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HomeMy WebLinkAbout2017-3952 - Ordinance - 10/26/2017 ORDINANCE NO. 2017-3952 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A PARTICIPATION AGREEMENT BY AND BETWEEN THE CITY AND COLLEGE STATION TOWN CENTER, INC. FOR THE DEVELOPMENT OF COLLEGE STATION TOWN CENTER PROJECT AND AUTHORIZING THE EXPENDITURE OF FUNDS. WHEREAS, College Station Town Center, Inc. is a developer developing College Station Town Center; and WHEREAS, as part of said development, the construction of certain public infrastructure is required; and WHEREAS, pursuant to Section 212.071 et seq. Texas Local Government Code the City of College Station and the developer have agreed to jointly participate in the construction of certain public infrastructure to wit: a forty-eight inch (48-inch) diameter fiberglass sewer line project ("Project") as further set forth in a Participation Agreement; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby finds it to be in the best interest of its citizens to enter into that one certain Participation Agreement with College Station Town Center, Inc. for the construction of a forty-eight inch (48-inch) diameter fiberglass sewer line project. A copy of said Participation Agreement is attached as Exhibit "A" and incorporated herein by reference. PART 2: That the City Council hereby approves and authorizes the City Manager to execute the Participation Agreement with College Station Town Center,Inc.,obligating the CITY to pay a maximum of $2,300,000.00 out of a total estimated amount of $3,200,000.00 for the labor, materials, equipment, and other authorized expenses required for the improvements related to the forty-eight inch (48-inch) diameter fiberglass sewer line project. PART 3: That the funding for this Participation Agreement shall be as budgeted from the Wastewater Capital Improvement Project Fund, in the amount of$2,500,000.00. PART 4: If any provision of this Ordinance or its application to any person or circumstances is held invalid or unconstitutional, the invalidity or unconstitutionality does not affect other provisions or application of this Ordinance or the Code of Ordinances of the City of College Station, Texas, that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this Ordinance are severable. PART 5: That this Ordinance shall take effect immediately from and after its passage. ORDINANCE NO.2017-3952 Page 2 of 109 PASSED,ADOPTED and APPROVED this 26th day of October, 2017. ATTE T: APPR P 1 E ) : / Itild6 IA..Af/ .tAIIr ecr•f yor P 'Pi OVED 4 _I , A ity Attorney ,, 1 ORDINANCE NO.2017-3952 Page 3 of 109 Exhibit A Participation Agreement ORDINANCE NO.2017-3952 Page 4 of 109 CITY OF COLLEGE STATION PARTICIPATION AGREEMENT FOR CONSTRUCTING AND OVERSIZING PUBLIC INFRASTRUCTURE This Agreement is entered into by and between the CITY OF COLLEGE STATION, a Texas Home Rule Municipal Corporation (the "City"), COLLEGE STATION TOWN CENTER, INC., a Texas corporation, formerly known as COLLEGE STATION TOWN CENTER, L.P. (the "Developer"), and ROCK PRAIRIE MANAGEMENT DISTRICT NO. 2, a body politic and corporate and a governmental agency of the State of Texas, operating under and governed by the provisions of Chapter 3909,Texas Special District Local Laws Code, and Sections 52 and 52-a of Article III and Section 59 of Article XVI of the Texas Constitution (the "District"), with the City, Developer, and District hereinafter collectively referred to as the"Parties". WHEREAS, Developer is developing property within the City of College Station city limits, more particularly described as College Station Town Center(hereinafter "Property") a description of which is attached hereto as Exhibit"A"; and WHEREAS, Developer is required to construct certain public infrastructure, such as roadways, utilities, sidewalks, drainage facilities, and water and sewer facilities that relate to Developer's proposed development in the District; and WHEREAS, City is required or desirous of assuming some of the cost for construction of certain public infrastructure described as the Project (as hereinafter defined), affecting the Property and has requested that Developer oversize the public infrastructure so that City can participate in the Project; and WHEREAS, the City, Developer, and District will receive benefits from participation in the construction, reconstruction, or oversizing of certain public infrastructure as set forth in this Agreement; and WHEREAS, because of this and in order to comply with City's overall development plan, Developer, District, and City agree that it is in the best interests of the public for the Parties to construct, reconstruct, or oversize, as applicable, certain identified public infrastructure; and WHEREAS, the City Engineer has reviewed the data, reports and analysis, including that provided by Developer's engineers, and determined that certain such public infrastructure qualifies for City- Developer/District participation; and WHEREAS, the Developer shall design, bid, award, and begin construction on this Project no later than one- hundred twenty (120) days after the City awards a construction contract for Lakeway Drive (Priority One of the City Road Projects), as shown in the Infrastructure and Economic Development Agreement executed on July 10, 2015, by and between College Station Town Center, L.P. and the City of College Station (the "Economic Development Agreement"); and ORDINANCE NO.2017-3952 Page 5 of 109 WHEREAS, the Developer shall complete all phases of the Project no later than nine (9) months after the Construction Start Date, while working with the City according to and under the authority of Chapter 212, Subchapter C, Developer Participation in Contract for Public Improvement, Texas Local Government Code; and WHEREAS,the Parties agree as to the nature and proportion of participation as further recited herein and as may be required by applicable law including Chapter 212, Subchapter C,Developer Participation in Contract for Public Improvement, and Chapter 252, Purchasing and Contracting Authority of Municipalities of the Texas Local Government Code; and NOW, THEREFORE, for and in consideration of the recitations above and the promises and covenants herein expressed, the Parties hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Approved Plans means the plans and specifications that meet the requirements of this Participation Agreement,the City of College Station Codes and Ordinances, and any other applicable laws, and that have been submitted to, reviewed, and approved by the City of College Station relating to the Project. 1.2 City or College Station means the City of College Station, a Texas Home Rule Municipal Corporation located at 1101 Texas Avenue, College Station,Texas 77840. 1.3 Developer means College Station Town Center, Inc., a Texas corporation, formerly known as College Station Town Center, L.P., whose principal office is located at 4121 State Highway 6, College Station, Texas 77845. 1.4 District means Rock Prairie Management District No. 2, a body politic and corporate and a governmental agency of the State of Texas, operating under and governed by the provisions of Chapter 3909, Texas Special District Local Laws Code, and Sections 52 and 52-a of Article III and Section 59 of Article XVI of the Texas Constitution, whose principal address is 1300 Post Oak Boulevard, Suite 1400, Houston, Texas 77056. 1.5 Effective Date.The date on which this Agreement is duly approved and executed by the Parties. 1.6 Final Completion. The term "Final Completion" means that all the work on the Project has been completed, a written guarantee of performance for a one-year maintenance period has been provided, all final punch list items have been inspected and satisfactorily completed,all payments to materialmen and subcontractors have been certified as completed,all documentation,and all closeout documents have been executed and approved by the Developer as required, all Letters of Completion and other City documentation have been issued for the Project, all reports have been submitted and reporting requirements have been met, and Developer has fully performed all other requirements contained herein. The City will issue a certificate of Final Completion with the City's final Participation Payment. ORDINANCE NO.2017-3952 Page 6 of 109 1.7 Letter of Completion. A letter issued by the City Engineer stating that the construction of public improvements on the Project conforms to the plans, specifications and standards contained in or referred to in the Unified Development Ordinance of the City of College Station. 1.8 Participation Costs means the City's seventy-two percent (72%) share of the Project Costs. Note: All levels of funding, including, but not limited to, Participation Costs and Project Costs and estimates shall be reviewed and approved by the City Engineer. 1.9 Property means that one certain tract or tracts of land known generally as the College Station Town Center development and as further described in Exhibit "A". 1.10 Project means the design, construction, and project management to construct a forty-eight inch (48-inch) diameter fiberglass sewer line from the southeastern corner of the Property, running eastward towards William D. Fitch Parkway. The improvements are described below and in detail in Exhibit "C". 1.11 Project Costs means the costs directly related to the purchase of goods and services by the Developer, and/or third parties at the direction and expense of the Developer, and for the benefit of the District and/or City for the design,development, construction,and acquisition of the Project paid by the Developer, including,but not limited to engineering and consultant fees, materials testing, surveying, permitting costs, construction contract costs, and approved change orders for construction of the Project. Project Costs and estimates shall be reviewed and approved by the City Engineer. ARTICLE II CITY COST PARTICIPATION 2.1 Agree to Participate. City agrees to cost participate in the Project. City's actual rate of participation in the Project will in no event exceed seventy-two percent (72%) of the Project Costs. Notwithstanding the foregoing, if the City's estimated Participation Costs, based on the bids received for the Project, exceeds Two Million Three Hundred Thousand Dollars($2,300,000.00),the City may elect not to proceed with participation in the Project upon written notice to the Developer and District. If the City elects not to proceed with participation in the Project, the City agrees that Developer shall be provided an additional period of one-hundred and twenty (120) days to design, bid, award and begin construction of the 18-inch sanitary sewer trunk line necessarily to serve the District. In addition, if the City elects not to proceed with participation in the Project, the City agrees to pay the Participation Costs and its share of the costs accrued by Developer associated with advertising,printing and bidding of the Project through the date of the City's election not to participation in the Project. 2.2 Competitive Bidding.The Developer shall advertise for bids and let construction contracts in accordance with Subchapter I of Chapter 49, Texas Water Code, as amended. Developer shall be responsible for advertising and obtaining bids or negotiating proposals for the construction of the Project, as required by Texas law and the Economic Development Agreement. ORDINANCE NO.2017-3952 Page 7 of 109 2.3 Standard Construction Agreement Form. Developer agrees to use the City's Standard Form Construction Agreement, attached as Exhibit"J",when awarding the construction contract(or contracts)for this Project. Developer covenants that the construction contracts awarded by Developer will contain assignment language and be assignable to the City if Developer defaults. 2.4 Design. Developer shall ensure compliance with all State and Local laws,codes,ordinances and standards relating to the Project, its design and construction, the Property, and its subdivision and development. The City retains the right, but not the obligation, to perform its own independent submittal review, shop drawing review, and inspections. 2.5 Construction Contract Administration and Change Orders. Developer shall have primary responsibility for all normal administrative construction contract actions, including(but not limited to) submittal review, shop drawing review, responding to requests for information, inspections, and enforcing all contract clauses. While the Developer shall have primary responsibility for final execution of change orders, all change orders must first be reviewed and approved in writing by City before execution by Developer. The City shall not be obligated to reimburse funds for unapproved change orders,regardless of the reason or unanticipated condition giving rise to the unauthorized change order. 2.6 Cost of Project. Developer's and District's engineer's sealed detailed cost estimate of the Project is attached hereto and incorporated herein as Exhibit"D". 2.7 Developer Assurances. The Developer shall provide adequate financial assurances to the City to ensure Developer has sufficient funds dedicated to Developer's allocation of Project Costs, which have been calculated at twenty-eight percent (28%) of total Project Costs. To satisfy this requirement, Developer shall, within thirty (30) days after the Effective Date of this Agreement: a. Post a Developer Bond in favor of the City for the Developer's allocation of Project Costs; or b. Provide to City a set-aside letter or letter of credit from an authorized financial institution; or c. Deposit the Developer's allocation of Project Costs with the District, to be held in escrow for the Project; 2.8 City Assurances. The City shall, within thirty (30) days after the Effective Date of this Agreement, designate, appropriate, and/or pledge, as applicable, sufficient City funds to pay the Participation Costs, and shall provide written verification of same to District and Developer. 2.9 Phased Progress Payment Applications. Application for phased progress payment by the Developer to the City for payment to the Developer pursuant to the terms of this Agreement must include the following in a form acceptable to City: a. The Developer shall submit applications for payment as provided for herein. Applications for payment, if approved by the City, will be processed by City's representative. Before the first Application for Payment, the Developer shall submit to the City a schedule of values allocated to various phases of the Work, prepared in such form and supported by such data to substantiate its accuracy as the City may require. This schedule, unless objected to by the City, shall be used as a basis for reviewing the Developer's Applications for Phased Payment. No later than the 30th day after the completion of each phase,the Developer shall submit to City's representative,for approval or modification,a statement showing as completely as practicable the total value of the actual work ORDINANCE NO.2017-3952 Page 8 of 109 performed and phase (or phases) completed by the Developer's Contractor and accepted by the City. The statement shall also include the value of all materials not previously submitted for payment which have been delivered to the site but have not yet been incorporated into the work. Applications for phased progress payments shall include: i. Completion of the Project Phase in accordance with the Approved Plans; ii. Issuance of a Letter of Completion relating to the Project Phase; iii. Developer's compliance with all State and Local laws, Codes, Ordinances and standards relating to the Project, the Property and its subdivision and development; iv. Dedication of the land for the right-of-way or easement, either by plat or by deed relating to the Project Phase; v. A current title report as of the date of such land dedication and updated within sixty (60) days of the date of this Agreement; vi. Lien releases or subordinations from all lenders as required by City; vii. Proof that all guarantees of performance and payment as set forth in this Agreement have been met, including all bond requirements when applicable; viii. A breakdown of actual costs of the Project with supporting documentation, including all payment receipts and a breakdown of City's portion of Project Costs where possible or appropriate; and ix. A statement that good and lawful title to all Project improvements, incorporated materials, and required underlying property interests, such as easements, have been fully conveyed and transferred to the District, and subsequently from the District to the City free and clear of any type of encumbrance, lien, or other third-party claim. b. On or before the 30th calendar day following the City's receipt of a phased progress payment application made in conformity with preceding paragraph, the City shall pay to the Developer the City-approved amount of the phased progress payment based on the Developer's applications for payment, and the recommendation and approval of City's representative. Prior to Substantial Completion,phased progress payments will be made in an amount equal to the percentage of work represented by each phase being completed by the Developer's Contractor and approved by the City, but in each case less the aggregate of payments previously made, less retainage, and less amounts as City's Engineer shall determine and the City may withhold in accordance with this Agreement. Upon Final Completion, including the delivery of all close out documents, such as "as built" drawings, warranties, guarantees, required additional materials, releases, operation and maintenance manuals, and acceptance of the work in accordance with this Agreement, the City shall pay the remainder of the balance due under this Agreement, less any sums withheld under other terms of this Agreement and less the retainage. Acceptance of retainage, and interest earned ORDINANCE NO.2017-3952 Page 9 of 109 thereon, by Developer and Contractor shall constitute a Waiver and Release of all claims by Developer against the City. c. From each approved statement, the City and CSTC shall retain until final payment, five percent (5%). The City may also retain from each approved statement any other necessary sums or those authorized under the terms of this Agreement. 2.10 Construction Start Date. The Developer shall design, bid, award, and begin construction on this Project no later than one-hundred twenty (120) days after the City awards a construction contract for Lakeway Drive (Priority One of the City Road Projects) ("the Construction Start Date"), as shown in the Economic Development Agreement. At the City's option, this Agreement expires and is voidable if Project construction is not started by the Construction Start Date, as described in this paragraph; provided, however, that Developer shall have the opportunity to cure said failure in accordance with Article V of the Economic Development Agreement. After notice and opportunity to cure as provided by the Economic Development Agreement, failure of Developer to meet this Construction Start Date shall be considered to be in default of the Agreement and, in addition to other remedies described in Article VI, the City may terminate the Agreement. The Developer will be considered to have commenced construction if it has awarded a construction contract(or contracts) for the Project. 2.11 Substantial Completion Date. This Project shall have a substantial completion date of no later than nine (9) months after the Construction Start Date. The term "Substantial Completion" means that in the opinion of the City, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Developer or its contractor. Failure of Developer to meet this Substantial Completion Date shall be deemed to be a material breach of this Agreement; provided, however, that Developer shall have the opportunity to cure said failure in accordance with Article V of the Economic Development Agreement. 2.12 Reports,Books and Other Records. Upon request by the City,Developer shall make its books and other records related to the Project available for inspection by City. Developer shall submit to City any and all information or reports requested to verify the expenditures submitted for City participation eligibility including, but not limited to, bid documents,payment applications, including any supporting information, canceled checks, copies of construction and engineering documents,as determined by the City Engineer in its reasonable discretion, for the verification of the cost of the Project detailed in Exhibits"C"and"D"of this Agreement. The submission of these reports and information shall be the responsibility of Developer and shall be certified by Developer's Licensed Professional Engineer at Developer's expense and signed by an authorized official of the entity. 2.13 No Waiver of Impact Fees. By entering into this Agreement, the City does not waive nor exempt Developer or District, from Impact Fees or other City fees. ORDINANCE NO.2017-3952 Page 10 of 109 ARTICLE III GOVERNMENTAL IMMUNITY,INDEMNIFICATION, RELEASE,AND INSURANCE 3.1 BY ENTERING INTO THIS AGREEMENT, THE CITY DOES NOT CONSENT TO SUIT; WAIVE ITS GOVERNMENTAL IMMUNITY OR THE LIMITATIONS AS TO DAMAGES UNDER THE TEXAS TORT CLAIMS ACT. 3.2 INDEMNIFICATION. THE DEVELOPER AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY AND ITS OFFICERS, AGENTS, VOLUNTEERS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, EXPERT FEES AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, OR FOR BREACH OF CONTRACT, ARISING OUT OF OR IN CONNECTION WITH THE PROJECT UNDER THIS AGREEMENT,REGARDLESS OF WHETHER SUCH INJURIES,DEATH,DAMAGES OR BREACH ARE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ANY OTHER PARTY INDEMNIFIED HEREUNDER,THE DEVELOPER,THE DISTRICT, OR ANY THIRD PARTY. 3.3 RELEASE. THE DEVELOPER ASSUMES FULL RESPONSIBILITY FOR THE PROJECT TO BE PERFORMED HEREUNDER,AND RELEASE,RELINQUISH AND DISCHARGE THE CITY,ITS OFFICERS, AGENTS, VOLUNTEERS AND EMPLOYEES, FROM ALL CLAIMS, DEMANDS, AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER,INCLUDING THE COST OF DEFENSE THEREFORE, FOR ANY INJURY TO OR DEATH OF ANY PERSONS AND ANY LOSS OF OR DAMAGE TO ANY PROPERTY THAT IS CAUSED BY, ALLEGED TO BE CAUSED BY, ARISING OUT OF, OR IN CONNECTION WITH, THE PROJECT HEREUNDER. THIS RELEASE SHALL APPLY WHETHER OR NOT SAID CLAIMS, DEMANDS, AND CAUSES OF ACTION ARE COVERED IN WHOLE OR IN PART BY INSURANCE AND REGARDLESS OF WHETHER OR NOT SAID CLAIMS, DEMANDS, AND CAUSES OF ACTION WERE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF CITY, ANY OTHER PARTY RELEASED HEREUNDER, DEVELOPER, DISTRICT, OR ANY THIRD PARTY. 3.4 Insurance. The Developer shall procure and maintain, at its sole cost and expense for the duration of this Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the Project by Developer, or its contractors, subcontractors, agents, representatives, volunteers, or employees. Said insurance shall list College Station, its officers, agents, employees, and volunteers as Additional Insureds. See Exhibit "E" for required limits of liability insurance. Certificates of insurance evidencing the required insurance coverages on the most current form approved by the Texas Department of Insurance shall be attached hereto as Exhibit"F". 3.5 Survival. All provisions of this Article III,including,but not limited to,governmental immunity,indemnity, release, and insurance, survive termination or expiration of this Agreement. ORDINANCE NO.2017-3952 Page 11 of 109 ARTICLE IV PROJECT AND CONSTRUCTION 4.1 Right to Inspect the Work. City may inspect the Project for compliance with the Approved Plans during both the construction and the Warranty Period (as hereinafter defined). In the event that it is determined by City that any of the work or materials furnished is not in strict accordance with the Approved Plans,City may withhold funds until the nonconforming work conforms to the Approved Plans. If the work and materials furnished is not in strict accordance with the Approved Plans and the Developer has not commenced efforts to correct such non- conforming work within thirty (30) days of written notice to the Developer from the City detailing such non- conformance and proceeded diligently to conform the Work to the Approved Plans, in addition to withholding funds the City, at its election, may terminate this Agreement without any further liability. Notwithstanding the foregoing, if the City elects to terminate this Agreement pursuant to this Section, City shall pay its Participation Costs through the date of termination. 4.2 Independent Contractor. Developer shall be solely responsible for ensuring the selecting, supervising, and paying of its contractors and subcontractors and for complying with all applicable laws, including, but not limited to, all requirements concerning workers compensation and construction retainage with respect to the Project.The Parties agree all employees, volunteers,personnel and materials furnished or used by Developer and its contractors and subcontractors in the Project will be the responsibility of Developer, and understand Developer will not be deemed employees or agents of City for any purpose.Nothing in this Agreement will establish a joint venture between the District,the Developer, and the City. 4.3 Payment for materials and labor. Developer shall be solely and exclusively responsible for compensating any of its contractors, subcontractors, employees, materialmen or suppliers of any type or nature whatsoever and taking all commercially reasonable steps to ensure that no claims or liens of any type will be filed against any property owned by City arising out of or incidental to the performance of Developer pursuant to this Agreement. In the event a statutory lien notice is sent to City, Developer shall, where no payment bond covers the work, upon written notice from the City, immediately obtain a bond at its expense and hold City harmless from any losses that may result from the filing or enforcement of any said lien notice. 4.4 Affidavit of bills paid. Prior to the issuance of a Letter of Completion of the Project, Developer shall provide City a notarized affidavit stating that all bills for labor,materials, and incidentals incurred have been paid in full, that any claims from manufacturers, materialmen, and subcontractors have been released, and that there are no claims pending of which Developer has been notified. Such affidavit shall be in a form as substantially set forth in Exhibit "G" which is attached hereto and incorporated by reference. 4.5 Requirements of Applicable rules remain.This Agreement does not alter, amend modify or replace any other requirements contained in the Code of Ordinances of the City of College Station, Texas, Unified Development Ordinance of the City of College Station, or other applicable law. 4.6 Requirement for Access to Existing Facilities. The City will require daily access to its existing lift station facilities at any time during the construction or improvement phases and after completion. Access may be required for major repairs or maintenance work by City or the City's contractors. Neither the Developer nor District may take the City's lift station out of service at any time during any of the construction phases. ORDINANCE NO.2017-3952 Page 12 of 109 4.7 Warranty: Upon issuance of a certificate of Final Completion, Developer warrants and will ensure that the Developer's Contractor's warranty will pass through to the City and will warrant for a period of one (1) year (or longer as provided in Part d., below) (such period being referred to as the"Warranty Period") as follows: a. That, through the Developer's Contractor's pass through warranty, all materials provided to the City under this Agreement shall be new unless otherwise approved in advance, in writing, by the City Engineer and that all work will be of good quality, free from faults and defects,and in conformance with this Agreement and recognized industry standards. b. All work not conforming to these requirements, including but not limited to unapproved substitutions, may be considered defective, and shall be repaired or replaced at Developer's sole cost and expense. c. This warranty is in addition to any rights or warranties expressed or implied by law and in addition to any consumer protection claims arising from misrepresentations by the Developer. d. Where more than a one (1) year warranty is specified for individual products, work, or materials, the longer warranty shall govern. ARTICLE V GUARANTEE OF PERFORMANCE AND PAYMENT 5.1 Bonding Requirements of Developer. The Developer shall require its construction contractor(s) to provide performance bonds that include at least a one (1) year warranty period, in accordance with the requirements of Texas Local Government Code §212.073. The performance bond shall be provided using the form attached in Exhibit"H"to ensure construction of the Project. For Projects exceeding fifty thousand dollars ($50,000) in total value, Developer will ensure its contractor performing the Project executes a payment bond using the form attached in Exhibit "I" to ensure payment to subcontractors and vendors. The Developer and the City shall be dual obligees on the performance bond if issued on behalf of Developer's construction contractor(s). Bonds shall be on a City-approved form, be executed by a corporate surety according to Chapter 2253 of the Texas Government Code, and be for the full cost of Developer's construction contract to which the Project relates. ARTICLE VI GENERAL PROVISIONS 6.1 Amendments. No amendment to this Agreement will be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of the Parties. 6.2 Choice of Law and Venue. This Agreement has been made under and shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. ORDINANCE NO.2017-3952 Page 13 of 109 6.3 Authority to enter into Agreement. Each party represents that it has the full power and authority to enter into and perform this Agreement. Specifically,the person executing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The person executing this Agreement on behalf of Developer and District represents that he or she is authorized to sign on behalf of Developer or District and agrees to provide proof of such authorization to the City upon request. 6.4 Agreement read. The Parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 6.5 Notice. Any notice sent under this Agreement, except as otherwise expressly required herein, shall be hand delivered, written and mailed, or sent by electronic or facsimile transmission confirmed by mailing written confirmation at substantially the same time as such electronic or facsimile transmission, or personally delivered to an officer of the receiving party at the following addresses: To City: With copies to: City of College Station City Attorney and City Manager City Engineer P.O. Box 9960 P.O. Box 9960 College Station, TX 77842 College Station, TX 77842 To Developer: College Station Town Center, Inc. 4121 State Highway 6 College Station,Texas 77845 To District: Rock Prairie Management District No. 2 c/o Schwartz, Page& Harding, L.L.P. 1300 Post Oak Boulevard, Suite 1400 Houston, Texas 77056 Each party may change its address by written notice in accordance with this section. Any communication addressed and mailed in accordance with this section shall be deemed to be given when so mailed, any notice so sent by electronic or facsimile transmission shall be deemed to be given when receipt of such transmission is acknowledged, and any communication so delivered in person shall be deemed to be given when receipted for, by, or actually received by, the party. 6.6 Term.This Agreement will terminate after expiration of the warranty period, subject to survival of other provisions, as indicated. The Agreement term may be extended by mutual written agreement of the Parties. 6.7 Termination.The City may terminate this Agreement prior to the award of a contract for the construction of the Project for convenience with thirty(30)days written notice to the Developer and District.If City terminates this Agreement for convenience, City shall be responsible for Participation Costs accrued prior to termination, and its share of the costs accrued by Developer associated with advertising, printing and bidding of the Project through the date of the City's termination. Following the award of a contract for the construction of the Project, ORDINANCE NO.2017-3952 Page 14 of 109 the City may not terminate this Agreement unless Developer has breached this Agreement and has subsequently failed to cure said breach in accordance with the terms herein. In addition, if City terminates this Agreement pursuant to this Section, City shall pay its Participation Costs through the date of termination. 6.8 Assignment. This Agreement and the rights and obligations contained herein may not be assigned by Developer or District without the prior written approval of the City. 6.9 Default. In the event of a breach of this Agreement by Developer, Developer shall promptly deliver to the City all construction and design documents, and assign to the City all construction contracts and all other rights necessary for the City to continue the Project. 6.10 Anti-Boycott Verification. As required by Chapter 2270, Government Code, Developer hereby verifies that Developer does not boycott Israel and will not boycott Israel through the term of this Agreement. For purposes of this verification,"boycott Israel"means 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 specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory,but does not include an action made for ordinary business purposes 6.11 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal,or unenforceable in any respect,such invalidity, illegality,or unenforceability shall not affect the other provisions, and in lieu of each provision that is invalid, illegal or unenforceable, there shall be added a new provision to this Agreement as similar in terms to such invalid, illegal, or unenforceable provision as may be possible and yet be valid, legal and enforceable, by means of good faith negotiation by the Parties to this Agreement or by reform by a court of competent jurisdiction. 6.12 Duplicate Originals.The parties may execute this Agreement in duplicate originals,each of equal dignity. 6.13 Recitals. The "WHEREAS" clauses set forth above are expressly incorporated in and form part of the terms of this Agreement. 6.14 Captions. The captions contained in this Agreement are for convenience of reference only and in no way limit or enlarge the terms and conditions of this Agreement. 6.15 Singular and Plural. All references to the plural herein shall also mean the singular and to the singular shall also mean the plural unless the context otherwise requires. 6.16 Ambiguity. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. 6.17 No Third Party Beneficiaries. No person or entity shall be a third party beneficiary to this Agreement or shall have any right or cause of action hereunder. 6.18 No Partnership. This Agreement and the transactions and performances contemplated hereby shall not create any manner of partnership,joint venture or similar relationship between the Parties. 6.19 Exhibits.All exhibits to this Agreement are incorporated and made part of this Agreement for all purposes. ORDINANCE NO.2017-3952 Page 15 of 109 List of Exhibits: A. Legal Description of the Property B. Route Survey and Off-Site Easements Instruments (f applicable) C. Description of the Project D. Engineer's stamped and sealed estimate of costs and breakdown for Project and Participation Costs E. Insurance Requirements F. Certificates of Insurance G. Affidavit of All Bills Paid Form H. Performance Bond(Dual Obligee Form) I. Payment Bond (Dual Obligee Form) J. Standard Form Construction Agreement (Signature Page Immediately Follows) ORDINANCE NO.2017-3952 Page 16 of 109 AGREED: COLLEGE STATION TOWN CITY OF COLLEGE STATION CENTER INC. BY: BY: City Manager Printed Name: Date: Title: APPROVED Date: City Attorney ROCK PRAIRIE MANAGEMENT Date: DISTRICT NO. 2 BY: Assistant City Manager/CFO Date: Printed Name: Title: Vice President, Board of Directors Date: ORDINANCE NO.2017-3952 Page 17 of 109 Exhibit A Legal Description of the Property ORDINANCE NO.2017-3952 Page 18 of 109 METES AND BOUNDS DESCRIPTION OF A 231.97 ACRE TRACE THOMAS CARUTHERS LEAGUE,A-9 COLLEGE STATION,BRAZOS COUNTY,TEXAS METES AND BOUNDS DESCRIPTION OF ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9,COLLEGE STATION,BRAZOS COUNTY,TEXAS.SAID TRACT BEING THE REMAINDER OF A CALLED 341,06 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO WILLIS S.RlICIIEY RECORDED IN VOLUME 1160,PAGE 77701 THE OFFICIAL PUI31,1C RECORDS OF BRAZOS COUNTY,TEXAS AND THE REMAINDER OF A CALLED 11 ACRE TRACIOF LAND AS DESCRIBED BY A DEED TO WILLIS S.RITCHEY RECORDED IN VOLUME 260,PAGE 466 OP THE DEED RECORDS OF BRAZOS COUNTY,TEXAS. SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: BEGINNING AT A '1/2 INCH IRON ROD SET ON THE SOUTH LINE OF ROCK PRAIRIE ROAD EAST(R.O.W. VARIES)MARKING TIIE NORTHEAST CORNER OF THE REMAINDER OF A CALLED 10.846 ACRE TRACT OF LAND AS DE.SCRIBED AS BY A DEED TO JO ANN ATKINS RECORDED IN VOLUME 267,PAGE 483 OE TIIE DEED RECORDS OF!BRAZOS COUNTY,TEXAS.FOR REFF.RENCE,A 1/2 INCH IRON ROD FOUND BEARS:S 13° 49' 13"W FOR A DISTANCE OF 1.02 FEET; THENCE: ALONG THE SOUTH LINE OF ROCK PRAIRIE ROAD EAST FOR THE FOLLOWING CALLS: S 86°27'34"E,AT 300.64 FEET PASS THE COMMON LINE OF SAID REMAINDER OF 341.06 ACRE TRACT AND SAID REMAINDER OF 11 ACRE TRACT(FROM WHICH A'4 INCH IRON ROD FOUND BEARS:S 00°37'23"E FOR A DISTANCE OF 1.09 FEET),CONTINUE ON FOR A TOTAL DISTANCE OF 603.26 FEET(DEED CALL:S 86°27'34"E-603.27 FEET)TO A 1/2 INCH IRON ROD SET(THIS LINE USED FOR BEARING ORIENTATION HONORING TIIE RIGHT-OF-WAY BEARING AS SHOWN IN THE DEED RECORDED IN VOLUME 10437,PAGE 79 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS).FOR REFERENCE,A 1/2 INCH IRON ROD FOUND BEARS:S 04° 14'47"W FOR A DISTANCE OF 1.00 FEET; S 85° 01' 50" E FOR A DISTANCE OF 1226.55 FEET(DEED CALL: S 85°02' 05" E 1226.41 FEET, 10437/65)10 A¼INCH IRON ROD SET.FOR REFERENCE,A 1/2 INCH IRON ROD FOUND BEARS:S 05° 17' 18"W FOR A DISTANCE OF 1.00 FEET; S 84°23'35"E FORA DISTANCE OF 70.89 FEET(DEED CALL:S 84°23'02"E-70.75 FEET,10437/65)TO A 1/2 INCH IRON ROD SET ON THE COMMON LINE OF SAID REMAINDER OF 341.06 ACRE TRACT AND SAID REMAINDER OF 11 ACRE TRACT.FOR REFERENCE,A 3/8 INCH IRON ROD FOUND MARKING THE SOUTHEAST CORNER OF SAID REMAINDER OF 11 ACRE TRACT BEARS:S 00°40'34"E FOR A DISTANCE OF 268.14 FEET; N 00°40'34"W FOR A DISTANCE OF 1,51 FEET TO A 1/2 INCH IRON ROD SET; S 84°23'35"E FOR A DISTANCE OF 543.05 FEET(DEED CALL:S 84°23'02"F-543,10 FEET,10437/79) TO A 1/2 INCH IRON ROD SET.FOR REFERENCE,A 1/2 INCH IRON ROD FOUND BEARS:S 06°46'24"W FOR A DISTANCE OF 2.50 FEET; S 82'03'38"E FOR A DISTANCE OF 195.36 FEET(DEED CALL:S 82°02'02"E-195.35 FEET,10437/79) TO A 1/2 INCH IRON ROD Sli't ON THE WEST 1,1NE OF Lar 1, ROCK PRAIRIE BAPTIST CHURCH ACCORDING TO THE PIAT RECORDED IN VOLUME',7312, PAGE 207 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS.FOR REFF,RINCE.,A V:INCH IRON ROD FOUND MARKING 3 ORDINANCE NO.2017-3952 Page 19 of 109 THE NORTHWEST CORNER OF SAID LOT 1 BEARS:N 07°35 00"E FOR A DISTANCE OF 7.64 FEET; THENCE: S 07"58'42"W ALONG THE WEST LINE OF SAID LOT 1,AT 2.50 FEET PASS A F,INCI I IRON ROD FOUND,CONTINUE ON FOR A TOTAL DISTANCE OF 528.64 FEET(PLAT CALL:S 07°57'58"W-586.27 FEET, 7312/207)TO'A INCH IRON ROD SET MARKING THE SOUTHWEST CORNER OE SAID LOT 1; TlIENCE: S 82°01'39"E ALONG THE SOUTH LINE OF SAID LOT I FOR A DISTANCE OF 698.85 FEET(PLAT CALL:S 82°02'02"13-699.33 FEET,7312/207)TO'A INCH IRON ROD FOUND ON THE WEST LINE OF A CALLED 13.95 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO OLIVER GOEN RECORDED IN VOLUME 10424, PAGE 40 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS. SAID IRON ROD FOUND MARKING THE SOUTHEAST CORNER OF SAID LOT 1; THENCE: S 20°23' 16"E ALONG THE WEST LINE OF SAID 13.95 ACRE TRACT FOR A DISTANCE OF 112.62 FEET(DEED CALL BEARING:S 17°23'00"E, 1160/777)10 A CROSS-TIE FENCE POST FOUND; THENCE: S 41° 51' 55" W CONTINUING ALONG THE WEST LINE OF SAID 13.95 ACRE TRACT FOR A DISTANCE OF 1390.07 FEET(DEED CALL: S 44°44'00"W 1391.04 FEET, 10424/40)TO 6 INCH FENCE POST FOUND MARKING THE SOUTHWEST CORNER OF SAID 13.95 ACRE TRACT; THENCE: S 48°02'02"13 ALONG TILE SOUTH WEST LINE OF SAID 13.95 ACRE TRACT FOR A DISTANCE OF 341.48 FEET(DEED CALL:S 48°05'26"E-341.98 FEET,10424/40)10'A INCH IRON ROD FOUND MARKING THE SOUTH CORNER OF SAID 13.95 ACRE TRACT AND THE.SOUTHWEST CORNER OF A CALLED 19.61 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO ARCHIE P.CLARK AND LINDA L.CLARK RECORDED IN VOLUME 561,PAGE 28 OF THE DEED RECORDS OF BRAZOS COUNTY,TEXAS; THENCE: S 48° 17'01"E ALONG THE SOUTHWEST LINE OF SAID 19.61 ACRE TRACT FOR A DISTANCE OF 250.65 FEET(DEED CALL:S 44°52'55"E-250.66 FEE:I',561/28)TO'A INCH IRON ROD FOUND MARKING fill SOUTH CORNER OF SAID 19.61 ACRE TRACT AND THE SOUTHWEST CORNER OF A CALLED 19.69 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO EUGENE BERNARD SAVAGE,Ill AND GRACE LYNN SAVAGE RECORDED IN VOLUME 7912,PAGE 265 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS; THENCE: S 48° 35'09"E ALONG THE soya-iv/BT.LINE OF SAID 19.69 ACRE TRACT FOR A DISTANCE.OF 437.42 FEET(DEED CALL:S 48°34'49"E 437.68 FEET,7912/265)10 V:INCH IRON ROD FOUND MARKING TILE SOUTH CORNER OF SAID 19.69 ACRE TRACT,THE SOUTHWEST CORNER OF A CALLED 66.32 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO THE CITY 01"COL LE(IE STATION RECORDED IN VOLUME,4480,PAGE 135 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS AND THE NORTH CORNER OF A CA1A,ED 100.64 ACRE TRACT OF I.AND AS DESCRIBED BY A DEED TO THE CITY OF COLLEGE STATION RECORDED IN VOLUME 6927,PAGE 226 OF TIIE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS; TIIENCE: S 77"55'55"W ALONG THE NORTHWEST LINE OF SALI)100.64 ACRE TRACT FOR A DISTANCE OF 2980.10 FEET(DEED CALL:S 77°56'03"W-2981.71 FEET,6927/226)TO 12 INCH FENCE POST FOUNI)ON THE NoRTHEAn LINE OF A CALLED 46.60 ACRI3 TRACT OF LAM)AS DESCRIBED BY A DEED TO Tim CU Y OF COLLEGE STATION RECORDED IN VOLUME 3310,PAGE 321 OF TIME OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS,SAID FENCE POST FOUND MARKING THE WEST CORNER OF SAID 100,64 ACRE TRACT; THENCE: N 68° 42'56" W ALONG THE NORTHEAST LINE OF SAID 46.60 ACRE TRACT ANT) ALONG AN EXISTING FENCE LINE FOR A DISTANCE OF 189.31 FEET TO A 6 INCII CEDAR I T.NCE POST FOUND MARKING THE NORTI I CORNER OF SAID 46.60 ACRE TRACT AND THE EAST CORNER OF A CALLED 10.01 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO M.D.WHEELER,LTD RECORDED IN VOLUME 3007,PAGE 341 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS; THENCE: ALONG THE NORTHEAST LINE 01' SAID 10.01 ACRE TRACT ANI)CONTINUING ALONG SAID FENCE LINE FOR THE FOLLOWING CALLS: ORDINANCE NO.2017-3952 Page 20 of 109 N 56°54'36"W FOR A DISTANCE OF 108.66 FEET TO A 3 INCH CEDAR FENCE POST FOUND; N 47°58'11"W FOR A DISTANCE OF 372.04 FEET TO A FENCE POST FOUND; N 47°52 01"W FOR A DISTANCE OF 828.48 FEET TO A FENCE POST FOUND; N 48° 14'35"W FOR A DISTANCE OF 163.14 FEET TO A FENCE POST FOUND; N 47°03' 10"W FOR A DISTANCE OF 129.80 FEET TO A FENCE POST FOUND; N 46°26' 14"W FOR A DISTANCE OF 535.34 FEET TO A 4 INCII FENCE POST FOUND MARKING THE SOUTH CORNER OF A CALLED 25.79 ACRE TRACT OF LAND AS DESCRIBED BY A DEED TO BRIAN HOWARD PERRY RECORDED IN VOLUME 10459,PAGE 34 OF THE OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY,TEXAS; THENCE: ALONG THE SOUTHEAST LINE OF SAID 25.79 ACRE TRACT FOR THE FOLLOWING CALLS: N 66'46'41"E FOR A DISTANCE OF 605.80 FEET(DEED CALL:N 69'46'00"E-660.50 FEET,1160/77)10 A FENCE POST FOUND; N 55'06'22"F FOR A DISTANCE OF 196.90 FEET(DEED CALL:N 57°44'00"F-195.20 FEET, 1160/777) TO A FENCE POST FOUND; N 41'30'56"E FOR A DISTANCE OF 424.36 FEET(DEED CAUL:N 44°44'00"E-423.09 FEET, 1160/777) TO A'A NCH IRON ROD FOUND; N 05°17 42"E FOR A DISTANCE OF 216.35 FEET(DEED CALL:N 08°04'00"E-217.30 FEET,1160/77)TO A 6 INCH CEDAR FENCE POST FOUND MARKING THE SOUTHWEST CORNER OF SAID REMAINDER OF 10.846 ACRE TRACT; THENCE: ALONG THE COMMON LINEOF SAID REMAINDER OF 10.846 ACRE TRACT AND SAIDIREMAINDER OF 341.06 ACRE TRACT FOR THE FOLLOWING CALLS: S 81°11'52"E FOR A DISTANCE OF 256.72 FEET(DEED CALL:S 78°33'00"E 258.20 FEET,1160/77)TO A 6 INCH FENCE POST FOUND MARKING Ti IF SOUTHEASTCORNER OF SAID REMAINDER OF 10.846 ACRE TRACT; N 18°43'49"E FOR A DISTANCE OF 471.11 FEET(DEED CALL:N 21°24'00"F-467.10 FEET, 1160/777) TO A FENCE POST FOUND; N 13°49'13"E FORA DISTANCE OF 522.38 FEET(DEED CALL:N 16°44'00"E-586.42 FEET,1160/777) TO THE POINT OF BEGINNING CONTAINING 231.97 ACRES OF LAND, MORE OR LESS, AS SURVEYED ON THE GROUND FEBRUARY,2012, SEE FLA PREPARED FEBRUARY,2012,FOR MORE DESCRIPTIVE INFORMATION. BRAD KERR \ REGISTERED PROFESSIONAL LAND SURVEYOR No.4502 „. -* CINVORK/MAB/12.041 ORM SC.0411.40.1,6137 4502 .4 3 X;114/. .M.P0,‘•9‹,°14a, ‹,,S11 ORDINANCE NO.2017-3952 Page 21 of 109 Exhibit B Route Survey and Off-Site Easement Instruments (f applicable) ,„_,,,„...„,,...,,,__..,....,...__, I F Ws-' 2 N r1 n L1 \ _/ to R / e / / \ il \....�1 /// , ///// \\ .x m' \ z / / § / / \ \ \ o :./lir / / \ v' / I \ \ y d / , ,,,,,,../ / \ `3� a \ \ `;3:.::0a i / „F 3 0 9 r \\ 11P :;". . ; a Yp'' \< I /// s a a X ` vim /� ri b •�, °. y. / , Yat I� �k zz z 0 a v�� , / , \, • 7 \ _ 44 W meq a - -- Wh1 ` i c —k V1 �. / // s. `\ :./Y . Ato . 1/g o s oe aC1sil - /� \\ // $ '\ if ,\ \\ 11''\ / e e z ,-, 5fiiia a S\\\ \ 4A •\ \\\ / , , Aipg 3s't , N,. \'‘,/ \ , e c:c ,_ i i,...\\ \\ \\ \ / \\\\ A '� \\\ ..a \ /// la I"\\ ,';-.4 s 4 /i `) g !gig r r Iiiil;1 I ,,;til 49•41-111b r • Illitiv 4 op% a . 4 x - ›, 10tAi N sermic— H 4 ri. Ni illb, wP II _ �•/ _;}k ° 3 T Mi Lig1V 4 e 9. g U . � nklii% �l� a $Eiji A+ z4'0:1$ i Q dSf 'wig, a `o 3.0 PO .nit�1* 3 i 5 aL I ZZ-!LO-.1 b 14 gifg : a" sass-d — — co 43 /'.Eg-Phlfi`= '23. s. X_ — If10),Ul lld�3110 w.P„�. ><.a '-- oio -=.y?MTh:.. g33CR^..ld i m'S E Zpr ssvP PTa'xOm ZJr ssvo V61R•nvns ,{� E s Lszgas"e 1. � v9.413. �� O flas' €'qG' 8 ? ' i �� ems • !m, — VtlH3 414%1!1:11. !"211 a (4 BNI1>Irin 0054'YBL'ElL 11�lH3 =5 u c ZaLL:S WsnoH A y�o�6 litt'i A4.,,AG S!,(y Il Lamas AtIV INVS aaSOd0Hcl °^ °JIo!saMSSSOI `J Y;5Ea. 0'L.cio m4RS«Z 1 :_..- .,..b wo!s!sa, aa. --"4)--( 1 h 1 / ilk 1. o �� 11, El�;I. it 111111 IN* /G , , 1. • 4(3--egg Or tJvi'L! illiP 11 //p -4!., / off �., ,- &, 1 �,� //ice 4) '.0� R. '14,44 'T sgv \L ��, 00 /j/j _,,,,,,,:*.o., - 111. r�. Kiri ,.. � g `, I �c� ,,,,,, //ej_9; i 1., 110. ,, 4,..._ ci,or.:.,-,,e)p.... - „.-.- • ,,,,,, ..;"... N\4" ji - Ai " r ›, rit„.., ‘,\,‘,.. . , ..,. 1 '4% ' 01 - A . 12 i ,./ 'V.,,,,,"\ 4,N-C V4 it, 7 '4. IP%-- �m � . � .„ g� " "` 4� r (I' �� Y4�, i� g � � ' /9.0' p \\ �A //QIa Ia \ i; #0 ta � ti70/oif \ 11,11 � p illi"--2'-",'I.N.\-„. 07 i'0 ‘sz".; r Fiji,' /--- L---\,,,jii- ,,Y—-0- NIL:4-vireo. :Air 4ke....IN ,‘-k7_,e,t ALtAgaltr,',790 § . i -I) „4/4-, t. . ila,L4Ptos,0- 44-V't' - A , -\.\,„ A,1; ._,,,, ,„,,,i 1 , if ,, ,„„ V,--,,,4 lv 4..-Niv ‘4V7. ,, — - 4-4/0.1.— if F.',/,. f_..stk --- ‘, -,7---,?',.4 21) ,,,f00:4, 4411)4, -111\ p ,� • / \�`�.. �v #.-ez"111,4` x0-4.44 of ; e 1 ; / �1 t��•'::', 101140,4? f. a; �ti4t � �".�� -A AIL .' Ji \'I ItilVINIft_Or //.1 ,?4k ,#. -)k\ ' ,\Ar— tritr'' t Llt `� Oen g = ,,t 7, �1�. * r. _.,1 *fir,; I� t o / KYR • t) „Imp_�r ic �` .,'•` * ', %L ,/l;, 6 \ 16.11°' 4111'q.• ' \N'ifrill'.11). y s. iV%lN,w.4ot-1,,\ 4-,,1: FyAi ; okop ;vim. ),\.',t 41 ' )i )ffi/,Ji- o / ' *., ,.. , 0 r e"4z ✓ � mo _IT1 çl4Ir \ j � i cN. '4d,' V e4^ 47. ‘- 7 30 i t e xt---",,t)\ - ----------)- R i c100,4%(4 V9l!..000,-L!JZ'ZZ des 6,,001,tl,TWtl3A0 0\+M6 uo5 c°duJo di°J 3.4.600dS-V6,0J0\ZZ-m-!YtVd ORDINANCE NO.2017-3952 Page 24 of 109 METES AND BOUNDS DESCRIPTION 0.3712 OF ONE ACRE IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9 BRAZOS COUNTY,TEXAS A 0,3712 OF ONE ACRE(16,168 SQ.FT.)TRACT OF LAND SITUATED IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9, BRAZOS COUNTY,TEXAS, BEING OUT OF THAT CALLED 119.53 ACRE TRACT DESCRIBED IN DEED RECORDED UNDER VOLUME 1231, PAGE 288 OF THE BRAZOS COUNTY DEED RECORDS (B.C.D.R.); SAID 0.3712 OF ONE ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, (BEARINGS BASED ON THE TEXAS STATE PLANE COORDINATE SYSTEM OF 1983, CENTRAL ZONE, AS DETERMINED BY GPS MEASUREMENTS): COMMENCING at a 5/8-inch iron rod(bent)found marking the easterly corner of a called 140.29 acre tract described in deed recorded in Volume 3900, Page 188 B.C.D.R. being in the northwesterly right-of-way line of William Fitch Parkway(width varies),from which a 3/4-inch iron rod found (bent) at the common easterly corner of a called 15.00 acre tract described in deed recorded in Volume 3900,page 188 B.C.D.R.and Spring Meadows Phase I,a subdivision of record in Volume 5106, Page 284 of the Brazos County Plat Records bears South 41°52'06" West,a distance of 1,066.88 feet; THENCE, North 48°16'27"West, along the northeasterly line of said called 140.29 acre tract,a distance of 321.08 feet to the POINT OF BEGINNING of the herein described tract; (1) THENCE, North 48°16'27"West,continue along the northeasterly line of said called 140.29 acre tract,a distance of 38.45 feet to a point for corner; (2) THENCE,North 80°26'21"East,a distance of 545.96 feet to a point for corner; (3) THENCE,South 45°50'15" East,a distance of 19.62 feet to a point in the northwesterly right-of- way line of said William Fitch Parkway; (4) THENCE,South 41°55'57"West, along the northwesterly right-of-way line of said William Fitch Parkway,a distance of 30.02 feet to a point for corner; (5) THENCE,North 45°50'15"West,a distance of 5.59 feet to a point for corner; (6) THENCE, South 80°26'21" West, a distance of 506.72 feet to the POINT OF BEGINNING and containing 0.3712 of one acre or 16,168 square feet of land. This description accompanies an Exhibit,prepared by Edminster,Hinshaw,Russ and Associates,Inc.d/b/a EHRA and dated 10-12- 17. EDMINSTER,HINSHAW,RUSS&ASSOCIATES,INC.d/b/a EHRA Charles Kennedy,Jr.,'t.P.L.S. 'AP•'%S,7FR••) Texas Registration No. 5708 �Vire-(" ' 'P.FoqN 10555 Westoffice Drive ' CHARLES KENNEDY,JR. Houston,Texas 77042 \ ': 5708 713-784-4500 �(-•.:o�Esslo`, %�/ TBPLS No.10092300 �OS� yE.. P.4.,: 10/1,/1/ lob i‘1.) 111 oll 1110 No: ii:A2014\.14107100\Docunu`1115\I!a;oinu0n\E1,.1»ont\1110)1271.11 SSE 0.37.1LACd0c Page 1 of 1 - e • ' .. 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N .0..N+ C O C El a O C L C O W Q I2 UC'- X a o C E m Eo m E mot.:, 9N7 EO i- Uoy ¢ o m -0 N O Z.- N M ORDINANCE NO.2017-3952 Page 26 of 109 METES AND BOUNDS DESCRIPTION 3.0490 ACRES IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9 BRAZOS COUNTY,TEXAS A 3.0490 ACRE TRACT OF LAND SITUATED IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO. 9,BRAZOS COUNTY,TEXAS,BEING OUT OF THAT CALLED 140.29 ACRE TRACT,THAT CALLED 45.1 ACRE TRACT AND THAT CALLED 39.52 ACRE TRACT DESCRIBED IN DEED RECORDED UNDER VOLUME 3900,PAGE 188 OF THE BRAZOS COUNTY DEED RECORDS(B.C.D.R.);SAID 3.0490 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, (BEARINGS BASED ON THE TEXAS STATE PLANE COORDINATE SYSTEM OF 1983,CENTRAL ZONE, AS DETERMINED BY GPS MEASUREMENTS): COMMENCING at a 5/8-inch iron rod (bent)found marking the southeasterly corner of a called 119.53 acre tract described in deed recorded under Volume 1231,Page 288 B.C.D.R.being in the northwesterly right-of-way line of William Fitch Parkway(width varies),from which a 3/4-inch iron rod (bent)found at the common easterly corner of a called 15.00 acre tract described in deed recorded under Volume 3900, page 188 B.C.D.R. and Spring Meadows Phase I, a subdivision of record in Volume 5106, Page 284 of the Brazos County Plat Records bears South 41°52'06"West,a distance of 1,066.88 feet; THENCE,North 48°16'27"West,along the southwesterly line of said called 119.53 acre tract,a distance of 321.08 feet to the POINT OF BEGINNING of the herein described tract; (1) THENCE, South 80°26'21"West,a distance of 66.79 feet to a point for corner; (2) THENCE,North 49°27'38"West,a distance of 1358.21 feet to a point for corner; (3) THENCE,North 75°58'59"West,a distance of 451.06 feet to a point for corner; (4) THENCE,North 56°06'51"West,a distance of 713.13 feet to a point for corner; (5) THENCE,North 69°23'28"West,a distance of 740.64 feet to a point for corner; (6) THENCE,South 70°00'00"West,a distance of 914.58 feet to a point for corner; (7) THENCE,North 67°31'00"West,a distance of 205.42 feet to a point in the southeasterly line of a called 75.17 acre tract described in deed recorded under Volume 1235,Page 59 B.C.D.R.; (8) THENCE, North 28°00'00" East, along the southeasterly line of said called 75.17 acre tract, a distance of 30.14 feet to a point for corner; (9) THENCE,South 67°31'00"East,a distance of 190.86 feet to a point for corner; (10) THENCE,North 70°00'00"East,a distance of 914.02 feet to a point for corner; (11) THENCE,South 69°23'28"East,a distance of 755.23 feet to a point for corner; (12) THENCE,South 56°06'51"East,a distance of 711.37 feet to a point for corner; (13) THENCE,South 75°58'59"East,a distance of 452.87 feet to a point for corner; (14) THENCE,South 49°27'38"East,a distance of 1351.26 feet to a point for corner; (15) THENCE, North 80°26'21" East, a distance of 28.73 feet to a point in the southwesterly line of said called 119.53 acre tract; Page 1 of 2 ORDINANCE NO.2017-3952 Page 27 of 109 3.0490 Acres, A-9 (16) THENCE,South 48°16'27" East, along the southwesterly line of said called 119.53 acre tract,a distance of 38.45 feet to the POINT OF BEGINNING and containing 3.0490 acres of land. This description accompanies an Exhibit,prepared by Edminster, Hinshaw, Russ and Associates, Inc. d/b/a EHRA and dated 10-12-17. EDMINSTER,HINSHAW,RUSS&ASSOCIATES,INC.d/b/a EHRA Charles Kennedy,Jr.,R.P. .S. �y. tF 72 Texas Registration No. 5708 10555 Westoffice Drive CHARLES KENNEDY,JR. Houston,Texas 77042 713-784-4500 5708v� TBPLS No.10092300 -94;•4-,c.UR ... Date: 10/12/17 lob No: 141.021-22 Filr.No: R:\2014\141.021-00\Dacuments\Description\Easement\14102122.EH SSE 3.0490 AC.doc I Page 2 of 2 rs- N p 0 ce g p O N N w Q .. U'$J n m m - V?LL O W ',J.< o O,g, 44) U' W V Z W W Z � 0 0n �d Q lil~ . co '^=O P w w W J p. • m 2 x O (n a AVM>edd H3ll.A WVIIIIM I— I-W F- -I� µ (lusq) al „e/S Pu.la CO z S Oi� 0Od (wog) 211..b/£ Pud 2 = >-—b'''U u ,88'9901 M„90,2S.145 +--� 1141C 4 W Q 1: ,, i E Qp W,.�� U o..a TCC :,a, i O z 0000. W = ci 4c: * u 0 c3 MON U' U WO NcoMc1 00n1 iONMi,ISN M to N N Z Z O^ o co N d' 00 O,N M CO n d 00.-_, �o M O d'U7 Cis M'-N rny C7 WF- cnN cp,,to.- d•I- 00° N•-co to 0000 JO_ Jt orm 25M M d- n 1,rn NM r- rn 1,n d-�NM tea.- .X ¢N0o WW>rn ! W Jln� NW� J v0� �� ¢ 333332r3wwwwwwwww .-Op- i..' chi.:- corn coo'CD oo0Co�oneo-i, m0> U Z N Nn N M N 00000 N ul M M NN Z O=co a1-,'co cpMO•- 0 - OM 't m 001p ° W O 001 J •- N N c0 0 N O M O M O N O M N N QM coE000)i1i)CnCD .00 t; ,13 inolo60 d. 0o d' h N co r co Nconto uln •t W W' U�_ zNz ZZZNzzfnzomNmZto z0 • U o waU > 00 SA _ rn co J J J J J J J J 23 J OJ J J J J J co J rnW c°NW M J 1 aJW W-pc O V o`ld <Qwv n. ° a O M Q W W 12 c ,°l., O N N.° o U J w 0l ° -0 U> D w 00 O ° o n c �O. MM FN > 0 o v L . c E o 0 0 fi °U E o c o. (n0o Oo oao 7 3 ° N W~'U• (11 R. • Nprn coO L N m.; ream 0'¢m .O� W ut c O •it co Vl•«. E = VI L acyl Co cA �� NU00 c °ln c 0) c N Noi J^ ,� NJ NC0 �'o..l .0 N MOn. MOd +, TT .°VD Vi 0 x ..., U U C V).° .ON CN al d Orn J O CO °O c :Eco d a M Q M CTC•_ N o'o N c�� cls cv E E_ E UO UO woI-COU'0 FL- N 4 0 , O . ',, Z.- N M 1,O •( a> z o o 6e.u);0, W 122. ¢N mo S� OJ bo c~ilii) oN N 0���06�1 W?'U d.•---i C7 LO ofa `co c) ,60Vi00..1 a0°l ooQ C-, �orn U?-M z M Juj Uo O re u O O W m> J Q GO 1 ORDINANCE NO.2017-3952 Page 29 of 109 METES AND BOUNDS DESCRIPTION 1.1038 ACRES IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9 BRAZOS COUNTY,TEXAS A 1.1038 ACRE TRACT OF LAND SITUATED IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO. 9, BRAZOS COUNTY, TEXAS, BEING OUT OF THAT CALLED 100.64 ACRE TRACT DESCRIBED IN DEED RECORDED UNDER VOLUME 6927, PAGE 226 OF THE BRAZOS COUNTY DEED RECORDS (B.C.D.R.); SAID 1.1038 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS,(BEARINGS BASED ON THE TEXAS STATE PLANE COORDINATE SYSTEM OF 1983,CENTRAL ZONE,AS DETERMINED BY GPS MEASUREMENTS): COMMENCING at a 1/2-inch iron rod with cap stamped 'HP Mayo 5045' found marking the southerly corner of a called 66.32 acre tract described in deed recorded under Volume 4480, Page 35 B.C.D.R. and in the northwesterly line of a called 75.17 acre tract described in deed recorded under Volume 1235,Page 59 B.C.D.R.; THENCE,South 41°45'26" West, along the northwesterly line of said called 75.17 acre tract,a distance of 35.10 feet to the POINT OF BEGINNING of the herein described tract; (1) THENCE, South 41°45'26"West,continue along the northwesterly line of said called 75.17 acre tract,a distance of 30.00 feet to a point for corner; (2) THENCE,North 47°58'49"West,a distance of 919.19 feet to a point for corner; (3) THENCE,South 77°55'55"West,a distance of 668.28 feet to a point for corner; (4) THENCE, North 12°04'05"West, a distance of 30.00 feet to a point in the southeasterly line of the remainder of a called 231.97 acre tract described in deed recorded under Volume 10600, page 156 B.C.D.R.; (5) THENCE, North 77°55'55" East, along the southeasterly line of said called 231.97 acre tract, a distance of 683.60 feet to a point for corner from which a 1/2-inch iron rod found at the common corner of said called 66.32 acre tract,and a called 19.69 acre tract described in deed recorded under Volume 4198, Page 108 B.C.D.R. and said called 231.97 acre tract bears North 77°55'55"East,a distance of 41.39 feet (6) THENCE, South 47°58'49" East, a distance of 934.37 feet the POINT OF BEGINNING and containing 1.1038 acres of land. This description accompanies an Exhibit, prepared by Edminster,Hinshaw,Russ and Associates,Inc.d/b/a EHRA and dated 10-12-17. EDMINSTER,HINSHAW,RUSS&ASSOCIATES,INC.d/b/a EHRA • Charles Kennedy,Jr.,R. .L.S. N C.ore- o,J' Texas Registration No. 5708 : 1 10555 Westoffice Drive CHARLES KENNEDY,JR./ Houston,Texas 77042 N� '.A 5708713-7 4-4500 TBPLSBNo.10092300 .:§... Job No: Iii 1.0?1-2.' File No: R:A2014\oil 0 1.0VI1.tw nenLAU ticr n��mn\.=,00m.•nlV1;102122-F IISSF.1.1032Ar.,lro Page 1 of 1 rS2 o Z /I O N N w Q .. '" • Uag?LLS w W(n o" o ,r .;O-.a` >b0-:�, tnz ?w° Q� U' W o 15 m LL�H`� w O �;m O 3~ LL W w J o c� `O.N�•. .x W.y, ox O =NZ u tig a j< •• �`Y� e P�, ° m �Z=OCD LiJ i: U CJ cn ci 1 s, •• • ' r 2 >-— g Frl w� , X Et N N CCo 03w„ w < �O `�0N 00 `� uo CJ w �N w¢m = Q N ��a W am N .. wM 0 f aq W-J M a W N z M O a QMN X04_-16 a � 0N2i DUO mO --I 00 CO acj M O U O Z O 0 )N 0 1-•• O S-0g OAVW dH, > ��omaooMd don /M al „Z/1, Pud oMMrnc`Oo")�rn`r �Od—moo z� J L1 m 333 , www I 0(0(00)i()U)In CI In Z NN <f' NO m' n Z62 In In io Nd'U) OON ® J d' d' lC7 N O Ln Ln In m I� N I-- I— dd' d' I�.-I� 'Or 1� fn N Z CO Z Z IO Z Ewl�J._I Q w !'l LA J J J J J J'3 J mJ z Ci QI1Jco 00�� 07 NOaW�a N Mo J W"? a 09wd (C,--1 �4m c W U~ OUd'J a` co 2 to <0 4.1 d.> wN a. N QO J> CO CD N ) C O O UUpU 00a. f�o o,.O v -U cE Q O ^ o v y 0 c M --,-,0 C w w - v O y c i O '-��lO F,N O N d UQ • o o a.d o v0 .r N E > c C c •- O c m o OU E o c a om N i v m» al „Z/ PI- " °o ”o E o- -O, v, c o+ c N ` o m 0 m v J W W / O N O•j' .0.0 U(w70 C�.0 D-0 N 'G . a> •O �, O d .O C O C rn¢ .0 O c CCD ami °0- Lo Mid ojO O c•-6OO E 0 Ev 0 E owd m S'dob.,. 6, 9, �mc°�v a°�L a o QW •• s!.1ti SI Z.- N M QdU > O� N J VO .• •'Ov �I v O O w . S O T N U N a II z 0 re 0 - 0 CI CJ U II ORDINANCE NO.2017-3952 Page 31 of 109 METES AND BOUNDS DESCRIPTION 0.3325 OF ONE ACRE IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO.9 BRAZOS COUNTY,TEXAS A 0.3325 OF ONE ACRE(14,485 SQ.FT.)TRACT OF LAND SITUATED IN THE THOMAS CARUTHERS LEAGUE,ABSTRACT NO. 9, BRAZOS COUNTY,TEXAS, BEING OUT OF THAT CALLED 75.17 ACRE TRACT DESCRIBED IN DEED RECORDED UNDER VOLUME 1235,PAGE 59 OF THE BRAZOS COUNTY DEED RECORDS (B.C.D.R.); SAID 0.3325 OF ONE ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS, (BEARINGS BASED ON THE TEXAS STATE PLANE COORDINATE SYSTEM OF 1983, CENTRAL ZONE, AS DETERMINED BY GPS MEASUREMENTS): COMMENCING at a 1/2-inch iron rod with cap stamped 'HP Mayo 5045' found marking the southerly corner of a called 66.32 acre tract described in deed recorded under Volume 4480, Page 35 B.C.D.R. and the northeasterly corner of a called 100.64 acre tract described in deed recorded under Volume 6927, Page 226 B.C.D.R. from which a 1/2-inch iron rod found at the common corner of a said called 66.32 acre tract,and a called 19.69 acre tract described in deed recorded under Volume 4198,Page 108 B.C.D.R.and a called 231.97 acre tract described in deed recorded under Volume 10600,Page 156 B.C.D.R.bears North 48°04'48"West,909.93 feet; THENCE,South 41°45'26"West,along the southeasterly line of said called 100.64 acre tract,a distance of 35.10 feet to the POINT OF BEGINNING of the herein described tract; (1) THENCE, South 47°58'49"East,a distance of 33.38 feet to a point for corner; (2) THENCE,South 67°31'00"East,a distance of 445.81 feet to a point in the northwesterly line of a called 45.1 acre tract described in deed recorded under Volume 3900,Page 230 B.C.D.R.; (3) THENCE, South 28°00'00" West, along the northwesterly line of said called 45.1 acre tract, a distance of 30.14 feet to a point for corner; (4) THENCE,North 67°31'00"West,a distance of 448.08 feet to a point for corner; (5) THENCE, North 47°58'49"West, a distance of 38.40 feet to a point in the southeasterly line of said called 100.64 acre tract; (6) THENCE, North 41°45'26" East, along the southeasterly line of said called 100.64 acre tract, a distance of 30.00 feet the POINT OF BEGINNING and containing 0.3325 of one acre or 14,485 square feet of land. This description accompanies an Exhibit,prepared by Edminster, Hinshaw, Russ and Associates,Inc.d/b/a EHRA and dated 10-12-17. EDMINSTER,HINSHAW,RUSS&ASSOCIATES,INC.d/b/a EHRA Charles Kennedy,Jr,R. 4.S. O..'• � Texas Registration No. 5708 CHARLES KENNEDY,JR, 10555 Westoffice Drive 5708 Houston,713-784-4500 ...... 13 784 45005 77042 ��yyooFess. yQQ� SUFE ' TBPLS No.10092300 lob No: 141-071-22 Filo No: R:A2014V!4102100\Do( oonL•,ADnscriptinn\Easement\1,1102122-L1.1 SSE 0.3325 AC.doc Page 1 of 1 Ko f S Z �M O� Li ce HPH i<W oO CC ---I y.7 8 a PI -ii-Lr; I 0 ox O =,nZ ° v. w 0 Z cnn.~ u Dorn /�/ 1.1...1 � ) a° m Z_=0U c.)>..M Ll- W cVi_' i. X _rt ZS L..)c: �> a � O U' (LICA ,Wg QO - _ I-- .e; v) ci Q W Li. I r ° � Qm (.11' .. mom f� o 00 l 11 -q z o p z: a ¢J w M = o a o W La 0- OWN N J V)'- UO J w > 10,- QOMco,_O dO.O m / I-NM 16Ocd W6 NMM d.M 74.J.r)CO O 0 W 54 O 05 V l dH, CI- N ¢ w w 3 3 w / a ,. / cO ~ dao M Z L PU� w Z N in d'P-1 In-to ci Co N ILi md� ridNt^O� d• V)V)v)co Z Z Z J W (� Z J Md M101� J J J J J J r Z • U r') WO O F-U Z m O K¢m U cng�n p Q m c UF.M^ O(7N Q. N O J N W .a O a y M W a'4" o0 �U 0 «.`o a mood d- worn oo cE o U oo o J ip x c E m aci JW�J Co UF- FN E m N UO0t.0 Z U> .00 O N d= O O w c U ¢ C O N -..,- .2 O OU E d d M yaMO 7 0 O N O01 NO L UI N.+ .O•- y N N -.:= C N O O a X C E a c U c 0 O E O u1•S . W_ 5 _DIE O N O.7•X ��.o �n m c w LII „Z/6 Pub o::y --. ii tn co Id IW-m U'o 'AlI- W Q O 0 0 d) Z� N M <<C3 Q S �' , (q(/) d IG,/S.� 9S / rn z • cLi- •m 44, /V/ G..Od w w �)jbJ y�Or Lo 4 5 11'4 ,t'-k=:.1„T..:-..;.4,,, , N O O U..'.. _�w O '"re k °z O N �Oi� n ":b' w } N 'I \ .ft :J Ow,QUJ/i z �(1 /PP b'rS' i`• -4 f m » moi, o w J Q 1 ORDINANCE NO.2017-3952 Page 33 of 109 Exhibit C Description of the Project Design and Construction Developer agrees to perform or ensure the performance of, the design, construction, and project management of the Project through Final Completion, including issuance of Letters of Completion in accordance with the terms and conditions of this Agreement. Developer will obtain any and all required easements for sewer line construction and necessary appurtenances.The Project will construct a forty-eight inch(48-inch)diameter fiberglass sewer line from the southeastern corner of the Property, running eastward to William D. 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I oz z u 5En.D4 li tg IL -- 184 _,,_x_x_,_•A- i1.11 41 1 1$ i; 1 gqi , 411 ugv. 1 tipo, AKIN Ai rgn Ai L i 1•400, A p',W, 1 al • III.W,..:'1' , '.- ,..,\ : • ,i c4;;.• 1,&.:11 4.,....„0,, , ail ,...,,,,,,,. ' N s )110 .iti • 2 •-,- „,\- • z /1 o 4 • , a 3g = o < V 1 1 L-1' z W R n goli q li \ gi g L`. 11 1,, 1 . §1 1 Du h et,. I-- t ;: gi :N .1,,, , z. 1 ,. ., r--z-1 20) •l• .'/°•'S''' ti.07,2 gg IA. ,.1tE,N q, Es IRT1 N i' • N2 2..2 3 g 1 ,<: o E 1 ,.$ „,,. ,,,•_-,,,, .i.:: ....EN.E "IV.2 2,9 tg dikv N 'iNh call P.glr.p..:Hi it 61 61 ., r,. 11 do,qr II Pal.n.09C.li-LlOr.1Z dn 6.1,slima dd.91\-.5,..5 rnwn den Iad.r g , . ORDINANCE NO.2017-3952 Page 50 of 109 Exhibit D Engineer's Stamped and Sealed Estimate of Costs and Breakdown for Project and Participation Costs ORDINANCE NO.2017-3952 • Page 51 of 109 • COLLEGE STATION TOWN CENTER 48-INCH OFF-SITE SANITARY SEWER TRUNK LINE TO WILLIAM D. FITCH PKWY PRELIMINARY CONSTRUCTION COST ESTIMATE COST SUMMARY TOTAL 1. Clearing,Grubbing,and Site Preparation $24,000.00 2. Wastewater Collection System $2,753,465.20 3. Construction Staking Services $20,000.00 Sub-Total Construction Costs $2,797,465.20 Geotechnical Report $12,000.00 SWPPP Fees $20,000.00 Engineering Fees $305,000.00 Materials Testing Fees(2%) $32,000.00 Permitting Fees(1%) $27,974.65 Sub-Total Geotechnical Report,SWPPP, $396,974.65 Engineering,Materials Testings& Permitting Fees TOTAL PRELIMINARY $3,194,440 CONSTRUCTION COST ESTIMATE Pro-Rata Share College Station Town Center/RPMD No.2 (28%) $894,443 City of College Station (72%) $2,299,997 Notes: 1. Estimate does not include any additional costs that may be required for development outside the scope outlined above. These fees may include construction,geotechnical services,adjustments of existing private utilities(pipeline or"dry"utilities),landscaping,etc. 2. The quantities reflected on this estimate were tabulated from a one line conceptual drawing. The unit prices shown hereon are based on current bid prices received in this office and are subject to change pending completion of construction plans. i '(PSE OF T `��. ............................... R . /\ • •�*I#,/ ESTO................................................ 6EAKE MCGREGOR Edminster,Hinshaw,Russ Associates,Inc.d/b/a EHRA /II(lO��'* C�NS�B / Page 1 of 3 \\Client\P$\141-021-22\LandDev\ 1�1Si1'/C4'•• Job No. 141.021-22 201710-19 CSTC 48-Inch SS Trunkline W D Fitch Pkwy(BMcG-sf) ��\\ \` N`"/ 10/19/2017 l /o-/g"l a" ORDINANCE NO.2017-3952 Page 52 of 109 COLLEGE STATION TOWN CENTER 48-INCH OFF-SITE SANITARY SEWER TRUNK LINE TO WILLIAM D. FITCH PKWY PRELIMINARY CONSTRUCTION COST ESTIMATE CLEARING, GRUBBING,AND SITE PREPARATION ITEM DESCRIPTION • QUANTITY UNIT UNIT PRICE AMOUNT 1. Heavy Timber Clearing 4 AC $6,000.00 $24,000.00 TOTAL CLEARING,GRUBBING,AND SITE PREPARATION $24,000.00 Note: The quantities reflected on this estimate were tabulated from a one line conceptual drawing. The unit prices shown hereon are based on current bid prices received in this office and are subject to change pending completion of construction plans. Edminster,Hinshaw,Russ Associates,Inc.d/b/a EHRA Page 2 of 3 \\Client\P$\141-021-22\LandDev\ Job No. 141-021-22 201710-19 CSTC 48-inch SS Trunkline W D Fitch Pkwy(BMcG-sf) 10/19/2017 ORDINANCE NO.2017-3952 Page 53 of 109 COLLEGE STATION TOWN CENTER 48-INCH OFF-SITE SANITARY SEWER TRUNK LINE TO WILLIAM D. FITCH PKWY PRELIMINARY CONSTRUCTION COST ESTIMATE WASTEWATER COLLECTION SYSTEM ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT 1. 48-Inch Fiberglass-Reinforced Polymer Mortar Pipe(SN 72) 5,440 . LF $300.00 $1,632,000.00 w/Grade 4 Stone Emb.(All Depths) 2. 48-Inch Fiberglass-Reinforced Polymer Mortar Pipe(SN 72) 420 LF $400.00 $168,000.00 Concrete Encased.(All Depths) 3. 48-Inch Fiberglass-Reinforced Polymer Mortar Pipe(SN 72)w/66" 450 LF $1,700.00 $765,000.00 Steel Casing(Bore and Jack) 4. Standard 6-Foot Dia.Sanitary Sewer Manhole(All Depths) 12 EA $9,000.00 $108,000.00 5. Manhole Signs 12 EA $150.00 $1,800.00 6. Trench Dewatering 1,000 LF $25.00 $25,000.00 7. Special Bedding for Wet Sand Construction 1,000 LF $10.00 $10,000.00 8. Trench Safety System 6,310 LF $3.92 $24,735.20 9. Post-Televising Inspection 6,310 LF $3.00 $18,930.00 TOTAL WASTEWATER COLLECTION SYSTEM $2,753,465.20 Note: The quantities reflected on this estimate were tabulated from a one line conceptual drawing. The unit prices shown hereon are based on current bid prices received in this office and are subject to change pending completion of construction plans. Edminster,Hinshaw,Russ Associates,Inc.d/b/a EHRA Page 3 of 3 • \\Client\P$\141-021-22\LandDev\ Job No. 141-021-22 201710-19 CSTC 48-Inch SS Trunkline W 0 Fitch Pkwy(BMcG-sf) 10/19/2017 ORDINANCE NO.2017-3952 Page 54 of 109 Exhibit E Insurance Requirements Throughout the term of this Agreement, Developer and Developer's Contractors (both the Developer and Developer's Contractors are collectively referred to as "Contractor"), must comply with the following: Standard Insurance Policies Required: A. Commercial General Liability B. Business Automobile Liability C. Workers' Compensation II. General Requirements Applicable to All Policies: A. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent B. Certificates of Insurance and endorsements shall be furnished on the most current State of Texas Department of Insurance-approved forms to the City's Representative at the time of execution of this Agreement; shall be attached to this Agreement as Exhibit"F"; and shall be approved by the City before work begins C. Contractor shall be responsible for all deductibles on any policies obtained in compliance with this Agreement. Deductibles shall be listed on the Certificate of Insurance and are acceptable on a per- occurrence basis only D. The City will accept only Insurance Carriers licensed and authorized to do business in the State of Texas E. The City will not accept"claims made"policies F. Coverage shall not be suspended, canceled, non-renewed or reduced in limits of liability before thirty(30) days written notice has been given to the City III. Commercial General Liability A. General Liability insurance shall be written by a carrier rated "A:VIII" or better under the current A. M. Best Key Rating Guide. B. Policies shall contain an endorsement naming the City as Additional Insured and further providing "primary and non-contributory" language with regard to self-insurance or any insurance the City may have or obtain C. Limits of liability must be equal to or greater than $1,000,000.00 per occurrence for bodily injury and property damage, with an annual aggregate limit of$2,000,000.00. Limits shall be endorsed to be per project. D. No coverage shall be excluded from the standard policy without notification of individual exclusions being submitted for the City's review and acceptance E. The coverage shall include, but not be limited to the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability, and Personal &Advertising Liability. ORDINANCE NO.2017-3952 Page 55 of 109 IV. Business Automobile Liability A. Business Automobile Liability insurance shall be written by a carrier rated "A:VIII" or better rating under the current A. M. Best Key Rating Guide. B. Policies shall contain an endorsement naming the City as Additional Insured and further providing "primary and non-contributory" language with regard to self-insurance or any insurance the City may have or obtain C. Combined Single Limit of Liability not less than $1,000,000 per occurrence for bodily injury and property damage. D. The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page E. The coverage shall include any autos, owned autos, leased or rented autos, non-owned autos, and hired autos. V. Workers' Compensation Insurance A. Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Contractor, all employees of any and all subcontractors, and all other persons providing services on the Project must be covered by a Workers' Compensation policy, either directly through their employer's policy (the Contractor's or subcontractor's policy) or through an executed coverage agreement on an approved Texas Department of Insurance Division of Workers Compensation (DWC) form. Accordingly, if a subcontractor does not have his or her own policy and a coverage agreement is used, contractors and subcontractors must use that portion of the form whereby the hiring contractor agrees to provide coverage to the Subcontractors' employees. The portion of the form that would otherwise allow them not to provide coverage for the employees of an independent contractor may not be used. B. Workers compensation insurance shall include the following terms: 1. Employer's Liability minimum limits of liability not less than$500,000 for each accident/each disease/each employee are required 2. "Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04" shall be included in this policy 3. TEXAS must appear in Item 3A of the Workers' Compensation coverage or Item 3C must contain the following: "All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, and WY" C. Pursuant to the explicit terms of Title 28, Section 110.110(c) (7) of the Texas Administrative Code, the bid specifications (if applicable), and this Agreement, all subcontracts on this Project must include the following terms and conditions, in the following language,without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: "A. Definitions: ORDINANCE NO.2017-3952 Page 56 of 109 Certificate of coverage ("certificate') — An original certificate of insurance, a certificate of authority to self-insure issued by the Division of Workers Compensation, or a coverage agreement (DWC-81, DWC-83, or DWC-84), showing statutory workers'compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project- includes the time from the beginning of the work on the project until the Contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractors" in § 406.096 [of the Texas Labor Code]) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts andfling of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44)for all employees of the Contractor providing services on the project,for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: (1) a certificate of coverage,prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (2) no later than seven calendar days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. ORDINANCE NO.2017-3952 Page 57 of 109 F. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the Contractor knew or should have known, or any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Division of Workers Compensation, informing all persons providing services on the project that they are required to be covered, and stating how a person may verb coverage and report lack of coverage. I. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project,for the duration of the project; (2) provide to the Contractor,prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project,for the duration of the project, (3) provide the Contractor,prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (4) obtain from each other person with whom it contracts, and provide to the Contractor: (a) A certificate of coverage,prior to the other person beginning work on the project; and (b) A new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and ORDINANCE NO.2017-3952 Page 58 of 109 (7) Contractually require each person with whom it contracts to perform as required by paragraphs (a) - (g), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract, or providing, or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project; that the coverage will be based on proper reporting of classification codes and payroll amounts; and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the Commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The Contractor's failure to comply with any of these provisions is a breach of contract by the Contractor that entitles the governmental entity to declare the contract void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity. " ORDINANCE NO.2017-3952 Page 59 of 109 Exhibit F Certificates of Insurance ORDINANCE NO.2017-3952 Page 60 of 109 } Exhibit G Affidavit of All Bills Paid Form ORDINANCE NO.2017-3952 Page 61 of 109 THE STATE OF TEXAS § AFFIDAVIT OF BILLS PAID COUNTY OF BRAZOS § FOR PARTICIPATION AGREEMENT Before me, the undersigned authority, ("Affiant"), (Title), of ("Developer"), personally appeared being duly sworn, deposed, and states the following: I am over 18 years of age, of sound mind, capable of making this affidavit, and personally acquainted with the facts stated in it, which facts are true and correct. The Developer pursuant to the Participation Agreement with the City of College Station, dated , 20 , has caused the Developer or the Developer's contractors to furnishes labor and materials to construct improvements for the (description of project) on the real property known as , (address or legal description) more particularly described in the Participation Agreement as the"Project". To the extent Developer constructed or contracted for the construction of such improvements, the Developer or the Developer's contractors have paid each of its sub-contractors, laborers and material men in full for all labor or materials provided to Developer on the Project. To the best of Affiant's knowledge, Developer or Developer's contractors have not received notice of any claims pending against the Project in connection with the Project. Executed this day of , 20 . AFFIANT: Signature: Printed Name: SUBSCRIBED AND SWORN TO before me on this day of , 20 . Notary Public, State of Texas ORDINANCE NO.2017-3952 Page 62 of 109 Exhibit H Performance Bond ORDINANCE NO.2017-3952 Page 63 of 109 PERFORMANCE BOND FOR PARTICIPATION AGREEMENT Dual Obligee Form THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: THE COUNTY OF BRAZOS § THAT WE, , as Principal, (the "Contractor" and the other subscriber hereto, ,as Surety, do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a Texas municipal corporation principally situated in Brazos County, (the "City" or"City of College Station") and , (the "Developer" or ") (collectively the "Obligees") in the sum of ($ ) for the payment of which sum, well and truly to be made to the Obligees and their successors,the said Contractor and Surety do bind themselves,their heirs,executors,administrators,successors,and assigns,jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, the Contractor has on or about this day executed a contract in writing ("Contract") with the Developer for ("Project"),all of such work to be done as set out in full in said Contract documents therein referred to and adopted by the City Council or its duly authorized representative,all of which are made a part of this instrument as fully and completely as if set out in full herein. WHEREAS,pursuant to a developer participation contract between the City and the Developer,the City will take title to the Project and has agreed to make a partial reimbursement to the Developer for the oversized portions of the Project. NOW THEREFORE, if the said Contractor shall faithfully and strictly perform Contract in all its terms, provisions, and stipulations in accordance with its true meaning and effect,and in accordance with the Contract documents referred to therein and shall comply strictly with each and every provision of the Contract, including all warranties and indemnities therein and with this bond,and shall fully indemnify and save harmless the Obligees from all costs and damages which it may suffer by reason of the Contractor's default or failure to perform and shall reimburse and repay the Obligees all outlay and expense that the Obligees may incur in making good any such default or failure to perform,then this obligation shall become null and void and shall have no further force and effect; otherwise the same is to remain in full force and effect. In no event shall the liability of the Surety exceed the penal sum of this bond. The Surety understands and agrees that the provision in the Contract that the City of College Station shall retain certain amounts due the Developer until the expiration of thirty days from the acceptance of the Work is intended for the City's benefit,and the City of College Station shall have the right to pay or withhold any amount owing under the Contract without changing or affecting the liability of the Surety hereon in any degree. It is further expressly agreed by Surety that the Obligees or their representatives are at liberty at any time,without notice to the Surety, to make any change in the Contract documents and in the Work to be done thereunder, as provided in the Contract, and in the terms and conditions thereof, or to make any change in, addition to, or deduction from the work to be done thereunder; and that such changes,if made,shall not in any way vitiate the obligation in this bond and undertaking or release the Surety therefrom. This bond and all obligations created hereunder shall be performable in Brazos County, Texas. This bond is given in compliance with the provisions of Chapter 2253 of the Texas Government Code, as amended, which is incorporated herein by this reference. However,all of the express provisions hereof shall be applicable whether or not within the scope of said statute. 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 State 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. ORDINANCE NO.2017-3952 Page 64 of 109 IN WITNESS THEREOF, the said Contractor and Surety have signed and sealed this instrument on the respective dates written below their signatures and have attached current Power of Attorney. CONTRACTOR: ATTEST&SEAL: (if a corporation) (SEAL) WITNESS: (if not a corporation) (Name of Contractor) By: By: _.... . Name: Name: Title: Title: Date: Date: SURETY: ATTEST/WITNESS (SEAL) (Full Name of Surety) By: Name: (Address of Surety for Notice) Title: By: Date: Name: Title: Attorney-in-Fact Date: DEVELOPER: THE PERFORMANCE BOND IS ACCEPTED ON BEHALF OF THE DEVELOPER: (Full Name of Developer) By: Name: Title: CITY: THE PERFORMANCE BOND IS ACCEPTED REVIEWED: ON BEHALF OF THE CITY OF COLLEGE ON STATION, TEXAS: City Attorney City Manager ORDINANCE NO.2017-3952 Page 65 of 109 Exhibit I Payment Bond 1 ORDINANCE NO.2017-3952 Page 66 of 109 PAYMENT BOND FOR PARTICIPATION AGREEMENT Dual Obligee Form Project No. TEXAS STATUTORY PAYMENT BOND § THE STATE OF TEXAS § KNOW ALL MEN BY THESE § PRESENTS: THE COUNTY OF BRAZOS § THAT WE, , as Principal, (the "Contractor") and the other subscriber hereto, , as Surety, do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a Texas municipal corporation principally situated in Brazos County, (the "City" or "City of College Station") and , (the "Developer")(collectively the"Obligees") in the sum of ($ )for the payment of which sum, well and truly to be made to the Obligees and their successors, the said Contractor and Surety do bind themselves,their heirs,executors,administrators,successors,and assigns,jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS,the Contractor has on or about this day executed a contract in writing("Contract")with the Developer for ("Project"),all of such work to be done as set out in full in said Contract documents therein referred to and adopted by the City,all of which are made a part of this instrument as fully and completely as if set out in full herein. WHEREAS,pursuant to a developer participation contract between the City and the Developer,the City will take title to the Project and has agreed to make a partial reimbursement to the Developer for the oversized portions of the Project. NOW THEREFORE,the condition of this obligation is such that if 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,then,this obligation shall be null and void;otherwise to remain in full force and effect. 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 State 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. PROVIDED, HOWEVER,that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Code to the same extent as if it were copied at length herein. ORDINANCE NO.2017-3952 Page 67 of 109 IN WITNESS THEREOF, the said Contractor and Surety have signed and sealed this instrument on the respective dates written below their signatures and have attached current Power of Attorney. CONTRACTOR: ATTEST&SEAL: (if a corporation) (SEAL) WITNESS: (if not a corporation) (Name of Contractor) By: By: Name: Name: Title: Title: Date: Date: SURETY: ATTEST/WITNESS (SEAL) (Full Name of Surety) By: Name: (Address of Surety for Notice) Title: By: Date: Name: Title:Attorney-in-Fact Date: DEVELOPER: THE PERFORMANCE BOND IS ACCEPTED ON BEHALF OF THE DEVELOPER: (Full Name of Developer) By: Name: Title: CITY: THE PERFORMANCE BOND IS ACCEPTED REVIEWED: ON BEHALF OF THE CITY OF COLLEGE STATION,TEXAS: City Attorney City Manager ORDINANCE NO.2017-3952 Page 68 of 109 Exhibit J Standard Form Construction Agreement CITY OF COLLEGE STATION STANDARD FORM OF CONSTRUCTION AGREEMENT CONTRACT NO. This Agreement is entered into by and between the City of College Station, a Texas home-rule municipal corporation (the "City") and , a corporation (the "Contractor"), for the construction and/or installation of. 1. DEFINITIONS 1.01. Calendar Day. A "calendar day" is any day of the week or month,no days being excepted. 1.02. City. Whenever the word "City" is used,it shall mean and be understood as referring to the City of College Station,Texas. 1.03. City's Representative. Whenever the words "City's Representative" or "Representative" are used,it shall mean and be understood as referring to the City Manager or his delegate,who shall act as City's agent. The City's Representative may inspect and issue instructions but shall not directly supervise the Contractor. 1.04. Contract Amount. The term"Contract Amount" shall mean the amount of Contractor's lump sum base bid proposal, together with all alternates,as accepted by the City in accordance with the Contractor's Proposal. In the case of a unit price contract, Contract Amount shall mean the sum of the product of all unit prices times the respective estimated final quantities of work, for all base bid and alternates,as accepted by the City. 1.05. Contract Documents. The term "Contract Documents" shall mean those documents listed in Paragraph 2.01. 1.06. Contractor. Whenever the word "Contractor" is used,it shall mean the person(s),partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents. 1.07. Extra Work. The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.08. Final Completion. The term "Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to materialmen and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.09. Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used,it is understood that the direction, requirement,permission, order, designation, or prescription of City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to City's Representative. 1.10. Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by City's Representative as not conforming with the Contract Documents. ORDINANCE NO.2017-3952 Page 69 of 109 1.11. Parties. The "parties" are the City and the Contractor. 1.12. Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term "work" shall have like meaning. 1.13. Subcontractor. The term "subcontractor" shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project,and all subcontractors shall look exclusively to the Contractor for any payments due. 1.14. Substantially Completed. The term "Substantially Completed" means that in the opinion of the City's Representative the Project,including all systems and improvements,is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price,including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.15. Work. The term "work" as used in this Agreement shall mean and include all that is required herein to obtain a final product that is acceptable to the City. The term "Project" shall have like meaning. This Project includes the following: 1.16. Working Day. A "working day" means any day not including Saturdays, Sundays, or legal holidays. 2. CONTRACT DOCUMENTS 2.01. The Contract Documents and their priority shall be as follows: 2.01.01. This signed Agreement 2.01.02. Addendum to this Agreement 2.01.03. General Conditions 2.01.04. Special Conditions 2.01.05. Technical specifications 2.01.06. Drawings 2.01.07. Instructions to Bidders and any other notices to Bidders or Contractor 2.01.08. Performance bond,Payment bonds,Bid bonds and Special bonds 2.01.09. Contractor's Proposal 2.02. Where applicable, the Contractor will be furnished three (3) sets of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 2.03. The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement,additional sets of drawings,plans and specifications may be purchased by the Contractor. 2.04. All drawings, specifications, and copies thereof furnished by the City shall not be re-used onother work, and with the exception of one (1) copy of the signed Contract Documents, all documents,including sets of the plans and specifications and"as built" drawings, are to be returned to the City on request at the ORDINANCE NO.2017-3952 Page 70 of 109 completion of the work. All Contract Documents,models,mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City's interpretation. The terms and conditions of this Clause 2.04,however, shall not relieve the Contractor of any of the obligations set forth in Paragraphs 8.01. and 8.02. 3. AWARD OF CONTRACT 3.01. Upon the award of the contract by the City Council, the parties shall execute this Agreement, and the Contractor shall deliver to City's Representative all documents,bonds, and certificates of insurance required herein. 3.02. Time is of the essence of this Agreement. Accordingly, the Contractor shall be prepared to perform the work in the most expedient and efficient possible manner in order to complete the work by the times specified in this Agreement for Substantial Completion and Final Completion. In addition, the Contractor's work on the Project shall be commenced on the date to be specified in the notice to proceed. The notice to proceed may be given by oral notification or set by City's Representative at the post-contract award conference. The notice to proceed may not be given, nor may any work be commenced, until this Agreement is fully executed and complete, including all required exhibits and other attachments,particularly those required under Paragraphs 27 and 28 (Insurance & Bonds). 3.03. Contract Amount. Except in the event of a duly authorized change order approved by the City as provided in this Contract, and in consideration of the Contractor's final completion of all work in conformity with this Contract,the City shall pay the Contractor an amount not to exceed /100 Dollars 4. CITY'S REPRESENTATIVE 4.01. The Contractor shall forward all communications,written or oral, to the City through the City's Representative. 4.02. The City's Representative may periodically review and inspect the work of the Contractor. 4.03. The City's Representative shall appoint, from time to time, such subordinate supervisors or inspectors as City's Representative may deem proper to inspect the work performed under this Agreement and ensure that said work is performed in accordance with the plans and specifications. 4.04. The Contractor shall regard and obey the directions and instructions of City's Representative, any subordinate supervisors or inspectors appointed by the City provided such directions and instructions are consistent with the obligations of this Agreement. 4.05. Should the Contractor object to any orders by any subordinate supervisor or inspector, the Contractor may,within two (2) days from receipt of such order,make written appeal to City's Representative for his decision. ORDINANCE NO.2017-3952 Page 71 of 109 5. INDEPENDENT CONTRACTOR 5.01. In all activities or services performed hereunder, the Contractor is an independent contractor and not an agent or employee of the City. The Contractor, as an independent contractor, shall be responsible for the final product contemplated under this Agreement. Except for materials furnished by the City, the Contractor shall supply all materials, equipment and labor required for the execution of the work on the Project. The Contractor shall have ultimate control over the execution of the work under this Agreement. The Contractor shall have the sole obligation to employ, direct, control, supervise,manage, discharge,and compensate all of its employees and subcontractors, and the City shall have no control of or supervision over the employees of the Contractor or any of the Contractor's subcontractors except to the limited extent provided for in this Agreement. 5.02. The Contractor shall retain personal control and shall give its personal attention to the faithful prosecution and completion of the work and fulfillment of this Agreement. The subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Contractor from its obligations to the City under this Agreement. The Contractor shall appoint and keep on the Project during the progress of the work a competent Project Manager and any necessary assistants, all satisfactory to City's Representative,to act as the Contractor's representative and to supervise its employees and subcontractors. All directions given to the Project Manager shall be binding as if given to the Contractor. Adequate supervision by competent and reasonable representatives of the Contractor is essential to the proper performance of the work,and lack of such supervision shall be grounds for suspending the operations of the Contractor and is a breach of this Agreement. 5.03. Unless otherwise stipulated,the Contractor shall provide and pay for all labor,materials, tools, equipment, transportation, facilities,and drawings,including engineering, and any other services necessary or reasonably incidental to the performance of the work by the Contractor. It shall be the responsibility of the Contractor to furnish a completed work product that meets the requirements of the City. Any additional work, material, or equipment needed to meet the intent of this specification shall be supplied by the Contractor without claim for additional payment, even though not specifically mentioned herein. 5.04. Any injury or damage to the Contractor or the Project caused by an act of God,natural cause,a party or entity not privy to this Agreement, or other force majeure shall be assumed and borne by the Contractor. 6. DISORDERLY EMPLOYEES The Contractor agrees to employ only orderly and competent employees skillful in the performance of the type of work required, and agrees that whenever City's Representative shall inform the Contractor in writing that any person or persons on the work are,in his opinion,incompetent,unfaithful, or disorderly, such person or person shall be discharged from the work and shall not again be re-employed on the site or the Project without City's Representative's written permission. 7. HOURS OF WORK The Contractor may work Monday through Friday from 7 a.m. to 6 p.m., exclusive of Saturdays, Sundays, or legal holidays. The Contractor may work overtime,weekends,and holidays only when approved in advance by the City's Representative. The time for Substantial Completion shall not be affected in any way by inclusion of this section or by the City's consent or lack of consent to work outside of the times specified in this Agreement. 8. NATURE OF THE WORK 8.01. It is understood and agreed that the Contractor has,by careful examination, studied and compared the various Drawings and other Contract Documents, satisfied itself as to the nature and ORDINANCE NO.2017-3952 Page 72 of 109 location of the work, the conditions of the ground and soil, the nature of any structures,the character,quality, and quantity of the material to be utilized, the character of equipment and facilities needed for and during the prosecution of the work, the time needed to complete the work, Contractor's ability to meet all deadlines and schedules required by this Agreement, the general and local conditions,including but not limited to weather, and all other matters that in any way affect the work under this Agreement. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents;however, any errors,inconsistencies or omissions discovered, or which reasonably should have been discovered by the Contractor shall be reported promptly to the City as a request for information in such form as the City may require. However, the Contractor shall not perform any act or do any work on the Project that places the safety of persons at risk or potentially damages materials or equipment used in the Project, and the Contractor shall do nothing that would render any test or tests erroneous. 8.02. Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the City, but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes,and rules and regulations,but any nonconformity discovered by or which reasonably should have been discovered or made known to the Contractor shall be reported promptly to the City. 8.03. If the Contractor fails to perform the obligations of Paragraphs 8.01. and 8.02., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the City for damages resulting from errors,inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized or reasonably should have recognized such error,inconsistency, omission or difference and knowingly failed to report it to the City. 9. POST-AGREEMENT AWARD MEETINGS 9.01. Prior to the commencement of the work, the parties shall meet and attend a post-agreement award meeting at the time and place determined by City's Representative. At the post-agreement award meeting, the parties shall meet, discuss, and finalize all schedules,including commencement date, and/or specifications submitted for review. No later than ten (10) days prior to the post-agreement award meeting, the Contractor shall submit to City's Representative the following documents: (a) Schedules of work contemplated,including the starting and ending date, as well as an indication of the completion of stages of work hereunder. (b) The names and addresses of all proposed subcontractors in writing. (c) Schedules of the starting and ending dates of subcontractors and the scope of work contemplated for subcontractors. (d) Name,local office,phone number and addresses and, home phone numbers for the Contractor and its Project Superintendent/Manager. (e) For construction projects, four (4) copies of all shop and/or setting drawings or schedules for the submission thereof. (f) Where applicable,materials procurement schedules and material supplier names,addresses and phone numbers. ORDINANCE NO.2017-3952 Page 73 of 109 9.02. The City's Representative,within five (5) working days after the initial post-agreement award conference or any other meetings,may submit minutes of the meeting to the Contractor. The Contractor shall thereafter have five (5) working days to review the minutes and make its objections, changes, or reductions thereto in writing. The Contractor shall thereafter sign the minutes and promptly return them to City's Representative. Where there is disagreement,City's Representative will make the final determination. 10. PROGRESS OF WORK 10.01. Unless otherwise specifically provided, the Contractor shall prosecute its work at such time and sessions,in such order of precedence, and in such manner as shall be most conducive to the economy of the Project;provided,however, that the order and time of prosecution shall be such that the Project shall be Substantially Completed in accordance with this Agreement, the plans and specifications,and within the time of completion designated in the schedules agreed upon by the parties. 10.02. Further, the parties shall be subject to the following: (a) The Contractor shall submit a progress schedule and payment schedule of the work contemplated by this Agreement at the initial post-agreement award meeting and subsequent meetings. (b) City's Representative shall be entitled to make objections to the Contractor's schedule submitted herein. The Contractor shall promptly resubmit a revised schedule to City's Representative. (c) The Project Superintendent/Manager shall coordinate its activities with City's Representative. If required by the City, the Contractor shall provide a weeldy schedule of planned activities,which may be reviewed on a daily basis. (d) The Contractor shall submit,at such time as may reasonably be requested by City's Representative, additional schedules that shall list the order in which the Contractor proposes to carry on the work with dates at which the Contractor will start the several parts of the work and the estimated dates of completion of the several parts. (e) The Contractor shall attend additional meetings called by City's Representative upon twenty- four (24) hours written notice unless otherwise agreed in writing by the parties. (f When the City is having other work done, either by agreement or by its own force, City's Representative may direct the time and manner of work done under this Agreement so that conflicts will be avoided and the various work being done by and for the City shall be coordinated. (g) In the event that it is determined by the City that the progress of the work is not in accordance with the approved progress and payment schedule, the City may so inform the Contractor and require the Contractor to take such action as is necessary to ensure completion of the Project within the time specified. 10.03. The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a contractor's schedules does not constitute a commitment by the City to furnish any City-furnished information or material any earlier than the City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs ORDINANCE NO.2017-3952 Page 74 of 109 beyond its control to a minimum. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 10.04. Work Stoppage. If in the judgment of either the City or City's Representative any of the work or materials furnished is not in strict accordance with this Agreement or any portion of the work is being performed so as to create a hazardous condition, they may,in their sole discretion, order the work of the Contractor or any sub contractor wholly or partially stopped until any objectionable person,work, or material is removed from the premises. Such stoppage or suspension shall neither invalidate any of the Contractor's performance obligations under this Agreement,including the time of performance and deadlines therefore,nor will any extra charge be allowed the Contractor by reason of such stoppage or suspension. 11. SITE CONDITIONS AND MANAGEMENT 11.01. Where the Contractor is working around or in existing structures,it shall verify conditions at the site,including but not limited to, door openings and passages. Any items constructed or manufactured off- site or outside of buildings shall be done so that they are not too bulky for existing facilities. The Contractor shall provide special apparatus as required to handle any such items. All special handling equipment charges shall be at the Contractor's expense. Further, Contractor shall include in its price for the Work,all labor,materials, equipment and/or engineering services required to protect the adjacent properties and/or structures from damage due to performance of the Work. 11.02. The Contractor shall be responsible for all power,light, and water required to perform the work. 11.03. Throughout the progress of the work, the Contractor shall keep the working area free from debris of all types, and remove from premises all rubbish,resulting from any work being done by him. At the completion of the work, the Contractor shall leave the premises in a clean and finished condition. Any failure to do so may be remedied and charged back to the Contractor. 11.04. Layout of Work. Except as specifically provided herein, the Contractor shall lay out all work in a manner acceptable to City's Representative in accordance with applicable City of College Station codes and ordinances. City's Representative will review the Contractor's layout of all structures and any other layout work done by the Contractor at the construction meeting, or at the Contractor's request, but this review does not relieve the Contractor of the responsibility of accurately locating all work in accordance with the plans and specifications. 11.05. Lines and Grades. All lines and grades shall be furnished by the Contractor. Benchmarks and control stakes have been provided by the City's Representative. All benchmarks and control stakes shall be carefully preserved by the Contractor. In case of destruction or removal of the same by the Contractor,its subcontractors, or employees, such stakes,marks, etc. shall be replaced by the Contractor at the Contractor's expense. If the Contractor fails to do so, the City may do so and charge back the Contractor. Additional construction staking as needed for the work,including lines and grades, shall be the sole responsibility of the Contractor, and the Contractor shall receive no extra time or compensation therefor. 11.06. Contractor's Structures. The building or locating of structures for housing men or the erection of tents or other forms of protection will be permitted only at such places as City's Representative shall permit. The Contractor shall not damage the property where such structures are allowed and shall at all times maintain sanitary conditions in and about such structures in a manner satisfactory to the City. The City may charge the Contractor for any damage or injury to the City,its property, or third persons as a result of the location or use of such structures. ORDINANCE NO.2017-3952 Page 75 of 109 11.07. The Contractor and any entity over whom the Contractor has control shall not erect any sign on the Project site without the prior written consent of the City. 11.08. City may have other work related to the Project performed at the Project site during the time the Work is performed. Contractor should schedule its Work to coordinate with the work of other contractors and utilities with the understanding that some of that work may be performed at times other than as set out in the Contract Documents or as otherwise anticipated. City will endeavor to have such other work performed so as not to unduly interfere with Contractor's performance when Contractor notifies City of specific reasonable needs well in advance of those needs and where it is possible to do so. Although Contractor should anticipate some delays and interference to its sequence of Work because of work by other contractors and utilities,and will not be entitled to either an extension of time or additional compensation because of them,in the event of substantial delay caused by another contractor or a utility, after advance notice of its needs by Contractor, Contractor will be entitled to make a claim for an extension of time as provided herein. 11.09. When two or more contractors,including Contractor, are employed on related or adjacent work or obtain materials from the same material source, or when work must be completed by one contractor before another can begin, each shall conduct his operations in such a manner as not to cause any unnecessary delay or hindrance to the other. Each contractor,including Contractor if applicable, shall be responsible to the other for all damage to work, to persons, or to property caused to the other by his operations,and for loss caused the other due to unreasonable or unjustified delays or failure to finish the work or portions thereof, or furnish materials within the time requested. Should Contractor cause damage to the work or property of any separate contractor at the Project site, or should any claim arising out of Contractor's separate contractor at the Project site, or should any claim arising out of Contractor's performance of the Work at the Project site be made by any separate contractor against Contractor, City or other consultants, or any other person, Contractor shall promptly attempt to settle with such other contractor by agreement, or to otherwise resolve the dispute. Contractor shall, to the fullest extent permitted by applicable laws, indemnify and hold City harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of architects, attorneys and other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or equitable,brought by any separate contractor against City to the extent based on a claim arising out of Contractor's negligence. 12. MATERIALS 12.01. Materials or work described in words that when so applied have well-known technical or trade meaning shall be held to refer to such recognized standards. All work shall be done and all materials furnished in strict conformity with this Agreement,the other Contract Documents, and recognized industry standards. When specific products, systems or items of equipment are referred to in the Contract Documents, any ancillary devices necessary for connecting the products, systems or items of equipment shall also be provided. When standards, codes,manufacturer's instructions and guarantees are required by the Contract Documents, the current edition at the time of Contract execution shall apply,unless another edition is specified in the Contract Documents. References to standards, codes,manufacturer's instructions and guarantees shall apply in full, except (1) they do not supersede more stringent standards set out in the Contract Documents, and (2) any exclusions or waivers that are inconsistent with the Contract Documents do not apply. 12.02. All materials shall be approved by the City prior to purchase by the Contractor. Unless otherwise specified herein, the Contractor shall purchase all materials and equipment outright and shall not subject the ORDINANCE NO.2017-3952 Page 76 of 109 materials and equipment utilized in the Project to any conditional sales agreement,bailment,lease, or other agreement reserving unto seller any right, title, or interest therein. Title to all materials, but not risk of loss, shall pass to the City upon delivery to the Project. 12.03. Where the City deems it necessary to supply materials,it may furnish to the Contractor the list of materials set forth in the attached "List of City Furnished Materials". Upon receipt of said materials, the Contractor shall immediately furnish to the City a written receipt. Moreover,the Contractor shall, on behalf of the City, accept delivery of the materials set forth in the attached "List of Materials Ordered by the City". Under such circumstances, the Contractor shall promptly forward to the City for payment the supplier's invoice together with the Contractor's receipt in writing for such materials. (a) Upon acceptance of the materials furnished or ordered by the City, the Contractor warrants that it shall properly handle, transport, store and safeguard the materials. (b) Further, the Contractor shall repair,repaint or replace any and all materials or any part thereof damaged or stolen while in its possession. Such materials are considered to be in the Contractor's possession from the moment the Contractor either accepts delivery of the materials or signs a receipt accepting delivery of said materials until the Project is accepted by the City's Representative. (c) Before transporting any of the materials furnished or ordered by the City, the Contractor shall establish to the City's satisfaction that it has obtained insurance against losses, theft,damage, equal to or greater than the amounts spent by the City in securing said materials. It shall be incumbent upon the Contractor to verify the cost of materials. (d) The City shall not be obligated to furnish materials in excess of the quantities, size,kind, and type set forth in the attached List of City Furnished Materials and List of Materials Ordered by the City. If the City furnishes, and the Contractor accepts,materials in excess thereof, the values of such excess materials shall be their actual cost as stated by the City. (e) Upon delivery, the Contractor shall promptly receive,unload, transport, and handle all materials and equipment on the List of Materials Ordered by the City at its expense and shall be responsible for all shipping costs. 12.04. Materials and supplies shall be new and of good quality. Upon request,the Contractor shall supply proof of quality and manufacturer. No refurbished,reconditioned, or other previously utilized materials or supplies will be used without the prior signed authorization of City's Representative. The Contractor may utilize substitutes of equal quality and function only upon the prior written authorization of the City's Representative. The City's Representative may require documentation as to quality and function, including manufacturer's specifications, to ensure that the proposed substitute is equal to the required material or supply. The City's Representative shall have sole discretion over the use of substitute materials and supplies. Contractor shall bear the risk of any delay in performance caused by submitting substitutions. 12.05. Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project site by the Contractor. After equipment is no longer required for the Work,it shall be promptly removed from the Project site. Protection of construction material and equipment stored at the Project site from weather, theft, damage and all other perils is solely the responsibility of the Contractor. 13. ENTRY, OBSERVATION,TESTING& POSSESSION 13.01. The City reserves the right to enter the Project site or sites by such employee(s) or agent(s) as it may elect for the purpose of inspecting the work. The City further reserves the right to enter the Project site or sites for the purpose of performing such collateral work as the City may desire. ORDINANCE NO.2017-3952 Page 77 of 109 13.02. The City's Representative shall have the right, at all reasonable times, to observe and test the work. The Contractor shall make necessary arrangements and provide proper facilities and access for such observation and testing at any location where the work or any part thereof is in preparation or progress. The Contractor shall ascertain the scope of any observation that may be contemplated by City's Representative and shall give ample notice as to the time each part of the work will be ready for observation. 13.03. The City's Representative may require Contractor to remove, dismantle, or uncover completed work. If the work is not in accordance with the plans, specifications, or other Contract Documents, the Contractor shall pay the costs of repair and restoration of the work required to be removed, dismantled, or uncovered. Unless Contractor is obligated to provide advance notice of inspection,prior to covering up the work, and fails to do so,if the work is in accordance with the plans, specifications,and other Contract Documents, the City shall pay the costs of repair and restoration of the work. 13.04. City shall have the right to take possession of and use any completed or partially completed portions of the Project prior to the time for completing the entire Project or such portions which may not have expired. The parties agree and understand that possession and use shall not constitute an acceptance of any work not completed in accordance with this Agreement. Further,insurance changes required to keep Contractor's insurance in effect shall be the responsibility of Contractor. 14. REJECTED WORK 14.01. All work deemed not in conformity with this Agreement as determined by the City in its sole discretion, may be rejected by the City. City's Representative may reject any work found to be defective or not in accordance with the Contract Documents,regardless of the stage of the work's completion or the time or place of discovery of such defects or inconsistencies and regardless of whether City's Representative has previously accepted the work through oversight or otherwise. Neither observations nor inspections, tests, or approvals made by City's Representative, or other persons authorized under this Agreement to make such observations,inspections,tests, or approvals, shall relieve the Contractor from the obligation to perform the work in accordance with the requirements of this Agreement and the other Contract Documents. 14.02. If the work or any part thereof is rejected by the City,it shall be deemed by City's Representative as not in conformity with this Agreement. Any remedial action required, as set forth herein, shall be at the Contractor's expense, as follows: (a) The Contractor may be required, at the City's option, after notice from City's Representative, to remedy such work so that it shall be in full compliance with this Agreement. All rejected work or materials shall be immediately replaced in order to conform with this Agreement. (b) If the City deems it inexpedient to correct work damaged or not done in accordance with this Agreement, an equitable deduction from the agreed sum may be made by the City at the City's sole discretion. 15. SUBCONTRACTING& SUBCONTRACTORS 15.01. The Contractor agrees that it will retain personal control and will give its personal attention to the fulfillment of this Agreement. The Contractor further agrees that subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Contractor from its full obligation to the City as provided by this Agreement. 15.02. Subcontractors must be approved by City's Representative prior to hiring or beginning any work on the Project. If City's Representative judges any subcontractor to be failing to perform the work in strict accordance with the drawings and specifications, the Contractor, after due notice, shall discharge the same, but this shall in no way release the Contractor from its obligations and responsibility under this Agreement. ORDINANCE NO.2017-3952 Page 78 of 109 Every subcontractor shall be bound by the terms and provisions of this Agreement and the Contract Documents as far as applicable to their work. The Contractor shall be fully responsible to the City for the acts and omissions of its subcontractors. Nothing contained herein shall create any contractual or employment relations between any subcontractor and the City. 16. PAYMENT 16.01. The City stipulates that it is an exempt organization as defined by the Limited Sales,Excise and Use Tax Act and, as such,is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Contractor shall issue exemption certificates to its suppliers and Subcontractors in lieu of said sales tax for all such materials and supplies, and said exemption certificates must comply with the State Comptroller's Ruling No. 95-0.07 and shall be subject to the provision of the State Comptroller's Ruling No. 95-0.09, effective October 1, 1969. 16.02. Progress Payment Applications. The Contractor shall submit applications for payment as provided for herein. Applications for payment will be processed by City's Representative. Before the first Application for Payment, the Contractor shall submit to the City a schedule of values allocated to various portions of the Work,prepared in such form and supported by such data to substantiate its accuracy as the City may require. This schedule,unless objected to by the City, shall be used as a basis for reviewing the Contractor's Applications for Payment. On or before the day of each month, the Contractor shall submit to City's Representative, for approval or modification, a statement showing as completely as practicable the total value of the actual work performed by the Contractor and accepted by the City up to and including the last day of the preceding month. The statement shall also include the value of all materials not previously submitted for payment which have been delivered to the site but have not yet been incorporated into the work. 16.03. Progress Payments. On or before the 30th calendar day following the City's receipt of a progress payment application made in conformity with Paragraph 16.02, the City shall pay to the Contractor the approved amount of the progress payment based on the Contractor's applications for payment,and the recommendation and approval of City's Representative. Prior to Substantial Completion,progress payments will be made in an amount equal to the percentage of work completed by the Contractor and approved by the City,but in each case less the aggregate of payments previously made,less retainage,and less amounts as City's Representative shall determine and the City may withhold in accordance with this Agreement. Upon Final Completion,including the delivery of all close out documents, such as "as built" drawings,warranties,guarantees,required additional materials,releases, operation and maintenance manuals, and acceptance of the work in accordance with this Agreement, the City shall pay the remainder of the balance due under this Agreement,less any sums withheld under other terms of this Agreement and less the retainage,which shall be retained for a period of thirty(30) calendar days from the date of Final Completion. Acceptance of retainage by Contractor shall constitute a Waiver and Release of all claims by Contractor. 16.04. Retainage. From each approved statement, the City shall retain until final payment, ten percent (10%),where the full contract amount is less than $400,000.00,and five percent (5%),where the full contract amount is $400,000.00 or more. The City may also retain from each approved statement any other sums authorized under the terms of this Agreement. 16.05. If the actual amount of work to be done and the materials to be furnished differ from estimates and where the basis for payment is the unit price method, then payment shall be for the actual amount of accepted work done and materials furnished on the Project. 16.06. Reduction in the scope or quantity of work on unit price items shall merely reduce the number of units. In the event that materials have been delivered prior to notice of such reduction, the City will have the option either to pay freight&transportation costs and any re-stocking charges actually incurred by the ORDINANCE NO.2017-3952 Page 79 of 109 Contractor or to purchase the materials. The Contractor shall never be entitled to anticipated or lost profits on the deleted or reduced portion of a job,whether bid on a unit price or lump sum basis. 16.07. The Contractor shall have the sole obligation to pay any and all charges or fees and give all notices necessary to and incidental to the lawful prosecution of the work hereunder. The Contractor shall not and shall have no authority whatsoever to obligate the City to make any payments to another party nor make any promises or representation of any nature on behalf of the City,without the specific written approval of the City. 16.08. The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the City may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. 16.09. Unless otherwise provided in the Contract Documents: (a) allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes,less applicable trade discounts; (b) Contractor's costs for unloading and handling at the site,labor,installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Amount but not in the allowances; (c) whenever costs are more than or less than allowances, the Contract Amount shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 16.9(a) and (2) changes in the Contractor's costs under Paragraph 16.9(b). 16.10. Suspension of Payments. The City, at any time,may suspend monthly progress payments on the work if it determines that the projected liquidated damages may exceed retainage. The City, at any time, may suspend monthly progress payments if it believes that the Contractor will not complete the work due to actual default or that the Contractor has represented or done some act that indicates that it will not complete the work in accordance with this Agreement or within the time period submitted in its bid. Provided,however, City is in no way obligated to Contractor's surety to withhold payment pursuant to the provisions of this Paragraph. 16.11. Withhold Funds. Regardless of any bond, the City may, on account of subsequently discovered evidence and in addition to the retainage withheld under Paragraph 16.04,withhold funds or nullify all or part of any acceptance or certificate to such extent as may be necessary to protect itself from loss on account of any of the following, or as otherwise provided in this Agreement: (a) Defective work. (b) Claims made or reasonable evidence indicating probable filing of claims by unpaid vendors or other third parties. (c) Failure of the Contractor to make prompt payments to subcontractors for labor or material or materialmen. (d) Claims made or reasonable evidence indicating claims will be made for damage to another by the Contractor. (e) Claims made or reasonable evidence indicating claims will be made for damage to third parties,including adjacent property owners. (f) Claims made or reasonable evidence indicating claims will be made for unremedied damage to property owned by the City. (g) City's determination of an amount of liquidated damages. (h) Charges made for repairs to the Contractor's defective work or repairs made by the City to correct damage to other property. ORDINANCE NO.2017-3952 Page 80 of 109 1 (i) Other amounts authorized under this Agreement or under any other agreement made between City and Contractor. Provided, however, City is in no way obligated to Contractor's surety to withhold payment pursuant to the provisions of this Paragraph. 17. EXTRA WORK CHARGES 17.01. No changes shall be made,nor will bills for changes,alterations,modifications, deviations, and extra orders be recognized or paid for except upon the written order from authorized personnel of the City. 17.02. For"Extra Work", as defined in Paragraph 1.07 and authorized through written change orders,and pursuant to Section 252.048(d) of the Texas Local Government Code,the original contract price may not be increased by more than twenty-Eve percent(25%). Written change orders that do not exceed twenty-five percent(25%) of the original contract amount may be made or approved by the City Manager or his delegate if the change order is less than Fifty Thousand Dollars ($50,000.00). Changes in excess of Fifty Thousand Dollars 450,000.00)must be approved by the City Council prior to commencement of the services or work. Any requests by the Contractor for a change to the Contract Amount shall be made prior to the beginning of the work covered by the proposed change or the right to payment for Extra Work shall be waived. No course of conduct or dealings between the parties,nor implied acceptance of alterations or additions to the Work or changes to the Contract schedule shall be the basis for any claim for an increase in compensation or change in time. Any cost incurred by Contractor in connection with any Extra Work shall be included in Contractor's requested change order and Contractor's failure to include any such cost shall act to Waive and Release any claim for such non included cost. OR: For construction contracts funded in whole or in part by Certificates of Obligations, for"Extra Work," as defined in Paragraph 1.07 and authorized through written change orders,and pursuant to Section 271.060 of the Texas Local Government Code,a contract with an original contract price of$1 million or more may not be increased by more than twenty-Eve percent(25%). If a change order for a construction contract funded in whole or in part with certificates of obligation that has an original price of less than $1 million increases the contract amount to $1 million or more, subsequent change orders may not increase the revised contract amount by more than twenty-Eve percent(25%).Written change orders may be made or approved by the City Manager or his delegate if the change order is less than Fifty Thousand Dollars 450,000.00). Changes in excess of Fifty Thousand Dollars 450,000.00)must be approved by the City Council prior to commencement of the services or work. Any requests by the Contractor for a change to the Contract Amount shall be made prior to the beginning of the work covered by the proposed change or the right to payment for Extra Work shall be waived. No course of conduct or dealings between the parties, nor implied acceptance of alterations or additions to the Work or changes to the Contract schedule shall be the basis for any claim for an increase in compensation or change in time. Any cost incurred by Contractor in connection with any Extra Work shall be included in Contractor's requested change order and Contractor's failure to include any such cost shall act to Waive and Release any claim for such non included cost. 17.03. The Contractor shall complete all work as specified or indicated in the Contract Documents. The Contractor shall complete all Extra Work in connection therewith. All work and materials shall be in strict conformity with the specifications. The Substantial Completion of the work shall not excuse the Contractor from performing all the work undertaken,whether of a minor or major nature,and thereby completing the Project in accordance with the Contract Documents. In the event that the Contractor fails to perform the work as required for Substantial Completion or Final Completion,the City may contract with a third party to complete the work and the Contractor shall assume and pay the costs of the performance of the work as contracted. ORDINANCE NO.2017-3952 Page 81 of 109 (a) It is agreed that the Contractor shall perform all Extra Work under the direction of City's Representative when presented with a written work order signed by City. (b) No claim for Extra Work of any kind will be allowed unless ordered in writing by the City. In case any orders or instructions appear to the Contractor to involve Extra Work for which it should receive compensation or an adjustment in the construction time,it shall make written request to City's Representative for a written order from City authorizing such Extra Work. (c) Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefor, and the City insists upon its performance, then the Contractor shall proceed with the work after making written requests for written orders in a change order and shall keep adequate and accurate account of the actual field costs therefor, as provided under Method C. (d) It is also agreed that the compensation to be paid to the Contractor for performing Extra Work shall be determined by one or more of the following methods: Method A-By agreed unit prices, or Method B -By agreed lump sum, or Method C - If neither Method A nor Method B is agreed upon before the Extra Work is commenced, then the Contractor shall be paid the actual field cost of the work. (e) Method A- Unit Prices. The Contractor agrees to perform Extra Work for the unit prices in the Contractor's Proposal. The Contractor also agrees and warrants that when it is necessary to construct units not shown in the Contract Documents,it shall construct such units for a price arrived at as follows: (1) The cost of materials shall be determined by the invoices; (2) The cost of labor shall be the reasonable cost thereof, as determined by the City,but in no event shall it exceed an amount determined by calculating the ratio of the total labor costs to the total costs to the total material costs in the section of the Proposal involved, and multiplying the cost of materials for the unit in question by this ratio. Provided,however, that the ratio shall be calculated for only those units that are similar to the new unit for which a price is to be determined. (f Method B - Lump Sum. The lump sum shall be reasonably close to the amount for similar work previously done or combinations of similar units. Invoices for materials used shall be provided in support of the agreed lump sum. (g) Method C -Actual Field Costs. The actual field cost is hereby defined to include the cost of all applicable workmen and laborers, as well as materials, supplies, teams, trucks,rentals on machinery and equipment, for the time actually employed or used for such Extra Work,plus actual transportation charges necessarily incurred, together with other costs reasonably incurred directly on account of such Extra Work,including social security, old age benefits,maintenance bonds,public liability,property damage,worker's compensation, and all other insurance as may be required by law or ordinances or required and agreed to by the City or City's Representative. City's Representative may direct the form in which accounts of the actual field costs shall be kept and records of these accounts shall be made available to City's Representative. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using one hundred percent (100%), unless otherwise specified, of the latest schedule of equipment and ownership expenses adopted by the Associated General Contractors of America. Where practical, the terms and prices for the use of machinery and equipment shall be incorporated in the written Extra Work order. Actual field costs ORDINANCE NO.2017-3952 Page 82 of 109 shall not exceed the prevailing market price therefor within reasonable tolerances as determined by City's Representative. The amount due to Contractor for costs other than actual field costs shall be calculated in accordance with the following standards: (1) No indirect or consequential damages will be allowed. (2) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison by planned expenditures to total actual expenditures or on estimated losses of labor efficiency, or on a comparison of planned manloading to actual manloading, or any other analysis that is used to show damages indirectly. (3) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (4) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the pay applications, divided by the total number of days specified for completion called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by Contractor for job overhead cost shall be used. 18. TIME OF COMPLETION 18.01. The date of beginning, the time for Substantial Completion and Final Completion of work as specified in this Agreement are of the essence of this Agreement. 18.02. The work embraced by this Agreement shall be commenced on the date specified in the notice to proceed. Said notice to proceed may be given orally or set by the City's Representative at the post-award conference. 18.03. The work shall be Substantially Completed within the time bid,which shall run from the date when the notice to proceed is given by City's Representative. The Contractor bid calendar days for the time within which it shall reach Substantial Completion of the Project. 18.04. The work shall reach Final Completion and be ready for final payment within thirty (30) calendar days from the date of Substantial Completion. 19. SUBSTANTIAL COMPLETION 19.01. The Contractor shall notify City's Representative when,in the Contractor's opinion, the contract is Substantially Completed. Within ten (10) calendar days after the Contractor has given City's Representative written notice that the work has been Substantially Completed, City's Representative shall inspect the work for the preparation of a final punch list. (a) If City's Representative and the City find that the work is not Substantially Completed, then they shall so notify the Contractor who shall then complete the work. City's Representative shall not be required to provide a list of unfinished work. (b) If the City Representative and City find that the work is Substantially Completed, the City shall issue to the Contractor its certificate of Substantial Completion. 19.02. The Substantial Completion of the work shall not excuse the Contractor from performing all of the work undertaken,whether of a minor or major nature,and thereby completing the Project in accordance with the Contract Documents. ORDINANCE NO.2017-3952 Page 83 of 109 20. FINAL COMPLETION 20.01. Contractor shall notify the City's Representative when it believes that the work has reached Final Completion as defined in Paragraph 1.08. If the City's Representative and the City accept and deems such work Finally Complete, then Contractor shall be so notified and certificates of completion and acceptance, as provided herein, shall be issued. A complete itemized statement of this Agreement account, certified by the City's Representative as correct, shall then be prepared and delivered to Contractor. Contractor or City, as the case may be, shall pay the balance due as reflected by said statement within thirty (30) calendar days. 20.02. The Contractor shall procure all required certificates of acceptance or completions issued by state, municipal, or other authorities and submit the same to the City. The City may withhold any payments due under this Agreement until the necessary certificates are procured and delivered. 20.03. Neither the final payment nor any acceptance nor certificate nor any provision of this Agreement shall relieve the Contractor of any responsibility for faulty workmanship or materials. At the option of the City, the Contractor shall remedy any defects and pay for any damage to other work which may appear after final acceptance of the work. 21. DELAYS 21.01. The Contractor,in undertaking to complete the work within the times herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such work,whether growing out of delays in securing material or workmen or delays arising from inclement weather or otherwise. 21.02. The City may,in its sole discretion, delay the work during inclement weather in order to preserve the Project,ensure safety of work forces, and the preservation of materials and equipment. In such event and upon a written request from the Contractor, the City may grant an extension of time pursuant to Paragraph 22 to offset for such stoppage of the work. 21.03. In the event of delays resulting from changes ordered in the work by the City or other delays caused by the City or for the City's convenience, the Contractor may apply to the City for recovery of incidental damages resulting from increased storage costs or other costs necessary to protect the value of the work. In no event shall any consequential or other damages be allowed or any other charges or claims be made by the Contractor for hindrances or delays resulting from any other cause. 22. EXTENSIONS OF TIME The Contractor has submitted its proposal in full recognition of the time required for the completion of this Project, taking into consideration all factors including, but not limited to the average climatic range and industrial conditions. The Contractor has considered the liquidated damage provision of this Agreement and understands and agrees that it shall not be entitled to,nor will it request, an extension of time for either Substantial Completion or. Final Completion, except when the work has been delayed by one or more of the following: (1) an act or neglect of the City, the City's Representative, employees of the City, or other contractors employed by the City; (2) by changes ordered in the work, or reductions thereto approved in writing; (3) by "rain days" (days with rainfall in excess of one-tenth of an inch) during the term of this Agreement that exceed the average number of rain days for such term for this locality,both as determined by the Texas A&M University weather service; or (4) by other causes that the City and the Contractor agree may reasonably justify delay and that were beyond the Contractor's reasonable control and ability to estimate,predict, or avoid, such as delays caused by unforeseen labor disputes, fire, natural disasters, acts of war,and other rare and ORDINANCE NO.2017-3952 Page 84 of 109 unpredictable events. This term does not include normal delays incident to the delivery of materials, tools, or labor that reasonably could have been predicted and/or accounted for in the Contractor's proposal or decision to bid. If one or more of the foregoing conditions is present, the Contractor may apply in writing for an extension of time,within thirty (30) days of the occurrence of the event causing the delay, submitting therewith all written justification as may be required by the City's Representative. Within ten (10) calendar days after receipt of a written request for an extension of time,which is supported by all requested documentation,the City shall,in writing and in its sole discretion,grant or deny the request. Under no circumstances shall any extension of time by the City be valid and binding unless it is in writing and in conformity with the other terms of this Agreement. 23. LIQUIDATED DAMAGES 23.01. The time for the Substantial and Final Completion of the work described herein are reasonable times for the completion of each, taking into consideration all conditions,including but not limited to the average climatic conditions and usual industrial conditions prevailing in this locality. The amount of liquidated damages for the Contractor's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Contractor because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. 23.02. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Contractor to achieve timely completion of the Work,if the Contractor should neglect, fail, or refuse to either Substantially Complete or Finally Complete the work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of Paragraph 22 of this Agreement, then the Contractor does hereby agree as part of the consideration for the awarding of this Agreement that the City may permanently withhold from the Contractor's total compensation the sum of EIGHT-HUNDRED DOLLARS ($800.00) for each and every calendar day that the Contractor shall be in default after the time stipulated for Substantial Completion and/or Final Completion,not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 24. CHARGES FOR INJURY OR REPAIR 24.01. The Contractor shall be liable for any damages incurred or repairs made necessary by reason of its work and/or caused by it. Repairs of any kind required by the City will be made and charged to the Contractor by the City. 24.02. The Contractor shall take the necessary precautions to protect any areas adjacent to its work. 24.03. The work specified consists of all work,materials, and labor required by the City to repair any damage to the property of the City,including but not limited to structures,roadways, curbs,parking areas, and sidewalks. 25. WARRANTY 25.01. Upon issuance of a certificate of Final Completion, the Contractor warrants for a period of one (l) year as follows: i ORDINANCE NO.2017-3952 Page 85 of 109 • } The Contractor warrants that all materials provided to the City under this Agreement shall be new unless otherwise approved in advance by City's Representative and that all work will be of good quality, free from faults and defects, and in conformance with this Agreement, the other Contract Documents, and recognized industry standards. 25.02. All work not conforming to these requirements,including but not limited to unapproved substitutions,may be considered defective. 25.03. This warranty is in addition to any rights or warranties expressed or implied by law and in addition to any consumer protection claims arising from misrepresentations by the Contractor. 25.04. Where more than a one (1) year warranty is specified for individual products,work, or materials, the longer warranty shall govern. 25.05. This warranty obligation shall be covered by any performance or payment bonds tendered in compliance with this Agreement. 25.06. Defective Work Discovered During Warranty Period. If any of the work is found or determined to be either defective,including obvious defects, or otherwise not in accordance with this Agreement within one (1) year after the date of the issuance of a certificate of Final Completion of the work or a designated portion thereof,whichever is longer, or within one (1) year after acceptance by the City of designated equipment, or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this Agreement, the Contractor shall promptly correct the defective work at no cost to the City. 25.07. After receipt of written notice from the City to begin corrective work, the Contractor shall promptly begin the corrective work. The obligation to correct any defective work shall survive the termination of this Agreement. The guarantee to correct the defective work shall not constitute the exclusive remedy of City, nor shall other remedies be limited to the terms of either the warranty or the guarantee. 25.08. If within ten (10) calendar days after the City has notified the Contractor of a defect, failure, or abnormality in the work, the Contractor has not started to make the necessary corrections or adjustments, the City is hereby authorized to make the corrections or adjustments, or to order the work to be done by a third party. The cost of the work shall be paid by the Contractor or its surety. 25.09. The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies required for the replacement or repair of parts and for correction of defects shall be paid by the Contractor or by the surety. 25.10. The guarantee shall be extended to cover all repairs and replacements furnished, and the term of the guarantee for each repair or replacement shall be one (1) year after the installation or completion. The one (1) year warranty shall cover all work, equipment,and materials that are part of this Project,whether or not a warranty is specified in the individual section of the Contract Documents that prescribe that particular aspect of the work. 26. PAYMENT OF EMPLOYEES, SUBCONTRACTORS & SUPPLIERS 26.01. Wage Rates. Pursuant to Section 2258.023(a) of the Texas Government Code,wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as Exhibit A. ORDINANCE NO.2017-3952 Page 86 of 109 26.02. Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code,if the Contractor or any subcontractor violates the requirements of Paragraph 26.01, the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 26.03. The Contractor and each subcontractors shall pay all of their employees engaged in work on the Project in full (less mandatory legal deductions) in cash or by check readily cashable,without discount,no less than once each week. 26.04. No later than the seventh (7th) calendar day following the payment of wages, the Contractor must file with City's Representative a certified, sworn,legible copy of such payroll. This shall contain the name of each employee, their classification, the number of hours worked on each day,rate of pay, and net pay. The affidavit shall state that the copy is a true and correct copy of such payroll and that no rebates or deductions (except as shown) have been made or will be made in the future from the wages therein shown. 26.05. Payment of Subcontractors. The Contractor shall be solely and exclusively responsible for compensating any of the Contractor's employees, subcontractors,materialmen and/or suppliers of any type or nature whatsoever and for insuring that no claims or liens of any type arising out of or incidental to the performance of any services performed pursuant to this Agreement are filed against any property owned by the City. In the event a statutory lien notice is sent to the City, the Contractor shall,where no payment bond covers the work,upon written notice from the City,immediately obtain a bond at its expense and hold the City harmless from any losses that may result from the filing or enforcement of any said lien notice. In the event that the Contractor defaults in the provision of the bond, the City may withhold such funds as are necessary to assure the payment of such claim until litigation determines to whom payment shall be made. 26.06. Affidavit of Bills Paid. Prior to Final Acceptance of the Project, the Contractor shall provide a notarized affidavit stating that all bills for labor,materials, and incidentals incurred have been paid in full, that any claims from manufacturers,materialmen, and subcontractors have been released, and that there are no claims pending of which the Contractor has been notified. 27. INSURANCE 27.01. The Contractor shall procure and maintain at its sole cost and expense for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor,its agents,representatives, volunteers, employees or subcontractors. The policies, coverages,limits and endorsements required are as set forth in Exhibit B. 28. BOND PROVISIONS 28.01. Pursuant to Section 2253.021 of the Texas Government Code, for all public works contracts with governmental entities, a payment bond is required if the Contract Amount exceeds $50,000, and a performance bond is required if the Contract Amount exceeds $100,000. Below those amounts, the City may require payment and/or performance bonds. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. ORDINANCE NO.2017-3952 Page 87 of 109 (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents,which are attached as Exhibit C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of work. Copies of the executed bonds shall be attached hereto as Exhibit C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason,the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 28.02. The Contractor may make such changes and alterations as the City may require in the work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any work already done or material already used in said work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned,in accordance with the provisions of Article 17. 29. SURETY 29.01. If the Contractor has abandoned the Project or the City has terminated the contract for cause and the Contractor's Surety, after notice demanding completion is sent, fails to commence the completion of the work in compliance with this Agreement, then the City at its option may provide for completion of the work in either of the following manners: 29.01.01.The City may employ such force of men and use of instruments,machinery, equipment, tools, materials,and supplies as said the City may deem necessary to complete the work and charge the expense of such labor, machinery, equipment, tools,materials,and supplies to said the Contractor,and the expense so charged shall be deducted and paid by the City out of such monies as may be due or that may thereafter at any time become due to the Contractor and Surety. 29.01.02.The City may, after notice published as required by law,accept sealed bids and let this Agreement for the completion of the work under substantially the same terms and conditions that are provided in this Agreement. In case of any increase in cost to the City under the new agreement as compared to what would have been the cost under this Agreement, such increase together with all of the City's damages due to Contractor's abandonment and/or default,including liquidated damages, as provided pursuant to Paragraph 38, entitled"TERMINATION FOR CAUSE" shall be charged to the Contractor and the surety shall be and remain bound therefor. However, should the cost to complete such new agreement prove to be less than that which would have been the cost to complete the work under this Agreement, the Contractor shall be credited therewith after all deductions are made in accordance with this Agreement. 29.02. Should the cost to complete the work exceed the Contract Amount and the Contractor fails to pay the amount due to the City within the time designated and there remains any machinery, equipment, tools, materials, or supplies on the site of the work,notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the Contractor at its respective address designated in this Agreement;provided,however, that actual written notice given in any manner shall satisfy this condition. After mailing, or otherwise giving such notice, such property shall be held at the risk of the Contractor subject only to the duty of City's Representative to exercise ordinary care to protect such property. After fifteen (15) calendar days from the date of said notice, City's Representative may sell such machinery, equipment, tools,materials, or supplies and apply the net sum derived from such sale to the credit of the Contractor. Such sale may be made at either public or private sale,with or without notice, as City's ORDINANCE NO.2017-3952 Page 88 of 109 Representative may elect. City's Representative shall release any machinery, equipment, tools,materials, or supplies which remain on the job site and belong to persons other than the Contractor to their proper owners. 29.03. In the event the account shows that the cost to complete the work is less than that which would have been the cost to City had the work been completed by the Contractor under the terms of this Agreement, or when the Contractor shall pay the balance shown to be due by them to the City, then all machinery, equipment, tools,materials, or supplies left on the site of the work shall be turned over to the Contractor. 30. COMPLIANCE WITH LAW 30.01. The Contractor's work and materials shall comply with all state and federal laws,municipal ordinances, regulations, codes,and directions of inspectors appointed by proper authorities having jurisdiction. 30.02. The Contractor shall perform and require all subcontractors to perform the work in accordance with applicable laws, codes, ordinances, and regulations of the State of Texas and the United States and in compliance with OSHA and other laws as they apply to its employees. In the event any of the conditions of the specifications violate the code for any industry, then such code conditions shall prevail. 30.03. The Contractor shall follow all applicable state and federal laws,municipal ordinances,and guidelines concerning soil erosion and sediment control throughout the Project and warranty term. 31. SAFETY PRECAUTIONS 31.01. All safety measures,policies and precautions at the site are a part of the construction techniques and processes for which the Contractor shall be solely responsible. The Contractor is solely responsible for handling and use of hazardous materials or waste, and informing employees of any such hazardous materials or waste. The Contractor shall provide copies of all hazardous materials and waste data sheets to the College Station Fire Department marked "Attn.: Assistant Chief'. 31.02. The Contractor has the sole obligation to protect or warn any individual of potential hazards created by the performance of the work set forth herein. The Contractor shall, at its own expense, take such precautionary measures for the protection of persons,property,and the work as may be necessary. 31.03. The Contractor shall be held responsible for all damages to property,personal injuries and/or death due to failure of safety devices of any type or nature that may be required to protect or warn any individual of potential hazards created by the performance of the work set forth herein;and when any property damage is incurred, the damaged portion shall immediately be replaced or compensated for by the Contractor at its own cost and expense. 31.04. Contractor agrees that it shall not transport to,use,generate, dispose of, or install at the Project site any Hazardous Substance (as defined in Paragraph 31.07, except in accordance with applicable Environmental Laws. Further,in performing the Work, Contractor shall not cause any release of Iazardous Substances into, or contamination of, the environment,including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 31.07). In the event Contractor engages in any of the activities prohibited in this Paragraph 31.04 to the fullest extent permitted by law, Contractor hereby indemnifies and holds City and all of its respective officials, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 31.04. 1 ORDINANCE NO.2017-3952 Page 89 of 109 31.05. In the event Contractor encounters on the Project site any IIazardous Substance, or what Contractor may reasonably believe to be a Iazardous Substance, and which is being introduced to the Work, or exists on the Project site,in a manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City and all of its officials, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 31.06. City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless the Hazardous Substance,but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Iazardous Substance until such time as the Iazardous Substance has been remediated and/or rendered harmless. 31.07. For purposes of this Agreement, the term "IIazardous Substance" shall mean and include any element, constituent, chemical, substance, compound, or mixture,which are defined as a hazardous substance by any local, state or federal law,rule, ordinance, by-law, or regulation pertaining to environmental regulation,contamination, clean-up or disclosure,including,without limitation,The Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"),The Resource Conservation and Recovery Act("RCRA"),The Toxic Substances Control Act ("TSCA"),The Clean Water Act ("CWA"),The Clean Air Act ("CAA"), and the Marine Protection Research and Sanctuaries Act ("MPRSA"),The Occupational Safety and Health Act ("OSHA"),The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean- up or disclosure statutes including all state and local counterparts of such laws (all such laws,rules and regulations being referred to collectively as "Environmental Laws"). It is the Contractor's responsibility to comply with this Paragraph 31.07 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 32. TRENCH SAFETY The Contractor must comply with Texas law regarding trench excavation exceeding five feet in depth and in accordance with the following items: 32.01 The Contractor must comply with the requirements of Tex. Health &Safety Code Ann. X756.022- 023 (Vernon 1992), as amended, and the requirements of 29 C.F.R., Sections 1926.650 through 1926.653 inclusive, "Excavation,Trenching and Shoring," of the Occupational Safety and Health Administration Standards, as amended. 32.02 The Contractor must include a separate pay item for trench safety complying with trench safety requirements, stating a unit price per linear foot of trench safety systems, as measured along the centerline of trench including manholes and other line structures. 32.03 Before beginning work on this project, the Contractor must submit to the City a complete trench safety program that complies with state and federal regulations. It is the sole duty,responsibility and prerogative of the Contractor,not the City, to determine the specific applicability of the designed trench safety systems to each field condition encountered on the project. ORDINANCE NO.2017-3952 Page 90 of 109 32.04 The Contractor must provide the City the name of the"competent person"required by OSHA standards to perform the trench safety inspections. The Contractor must make daily inspections to ensure that the systems comply with all applicable laws and regulations, and must maintain a permanent record of daily inspections available for examination by the City or other government authority. 32.05 If evidence of possible cave-ins or slides is apparent, the Contractor must cease all work in the trench and surrounding area until the necessary precautions have been taken by the Contractor to safeguard personnel entering the trench. 33. INDEMNITY 33.01. CONTRACTOR SHALL PROTECT,DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES, LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON, INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY,TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS CONTRACT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO,AND INCLUDE,ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT,JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY,AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 33.02. The indemnifications contained in paragraphs 33.01 shall include but not be limited to the following specific instances: (a) In the event the City is damaged due to the act, omission, mistake, fault or default of the Contractor, then the Contractor shall indemnify and hold harmless and defend the City for such damage. (b) The Contractor shall indemnify and hold harmless and defend the City from any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) The Contractor shall indemnify and hold harmless and defend the City from any and all injuries to or claims of adjacent property owners caused by the Contractor, its agents, employees, and representatives. (d) The Contractor shall be responsible for any damage to the floor,walls, etc., caused by the Contractor's personnel or equipment during installation. (e) The Contractor shall also be responsible for the removal of all related debris. (f) The Contractor shall also be responsible for subcontractors hired by it. (g) The Contractor shall indemnify, hold harmless, and defend the City from any liability caused by the Contractor's failure to comply with applicable federal, state, or local regulations, that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 33.03. The indemnification obligations of the Contractor under this section shall not extend to include the liability of any professional engineer, the architect, their consultants, and agents or ORDINANCE NO.2017-3952 Page 91 of 109 employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 33.04. It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 33.01, such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 34. RELEASE The Contractor assumes full responsibility for the work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property (whether property of either of the parties hereto, their employees, or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor, any subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 35. PERMITS AND LICENSES The Contractor shall secure and pay for all necessary permits and licenses,governmental fees, and inspections necessary for the proper execution and completion of the work. During this Agreement term and/or period during which the Contractor is working,it shall give all notices and comply with all laws, ordinances,rules,regulations, and lawful orders of any public authority bearing on the performance of the work. 36. ROYALTIES AND LICENSING FEES The Contractor shall pay all royalties and licensing fees. The Contractor shall hold the City harmless and indemnify the City from the payment of any royalties, damages,losses or expenses including attorney's fees for suits, claims or otherwise,growing out of infringement or alleged infringement of patents,materials and methods used in the Project. It shall defend all suits or claims for infringement of any patent rights. Further,if the Contractor has reason to believe that the design, service,process, or product specified is an infringement of a patent,it shall promptly give such information to City's Representative. 37. BREACH OF CONTRACT &DAMAGES 37.01. The City shall have the right to declare the Contractor in breach of this Agreement for cause when the City determines that this Agreement is not being performed according to its understanding of the intent and meaning of this Agreement. Such breach shall not in any way invalidate, abrogate, or terminate the Contractor's obligations under this Agreement. ORDINANCE NO.2017-3952 Page 92 of 109 37.02. Without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City upon giving the Contractor five (5) calendar days prior written notice shall be entitled to damages for breach of contract,upon but not limited to the following occurrences: (a) If the Contractor shall fail to remedy any default after written notice thereof from City's Representative, as City's Representative shall direct; or (b) If the Contractor shall fail for any reason other than the failure by City's Representative to make payments called upon when due; or (c) If the Contractor commits a substantial default under any of the terms,provisions, conditions, or covenants contained in this Agreement. 38. TERMINATION FOR CAUSE Without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City upon giving the Contractor five (5) calendar days prior written notice shall be entitled to terminate this Agreement in its entirety at any time for any of the following: 38.01. If the Contractor becomes insolvent, commits any act of bankruptcy,makes a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors and, after notice, fails to provide adequate assurance that it can remedy all of its defaults; or 38.02. If a receiver, trustee, or liquidator of any of the property or income of the Contractor shall be appointed; or 38.03. If the Contractor shall fail to prosecute the work or any part thereof with diligence necessary to ensure its progress and completion as prescribed by the time schedules; or 38.04. If the Contractor shall fail to remedy any default within ten (10) calendar days after written notice thereof from City's Representative, as City's Representative shall direct; or 38.05. If the Contractor shall fail for any reason other than the failure by City's Representative to make payments called upon when due; or 38.06. If the Contractor abandons the Work. 38.07. If the Contractor commits a substantial default under any of the terms,provisions, conditions, or covenants contained in this Agreement. 39. TERMINATION FOR CONVENIENCE 39.01. The performance of the work may be terminated at any time in whole or, from time to time,in part, by the City for its convenience. Any such termination shall be effected by delivery to the Contractor of a written notice (notice of termination) specifying the extent to which performance of the work is terminated, and the date upon which termination becomes effective. 39.02 In the event of termination for convenience, the Contractor shall only be paid the reasonable value of the Work performed prior to the effective date of the termination notice and shall be further subject to any claim the City may have against the Contractor under other provisions of this Agreement or as a matter of law. In the event of termination for convenience, Contractor Waives and Releases any claim for lost • profit, other than profit on Work performed prior to the effective date of such termination. ORDINANCE NO.2017-3952 Page 93 of 109 40. RIGHT TO COMPLETE If this Agreement is terminated for cause, the City shall have the right but shall not be obligated to complete the work itself or by others; and to this end, the City shall be entitled to take possession of and use such equipment,without rental obligation therefor, and materials as may be on the job site, and to exercise all rights, options, and privileges of the Contractor under its subcontracts,purchase orders, or otherwise; and the Contractor shall promptly assign such rights, options,and privileges to City. If the City elects to complete the work itself or by others,pursuant to the foregoing,then the Contractor and/or Contractor's surety will reimburse City for all costs incurred by the City (including,without limitation, applicable,general, administrative expenses, field overhead, the cost of necessary equipment, materials, field labor, additional fees paid to architects, engineers, attorneys or others to assist the City in connection with the termination and liquidated damages) in completing and/or correcting work by the Contractor that fails to meet any requirement of this Agreement or the other Contract Documents. 41. CLOSE OUT 41.01. After receipt of a notice of termination,whether for cause or convenience,unless otherwise directed by City's Representative, the Contractor shall,in good faith and to the best of its ability, do all things necessary in the light of such notice to assure the efficient and proper closeout of the terminated work (including the protection of City's property). Among other things, the Contractor shall, except as otherwise directed or approved by City's Representative, do the following: (a) Stop the work on the date and to the extent specified in the notice of termination; (b) Place no further orders or subcontracts for services, equipment, or materials, except as may be necessary for completion of such portion of the work as is not terminated; (c) Terminate all orders and subcontracts to the extent that they relate to the performance of the work terminated by the notice of termination; (d) Assign to City's Representative,in the manner and to the extent directed by it, all of the right, title, and interest of the Contractor under the orders or subcontracts so terminated;in which case, City's Representative shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; (e) With the approval of City's Representative, settle all outstanding liabilities and all claims arising out of such termination, orders, and subcontracts; (0 Deliver to City's Representative,when directed by City's Representative, all documents and all property,which if the work had been completed, Contractor would have been required to account for or deliver to City's Representative, and transfer title to such property to City's Representative to the extent not already transferred; and/or 42. TERMINATION CONVERSION Upon determination of Court of competent jurisdiction that termination of the Contractor pursuant to Paragraph 38 was wrongful and/or otherwise improper, such termination will be deemed converted to a termination for convenience pursuant to Paragraph 39 and Contractor's remedy for such termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 39. 43. HIRING ORDINANCE NO.2017-3952 Page 94 of 109 During the term of this Agreement and for a period of one (1) year thereafter, the Contractor agrees not to solicit for hire any employee or employees of the City that were associated with work specified under this Agreement. In the event that this provision is breached by the Contractor, the Contractor agrees to pay the City damages in the amount equal to twelve (12) months of the employee's total compensation plus any legal expenses associated with enforcement of this provision. 44. ASSIGNMENT This Agreement and the rights and obligations contained herein may not be assigned by the Contractor without the prior written approval of the City. 45. EFFECTIVE DATE The effective date of this contract shall be the date of award of the contract. 46. OTHER TERMS 46.01. Invalidity. If any provision of this Agreement shall be held to be invalid,illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity,legality,and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace the respective provision or provisions of this Agreement with legal terms and conditions approximating the original intent of the parties. 46.02. Written Notice. Unless otherwise specified,written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to any officer of the corporation for whom it is intended or if it is delivered or sent certified mail to the last business address as listed herein. Each party will have the right to change its business address by at least thirty (30) calendar days written notice to the other parties in writing of such change. 46.03. Entire Agreement. It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements, or understandings between the parties relating to the subject matter. No oral understandings, statements,promises or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer,agent or employee of the City, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 46.04. Amendment. No amendment to this Agreement shall be effective and binding unless and until it is reduced to writing and signed by duly authorized representatives of both parties. 46.05. Mediation. After receipt of a Notice of Claim, the Owner may elect to refer the matter to the Architect, Owner's Representative or another party for review. Contractor will attend meetings called to review and discuss the Claims and mitigation of the problem, and shall furnish any reasonable factual backup for the Claim requested. The Owner may also elect to defer consideration of the Claim until the Work is completed,in which case the same review options shall be available to the Owner at the completion of the Work. At any stage, the Owner,at its sole discretion,is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and,if this referral is made, Contractor will take part in the mediation process. The filing,mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Contract during the pendency of any claim, excepting termination or under Owner's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally and the Mediation shall be held in College Station,Texas. ORDINANCE NO.2017-3952 Page 95 of 109 46.06. Arbitration. In the event of a dispute and upon the mutual written consent of both parties, the parties may agree to arbitration without waiving any of their other rights hereunder. 46.07. Choice of Law and Place of Performance. 'I"his Agreement has been made under and shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazos County,Texas,United States of America. 46.08. Authority to do business. The Contractor represents that it has a certificate of authority, authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this contract. 46.09 Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 46.10. Waiver. Failure of any party, at any time, to enforce a provision of this Agreement shall in no way constitute a waiver of that provision nor in any way affect the validity of this Agreement,any part hereof, or the right of the City thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. 46.11. Headings, Gender, Number. The article headings are used in this Agreement for convenience and reference purposes only and are not intended to define,limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender,and words in the singular number shall be held to include the plural, and vice versa,unless the context requires otherwise. 46.12. Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice,have read,understand and intend to be bound by the terms and conditions of this Agreement. 46.13. Multiple Originals. It is understood and agreed that this Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. 46.14. Notice of Indemnification. City and Contractor hereby acknowledge and agree that this Agreement contains certain indemnification obligations and covenants. ORDINANCE NO.2017-3952 Page 96 of 109 [INSERT NAME OF CONTRACTOR] CITY OF COLLEGE STATION By: By: Printed Name: City Manager Title: Date: Date: APPROVED: City Attorney Date: Assistant City Manager/CFO Date: ORDINANCE NO.2017-3952 Page 97 of 109 EXHIBIT A Insert Appropriate Davis Bacon Wage Rates Copy and paste the following notes to the end of the DB wage rates for Building Construction or Heavy/Highway Construction. Omit#5 if for Heavy/Highway Construction. 1. Payment greater than prevailing wage rate as listed within this document not prohibited per Texas Government Code,Chapter 2258, Prevailing Wage Rates,Subchapter A.General Provisions. 2. Not less than the following hourly rates shall be paid for the various classifications of work required by this project.Workers in classifications where rates are not identified shall be paid not less than the general prevailing rate of"laborer" for the various classifications of work therein listed. 3. The hourly rate for legal holiday and overtime work shall not be less than one and one-half(1 & 1/2)times the base hourly rate. 4. The rates listed are journeyman rates.Helpers may be used on the project and may be compensated at a rate determined mutually by the worker and employer,commensurate with the experience and skill of the worker but not at a rate less than 60%of the journeyman's wage as shown.Apprentices(enrolled in a federally certified apprentice program)may be used at the percentage rates of the journeyman scale stipulated in their apprenticeship agreement.At no time shall a journeyman supervise more than two(2) apprentices or helpers.All apprentices or helpers shall be under the direct supervision of a journeyman working as a crew. 5. Building construction wage rates shall be paid to all workers except those workers engaged in site work and construction beyond five feet of buildings. ORDINANCE NO.2017-3952 Page 98 of 109 Exhibit B INSURANCE REQUIREMENTS During the term of this Agreement Contractor's insurance policies shall meet the following requirements: Standard Insurance Policies Required: A. Commercial General Liability B. Business Automobile Liability C. Umbrella/Excess Liability—required for contract amounts exceeding$1,000,000 D. Workers' Compensation E. Builder's Risk—provides coverage for contractor's labor and materials for a project during construction that involves a structure such as a building or garage. builder's risk policy shall be written on "all risks" form. II. General Requirements Applicable to All Policies: A. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. B. Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage only. C. "Claims Made" policies are not accepted. D. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty(30) days prior written notice by certified mail, return receipt requested, has been given to the City of College Station. E Upon request, certified copies of all insurance policies shall be furnished to the City of College Station. F. The City of College Station, its officials, employees and volunteers, are to be named as "Additional Insured"to the Commercial General, Umbrella and Business Automobile Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees or volunteers. III. Commercial General Liability A. General Liability insurance shall be written by a carrier with a"A:VIII" or better rating in accordance with the current Best Key Rating Guide. B. Limit of$1,000,000.00 per occurrence for bodily injury and property damage with an annual aggregate limit of$2,000,000.00 which limits shall be endorsed to be per Project. C. Coverage shall be at least as broad as ISO form GC 00 01. D. No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for review and acceptance. ORDINANCE NO.2017-3952 Page 99 of 109 E. The coverage shall include but not be limited to the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability,Personal &Advertising Liability; and Explosion, Collapse, and Underground coverage. IV. Business Automobile Liability A. Business Automobile Liability insurance shall be written by a carrier with a"A:VIII" or better rating in accordance with the current Best Key Rating Guide. B. Minimum Combined Single Limit of$1,000,000.00 per occurrence for bodily injury and property damage. C. Coverage shall be at least as broad as Insurance Service's Office Number CA 00 01. D. The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page. E. The coverage shall include owned autos, leased or rented autos, non-owned autos, any autos and hired autos. F. Pollution Liability coverage shall be provided by endorsement MCS-90, with a limit of $1,000,000.00. V. Excess Liability Umbrella form excess liability coverage following the form of the underlying coverage with a minimum limit of$5,000,000.00 or the total value of the contract, whichever is greater, per occurrence/aggregate when combined with the lowest primary liability coverage, is required for contracts exceeding $1,000,000 in total value. VI. Those policies set forth in Paragraphs III, IV, and V shall contain an endorsement naming the City as Additional Insured and further providing that the Contractor's policies are primary to any self-insurance or insurance policies procured by the City. The additional insured endorsement shall be in a form at least as broad as ISO form GC 2026. Waiver of subrogation in a form at least as broad as ISO form 2404 shall be provided in favor of the City on all policies obtained by the Contractor in compliance with the terms of this Agreement. Contractor shall be responsible for all deductibles which may exist on any policies obtained in compliance with the terms of this Agreement. All coverage for subcontractors shall be subject to the requirements stated herein. All Certificates of Insurance and endorsements shall be furnished to the City's Representative at the time of execution of this Agreement, attached hereto as Exhibit D, and approved by the City before work commences. VII. Workers Compensation Insurance A. Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Contractor, all employees of any and all subcontractors, and all other persons providing services on the Project must be covered by a workers compensation insurance policy: either directly through their employer's policy(the Contractor's or subcontractor's policy) or through an executed coverage agreement on an approved Texas Department of Insurance Division of Workers Compensation (DWC) form. Accordingly, if a subcontractor does not have his or her own policy and a coverage agreement is used, contractors and subcontractors must use that portion of the form whereby the hiring contractor agrees to provide coverage to the employees of the subcontractor. The portion of the form that would otherwise allow them not to provide coverage for the employees of an independent contractor may not be ORDINANCE NO.2017-3952 Page 100 of 109 used. B. Workers compensation insurance shall include the following terms: 1. Employer's Liability minimum limits of$1,000,000.00 for each accident/each disease/each employee are required. 2. "Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04" shall be included in this policy. 3. Texas must appear in Item 3A of the Workers Compensation coverage or Item 3C must contain the following: All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, and WY. C. Pursuant to the explicit terms of Title 28, Section 110.110(c) (7) of the Texas Administrative Code, the bid specifications, this Agreement, and all subcontracts on this Project must include the following terms and conditions in the following language, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: "A. Definitions: Certificate of coverage ("certificate') —An original certificate of insurance, a certificate of authority to self-insure issued by the Division of Workers Compensation, or a coverage agreement (DWC-81, DWC-83, or DWC-84), showing statutory workers'compensation insurance coverage for the person's or entity's employees providing services on a project,for the duration of the project. Duration of the project- includes the time from the beginning of the work on the project until the Contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractors" in§406.096[of the Texas Labor Code]) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation,providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services"does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts andfling of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44)for all employees of the Contractor providing services on the project,for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the project, the Contractor must,prior to the end of the coverage period,file a new certificate of coverage with the governmental entity showing that coverage has been extended. ORDINANCE NO.2017-3952 Page 101 of 109 } E. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: (1) a certificate of coverage,prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and (2) no later than seven calendar days after receipt by the Contractor, a new certfcate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The Contractor shall not the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the Contractor knew or should have known, or any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a notice, in the text,form and manner prescribed by the Division of Workers Compensation, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amounts andfling of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44)for all of its employees providing services on the project,for the duration of the project, (2) provide to the Contractor,prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project,for the duration of the project, (3) provide the Contractor,prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (4) obtain from each other person with whom it contracts, and provide to the Contractor: (a) A certificate of coverage,prior to the other person beginning work on the project; and (b) A new certificate of coverage showing extension of coverage,prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; (6) notes the governmental entity in writing by certified mail or personal delivery, within 10 ORDINANCE NO.2017-3952 Page 102 of 109 calendar days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (7) Contractually require each person with whom it contracts to perform as required by paragraphs (a) - (g), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract, or providing, or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the project will be covered by workers'compensation coverage for the duration of the project; that the coverage will be based on proper reporting of classification codes and payroll amounts; and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the Commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The Contractor's failure to comply with any of these provisions is a breach of contract by the Contractor that entitles the governmental entity to declare the contract void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity. " VIII. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent, and shall contain the following provisions and warranties: A. The company is licensed and admitted to do business in the State of Texas. B. The insurance policies provided by the insurance company are underwritten on forms that have been provided by the Texas State Board of Insurance or ISO. C. All endorsements and insurance coverages according to requirements and instructions contained herein. D. The form of the notice of cancellation, termination, or change in coverage provisions to the City of College Station. E. Original endorsements affecting coverage required by this section shall be furnished with the certificates of insurance. ORDINANCE NO.2017-3952 Page 103 of 109 Exhibit C PERFORMANCE AND PAYMENT BONDS ORDINANCE NO.2017-3952 Page 104 of 109 PERFORMANCE BOND Project No. THE STATE OF TEXAS KNOW ALL MEN BY TIESE PRESENTS: THE COUNTY OF BRAZOS 5 THAT WE, , as Principal, hereinafter called"Contractor" and the other subscriber hereto , as Surety, do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation,in the sum of ) for the payment of which sum,well and truly to be made to the City of College Station and its successors, the said Contractor and Surety do bind themselves, their heirs, executors, administrators, successors, and assigns,jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS, the Contractor has on or about this day executed a Contract in writing with the City of College Station for all of such work to be done as set out in full in said Contract Documents therein referred to and adopted by the City Council,all of which are made a part of this instrument as fully and completely as if set out in full herein. NOW THEREFORE,if the said Contractor shall faithfully and strictly perform Contract in all its terms, provisions, and stipulations in accordance with its true meaning and effect, and in accordance with the Contract Documents referred to therein and shall comply strictly with each and every provision of the Contract,including all warranties and indemnities therein and with this bond, then this obligation shall become null and void and shall have no further force and effect; otherwise the same is to remain in full force and effect. It is further understood and agreed that the Surety does hereby relieve the City of College Station or its representatives from the exercise of any diligence whatever in securing compliance on the part of the Contractor with the terms of the Contract,including the making of payments thereunder and,having fully considered its Principal's competence to perform the Contract in the underwriting of this Performance Bond, the Surety hereby waives any notice to it of any default, or delay by the Contractor in the performance of his Contract and agrees that it,the Surety, shall be bound to take notice of and shall be held to have knowledge of all acts or omissions of the Contractor in all matters pertaining to the Contract. The Surety understands and agrees that the provision in the Contract that the City of College Station shall retain certain amounts due the Contractor until the expiration of thirty days from the acceptance of the Work is intended for the City's benefit, and the City of College Station shall have the right to pay or withhold such retained amounts or any other amount owing under the Contract without changing or affecting the liability of the Surety hereon in any degree. It is further expressly agreed by Surety that the City of College Station or its representatives are at liberty at any time,without notice to the Surety, to make any change in the Contract Documents and in the Work to be done thereunder,as provided in the Contract, and in the terms and conditions thereof, or to make any change in, addition to, or deduction from the work to be done thereunder;and that such changes,if made, shall not in any way vitiate the obligation in this bond and undertaking or release the Surety therefrom. It is further expressly agreed and understood that the Contractor and Surety will fully indemnify and hold harmless the City of College Station from any liability, loss, cost, expense, or damage arising out of or in connection I with the work done by the Contractor under the Contract. In the event that the City of College Station shall bring ORDINANCE NO.2017-3952 Page 105 of 109 any suit or other proceeding at law on the Contract or this bond or both, the Contractor and Surety agree to pay to the City the actual amounts of attorneys' fees incurred by the city in connection with such suit. This bond and all obligations created hereunder shall be performable in Brazos County,Texas. This bond is given in compliance with the provisions of Chapter 2253 of the Texas Government Code, as amended,which is incorporated herein by this reference. Iowever,all of the express provisions hereof shall be applicable whether or not within the scope of said statute. 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 State 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 THEREOF, the said Contractor and Surety have signed and sealed this instrument on the respective dates written below their signatures and have attached current Power of Attorney. ATTEST and SEAL: (if a corporation) (SEAL) WITNESS: (if not a corporation) (Name of Contractor) By: By: Name: Name: Title: Title: Date: ATTEST/WITNESS (SEAL) (Full Name of Surety) By: Name: (Address of Surety for Notice) Title: Date: By: Name: Title: Date: REVIEWED: THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION,TEXAS: City Attorney's Office City Manager ORDINANCE NO.2017-3952 Page 106 of 109 TEXAS STATUTORY PAYMENT BOND Project No. THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: THE COUNTY OF BRAZOS THAT WE, , as Principal, hereinafter called"Principal" and the other subscriber hereto , a corporation organized and existing under the laws of the State of ,licensed to business in the State of Texas and admitted to write bonds,as Surety,herein after called "Surety", do hereby acknowledge ourselves to be held and firmly bound to the City of College Station, a municipal corporation,in the sum of ($ ) for payment whereof, the said Principal and Surety bind themselves,and their heirs, administrators, executors, successors and assigns jointly and severally. THE CONDITIONS OF THIS OBLIGATION ARE SUCH THAT: WHEREAS,Principal has entered into a certain contract with the City of College Station, dated the day of ,200 , for which contract 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 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, then, this obligation shall be null and 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 and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Code to the same extent as if it were copied at length herein. IN WITNESS THEREOF, the said Principal and Surety have signed and sealed this instrument on the respective dates written below their signatures. ORDINANCE NO.2017-3952 Page 107 of 109 ATTEST and SEAL: if a corporation) (SEAL) WITNESS: (if not a corporation) (Name of Contractor) By: By: Name: Name: Title: Title: Date: ATTEST/WITNESS (SEAL) (Full Name of Surety) By: Name: (Address of Surety for Notice) Title: Date: By: Name: Title: Date: REVIEWED: THE FOREGOING BOND IS ACCEPTED ON BEHALF OF THE CITY OF COLLEGE STATION,TEXAS: City Attorney's Office City Manager ORDINANCE NO.2017-3952 Page 108 of 109 Exhibit D CERTIFICATES OF INSURANCE AND ENDORSEMENTS ORDINANCE NO.2017-3952 Page 109 of 109 Exhibit E TECHNICAL SPECIFICATIONS AND PLANS