15 - Painting of Water Towers with new logoItem No. 15
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TO: Mayor & City Council
Grayson Path, City Manager
Robert Vine, Assistant City Manager
FROM: Doug Harris, Director of Utilities
SUBJECT: AGREEMENT WITH O & J COATINGS, INC. FOR PAINTING NEW
WATER TOWER LOGOS
DATE: May 22, 2023
BACKGROUND:
A component of the branding project is redesign of the City of Paris logo. Transition to the new
design will require application of the logo on the City's elevated water storage tanks.
STATUS OF ISSUE:
O & J Coatings, Inc. has provided a favorable quote, in the amount of $49,000.00, for a scope of
work to include covering the existing logos on the City's three (3) elevated water towers; painting
of six (6) logos, two (2) per water tower; and furnishing all supervision, labor, material, insurance
and equipment. Another quote for the same scope of work was obtained from an additional
contractor at a cost of $111,000.00. References for O & J Coatings, Inc. were contacted, all
provided positive feedback regarding the quality of work. O & J Coatings, Inc. has provided a
timeline for completion of work as five (5) days/water tower, for a total of fifteen (15) days, work
is anticipated to commence one (1) month from the date the agreement is authorized. The
agreement with O & J Coatings, Inc. has been reviewed and approved by City staff, a copy of the
agreement is attached.
BUDGET:
$49,000.00 for painting the new City logo on three (3) elevated water storage tanks.
OPTIONS:
1. Approve the agreement with O & J Coatings, Inc. in the amount of $49,000.00, and
authorize the City Manager to sign the agreement.
2. Request additional information and/or deny the agreement with O & J Coatings, Inc.
RECOMMENDATION:
1. Approve the agreement with O & J Coatings, Inc. in the amount of $49,000.00, and
authorize the City Manager to sign the agreement.
THE STATE OF TEXAS §
COUNTY OF LAMAR §
THIS CONTRACT is entered into on this day of 2023,
by and between the CITY OF PARIS, TEXAS, a municipal corporation located in Lamar
County, Texas, (hereinafter referred to as "CITY"), acting by and through its City
Manager or his designee, and O & J COATINGS, INC. ("hereinafter referred to as
"CONTRACTOR") whose address is
WITNESSETH:
WHEREAS, CITY desires to obtain services from CONTRACTOR for the painting of
six (6) logos on three (3) of the CITY's elevated water towers.
WHEREAS, CONTRACTOR is qualified to provide such services and is willing to
undertake the performance of such services for CITY in exchange for fees
hereinafter specified;
NOW, THEREFORE,
THAT IN CONSIDERATION of the covenants and agreements hereinafter contained
and subject to the terms and conditions hereinafter stated, the parties hereto do mutually
agree as follows:
I.
Employment of Contractor
CONTRACTOR will perform as an independent contractor all services under this
Contract to the prevailing professional standards consistent with the professional level of
care and skill ordinarily provided by competent members of its profession, both public
and private, currently practicing in the same or similar locality under the same or similar
circumstances. If CONTRACTOR is representing that it has special expertise in one or
more areas to be utilized in this Contract, then CONTRACTOR agrees to perform those
special expertise services to the appropriate local, regional and national professional
standards.
II.
Scope of Services
CONTRACTOR shall perform the following services:
Attachment A: Furnish all supervision, labor, material, insurance, and equipment
to complete the painting of six (6) logos on three (3) of the CITY's elevated water
towers. This work includes covering the current city logos on the three (3) elevated
tanks.
Attachment A is hereby incorporated herein by reference and made a part hereof as if
written word for word. However, in case of conflict in the language of Attachment A and
this Contract, the terms and conditions of this Contract shall be final and binding upon
both parties hereto.
III.
Pa went for Services
Total payment for services described herein shall be in accordance with
Attachment A in the amount of FORTY-NINE THOUSAND AND NO/100 DOLLARS
CENTS ($49,000.00). This total payment for services includes CONTRACTOR's
ordinary expenses such as salary costs, overhead, direct expenses and profit. Additional
expenses, which are extraordinary in nature, shall be approved in advance by CITY in
writing signed by the parties. Such extraordinary expenses may be paid as incurred and
billed to the CITY pursuant to this Contract over and above the total payment amount
identified in this provision. Any extraordinary expenses not approved in writing in
advance by the CITY shall remain the sole responsibility of the CONTRACTOR.
CONTRACTOR will bill CITY monthly. Each invoice shall provide supporting
information describing the work completed. If additional services or expenses are
requested, CONTRACTOR will not provide such additional services until authorized by
CITY in writing to proceed. The scope of services shall be strictly limited. CITY shall
not be required to pay any amount in excess of the amount identified in the preceding
paragraph unless CITY shall have approved in writing in advance (prior to the
performance of additional work) the payment of additional amounts.
Within thirty (30) days of receipt of each such invoice, CITY shall make payment
in the amount shown by CONTRACTOR's approved statements and other documentation
submitted. Such payments shall be subject to the Texas Prompt Payment Act, Texas
Government Code §§ 2251.001, et seq.
Nothing contained in this Contract shall require CITY to pay for any work that is
unsatisfactory as determined by CITY or which is not submitted in compliance with the
terms of this Contract, nor shall failure to withhold payment pursuant to the provisions
of this section constitute a waiver of any right, at law or in equity, which CITY may have
if CONTRACTOR is in default, including the right to bring legal action for damages or
for specific performance of this Contract. Waiver of any default under this Contract shall
not be deemed a waiver of any subsequent default.
IV.
Revisions of the Sco a of Services
CITY reserves the right to revise or expand the scope of services after due approval
by CITY as CITY may deem necessary, but in such event CITY shall pay CONTRACTOR
equitable compensation for such services. In any event, when CONTRACTOR is directed
to revise or expand the scope of services under this Section of the Contract,
CONTRACTOR shall provide CITY a written proposal for the entire cost involved in
performing such additional services. Prior to CONTRACTOR undertaking any revised
or expanded services as directed by CITY under this Contract, CITY must authorize in
writing the nature and scope of the services and accept the method and amount of
compensation and the time involved in all phases of the Project.
It is expressly understood and agreed by CONTRACTOR that any compensation
not specified in Paragraph III hereinabove may require approval by the City Council and
is subject to the current budget year limitations.
V.
Term and Time of Performance
This Contract shall begin on the date first written above.
The CONTRACTOR shall commence services upon execution of this Contract.
Unless terminated, or unless the Scope of Services and Time of Performance are changed
in accordance with Article XV, Changes, the CONTRACTOR shall complete the Scope
of Services provided under Article II by .. , 2023.
The completion schedule set for in this Article may be subject to causes that result
in delay over which neither CONTRACTOR nor the CITY has any control. Notification
and justification for any such delays identified by the CONTRACTOR must be made in
writing and approved by the CITY. The schedule of work will be extended to include
any such delays pursuant to Article XV, Changes.
VI.
Contract Termination Provision
This Contract may be terminated at any time by CITY for any cause by providing
CONTRACTOR thirty (30) days written notice of such termination. Upon receipt of such
notice, CONTRACTOR shall immediately terminate working on, placing orders or
entering into contracts for supplies, assistance, facilities or materials in connection with
this Contract and shall proceed to promptly cancel all existing contracts insofar as they
are related to this Contract. The CITY will only be obligated to compensate the
CONTRACTOR in a just and equitable manner for those services performed prior to the
effective date of termination and upon the CONTRACTOR's submitting a statement of
actual services performed and payment requested.
VII.
Ownership of Documents
All materials and documents prepared or assembled by CONTRACTOR under this
Contract shall become the sole property of CITY and shall be delivered to CITY without
restriction on future use. CONTRACTOR may retain in its files copies of all drawings,
specifications and all other pertinent information for the work. CONTRACTOR shall
have no liability for changes made to any materials or other documents by others
subsequent to the completion of the Contract.
VIII.
Insurance Req uirements
Before commencing work, the CONTRACTOR shall, at its own expense, procure,
pay for and maintain during the term of this Contract insurance in accordance with the
requirements set forth below, written by companies approved by the State of Texas, and
acceptable to the City of Paris. The CONTRACTOR shall furnish to the City Clerk copies
of the insurance policies required herein stating coverages, limits, expiration dates and
compliance with all applicable required provisions. Policies shall reference the project
and be addressed as follows, with the CITY being listed as an additional insured:
City of Paris
150 SE First St
Paris TX 75460
IX.
Right to Inspect Records
CONTRACTOR agrees that CITY shall have access to and the right to examine
any books, documents, papers and records of CONTRACTOR involving transactions
relating to this Contract. CONTRACTOR agrees that CITY shall have access during
normal working hours to all necessary CONTRACTOR facilities and shall be provided
adequate and appropriate work space in order to conduct audits in compliance with the
provisions of this section. CITY shall give CONTRACTOR reasonable advance notice
of intended audits.
CONTRACTOR further agrees to include in subcontract(s), if any, a provision that
any subcontractor agrees that CITY shall have access to and the right to examine any
directly pertinent books, documents, papers and records of such engineer or sub-
contractor involving transactions to the subcontract, and further, that CITY shall have
access during normal working hours to all such sub -contractor facilities and shall be
provided adequate and appropriate work space, in order to conduct audits in compliance
with the provisions of the paragraph. CITY shall give any such sub -contractor reasonable
advance notice of intended audits.
X.
Successors and Assigns
CITY and CONTRACTOR each bind themselves and their successors, executors,
administrators and assigns to the other party to this contract and to the successors,
executors, administrators and assigns of such other party in respect to all covenants of
this Contract. Neither CITY nor CONTRACTOR shall assign or transfer its interest
herein without the prior written consent of the other.
XI.
Contractor's Liability and Warrant
Acceptance of the final work by the CITY shall not constitute nor be deemed a
release of the responsibility and liability of CONTRACTOR, its employees, associates,
agents or CONTRACTORS for the acceptable completeness of the work; nor shall such
acceptance be deemed an assumption of responsibility by CITY for any defect in the
work; nor shall such acceptance be deemed an assumption of responsibility by CITY for
any defect in the work prepared by said CONTRACTOR, its employees, associates,
agents or subcontractors.
CONTRACTOR herein provides a one (1) year warranty on workmanship and a
five (5) year warranty on the plaster. CONTRACTOR further provides a thirty (30) day
warranty on tile, brick, and rock repairs.
XII.
INDEMNIFICATION
CONTRACTOR DOES HEREBY COVENANT AND CONTRACT TO
WAIVE ANY AND ALL CLAIMS, AND TO RELEASE, INDEMNIFY, AND HOLD
HARMLESS THE CITY, ITS CITY COUNCIL, OFFICERS, EMPLOYEES, AND
AGENTS, IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM AND
AGAINST ALL LIABILITY, CAUSES OF ACTION, CITATIONS, CLAIMS,
COSTS, DAMAGES, DEMANDS, EXPENSES, FINES, JUDGMENTS, LOSSES,
PENALTIES OR SUITS, WHICH IN ANY WAY ARISE OUT OF, RELATE TO, OR
RESULT FROM CONTRACTOR'S PERFORMANCE UNDER THIS CONTRACT
AND WHICH ARE CAUSED BY THE INTENTIONAL WRONGFUL ACTS OR
NEGLIGENT ACTS OR OMISSIONS OF CONTRACTOR OR CONTRACTOR'S
SUBCONTRACTORS AND THE OFFICERS, AGENTS OR EMPLOYEES OF
EITHER CONTRACTOR OR CONTRACTOR'S SUBCONTRACTORS (THE
"INDEMNIFIED ITEMS") SUBJECT TO THE LIMITATIONS IN TEXAS LOCAL
GOVERNMENT CODE § 271.904 AND TEXAS CIVIL PRACTICE AND
REMEDIES CODE, § 130.002(B).
BY WAY OF EXAMPLE, THE INDEMNIFIED ITEMS MAY INCLUDE
PERSONAL INJURY AND DEATH CLAIMS AND PROPERTY DAMAGE
CLAIMS, INCLUDING THOSE FOR LOSS OF USE OF PROPERTY, AS WELL
AS INTELLECTUAL PROPERTY INFRINGEMENT OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER.
INDEMNIFIED ITEMS SHALL INCLUDE REASONABLE ATTORNEYS'
FEES AND COSTS, COURT COSTS, AND SETTLEMENT COSTS.
INDEMNIFIED ITEMS SHALL ALSO INCLUDE ANY EXPENSES, INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES, INCURRED BY AN
INDEMNIFIED INDIVIDUAL OR ENTITY IN ATTEMPTING TO ENFORCE
THIS INDEMNITY.
XIII.
Inde :pendent Contractor
CONTRACTOR's status shall be that of an Independent Contractor and not an
agent, servant, employee or representative of CITY in the performance of this Contract.
No term or provision of or act of CONTRACTOR or CITY under this Contract shall be
construed as changing that status. CONTRACTOR will have exclusive control of and the
exclusive right to control the details of the work performed hereunder, and shall be liable
for the acts and omissions of its officers, agents, employees, contractors, subcontractors
and engineers and the doctrine of respondeat superior shall not apply as between CITY
and CONTRACTOR, its officers, agents, employees, contractors, subcontractors and
engineers, and nothing herein shall be construed as creating a partnership or joint
enterprise between CITY and CONTRACTOR. CITY and CONTRACTOR shall not be
construed to be in any type of joint venture with respect to the scope of work set forth in
this Contract.
XIV.
Default
If at any time during the term of this Contract, CONTRACTOR shall fail to
commence the work in accordance with the provisions of this Contract or fail to diligently
provide services in an efficient, timely and careful manner and in strict accordance with
the provisions of this Contract or fail to use an adequate number or quality of personnel
to complete the work or fail to perform any of its obligations under this Contract, then
CITY shall have the right, if CONTRACTOR shall not cure any such default after thirty
(30) days written notice thereof, to terminate this Contract. Any such act by CITY shall
not be deemed a waiver of any other right or remedy of CITY. If after exercising any
such remedy due to CONTRACTOR's nonperformance under this Contract, the cost to
CITY to complete the work to be performed under this Contract is in excess of that part
of the Contract sum which has not theretofore been paid to CONTRACTOR hereunder,
CONTRACTOR shall be liable for and shall reimburse CITY for such excess.
CONTRACTOR'S liability under this provision shall be limited to the total dollar amount
of this Contract.
This Section XIV shall not supersede and shall be in addition to CITY's right under
Section VI to terminate this contract for any reason upon thirty (30) days' written notice
of such termination.
CITY's remedies for CONTRACTOR's default or breach under this Contract shall
be one or more of the following remedies which may be exercised separately or in
combination at CITY's sole exclusive choice:
(a) Specific performance of the Contract;
(b) Re -performance of this Contract at no extra charge to CITY; or,
(c) Monetary damages in an amount not to exceed the greater of:
(1) The amount of any applicable insurance coverage CONTRACTOR is
required to purchase and maintain under this Contract plus any deductible
amount to be paid by CONTRACTOR in conjunction with said coverage
regardless of whether CONTRACTOR has actually purchased and
maintained said coverage; or,
(2) The total dollar amount of this Contract.
Confidential
The terms o Sections XII entitled Indemnification, and XVII entitled Confidentiw
Information shall survive termination of this Contract.
XV.
Changes,
CITY may, from time to time, require changes in the scope of services to be
performed under this Contract. Such changes as are mutually agreed upon by and between
CITY and CONTRACTOR shall be incorporated by written modification to this Contract.
XVI.
Conflict of Interest
CONTRACTOR covenants and agrees that CONTRACTOR and its associates and
employees will have no interest, and will acquire no interest, either direct or indirect,
which will conflict in any manner with the performance of the services called for under
this Contract. All activities, investigations and other efforts made by CONTRACTOR
pursuant to this Contract will be conducted by employees, associates or subcontractors
of CONTRACTOR.
XVII.
Confidential Information
CONTRACTOR hereby acknowledges and agrees that its representatives may have
access to or otherwise receive information during the furtherance of its obligations in
accordance with this Contract, which is of a confidential, non-public or proprietary
nature. CONTRACTOR shall treat any such information received in full confidence and
will not disclose or appropriate such Confidential Information for its own use or the use
of any third party at any time during or subsequent to this Contract. As used herein,
"Confidential Information" means all oral and written information concerning City of
Paris, its affiliates and subsidiaries, and all oral and written information concerning CITY
or its activities, that is of a non-public, proprietary or confidential nature including,
without limitation, information pertaining to customer lists, services, methods, processes
and operating procedures, together with all analyses, compilation, studies or other
documents, whether prepared by CONTRACTOR or others, which contain or otherwise
reflect such information. The term "Confidential Information" shall not include such
materials that are or become generally available to the public other than as a result of
disclosure by CONTRACTOR, or are required to be disclosed by a governmental
authority or pursuant to a properly submitted request under the Texas Public Information
Act.
XVIII.
Mailing Address
All notices and communications under this CONTRACT to be mailed to CITY
shall be sent to the address of CITY's agent as follows, unless and until CONTRACTOR
is otherwise notified:
Grayson Path
City Manager
City of Paris
Post Office Box 9037
Paris, Texas 75461
Notices and communications to be mailed or delivered to CONTRACTOR shall be
sent to the address of CONTRACTOR as follows, unless and until CITY is otherwise
notified:
O & J Coatings, Inc.
CIO J. Arturo Andrade, President
Any notices and communications required to be given in writing by one party to
the other shall be considered as having been given to the addressee on the date the notice
or communication is posted, faxed or personally delivered by the sending party.
XIX.
Applicable Law
The CONTRACT is entered into subject to the Paris City Charter and ordinances
of CITY, as same may be amended from time to time, and is subject to and is to be
construed, governed and enforced under all applicable State of Texas and federal laws.
CONTRACTOR will make any and all reports required per federal, state or local law
including, but not limited to, proper reporting to the Internal Revenue Service, as required
in accordance with CONTRACTOR'S income. Situs of this Contract is agreed to be
Lamar County, Texas, for all purposes, including performance and execution.
XX.
Severabilit r
If any of the terms, provisions, covenants, conditions or any other part of this
Contract are for any reason held to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants, conditions or any other part of this Contract shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
XXI.
Remedies
No right or remedy granted herein or reserved to the parties is exclusive of any
other right or remedy herein by law or equity provided or permitted; but each shall be
cumulative of every other right or remedy given hereunder. No covenant or condition of
this Contract may be waived without written consent of the parties. Forbearance or
indulgence by either party shall not constitute a waiver of any covenant or condition to
be performed pursuant to this Contract.
XXII.
Entire Agreement
This Contract embodies the complete agreement of the parties hereto, superseding
all oral or written previous and contemporaneous agreements between the parties relating
to matters herein, and except as otherwise provided herein cannot be modified without
written agreement of the parties.
XXIII.
Non -Waiver
It is further agreed that one (1) or more instances of forbearance by CITY in the
exercise of its rights herein shall in no way constitute a waiver thereof.
XXIV.
Headings
The headings of this Contract are for the convenience of reference only and shall
not affect any of the terms and conditions hereof in any manner.
XXV.
Venue
The parties to this Contract agree and covenant that this Contract will be
enforceable in Paris, Texas; and that if legal action is necessary to enforce this Contract,
exclusive venue will lie in Lamar County, Texas, or in the United States District Court
for the Eastern District of Texas, Sherman Division.
XXVI.
No Third Party Beneficiary
For purposes of this Contract, including its intended operation and effect, the
parties (CITY and CONTRACTOR) specifically agree and contract that: (1) the Contract
only affects matters/disputes between the parties to this Contract, and is in no way
intended by the parties to benefit or otherwise affect any third person or entity
notwithstanding the fact that such third person or entity may be in contractual relationship
with CITY or CONTRACTOR or both; and (2) the terms of this Contract are not intended
to release, either by contract or operation of law, any third person or entity from
obligations owing by them to either CITY or CONTRACTOR.
XXVII
Incorporation of Provisions Rei uired b ° Law
Each provision and clause required by law to be inserted into the Contract shall
be deemed to be enacted herein and this Contract shall be read and enforced as though
each were included herein. If through mistake or otherwise any such provision is not
inserted or is not correctly inserted, the Contract shall be amended to make such
insertion on application by either party.
XXVIII
Equal Em lo„yment Opportunity
In the performance of this Contract, the CONTRACTOR will not discriminate
against any employee or applicant for employment because of race, color, religion, age,
sex, national origin or any other protected class.
XXIX
MANDATORY ANTI -BOYCOTT AND OTHER PROVISIONS.
Consultant acknowledges this Agreement may be terminated and payment withheld if this
certification is inaccurate.
i. Pursuant to Section 2271.002 of the Texas Government Code, CONTRACTOR
certifies that either (i) it meets an exemption criterion under Section 2271.002;
or (ii) it does not boycott Israel and will not boycott Israel during the term of
the Agreement. CONTRACTOR acknowledges this Agreement may be
terminated and payment withheld if this certification is inaccurate.
ii. Pursuant to SB 13, 87th Texas Legislature, CONTRACTOR certifies that either
(i) it meets an exemption criterion under SB 13, 87th Texas Legislature; or (ii)
it does not boycott energy companies, as defined in Section 1 of SB 13, 87th
Texas Legislature, and will not boycott energy companies during the term of
the Agreement. CONTRACTOR acknowledges this Agreement may be
terminated and payment withheld if this certification is inaccurate.
iii. Pursuant to SB 19, 87th Texas Legislature, CONTRACTOR that either (i) it
meets an exemption criterion under SB 19, 87th Texas Legislature; or (ii) it
does not discriminate against a firearm entity or firearm trade association, as
defined in Section 1 of SB 19, 87th Texas Legislature, and will not discriminate
against a firearm entity or firearm trade association during the term of the
Agreement. CONTRACTOR acknowledges this Agreement may be terminated
and payment withheld if this certification is inaccurate.
iv. Pursuant to Subchapter F, Chapter 2252, Texas Government Code,
CONTRACTOR certifies that CONTRACTOR (1) is not engaged in business
with Iran, Sudan, or a foreign terrorist organization. CONTRACTOR
acknowledges this Agreement may be terminated and payment withheld if this
certification is inaccurate.
Form 1295
CONTRACTOR, in compliance with the
1295, notice of interested parties, w
laws of the State of Texas, will execute the Form
th the Texas Ethics Commission at
IN WITNESS WHEREOF, the parties hereto have set their hands by their
representatives duly authorized on the day and year first written above.
--------------------------------SIGNATURE PAGE FOLLOWS--------------------------------
ATTEST:
Janice Ellis
City Clerk
APPROVED AS TO FORM:
Stephanie H. Harris
City Attorney
CITY OF PARIS
I:
GRAYSON PATH
City Manager
Date Signed:
O & J Coatings
By: J. ARTURO ANDRADE
President
Title:
[Remainder of page left blank intentionally.]
THE STATE OF TEXAS §
COUNTY OF LAMAR §
BEFORE ME, the undersigned authority, in and for said County, Texas, on this day
personally appeared GRAYSON PATH, City Manager of the CITY OF PARIS, a Texas
Municipal Corporation, known to me to be the person who's name is subscribed to the
foregoing instrument, and acknowledged to me that he has executed the same on the
City's behalf.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
DAY OF .2023.
Notary Public Lamar County, Texas
My commission expires
THE STATE OF TEXAS §
COUNTY OF LAMAR §
This instrument was acknowledged before me on the _ day of w . -11-11.- ,
2023, by J. ARTURO ANDRADE in his capacity as President of O & J COATINGS,
INC., a Texas Corporation, known to me to be the person whose name is subscribed to
the foregoing instrument, and acknowledged that he executed the same on behalf of and
as the act of
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
DAY OF , 2023.
Notary Public m....,_,._.....................................�.�...�.�..................... County, Texas
My commission expires _
Attachment A
O & J COATINGS, INC.
CONTRACT NO.: PARIS01
To: Cit Of Paris Texas
Department of Utilities
PO Box 9037
Paris, TX 75461-9037
Phone: 903-784-2464
Date:04/25/2023
Project: Painting new city logos on 3 elevated tanks.
Scope of Work:
Furnish all supervision; labor, material, Insurance and equipment to complete the painting of 6
logos on 3 of the city of Paris elevated water towers. This works includes covering the current
city logos on the 3 elevated tanks.
Contract Amount: $49,000.00
Submittals:
Paint submittals and logo submittals.
Payment:
After all work has been completed and the city has approved all completed work.
Prevailing Wages:
No Prevailing Wages are specified for this project.
Sales Taxes:
Please provide tax exemptions if the city is tax exempt.
Safety:
Contractor is responsible for own employees safety and shall adhere to all applicable safety
rules, regulations and requirements of OSHA, State of Texas and Project Specifications.
Schedule:
Contractor shall coordinate with Contractor in developing construction schedule to meet
anticipated milestones and completion date.
1
Terms and Conditions:
SECTION 1. CONTRACT DOCUMENTS. The contractor acknowledges
with all General and Special o « sPlans and
SECTION 2. PERFORMANCE OF CONTRACT. Contractor agrees to pursue the Work in a
prompt diligent and workmanlike ma , or any part of the Work becomes
available or Kt such other time or times as the Contractor
may direct. Unless otherwise
provided herein. Contractor agrees to furnish all materials, supplies, tools equipment,
all of the Work set forth herein and complete said Work in accordance with the plans and
r"Renah7ing';
workingby the Contractor or Owner ,, same area where the contractor is performing
contractor agrees to fullyo; r " Contractor and the Owner to reduce and
eliminate if possible all delays or hindrances in the orderly progress of the Work and to assure
orderly and expeditious performance and completion of the entire Project. Subcontractor
e rees that all Work oerformed by it shall be executed b; skilled
1;
contractor'si, comply with requirements of this
contract, or if any of them were riotous, disrespectful, intemperate or disorderly, contractor
agrees to discharge said person or persons and not employ them again on any portion of the
Work. If any w depends u; , # ' work of others, the contractor shall
promptly inspect such work and promptly provide Contractor written report of any defects,
which prevent contractor from properly performing its work. In the event contractor fails to
promptly inspect and/or report defects, contractor shall be deemed to have accepted such
other work as satisfactory and proper.
SECTION 3. SUPERVISION. The contractor shall maintain a competent, authorized
representative on the job site during its performance of the Subcontract. Directions and
communications from the owner to suchauthorized 'yr ♦anyportion
contractorthe Work or this contract shall be treated as directions and communications to the
the contractor's authorized representative. In the event owner deems it necessary, contractor
agreesto designate in writing its authorized
SECTION 4. LABOR RELATIONS. Contractor agrees that in performing the Work set forth
in this contract, it will employ only such labor as will not delay or interfere with the speedy and
lawful progress of the Project and as will be acceptable to and work in harmony with all other
relating to a dispute involving or affecting the labor employed by the contractor or its
owner may /, its option
terminate this contract.
SECTION 5. COMMUNICATIONS.All communication,and drawings
by the contractor to the Owner or the ;4rch itect/Engi neerWorkshall
transmitted through the Contractor.
2
SECTION 6. TAXES. Contractor agrees to pay all taxes applicable including but not limited
to sales taxes, excise taxes, use taxes, fuel taxes, property taxes, unemployment compensation
taxes and old age benefits and social security taxes. The contractor further agrees to comply
with all local, state and federal laws regarding the reporting and payment of such taxes,
contractor further agrees to indemnify and hold harmless the Owner and Architect/Engineer
from reporting and/or payment of those taxes, which contractor is legally obligated to report
and pay. In the event this project is tax exempt (this project is tax exempt), contractor agrees to
comply with all applicable tax exemption requirements.
SECTION 7. PERMITS, FEES & LAWS. Contractor acknowledges that it is familiar with and
will comply with all laws, ordinances and regulations pertaining to its Work, including the
provision of the Occupational health and Safety Act (29 U.S.C. 651 et seq.), which are
applicable. Contractor agrees to secure at its cost and expense all licenses and permits
necessary to perform the Work required by this contract. Contractor further agrees to comply
with any and all federal, state and local laws hereinafter passed which affect contractor's
performance of this contract.
SECTION 8. JOB PROGRESS & DAMAGES. Time of performance is of the essence in this
contract and contractor agrees to commence Work when notified. The contractor shall give
owner full information in advance as to its plans for performing the contract Work. Contractor
agrees to perform the Work in accordance with Contractor's schedule and in such a manner as
to not delay the Owner, the Contractor or the progress of the Project. If at any time during
contractor's performance of the Work, contractor's progress appears to be inadequate to the
Owner or the Architect/Engineer, contractor agrees to immediately take whatever steps are
necessary to improve progress. In the event contractor's progress is inadequate due to
condition within contractor's control, the owner may require the contractor to increase or
change its labor force, the number of work shifts, the equipment on the job, and/or any other
measures which the owner deems necessary, all without additional cost to the Owner. Neither
notices by the owner nor the failure to issue notice that contractor's progress is inadequate,
shall relieve the contractor from its obligation to achieve the quality of Work and rate of
progress required. All damages, expenses or losses, including attorney's fees or other legal cost
which are sustained by the owner due to contractor's failure to diligently prosecute the Work
and/or failure to complete this contract in a timely manner shall be paid by the contractor to
the owner. In the event that the owner incurs damage, expense or loss or it appears that the
owner may sustain damage, expense or loss due to such failure on the part of the contractor,
the owner may either deduct such amount from any progress payment or retainage payable to
the contractor and/or delay payment of any sums otherwise owing to the contractor until the
situation is remedied or adjusted to the satisfaction of the owner. Contractor agrees to and
does hereby indemnify owner against all actual, liquidated and/or consequential (special)
damages, which are assessed by the Owner against the Contractor due to the failure to timely
complete the Work set forth in this contract and in addition, Owner shall be entitled to
payment from the contractor for all damages, expenses or losses which the owner may sustain,
including but not limited to, recovery of the owner's extra overhead and expenses related to
managing or supervising the Work, interest expense, equipment rental, return on investment,
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attorneys fees and any other costs incurred by the owner which in any way relate to
contractor's failure to properly perform the Work provided in this contract. Neither payment of
such amounts nor commencement of legal action by owner taken to establish contractor's
liability to pay such amounts shall relieve contractor from its obligation to otherwise fully
perform this contract.
SECTION 9. ACCEPTABILITY OF WORK. All Work of the contractor shall be performed in a
manner satisfactory to the owner and shall fully comply with the Plans and Specifications
including amendments thereto and any working drawings approved by the Architect/Engineer.
All work, materials and equipment furnished in connection with this contract is subject to
inspection by the Owner, the Architect/Engineer and/or their authorized representatives.
Contractor at its own expense agrees to provide whatever access, samples, documents,
drawings and/or lists are necessary for any such inspection. In the event any of contractor's
work is rejected upon inspection, contractor agrees to make necessary alterations in the
rejected Work so that it will comply with the Owner and/or Architect/Engineer's requirements.
contractor shall pay all uncovering, repair, correction and/or restoration expenses if the Work
or any part thereof is not in accordance with the requirements of the contract. If any Work is
covered up by the contractor prior to an inspection provided for in the specifications, or
inspection schedule, or an inspection previously requested by the Owner and/or
Architect/Engineer, the cost of any necessary uncovering and replacement shall be borne by
the contractor. Re-examination of any Work may be ordered by the Owner or
Architect/Engineer and shall be uncovered by the contractor. If such Work is found to be
defective, the contractor shall bear all costs therewith, including the cost of covering and
restoration. Neither the failure to make an inspection nor to discover defective workmanship,
materials or equipment, nor approval of payment to the contractor for defective Work,
materials or equipment shall prejudice the right of the Owner or the Architect/Engineer.
SECTION 10. CHANGES IN THE WORK. Owner may at any time and without notice to
contractor's surety, if any, make changes in, additions to and deletions from the Work to be
performed by contractor pursuant to this contract upon the owner providing the contractor
written notice of such change. If directed by the Owner or the Architect/Engineer, the
Contractor may proceed with a change order before agreement is reached on the cost of said
change and contractor shall promptly proceed with performance of this contract as so changed.
Contractor shall give owner written notice of any claim for adjustment in the contract price or
time due to such change order within twenty (20) days from the date Contractor orders such
change, but in every event notice shall be given Contractor at least three3 days prior to the
date when Contractor is required to present its claim for adjustment to the Owner. All
contractor claims'must be itemized and supported by such documents or information as may
be required by the Owner or Architect/Engineer. Notwithstanding anything in this contract to
the contrary, the owner shall have no obligation to pay contractor for any change, additional
cost or extra work incurred by the contractor, nor to extend the time for performance unless
such price change or time extension is approved in writing by the Owner or its authorized
representative; in which event, contractor shall be entitled to such pay, change and/or time
extension which the Owner, or its authorized representative, has approved regarding the
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contractor's claim. In the event the contract price or the time of performance is decrease by
any change, the contractor shall be bound by the amount of the decrease approved by the
Owner, or its authorized representative, and contractor further agrees to accept such change in
this Subcontract.
SECTION 11. DELAYS. Contractor shall not be entitled to an adjustment in time or
contract price for delays or damages caused by the Owner and/or Architect/Engineer,
inclement weather, strikes or other delays or damages unless such price change or time
extension is approved in writing by the Owner or its authorized representative. Any damages
that contractor alleges that the Owner, Architect/Engineer, other contractor or any other party
for whom Contractor may be liable has caused him or is causing him must be filed in writing
with the Contractor within ten 10 days from the commencement of the alleged damage and a
full accounting filed within ten 10 days after the extent of damage is known or the cause for
damage ceases, whichever is the sooner; otherwise, any such claims will be considered void.
SECTION 12. PROTECTION & CLEAN UP OF WORK. Contractor agrees to protect and be
responsible for its Work at its expense until such Work is given final acceptance by the Owner.
contractor agrees to and does hereby assume the same degree of responsibility and risk of loss
for its Work as the owner has for the Project. Contractor further agrees to dispose of all
rubbish, debris and surplus material that accumulates from the prosecution of the Work
covered by this contract as directed by the owner. If contractor fails to dispose of its rubbish or
debris, owner may, at its option, cause said rubbish or debris to be removed and charge the
expense of removal to the contractor.
SECTION 13. OCCUPANCY OF THE WORK. Whenever it may be useful or necessary to do
so, the Owner shall be permitted to occupy and/or use any portion of the Work, which has
been either partially or fully completed by the contractor, prior to final inspection and
acceptance of said Work by the Owner or the Architect/Engineer. Owner agrees that any such
use and/or occupancy does not relieve contractor of its guarantee of the Work nor of its
obligation to make good at its own expense any defects in the workmanship, materials and/or
equipment that may appear prior to the expiration of the warranty period.
SECTION 14. PAYMENT. For contractor's faithful performance of the Work and its
obligations contained herein, Contractor agrees to pay Subcontractor the amount stated in the
contract. Owner agrees to promptly pay when due all costs incurred by contractor arising from
or relating to contractor's performance of the Work required by this contract. Contractor shall
submit to owner monthly invoices for payment and such invoices will be paid by the owner in
relation to the estimated amount of materials delivered and the work or labor actually
performed by contractor during the billing period. Owner may deduct from any amount due or
to become due to contractor any sum or sums owed by contractor to the suppliers. In the event
contractor breaches any provision or obligation of this contract, or in the event any part asserts
a claim or lien against the Owner, or the premises for the contractor's failure to meet an
obligation imposed upon it by this contract, owner shall have the right, until the situation has
been remedied to the satisfaction of the Contractor, to stop payment on any checks previously
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paid to the contractor and/or to retain out of any payments due or to become due amounts
sufficient to protect the Owner from any and all losses, damages or expenses, including without
limitation attorney's fees and other legal expenses incurred by the Owner. Contractor grants
owner the right to pay any past-due obligations of contractor which arise out of contractor's
performance of this contract either by check made payable directly to any of contractor's
creditors asserting a claim or by check made payable jointly to the contractor and any of
contractor's creditors asserting a claim and such payments shall apply as payment against any
sum which the owner may otherwise owe the contractor pursuant to this contract. Each
monthly progress payment payable to the contractor will be reduced by ,dive aercenti5% at
the time of payment. The retained percentage and/or final progress payment shall be paid to
the contractor after (1) the Work performed by the contractor is completed satisfactorily; (2)
contractor has paid all of its creditors as to those obligations which arise from or relate to
contractor's performance of this contract; and (3) all disputes, claims, liens, causes of action
and/or lawsuits which are related in any way to this contract or contractor's performance of the
Work are resolved. Contractor further agrees to indemnify and hold harmless the Owner from
any and all claims, demands, suits, causes of action, damages, losses and/or expenses, including
attorneys fees, which may be asserted by any suppliers, materialmen, vendors, employees or
agents of contractor to whom contractor has an obligation to pay.
SECTION 15. WARRANTY. Contractor warrants that all materials and equipment
incorporated into the Work conform to the Plans and Specifications, drawings, samples and
other descriptions set forth in this contract and that said Work is of good quality and
workmanship and free from defect. Unless otherwise provided, contractor agrees that its
warranty shall extend for a period of one (1) year from the date said Work, materials and/or
equipment is accepted by the Owner and placed in service. This warranty shall insure to the
benefit of the Owner and their successors.
SECTION 16. INSURANCE. The contractor shall purchase and maintain insurance covering
worker's compensation, employer's liability, automobile liability and general liability (including
operations, personal injury, sublet, completed operations, contractual and where applicable,
coverage for explosion, collapse and underground damage). Coverage's written on an
Occurrence basis, shall be maintained, without interruption, from the date of commencement
of Work until date of final payment and termination of any coverage required to be maintained
after final payment. Such coverage's required shall be maintained by insurance carriers licensed
to do business in the State where the Project is located and acceptable to owner. The following
coverage's are required to be carried by contractor, consistent with the above and shall include
the following coverage's and limits of liability. The minimum limits of liability shall be as follows
unless otherwise modified:
Workers' Compensation/Employer's Liability
Applicable to State of Project location. Limits of coverage shall be:
Workers Compensation -----------------------------------------------Statutory Employer's Liability
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• Each Accident $500,000
• Disease -Each Employee $500,000
• Disease -Policy Limit $500,000
Waiver of Subrogation is provided in favor of Contractor and Project Owner.
Commercial General Liability
Coverage as Occurrence basis including Endorsement CG2503 / Per Project Aggregate.
Complete Operations coverage shall be maintained by Subcontractor for minimum two (2)
years after final completion date. Minimum limits of liability shall be:
• General Aggregate
• Products/Completed Operations
• Personal Injury
• Each Occurrence
$2,000,000
$1,000,000
$1,000,000
$1,000,000
Certificate Holder and Project Owner are named Additional Insured as Primary and Non -
Contributory basis including Completed Operations.
Waiver of Subrogation is provided in favor of Contractor and Project Owner.
Automobile Liability
Coverage includes Owned. Non -Owned and Hired Vehicles. Limit of liability shall be:
• Combined Single Limit For Bodily Injury/Property Damage
$1,000,000
Certificate Holder and Project Owner are named additional Insured and are provided Waiver of
Subrogation.
Umbrella Liability
• Limit of liability as for bodily injury and property damage combined $ 1,000,000
Cancellation
All policies shall provide Thirty (30) Day Notice of Cancellation including deletion of wording as
"endeavor to" and "but failure to do so shall impose no obligation or liability of any kind upon
the Insurer, It's Agents and Representatives."
In addition, contractor shall provide owner with excess liability insurance (umbrella coverage)
as required by owner. Insurance requirements may be met through primary insurance or
primary insurance combined with excess liability insurance. Before any work is commenced on
this contract, the contractor shall provide owner a Certificate of Insurance on forms supplied by
the owner indicating contractor insurance coverage's and limits. The contractor shall provide
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for thirty (30) days prior written notice to the owner before cancellation or termination of such
insurance unless longer advance notice is required from the owner. Notwithstanding such
insurance, the contractor agrees to indemnify and hold harmless the owner pursuant to Section
26 of this contract.
SECTION 17. HIRING PRACTICES, WAGES & HOURS. contractor agrees to comply with
and to require its subcontractors and suppliers to comply with the labor relations' requirements
of the applicable governmental laws and regulations including work hours and wage scales and
to furnish owner proof of such compliance upon request. Contractor further agrees to recruit
and hire all employees without regard to race, creed, color, religion, sex, age, non -disqualifying
handicap or disability, military service, ancestry or national origin and to not discriminate
against any employee with regard to their employment, compensation, advancement,
upgrading, promotion, demotion, termination, training and transfers and to require its
subcontractor and suppliers to do the same. Contractor also agrees to maintain and furnish
owner all reports and/or certificates of compliance applicable to this contract, which are
required by the Owner, Architect/Engineer, or applicable governmental agency. Contractor
agrees that if any portion of the Work is subcontracted by it to another, that such other party
shall be bound by and required to observe this Section to the same extent required of
contractor and that this Section shall be included in all lower -tier subcontracts.
SECTION 18. SAFETY AND ACCIDENT REPORTS. Contractor agrees to fully comply with all
applicable federal, state, local and/or project safety regulations or laws including but not
limited to the Occupational Safety and Health Act and the Construction Safety Act; and
Subcontractor specifically agrees to save and hold harmless the Contractor from any and all
liability and damages, fines, costs, and attorney fees incurred by contractor on account of
contractor's failure to comply with all laws and governmental regulations applicable to the
Work. A written report shall be made to the owner within twent - our hours on any injury to
the contractor's employees or agents at the site of the project. Contractor shall furnish all OSHA
required protective equipment for its employees and enforce wearing of same and shall comply
with all phases of the owner's safety program. Contractor further agrees to require all of its
subcontractors and suppliers to comply with this section.
SECTION 19. LIENS. Contractor agrees to keep the Work covered by this contract free
and clear from all mechanics liens and Miller Act claims. In the event a mechanics lien or Miller
Act claim is filed against the owner, the Owner and/or the premises, which in any way relates to
this contract, contractor agrees to defend against any such claim, lien or suit at its sole cost and
expense and to indemnify and hold harmless the owner from all losses, damages and expenses
including attorneys fees and other legal costs which they incur as a result of such mechanics
lien or Miller Act claim.
SECTION 20. INDEPENDENT CONTRACTOR. Contractor specifically agrees that it is an
independent contractor.
SECTION 21. TERMINATION FOR DEFAULT. Owner may, upon three3) days written
notice to contractor, terminate the entire or any part of this contract if the progress of the
Work is impaired or delayed by any work stoppage caused by or related to the contractor, its
employees, its subcontractors or suppliers, or any of their agents or if the contractor fails,
refuses or neglects to supply sufficient skilled workmen or materials of proper quality or
adequate equipment to perform the Work required by this contract, or fails to follow the plans
or specifications or keep its work on the schedule required by the owner, or fails in any respect
to meet the obligations imposed upon the contractor by this contract. In the event contractor
does not remedy the deficiencies, which are the basis of owner's termination within the three
3 da notice period, then this contract shall be deemed terminated and owner shall thereafter
have the rights and remedies set forth herein. Owner in its sole discretion shall determine
whether contractor has corrected the deficiency within the three (3) day notice period. In the
event contractor corrects the deficiency within said notice period to the satisfaction of owner,
then this contract shall continue in full force and effect. In the event this contract is terminated,
owner shall have the option to provide the necessary labor, material and equipment to
complete the Work required by the contract, either in whole or in part, or re -let the remaining
Work. In the event this contract is terminated, the owner shall have the right to take possession
of all tools, equipment, scaffolding, materials and supplies that are on the job site, in transit to
the job site, or related to the Work at the job site, whether said items are owned by the
contractor or not, and to use said items in completing this contract. In the event this contract is
terminated, the contractor shall immediately discontinue the Work and not place additional
orders or contracts for materials, equipment or services with respect to this contract. Owner's
maximum liability to contractor pursuant to this paragraph shall be limited to the amount of
the contract price as of the termination date, however, said liability shall be decreased by any
amounts previously paid on the contract to the contractor prior to the termination date, plus all
costs and expenses incurred by owner to complete and pay for the Work required to complete
this contract (including but not limited to payment of any contractor creditor claims arising
from or related to this contract, reasonable compensation for additional managerial and
administrative services of the owner, and reasonable attorney fees and other legal expenses
incurred by the owner). All savings realized shall be the sole property of the owner. If the total
amount actually paid to the contractor as of the termination date plus the owner's cost to
complete this contract (including but not limited to payment of any contractor creditor claims
arising from or related to this contract, reasonable compensation for additional managerial and
administrative services of the owner and reasonable attorney fees and other legal expenses
incurred by the owner) exceeds the total contract price as of the termination date, contractor
agrees to promptly pay owner the difference and owner shall be entitled to deduct said amount
or any part thereof from any funds otherwise payable to contractor. Notwithstanding any
termination of this contract, contractor's obligation to owner shall continue as to all Work
performed and the provisions of the contract which by their nature normally survive final
acceptance of the Work, shall remain in full force and effect after termination.
SECTION 22. TERMINATION FOR CONVENIENCE. Owner shall have the right to terminate
this contract or any portion thereof at any time for any reason whatsoever upon written notice
to contractor specifying the extent to which this contract is terminated and the date upon
0
which such termination becomes effective. After receipt of owner's Notice of Termination, and
unless otherwise directed, contractor agrees to (a) stop work on the contract on the date and
to the extent specified; (b) place no further orders or contracts for materials, services or
facilities except as may be necessary for completion of that portion of Work that is not
terminated; (c) transfer title and deliver to the owner any materials, work in process,
completed work and supplies for which contract has been paid; (d) complete performance of
any part of the Work required by this contract that is not terminated by owner's Notice of
Termination. In no event shall owner be liable for the loss of anticipated profits or any special
or consequential damages arising from said termination. Contractor agrees to promptly remove
its tools, equipment and employees from the jobsite upon the stated termination date. Owner
shall pay contractor whatever retention may be due and owning contractor in accordance with
the retention provision of Section 14 of this contract.
SECTION 23. INDEMNIFICATION. Contractor agrees to indemnify and hold harmless the
Owner and their agents and employees from and against any and all demands, claims, suits,
causes of action, damages, losses, penalties and/or expenses including attorney fees, arising
out of or resulting from contractor's performance of the Work required by this contract
regardless of whether such demand, claim, suit, cause of action, damage, loss, penalty or
expense is incident to or arises out of conditions or omissions permitted or acts performed by
an indemnitee unless said demand, claim, suit, cause of action, damage, loss, penalty or
expense is caused by the sole negligence of the indemnitee. In addition, contractor agrees to
indemnify and hold harmless the Owner, their agents and employees from and against any and
all demands, claims, suits, causes of action, damages, losses, penalties and/or expenses,
including attorney fees, arising out of or resulting from the infringement of a patent or violation
of a patent right with respect to equipment, materials, supplies or construction methods
furnished or employed by the contractor in its performance of the Work required by this
Subcontract.
SECTION 24. MODIFICATION AND/OR AMENDMENTS. Only officers of the owner and/or
that person designated by the owner as the Project representative for the project on which the
Work under this contract is being performed is authorized to execute, modify and/or amend
this contract on behalf of the owner. In the event any unauthorized person attempts to enter
into a written or oral agreement, modification of amendment with contractor, then before the
same shall be binding upon the owner, said action must be expressly approved in writing by an
Officer or the designated Project representative of the owner. Except as otherwise provided, no
modification or amendment of any of the terms and condition of this contract shall be valid
unless agreed to in writing by the parties.
SECTION 25. WAIVER. Owner's failure to insist on strict compliance with any term,
condition or instruction, or to exercise any right or privilege included in this contract or owner's
waiver of any breach, shall neither waive nor prevent owner from subsequently requiring strict
compliance with such term, condition, instruction and/or right or privilege.
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SECTION 26. NON -ASSIGNMENT. Contractor shall not assign or transfer this contract or
any part thereof to any other party without the prior written consent of the Owner and any
such action or attempt to do so without owner's written consent shall be void and of no binding
effect upon owner.
SECTION 27. VALIDITY OF PROVISIONS. In the event any Section, or any part or portion
of any Section of this contract shall be held to be invalid, void or otherwise unenforceable, such
holding shall not affect the validity of the remaining part or portions of that Section or any
other Section in this contract.
SECTION 28. APPLICABLE LAWS. This contract and the rights of the parties under this
contract shall be governed by and construed and enforced in accordance with the laws of
Texas.
SECTION 29. If, any legal action filed upon this contract, venue shall be in Tarrant
County, State of Texas
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