HomeMy WebLinkAboutPR 11794: HOUSING PROGRAMMemo
To: Steve F~gibbons, City Manager
From: Dale Watson, Director of Planning and Grants Management ~ .. . ~
Date: Monday, May 21, 2002
Re: P.R. llTg~
RECOH HENDAT:[ON:
! recommend City Council adopt Proposed Resolution 1179z[ authorizing the award
of bids and contracts for the Housing Programs New Construction Site Preparation
activities which include the removal of trees, slabs, sidewalks, steps & debris, stump
grinding and/or stump removal at thirteen (13) locations, to Mark Ramour, d.b.a.
Triangle Tree Service.
BACKGROUND:
The Department of Housing and Urban Development awards annual Community
Development Block Grant and HONE funds to the City for the primary benefit of Iow
and moderate-income persons. Formal advertised bidding was made with response
to the following contractors: Coastal Demolition, Redwine Enterprises, Duphil, N & S
Hauling, Triangle Tree Service and J. R. Services. Two formal bids were received from
Triangle Tree Service and J. R. Services. Four of the contractors did not submit a bid.
They were contacted as to why their bids were not submitted. The response was that
they were too busy and did not have time. J.R. Services was disqualified due to non-
compliance with the bid requirements. Hark Ramour, d.b.a. Triangle Tree Service, is
the lowest responsible bidder for site preparation for new construction activities.
BUDGETARY/FZSCAL EFFECT:
The City's 2000 Home Program will provide funding.
STAFFZNG/EI~IPLOYEE EFFECT:
Housing Administration staff will be responsible for administering the contracts.
SUMMARY:
I recommend City Council adopt Proposed Resolution 1179~ authorizing the award of
bids and contracts for the Housing Programs New Construction Site Preparation
activities to Hark Ramour, d.b,a. Triangle Tree Service.
P.R. 11794
05/21/02 -- Housing/DW
RESOLUTION NUMBER
A RESOLUTION APPROVZNG THE AWARD
OF CONTRACTS WTrH HARK RAHOUR, D.B.A.
TR.TANGLE TREE SERVZCE FOR HOUSI'NG NEW
CONSTRUCTION STrE PREPARATION A~ES.
WHEREAS, the Department of Housing and Urban Development awards
annual Community Development Block Grant and HOME funds to the City for the
pdmary benefit of Iow and moderate income persons.
WHEREAS, thirteen lots were identified as ncc'Jing site preparation for
new construction activities; now, therefore,
BE TT RESOLVED BY THE CTW COUNCIL OF THE CiTY OF PORT ARTHUR:
THAT the Housing Programs Administrator of the City of Port Arthur, is
hereby authorized to approve the award of contracts to Hark Ramour, d.b.a. Tdangle
Tree Service (a copy of said contract is attached hereto as Attachments "A", 'B", 'C",
"D'; "E", "F", "G" and "H'g;
Housinq Pro.rams New Construction Site Pm_naration Activit~---~
635 17~ Street $3,100
748 17~ Street $1,740
3142 & 3148 18th Street $3,575
3017 34~h Street $4,700
3827, 3837 & 3847 31~ Street $4,375
3632 7t~ Avenue $1,675
2315, 2325 & 2335 Neches Avenue $8,350
3110 Tyler $875
and,
THAT a copy of the caption of th~s Resolution be spread upon the Minutes
of the City Council.
READ, ADOPTED AND APPROVED this day of May,
A.D., 2002 at a Regular Meeting of the City Council of the C'~y of Port Arthur, Texas by
the following vote: AYES: MAYOR.
COUNCILMEMBERS
NOES:
MAYOR
APPROVED FOR AVAILABILITY OF FUNDS:
SECRETARY
DIRECTOR OF FINANCE
APPROVED FORFORM:
APPROVED FOR ADMINISTRATION:
CITY MANAGER
DALE WATSON, DEPARTMENT DZRECTOR
Attachment "A"
NOTICE: THIS CONTRACT CONTAINS INDEMNITY, WAIVER OF I./ABILITYr AND EXCULPATION CLAUSES
IN ARTICLE 8 OF THIS CONTRACT BEGINNING ON PAGE 4 OF THIS CONTRACT WHICH SHIFT THE
BURDEN OF CERTAIN lIABILITIES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECIJ'I'ING THIS DOCUMENT. COI~I~ACTOR AND ALL OTHER EXECIJ'rlNG THIS DOCUMENT
SHOULD EXAMINE SUCH INDEMNlq'Y, WAIVER OF LTAB~LI'~, AND EXCULPATION CLAUSES CAREFULLY
AND CONSULT AN ATTORNEY OF THETR OWN CHOOSING WITH REGARD TO THE EFFECT OF SUCH
THE STATE (~ TEXAS ·
·
This Construddon Conba~ (the "Contract") is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the ~Owne~' whether one or more), and Trianele Tree Sen, ice ~Contrac~r~).
Art. 1 - Redtals
1.01 Owner is the owner of fee simple title to the following described real property and all improvements now
or hereafter constructed thereon to perform site preparation (the "Property") located at:
Site PreoaraUon to include removal of trees, slabs, sidewalks, steos & debris, stumo arindine and/or removal as
soecifled at the followlne locations: 635 17~ Street
in the City of Port Arthur . ,leffe~son County, Texas:
That c~'tain real property mom fully described in Exhibit"A," attached hereto and made a part hereof by this
refi~ren~e,
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being (:x:mstnJCJ~ on the Property by Owner (the "Project"), as more fully described in Exhibit
attached hereto and made a part thereof by this reference, heminaRer called the ~work," in accordanco with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the ~Bid." The term Bid includes all plans and spedficatio~ for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis.
1.03 Owner and Contractor now desire and Intend to set forth In writing their respective agreements and
understandings with respect to the construction and completion of the improvements which are part of the Work.
Aj't. 2 - Plan and Soectfications
2.01 For the consideraUon paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees to furnish all materials, equipment and labor necessary to construct and complete the Work substanUally in
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinafter expressly provided.
2.02 [t is agreed and stipulated that no changes, additions, deletions, or other modificaUons in or to the scope
of the Work shall be mede except upon written "change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described In the Bid and the original plans and spedficaUons
referred to in paragraph 1.01 above, and all changes, addlUons, deletions or other modificaUons made therein or
thereto in accordance with the provisions of this paragraph.
Art, 3 - Duties of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall constitute a waiver of this indemnity, and if
any such lien or claim for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art. 4 - Fixed Contract Pdce and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewith the
sum of Three Thousand One Hundred and no/100 ...... Dollars (~;3.100.003. hereinafter called the
~Contract Price."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after the commencement of the Work by Contractor and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are Umely submitted by 3:00 p.m. on the next
succeeding Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price affcer the foregoing progress
payments have been paid ,within five (5) business days after the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any addirJonal sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the "Retainage'~. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed tO complete the Work. Owner shall have the
right to withhold from payment to Contractor the Retainage and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and material used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid in full, Owner may release the Retainage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4.04 The price for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cest for such extra work plus fifteen percent (15%) of such cost, unless a written agreement
setting out a difference price for such extra work is signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at the same Ume as payment of the balance of the Contract Price less Retalnage under
paragraph 4.02 above.
Art. 5 - Subcontracts
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors Is not required, Contractor agrees that it will not employ or enter into a major subcontract
with any subcontractor to whom Owner may reasonably object.
Art. 6 - -time for Commencement and Comoletion
6.01 The Work to be performed by Contractor under this Contract shall be commenced within five (5) days
from the later of (1) the date of written notice by owner to Contractor to commence the work (the ~Effective Date") or
(11) the date that the construction of the Project is suffidentiy complete for Contractor to commence the Work and
shall be completed within h~/fa days after such date of commencement; subject, however, In each instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
circumstances, the total time elapsing between the date of this Contract and the completion of the Improvements.
Art. 7 - Substantial Comoletion
7.01 When used herein, the terms "completion," "final completion" or "substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially in accordance with the
Bid.
Ar~, 8 - Contractor's Indemnity and Exculnation
8.01 ]NDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE "INDEMNtl EES") FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, AND EXPENSES, INCLUDING
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR EN ~ .[ I Y, INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY INJURY TO OR ILLNESS OF' ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM INJURY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PAR'O, (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLECT'IVELY THE "LIABILITiES'~. THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO LIABILTTIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE JOINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMN~I EES AND ANY OTHER PERSON OR ENI ~ I ¥,
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
1TS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL C05-1' AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, ATTHE RAI~E OF
INTEREST PROVIDED TO BE PAID ON JUDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMiTED TO .DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENEt'I ~ S ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH g.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WiTH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY INIURY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INV,) roES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUsi ~D TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR IN3URY TO, ILLNESS OF, OR ARISE OUT OF THE 30INT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNI ( I roES OR THE CONDiTiON OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNI-I'EES. IN NO EVENT SHALL ANY OF THE INDEMNI)EES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILTTY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAIM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE 301NT, CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMNITEES.
8.03 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.01 above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation dause are hereinafter collectively referred to as the "indemnification obligation'% 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 provisions Into conformity with the requirements of such limitations, and as so
modified, the indemnification obligation shall continue in full force and effect.
Art. 9 - Insurance
9.01 Contractor shall during the entire term of this Contract at its expense maintain through an Insurance
company or companies authorized to do business in the State of Texas and reasonably acceptable to Owner general
commerdal liability insurance with minimum limits of $100,000 combined single limits per occurrence for bodily Injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional insureds, shall contain a waiver of subrogation in favor of the Owner, and shall be endorsed
to provide that ail such insurance coverage is primary insurance as regarding any other insurance carried by the
Indemnities. The general commercial liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability specifically in
support of, but not limited to, the indemnity provisions of Article 8 above, broad form property damage, personal
Injury liability, products liability coveragel and delete exclusions relaUve to co[lapse, explosion, and underground
property damage hazards. Said commercial general liability insurance shall be In such form as to provide coverage for
all acts or omissions for bodily Injury, sickness, or disease sustained by any person, Including death at any time
resulting there from, any property damage claims occurring during the terms of such polities regardless of when any
liability or claims arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all insurance polldes providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. In addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance specifying that the insurance coverage
required by this Article 9 is in full force and effect from each insurer or agent of such Insurer providing insurance
coverage hereunder and that no such polio/of insurance shall be modified or canceled without at least twenty
days prior written notice to owner and the notice of non-renewal of any days pdor to termination of such insurance
polio/. The Contractor shall from time to time hereafter provide certificates of insurance to Contractor so that at a~l
times during the term of this Agreement, the Owner shall have In it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Artide are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not fumish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Coi,bc,ctor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contr-dcl~r agrees to repair any defects in material and/or workmanship In the Work for one (1) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Pri~e. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
~ 11 - Default
11.01 If Contractor is in default under this Contract and falls to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy ~ reasonable diligence until such default has been
cured, Owner may terminate this Cof, bact by wdtten notice to Contractor and take possession of the Work and all
materials tx) be incorporated therein to finish the Work. In case of such termination of the C~,Eoct by Owner, the
Cc~,bactor shall not be entitied to receive any further payments under this Cc.-,bc~c until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Co~bc~t Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Col{l~act.
If the cost of completing the Work is greater than the unpaid balance of the Contract Prioe, the Contractor shall pay
the difference to the Owner on demand.
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications conceming this Contract shall be of no foroe and effect, excepting.a subsequent modification in writing,
signed by the parties hereto.
12.02 This Contact shall bind and Inure to the benefit of the parties hereto, their respecUve successors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the prior written
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of whether or not
received, on the third day alter having been deposited in the United States certified mail, return receipt requested,
postege prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be indicated by written notice delivered In accordance with the terms hereof to the other party:
IF TO OWNER:
The OW of Port Arthur
~,!I 4~ Street
Port Arthur, TX 77640
A~'t N: Dale Watson or Beverly A. Freeman
'IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed In accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender Includes all genders, and the
use of the singular includes the plural, and the plural the singular.
12.06 If any term, condition or provision of the Contract is declared illegal or Invalid for any reason by a court
of competent Jurisdiction, the remaining terms, conditions, and provisions of this Contract shall, nevertheless, remain
in full force and effect.
12.07 All payments due hereunder to Contractor shall be payable In 3efferson County, Texas.
12,08 It is expressly agreed that this Contract may be signed in counterparts and It shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party heretu sign at least one (1)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
. Contract. The signature of any party on a counterpart of this Contract transmitted by telefacsimile shall be as valid
and binding on such party as an odginal signature.
WITNESS WHEREOF, Owner and Contractor have executed this Contract on this the __
, ~Oo~.
day of
OWNER:
The City of Port Arthur
Stephen Rtzgibbons,
City Manager
CONTRACTOR:
EXHI~BZ'r
S~rTE PREPARA'i'~ON AS SPECTF]:ED AT:
635 17TM STREET --- $3,100
EXHXBXT
Describe Work to be performed under Contract:.
Perform site preparation to include removal of trees, slabs, sidewalks, steos &
debris, stump qrindinq and/or removal as specified in the bid documents.
SZGNED:
Attachment "B"
NOT/CE: THZS CONTRACT CONTAINS ~NDEMN1TY, WA'rVER OF L/AB~LTI'Yt AND EXCULPATION CLAUSES
'tN ART/CLE 8 OF TH~S CONTRACT BEG1*NN1;NG ON PAGE 4 OF TH~S CONTRACT WH'rCH SHt'FT THE
BURDEN OF CERTA'rN LTAB'rLTI/ES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTZNG THZS DOCUMENT. CONTRACTOR AND ALL OTHER EXECU'I/NG TH'rS DOCUMENT
SHOULD EXAM'rNE SUCH t'NDEMN'rTY, WAI'VER OF I...TAB'rL/TY~ AND EXCULPAT/ON CLAUSES CAREFULLY
AND CONSULT AN ATTORNEY OF THE'rR OWN CHOOSt'NG WI'TH REGARD TO THE EFFECT OF SUCH
CLAUSES.
THE STATE OF TEXAS ·
·
COUNTY OF 3t~f r. t4,SON ·
This Construction Contract (the "Contract~) is made and entered Into on the date hereina~cer stated by and
between the City of Port Arthur (the ~Owner~ whether one or more), and Triallale Tree Service ~Contractor~.
Art. ! - Redtals
1.0! Owner is the owner of fee simple title to the follmvlng described real property and all Improvements now
or hereafter constructed thereon to perform site preparation (the "Property'~ located at:
Site Preparation to include removal of trees, slabs, sidewalks, steos & debris, stumo arindina and/or removal as
specified at the followJnq locations: 74~ 17th Street:
in the City of Port Arthur . Jefferson County, Texas:
That certain real property more fully described in Exhibit "A,' attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as pert of a single
family resident being constructed on the Property by Owner (the "Project"), as more fully described in Exhibit "B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the "Bid." The term Bid indudes all plans and spedficaUons for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property In accordance with the Bid on
a fixed cost basis.
1.03 Owner and Contractor now desire and Intend to set forth In writing their respective agreements and
understandings with respect to the construction and completion of the Improvements which are part of the Work.
Art, 2 - Plan and SDedficaflons
2.01 For the consideration paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees .to furnish all materials, equipment and labor necessary to construct and complete the Work substantially In
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinafter expressly provided.
2.02 It is agreed and stipulated that no changes, additions, deletions, or other medificaUons in or to the scope
of the Work shall be made except upon written "change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to indude the Work as described in the Bid and the original plans and spedflcations
referred to in paragraph 1.01 above, and all changes, additions, deleUons or other modificaUons made therein or
thereto In accordance with the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
Independent contractor and not as the agent or employee of the Ownar.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 SubJect to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall constitute a waiver of this indemnity, and if
any such lien or dalm for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art, 4 - Fixed Contract Price and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewith the
sum of One Thousand Seven Hundred Forb/and no/lO0 ......... Dollars ($1,740.00~, hereinafter called the
"Contract Price."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after the commencement of the Work by Contracto~ and every Tuesday there.after, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price alter the foregoing progress
payments have been paid within five (5) business days after the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any additional sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Conb'actor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the "Retainage'3. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
dght to withhold from payment to Contractor the Retainage and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, If requested by Owner, furnish an affidavit
that all bills for labor and material used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid In full, Owner may release the Retainage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
'~.04 The price for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen percent (15%) of such cost, unless a written agreement
setting out a difference price for such extra work ls signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at tf~ same time as payment of the balance of the Contract Pdce less Retainage under
paragraph 4.02 above.
Art. 5 - Subcontracls
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that it will not employ or enter into a major subcontract
with any subcontractor to whom Owner may reasonably object.
Art. 6 - llrn~ I~or Commencement and Comoletion
6.0]. The Work to be performed by Contractor under this Contract shall be commenced within five (5) days
from the later of (1) the date of written notice by owner to Contractor to commerme the work (the "Effective Date") or
(11) the date that the construction of the ProJect is suffidentiy complete for Contractor to commence the Work and
shall be completed within ~ IR days after such date of commencement; subject, however, in each instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstances, the total time elapsing between the date of this Contract and the completion of the Improvements.
Art. 7 - Substantial Comoletion
7.01 When used herein, the terms "completion," "final completion" or ~substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially in accordance with the
Bid.
Art. 8 - Contractor's Indemnity and Exculnation
8.01 ]INDEMNIFICATION. TO THE FULLEST EXTENT PERMt I I ~D MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE ~INDEMNITEES'') FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, .1UDGMENTS, AND EXPENSES, INCLUDING
AI-['ORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTIONOF ANY PERSON OR ENII~ Y, INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY INJURY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM IN3URY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLEt;ItVELY THE ~LT~,BILITIES'~. THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNi-I'Y AGREEMENT
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE 3OINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNt I t-ES AND ANY OTHER PERSON OR ENI l ! Y,
EXCEPT ONLY TO THE EXTE. NT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION HAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNirI'EES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF TIS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR '[O FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING coNTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVERNT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, AT THE RATE OF
INTEREST PROVIDED TO BE PAID ON 3UDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENErz~ S PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENErl ~ S ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY IN.1URY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR IN]URY TO, ILLNESS OF, OR ARISE OUT OF THE JOINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNI II'EES OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNI I EES. IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERNS OF THIS WAIVER OF L/ABILiTY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAIM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE JOINT, CONCURRENT, OR CON'i3~BUTORY NEGItGENCE OF THE ONE OR MORE OF THE
INDEMNITEES.
8.03 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.0:[ above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation clause are herelna?er collectively referred to as the "indemnification obligation"), such leg.al 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 provisions Into conformity with the requirements of such limitations, and as so
modified, the indemnification obligation shall continue In full force and effect.
Art. 9 - Insurance
9.0:1. Contractor shall during the enldre term of this Contract at its expense maintain through an insurance
company or companies authorized to do business tn the State of Texas and reasonably acceptable to Owner general
commerdal liability Insurance with minimum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, induding death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
~[ndemnities as additional insureds, shall contain a waiver of subrogation In favor of the Owner, and shall be endorsed
to provide that all such insurance coverage Is primary Insurance as regarding any other insurance carried by the
Indemnities. The general commerdal liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability specifically in
support of, but not limited to, the indemnity provisions of Artide 8 above, bread form property damage, personal
injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commerdal general liability insurance shall be In such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustained by any person, Including death at any time
resulting there from, any property damage dalms occurring during the terms of such policies regardless of when any
liability or claims arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all Insurance policies providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. Zn addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance specifying that the insurance coverage
required by this Article 9 is in full force and effect from each insurer or agent of such insurer providing insurance
coverage hereunder and that no such policy of Insurance shall he modified or canceled without at least twenty (20)
days prior written notice to owner and the notice of non-renewal of any days prior to termination of such Insurance
policy. The Contractor shall from time to time hereafter provide certificates of Insurance to Contractor so that at all
times dudng the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art, 10 - Warran~
10.01 Contractor agrees to repair any defects in material and/or workmanship in the Work for one (1) year
arcer the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Price. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 Tf Contractor is in default under this Contract and falls to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Price, the Contractor shall pay
the difference to the Owner on demand.
- I
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications concerning this Contract shall be of no force and effect, excepting.a subsequent modification in writing,
signed by the parties hereto.
12.02 This Contract shall bind and inure to the benefit of the parties hereto, their respective succ~s-,ors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the pdor written
consent of Owner.
t2.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of whether or not
received, on the third day alter having been deposited In the United States certified mall, return receipt requested,
postage prepaid, addressed to the respeddve parties at the addresses indicated below, or to such other address as
may hereafter be indicated by written notice delivered in accordance with the terms hereof to the other party:
IF TO OWNER:
The CiLy of Port Arthur
~.~. ,~m Stme~
Port: Arthur, TX 77640
A'I-rN: Dale Watson or Beverly A. Freeman
IF TO CONll~J~C'rOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed in accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender Includes all genders, and the
use of the singular indudes the plural, and the plural the singular.
12.06 If any term, condlUon or provision of the Contract is dedared Illegal or invalid for any reason by a court
of competent jurisdiction, the remaining terms, condlUons, and provisions of this Conbact shall, nevertheless, remain
In full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in 3efferson County, Texas.
12.08 It is expressly agreed that this Contract may be signed in counterparts and it shall not be necessary that
each party hereto sign the same ceunterpart of this Contract, only that each party hereto sign at least one (1)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract transmitted by telefacsimile shall he as valid
. and binding on such party as an original signature.
IN WlT ESS WHEREOF, Owner and Contractor have executed this Contract on this the
, 2002.
__ day of
OWNER:
The City of Port Arthur
Stephen Rtzglbbons,
City Manager
CONTRACTOR:
EXHTBZT '~A"
SZTE PREPARATZON AS SPECZFZED AT:
748 17TM STREET --- $1,740
EXHTB~'I' '~B"
Describe Work to be performed under Contract:
Perform site preParation to include removal of trees, slabs, sidewalks, steps &
debris, stump qrindinq and/or removal as specified in the bid .documents.
STGNED:
Attachment
NOTZCE: THZS CONTRACt' CONTAZNS ZNDEMNTrY, WAZVER OF LZABZLZTY, AND EXCULPATZON CLAUSES
1~N ARTZCLE 8 OF THZS CONTRACT BEGZNNZNG ON PAGE 4 OF THXS CONTRACT WHZCH SHZFT THE
BURDEN OF CERTAZN LTAB![L_TTZES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTZNG THZS DOCUMENT. CONTRACTOR AND ALL OTHER EXECUTZNG THZS DOCUMENT
SHOULD EXAMZNE SUCH ZNDEMNTrY, WAZVER OF LZABt'LTrY, AND EXCULPATZON CLAUSES CAREFULLY
AND CONSULT AN ATTORNEY OF THEIR OWN CHOOSXNG WTrH REGARD TO THE EFFECT OF 'SUCH
CLAUSES.
THE STATE OF TEXAS ·
·
COUNTY OF 3EFFERSON ·
This Construction Contract (the "Contract") is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the "Owner" whether one or more), and Trlanele Tree Service 'Contractor").
A~. :[ - Recitals
1.0! Owner is the owner of fee simple title to the following described reel property and all Improvements now
or hereaEer constructed thereon to perform site preparation (the ~Property") located at:
Site Preoaration to indude removal of trees, slabs, sidewalks, steDs & debris, stumo arindinq_ and/or removal as
spedfied at the followinq locations: 3~t42 & 3148 18~ Street
in the City of Port Arthur .]efferson County, Texas:
That certain real property more fully described in Exhibit "A," attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
~mily resident being constructed on the Property by Owner (the ~Project'% as more fully described in Exhibit ~B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," In accordance with the
written bid for the work submitted by Co,b~tor to Owner, as modified by the terms and provisions of this Contract,
hereinaEer called the "Bid." The term Bid includes all plans and spedficatJons for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis,
1.03 Owner and Contractor now desire and intend to set forth in writing their respective agreements and
understandings with respect to the construction and completion of the improvements which are pert of the Work.
Art. 2 - Plan and S~fications
2.0/. For the conside, ration paid or to be paid by Owner to Contractor pursuant to his con. tract, Contractor
agrees to furnish all materials, equipment and labor necessary to construct and complete the Work substantially in
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinafter expressly pmvlded.
2.02 [t is agreed and stipulated that no changes, additions, deletions, or other modifications In or to the scope
of the Work shall be made except upon written "change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described in the Bid and the original plans and spedfications
referred to in paragraph 1.01 above, and all changes, additions, deletions or other modifications made therein or
thereto in accordance with the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance i~s own operations hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other govemmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's peyment of all sums required to be peid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or daims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final peyment by the Owner, nor acceptance of the Work hereunder shall constitute a waiver of this indemnity, and if
any such lien or claim for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art, 4 - Rxed Contract Pflce and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewith the
sum of Thr~ Thousand Five Hundred Seventy Five and no/100 ......... Dollars ($3.575.00~. hereinafter
called the "Contract Price.'
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after ~e commencement of the Work by Contractor and every Tuesday there,, fter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price after the foregoing progress
payments have been paid within five (5) business days after the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any additional sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is propafly completed, less any agreed upon reteinage applicable thereto, (the 'Retainage'3. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
right to withhold from payment to Contractor the Retainage and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and mateflal used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid in full, Owner may release the Retainage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear Interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4.04 The pdce for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen percent (15%) of such cost, unless a written agreement
setting out a difference price for such extra work is signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at the same time as payment of the balance of the Conbact Price less Retalnage under
paragraph 4.02 above.
Art. 5 - Subcontracts
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontra .cts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use In the performance of the Work. While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that it will not employ or enter into a major subcontract
with any subcontractor to whom Owner may reasonably object.
Art, 6 -Time for Commencement and ComDletlon
6.01 The Work to be performed by Contractor under this Contract shall be commenced within five (5) days
from tl~ later of (1) the date of written notice by owner to Contractor to commence the work (the "Effective Date") or
(:[1) the date that the construction of the Project is suffidentiy complete for Contractor to commence the Work and
shall be completed within /~ IR days after such date of commencement; subject, however, in each instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and Judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstances, the total time elapsing between the date of this Contract and the completion of the [mprovement~.
Art. 7 - Substantial Comoletion
7.01 When used herein, the terms ~complefion,""final completion" or'substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially in accordance with the
Bid.
Art. 8 - Contractor's IndemniW and Exculeation
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE 'INDEMNITEES'~ FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, 3UDGMENTS, AND EXPENSES, INCLUDING
A1-FORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR EN ) z ) Y', INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY IN]URY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM IN]URY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COl I FCTIVELY THE "LIABILITIES~). THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNTI~f AGREEMENT
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE ]OINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES AND ANY OTHER PERSON OR ENI l I ¥,
EXCEPT ONLY TO THE EXTE.NT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVES'rIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY~ AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WiTH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHAll HAVE THE
RIGHT, AT ITS OFTION~ TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR Ti3 FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER~ TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, AT THE RATE OF
INTEREST PROVIDED TO BE PAID ON JUDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENEI'tlS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENE~S ACTS.
8.02 NONE OF THE INDEMN1TEES SHAll BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY INJURY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERI~f IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND All OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR IN]URY TO, ILLNESS OF, OR ARISE OUT OF THE JOINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNI ~ I ELS OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNITEES. IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAIM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE _IOIN'I', CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMNITEES.
8.03 It is agreed with respect to any legal limitations now or hereafter in effect and affectJng the validity or
enforceability of the indemnification obligation contained In paragraph 8.01 above and waiver of liability and
exculpation dause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation dause are hereinafter collectively referred to as the'indemnification obligation"), such leg.al limitations are
mede a part of the indemnification obligation and shall operate to amend the indemnification obligation to the
minimum extent necessary to bring the provisions Into conformity with the requirements of such limitations, and as so
modified, the indemnification obligation shall continue In full force and effect.
Art. 9 - Insurance
9.01 Contractor shall during the entire term of this Contract at Jts expense maintain through an insurance
company or companies authorized to do business in the State of Texas and reasonably acceptable to Owner general
commercial liability Insurance with mlnlmum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional Insurers, shall contain a waiver of subrogation In favor of the Owner, and shall be endorsed
to provide that all such insurance coverage is primary Insurance as regarding any other insurance carried by the
Indemnities. The general commercial liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spedflcelly in
support of, but not limited to, the indemnity provisions of Article 8 above, broad form property damege, personal
Injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commerdal general liability Insurance shall be in such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustained by any person, including death at any time
resulting there from~ any property damage claims occurring during the terms of such polities regardless of when any
liability or daims adsing there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all Insurance polities providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contrac~r. ~n addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of Insurance spedfying that the insurance coverage
required by this Article 9 Is in full force and effect from each insurer or agent of such Insurer providing insurance
coverage hereunder and that no such policy of insurance shall be modified or canceled without at least twenty (20)
days prior written notice to owner and the notice of non-renewal of any days prior to termination of such insurance
policy. The Contractor shall from time to time hereafter provide certificates of Insurance to Contractor so that at all
times dudng the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 Jif, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contractor agrees to repair any defects in matedal and/or workmanship in the Work for one (1) year
alter the completion of the Work. The provisions of the paragraph shall survive oompletion of the Work and payment
of the Contract Price. if any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 If Contractor is in default under this Contract and fails to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Price, the Contractor shall pay
the difference to the Owner on demand.
- i II
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications conceming this Contract shall be of no force and effect, excepUng.a subsequent modification in writing,
signed by the parties hereto.
12.02 This Contract shall bind and Inure to the benefit of the parUes hereto, their respective sL__~o~__sors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the prior wdtten
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actual[)/received or, regardless of whether or not
received, on the third day after having been deposited in the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be Indicated by written notice delivered In accordance with the terms hereof to the other party:
IF TO OWNER:
The Ob/of Port Arthur
~,~,1 4u~ Street
Port Arthur, TX 77640
A'I-FN: Dale Watson or Beverly A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed in accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender includes all genders, and the
use of the singular Includes the plural, and the plural the singular.
12.06 If any term, condition or provision of the Contract Is declared illegal or invalid for any reason by a court
of competent Jurisdiction, the remaining terms, conditions, and provisions of this Contract shall, nevertheless, remain
in full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in .lefferson County, Texas.
12.08 It is expressly agreed that this Contract may be signed in counterparts and it shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one (1)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract transmitted by telefacsimlle shall be as valid
and binding on such party as an original signature.
[N WTI'NESS WHEREOF, Owner and Contractor have executed this Contract on this the __
, 2002.
day of
OWNER:
The Oty of Port Arthur
Stephen Fitzgibbons,
City Manager
CONTRACTOR:
~(HZBFF ~A~
STTE PREPARATZON AS SPEC~FZED AT:
3142 & 3148 18~ STREET --- $3~575
EXHXBXT
Describe Work to be performed under Contract:
Perform site preparation to include removal of trees, .slabs, sidewalks, steps &
debris, stump qrindinq and/or removal as specified in the bid documents.
SXGNED:
Attachment
NOT~CE: TH~.S CONTRACT CONTA][NS ZNDEMNTrY, WAt'VER OF LtABZI.TI'Y, AND EXCULPA'rZON CLAUSES
XN AR'rZCLE 8 OF THZS CONTRACT BEGXNNTNG ON PAGE 4 OF THTS CONTRACT WHTCH SHTFT THE
BURDEN OF CERTAZN I.tABTL.tTZES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTZNG THZS DOCUMENT. CONTRACTOR AND ALL OTHER EXECU'I'ZNG THZS DOCUMENT
SHOULD EXAMt'NE SUCH t'NDEMNZTY, WAZVER OF I.~,ABZl...t'TY, AND EXCULPAT][ON CLAUSES CAREFULLY
AND CONSULT AN ATTORNEY OF THETR OWN CHOOSI'NG WTrH REGARD TO THE EFFECT OF SUCH
CLAUSES.
THE STATE OF TEXAS ·
COUNTY OF JEFFERSON. ·
This Construction Contract (the "Contract~ is made and entered into on the date hereinafter stated by and
between the Qb/of Port Arthur (the ~Owner" whether one or more), and Tfianele Tree Service ~Contractor~.
Art. 1 - Recitals
1.01 Owner is the owner of fee simple title to the following described real property and all improvements now
or hereafter constructed thereon to perform site preparation (the 'Property") located at:
Site Prenaration to indude removal of trees, slabs, sidewalks, steos & debris, stump arindine and/or removal as
spedfled at; the followinq locations: 3017 34~h Street
in the City of Port Arthur , .lefferson County, Texas:
That certain real property more fully described in Exhibit ~A," attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being constructed on the Property by Owner (the ~Pmject"), as more fully described in Exhibit ~B,"
attached hereto and made a part thereof by this reference, hereinafter called the ~work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and previsions of this Contract,
hereinafter called the "Bid." The term Bid indudes all plans and spedfications for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the property In accordance with the Bid on
a fixed cost basis,
1.03 Owner and Contractor now desire and intend to set forth in writing their respective agreements and
understandings with respect to the construction and completion of the Improvements which are part of the Work.
Art. 2 - Plan and Soedficafions
2.01 For the consideration paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees to furnish all materials, equipment and labor necessary to cortstruct and complete the Work substantially In
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereina~er expressly provided.
2.02 [t is agreed and stipulated that no changes, additions, deletions, or other medlficafions in or to the scope
of the Work shall be made except upon written "change order" signed by Owner and Contractor. All references herein
.to the Work shall be deemed to Indude the Work as described in the BO and the original plans and specifications
referred to In paragraph 1.01 above, and all changes, addiUons, deletions or other modifications made therein or
thereto in accordance with the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to he paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall constitute a waiver of this indemnity, and if
any such lien or claim for lien shall at any time he filed, the Contractor shall'either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art. 4 - Fixed Contract Price and Pavmenl~
4.01 The Owner agrees to pay the Contractor for the Work on a fixed pdce basis in accordance herewlth the
sum of Four Thousand Seven Hundred and Po/;[00 ......... Dollars (~4:~00.003. hereinafter called the
~Contract Price."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after the commencement of the Work by Contractor and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price after the foregoing progress
payments have been paid within five (5) buslness days after the later of the applicaUon by Contractor for final
payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any a~tdiUonal sum due Contractor for extra or
addlUonal work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written applicaUon for payment as long
as the Work Is properly complet~-~l, less any agreed upon retelnage applicable thereto, (the "Retainage'g. Owner shall
have the right to inspect the Work after receipt of Contractor's applicaUon for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
right to withhold from payment to Contractor the Retainage and such addiUonal sums as the owner shall determine In
the reasonable Judgment of Owner is needed to complete the Items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and matedal used in the Work have been paid. The Retalnage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiraUon of thirty-one (31) days from the compleUon of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for Incorporation into the Work have been paid in full, owner may release the Retainege to
Contractor prior to the explraUon of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), If net paid by the date such payment is due, shall bear interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4.04 The price for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen pea;cent (15%) of such cost, unless a written agreement
setting out a difference price for such extra work is signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work~ payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at the same time as payment of the balance of the Contract Price less Retalnage under
paragraph 4.02 above.
Art, 5 - Subcontracts
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that it will not employ or enter into a major subcontract
with any subcontractor to whom Owner may reasonably object.
Art;. ~ -Tlme for Commencement and Completion
6.01 The Work to be performed by Contractor under this Contract shall he commenced within five (5) days
from the later of (1) the date of written notice by owner to Contractor to commence the work (the "Effective Date'3 or
(11) the date that the construction of the Project is suffidentiy complete for Contractor to commence the Work and
shall be completed within days after such date of commencement; subject, however, in each instance to
delays occasioned by strike, labor dispute, Lmfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and Judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstances, the tot31 time elapsing between the date of this Contract and the completion of the Improvements.
Art. 7 - Substantial Comoletion
7.01 When used herein, the terms ~completion," ~final completion" or'substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially In accordance with the
Bid.
Art, 8 - Contractor's Indemnlb/and Exculpation
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERM! ~ I ~D M~ APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT~ DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE "INDEMN1TEES'~ FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, ]UDGMENTS, AND EXPENSES, INCLUDING
AI-TORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR EN ~ t I Y, INCLUDING, WITHOUT
LIMiTATiON, THOSE FOR ANY BODILY IN3URY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM INJURY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COl !:FCTiVELY THE 'LIABILITIES'~. THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE ]OINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES AND ANY OTHER PERSON OR EN ~ l ~ ~',
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATiON AS TO WHICH THIS
INDEMNIFICATiON MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WiTH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF iTS OWN SELECTION AND AT
1TS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR T(~ FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATiON PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, ATTHE RATE OF
INTEREST PROVIDED TO BE PAID ON JUDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENErII$ PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENErIi5 ACTS, OR OTHER EMPLOYEES'
BENEFITS ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY IN3URY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVi ~ roES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR INJURY TO, ILLNESS OF, OR ARISE OUT OF THE JOINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMN1TTEES OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMN1TEES. IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR~ CONTRACTOR'S AGENTS, EMPLOYEES~ SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WOP, KZNG AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAtM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE .1OINT, CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMNITEES.
8.03 It is agreed with respect to any legal limitations now or hereafter In effect and affecting the validity or
enforceability of the indemnification obligation centained in paragraph 8.0l above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation clause are hereinafter collectively referred to as the'indemnification obligation"), 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 bdng the provisions into conformity with the requirements of such limitations, and as so
modified, the indemnification obligation shall continue In full force and effect.
^rt. 9 - Insurance
9.0[ Contractor shall during the entire term of this Contract at il~ expense maintain through an insurance
company or companies authorized to do business In the State of Texas and reasonably acceptable to Owner general
commercial liability insurance with minimum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional lesureds, shall contain a waiver of subrogation in favor of the Owner, and shall be endorsed
to provide that all such insurance coverage Is primary insurance as regarding any other insurance carded by the
Indemnities. The general commerda[ liability ceverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spedflcally in
support of, but not limited to, the indemnity provisions of Article 8 above, broad form property damage, personal
Injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commercial general liability insurance shall be in such form as to provide coverage for
all ads or omissions for bodily injury, sickness, or disease sustained by any person, indudlng death at any time
resulting there from, any property damage daims occurring dudng the terms of such polides regardless of when any
liability or dalms adslng there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all Insurance policies providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. In addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance spedfylng that the insurance coverage
required by this Artide 9 is in full force and effect from each Insurer or agent of such Insurer providing Insurance
coverage hereunder and that no such policy of insurance shall be modified or canceled without at least twenty (20)
days pdor written notice to owner and the notice of non-renewal of any days prior to termination of such insurance
policy. The Contractor shall from time to time hereafter provide certificates of insurance to Contractor so that at all
times during the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contractor agrees to repair any defects in material and/or workmanship in the Work for one (1) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Price. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 Zf Contractor is in default under this Contract and fails to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expanse incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Price, the Contractor shall pay
the difference to the Owner on demand.
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications concerning thls Contract shall be of no force and effect, exceptlng.a subsequent modification in wdtlng,
signed by the par'des hereto.
12.02 This Contract shall bind and inure to the benefit of the parties hereto, their respective suocessors and
assigns except as otherwise expressly limited hereon. Co,b~'tor may not assign bhis Contact without the pdor written
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of whether or not
received, on the third day after having been deposited in the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be indicated by written notice delivered In acoordance with the terms hereof to the other party:
IF TO OWNER:
The City of Port Arthur
~,~,~, 4m Street
Port Arthur, TX 77640
ATTN: Dale Watson or Bevedy A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed in accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender Indudes all genders, and the
use of the singular lndudes the plural, and the plural the singular.
12.06 If any term, condition or provision of the Contract Is declared illegal or Invalid for any reason by a court
of competent jurisdiction, the remaining terms, condiUons, and provisions of this Contract shall, nevertheless, remain
in full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in 3effemon County, Texas.
12.08 It is expressly agreed that this Contract may be signed In counterparts and it shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one (~.)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract b3nsmltted by telefacsimlle shall be as valid
and binding on such party as an odglnal signature.
IN W1TNESS WHEREOF, Owner and Contractor have executed this Contract on this the __
, 2002.
day of
OWNER:
The Clty of Port Arthur
Stephen Rtzglbbons,
City Manager
CONTRACTOR:
EXH]~BTf
SZTE PREPARA'rZON AS SPECZFZED AT:
3017 34TM STREET --- $4,700
EXHIBI'T 'B'
Describe Work to be perfornted under Contract:
Perform site preparation to include removal of trees, .slabs, sidewalks, steps 8.
debris, stump grindinq and/or removal as specified in the bid .documents.
SIGNED:
Attachment "E'
NOTICE: THTS CONTRACT CONTAINS INDEMNTrY~ WAIVER OF LTABILTTYf AND EXCULPATLON CLAUSES
IN ARTICLE 8 OF THTS CONTRACT BEGTNNING ON PAGE 4 OF THIS CONTRACT WHTCN SHIFT THE
BURDEN OF CERTATN LIABILII'[ES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTING THTS DOCUMENT. CONTRACTOR AND ALL OTHER EXECUTING THIS DOCUMENT
SHOULD EXAMINE SUCH ZNDEMNITY~ WAIVER OF LIABILITY~ AND EXCULPATZON CLAUSES CAREFULLY
AND CONSULT AN ATTORNEY OF THETR OWN CHOOS1~NG WTTH REGARD TO THE EFFECT OF SUCH
CLAUSES.
TH E STATE OF TEXAS ·
·
COUNTY OF 3EFFERSON ·
CONSTRUCTZON CONTRACT
This Construction Contract (the "Contract'~ is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the "Owner" whether one or more), and Triangle Tree Service "Contractor'S.
Art. 1 - Recitals
1.01 Owner is the owner of fee simple title to the following described real property and all improvements now
or hereafter constructed thereon to perform site preparation (the "Property'~ located at:
Site Preparation to include removal of trees, slabs, sidewalks, steos & debris, stumo arindin(] and/or removal as
specified at the followinq locations: 3827, 3837 & 3847 31st Street
in the City of Port Arthur , Jefferson County, Texas:
That certain real property more fully described in Exhibit "A,' attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being constructed on the Property by Owner (the "Project"), as more fully described in Exhibit "B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the "Bid." The term Bid includes all plans and specifications for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis.
:1..03 Owner and Contractor now desire and intend to set forth in writing their respective agreements and
understandings with respect to the construction and compleUon of the Improvements which are part of the Work.
^fl;. ;{ - plan and Soedflcatlons
2.01 For the consideration paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees to fumlsh all materials, equipment and labor necessary to construct and complete the Work substantially in
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinafter expressly provided.
2.02 It is agreed and stipulated that no changes, additions, deletions, or other modifications in or to the scope
of the Work shall be mede except upon written "change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described in the Bid and the original plans and spedflcatlons
referred to in paragraph 1.01 above, and all changes, additions, deletions or other modifications made therein or
thereto in accordance with the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
Independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or dalms of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shali constitute a waiver of thls indemnlW, and if
any such lien or dalm for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art. 4 - Fixed Contract PriCe and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewith the
sum of Four Thousand Three Hundred Seventy Rye and no/100, i , Dollars (~4.375.00). hereinafter
called the "Contract Price."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after the commencement of the Work by Contractor and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Fdday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price after the foregoing progress
payments have been paid within five (5) business days after the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall subn~it to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any addildonal sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not thereetofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the ~Reteinage'O. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Pdce and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
right to withhold from payment to Contractor the Retainege and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the Items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and material used in the Work have been paid. The Retelnage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid in full, Owner may release the Retainage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4.04 The pdce for any extra work authorized by Owner and Contractor pursuant to a wdtten change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen p~rcent (15%) of such cost, unless a wdtten agreement
setting out a difference price for such extra work is signed by Owner and Contractor, In which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable pementage of any Retalnage
applicable thereto, If any at the same time as payment of the balance of the Contract Price less Retalnage under
paragraph 4.02 above.
Art. 5 - Subcontracts
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use In the performance of the Work, While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that It will not employ or enter Into a major subcontract
with any subcontractor to whom Owner may reasonably object
Art. 6 - Time for Commencement and Comoletion
6.0:1 The Work to be performed by Contractor under this Contract shall be commenced within five (5) days
from the later of (:1) the date of written notice by owner to Contractor to commence the work (the ~Effecfive Date") or
(:1:1) the date that the construction of the Project is suffidently complete for Contractor to commence the Work and
shall be completed within I~t !~q days after such date of commencement; subject, however, in each instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and judgment and reasonable, gond-falth
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstarmes, the total time elapsing between the date of this Contract and the completion of the ]improvements.
Art. 7 - Substantial Comoletlon
7.0! When used herein, the terms ~completion,"'final compleUon" or ~substantfal completion,"
or any variation of such terms, shall mean the substanUal completion of the Work substantially In accordance with the
Bid.
Art. 8 - Contractor's Indemnity and Exculoation
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERMt I ~ mD MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES A(~REE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE 'INDEMNITEES'~ FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,' SUITS, JUDGMENTS, AND EXPENSES, INCLUDING
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR Eh i t ~ ¥, INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY INJURY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM IN]URY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLECTIVELY THE "LIABILITIES'd. THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE JOINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEEs AND ANY OTHER PERSON OR EN ~ ~ ~ ¥,
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WP,1TING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
· RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY COUNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
1TS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER V~'TH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, ATTHE RATE OF
INTEREST PROVIDED TO BE PAID ON JUDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILI'TY BENEFTTS ACIb, OR OTHER EMPLOYEES'
BENEH ~ S ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH g.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY INJURY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMN1TEES FOR IN]URY TO, ILLNESS OF, OR ARISE OUT OF THE JOINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNI ~' ~ ELS OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNITEES; IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY 'OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CL4IM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE ]OINT, CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMNI I roES.
8.03 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.01 above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation clause are hereinafter collectively referred to as the "indemnification obligation"), 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 provisions Into conformity with the requirements of such limitations, and as so
modified, the Indemnification obligation shall continue in full force and effect.
Art. 9 - Insurance
9.01 Contractor shall dudng the entire term of this Contract at Its expense maintain through an insurance
company or companies authorized to do business in the State of Texas and reasonably acceptable to Owner general
commercial liability insurance with minimum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional lnsureds, shall contain a waiver of subrogation In favor of the Owner, and shall be endorsed
to provide that all such insurance coverage is primary insurance as regarding any other insurance carried by the
Indemnities. The general commercial liability Coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spedfically in
support of, but not limited to, the indemnity provisions of Article 8 above, broad form property damage, personal
injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commercial general liability insurance shall be in such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustained by any person, lnduding death at any time
resulting there from, any property damage dalms occurring dudng the terms of such polities regardless of when any
liability or dalms arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all insurance polldes providing coverage hereunder at
any time within ten (10) days after wfltten request from Owner to the C~ntractor. In addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance spedfying that the insurance coverage
required by this Article 9 is in fuil force and effect from each Insurer or agent of such insurer providing Insurance
coverage hereunder and that no such policy of Insurance shall be modified or canceled without at least twenty (20)
days prior written notice to owner and the notice of non-renewal of any days prior to termination of such Insurance
policy. The Contractor shall from time to time hereafter provide cerUficates of insurance to Contractor so that at all
times dudng the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 Zf, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contractor agrees to repair any defects in material and/or workmanship in the Work for one (1) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Price. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties pdor to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 If Contractor is in default under this Contract and fails to cure such default within seven (7) days after
written notice from Owner spedfying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, exduding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Pdce, the Contractor shall pay
the difference to the Owner on demand.
Art. 12 - Miscellaneous
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications concerning this Contract shall be of no force and effect, excepting a subsequent modification in wdting,
signed by the parties hereto.
12.02 This Contract shall bind and inure to the benefit of the parties hereto, their respective successors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the pdor written
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of whether or not
received, on the third day alter having been deposited in the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be indicated by written notice delivered in accordance with the terms hereof to the other party:
IF TO OWNER:
The City of Port Arthur
4~~, 4th Street
Port Arthur, TX 77640
A'rrN: Dale Watson or Beverly A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed In accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender Includes all genders, and the
use of the singular includes the plural, and the plural the singular.
12.06 If any term, condition or provision of the Contract is dedared illegal or invalid for any reason by a court
of competent Jurisdiction, the remaining terms, conditions, and provisions of this Contract shall, nevertheless, remain
in full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in .lefferson County, Texas.
12,08 It is expressly agreed that this Contract may be signed In counterparts and it shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one (1)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract transmitted by telefacslmile shall be as valid
and binding on such party as an original signature,
IN WZTNESS WHEREOF, Owner and Contractor have executed this Contract on this the . day of
, 2002.
OWNER:
The aw of Port Arthur
Stephen Rtzglbbons,
City Manager
CONTRACTOR:
EXHt'BTT '~A"
SZ'I'E PREPARATZON AS SPECZFZED AT:
3827, 3837 & 3847 31st STREET --- $4,375
EXH[BI'I'
De~rJbe Work to be performed under Contract:
Perform site preparation to include removal of trees, .slabs, sidewalks, steps &
debris, stump qrindinq and/or removal as specified in the bid documents.
SZGNED:
Attachment "F"
NOT~CE: THIS CONTRACT CONTAINS INDEMNITY~ WAIVER OF LIABtLITY~ AND EXCULPATION CLAUSES
IN ARTZCLE 8 OF THZS CONTRACT BEG[NNZNG ON PAGE 4 OF THIS CONTRACT WHICH SHIFT THE
BURDEN OF CERTAIN LZABILZTIES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTING THIS DOCUMENT. CONTRACTOR AND ALL OTHER EXECUTING THtS DOCUMENT
SHOULD EXAMINE SUCH ZNDEMNITY~ WAtVER OF LIABILZTYf AND EXCULPATZON CLAUSES CAREFULLY
AND CONSULT AN AI-rORNEY OF THEIR OWN CHOOSING WtTH REGARD TO THE EFFECT OF SUCH
CLAUSES.
THE STATE OF TEXAS ·
·
COUNTY OF 3EFFERSON ·
CONSTRUCTI'ON CONTRACT
This Construction Contract (the "Contract'~ is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the "Owner" whether one or more), and Trianqle Tree Service "Contractor").
Art. :[ - Recitals
1.01 Owner is the owner of fee simple title to the following described real properly and all improvements now
or hereafter constructed thereon to perform site preparation (the "Property'~ located at:
Site Preparation to include removal of trees, slabs, sidewalks, steps & debris, stump nrindino and/or removal as
specified at the followinq locations: 3632 7th Avenue
in the City of Port Arthur , Jefferson County, Texas:
That certain real property more fully described in Exhibit "A,' attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being constructed on the Property by Owner (the "Project"), as more fully described in Exhibit "B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the "Bid." The term Bid includes all plans and specifications for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis.
1.03 Owner and Contractor now desire and Intend to set forth in writing their respective agreements and
understandings with respect to the construction and completion of the Improvements which are pert of the Work.
Art. 2 - Plan and SDedficatlons
2.01 For the consideration paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees to furnish all materials, equipment and labor necessary to constrt~ and complete the Work substanUally in
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwlse
hereinafter expressly provided.
2.02 It is agreed and stipulated that no changes, additions, deletions, or other modifications in or to the scope
of the Work shall be made except upon written 'change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described in the Bid and the original plans and specifications
referred to in peragraph 1.01 above, and all changes, additions, deletions or other modifications made therein or
thereto in accordance with the provisions of this paragraph.
Art;. 3 - pubes of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may he required in
connection with the Work to be performed hereunder. The Contractor shall at all Umes comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall constitute a waiver of this indemnity, and if
any such lien or dalm for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bend against such lien as permitted by applicable law.
Art, 4 - Fixed Contract Pdce and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis In accordance herewith the
sum of One Thousand Six Hundred Seventy Rye and no/100- - - -- Dollars (~1.675.00~. herelnafter called
the "Contract Price."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday alter the commencement of the Work by Contractor and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price alter the foregoing progress
payments have been paid within five (5) business days after the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall sub,it to Owner a written application for the
balance of the Contract Price upon completion of the Work (and any additional sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the "Retainage'3. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
right to withhold from payment to Contractor the Retalnage and such additional sums as the owner shall determine in
the reasonable Judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and material used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (3~.) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for Incorporation into the Work have been paid In full, Owner may release the Retalnage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear Interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4,04 The price for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus filteen percent (15%) of such cost, unless a written agreement
setting oUt a difference price for such extra work is signed by Owner and Contractor, In which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at the same time as payment of the balance of the Conbact Price less Retainage under
paragraph 4.02 above.
Art. 5 - Subcontracts
5.01 All portions of the Work which Contractor's organization Is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requesbed by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that it will not employ or enter into a major subcontTact
with any subcontractor to whom Owner may reasonably object.
Art. 6 - ~me for Commencement and Completion
6.01 The Work to be performed by Contractor under this Contract shall be commenced within five (5) days
from the later of (1) the date of written notice by owner to Contractor to commence the work (the "Effective Date") or
(11) the date that the construction of the ProJect ls suffldenfly complete for Contractor to commence the Work and
shall be completed within /~ Ih days alter such date of commencement; subject, however, in each Instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of mateflals, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and Judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to mtnlmlze~ to the greatest reasonable extent possible under the
drcumstanms, the total Ume elapsing between the date of this Contract and the completion of the [mprovements.
AR, 7 - ~c;[,tbstantial Completion
7.01 When used herein, the terms ~completion,"'final completion" or 'substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially in accordance with the
Bid.
Art, 8 - Contractor's Indemnity and Exculpation
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERMt i ) ~D MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECT~ELY THE "INDEMNITEES'~) FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, 'SUITS, 3UDGHENTS, AND EXPENSES, INCLUDING
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR Eh I l I ~, INCLUDING, W~THOUT
LIMITATION, THOSE FOR ANY BODILY IN3URY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM IN3URY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (I) THE WORK pERFORMED HEREUNDER, OR ANY PART
THEREOF~ (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLECTIVELY THE "LIABILITIES"). THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO LIABILTFIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE JOINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES AND ANY OTHER PERSON OR ENTITY,
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY CbUNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNI~CATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, ATTHE RATE OF
INTEREST PROVIDED TO BE PAID ON ]UDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENEFITS ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO HAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PAR'P{ FOR ANY IN3URY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDENNITEES FOR INJURY TO, ILLNESS OF, OR ARISE OUT OF THE 3OINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNt ~'i EES OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF TltE INDEMNITEES.' IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
LIABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF I_~,BILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAIM ARISES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE ]OINTf CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMNITEES.
8.03 It is agreed with respect to any legal limltations now or hereafter In effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.01 above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation clause are hereinafter collectively referred to as the 'indemnification obligation"), such legal limitations are
made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the
minimum extent neoessary to bdng the provisions into conformity with the requirements of such limitations, and as so
modified, the Indemnification obligation shall con'dnue In full form and effect.
Art. 9 - Insurance
9.01 Contractor shall during the entire term of this Contract at its expanse maintain through an insurance
company or companies authorized to do business In the State of Texas and reasonably acceptable to Owner general
commercial liability insurance with minimum limits of $100,000 combined single limits per occurrence for bodily Injury,
sickness, or disease sustained by any parson, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional insureds, shall contain a waiver of subrogation In favor of the Owner, and shall be endorsed
to provide that all such insurance coverage is primary insurance as regarding any other insurance carded by the
]indemnities. The general commercial liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spadfically in
support of, but not Ilmited to, the indemnity provisions of Article 8 above, broad form property damage, personal
injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commerdal general liability insurance shall be in such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustalned by any person, induding death at any time
resulting there from, any property damage claims occurring duflng the terms of such polities regardless of when any
liability or daims arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all insurance polities providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. In addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance spedfying that the insurance coverage
required by this Article 9 is in full force and effect from each insurer or agent of such insurer providing insurance
coverage hereunder and that no such policy of insurance shall .be modified or canceled without at least twenty (20)
days prior written notice to owner and the notice of non-reneWal of any days prior to termination of such insurance
policy. The Contractor shall from time to time hereafter provide certificates of insurance to Contractor so that at all
times during the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contractor agrees to repair any defects in material and/or workmanship in the Work for one (1) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Pdce. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 If Contractor is in default under this Contract and fails to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably he cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
Zf the cost of completing the Work is greater than the unpaid balance of the Contract Pdce, the Contractor shall pay
the difference to the Owner on demand.
Art. 12 - Miscellaneous
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications concerning this Contract shall be of no force and effect, excepting a subsequent modification in writing,
~igl~ by the parties hereto.
12.02 This Contract shall bind and inure to the benefit of the parties hereto, their respective successors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the prior written
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, r~jardless of whether or not
received, on the third day after having been deposited in the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be indicated by written notice delivered in accordance with the terms hereof to the other party:
IF TO OWNER:
The City of Port Arthur
111 4~ Street
Port Arthur, TX 77640
ATt'N: Dale Watson or Beverly A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed In accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender Includes all genders, and the
use of the singular includes the plural, and the plural the singular.
12.06 If any term, condition or provision of the Contract Is dc=dared illegal or invalid for any reason by a court
of competent judsdicUon, the remaining terms, conditions, and provisions of this Contrad: shall, nevertheless, remain
in full force and effect.
12.07 NI payments due bemunder to Contractor shall be payable In ]efferson County, Texas.
12.08 lit is expressly agreed that this Contract may be signed In counterparts and It shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one (~.)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of thls Contract transmitted by telefacsimile shall be as valid
and binding on such party as an original signature.
TN W1TNESS WHEREOF, Owner and Contractor have executed thls Contract on thls the
, 2002.
__ day of
OWNER:
The ab/of Port Arthur
Stephen Rtzgibbons,
City Manager
CONTRACTOR:
EXHIBZT "A"
SZTE PREPARATION AS SPEC~'FTED AT:
3632 7~h Avenue --- $~.,675
EXHt'BIT
Describe Work to be performed under Contract:.
Perform site preparation to include removal of trees, slabs, sidewalks, steps &
debris, stump cjrindinq and/or removal as specified in the bid documents.
S~GNED:
Attachment "G'
No'rLCE: THTS CONTRACT CONTAI~NS TNDEMNI'TYf WA][VER OF Lt'ABt'LTTY, AND EXCULPA'I'~ON CLAUSES
t'N ARTt'CLE 8 OF THTS CONTRACT BEGINNING ON PAGE 4 OF THTS CONTRACT WHTCH SHt'FT THE
BURDEN OF CERTATN LTABt'LT'I'~ES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTTNG THI'S DOCUMENT. CONTRACTOR AND ALL OTHER EXECUTt'NG THI'S DOCUMENT
SHOULD EXAMTNE SUCH TNDEMNTTY, WATVER OF Lt'ABt'L~TY~ AND EXCULPATION CLAUSES CAREFULLY
AND CONSULT AN A'I-I'ORNEY OF THEt'R OWN CHOOSI~NG WITH REGARD TO THE EFFECT OF SUCH
CLAUSES.
THE STATE OF TEXAS ·
·
COUNTY OF .1EFFERSON ·
CON~TR¥(;:T'rON CONTRACT
This Construction Contract (the "Contract") is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the "Owner" whether one or more), and Trianole Tree Service "Contractor'9.
Art. I - Recitals
1.01 Owner is the owner of fee simple title to the forlowing described real property and all improvements now
or hereafter constructed thereon to perform site preparation (the "Property'~ located at:
Site Preparation to include removal of trees, slabs, sidewalks, steps & debris, stump qrindinq and/or removal as
specified at the followinq locations: 2315, 2325 & 2335 Neches Avenue
in the City of Port Arthur ~ .]efferson County, Texas:
That certain real properly more fully described in Exhibit "A,' attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being constructed on the Property by Owner (the "Project"), as more fully described in Exhibit "B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the "Bid." The term Bid includes all plans and specifications for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis.
1.03 Owner and Contractor now desire and intend to set forth in writing their respective agreements and
understandings with respect to the construction and completion of the Improvements which are part of the Work.
Art. 2 - Plan and $~dfications
2.01 For the consideration paid or to be paid by Owner to Contractor pursuant to his contract, Contractor
agrees to furnish all materials, equipment and labor necessary to conSt~ct and complete the Work substantially in
accordance wlth the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinalter expressly provided.
2.02 It Is agreed and stipulated that no changes, additions, deletions, or other modifications in or to the scope
of the Work shall be made except upon written ~change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described in the Bid and the odginal plans and spedflcations
referred to In paragraph 1.01 above, and all changes, additions, deletions or other modifications made therein or
thereto In accordance wlth the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance its own operations hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all times comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of rights to enforce liens against the
Property, arising out of the Work to be performed or labor or materials to be fumlshecl under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall oonstitute a waiver of this indemnity, and if
any such lien or daim for lien shall at any time be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Art. 4 - Fixed Contract Price and Pavmet~ts
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewlth the
sum of Etoht Thousand Three Hundred Fifty and no/100 ,, , Dollar~ ($8.350.00), hereinafter called the
"Contract Pflce."
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday after the commencement of the Work by Contractor and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
sucoeedlng Friday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price alter the for~*going progress
payments have been paid within five (5) business days after the later of the application by Contractor for final
. payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Pdce upon completion of the Work (and any additional sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretefore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the "Retainage'O. Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
fight to withhold from payment to Contractor the Retainage and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Contractor. Contractor shall, if requested by Owner, fumlsh an affidavit
that all bills for labor and mateflal used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid In full, Owner may release the Retalnage to
Contractor pflor to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment Is due, shall bear interest at the rate of ten
percent (:t0%) per annum from such due date until paid, payable on demand.
4.04 The price for any extra work authorized by Owner and Contractor pursuant to a wfltten change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen percent (~.5%) of such cost, unless a written agreement
setting out a difference price for such extra work is signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retainage
applicable thereto, if any at the same time as payment of the balance of the Contract Price less Retalnage under
paragraph 4.02 above.
Art. 5 - Sub. nlra:ts
5.01 All portions of the Work which Contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors Is not required, Contractor agrees that it will not employ or enter into a major subcontract
with any subcontractor to whom Owner may reasonably object.
Art. 6 - Time for Commencement and Comoletion
6.01 The Work to be performed by Contractor under this contract shall be commenced within five (5) days
from the later of (1) the date of written notice by owner to contractor to commence the work (the "Effective Date") or
(11) the date that the construction of the Project is sufficiently complete for Contractor to commence the Work and
shall be completed within ~//~ days after such date of commencement; subject, however, in each instance to
delays occasioned by stdke, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Property by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstances, the total time elapsing between the date of this Conbact and the completion of the Improvements.
Art. 7 - Substantial Comnletion
7.01 When used herein, the terms "completion," 'final completion" or 'substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially In accordance with the
Bid,
Art. 8~'~ Contractor's Indemnity and Exculoattorl
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERMIT I'ED MY APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE "INDEMNITEES") FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,' SUITS~ JUDGMENTS, AND EXPENSES, INCLUDING
A'~'ORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR EN 111 Y, INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY IN]URY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM INJURY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF, (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLECTIVELY THE "LIABILITIES"). THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO L~ABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE ]OINTt CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES AND ANY OTHER PERSON OR EN ~ 1 ! ¥,
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNt/mES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
RIGHT, AT ITS OPTION, TO BE REPRESENTED THEREIN BY ADVISORY C6UNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OPTION, AND WITHOUT RELIEVING CONTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER VVITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNllL REIMBURSED BY CONTRACTOR, ATTHE RATE OF
INTEREST PROVIDED TO BE PAID ON ]UDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIM[I~O TO DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTSt DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENEr..~ I ~ ACTS,
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE ~ RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY INJURY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRUSTED TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR INJURY TO, ILLNESS OF, OR ARISE OUT OF THE JOINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMNITTEES OR THE CONDIT'iON OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNITEES.'IN NO EVENT SHALL ANY OF THE INDEMNITEES BE
I_tABLE IN ANY MANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CtAIM A~SES BECAUSE OF THE CONDITION
OF THE PROPERTY OR THE .1OINT, CONCURRENT, OR CONTRIBUTORY NEGLIGENCE OF THE ONE OR MORE OF THE
INDEMN1TEES.
8.03 It is agreed with respect to any legal limitations now or hereafter In effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.01 above and waiver of liability and
exculpation clause contained In paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation dause are hereinafter collectively referred to as the 'indemnification obligation'% 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 provisions into conformity with the requirements of such limitations, and as so
modified, the Indemnification obligation shall continue in full force and effect.
Art. 9 - InsuraRc~
9.01 Contractor shall during the entire term of this Contract at its expense maintain through an insurance
company or companies authorized to do business in the State of Texas and reasonably acceptable to Owner general
commercial liability insurance with minimum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The policy required by this Paragraph 9.01 shall name the
Indemnities as additional insureds, shall contain a waiver of subrogation in favor of the Owner, and shall be endorsed
to provide that all such insurance coverage is pdmary Insurance as regarding any other insurance carded by the
Indemnifies. The general commercial liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spedflcally in
support of, but not limited to, the indemnity previsions of Article 8 above, broad form property damage, personal
injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commercial general liability Insurance shall be in such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustained by any person, indudlng death at any Ume
resulUng there from, any property damage dalms occurring during the terms of such po[ides regardless of when any
liability or dalms arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all insurance polities providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. In addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance spedfyIng that the Insurance coverage
required by this Article 9 is in full force and effect from each insurer or agent of such insurer providing insurance
coverage hereunder and that no such policy of Insurance shall be modified or canceled without at least twenty (20)
days prior written notice to owner and the notice of non-renewal of any days prior to termination of such Insurance
policy. The Contractor shall from time to time hereafter provide certificates of insurance to Contractor so that at all
times during the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranb/
10.01 Contractor agrees to repair any defects in matedal and/or workmanship in the Work for one (1) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Price. If any products with manufacturer's or suppliers written warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties prior to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 If Contractor is in default under this Contract and fails to cure such default within seven (7) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does net begin to remedy such default with
such seven (7) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Price, the Contractor shall pay
the difference to the Owner on demand.
Art. 12 - Miscellaneous
12.01 This Contract contains the entire agreement between the parties. Any oral representations, or
modifications concerning this Contract shall be of no force and effect, excepting a subsequent modification in writing,
signed by the parties hereto.
12.02 This Contract shall bind and inure to the benefit of the parties hereto, their respective successors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Contract without the prior written
consent of Owner.
12.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of whether or not
received, on the third day at,er having been deposited in the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereal~er be indicated by written notice delive~:l in accordance with the terms hereof to the other party:
IF TO OWNER:
The City of Port Arthur
111 4th Street
Port Arthur, TX 77640
Aq-rN: Dale Watson or Beverly A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
12.04 This Contract shall be governed by and construed in accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender indudes all genders, and the
use of the singular indudes the plural, and the plural the singular.
12.06 If any term, condition or provislon of the Contract is declared Illegal or invalid for any reason by a court
of competent jurisdiction, the mmainlng terms, conditions, and provisions of this Contract shall, nevertheless, remain
In full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in 3efferson County, Texas.
/.2.08 It is expressly agreed that this Contract may be signed in counterparts and it shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract transmitted by telefacslmlle shall be as valid
.and binding on such party as an original signature.
[N WTI'NESS WHEREOF, Owner and Contractor have executed this Contract on this the
~ 2002.
__ day of
OWNER:
The City of Port Arthur
Stephen Rtzglbbons,
City Manager
CONTRACTOR:
STTE PREPARATION AS SPEC];F]~ED AT:
2315, 2325 & 2335 Neches Avenue --- $8,350
EXHZBZT 'B"
Describe Work to be performed under Contract:
Perform site preparation to include removal of trees, .slabs, sidewalks, steps &
debris, stump grindinq and/or removal as specified in the bid documents.
STGNED:
Attachment "H'
NOI'~CE: THIS CONTRACT CONTAINS INDEMNITY, WAIVER OF LIABILITY~ AND EXCULPATION CLAUSES
IN AR'I'~CLE B OF THIS CONTRACT BEGINNING ON PAGE 4 OF THIS CONTRACT WHICH SHIFT THE
BURDEN OF CERTAIN LIABILITIES AND LOSSES FROM THE OWNERS TO THE CONTRACTORS AND
OTHERS EXECUTING THIS DOCUMENT. CONTRACTOR AND ALL OTHER EXECU'r~NG THIS DOCUMENT
SHOULD EXAMINE SUCH INDEMNITY~ WAIVER OF I.TABILITY~ AND EXCULPATION CLAUSES CAREFULLY
AND CONSULT AN A1TORNEY OF THEIR OWN CHOOSING WITH REGARD TO THE EFFECT OF SUCH
CLAUSES.
THE STATE OF TEXAS ·
·
COUNTY OF .1EFFERSON ·
CONSTRUCTION CONTRACT
This Construction Contract (the "Contract'~ is made and entered into on the date hereinafter stated by and
between the City of Port Arthur (the "Owner" whether one or more), and Trianqle Tree Service "Contractor").
Art. 1 - Recitals
1.01 Owner is the owner of fee simple title to the following described real property and all improvements now
or hereafter constructed thereon to perform site preparation (the "Property'~ located at:
Site Preparation to include removal of trees, slabs, sidewalks, steps & debris, stump (~rindincl and/or removal as
specified at the followinq locations: 3110 Tyler
in the City of Port Arthur., Jefferson County, Texas:
That certain real property more fully described in Exhibit "A," attached hereto and made a part hereof by this
reference.
The Owner now desired to have certain improvements and work performed by Contractor as part of a single
family resident being constructed on the Property by Owner (the "Project'O, as more fully described in Exhibit "B,"
attached hereto and made a part thereof by this reference, hereinafter called the "work," in accordance with the
written bid for the work submitted by Contractor to Owner, as modified by the terms and provisions of this Contract,
hereinafter called the "Bid." The term Bid includes all plans and specifications for the Work agreed upon Contractor
and Owner.
1.02 Contractor has agreed to construct and complete the Work at the Property in accordance with the Bid on
a fixed cost basis.
1.03 Owner and Contractor now desire and intend to set forth in wdting their respective agreements and
understandings with respect to the construction and completion of the improvements which are part of the Work.
Art. 2 - Plan and SnedficaUons
2.01 For the consideration paid or to be paid by Owner to Contractor pumuant to his contract, Contractor
agrees t~ furnish all materials, equipment and labor necessary to construct and complete the Work substantially in
accordance with the Bid heretofore approved and agreed upon by Owner and Contractor except as otherwise
hereinafl:er expressly provided.
2.02 [t is agreed and stipulated that no changes, additions, deletions, or other modificaUons In or to the scope
of the Work shall be made except upon written "change order" signed by Owner and Contractor. All references herein
to the Work shall be deemed to include the Work as described In the Bid and the original plans and spedficaUons
referred to in paragraph 1.01 above, and all changes, additions, deletions or other modificaUons made therein or
thereto in accordance with the provisions of this paragraph.
Art. 3 - Duties of Contractor
3.01 The Contractor shall finance Its own opereflons hereunder. The Contractor shall operate as an
independent contractor and not as the agent or employee of the Owner.
3.02 The Owner has applied for and obtained a building permit for the Project. The Contractor shall apply for
and obtain all other necessary building and other governmental permits and licenses which may be required in
connection with the Work to be performed hereunder. The Contractor shall at all Umes comply with and conform to all
applicable building codes and governmental rules and regulations applicable to the Work under this contract.
3.03 Subject to Owner's payment of all sums required to be paid by Owner hereunder, Contractor hereby
indemnifies and agrees to hold the Owner harmless from all liens or claims of dghts to enforce liens against the
Property, adslng out of the Work to be performed or labor or materials to be furnished under this Contract. Neither
final payment by the Owner, nor acceptance of the Work hereunder shall consUtute a waiver of this indemnity, and if
any such lien or claim for lien shall at any Ume be filed, the Contractor shall either (a) cause such lien to be discharged
and released, or (b) bond against such lien as permitted by applicable law.
Ar'c, 4 -Flxed Contract Pdce and Payments
4.01 The Owner agrees to pay the Contractor for the Work on a fixed price basis in accordance herewith the
sum of Ek~ht Hundred Five and no/100 .......... Dollars ($875.003, hereinafter called the ~contract Price.'
4.02 Owner shall pay to Contractor progress payments as follows:
All amounts earned as reflected by invoices submitted by Contractor to Owner on or before 12:00 noon local
time on the Tuesday alter the commencement of the Work by Contracto~ and every Tuesday thereafter, and Owner
shall pay all amounts earned under this Contract for which invoices are timely submitted by 3:00 p.m. on the next
succeeding Fdday, so that Contractor is paid every two (2) weeks for amounts earned hereunder.
Upon completion of the Work, Owner shall pay the balance of the Contract Price after the foregoing progress
payments have been paid within five (5) business days alter the later of the application by Contractor for final
payment hereunder and completion of the Work. Contractor shall submit to Owner a written application for the
balance of the Contract Price upon completion ol= the Work (and any ~idditional sum due Contractor for extra or
additional work performed hereunder and authorized by written change order of Owner not theretofore paid), and
Owner shall pay such sum to Contractor as provided above after receipt of a written application for payment as long
as the Work is properly completed, less any agreed upon retainage applicable thereto, (the "Retalnage"). Owner shall
have the right to inspect the Work after receipt of Contractor's application for payment of the balance of the Contract
Price and present the Contractor with a list of items which are needed to complete the Work. Owner shall have the
right to withhold from payment to Contractor the Reteinage and such additional sums as the owner shall determine in
the reasonable judgment of Owner is needed to complete the items on the list of items to be completed until such
time as all items of the Work are completed by Conb-actor. Contractor shall, if requested by Owner, furnish an affidavit
that all bills for labor and material used in the Work have been paid. The Retainage, if any, and any other sums then
owning and unpaid by Owner to Contractor upon the expiration of thirty-one (31) days from the completion of the
Work; provided, however, that upon presentation to Owner of evidence satisfactory to Owner that all sums for labor
and materials supplied for incorporation into the Work have been paid in foil, Owner may release the Retainage to
Contractor prior to the expiration of thirty-one (31) days.
4.03 Any payment due Contractor hereunder (whether a payment for extra work u under a change order or
the final payment due hereunder), if not paid by the date such payment is due, shall bear interest at the rate of ten
percent (10%) per annum from such due date until paid, payable on demand.
4.04 The price for any extra work authorized by Owner and Contractor pursuant to a written change order by
Owner and performed by Contractor over and above the Work originally called for by this Contract shall be charged to
Owner at Contractor's cost for such extra work plus fifteen percent (15%) of such cost, unless a wdtten agreement
setting out a difference price for such extra work is signed by Owner and Contractor, in which even such agreed price
shall be the price for such extra work, payable to Contractor less the applicable percentage of any Retalnage
applicable thereto, if any at the same time as payment of the balance of the Contr3ct Price less Retalnage under
paragraph 4.02 above.
Art. 5 - Subcontracts
5.01 All portions of the Work which contractor's organization is not accustomed to performing shall be
performed under subcontracts with others. Contractor shall, if requested' by Owner, furnish to Owner a list of the
subcontractors which Contractor proposed to use in the performance of the Work. While the approval of Owner of
Contractor's subcontractors is not required, Contractor agrees that it will not employ or enter into a major subconb-act
with any subcontractor to whom Owner may reasonably object.
Art. 6 - Time for Commencement and Comolefion
6.01 The Work to be performed by contractor under this contra~ shall be commenced within five (5) days
from the later of (1) the date of written notice by owner to contractor to commence the work (the ~Effective Date'g or
(11) the date that the construction of the Project is suffidentiy complete for Contractor to commence the Work and
shall be completed within f~ IR days after such date of commencement; subject, however, in each instance to
delays occasioned by strike, labor dispute, unfavorable weather conditions, natural disaster, damage to or destruction
of the Properb/ by fire or other casualty, shortages or unavailability of materials, or other causes beyond the
reasonable control of Contractor. Contractor agrees to use diligence, skill and judgment and reasonable, good-faith
efforts to expedite completion of the Work, so as, to minimize, to the greatest reasonable extent possible under the
drcumstances, the total time elapsing between the date of this Contract and the completion' of the Improvements.
Art. 7 - Substantial Comoletion
7.01 When used herein, the terms "completion," Urinal completion" or "substantial completion,"
or any variation of such terms, shall mean the substantial completion of the Work substantially in accordance with the
Bid.
Art. 8 - Contractor's Indemnib/and F. xculoatlon
8.01 INDEMNIFICATION. TO THE FULLEST EXTENT PERM! I I ED I~Y APPLICABLE LAW, CONTRACTOR SHALL
AND DOES AGREE TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS THE OWNER AND OWNER'S
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY THE "INDEMNTI'EES'~ FROM AND AGAINST ALL
CLAIMS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,, SUITS, .1UDGMENTS, AND EXPENSES, INCLUDING
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPI-[ON 'OF ANY PERSON OR ENIII¥, INCLUDING, WITHOUT
ATTORNEY FEES, OF ANY NATURE, KIND, OR DESCRIPTION OF ANY PERSON OR EN~IIY, INCLUDING, WITHOUT
LIMITATION, THOSE FOR ANY BODILY IN3URY TO OR ILLNESS OF ANY PERSON OR DEATH AT ANY TIME
RESULTING FROM SUCH BODILY HARM IN3URY OR ILLNESS, DIRECTLY OR INDIRECTLY ARISING OUT OF, CAUSED
BY, OR RESULTING FROM (IN WHOLE OR IN PART), (1) THE WORK PERFORMED HEREUNDER, OR ANY PART
THEREOF~ (2) THIS CONTRACT, OR (3) ANY ACT OR OMISSION OF CONTRACTOR, ANY SUBCONTRACTOR, ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY THEM, OR ANYONE THAT THEY CONTROL OR EXERCISE CONTROL OVER
(COLLECTIVELY THE "LIABILITIES'~. THE OBLIGATIONS OF CONTRACTOR UNDER THIS INDEMNITY AGREEMENT
SHALL APPLY TO LIABILITIES EVEN IF SUCH LIABILITIES ARE CAUSED IN PART BY THE 3OINT, CONCURRENT, OR
CONTRIBUTORY NEGLIGENCE OF ANY ONE OR MORE OF THE INDEMNITEES AND ANY OTHER PERSON OR ENI l ~ Y,
EXCEPT ONLY TO THE EXTENT THE LIABILITIES ARISE FROM THE SOLE NEGLIGENCE OR GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF ANY ONE OR MORE OR THE INDEMNITEES. CONTRACTOR SHALL PROMPTLY ADVISE
OWNER IN WRITING OF ANY ACTION, OR LEGAL PROCEEDING OR INVESTIGATION AS TO WHICH THIS
INDEMNIFICATION MAY APPLY, AND CONTRACTOR, AT CONTRACTOR'S EXPENSE, SHALL ASSUME ON BEHALF OF
OWNER (AND THE OTHER INDEMNITEES) AND CONDUCT WITH DUE DILIGENCE AND IN GOOD FAITH THE DEFENSE
THEREOF WITH COUNSEL SATISFACTORY TO OWNER; PROVIDED, HOWEVER, THAT OWNER SHALL HAVE THE
'RIGHT, AT ITS OFI-ION, TO BE REPRESENTED THEREIN BY ADVISORY C~UNSEL OF ITS OWN SELECTION AND AT
ITS OWN EXPENSE. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO FULLY PERFORM IN ACCORDANCE WITH
THIS INDEMNIFICATION PARAGRAPH, OWNER, AT OWNER'S OFTION, AND WIll-lOUT RELIEVING CONTRACTOR OF
ITS OBLIGATIONS HEREUNDER, MAY SO PERFORM BUT ALL COST AND EXPENSES SO INCURRED BY OWNER IN
THAT EVENT SHALL BE REIMBURSED BY CONTRACTOR TO OWNER, TOGETHER WITH INTEREST ON THE SAME
FROM THE DATE ANY SUCH EXPENSE WAS PAID BY OWNER UNTIL REIMBURSED BY CONTRACTOR, AT THE RATE OF
INTEREST PROVIDED TO BE PAID ON 3UDGMENTS UNDER THE LAWS OF THE STATE OF TEXAS. THIS
INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES, COMPENSATION, OR BENEFITS PAYABLE UNDER
INSURANCE POLICIES, WORKERS' COMPENSATION ACTS, DISABILITY BENEFITS ACTS, OR OTHER EMPLOYEES'
BENEFITS ACTS.
8.02 NONE OF THE INDEMNITEES SHALL BE LIABLE IN ANY MANNER TO CONTRACTOR (WHICH TERM FOR
PURPOSES OF THIS PARAGRAPH 9.02 SHALL INCLUDE NOT ONLY CONTRACTOR BUT ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW WHO MAY BE ACTING AS SUBCONTRACTORS, AGENT, OR EMPLOYEES OF CONTRACTOR,
OR OTHERWISE WITH RESPECT TO THE WORK) OR ANY OTHER PARTY FOR ANY INJURY TO OR DEATH OF
PERSONS OR FORE ANY LOSS OF OR DAMAGE TO PROPERTY OF CONTRACTOR OR CONTRACTOR'S EMPLOYEES
AGENTS, CUSTOMERS, INVITEES, OR OF OTHERS, REGARDLESS OF WHETHER SUCH PROPERTY IS ENTRU5 i'~-O TO
OWNER OR ANY OF OWNER'S AGENTS OR EMPLOYEES, AND CONTRACTOR AND ALL OTHER PERSONS SIGNING
THIS CONTRACT BELOW (OTHER THAN OWNER) HEREBY EXPRESSLY WAIVE ANY AND ALL CLAIMS AGAINST THE
INDEMNITEES FOR IN]URY TO, ILLNESS OF, OR ARISE OUT OF THE 3OINT, CONCURRENT, OR CONTRIBUTORY
NEGLIGENCE OF AN ONE OR MORE OF THE INDEMN~ 1 ~ ~-ES OR THE CONDITION OF THE PROPERTY, EXCEPT ONLY
TO THE EXTENT SUCH CLAIMS ARISE OUT OF TE SOLE ,NEGLIGENCEOR GROSS NEGLIGENCE OR WILLFUL
MSICONDUCT OF ANY ONE OR MORE OF THE INDEMNITEES~ IN NO EVENT SHALL ANY OF THE INDEMNI-I'EES BE
lIABLE IN ANY HANNER TO CONTRACTOR OR ANY OTHER PARTY AS A RESULT OF THE ACTS OR OMISSIONS OF
CONTRACTOR, CONTRACTOR'S AGENTS, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER CONTRACTOR,
SUBCONTRACTORS, OR PERSON WORKING AT THE PROPERTY. THE TERMS OF THIS WAIVER OF LIABILITY AND
EXCULPATION CLAUSE SHALL APPLY EVEN IF THE LOSS, DAMAGE, OR CLAIM ARISES BECAUSE OF THE CONDITION
OFTHE PROPERTY ORTHE JOINT, CONCURRENT, OR CONTRIBUTORY NEG~GENCE OFTHE ONE OR MORE OFTHE
INDEMNt ! EES.
8.03 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or
enforceability of the indemnification obligation contained in paragraph 8.01 above and waiver of liability and
exculpation clause contained in paragraph 8.01 above (which indemnity obligation and such waiver of liability and
exculpation dause are hereinafter collectively referred to as the "Indemnification obligation"), 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 bflng the provisions Into conformity with the requirements of such limitations, and as so
modified, the indemnificaUon obligaUon shall conUnue In fiJII force and effect.
Art. 9 - Insurance
9.01 Contractor shall during the entire term of this Contract at its expense maintain through an insurance
company or companies authorized to do business in the State of Texas and reasonably acceptable to Owner general
commercial liability Insurance with minimum limits of $100,000 combined single limits per occurrence for bodily injury,
sickness, or disease sustained by any person, including death at any time resulting there from, and property damage
with annual aggregate limits of not less than $100,000. The pollo/reguirecl by this Paragraph 9.01 shall name the
Indemnities as additional insureds, shall contain a waiver of subrogation in favor of the Owner, and shall be endorsed
to provide that all such insurance coverage is primary insurance as regarding any other insurance carried by the
Indemnities. The general commerdal liability coverage provided by Contractor shall provide coverage for
premises/operations, independent contractors, complete operations, broad form contractual liability spedfically in
support of, but not limited to, the indemnity provisions of Article 8 above, broad form property damage, personal
injury liability, products liability coverage, and delete exclusions relative to collapse, explosion, and underground
property damage hazards. Said commerdal general liability insurance shall be in such form as to provide coverage for
all acts or omissions for bodily injury, sickness, or disease sustained by any person, including death at any time
resulting there from, any property damage claims occurring during the terms of such polides regardless of when any
liability or daims arising there from may be asserted.
9.02 Contractor shall provide the Owner with copies of all insurance pelldes providing coverage hereunder at
any time within ten (10) days after written request from Owner to the Contractor. l'n addition, the Contractor shall
provide the Owner on the execution hereof with a certificate of insurance spedfying that the insurance coverage
required by this Article 9 is in full force and effect from each Insurer or agent of such insurer providing insurance
coverage hereunder and that no such policy of insurance shall, be modified or canceled without at least twenty (20)
days pdor written notice to owner and the notice of non-renewal of any days prior to termination of such insuranoe
times during the term of this Agreement, the Owner shall have in it possession, certificates of insurance showing that
all insurance coverage required of Contractor under this Article are in full force and effect.
9.03 If, at any time, Contractor fails to maintain the insurance coverage required hereunder or Contractor
does not furnish Owner with evidence of such insurance as required hereunder, Owner may, but shall no obligation to,
obtain such insurance on behalf of Contractor, and Contractor shall pay the cost of such insurance to Owner on
demand or Owner may offset such cost against any sums it may owe to Contractor hereunder until Owner is fully
reimbursed for the cost of such insurance.
Art. 10 - Warranty
10.01 Contractor agrees to repair any defects in matedal and/or workmanship in the Work for one (1~) year
after the completion of the Work. The provisions of the paragraph shall survive completion of the Work and payment
of the Contract Pdce. ~'f any products with manufacturer's or suppliers wdtten warranties have been installed as part
of the Work, Contractor shall make available to Owner copies of those warranties pdor to the payment by Owner to
Contractor of the final payment hereunder.
Art. 11 - Default
11.01 Zf Contractor is in default under this Contract and fails to cure such default within seven (7~) days after
written notice from Owner specifying the nature of such default or if such default is of a nature which cannot
reasonably be cured within such seven (7) day period, then if Contractor does not begin to remedy such default with
such seven (7~) day period and continue to pursue such remedy with reasonable diligence until such default has been
cured, Owner may terminate this Contract by written notice to Contractor and take possession of the Work and all
materials to be incorporated therein to finish the Work. In case of such termination of the Contract by Owner, the
Contractor shall not be entitled to receive any further payments under this Contract until the Work is completed, at
which time the Contractor shall be given the unpaid balance of the Contract Price less the amount of expense incurred
by the Owner in finishing the Work, excluding any costs in addition to those originally contemplated by this Contract.
If the cost of completing the Work is greater than the unpaid balance of the Contract Pdce, the Contractor shall pay
the difference to the Owner on demand.
Art. 12 - Miscellaneous
12.0~. This Contract contains the entire agreement between the part]es. Any oral representations, or
modifications concerning this Contract shall be of no force and effect, excepting:a subsequent modification In writing,
signed by the parties hereto.
12.02 This Contract shall bind and Inure to the benefit of the parties hereb3, their respective successors and
assigns except as otherwise expressly limited hereon. Contractor may not assign this Cor~bact without the prior written
consent of Owner.
~.2.03 Any notice, demand or other communication required or permitted to be given to either party hereunder
will be in writing, and will be deemed to have been delivered when actually received or, regardless of' whether or not
received, on the third day after having been deposited In the United States certified mail, return receipt requested,
postage prepaid, addressed to the respective parties at the addresses indicated below, or to such other address as
may hereafter be Indicated by written notice delivered in aceordance with the terms hereof to the other party:
IF TO OWNER:
The City of Port Arthur
444 4~ Street
Port Arthur, TX 77640
A'i'rN; Dale Watson or Beverly A. Freeman
IF TO CONTRACTOR:
FIN or SS #:
:1.2.04 This Contract shall be governed by and construed in accordance with the laws of the State of Texas.
12.05 Whenever the context of this Contract so requires, the use of any gender includes all gendem, and the
use of the singular Indudes the plural, and the plural the singular.
12.06 l'f any term, condition or provision of the Contract Is declared illegal or invalid for any reason by a court
of competent jurisdiction, the remaining terms, conditions, and provisions of this Contract shall, nevertheless, remain
In full force and effect.
12.07 All payments due hereunder to Contractor shall be payable in 3efferson County, Texas.
12.08 it is expressly agreed that this Contract may be signed In counterparts and It shall not be necessary that
each party hereto sign the same counterpart of this Contract, only that each party hereto sign at least one (1)
counterpart of this Contract, all of which counterparts when taken together shall constitute one (1) and the same
Contract. The signature of any party on a counterpart of this Contract transmitted by telefacslmlle shall be as valid
and binding on such party as an odginal signature.
IN WTrNESS WHEREOF, Owner and Contractor have executed this Contract on this the __
, 2002.
day of
OWNER:
The Oty of Fort Arthur
Stephen Rtzgibbens,
City Manager
CONTRACTOR:
EXHIBZl' ~A~
SZI'E PREPARATION AS SPECIFIED AT:
3110 Tyler --- $875
EXHI'BZT
Describe Work to be performed under Contract:
Perform site preparation to include removal of trees, slabs, sidewalks, steps &
debris, stump qrindinq and/or removal as specified in the bid documents.
SZGNED: