previous payments received from the City. Payment for materials stored offsite
shall be at the discretion of the City and if approved, the Contractor shall provide appropriate
documentation to substantiate materials are stored in a bonded warehouse or facility, title or other proof
of ownership has been transferred to the City, and that materials have been purchased and paid for by
the Contractor (copies of paid invoices must be submitted to the City with payment request). Risk of
loss shall be borne by, and insurance must be provided by the Contractor while in storage, transit and
use during construction. At 75% completion of the Contract, by dollar value, and at the option of the
City, retainage may be reduced to 5% plus an additional amount as detailed in Section 6.06 below for
any part of the Work that is defective or non -conforming and in Section 5.02 above for anticipated
liquidated damages.
(1) Amounts reflected in Change Orders may be included in Payment Requests to the
extent they are not in dispute
(2) Each Payment Request shall be signed by the Contractor and shall constitute the
Contractor's representation that the quantity of Work has reached the level for which
payment is requested, that the Work has been properly installed or performed in strict
compliance with the Contract, and that the Contractor knows of no reason why payment
should not be made as requested.
(3) Thereafter, the City shall review the Payment Request and may also review the Work at
the Project site or elsewhere to determine whether the quantity and quality of the Work is
as represented in the Payment Request and is as required by the Contract. The amount
of each such payment shall be the amount approved for payment by the City less such
amounts, if any, otherwise owing by the Contractor to the City or which the City shall
have the right to withhold as authorized by the Contract. The City shall, within seven
days after receipt of the Contractor's Application for Payment, issue to the Contractor a
written acknowledgement of receipt of the Contractor's Application for Payment
indicating the amount the City has determined to be properly due and, if applicable, the
reasons for withholding payment in whole or in part. Approval of the Contractor's
Payment Requests shall not preclude the City from the exercise of any of its rights as set
forth in Section 6.06 below.
The submission by the Contractor of a Payment Request also constitutes an affirmative representation
and warranty that all Work for which the City has previously paid is free and clear of any lien, claim, or
other encumbrance of any person/entity whatsoever. As a condition precedent to payment, the
Contractor shall, if required by the City, also furnish to the City properly executed waivers of lien or
claim, in a form acceptable to the City, from all subcontractors, materialmen, suppliers or others having
lien or claim rights, wherein said subcontractors, materialmen, suppliers or others having lien or claim
rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests except for the
immediately previous Payment Request (thus allowing an approximately 60 day time frame for receipt
of these waivers) and waive and relinquish any liens, lien rights or other claims relating to the Project
site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request
submitted, title to all Work included in such payment shall be vested in the City, and Contractor is solely
Design Build Contract rage i
responsible for ensuring equitable distribution and timely delivery of funds to Contractor's employees
and subcontractors.
6.03 When payment is received from the City, the Contractor shall within the time permitted by
applicable state law or seven calendar days (whichever is longer) pay all subcontractors,
material men, laborers and suppliers the amounts they are due for the Work covered by such
payment. In the event the City becomes informed that the Contractor has not paid a
subcontractor pursuant to the terms of the Contractor's applicable agreement with the
subcontractor (which may include terms that permit non-payment of amounts for which
Contractor has not been paid by City), material man, laborer, or supplier as provided herein, the
City shall have the right, but not the duty, to issue future checks and payment to the Contractor
of amounts otherwise due hereunder naming the Contractor and any such subcontractor,
material man, laborer, or supplier as joint payees. The City shall notify the Contractor of its
intent to implement such a procedure and will give the Contractor a reasonable period to cure
any such failure prior to implementing the procedure. Such joint -check procedure, if employed
by the City, shall create no rights in favor of any person or entity beyond the right of the named
payees to payment of the check as a co -payee and shall not be deemed to commit the City to
repeat the procedure in the future.
6.04 Neither payment to the Contractor, full or partial utilization of the Project for any purpose by the
City, nor any other act or omission by the City shall be interpreted or construed as an
acceptance of any Work of the Contractor not strictly in compliance with the Contract.
6.05 After written notice to the Contractor and a reasonable opportunity to cure (which period shall
not exceed 30 days unless agreed to in writing by the City), the City shall have the right to
refuse to make payment, in whole or in part, and, if necessary, may demand the return of a
portion or all (to the extent reasonably necessary to protect itself) of the amount previously paid
to the Contractor (and Contractor shall pay the City such amount) due to:
(1) The quality of a portion, or all, of the Contractor's Work not being in accordance with the
requirements of the Contract;
(2) The quantity of the Contractor's Work not being as represented in the Contractor's
Payment Request, or otherwise;
(3) The Contractor's rate of progress being such that, in the reasonable opinion of the City,
Substantial Completion may be inexcusably delayed;
(4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City,
to pay Contractor's Project -related obligations including, but not limited to,
subcontractors, laborers and material and equipment suppliers;
(5) Claims made, or likely to be made, against the City or its property for which the
Contractor or its agents or subcontractors or others for whom it is responsible are, or
reasonably appear to be at fault unless security acceptable to City has been delivered by
the Contractor;
(6) Loss caused by the Contractor;
(7) The Contractor's failure or refusal to perform any of its obligations to the City, after
written notice and a reasonable opportunity to cure as set forth above.
Design Build Contract Page 8
If at any time after Contract completion or termination, circumstances as described in
Subsections (4) or (5), above, occur or are discovered, the City's right to demand payment or
security from Contractor in an amount sufficient to protect City and its property from such claims
shall survive termination of this Contract. When the said reasons for withholding payment are
removed, payment will be made for amounts previously withheld. If for reasons other than those
enumerated in this section 6.05, the City does not issue a payment within the time period
required by Section 6,02 above, then the Contractor may, upon seven additional days' written
notice to the City, stop the Work until payment of the amount owing has been received. The
Contract Time shall be extended appropriately and the Contract Price shall be increased by the
amount of the Contractor's reasonable costs of shutdown, delay and start-up, plus interest as
provided for in the Contract.
6.06 When the Contractor believes that Substantial Completion has been achieved, the Contractor
shall notify the City in writing and shall furnish a listing of those matters, if any, yet to be
finished. The City will thereupon conduct a site review to confirm that the Project is in fact
substantially complete. If the City, through its review, finds that the Contractor's Work is not
substantially complete, and if required to repeat all, or any portion, of such review, the
Contractor shall bear the cost of such repeat site review(s), which cost may be deducted by the
City from any payment then or thereafter due to the Contractor. Guarantees and equipment
warranties required by the Contract shall commence on the date of Substantial Completion.
Upon Substantial Completion, the City shall pay the Contractor an amount sufficient to increase
total payments to the Contractor to 100% of the Contract Price less any amounts attributable to
damages, liquidated or otherwise, and less 150% of the costs, as reasonably determined by the
City, incurred for the City to complete any incomplete Work, correcting and bringing into
conformance all defective and nonconforming Work, and handling any outstanding or
threatened claims. Such a calculation by the City of costs for completing all incomplete Work,
correcting and bringing into conformance all defective and nonconforming Work, and handling
any outstanding or threatened claims shall not bar the City from exercising its stated rights
elsewhere in the Contract, or otherwise as provided by law for any incomplete, defective or
nonconforming Work or claims that are discovered by the City after the date of making such
calculation or after the date of any partial or final payment, whether or not such incomplete,
defective or nonconforming Work or claims were obvious or should have been discovered
earlier.
6.07 When the Project is finally complete and the Contractor is ready for a final review, it shall notify
the City thereof in writing. Thereupon, the City will perform a final site review of the Project. If
the City concurs that the Project is complete in full accordance with the Contract and that the
Contractor has performed all of its obligations to the City hereunder, the Contractor will furnish a
final Approval for Payment to the City certifying to the City that the Project is complete and the
Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld
pursuant to the Contract. If the City is unable to issue its final Approval for Payment for any
reason relating to the quality of the Project not meeting the requirements of the Contract and is
required to repeat its final review of the Project, the Contractor shall bear the cost of such repeat
review(s), which costs may be deducted by the City from the Contractor's final payment.
6.08 The City shall, subject to its rights set forth in Section 6.06 above and elsewhere in the
Contract, make final payment of all sums due the Contractor within 30 calendar days of the final
Approval for Payment, with the exception of items in dispute or concerning which the City has
exercised any of its rights to investigate or remove. Payments due from City and unpaid to
Contractor (whether progress payments or final payment) and which are subject to a dispute or
rights of City investigation or removal shall accrue no interest; but once those issues are
resolved, Contractor may provide the City written notice that interest shall accrue at an annual
rate of 2 % (two percent), pro -rated on a monthly basis, beginning 15 calendar days following
Design Build Contract
receipt of such notice by the City. Failure to provide such notice constitutes Contractor's waiver
of rights to payment for accrued interest associated with this Agreement.
Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY
7.01 To the best of its knowledge, the City has furnished to the Contractor, prior to the execution of
this Contract Agreement, all written and tangible material in its possession relevant to the
conditions at the site of the Project. Such written and tangible material has been furnished to the
Contractor only in order to make complete disclosure of such material as being in the
possession of the City and for no other purpose. By furnishing such material, the City does not
represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at
all.
7.02 Differing site conditions. The Contractor shall promptly, and before such conditions are
disturbed, notify the City in writing of: (1) subsurface or latent physical conditions at the site
differing materially from those indicated in the Contract, or (2) unknown physical conditions at
the site, of an unusual nature, differing materially from those ordinarily encountered and
generally recognized as inherent in Work of the character provided for in this Contract. The City
shall investigate the conditions, and if it finds that such conditions do materially so differ and
cause an increase or decrease in the Contractor's cost of, or the time required for, performance
of any part of the Work under the Contract, whether or not changed as a result of such
conditions, an adjustment shall be made, through negotiation and mutual agreement, and the
Contract modified in writing accordingly.
Section 8. CEASE AND DESIST ORDER/CITY'S RIGHT TO PERFORM WORK
8.01 In the event the Contractor fails or refuses to perform the Work, or any separable part thereof,
as required herein, or with the diligence that will ensure its proper, timely completion in
accordance with the contract documents, the City may instruct the Contractor, by written notice,
to cease and desist further Work, in whole or in part, or to correct deficient Work. Upon receipt
of such instruction, the Contractor shall immediately cease and desist, or proceed, as instructed
by the City. In the event the City issues such instructions to cease and desist, the Contractor
must, within seven calendar days of receipt of the City's instructions, provide a written, verified
plan to eliminate or correct the cause of the City's order, which plan appears to the City to be
reasonable, actually attainable and in good faith. In the event that the Contractor fails and/or
refuses to provide such a plan or diligently execute an approved plan, then the City shall have
the right, but not the obligation, to carry out the Work, or any portion thereof, with its own forces,
or with the forces of another contractor, and the Contractor shall be fully responsible and liable
for the costs of the City performing such Work, which costs may be withheld from amounts due
to the Contractor from the City. The rights set forth herein are in addition to, and without
prejudice to, any other rights or remedies the City may have against the Contractor. If Work
completed by the City or other contractor affects, relates to, or is to be attached onto or
extended by later Work of the Contractor, the Contractor shall, prior to proceeding with the later
Work, and to the extent visible, report any apparent defects or variance from the Contract
requirements which would render the Contractor's later Work not in compliance with the
Contract requirements or defective or not in compliance with warranties or other obligations of
the Contractor hereunder.
8.02 The provisions of this section shall be in addition to the City's ability to remove portions of the
Work from the Contract and complete it separately.
Section 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
Design Build Contract
In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in the
Contract Documents, the Contractor shall have and perform the following duties, obligations and
responsibilities to the City:
9.01 Reference is hereby made to the continuing duties set forth in Section 3.08 above, which are
by reference hereby incorporated in this Section 9.01, The Contractor shall not perform any
Work without adequate plans and specifications, or without, as appropriate, approved shop
drawings, or other submittals. If the Contractor performs Work knowing or believing, or if
through exercise of reasonable diligence it should have known that such Work involves an error,
inconsistency or omission in the Contract without first providing written notice to the City, the
Contractor shall be responsible for such Work and shall correct same bearing the costs set forth
in Section 3.08 above and other applicable provisions of this Contract Agreement.
9.02 All Work shall strictly conform to the requirements of the Contract. To that end, the Contractor
shall be solely responsible for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work, unless otherwise
specified in the Contract Documents. Contractor shall be solely responsible for the selection,
supervision, training, and quality of performance of persons ensuring that the final Project shall
fully comply with all applicable disability access standards, including but not necessarily limited
to the current requirements of the Americans with Disabilities Act of 1990 ("ADA"), as amended
at the time any of the Work is performed and the current requirements Texas Accessibility
Standards ("TAS"), as amended at the time any of the Work is performed.
9.03 The Work shall be strictly supervised, the Contractor bearing full responsibility for any and all
acts, errors or omissions of those engaged in the Work on behalf of the Contractor, including,
but not limited to, all subcontractors and their employees. The Contractor shall maintain an on -
site superintendent while any portion of the Work is being performed. The Contractor shall
operate exclusively in the capacity of the City's independent contractor as to all Work it performs
under the Contract, and not as an agent, employee, or representative of the City. All licensed
engineers or registered architects are required to perform their respective services relating to
the Work with the professional skill and care ordinarily provided by competent engineers or
architects practicing under the same or similar circumstances and professional license, and as
expeditiously as is prudent considering the ordinary professional skill and care of a competent
engineer or architect.
9.04 The Contractor hereby warrants that all laborers furnished under the Contract shall be qualified
and competent to perform the tasks undertaken, that all materials and equipment provided shall
be new (unless otherwise specified) and of high quality unless otherwise required or permitted
by the Contract, that the completed Work will be complete, of high quality, without defects not
inherent in the Project specifications, or otherwise required by law, and that the Work will
conform to the requirements of the Contract Documents, and that all Work strictly complies with
the requirements of the Contract. Any Work not strictly complying with the requirements of the
Contract shall constitute a breach of the Contractor's warranty. The Contractor's warranty
excludes remedy for damage or defect caused by abuse (use of the system or any components
in a way not reasonably anticipated or expected), modifications executed by any party other
than Contractor, improper or insufficient maintenance (for example, but not as a limitation,
maintenance performed by uncertified parties or parties not approved by the manufacturer of
the applicable component), improper operation or normal (reasonably anticipated or expected)
wear and tear and normal usage (in other words, systems, components and materials are not
expected to operate as "brand new" as time goes by).
Design Build Contract Page 11
9.05 The Contractor will be responsible for acquiring all required permit(s)—except as specifically
stated in Section 22.01 below —and calling for all required or routine inspections. The
Contractor will cooperate with and abide by the decision of inspectors having jurisdiction.
Should the Contractor have a dispute with any inspector or entity having jurisdiction, the
Contractor shall promptly notify the City Manager or the City Manager's designee. The
Contractor shall comply with all legal requirements applicable to the Work.
9.06 The Contractor shall employ and maintain at the Project site only competent, qualified full-time
supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are
as follows:
NAME FUNCTION
If at any time the City reasonably determines that any employee of the Contractor
is not properly performing the Work in the best interest of the City or the Project, or
is hindering the progress of the Work, or is otherwise objectionable, the City shall
so notify the Contractor, which shall replace the employee as soon as possible, at
no increased cost to the City.
9.07 The Contractor must submit to the City the Contractor's schedule for completing the Work prior
to submittal of the first application for payment. The City will not review any payment request
until such schedule has been submitted and approved. Such schedule shall be in a form as
specified in the Contract or which shall have been approved by the City Manager or the City
Manager's designee, and which shall provide for expeditious and practicable construction of the
Project. The Contractor's schedule shall be updated no less frequently than monthly (unless the
parties otherwise agree in writing) and shall be updated to reflect conditions encountered from
time to time and shall apply to the total project. Each such revision shall be furnished to the City.
Strict compliance with the requirements of this Section 9.07 shall be a condition precedent to
payment to the Contractor.
9.08 The Contractor shall keep an updated copy of the Contract Documents at the site. Additionally,
the Contractor shall keep a copy of approved shop drawings and other submittals. All of these
items shall be available to the City during all regular business hours.
9.09 Shop drawings and other such submittals from the Contractor do not constitute a part of the
Contract. The Contractor shall not do any Work requiring shop drawings or other submittals
unless such shall have been approved in writing by the City or as required by the Contract
Documents. All Work requiring approved shop drawings or other submittals shall be done in
strict compliance with such approved documents or Contract requirements. However, approval
by the City shall not be evidence that Work installed pursuant thereto conforms with the
requirements of the Contract and shall not relieve the Contractor of responsibility for deviations
from the Contract unless the City has been specifically informed of the deviation by a writing
incorporated in the submittals and has approved the deviation in writing.
Design Build Contract Page 12
The delivery of submittals shall constitute a representation by the Contractor that it has verified
that the submittals meet the requirements of the Contract, or will do so, including field
measurements, materials, and field construction criteria related thereto.
The City shall have no duty to review partial submittals or incomplete submittals. The Contractor
shall have the duty to carefully review, inspect, examine and provide the applicable required
certifications (including any necessary physical stamps or "wet" signatures reasonably
requested by the City) for any and all submittals before submission of same to the City. When
the Contract requires professional design services or certifications related to systems, materials
or equipment, or when the Contractor in its discretion provides such design services or
certifications through a separate contractor, the Contractor shall cause professional design
services or certifications to be provided by a properly licensed design 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 professionals, if prepared by others,
shall bear such design professional's written approval. The City shall be entitled to rely upon the
adequacy, accuracy and completeness of the services, certifications or approvals performed by
such design professionals.
9.10 The Contractor shall maintain the Project site and adjacent areas affected by its Work and/or
the acts of its employees, materialmen and subcontractors in a reasonably clean condition
during performance of the Work. Upon substantial completion, the Contractor shall thoroughly
clean the Project site of all debris, trash and excess materials or equipment. If the Contractor
fails to do so, the City may complete the cleanup, by its own forces or by separate contract, and
shall be entitled to charge the Contractor for same through the collection or withholding of funds
through the mechanisms provided elsewhere in this Contract Agreement or as otherwise
permitted by law.
9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to
enter upon the Project site and any offsite lay down areas, safety permitting, and to review or
inspect the Work and any materials on any such site, without formality or other procedure.
9,12 The Contractor recognizes that the City may enter into other contracts to perform Work relating
to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its
forces reasonably accommodate the forces of the City and other contractors hired by the City.
The Contractor shall coordinate its schedule with the Work of other contractors. If the Contractor
claims that delay or damage results from these actions of the City, it shall promptly submit a
claim as provided herein.
9.13 Protection of persons and property.
(1) It shall be the responsibility of the Contractor to initiate, continue and supervise all safety
programs and precautions in the performance of the terms of the Contract. The
Contractor shall take reasonable precautions for the safety of, and shall provide
reasonable protection to prevent damage, injury or loss to its employees, subcontractors'
employees, employees of the City and members of the public, the Work itself and
unassembled components thereof, and other property at the site or adjacent thereto. As
part of the Contractor's obligations hereunder, the Contractor shall erect and maintain all
necessary and prudent safeguards, barriers, signs, warnings, etc.
(2) With notice to the City, the Contractor shall promptly remedy loss or damage to the Work
or any person or property described herein to the extent caused in whole or in part by
the acts of the Contractor or any of Contractor's agents (inclusive of all subcontractors,
Build Contract
sub -subcontractors or materialmen) except damage or loss attributable to acts or
omissions of the persons subject to City control. This obligation shall be in addition to the
requirements of Section 10 herein. The City may direct the Contractor to remedy known
violations of applicable laws, rules, regulations, and interpretations related to safety
when and if observed on the site. However, through exercising this authority the City
shall not incur any obligations to monitor, initiate, continue, or supervise safety programs
and precautions such to diminish the Contractor's primary role in same. The City shall
have the right to report suspected safety violations to the Occupational Safety and
Health Administration (OSHA) or other appropriate authorities.
(3) The Contractor shall promptly notify the City upon discovery of any unidentified material
which Contractor reasonably believes to be asbestos, lead, PCB, or other hazardous
material, and shall immediately stop Work in the affected area of the Project. The
Contractor shall not be responsible for removal or other Work with regard to such
hazardous material unless otherwise agreed between the City and the Contractor.
Contractor has the right to stop Work due to the discovery of hazardous materials until
they have been removed or rendered harmless. The Contract time shall be extended
and the Contract sum shall be increased in the amount of the Contractor's reasonable
additional costs of shutdown, delay and start-ups, which shall be accomplished as
provided in Section 13 below. Work will resume in the affected area of the Project
immediately after such time as the hazardous material has been removed or rendered
harmless, as certified by an industrial hygienist to be engaged by the City.
9.14 The Contractor warrants to the City that materials and equipment furnished under the Contract
are of good quality and new unless otherwise required or permitted under the Contract
Documents, that the Work will be free from defects not inherent in the Project specifications, or
otherwise required by law, and that the Work will conform to the requirements of the Contract
Documents. Work not conforming to these requirements, including substitutions not properly
approved and authorized, may be considered defective. The Contractor's warranty excludes
remedy for damage or defect caused by abuse, modifications not executed by the Contractor,
improper or insufficient maintenance not the fault of the Contractor, improper operation not the
fault of the Contractor, or normal wear and tear and normal usage. If required by the City, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and
equipment.
Section 10. INDEMNITY
Contractor
shall
indemnify
and
hold
harmless
to
the
maximum
extent
permitted
by
law.
City and its officials officers agents
employees, representatives, and
consultants
from
and against any and all liability, damages
losses, including personal
iniurv,
accidental
death or property damage and costs
(including reasonable attorney's
fees and
related
expenses and expert fees and related
expenses incurred in any matter,
including
a
proceeding to enforce this Section 10) to the extent caused by the negligence,
Design Build Contract Page �4
Section 11. CLAIMS BY THE CONTRACTOR
Claims by the Contractor against the City, other than for time extensions covered by Section 6 hereof,
are subject to the following terms and conditions:
11.01 All Contractor claims against the City shall be initiated by a written claim submitted to the City.
Notice of such claim shall be received by the City no later than either 21 calendar days after the
event, or 21 calendar days after the first appearance of the circumstances causing the claim,
whichever is sooner, and same shall set forth in detail all known facts and circumstances
supporting the claim. All known costs associated with any claim upon which notice has been
filed must be submitted in writing to the City within 30 calendar days after notice has been
received or such claims shall be deemed waived by the Contractor.
11.02 The Contractor and the City shall continue their performance hereunder regardless of the
existence of any claims submitted by the Contractor including claims set forth in Section 6
hereof.
11.03 In the event the Contractor discovers previously concealed and unknown site conditions which
are materially at variance from those typically and ordinarily encountered in the general
geographical location of the Project, the Contract Price may, with the approval of the City, be
modified, either upward or downward, upon the written notice of claim made by either party
within 10 calendar days after the first appearance to such party of the circumstances. All known
costs must be submitted within 30 calendar days after such notice is received by the City,
unless extended by written agreement of the parties or such claims shall be deemed waived by
the Contractor. As a condition precedent to the City having any liability to the Contractor due to
concealed and unknown conditions, the Contractor must give the City written notice of, and an
opportunity to observe, such condition prior to disturbing it. Provided however, that the City
recognizes some disturbance of the conditions may have occurred in the discovery of the
condition, and this type of "disturbance" does not waive or invalidate the City's liability
obligation. The failure by the Contractor to timely give the written notice and make the claim as
provided by this Section 11.03 and as required elsewhere under the Contract shall constitute a
waiver by the Contractor of any rights arising out of or relating to such concealed and unknown
condition. In an emergency affecting safety of persons or property, the Contractor shall act, at
the Contractor's discretion, to prevent or mitigate threatened damage, injury or loss. Additional
compensation or extension of time claimed by the Contractor on account of an emergency shall
be determined as provided in Section 13.
11.04 In the event the Contractor seeks to make a claim for an increase in the Contract Price, as a
condition precedent to any liability of the City therefor, unless emergency conditions exist, the
Contractor shall strictly comply with the requirements of this Section 11 and such claim shall be
made by the Contractor before proceeding to execute any Work for which a claim is made.
Failure to comply with this condition precedent shall constitute a waiver by the Contractor of any
claim for additional compensation.
11.05 In connection with any claim by the Contractor against the City that would result in
compensation in excess of the Contract Price, any liability of the City for the Contractor's cost in
this regard shall be limited to those cost categories set forth in Section 13.07 below.
Design Build Contract Page 15
Section 12. SUBCONTRACTORS
1101 Prior to execution of the Contract, the Contractor shall have identified to the City in writing,
those parties to be used as subcontractors on the Project. Any changes to this list at any time
shall be subject to the prior approval of the City. The City shall, in writing, state any objections
the City may have to one or more of such subcontractors. The Contractor shall not enter into a
subcontract with an intended subcontractor to whom the City objects. If at any time the City
objects to a subcontractor, the Contractor shall solicit proposals from potential replacements
and shall submit the three lowest responsible proposals to the City, along with the Contractor's
proposed choice as replacement. If the approved replacement subcontractor's cost is verified to
be higher than the removed subcontractor, the excess shall be added to the Contract Price,
unless the subcontractor in question has to be removed due to a default, or deficient
performance.
If the approved replacement subcontractor's cost is lower than the removed subcontractor, the
difference shall be deducted from the Contract Price. Subcontractor markups shall be limited to
those listed in Section 13.07 below.
All subcontracts shall afford the Contractor rights against the subcontractor which correspond to
those rights afforded to the City against the Contractor herein, including those rights of Contract
termination as set forth herein below.
12.02 Each and every subcontract related to the Project is hereby assigned by the Contractor to the
City, contingent upon the termination of the Contract for default or convenience as provided
herein, and only as to those subcontracts which the City accepts in writing directed to the
Contractor. This contingent assignment is subject to the prior rights of any surety obligated
under a bond related to the Contract. This contingent assignment will operate prospectively from
the effective date of assignment and will not obligate the City to any liabilities existing on the
effective date of the assignment, or arising from events, acts, failures to act, facts or
circumstances existing prior to the effective date of the assignment. The contracts subject to this
contingent assignment shall also be further assignable by the City, at the City's sole option. The
Contractor shall bear the responsibility of notifying subcontractors of this contingent assignment
and including it in all subcontracts in connection with the Project.
Section 13. CHANGE ORDERS
13.01 The City Manager or the City Manager's express designee shall be the sole authorized
representative of the City. Other than in matters of public safety or in time of emergency
management, the Contractor shall not take direction or act upon information from any City
personnel other than the City Manager's expressly authorized designee(s).
13.02 One or more changes to the Work within the general scope of the Contract, may be ordered by
Change Order. The City may also issue written directions for minor changes in the Work and
may issue Construction Change Directives, as set forth below. The Contractor shall proceed
with any such changes or Construction Change Directives without delay and in a diligent
manner, and same shall be accomplished in strict accordance with the terms and conditions set
forth herein.
13.03 "Change Order" shall mean a written order directed to the Contractor and executed by the City
and by Contractor after execution of the Contract, directing a change in the Work. A Change
Order may include a change in the Contract Price, (other than a change attributable to damages
for delay as provided in Section 6 hereof), or the time for the Contractor's performance, or any
Contract Page 16
combination thereof. Where there is a lack of total agreement on the terms of a Change Order
or insufficient time to execute a bilateral change, the City may also direct a change in the Work
in the form of a Construction Change Directive, which will set forth the change in the Work and
the change, if any, in the Contract Price or time for performance, for subsequent inclusion in a
Change Order; Construction Change Directives shall include a not -to -exceed preliminary price,
against which the Contractor may begin billing (subject to the requirements for pay applications
elsewhere herein) as the Work is performed.
(1) The Contractor shall furnish a price breakdown, itemized as required and within the time
specified by the City, with any proposal for a contract modification.
(2) The price breakdown
(a) must include sufficient detail to permit an analysis of all costs for material, labor,
equipment and subcontracts, and
(b) must cover all Work involved in the modification, whether the Work was deleted,
added or changed.
(3) The Contractor shall provide similar price breakdowns to support any amounts claimed
for subcontracts.
(4) The Contractor's proposal shall include a complete justification for any time
extension proposed.
13.04 Any change in the Contract Price resulting from a Change Order shall be determined as follows:
(1) By mutual agreement between the City and the Contractor as evidenced by (a) the
change in the Contract Price being set forth in the Change Order, (b) such change in the
Contract Price, together with any conditions or requirements relating thereto, being
initialed by both parties and (c) the Contractor's execution of the Change Order; or,
(2) If no mutual agreement occurs between the City and the Contractor, the change in the
Contract Price, if any, shall be derived by determining the reasonable actual costs
incurred or savings achieved, resulting from revisions in the Work. Such reasonable
actual costs or savings shall include a component for direct job site overhead and profit
but shall not include home -office overhead or other indirect costs or components. The
calculation of actual costs shall conform to the markup schedule in Section 13.07 below.
Any such costs or savings shall be documented in the format, and with such content and
detail as the City requires.
The Contractor shall promptly submit such documentation and other supporting materials as the
City may require in evaluating the actual costs incurred or to be incurred.
13.05 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the
Contractor's agreement to the ordered changes in the Work, the Contract as thus amended, the
Contract Price and the time for performance by the Contractor, regardless of the nature, amount
or extent of the changes. The Contractor, by executing the Change Order, waives and forever
releases any claim against the City for additional time or compensation for matters relating to,
arising out of, or resulting from the Work included within or affected by the executed Change
Order of which the Contractor knew or should have known.
Design Build Contract Page 17
13.06 The Contractor shall notify and obtain the consent and approval of the Contractor's surety with
reference to all Change Orders if such notice, consent or approval are required by the City, the
Contractor's surety or by law. The Contractor's execution of the Change order shall constitute
the Contractor's warranty to the City that the surety has been notified of, and consents to, such
Change Order and the surety shall be conclusively deemed to have been notified of such
Change Order and to have expressly consented thereto.
13.07 For the purpose of Change Orders, the following definitions of terms and other restrictions
apply:
Contractor's or Subcontractor's Materials shall include the cost of materials, sales tax,
and the cost of all transport. The cost of items listed shall be directly related to the
Change Order. Indirect costs not specifically related to the Change Order shall not be
considered.
Contractor's or Subcontractor's Direct Labor Cost shall be limited to the hourly rate of
directly involved workmen, employer contributions towards company standard benefits,
pensions, unemployment or social security (if any), and employer costs for paid sick and
annual leave.
Contractor's or Subcontractor's Overhead shall include license fees, bond premiums,
supervision, wages of timekeepers and clerks, incidentals, home and field office
expense, and vehicle expense directly related to the Project, and all other direct Project
expenses not included in the Contractor's materials, direct labor, and equipment costs.
The allowance for Overhead and Profit shall be limited to the following schedule:
For the Contractor, for any Work performed by the Contractor's own forces, 10%
of the Subtotal of Costs to the Contractor.
2. For the Contractor, for any Work performed by its Subcontractor, 5% of the
amount due the Subcontractor.
3. For each Subcontractor or Sub -subcontractor involved, for any Work performed
by their own forces, 10% of their materials and direct labor costs.
4. For each Subcontractor, for Work performed by its Sub-subcontractor(s), 5% of
the amount due the Sub -subcontractor.
For Change Orders, the total cost or credit to the City shall be based on the following
schedule:
Contractor's Materials Cost
+Contractor's
Direct Labor Costs
+Contractor's
Equipment Costs (includes owned/rental
equipment)2
2 Owned Equipment For equipment owned by the Contractor, actually used in Change Order work including sales tax, or any
related business entity, regardless of whether Contractor leases such equipment from the related business entity, the cost
shall be the lesser of (i) the Contractor's actual ownership cost, or (ii) 85 % of the applicable ownership cost listed in the most
recent edition of the Contractor's Equipment Cost Guide, published by Dataquest.
Design Build Contract Page 18
+ Applicable Subcontractor Costs
=Subtotal of Costs to the Contractor
+ Contractor's Overhead and Profit
=Total Cost or Credit to the City
13.08 Nothing Contained in this section shall be deemed to contradict or limit the terms of Section
6.05 above.
Section 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK
14.01 In the event that the Contractor covers, conceals or obscures its Work in violation of the
Contract or in violation of an instruction from the City, such Work shall be uncovered and
displayed for review by the City and/or its consultants upon request, and shall be reworked at no
cost in time or money to the City.
14.02 If any of the Work is covered, concealed or obscured in a manner not covered by Section 14.01
above, it shall, if directed by the City, be uncovered and displayed for the City and/or its
consultants. If the uncovered Work conforms strictly with the Contract, the costs incurred by the
Contractor to uncover and subsequently, replace such Work shall be borne by the City.
Otherwise, such costs shall be borne by the Contractor.
14,03 The Contractor shall, at no cost in time or money to the City, correct Work rejected by the City
as defective or failing to conform to the Contract. Additionally, the Contractor shall reimburse the
City for all testing, review, inspections and other expenses incurred as a result thereof.
14.05 In addition to its warranty obligations set forth elsewhere in this Contract Agreement and any
manufacturer's warranties provided on the Project, and in addition to other remedies provided
herein or by law to the City, the Contractor shall be specifically obligated to promptly correct any
and all defective or nonconforming Work, whether obvious or after -discovered, for a period of 12
months following Substantial Completion upon written direction from the City.
14.06 The City may, but shall in no event be required to, choose to accept defective or nonconforming
Work. In such event, the Contract Price shall be reduced by the greater of (1) the reasonable
costs of removing and correcting the defective or nonconforming Work, or (2) the difference
between the fair market value of the Project as constructed and the fair market value of the
Project had it not been constructed in such a manner as to include defective or nonconforming
Work. If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate
the City for the acceptance of defective or nonconforming Work, the Contractor shall, upon
written demand from the City, accompanied by a detailed accounting of the costs to finish the
defective or non -conforming Work, pay the City such costs. The Contractor shall have an
opportunity to correct any defect or non-conformance prior to the City taking the above actions.
The Contractor, upon written notice of any defect or non-conformance, shall have 10 calendar
days to make corrections, unless the City agrees that the correction will reasonably require
more than 10 calendar days to correct.
Section 15, CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE
Third Party Rental Equipment For equipment actually rented by the Contractor, actually used in Change Order work
including sales tax, from an unrelated third party, the cost shall be the lesser of (i) the Contractor's actual rental cost, or (ii)
85 % of the applicable equipment rates based on the most recent edition of the Rental Rate Bluebook for Construction
published by Dataquest. A reasonable rental cost shall be allowed as determined by the City Manager or the City Manager's
designee when machinery and construction equipment not so listed is required.
Build Contract
15.01 In addition to the City's rights under Section 8 and elsewhere in this Contract Agreement, the
City shall have the right at any time to direct the Contractor to suspend its performance, or any
designated part thereof when in the interests of the City. If any such suspension is directed by
the City, the Contractor shall immediately comply with same.
15.02 In the event the City directs a suspension of performance under this section, through no fault of
the Contractor, if the suspension is lifted other than by Termination, the City shall pay the
Contractor as full compensation for such suspension and for the Contractor's ordinary and
reasonable costs, actually incurred and paid, of:
(1) demobilization and remobilization, including such
justifiable costs
paid to
subcontractors
(cost categories and markups limited to those set
forth in Section
13.07
above);
(2) preserving and protecting Work in place;
(3) approved storage of materials or equipment purchased for the Project, including
insurance thereon; and
(4) substantiated extended field office overhead but no home -office overhead.
15.03 Following notice and a reasonable time to cure provided to Contractor and its surety, the City
may order suspension of the Work in whole or in part for such time as deemed necessary
because of the failure of the Contractor to comply with any of the requirements of this Contract
Agreement, provided that such failure to comply is likely to have a negative impact on the
project quality or completion time, and the Contract Agreement's completion date shall not be
extended on account of any such suspension of Work, except to the extent it is later determined
that City's determination to suspend Work was not reasonable. When the City orders any
suspension of the Work under this Section 15.03, the Contractor shall not be entitled to any
payment for Work which the Contractor performs after notice of suspension and/or during the
suspension period and shall not be entitled to any costs or damages resulting from such
suspension.
15.04 The City's rights under this Section 15 shall be in addition to those contained elsewhere in the
Contract or provided by law.
15.05 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive
days through no act or fault of the Contractor, its Subcontractors or their agents or employees or
any other persons or entities performing portions of the Work under direct or indirect contract
with the Contractor, for any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires
all Work to be stopped;
2 an act of government, such as a declaration of national emergency which requires all Work
to be stopped;
3 the City has failed to make payment to the Contractor in accordance with the Contract
Documents,
The Contractor may terminate the Contract if, through no act or fault of the Contractor, its
Subcontractors or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, repeated suspensions,
delays or interruptions of the entire Work by the City, constitute in the aggregate more than 100
percent of the total number of days scheduled for completion, or 120 days in any 365-day
period, whichever is less. If one of the reasons described in in this Section 15.05 exists, the
Design Build Contract Page 20
Contractor may, upon seven days' written notice to the City, terminate the Contract and recover
from the City payment for Work executed and for proven loss with respect to materials,
equipment, tools, and construction equipment and machinery, including reasonable overhead,
profit and damages.
For purposes of subsections 15.05.1 and 15.05.2, determination of whether an event "requires
all Work to be stopped" shall be based on an objective comparison between the activities
constituting the Work and the legal effect of the order or act at issue. An order or act which
increases Contractor's expense or imposes other burdens to Contractor (e.g., an order requiring
masks or other PPE due to COVID-19 concerns), but still provides lawful means for Contractor
to continue carrying out the Work, shall not be a basis for termination of the Contract under this
section unless and until Contractor and City have engaged in good faith negotiations regarding
suitable Change Orders or other contract amendments to address the issues. If such
negotiations cannot resolve the issues within 90 days of stoppage of the Work in response to an
event described in 15.05.1 or 15.05.2, Contractor will thereafter be entitled to terminate the
Contract in accordance with this paragraph.
Section 16. TERMINATION BY THE CITY
The City may terminate the Contract in accordance with the following terms and conditions:
16.01 Termination for Convenience. The City may, when in the interests of the City, terminate
performance under the Contract by the Contractor, in whole or in part, for the convenience of
the City. The City shall give written notice of such termination to the Contractor specifying when
termination becomes effective. The Contractor shall incur no further obligations in connection
with the Work so terminated, other than warranties and guarantees for completed Work and
installed equipment, and the Contractor shall stop Work when such termination becomes
effective. The Contractor shall also terminate outstanding orders and subcontracts for the
affected Work. The Contractor shall settle the liabilities and claims arising out of the termination
of subcontracts and orders. The City may direct the Contractor to assign the Contractor's right,
title and interest under termination orders or subcontracts to the City or its designee. The
Contractor shall transfer title and deliver to the City such completed or partially completed Work
and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has
in its possession or control. When terminated for convenience, the Contractor shall be
compensated as follows:
(1) The Contractor shall submit a termination claim to the City specifying the amounts due
because of the termination for convenience together with costs, pricing or other data
required by the City. If the Contractor fails to file a termination claim within three months
from the effective date of termination, the City shall pay the Contractor, an amount
derived in accordance with subsection (3) below.
(2) The City and the Contractor may agree to the compensation, if any, due to the
Contractor hereunder.
(3) Absent agreement to the amount due to the Contractor, the City shall pay the Contractor
the following amounts:
(a) Contract costs for labor, materials, equipment and other services actually and
satisfactorily performed as required under the Contract, including but not limited
to satisfaction of all conditions and requirements for City acceptance of tendered
delivery of goods or services;
Design Build Contract Page 21
(b) Reasonable costs incurred in preparing to perform and in performing the
terminated portion of the Work, and in terminating the Contractor's performance,
plus a fair and reasonable allowance for direct job site overhead and earned
profit thereon (such profit shall not include anticipated profit or consequential
damages); provided however, that if it reasonably appears that the Contractor
would have not profited or would have sustained a loss if the entire Contract
would have been completed, no profit shall be allowed or included and the
amount of compensation shall be reduced to reflect the anticipated rate of loss, i
any;
(c) Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Subsection (3)(a) above —if contingent
assignment of such contracts has not been elected as provided herein —shall not
include amounts paid in accordance with other provisions of the Contract. This
clause is subject to and the Contractor shall be limited by the City's rights to
direct the replacement of subcontractors under Section 12.01,
The total sum to be paid the Contractor under this Subsection (3) shall not exceed the
total Contract Price, as properly adjusted, reduced by the amount of payments otherwise
made, and shall in no event include duplication of payment.
16.02 Termination for Cause. If the Contractor does not perform the Work, or any part thereof, in a
timely manner, supply adequate labor, supervisory personnel or proper equipment or materials,
or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to
disobey applicable law, or otherwise commits a violation of a material provision of the Contract,
then the City, in addition to any other rights it may have against the Contractor or others, may
terminate the performance of the Contractor, in whole or in part at the City's sole option, and
assume possession of the Project site and of all materials and equipment at the site and may
complete the Work. If any surety timely provides the City with written notice of intent to cure
Contractor's breach, and further commits to doing so within a reasonable time of such notice
and provides security acceptable to the City, the City may elect to withhold termination of the
Contract pending such completion of remedial performance, but without waiver of that right to
terminate if surety's promises are not fulfilled.
In such case, the Contractor shall not be paid further until the Work is complete. After Completion has
been achieved, if any portion of the Contract Price, as it may be modified hereunder, remains after the
cost to the City of completing the Work, including all costs and expenses of every nature incurred, has
been deducted by the City, such remainder shall belong to and inure to the benefit of the City.
Otherwise, the Contractor shall pay and make whole the City for such cost. This obligation for payment
shall survive the termination of the Contract.
In the event the employment of the Contractor is terminated by the City for cause pursuant to
this Section 16.02 and it is subsequently determined by a Court of competent jurisdiction that
such termination was without cause, such termination shall thereupon be deemed a Termination
for Convenience under Section 16.01 and the provisions of Section 16.01 shall apply.
16.03 Termination for Non -Appropriation. The City may also terminate the Contract, in whole or in
part, for non -appropriation of sufficient funds to complete or partially complete the Project,
regardless of the source of such funds, and such termination shall be on the terms of Section
16.01.
16.04 The City's rights under this Section shall be in addition to those contained elsewhere herein or
provided by law.
Design Build Contract Page 22
Section 17, INSURANCE
17.01 Contractor shall be responsible for all damage to persons and or property resulting from its
negligent acts, reckless or intentional misconduct, errors or omissions or those of their
subcontractors, agents or employees in connection with such services and shall be responsible
for all parts of its Work, both temporary and permanent.
17.02 Contractor shall, at its own expense, procure and maintain throughout the term of this Contract
Agreement, with insurers acceptable to City, the types and amounts of insurance conforming to
the minimum requirements set forth in this Contract Agreement. Contractor shall not commence
Work until the required insurance is in force and evidence of insurance acceptable to City has
been provided to, and approved by, the City. The Contractor's current Certificate of Insurance is
incorporated into this Agreement, and a form substantially similar to the example attached shall
be satisfactory evidence of insurance if it is subsequently changed. Until such insurance is no
longer required by the Contract, Contractor shall provide the City with renewal or replacement
evidence of insurance at least 30 days prior to the expiration or termination of such insurance.
17.03 Contractor's policies shall provide no less than the following coverage:
Workers' Compensation/Employer's Liability Insurance
Worker's Compensation Insurance in accordance with statutory requirements, and Employers'
Liability Insurance with limits of not less than $1,000,000 for each accident.
General Liability Insurance
Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000
for each occurrence and not less than 132,000,000 in the aggregate, and with property damage
limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the
aggregate.
Automobile Liability Insurance
Automobile Liability Insurance with bodily injury limits of not less than $1,00,000 for each person
and not less than $1,000,000 for each accident, and with property damage limits of not less than
$1,000,000 for each accident.
Other Errors and Omissions
Insurance policies of Contractor and subcontractors must provide coverage for defective
pertormance, including without limitation errors and omissions, associated with ensuring the
design and construction of the Project fully complies with ADA and TAS standards and naming
the City as an additional insured for same.
17.04 Contractor shall furnish insurance certificates or insurance policies at the City's request to
evidence such coverages. Except for workers compensation, the insurance policies shall name
the City as an additional insured, and shall contain a provision that such insurance shall not be
canceled or reduced with respect to by coverages or endorsements without 30 days' prior
written notice to City. In such event, Contractor shall, prior to the effective date of the change or
cancellation, obtain substitute policies furnishing the same coverage in full force.
Design Build Contract Page 23
17.05 Compliance with these insurance requirements shall not limit the liability of Contractor. Any
remedy provided to the City by any insurance maintained by the Contractor shall be in addition
to and not in lieu of any other remedy (including, but not limited to, as an indemnitee of
Contractor) available to the City under the Contract or otherwise.
17.06 Neither approval nor failure to
disapprove
insurance furnished
by
Contractor shall relieve
Contractor from responsibility
to provide insurance
as required
by
this Contract Agreement.
17.07 Contractor shall deliver to City the required certificates) of insurance and endorsements)
before City signs this Contract Agreement.
17.08 Contractor's failure to obtain, pay for, or maintain any required insurance shall constitute a
material breach upon which City may immediately terminate or suspend this Contract
Agreement. In the event of any termination or suspension, City may use the services of another
consultant or consultants, without City's incurring any liability to Contractor.
17.09 If Contractor fails to obtain or maintain the insurance required by this Agreement, then the City
may obtain or renew Contractor insurance, and City may pay all or part of the premiums. Upon
demand, Contractor shall repay City all monies paid to obtain or renew the insurance. City may
offset the cost of the premium against any monies due Contractor from City.
17.10 The Contractor shall furnish to the City Certificates of Insurance allowing thirty (30) days' notice
for any insurance change, cancellation, or non -renewal. Such Certificates shall contain the
following wording:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE
THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS
PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN."
If the insurance policies expire during the terms of the Contract, a renewal certificate or binder
shall be filed with the City at least 30 days prior to the renewal date.
17.11 In addition to the coverages required herein, the Contractor shall furnish and maintain all-risk
builder's risk property insurance, satisfactory to the City, upon the entire Work at the site to the
full replacement cost of the completed project. This coverage shall name City as an additional
insured, must include the interests of the Contractor, subcontractors and sub -subcontractors in
the Work, and must be procured from an insurer licensed to do business in the State of Texas
with a Best's rating of "A+, Al A-". The policy must insure against perils including, but not limited
to, earthquake, fire, extended coverages, windstorm, lightning, flood, and physical loss or
damage, including theft, vandalism and malicious mischief.
Section 18. BONDS
18.01 Contractor shall provide City with a Performance Bond, and a Payment Bond, meeting the
standards specified in the Contract Documents, on the forms provided by the City, and attached
hereto, with a Power of Attorney Affidavit, each in an amount not less than the Contract Price.
18.02 Sureties' qualifications. All bonds, to the extent required under the Contract, including, but not
by way of limitation, any Bid/Proposal Bond, Performance Bond, or Payment bond, shall be
written through a reputable and responsible surety bond agency licensed to do business in the
State of Texas and with a surety which holds a certificate of authority authorizing it to write
surety bonds in Texas and maintains a current certificate of authority as an acceptable surety on
Federal Bonds in accordance with U.S. Department of Treasury Circular 570. However, if the
Design Build Contract Page 24
amount of the bond exceeds the underwriting limitations set forth in the Circular, in order to
qualify, the net retention of the surety company shall not exceed the underwriting limitation in
the Circular and the excess risk must be protected by co-insurance, reinsurance, or other
methods in accordance with Treasury Circular 297, revised September 1, 1978 (3) CFR Section
223.10 - Section 223.111 and the surety company shall provide the City with evidence
satisfactory to the City, that such excess risk has been protected in an acceptable manner.
18.03 Additional or replacement bond. The City shall approve bonds as to form. It is further mutually
agreed between the parties hereto that if, at any time, the City shall reasonably deem the surety
or sureties upon any bond to be unsatisfactory, or if, for any reason, such bond (because of
increases in the Work or otherwise) ceases to be adequate, the Contractor shall, at its expense
within five days after the receipt of notice from the City so to do, furnish an additional or
replacement bond or bonds in such form, amount, and with such surety or sureties as shall be
satisfactory to the City. In such event, no further payments to the Contractor shall be deemed to
be due under the Contract until such new or additional security for the faithful performance of
the Work shall be furnished in manner and form satisfactory to the City. A failure to reject a
surety who is unacceptable or fails to perform its obligations shall incur no liability to the City.
18.04 As applicable to all bonds required under the Contract, the surety company shall have a Texas
agent whose name shall be listed in the prescribed space on the forms provided by the City for
all bonds required by the City, or otherwise listed therein if the form of the Bond is not
prescribed by the City.
Section 19. PROJECT RECORDS
All documents relating in any manner whatsoever to the Project, or any designated portion thereof,
which are in the possession of the Contractor, or any subcontractor of the Contractor, shall be made
available to the City and/or its consultants for inspection and copying upon written request by the City.
Furthermore, said documents shall be made available, upon request by the City, to any state, federal or
other regulatory authority and any such authority may review, inspect and copy such records. Said
records include, but are not limited to, all drawings, plans, specifications, submittals, correspondence,
minutes, memoranda, tape recordings, videos, or other writings or things which document the Project,
its design, and its construction. Said records expressly include those documents reflecting the cost of
construction to the Contractor. The Contractor shall maintain and protect these documents for not less
than four years after completion of the Project, or for any longer period of time as may be required by
law or good construction practice. The Contractor further agrees to include these provisions in any
subcontracts issued by him in connection with this Contract Agreement.
Contractor shall provide copies of documents relating to the Project to the City within 5 business days
of receipt of a written request from the City.
Section 20. APPLICABLE LAW
The laws
of the State
of Texas
shall govern this Contract
Agreement. In
any litigation arising under this
Contract
Agreement,
venue for
all suits is agreed to be in
a state district
court of Collin County, Texas.
Section 21. SUCCESSORS AND ASSIGNS
Each party binds itself, its successors, assigns, executors, administrators or other representatives to
the other party hereto and to successors, assigns, executors, administrators or other representatives of
such other party in connection with all terms and conditions of the Contract. The Contractor shall not
assign the Contract without prior written consent of the City.
Build Contract Page 25
Section 22. MISCELLANEOUS PROVISIONS
22.01 Construction Permits. The City hereby agrees to waive the charge for a City -issued building
permit for this Project. However, the Contractor is responsible for obtaining all permits or fees
otherwise required of the Contractor by the Contract Documents, or permits and fees
customarily the responsibility of the Contractor.
22.02 Compliance By Contractor: Nondiscrimination. Contractor shall comply with all Federal, State
and local laws, ordinances, rules and regulations of any authorities throughout the duration of
the Contract. The Contractor shall be responsible for compliance with any such law, ordinance,
rule or regulation and shall hold City harmless and indemnify same in the event of non-
compliance. Contractor further agrees to abide by the requirements under Federal Executive
Order Number 11246, as amended, including specifically the provisions of the equal opportunity
clause.
22.03 State and Local Taxes. Except as otherwise provided, contract prices shall include all applicable
state and local taxes. Contractor shall indemnify and hold harmless the City for any loss, cost or
expense incurred by, levied upon or billed to the City as a result of Contractor's failure to pay
any tax of any type due in connection with this Contract Agreement. Contractor shall ensure that
the above sections are included in all subcontracts and sub -subcontracts, and shall ensure
withholding on out of state sub and sub -subcontractors to which withholding is applicable.
22.04 Any and all notices required to be sent under the Contract or otherwise shall be sent to the
following addresses by certified U.S. mail, return receipt request (in which case notice shall be
deemed delivered 3 days after proper deposit with USPS, postage prepaid) or by overnight
delivery via FedEx or UPS (in which case notice shall be deemed delivered upon actual receipt):
If to the City:
City of Anna
Attn: City Manager
120 W Seventh Street
Anna, Texas 75409
With a mandatory copy to:
Clark McCoy
Wolfe, Tidwell &McCoy, LLP
2591 N. Dallas Parkway, Suite 300
Frisco, TX 75034
If to the Contractor:
Build Contract Page 26
22.05 Protection of the Public. For protection and convenience of the public and emergencies, the
successful bidder shall furnish the City with a telephone number where the Contractor can be contacted
24 hours a day during the entire construction period of this project. This telephone number shall be
furnished to the City in writing prior to the beginning of construction.
22.06 Affidavit Against Prohibited Acts. It shall be Contractor's responsibility to complete the affidavit
against prohibited acts, completed and return on the form specified by the City, prior to execution of the
Contract Agreement by the City of Anna. Failure to complete this form may prohibit the Contractor's
ability to secure the Contract.
22.07 Contractor shall pay or cause to be paid, without cast or expense to the City, all Social Security,
Unemployment, and Federal Income Withholding taxes for all Contractor's employees and
subcontractors, and all of Contractor's employees and subcontractors shall be paid wages and benefits
as required by federal and/or state law.
22.08 Pursuant to Chapter 2270, Texas Government Code, Contractor certifies that Contractor (s)
does not currently boycott Israel; and (b) will not boycott Israel during the Term of this Agreement.
Contractor acknowledges that this Agreement may be terminated and payment withheld if this
certification is inaccurate. Contractor further certifies that it is not identified on any list referenced by
Texas Government Code Section § 2252.1521
22.09 Claims for Consequential Damages. Contractor and City waive claims against each other for
consequential damages arising out of or relating to the Contract. This mutual waiver includes:
.1 damages incurred by the City for rental expenses, for losses of use, income, profit,
financing, business and reputation, and for loss of management or employee productivity or
of the services of such persons; and
.2 damages incurred by the Contractor for principal office expenses including the
compensation of personnel stationed there, for losses of financing, business and
reputation, and for loss of profit.
This mutual waiver is applicable, without limitation, to all consequential damages due to either party's
termination in accordance with this Contract. Nothing contained in this Section shall be deemed to
preclude an award of liquidated direct damages, when applicable, in accordance with the requirements
of the Contract Documents.
22.10 The City shall, at the request of the Contractor, prior to execution of the Contract and promptly
upon request thereafter, furnish to the Contractor reasonable evidence that financial arrangements
have been made to fulfill the City's obligations under the Contract Documents,
22.11 Form 1295. Submitted herewith is a completed Form 1295 generated by the Texas Ethics
Commission's (the "TEC") electronic filing application in accordance with the provisions of Section
2252.908 of the Texas Government Code and the rules promulgated by the TEC (the "Form 1295").
The City hereby confirms receipt of the Form 1295 from the Contractor, and the City agrees to
acknowledge such form with the TEC through its electronic filing application not later than the 30th day
after the receipt of such form.
22.12 Energy Companies. In accordance with Section 2274.001(1), Texas Government Code, as
enacted by Acts 2021, 87th Leg., Ch. 529 (Senate Bill 13), Contractor hereby verifies that it and its
parent company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not boycott
energy companies and will not boycott energy companies during the term of this Agreement. The
foregoing verification is made solely to enable the City to comply with such Section and to the extent
such Section does not contravene applicable Federal or Texas law. As used in the foregoing
verification, "boycott energy companies," a term defined in Section 2274,001(1), Texas Government
Design Build Contract Page 27
Code (as enacted by such Senate Bill) by reference to Section 809.001, Texas Government Code (also
as enacted by such Senate Bill), shall mean, without an ordinary business purpose, refusing to deal
with, terminating business activities with, or otherwise taking any action that is intended to penalize,
inflict economic harm on, or limit commercial relations with a company because the company (a)
engages in the exploration, production, utilization, transportation, sale, or manufacturing of fossil fuel -
based energy and does not commit or pledge to meet environmental standards beyond applicable
federal and state law; or (b) does business with a company described by (a) above.
22.13 Firearms Companies. In accordance with Section 2274.001(2), Texas Government Code, as
enacted by Acts 2021, 87th Leg., Ch. 530 (Senate Bill 19), Contractor hereby verifies that it and its
parent company, wholly- or majority -owned subsidiaries, and other affiliates, if any, do not have a
practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association and will not discriminate against a firearm entity or firearm trade association during the term
of this Agreement. The foregoing verification is made solely to enable the City to comply with such
Section and to the extent such Section does not contravene applicable Federal or Texas law. As used
in the foregoing verification and the following definitions: (a) "discriminate against a firearm entity or
firearm trade association", a term defined in Section 2274.001(3), Texas Government Code (as enacted
by such Senate Bill), means, with respect to the firearm entity or firearm trade association, to (i) refuse
to engage in the trade of any goods or services with the firearm entity or firearm trade association
based solely on its status as a firearm entity or firearm trade association, (ii) refrain from continuing an
existing business relationship with the firearm entity or firearm trade association based solely on its
status as a firearm entity or firearm trade association, or (iii) terminate an existing business relationship
with the firearm entity or firearm trade association based solely on its status as a firearm entity or
firearm trade association and (B) does not include (i) the established policies of a merchant, retail
seller, or platform that restrict or prohibit the listing or selling of ammunition, firearms, or firearm
accessories and (ii) a company's refusal to engage in the trade of any goods or services, decision to
refrain from continuing an existing business relationship, or decision to terminate an existing business
relationship (aa) to comply with federal, state, or local law, policy, or regulations or a directive by a
regulatory agency or (bb) for any traditional business reason that is specific to the customer or potential
customer and not based solely on an entity's or association's status as a firearm entity or firearm trade
association; (b) "firearm entity", a term defined in Section 2274.001(6), Texas Government Code (as
enacted by such Senate Bill), means a manufacturer, distributor, wholesaler, supplier, or retailer of
firearms (defined in Section 2274.001(4), Texas Government Code, as enacted by such Senate Bill, as
weapons that expel projectiles by the action of explosive or expanding gases), firearm accessories
(defined in Section 2274.001(5), Texas Government Code, as enacted by such Senate Bill, as devices
specifically designed or adapted to enable an individual to wear, carry, store, or mount a firearm on the
individual or on a conveyance and items used in conjunction with or mounted on a firearm that are not
essential to the basic function of the firearm, including detachable firearm magazines), or ammunition
(defined in Section 2274.001(1), Texas Government Code, as enacted by such Senate Bill, as a
loaded cartridge case, primer, bullet, or propellant powder with or without a projectile) or a sport
shooting range (defined in Section 250.001, Texas Local Government Code, as a business
establishment, private club, or association that operates an area for the discharge or other use of
firearms for silhouette, skeet, trap, black powder, target, self-defense, or similar recreational shooting);
and (c) "firearm trade association", a term defined in Section 2274.001(7), Texas Government Code (as
enacted by such Senate Bill), means any person, corporation, unincorporated association, federation,
business league, or business organization that (i) is not organized or operated for profit (and none of
the net earnings of which inures to the benefit of any private shareholder or individual), (ii) has two or
more firearm entities as members, and (iii) is exempt from federal income taxation under Section
501(a), Internal Revenue Code of 1986, as an organization described by Section 501(c) of that code."
Section 23. ENTIRE AGREEMENT
Build Contract Page
Aside from duly authorized Change Orders, any modification to this Contract Agreement must be
supported by an additional, articulated consideration, and must either be in writing, executed by the
parties hereto, which writing should state the consideration which supports the modification. Nothing in
this Section shall be construed to limit the City's authority to issue changes set forth in Section 14
herein.
Section N. SEVERABILITY
If any term or condition of the Contract or the application thereof to any persons) or circumstances is
held invalid, this invalidity shall not affect other terms, conditions or applications which can be given
effect without the invalid term, condition, or application. To this end, the terms and conditions of the
Contract are agreed to be severable.
Section 25. WAIVER
Failure of a party to require performance by another party under the contract will not affect the right to
require performance in the future. No delay, failure, or waiver of either party's exercise or partial
exercise of any right or remedy under the contract shall operate to limit, impair, preclude, cancel, waive
or otherwise affect such right or remedy. A waiver by a Party of any breach of any term of the contract
will not be construed as a waiver of any continuing or successive breach.
IN WITNESS WHEREOF, the Parties have executed this Contract Agreement under their
respective seals on the day and year first written above.
[SIGNATURE PAGES) FOLLOW, REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
Design Build Contract Page Ly
ATTEST:
Cross
By:VndIG;U.,nst
ct'Cnc.
sman, 01 sion Manger
Ain%f-A
Chrlsli WIIIIardsl�l, its Secretary
(SEAL)
IP�Y Ptie!/c'py';
�Q
nTF OF o
DasiDn aui10 Cantrect Page 3D
. rljqgolmlm
BIDDER'S BOND
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)), as Principal(s), and
(hereinafter called the Surety(s)),
as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of: Dollars ($ ) (an amount
equal to five percent of the Total Bid Price, including Cash Allowances and Alternate Bids, if any)
lawful money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, the Principal has submitted on or about this day a proposal offering to
perform the following project:
Fire Station #2 Design Build proiect for construction of building and site improvements
NOW, THEREFORE, if the said Principal's bid as stated in its proposal is accepted by the
City, and said Principal executes and returns to the City the number of original counterparts of
the Contract Agreement required by the City, on the forms prepared by the City, for the work
described herein and also executes and returns the same number of the Performance, Payment
and Maintenance Bonds (such bonds to be executed by a Corporate Surety authorized by the
State Board of Insurance to conduct insurance business in the State of Texas, and having an
underwriting limitation in at least the amount of the bond) in connection with the work described
herein, within the time specified, then this obligation shall become null and void; otherwise it is
to remain in full force and effect.
In the event that the Principal is unable to or fails to perform the obligations undertaken
herein, the undersigned Principal and Surety shall be liable to the City for the full amount of this
obligation which is hereby acknowledged as the amount of damages which will be suffered by
the City on account of the failure of such Principal to perform such obligations, the actual amount
of such damages being difficult to ascertain.
Notices required or permitted hereunder shall be in writing and shall be deemed delivered
when actually received or, if earlier, on the third day following deposit in a United States Postal
Service post office or receptacle, with proper postage affixed (certified mail, return receipt
requested), addressed to the respective other party at the address prescribed in the Contract
Documents, or at such other address as the receiving party may hereafter prescribe by written
notice to the sending party.
IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
Principal
*By: By:
(Title)
PRINT NAME:
By:
ADDRESS:
PHONE/FAX: By:
(Title)
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in
Texas and is listed on the U.S. Department of the Treasury list of approved sureties, and
hereby designates , an agent resident in
County, Texas, to whom any requisite notices may be delivered and on whom service of process
may be had in matters arising out of such suretyship.
Surety
By:
PRINT NAME:
ADDRESS:
PHONE/FAX:
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)), as Principal(s), and
(hereinafter called the Surety(s)),
as Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of: Dollars ($ ) lawful
money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS,
the Principal has entered
into a certain written Contract
Agreement with the Obligee,
dated the
day of
for
the following project:
Fire Station #2 Design Build proiect for construction of building and site improvements
and said Principal under the law is required before commencing the work provided for in said
Contract Agreement to execute a bond in the amount of said Contract Agreement, which
Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
Principal shall faithfully perform the work in accordance with the plans, specifications and
contract documents, then this obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter
2253 of the Texas Government Code (Article 5472d for Private Work)3 of the Revised Civil
Statutes of Texas as amended and all liabilities on this bond shall be determined in accordance
with the provisions of said Article to the same extent as if it were copied at length herein.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract Agreement, or to the work performed
thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway
affect its obligation on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the Contract Agreement, or to the work to be
performed thereunder.
IN WITNESS WHEREOF, the said Principals) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
Principal
s Not applicable for federal work. See "The Miller Act," 40 U.S.C. S270.
*By: By:
(Title)
PRINT NAME: By:
ADDRESS:
PHONE/FAX:
By:
(Title)
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas and
is listed on the U.S. Department of the Treasury list of approved sureties, and hereby
designates , an agent resident in County,
Texas, to whom any requisite notices may be delivered and on whom service of process may
be had in matters arising out of such suretyship.
Surety
By:
PRINT NAME:
ADDRESS:
PHONE/FAX:
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, that
(hereinafter called the Principal(s)) as Principal(s), and
(hereinafter called the Surety(s)), as
Surety(s), are held and firmly bound unto the CITY OF ANNA (hereinafter called the Obligee),
in the amount of: Dollars ($ )
lawful money of the United States for the payment whereof, the said Principal and Surety bind
themselves, and their heirs, administrators, executors, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS,
the Principal has entered into
a certain written Contract
Agreement with the
Obligee, dated the
day of
for
the:
Fire Station #2 Design Build project for construction of building and site improvements
and said Principal under the law is required before commencing work provided for in said
Contract Agreement to execute a bond in the amount of said Contract Agreement, which
Contract Agreement is hereby referred to and made a part hereof as fully and to the same extent
as if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said
Principal shall pay all claimants supplying labor and material to him or a subcontractor in the
prosecution of the work provided for in said Contract Agreement, then this obligation shall be
void; otherwise to remain in full force and effect;
PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter
2253 of the Texas Government Code as amended and all liabilities on this bond shall be
determined in accordance with the provisions of said Article to the same extent as if it were
copied at length herein.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Contract Agreement, or to the work performed
thereunder, or the plans, specifications, or drawings accompanying the same, shall in anyway
affect its obligation on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the Contract Agreement, or to the work to be
performed thereunder.
IN WITNESS WHEREOF, the said Principal(s) and Surety(s) have signed and sealed this
instrument this day of , 20
Surety
�By:
(Title)
Principal
By:
(Title)
PRINT NAME: By:
ADDRESS:
PHONE/FAX:
By:
(Title)
(Title)
The undersigned surety company represents that it is duly qualified to do business in Texas and
is listed on the U.S. Department of the Treasury list of approved sureties, and hereby
designates , an agent resident in County,
Texas, to whom any requisite notices may be delivered and on whom service of process may
be had in matters arising out of such suretyship.
Surety
By:
PRINT NAME:
ADDRESS:
PHONE/FAX:
CERTIFICATE OF INSURANCE
[IMA TO ISSUE ACORD FORM]
NOTICE TO PROCEED
Project: Fire Station #2 — City of Anna, TX
Issued To: Crossland Construction Company, Inc. Date Issued:
731 Industry Way,
Prosper, TX 75078
You are hereby notified to commence work in accordance with the Agreement dated the
day of on or before the _ day of and
substantially complete all of the work within consecutive calendar days thereafter.
The date of final completion for all work shall therefore be the day of
Issued by: City of Anna, Texas (Owner)
By:
Jim Proce
City Manager
ACCEPTANCE OF NOTICE:
Receipt of the above notice to proceed is hereby acknowledged by Crossland Construction
Company, Inc, this _day of
By:
Contractor
CHANGE ORDER
Date of Issuance:
Effective Date:
Owner: City of Anna, TX
Project: Fire Station #2
Contract changes are approved as follows:
Description of changes:
Reason for Change Order:
Attachments:
CONTRACT PRICING
Original Contract Amount including Add/Alternates:
$
Net Increase from Previous Change Orders:
$
Contract Price Prior to this Change Order:
$
Net Increase/Decrease of this Change Order:
$
Contract Price with All Approved Change Orders:
$
City of Anna, TX
Crossland Construction Company, Inc.
By: Jim Proce, City Manager By: Rocky Hussman
Date: Date:
Please sign both copies; return one copy to:
City of Anna, TX
c/o Justin Clay
3223 N. Powell Parkway
Anna, TX 75409
CONFLICT OF INTEREST QUESTIONNAIRE
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ
For vendor or other person doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session.
his questionnaire is being filed in accordance with Chapter 176, Local Government Code
oy a person who has a business relationship as defined by Section 176.001(1-a) with a local
governmental entity and the person meets requirements under Section 176.006(a).
Bylaw this questionnaire must be filed with the records administrator of the local governmental
entity not later than the 7th business day after the date the person becomes aware of facts
that require the statement to be filed. See Section 176,006, Local Government Code.
A person commits an offense if the person knowingly violates Section 176.006, Local
Government Code. An offense under this section is a Class C misdemeanor.
Name of person who has a business relationship with local governmental entity.
❑ Checkthisboxifyouarefilinganupdatetoapreviouslyfiledquestionnaire.
OFFICE USE ONLY
Date
Received
(The
Name of person who has a business relationship with local governmental entity.
❑ Checkthisboxifyouarefilinganupdatetoapreviouslyfiledquestionnaire.
OFFICE USE ONLY
Date
Received
(The
law
requires
that you
file
an updated
completed questionnaire with
the appropriate filing
authority not
later
than
the 7th
business
day
after the date
the originally filed questionnaire
becomes incomplete or inaccurate.)
Name of local government officerwith whom filer has employment or business relationship.
Name of Officer
This section
(item 3 including
subparts A, B, C & D)
must be completed for each officer with whom the filer has an
employment or other business
relationship as defined by
Section I r6.001(1-a), Local Government Code. Attach additional
pages to this
Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment
ncome, from the filer of the questionnaire?
B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the
direction of the local government officer named in this section AND the taxable income is not received from the local
governmental entity?
Yes r�7 No
C. Is the filer of this
questionnaire employed by a
corporation or other
business entity
with respect to which the local
government officer serves
as an officer or director, or
holds an ownership
of 10 percent or
more?
Yes F7 No
D. Describe each employment or business relationship with the local government officer named in this section.
` Signature of person ddng business with the governmental entity
Adopted 00/29/2007
AFFIDAVIT AGAINST PROHIBITED ACTS
I hereby affirm that I am aware of the provisions of Texas Penal Code Section 36.02,
36.081 36.09 and 36.10 dealing with Bribery and Gifts to Public Servants. I further affirm that I
will adhere to such rules and instruct and require all agents, employees, and sub -contractors to
do the same. I am further aware that any violation of these rules subjects the Contract
Agreement for this project to revocation, my removal from bid lists, prohibiting future
contract/subcontract work, revocation of permits, and prosecution.
Signature
Date
ATTEST (if corporation) Date
FORM 1295
CERTIFICATE OF INTERESTED PARTIES FORM 1295
OFFICE USE ONLY
Complete Nos. 1 - 4 and 6 if there are interested parties.
Complete Nos. 1, 2, 3, 6, and 6 if there are no interested parties.
.♦`ej
`(`
t
Name of business entity filing form, and the city, state and country ofthe business
entity's place of business.
2
Name of governmental entity or state agency that is a party to the contract for
which the form is being filed,
a
Provide the Identification number used by the governmental entity or state agency to tccckR dentify the contract,
and provide a description of the services, goods, orother property to be provideda contract.
{i
V
a
Name of Interested Party
City, State, Country(place of business) Co
♦
ature of Interest (check applicable)
Controlling
intermediary
AT
5
❑Check only if there I terested Party.
s
UNSWORN DE(A4 N
`
My name Is _, and my date of birth Is _
My addre _ _ , ___
(street) (city) (state) (zip code) (country)
�ldnder penalty of perjury that the foregoing is true and correct.
Executed in County, Sate of , on the _ day of
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
ADD ADDITIONAL PAGES AS NECESSARY
Form provided by Texas Ethics Commission www.elhics.stale.ix.us Revised 1202l2017