HomeMy WebLinkAboutPR 21630: EDC, MASTER, JOB ORDER CONTRACT WITH SETEX FACILITIES & MAINTENANCE, LLC FOR PHASE II P. R. No. 21630
11/3/20 FB
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY OF PORT
ARTHUR SECTION 4A ECONOMIC DEVELOPMENT
CORPORATION TO ENTER INTO MASTER A JOB ORDER
CONTRACT WITH SETEX FACILITIES & MAINTENANCE,
LLC FOR PHASE II OF THE RENOVATION OF "THE PRESS
BUILDING" (THE FORMER PORT ARTHUR NEWS
BUILDING), LOCATED AT 549 4TH STREET, IN AN AMOUNT
NOT TO EXCEED $1,600,000; FUNDING AVAILABLE IN EDC
ACCOUNT NO. 307-1601-591-82-00
WHEREAS, it is deemed in the best interest of the citizens of Port Arthur to create an
environment that promotes business, entrepreneurial and community development; and
WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation
("PAEDC") applied for and was awarded Economic Development Administration (EDA)
funding under the 2018 Disaster Assistance Grant Funds to renovate the former Port Arthur
News Building located at 549 4th Street in Port Arthur, Texas to serve as a Center for
Community and Business Development to be known as "The Press Building"; and
WHEREAS,on July 16, 2019 per Resolution No. 19-296, the City Council of the City
of Port Arthur authorized the PAEDC to enter into a Pre-Development Construction Services
Agreement with SETEX Facilities & Maintenance, LLC ("SETEX") for the renovation of the
former Port Arthur News Building; and
WHEREAS, on February 18, 2020 per Resolution No. 20-053, the City Council of the
City of Port Arthur authorized the PAEDC to enter into a Construction Manager Guaranteed
Maximum Price Agreement with SETEX Facilities & Maintenance, LLC ("SETEX") for the
addition and renovation of the former Port Arthur News Building at a cost not to exceed
$7,249,999.83 (Phase I); and
WHEREAS, it is necessary to complete Phase II of the project; and
WHEREAS, the City Council of the City of Port Arthur on September 15, 2020
approved Ordinance No. 20-83 adopting the budget for the Corporation which allocated
$1,000,000.00 towards the completion of the former Port Arthur News Building; and
WHEREAS, the PAEDC Board of Directors at their Special Meeting on September
14, 2020 approved the request of proposal from SETEX for the complete build out of 549 4th
Street; and
WHEREAS, on October 9, 2020 the PAEDC Board of Directors and the 501 Procter
Street Inc. Board of Directors held a joint Special Meeting; and 501 Procter Street Inc. Board
of Directors approved a granting of$600,000 to PAEDC for the completion of Phase II of the
build out of 549 4th Street the Press Building; and
WHEREAS,the PAEDC Board of Directors at their Regular Meeting of November 2,
2020 approved entering into a Job Order Contract with SETEX as shown in Exhibit "A" for
the completion of the build out of white box space and renovation of the former Port Arthur
News Building at a Maximum Guarantied Price not to exceed $1,600,000.00.
WHEREAS, Exhibit"B" to the Job Order Contract with SETEX is for the completion
of the build out of white box space in the former Port Arthur News Building at a cost not to
exceed $1,430,000.00; and
WHEREAS,Exhibit"C" to the Job Order Contract with SETEX is for the installation
of the second elevator for the former Port Arthur News Building at a cost not to exceed
$170,00.00.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR, TEXAS:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council of the City of Port Arthur authorizes the PAEDC to
enter into a Job Order Contract with SETEX to provide construction services(Phase II) for the
completion of the build out of the white box space and the installation of a second elevator to
the former Port Arthur News Building in an amount not to exceed $1,600,000.00.
Section 3. That a copy of the caption of this Resolution shall be spread upon the
Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of A.D.,
2020, at a Meeting of the City Council of the City of Port Arthur, Texas,by the following vote:
AYES:
Mayor
Councilmembers
•
NOES:
Thurman Bartie, Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED:
Floyd Batiste, PAEDC CEO
APPROVED AS TO FORM:
Guy N. Goodson, PAEDC Attorney
APPROVED AS TO FORM:
Valecia R. Tizeno, City Attorney
APPROVED AS TO AVAILABILITY OF FUNDS:
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Kandy Daniel, Inte 'm Finance Director
Exhibit "A "
A
Master Job Order Contract
This Job Order Contract('Contract')is made by and between the City of Port Arthur Section 4A Economic
Development Corporation,a political subdivision of the state of Texas,whose main office address is 501
Procter Street,Suite 100, Port Arthur,Texas 77640,and SETEX Facilities&Maintenance,LLC,whose
main office address is 1660 S 23rd Street,Beaumont,Texas 77707 for Job Order Contracting Services,
effective as of (date).
RECITALS
Whereas,Owner is in need of job order contracting services;and
Whereas,this Contract is for the provision of job order contracting services,to be performed on a non-
exclusive,indefinite quantity basis,as requested by Owner,in accordance with the terms of this Contract;
Whereas, Contractor has been procured as a Job Order Contractor vendor under Hams County
Department of Education("HCDE')Choice Partners Contract#20/017MR-17,and is available to Owner
through the Choice Partners purchasing cooperative as permitted by Subchapter I,Chapter 2269 of the
Texas Government Code;and
Whereas,Contractor represents that he has the knowledge,ability,skills and resources to provide such
job order contracting services in accordance with the terms and requirements of this Contract.
NOW,THEREFORE,in consideration of the mutual covenants and conditions contained in this Contract,
the receipt and sufficiency of which are hereby acknowledged, Owner and Contractor, intending to be
legally bound,hereby agree as follows:
I. DEFINITIONS
1.1 The term"Owner"means the City of Port Arthur Section 4A Economic Development Corporation
and includes Owner's duly authorized representative,including any person specifically authorized to act
for Owner by executing the Contract and any modification thereto.Owner's duties include administration
of the Contract, including the issuance of Job Order(s) and modifications and assessing progress;
inspecting and periodically reporting on such performance and progress during the stated period of
performance,and finally certifying as to the acceptance of the Work in its entirety or any portion thereof,
as required by the Contract.
1.2 The term"Contractor"means SETEX Facilities&Maintenance,LLC and includes Contractor's
senior manager or its duly authorized representative,including any person specifically authorized to act
for Contractor by executing the Contract and any modifications thereto. Contractors duties include
administration of the Contract and performance of the Work.
1.3 The term"Contract'as used herein means the documents that form the agreement between
Owner and Contractor. The Contract consists of this agreement, including its exhibits and any
modifications thereto,any Job Order(s)that may be issued,Choice Partners Contract#20/017MR-17,and
Contractor's proposal submitted in response to the solicitation issued by HCDE/Choice Partners for
Choice Partners Contract#20/017MR-17,which are fully incorporated herein for any and all purposes.
1.4 The term"Subcontract'as used herein means any agreement,including purchase orders(other
than one involving an employer-employee relationship)entered into by Contractor calling for equipment,
supplies or services required for Contract performance,including any modifications thereto.
1.5 The term "job order contracting' means maintenance, repair, alteration, renovation,
remediation or minor construction of a facility when the work is of a recurring nature but the delivery times,
type,and quantities of the work required are indefinite.
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1.6 The term "Job Order" means a specific written agreement between the Owner and the
Contractor for Work to be performed under this Contract,in the form of Attachment A hereto.
1.7 The term'Unit Price Guide'means the unit price book specified by HCDE/Choice Partners in
the procurement of Choice Partners Contract#l420/017MR-17.
1.8 The term'Coefficient Multiplier'means the numerical factor required to be applied pursuant
to Contractor's award under Choice Partners Contract#/$20/017MR-17 which is applied to the Unit Price
Guide unit prices to cover all of Contractor's costs in performing the Work of a Job Order.
1.9 The term'Non-Pre-priced Items°means the necessary,but incidental,parts of a Job Order that
are not susceptible to unit pricing using the pre-priced tasks in the Unit Price Guide.
1.10 The term"Work°means the doing of all things described in,reasonably related to,and necessary,
proper,or incidental to the work and services required by this Contract and/or a Job Order,whether in
whole or in part,and includes all labor,materials,tools,resources,supplies,equipment,permits,insurance,
transportation, supervision, management, operations, and performance of all tasks provided or to be
provided by Contractor to fulfill Contractor's obligations under this Contract,including any specific project
requirements defined and further described in any Job Order.
1.11 The term"pre-priced item"means pre-described and pre-priced tasks based on a unit price guide
and coefficient multiplier.
II. TERM OF AGREEMENT
2.1 Term: The initial term of this Contract is one(1)year and shall be effective (date)
through (date). Owner may exercise renewal options for up to four additional one-year
terms, in Owner's sole discretion, provided that Contractor is still an eligible vendor under the Choice
Partners purchasing cooperative. Job Orders may be issued at any time during the term of this Contract.
This Contract will remain in full force and effect during the performance of any Job Order issued by Owner.
2.2 Completion of Work in Progress:Owner has the option to extend the term of this Contract,or
any renewal period,as necessary for Contractor to complete work on any Job Order approved by Owner
prior to the expiration of the Contract
Ill. AUTHORIZED CONTRACT SUM
3.1 Contract Sum:The maximum aggregate contract expenditures for the initial one(1)year term is
The cost of each specifically authorized Job Order will be established in a"Job
Order"issued by Owner and executed by Owner and Contractor.Established cost amounts shall not be
increased except by written change order to a previously issued Job Order executed by Owner and
Contractor. As required by Texas Government Code Section 2269.403,the Owner's Board of Trustees
must approve any Job Order that exceeds$500,000. The Owners Board of Trustees may be required
to authorize Job Orders for lesser amounts as required by local Board policy.
3.2 No Minimum Amount of Work:It is expressly understood that Owner is under no obligation to
request any services from Contractor and no minimum amount of work is required under this Contract.
All service requests will be made by Owner on an as-needed basis,subject to future agreement on the
scope of the work and its cost(s),detailed in a specific Job Order.
IV. SPECIFICATIONS AND DRAWINGS
4.1 Retention of Drawings:Contractor shall keep on the Work site a copy of any drawings and/or
specifications for a Job Order and shall at all times give Owner access thereto.Anything mentioned in the
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specifications and not shown on the drawings, or shown on the drawings and not mentioned in the
specifications, shall be of like effect as if shown or mentioned in both. In case of differences between
drawings and specifications, the drawings shall govern. In case of discrepancy, either in the figures,
drawings,or the specifications,the matter shall be promptly submitted to Owner,who shall promptly make
a determination in writing regarding such discrepancy.Any adjustment by Contractor without such prior
written determination shall be at Contractor's own risk and expense and without any liability to Owner for
any adjustment made try Contractor. Owner shall furnish from time to time such detailed drawings and
other information as considered necessary,unless otherwise provided.
4.2 Shop Drawings:Shop drawings means drawings submitted to Owner by Contractor showing in
detail:
a. the proposed fabrication and assembly of structural elements;
b. the installation(i.e.,form,fit and attachment details)of materials
or equipment;and
c. the construction and detailing of elements of the Work.
Shop drawings include sketches, diagrams, layouts, schematics, descriptive literature, illustrations,
schedules,performance and test data,and similar materials furnished by Contractor to explain specific
portions of the Work.Owner may duplicate,use,and disclose in any manner and for any purpose shop
drawings delivered under the Contract
4.3 Contractor shall coordinate all shop drawings,and review them for accuracy,completeness,and
compliance with Contract and Job Order requirements and shall indicate its approval thereon as evidence
of such coordination and review.Owner will indicate its approval or disapproval of the shop drawings in
writing and if not approved as submitted shall indicate Owner's reasons therefore.My work done before
such prior written approval by Owner shall be at Contractors own risk and without any liability whatsoever
to Owner.
4.3 Contractor shall submit to Owner for approval in writing an appropriate number of copies of all
shop drawings. Sets of all shop drawings will be retained by Owner and one set will be returned to
Contractor.
4.4 "As-built'Drawings and Shop Manuals:Contractor is required to submit two complete sets of
`as-built'drawings to Contractor within 30 days after project acceptance.'As builds"shall be submitted
on paper as well as electronically.Contractor must also submit three copies of shop manuals at that time
if equipment has been installed as part of the Job Order.
4.5 Omissions from the drawings or specifications or the incorrect description of details of work
which are manifestly necessary to carry out the intent of the drawings and specifications shall not relieve
Contractor from performing such omitted or incorrectly described details of the Work.
4.6 Contractor shall check all of Owner's furnished drawings immediately upon receipt and shall
promptly notify Owner of any discrepancies.Figures marked on drawings shall be followed in preference
to scale measurements. Large scale drawings shall govern small scale drawings. Contractor shall
compare all drawings and verify the figures before laying out the Work and will be responsible for any
errors which might have been avoided thereby.
V. USE OF SPECIFICATIONS,DRAWINGS AND NOTES
5.1 All drawings(to include as-built drawings),sketches,designs,design data,specifications, note
books,technical and scientific data provided to Contractor or developed by Contractor pursuant to the
Contract and all photographs,negatives, reports,findings, recommendations, data and memoranda of
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every description relating thereto,as well as ail copies of the foregoing relating to the Work or any part
thereof,shall be the property of Owner and may be used by Owner without any claim by Contractor for
additional compensation,unless such material developed by Contractor does not result in an issued Job
Order. In such cases, Contractor will receive reasonable reimbursement for the development of such
materials before Owner uses them in any manner whatsoever.If Owner chooses not to use such materials
and no Job Order was issued, Contractor shall not be entitled to any compensation by Owner for any
expenses incurred by Contractor for the preparation or development of any of said materials, which
includes any and all general overhead costs for preparation of the materials.
VI. MATERIAL AND WORKMANSHIP
6.1 All equipment,material,and articles incorporated in the Work covered by this Contract shall be
new and of the most suitable grade for the purpose intended,unless otherwise specifically provided in the
Job Order.References in the Job Order and/or its specifications to equipment,material,article,or patented
process by trade name,make,or catalog number,shall be regarded as establishing a standard of quality
and shall not be construed as limiting competition.
6.2 Contractor shall obtain Owner's prior written approval of the machinery and mechanical and
other equipment to be incorporated into the Work.When requesting approval,Contractor shall furnish to
Owner in writing the name of the manufacturer,the model number,and other information concerning the
performance,capacity,nature,and rating of the machinery and mechanical and other equipment.When
required by the Contractor by Owner,Contractor shall also obtain Owner's written approval of the material
or articles which Contractor contemplates incorporating into the Work.When requesting approval, Job
Order Contractor shall provide full information concerning the material or articles.Machinery,equipment,
material and articles that do not have the required prior approval by Owner shall be installed or used at
the Contractor's risk of subsequent rejection and Owner shall not be liable for any costs incurred by
Contractor for said Machinery,equipment,material,articles.
VII. CONTRACTOR'S GENERAL RESPONSIBILITIES
7.1 In General:Contractor agrees to provide general and specific job order contracting services on
a per-project basis as requested by Owner in accordance with the terms of this Contract.Contractor shall
furnish all of the materials and perform all of the Work described in a Job Order. Contractor shall do
everything required by this Contract,the Job Order and any other requirements incorporated into this
agreement or a specific Job Order by reference.
7,2 Project Manager:Contractor shall manage and provide all labor and material necessary and
reasonably inferable for the complete performance of the Work on any project and/or Job Order authorized
pursuant to this Contract.
7.3 Standard of Care: Contractor agrees to use commercially reasonable best efforts, skill,
judgment,and abilities to perform the Work detailed in the Job Order in an expeditious and timely manner.
Contractor shall at all times provide a sufficient number of qualified, skilled personnel, who shall be
supervised by Contractor, to accomplish the Work within the time limits set forth in the Job Order.
Contractor shall also be responsible for all damages to persons or property that occur as a result of
Contractor's fault or negligence,and shall take proper safety and health precautions to protect the Work,
the workers,the public,and the property of others. All Work under the Contract shall be performed in a
skillful and workmanlike manner. Contractor and all subcontractors shall maintain all required licenses,
certifications, permits,and any other documentation necessary to perform this Contract and all Word
detailed in a Job Order. Unless otherwise specified in a Job Order,Contractor shall be responsible for
any required testing of materials prior to incorporation into the Work.
7.4 Compliance with Laws:Contractor shall comply with all applicable federal, state, and local
laws,regulations,codes,ordinances,orders and with those of any other body having jurisdiction over the
project detailed in the Job Order Contractor shall comply with all state and local building code
requirements unless otherwise specifically detailed in the Job Order. Contractor is required to adhere to
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all applicable local,state,and national design codes and requirements as well as Owner's construction
design standards.
7.5 Existing Conditions:Contractor shall use commercially reasonable best efforts to verify the
accuracy and suitability of any drawings, plans, sketches, instructions, information, requirements,
procedures,requests for action,and other data supplied to Contractor by Owner,or any other party,that
Contractor uses for the Job Order.
7.6 Correction of Work:Contractor shall promptly correct any known or discovered error,omission,
or other defect in the Work without any additional cost or expense to Owner.
7.7 Phasing: Contractor shall not proceed beyond any previously authorized phase of the Work for
a project unless authorized by Owner in writing,except at the Contractor's own financial risk. Applicable
phases of the scope of work shall be identified in the Job Order Proposal.
7.8 Representative:Contractor shall designate a representative primarily responsible for the Work
under this Contract and a specific Job Order. The designated representative shall act on behalf of
Contractor with respect to all phases of the Work and shall be available as required for the benefit of any
Job Order and Owner.The designated representative shall not be changed without prior written approval
of Owner,which approval shall not be unreasonably withheld.
7.9 Documentation:Contractor shall fully document its project activities, in drawings, reports or
other methods as appropriate to the scope of work and as identified in the Job Order Proposal and/or Job
Order.Unless otherwise stated in the Job Order or provided by Owner,Contractor shall bear the cost of
providing all plans,specifications and other documents used by Contractor and its consultants.Owner
will reimburse Contractor for the actual,documented costs of construction permits required for
the performance of the Work as specified in the Job Order. Unless otherwise stated in the Job Order,
Contractor shall secure and pay for all governmental fees, licenses,and inspections necessary for the
proper execution and completion of the Work.
7.10 Contractor shall be responsible for compliance with all safety rules and regulations of the Federal
Occupational Safety and Health Act of 1970(OSHA),all applicable state and local laws,ordinances,and
regulations during the performance of the Work.Contractor shall indemnify Owner for fines,penalties,and
corrective measures that result from the acts of commission or omission of Contractor,its subcontractors,
if any,agents,employees,and assigns and its failure to comply with such safety rules and regulations.
VIII, JOB ORDER PROCEDURES
8.1 Job Order Procedures
a. At Owner's discretion,Owner will submit a Job Order Proposal Request to Contractor for
the individual project(s). This request will include, at a minimum, the following: project
number,project title,name of Owner's project manager,Owner's customer point of contact,
location,the project architect and/or engineer,if any,and a general description of the project.
If a Job Order requires architectural or engineering services that constitute the practice of
architecture or engineering within the meanings of the Texas Occupations Code, Owner
shall select or designate an architect or engineer to prepare the construction documents for
the project.
b. Upon receipt of the Job Order Proposal Request Contractor shall promptly schedule a site
visit with the Owner's project manager.The site visit will be conducted at a mutually agreed
upon time,normally not later than three(3)business days from the time of notification.
c. During the site visit the following will be accomplished:
1.Pre-construction site inspection
2.Review and validate the description of work
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3 Develop draft detailed statement of work
4.Mark-up existing drawings to show required work(when existing drawings are
readily available)
5.Discuss project with end-user customer,ensure proposed work meets their objectives
6.Establish Contractor's due date for the Job Order Proposal
d. Contractor will keep adequate notes of the site visit,including a before picture,in color,
of the conditions,and provide a copy to Owner following completion of the site visit.
e. Contractor shall submit Contractor's Job Order Proposal within three(3)business days of
receipt of Owner's Job Order Proposal Request. Contractor's Job Order Proposal shall
include the following:
i. A narrative description of Contractor's understanding of the projects scope of work;
ii. A description of particular phases of the scope of the work;
iii. A cost proposal detailing:
1. the cost of the'pre-priced' items as taken from the unit price guide(The cost
proposal for each Job Order should be based substantially on the use of pre-
priced items);
2. the cost of any'non-pre-priced items(The proposed cost of all non-pre-priced
items in the cost proposal shall include all of Contractor's cost items otherwise
included in the coefficient multiplier used for pre-priced items. No coefficient
multiplier shall be applied to non-pre-priced items;
3. any other costs that the Contactor intends to charge to the project(Note that other
costs include extraordinary costs that are unique to a specific project and not
generally or reasonably included in the coefficient multiplier;other costs may be
added only if authorized or confirmed in writing by Owner. Other costs may be
calculated as a lump sum for the Job Order or on a snot to exceed°basis.);
4. a statement that all Contractor fees,overhead expenses and general conditions
are included in the cost proposal;and
5. a lump sum figure for performing the Work,if appropriate;
iv, A description of all plans,specifications and other documents,including construction
permits,to be used by Contractor in the performance of the Work;
v. A proposed time schedule showing the sequence in which Contractor proposes to
perform the Work and dates on which Contractor proposes to complete each phase
of the scope of the work,including a proposed date to commence the Work and a
proposed completion date of the Job Order.
vi. If required by Owner, Contractor must submit a schedule chart, which may be a
formal computerized schedule'or a progress chart in a bar chart format of suitable
scale to indicate appropriately the percentage of Work scheduled for completion by
any given date during the period.The schedule chart,if required,must contain:
a. A list of the different types of work activities or work elements.
b. Show the logical dependencies (ties)to indicate what Work must be
accomplished before other Work can begin.
c. Include proposed start and completion dates or time frames for
each work activity or work element.
d Calculate the"weighting"or relative worth each work activity or
work element is of the total project either as a percentage or dollar
amount.
e. Proposed traffic control methods providing all necessary traffic
control,such as street blockages,traffic cones,flagmen,etc.
vii. Contractor's designated representative primarily responsible for the Work;
viii. A list of all subcontractors who Contractor proposes to use in the performance of the
Work;
ix. Any qualifications or conditions applicable to the Job Order Proposal;and
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f. After Contractor's submission of its Job Order Proposal,Owner will review the Job Order
Proposal and either proceed to issuance of a Job Order or schedule a time to review the
Job Order Proposal with Contractor and negotiate any changes, clarifications or
modifications
g. Following the review of Contractor's Job Order Proposal, Owner shall issue Job Order in
writing,in a form materially consistent with Attachment A hereto,incorporating any changes,
clarifications or modifications to Contractor's Job Order Proposal made in the review
process,and attaching the final Job Order Proposal as an exhibit.
h. Once issued,the Job Order is a not to exceed contract amount for the Job Order.No line
item will be added to a Job Order because a line item was excluded by Contractor in
Contractor's Job Order Proposal or draft or final Job Order,however,the Owner shall
have no obligation to pay for goods or services contained in the Job Order Proposal that
are not provided.
i. Notice to Proceed:If a Commence Date is not stated in the specific Job Order,Owner shall
issue a written Notice to Proceed.The Notice to Proceed authorizes the Contractor to begin
the Work identified in the Job Order on the date fixed in the Notice to Proceed. Upon the
Commencement Date specified in the Job Order or Notice to Proceed,Contractor is fully
responsible far the scheduling, quality control, safety, and all other aspects of the
management of the project detailed in the Job Order.Owner may make periodic inspections
of the job site to ensure compliance;however,quality control is ultimately the Contractor's
responsibility.
j. Quality Assurance/Quality Control Plan: If requested by the Owner for a particular Job
Order,Contractor shall submit,for Owner approval,a Quality Assurance/Quality Control Plan.
This plan should address all aspects of quality control including responsibility for surveillance
of work, documentation, trend analysis, corrective action and interface with the Owner's
inspectors.
k. Weekly Reports: Contractor is required to submit weekly progress reports on each active
Job Order electronically or in paper form to Owner at the end of each work week,which shall
include a current schedule.
;. Schedule:Time is of the essence in rendering the services hereunder. The Job Order shall
include a time schedule for each phase of the Work for the Job Order,and Contractor agrees
to perform all obligations and render services in accordance with the schedule(s)established
in the Job Order. In emergency or non-standard situations,Owner may require Contractor
to complete a Job Order on an expedited basis.All Job Orders are to be completed within
the timelines agreed to by Owner and Contractor as detailed in the Job Order. If Contractor
falls behind the schedule detailed in the Job Order,Contractor shall take steps necessary to
improve its progress,including those that may be reasonably required by Owner. Without
additional cost to Owner,Owner may require Contractor to increase the number of shifts,
overtime operations,days of work,and/or the amount of construction plant or equipment,
and to submit for approval any supplementary schedule or schedules in chart form as Owner
deems necessary to demonstrate how the approved rate of progress will be regained.
m.Emergency Work: Contractor will give top priority to any emergency work Owner may have
and will allocate all resources necessary to accomplish such work in accordance with
Owner's schedule requirements.
IX. OWNER'S RESPONSIBILITIES
9.1 Representative:Owner designates the Alam Farias,Powers Brown Architecture of Texas,LLC
or his/her designee as its representative authorized to act in Owner's behalf with respect to the Job
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Order(s).Contractor shall coordinate its work solely through the designated representative.
9.2 Special Information:Unless otherwise detailed herein or in the Job Order,Owner shall furnish
available any relevant property,boundary,easement,right-of-way,topographic and utility surveys;plans '
and specifications; and other special data and conditions relevant to the project. Owner makes no
warranties or representations as to the accuracy or suitability of information provided to Contractor by
Owner or by others.
9.3 Entry on Land:Owner shall assist Contractor in gaining entry to Owner's property as necessary
for Contractor to perform its services under this Contract.
9.4 Review of Work:Owner will review the Work in progress as appropriate.At the completion of
the Job Order, Owner(or Owner's Architect/Engineer,if any)shall do a walk through to ensure that the
Work is completed in accordance with the Job Order.Owner will notify Contractor in writing of any material
error or omission or other defect in the Work or any conflict in the contract documents that Owner becomes
aware of,but Owner shall have no obligation or duty to investigate whether such faults,defects,or conflicts
exist.
9.6 Time for Response: Owner shall furnish required information and services and shall render
approvals and decisions as expeditiously as necessary for the orderly progress of Contractor's services
and of the Work.
X. SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK
10.1 Contractor's acceptance of a Job Order entered into pursuant to this Contract shall constitute
Contractor's acknowledgement that Contractor has taken steps reasonably necessary to ascertain the
nature and location of the Work for the specific Job Order,and that Contractor has investigated and
satisfied itself as to the general and local conditions which can affect the Work or its cost,including but
not limited to:
a. Conditions bearing upon transportation,disposal,handling,and storage of materials;
b. The availability of labor,water,electric power,and roads;
c. Uncertainties of weather,river stages,tides,or similar physical conditions at the site;
d. The conformation and conditions of the ground;and
e. The character of equipment and facilities needed preliminary to and during work
performance.
10.2 Contractor's arrpptance of a Job Order entered into pursuant to this Contract shall constitute
Contractor's acknowledgement that Contractor has satisfied itself as to the character,quality,and quantity
of surface and subsurface materials or obstacles to be encountered insofar as this information is
reasonably ascertainable from an inspection of the site,including all exploratory work done by Owner,as
well as from the drawings and specifications made a part of this Contract.
10.3 Owner Furnished Utilities:Owner shall provide,at no cost to Contractor,wet and dry utilities and
toilet facilities that are existing and available at each site for Work performed under the Job Order.If utilities
and/or toilet facilities are not existing and available,the costs for such shall be included in the Job Order
Proposal. It is the responsibility of Contractor to determine the extent to which existing Owner utilities are
adequate for the needs of the Job Order.
10.4 Asbestos Certification Statement:If required by Owner,Contractor shall provide a certification
statement for each Job Order,stating that no asbestos-containing materials or work is included within the
scope of the Job Order.If required by Owner,Contractor shall provide,at completion of the Job Order,a
notarized affidavit to Owner stating that no asbestos-containing materials or work was provided,installed,
furnished or added to the project.
10.5 If required, Owner shall provide a survey in accordance with the Texas Asbestos Health '
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Protection Rules prior to the commencement date of the Job Order. Contractor shall take whatever
measures he deems necessary to ensure that all employees, suppliers, fabricators, material men,
subcontractors,or their assigns,comply with this requirement. All materials used on a Job Order shall be
certified as non-Asbestos Containing Building Materials(ACBM).Contractor shall insure compliance with
the following acts from Contractor and all of Contractor's subcontractors and assigns:
a. Asbestos Hazard Emergency Response Act(AHERA-40 CFR 763-99(7));
b. National Emission Standards for Hazardous Air Pollutants(NESHAP—EPA 40 CFR
61,National Emission Standard for Asbestos;
c. Texas Asbestos Health Protection Rules(TAHRP—Tex.Admin.Code Title 25,Part
1,Ch.295C,Asbestos Health Protection
Every subcontractor shall provide a notarized statement that no ACBM has been used,provided,or left
on a Job Order.Contractor shall provide,in hard copy and electronic form,all necessary material safety
data sheets(MSDS)of all products used in the Job Order to the Texas Department of Health licensed
inspector or Owner's architect or engineer,if any,who will compile the information from the MSDS and,
finding no asbestos in any of the product,make a certification statement.
10.6 Differing Site Conditions:Contractor shall promptly,and before the conditions are disturbed,
give a written notice to Owner of
a. Subsurface or latent physical conditions at the site which differ materially from those
indicated in the Contract,or
b. Unknown physical conditions at the site,of an unusual nature,which differ materially from
those ordinarily encountered and generally recognized as inherent in work of the character
provided for in the Contract,
10.7 Investigation by Owner Owner shall investigate the site conditions promptly after receiving the
notice.If the conditions do materially differ and cause an increase or decrease in Contractor's cost or the
time required for performing any part of the Work,an equitable adjustment shall be made and the Job
Order modified in writing accordingly.
10.8 Equitable Adjustment No request by Contractor for an equitable adjustment to the Job Order
under this Article shall be allowed unless Contractor has given the written notice required.No request by
Contractor for an equitable adjustment to the Job Order for differing site conditions shall be allowed if
made after final payment under such Job Order.
XL INSPECTION OF CONSTRUCTION AND OWNER'S ACCEPTANCE OF WORK
11.1 Contractor Inspection System:Contractor shall maintain an adequate inspection system and
perform such inspections as well as ensure that the Work called for conforms to the Job Order.Contractor
shall maintain complete inspection records and make them available to Owner.All work is subject to
inspection and testing by Owner at all places and at all reasonable times before final acceptance of the
Work to ensure strict compliance with the terms of the Contract and the Job Order.
11.2 Owner's Satisfaction: All Work performed under this Contract shall be completed to the
satisfaction of Owner's representative assigned to the Job Order.Owner's representative shall decide all
questions regarding Contractor's performance under the Contract and Job Order,and such decisions shall
be final and conclusive.
11.3 Non-Conformance:Contractor shall,without charge,replace or correct Work found by Owner
not to conform to a Job Orders requirements,unless Owner consents,in writing,to accept the Work with
an appropriate adjustment in contract price. Contractor shall promptly segregate and remove rejected
material from the premises,if required by Owner.
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11.4 Failure to Conform:If Contractor does not promptly replace or correct rejected Work,Owner
may:
a. By contract or otherwise,replace or correct the Work and charge the
cost to Contractor,and/or
b. Terminate the Contractor for default upon seven(7)days written notice.
11.5 Liability:Owner's approval or acceptance of Contractor's Work shall not release Contractor
from any liability for any defects in the Work,
11.6 Owner inspections and tests,if any,are for the sole benefit of Owner and do not:
a. Relieve Contractor of responsibility for providing adequate quality control measures;
b. Relieve Contractor of responsibility for damage to or loss of the
material before acceptance;
c. Constitute or imply acceptance;or
d. Affect the continuing rights of Owner after acceptance of the complete work.
11.7 The presence or absence of an inspector does not relieve Contractor from any Contract or Job
Order requirement,nor is the inspector authorized to change any term or condition of the Job Order
without Owner's written authorization.
11.8 Contractor shall promptly furnish,without additional charge,all facilities,labor,and material
reasonably needed for performing such safe and convenient inspections and tests as may be required
by Owner.Owner may charge to Contractor any additional cost of inspection or test when Work is not
ready at the time specified by Contractor for inspection or test, or when prior rejection makes re-
inspection or retest necessary.Owner shall perform all inspections and tests in a manner that will not
unnecessarily delay the Work.Special,full size and performance tests shall be performed as described
in the Job Order,
11.9 If,before acceptance of the entire Work,Owner decides to examine already-completed Work
by removing it or tearing it out,Contractor,on request,shall promptly furnish all necessary facilities,labor,
and material for this task. If the Work is found to be defective or nonconforming in any material respect
due to the fault of Contractor or its Subcontractors,Contractor shall bear the expenses of the examination
and of satisfactory reconstruction.However,if the Work is found to meet requirements,Owner shall make
an equitable adjustment for the additional services involved in the examination and reconstruction,
including, if completion of the Work was thereby delayed, an extension of the period of time for
performance.
11.10 Substantial Completion means the date on which the Work,or an agreed-upon portion of the
Work, is sufficiently complete so that Owner can occupy and use the Work or a portion thereof for its
intended purposes. Unless otherwise specified in the Job Order, Owner shall accept,as promptly as
practicable after completion and inspection,all Work required by the Job Order or that portion of the Work
Owner determines can be accepted separately.Acceptance shall be final and conclusive,except for latent
defects,fraud,gross mistakes amounting to fraud,or Owner's rights under any warranty or guarantee.
11.11 Use and Possession Prior to Completion:Owner shall have the right to take possession of
or use any completed or partially completed part of the Work.Before taking possession of or using any
work,Owner shall furnish Contractor a list of items of work remaining to be performed or corrected on
those portions of the Work that Owner intends to take possession of or use.However,failure of Owner to
list any item of work shall not relieve Contractor of responsibility for complying with the terms of this
Contract or the Job Order.Owner possession or use shall not be deemed an acceptance of any work
under this Contract. While Owner has such possession or use, Contractor shall be relieved of the
responsibility for the loss of or damage to the Work resulting from Owners possession or use. If prior
possession or use by Owner delays the progress of the Work or causes additional expense to Contractor,
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and such expenses or delays are adequately documented and substantiated by Contractor,an equitable
adjustment shall be made in the Job Order price and/or the period of performance,and the Job Order
shall be modified in writing accordingly.
11.12 Close-Out Documentation: Contractor shall provide the following as part of the close-out
documentation:
a. An electronic file of all documentation specific to every job order project shall be
submitted with close-out documents.
b. All forms below must be included with the final payment documentation of the project,as
applicable:
1) Owner's Manual(s)
2) MSDS
3) Submittals(Ex:Paint colors,carpet,equipment,supplies,and etc.)
4) Warranties
5) Conditional Lien Release
6) Copies of all applicable permits,licenses,and/or other regulatory documents.
c. Contractor shall be required to submit any/all additional documentation that is related
to any project upon request by the Director of Maintenance.
XII. PROTECTION OF EXISTING VEGETATION,STRUCTURES,UTILITIES AND
IMPROVEMENTS;TRAFFIC CONTROL
12.1 Preservation:Contractor shall preserve and protect all structures,equipment and vegetation
(such as trees,shrubs,and grass)on or adjacent to the Job Order site,which is not to be removed and
which does not unreasonably interfere with the Work required under the Job Order.Contractor shall only
remove trees when specifically authorized by Owner to do so,and shall avoid damaging vegetation
that will remain in place.If any limbs or branches of trees are broken during performance by the operation
of equipment,or by workmen,Contractor shall trim those limbs or branches with a clean cut and paint the
cut with a tree pruning compound as directed by Owner.
12.2 Existing Improvements:Contractor shall protect from damage all existing improvements and
utilities at or near the Job Order site and on adjacent property of third parties,the locations of which are
made known to or should be known by Contractor.Contractor shall repair any damage to those facilities,
including those that are the property of third parties,resulting from failure to comply with the requirements
of this Contract or the Job Order or failure to exercise reasonable care in performing the Work. If
Contractor fails or refuses to repair the damage promptly, Owner may have the necessary repair work
performed and charge the cost to Contractor.
12.3 Traffic Control: Contractor shall be responsible for providing all necessary traffic control,such
as street blockages,traffic cones,flagmen,etc.,as required for each Job Order.Proposed traffic control
methods and costs shall be submitted to Owner for approval in Contractor's Job Order Proposal.
XIII. CLEANING UP AND REFUSE DISPOSAL
13.1 Contractor shall at ail times keep the Job Order site, including storage areas, free from
accumulations of waste materials.Before completing the Work,Contractor shall remove from the premises
any rubbish, tools, scaffolding, equipment, and materials that are not the property of Owner. Upon
completing the Work,Contractor shalt leave the site in a clean and orderly condition satisfactory to Owner.
Contractor shalt be responsible and liable for all construction refuse disposal containers and their removal
from the site. Disposal of any hazardous materials not addressed and priced in the Job Order will be
segregated for disposal by Owner unless Owner requires Contractor to dispose of the materials,in which
case,an equitable adjustment in the price will be negotiated and agreed upon. Contractor shall not use
Owner's trash containers for any reason.
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XIV. WARRANTY OF CONSTRUCTION
14.1 Warranty:In addition to any other warranties specified in any Job Orders,Contractor warrants,
for the maximum period allowed by law,and except as otherwise specifically provided herein,that Work
performed conforms to the Job Order and is free of any defect in equipment,material or design furnished,
or workmanship performed by Contractor or any of its subcontractors or suppliers at any tier. The
Contractor shall be obligated to repair or replace any defective or non-conforming Work for a period of
one(1)year from the date of final acceptance of the Work.If Owner takes possession of any part of the
Work before final acceptance,this one(1)year correction period shall continue for a period of one(1)
year from the date possession is taken.
14.2 Non-Conformance: Contractor shall remedy,at Contractor's sole expense,any failure of the
Work to conform to the Job Order, or any construction defect occurring during the warranty period. In
addition,the Contractor shall remedy,at Contractor's expense,any damage to Owner's real or personal
property,when that damage is the result of
a. Contractors failure to conform to requirements in this Contract or the Job Order;or
b. Any defect of equipment,material,workmanship,or design furnished by the Contractor.
If Contractor,after notice, fails to proceed promptly and remedy the problem within thirty(30)calendar
days or within another period of time which has been agreed to in writing, in compliance with the
terms of the warranty,Owner may have the defects corrected and the Contractor and its surety shall be
liable for all expenses Incurred.
14.3 Restoration:Contractor shall restore any work damaged in fulfilling the terms and conditions of
this Section.Contractor's warranty with respect to work repaired or replaced will run for one(1)year from
the date of repair or replacement.Owner shall notify Contractor,in writing,within a reasonable time after
the discovery of arty failure,defect,or damage.If Contractor fails to remedy any failure,defect,or damage
within a reasonable time after receipt of notice,Owner shall have the right to replace,repair,or otherwise
remedy the failure,defect or damage at Contractor's expense,and Contractor shall be liable to owner for
any damages sustained by Owner as a result of the failure,defect,or damage.
14.4 Third-Party Warranties: With respect to all warranties, expressed or implied, from
subcontractors,manufacturers, or suppliers for work performed and materials furnished for Job Orders
issued under this Contract,Contractor shall:
a. Obtain all warranties required by the Job Order,
b. Require all warranties to be executed,in writing,for the benefit of Owner;and
c. Enforce all warranties for the benefit of Owner,
14.5 Warranty Expiration: In the event Contractor's warranty under paragraph 14.1 of this Article
has expired,Owner may bring suit to enforce a subcontractor's,manufacturers,or supplier's warranty.
14.6 Owner Liability:Unless a defect is caused by the negligence or intentional act or failure to act
of Contractor or subcontractor or supplier at any tier,Contractor shalt not be liable for the repair of any
defects of material or design furnished by Owner or for the repair of any damage which results from any
defect in Owner-furnished material or design.Contractor is not responsible for and does not warranty pre-
existing work or facilities that may be assigned to Contractor except as stated in the Job Order.
14.E This warranty shall not limit Owner's rights under this Contract and/or applicable law with respect
to latent defects,gross mistakes,breach of contract or fraud.
XV. PAYMENT
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15.1 Compensation: Costs for equipment, material, and labor shall be in accordance with the
Contract. Owner shall pay Contractor for Work performed on Job Orders authorized by Owner in writing,
subject to allowable additions and deductions. Owner shall pay all unpaid and undisputed amounts due
Contractor under this Contract within thirty(30)days of receipt of invoice. If payment is later than forty-
five(45)days, interest will be set no higher than six percent(6%)per annum. If Work or any portion
thereof has not met the satisfactory approval of Owner's Representative, current and future payments
shall not be made until both parties agree that the Work or the portion thereof has been completed in a
satisfactory manner or the Work is acceptable.Notwithstanding any provision herein to the contrary,no
payment of amounts owed hereunder shall be considered past due or not paid when due except in
accordance with Section 2251.021 of the Texas Government Code.
15.2 Progress Payments: If required by the Job Order, Owner shall make progress payments
monthly as the Work proceeds,or at more frequent intervals as determined by Owner,on estimates of
Work completed submitted by Contractor and approved in writing by Owner. Contractor shall use an
acceptable invoice form and shall include supporting documents to reflect a written breakdown of the total
price showing the amount included therein for each principal category of the Work, in such detail as
requested,to provide a basis for determining progress payments.In the estimation of Work completed,
Owner will authorize payment for material delivered on the site and preparatory work done if Contractor
furnishes satisfactory evidence that it has acquired title to such material and that the material will be used
to perform the Work.
15.3 Application for Payment With each Application for Payment,Contractor must attach/detail
the following information:
(1) Defective Work not remedied.
(2) Legal claims filed against Contractor or reasonable evidence indicating probable
filing of claims;
(3) Failure of Contractor to make payments properly to any subcontractor or
supplier for material or labor;
(4) A reasonable doubt that the Job Order can be completed for the unpaid Job Order
balance;and
(5) Damage to another contractor,
15.4 Payment Retention: In the processing of progress payments,Owner shall retain five percent
(5%)of the estimated amount until final completion and acceptance of all Work performed under the Job
Order. Retention applicable to each Job Order shall be released within thirty (30) days after final
completion of the Job Order and acceptance of the Work under the Job Order.
15.5 Liquidated Damages:Contractor is expected to complete each Job Order on a timely basis.
Liquidated damages may be assessed at Owner's option for Contractor's failure to timely complete each
Job Order and/or phase of the scope of work detailed in a Job Order. Owner may withhold as liquidated
damages,or require Contractor to pay a'per day"amount,to be set forth in the Job Order,as liquidated
damages for any Work not completed by the completion day set forth in the Job Order. These liquidated
damages are not a penalty but are compensation to Owner for additional expenses incurred and
inconvenience caused by Contractor's failure to allow Owner to receive the premises at the designated
time of completion.
XVI. TERMINATION FOR CONVENIENCE OF OWNER
16.1 Termination:Owner may,with or without cause,terminate performance of the Work under this
Contract or any Job Order in whole or,from time to time,in part,if Owner determines that termination is
in Owner's interest.Owner shall effect such termination by delivering to Contractor a Notice of Termination
specifying the extent of termination and the effective date.
16.2 After receipt of a Notice of Termination, and except as directed by Owner, Contractor shall
13
immediately proceed with the following obligations,regardless of any delay in determining or adjusting
any amounts due under this Article:
a. Stop work as specified in the notice;
b. Place no further subcontracts or orders(referred to as subcontracts in this Article)for
materials, services or facilities, except as necessary to complete any Work not
terminated;
c. Assign to Owner,as directed by Owner,all right,title,and interest of Contractor under
the subcontracts to the extent they relate to the Work terminated,in which case Owner
shall have the right to settle or to pay any termination settlement proposal arising out of
those terminations, or with approval or ratification to the extent required by Owner,
Contractor shall settle all outstanding liabilities and termination settlement proposals
arising from the termination of subcontracts,the approval or ratification of which will be
final for purposes of this Section;
d. As directed by Owner,transfer title and deliver to Owner.
i. The fabricated or un-fabricated parts, Work in process, completed Work,
supplies,and other material produced or acquired for the Work terminated,and
ii. The completed or partially completed plans,drawings, information, and other
property that,if the Contract and/or Job Order had been completed,would be
required to be furnished to Owner,
e. Complete performance of the Work not terminated;
f. Take any action that may be necessary,or that Owner may direct,for the protection
and preservation of the property related to this Contract and/or the Job Order that is in
the possession of Contractor and in which Owner has or may acquire an interest;
g. Use its best efforts to sell,as directed or authorized by Owner,any property of the types
referred to in paragraph 16.2(c) above; provided, however, that Contractor is not
required to extend credit to any purchaser and may acquire the property under the
conditions prescribed by, and at prices approved by, Owner. The proceeds of any
transfer or disposition will be applied to reduce any payments to be made by Owner
under the Contract and/or Job Order,credited to the price or cost of the Work,or paid
in any other manner directed by Owner.
XVII. DEFAULT
17.1 Termination of Right to Proceed:If Owner determines that Contractor is not prosecuting the
Work with sufficient diligence to ensure completion within the time specified in the Job Order,or fails to
complete the Work within this time,Owner may terminate the Contractor's right to proceed with the Work
(or separable part of the Work),upon seven(7)calendar days'written notice to the Contractor. In this
event,Owner may take over the Work and complete it by contract or otherwise and may take possession
of and use any materials,appliances,and plant on the site necessary for completing the Work.
Contractor's right to proceed shall not be terminated under this Section,if
a. The delay in completing the Work arises from unforeseeable causes beyond the
control and without the fault or negligence of Contractor.Examples of such causes
include:
acts of God or of the public enemy,
ii. acts of Owner in its contractual capacity,
14
iii. acts of another Contractor in the performance of a written Contract with Owner,
iv. fires,
v. floods,
vi. epidemics,
vii. quarantine restrictions,
viii. strikes,
ix. freight embargoes,or
x. unusually severe weather
b. Contractor,within seven(7)calendar days from the beginning of any such delay(unless
extended by Owner),shall notify Owner in writing of the causes of delay.Owner shall
ascertain the facts and the extent of delay.If,in the judgment of Owner,the findings of
fact warrant such action,the time for completing the Work under the Job Order shall be
extended.
If,after termination of Contractor's right to proceed,it is determined that Contractor was not in default,or
that the delay was excusable,the rights and obligations of the parties will be the same as if the termination
had been issued for the convenience of Owner. The rights and remedies of Owner in this Article are in
addition to any other rights and remedies provided by law or under this Contract.
17.2 Termination for Default: In the event Contractor fails to carry out or comply with any of the
terms and conditions of this Contract or any Job Order,Owner may notify Contractor of such failure or
default in writing and demand that the failure or default be remedied within seven(7)calendar days;in the
event Contractor fails to remedy such failure or default within seven(7)day period,Owner shalt have the
right to terminate this Contract and/or any Job Order. Without limiting the foregoing,the following shall
constitute a material breach by Contractor,upon the occurrence of which Contractor shall immediately
notify Owner. Contractor (i)ceases its business operations; (ii) makes a general assignment for the
benefit of creditors;(iii)is adjudged bankrupt;or(iv)becomes insolvent.
17.3 Effect of Termination: Termination of this Contract or any Job Order under any circumstances
whatsoever shalt not effect or relieve Contractor from any obligation or liability that may have been incurred
or will be incurred,and such termination by Owner shall not limit any other right or remedy available to
Owner at law or in equity.
XVIII. CANCELLATION FOR CONFLICT OF INTEREST
18.1 Pursuant to applicable law,Owner may cancel this Contract,without penalty or further obligation
to Contractor,if any person significantly involved in initiating, negotiating,securing,drafting or creating
this Contract on behalf of the Owner was at any time while this Contract or extension of this Contract is in
effect,an employee or agent of any other party to this Contract in any capacity or consultant to any other
party of this Contract.A cancellation made pursuant to this provision shall be effective when the Contractor
receives written notice of the cancellation unless the notice specifies a later time.
XIX. INSURANCE
19.1 Contractor shall purchase and maintain in effect during the term of this Contract insurance of
the types and with minimum limits of liability as stated below.Such insurance shall protect Contractor from
claims which may arise out of or result from Contractor's operations whether such operations are
performed by Contractor or by any subcontractor or by anyone for whose acts any of them may be liable.
a. frVORKERS COMPENSATION INSURANCE providing statutory benefits in accordance
with the laws of the State of Texas or any federal statutes as may be applicable to the
15
Work being performed under this Contract
b. EMPLOYER'S LIABILITY INSURANCE with limits of liability not less than:
$1,000,000 EachAccident
$1,000,000 Policy Limits
$1,000,000 Each Employee
c. COMMERCIAL GENERAL LIABILITY INSURANCE including products/Completed
Operations and Contractual liability with limits of liability not less than:
Occurrence/Personal Injury/Advertising/
$1,000,000 CSL Products/Completed Operations
$2,000,000 CSL Annual Aggregate
$2,000,000 CSL Products Aggregate
$1,000,000 CSL Fire,Lightning or Explosion
$5,000 Per Person Medical Expense
d. AUTOMOBILE LIABILITY INSURANCE covering all owned, hired and non-owned
motor vehicles used in connection with the:Wo k being per riled under this Contract
with limits of liability not less than:
$1,000,000 Bodily Injury/Property Damage Canasetted NUN Pima review-this section can be replacedi
ke reform*to a standard District insurance exhibit order District's
19.2 Such insurance as is provided herein shall be primary and non-contributing with any other valid stands kauransti requirements placed hem
and collectible insurance available to Owner.
19.3 Al! policies providing Contractor's insurance as required in paragraph 19.1 above shall be
endorsed to provide the following:
a. Ninety(90)days written notice of cancellation or non-renewal given to Owner at the
address designated in Section 23.
b. Owner be named as Additional Insured on all policies except Workers Compensation
(Prohibited by Law).
c. Waiver of Subrogation added by endorsement on all policies.
19.4 The limits of liability as required above may be provided by a single policy of insurance or by a
combination of primary,excess or umbrella policies.In no event,however,shall the total limits of liability
available for any one occurrence or accident be less that the amount(s)required above.
19.5 Proof of compliance with these insurance requirements shall be furnished to Owner in the form
of an original certificate of insurance signed by an authorized representative or agent of the insurance
company(ies)within ten(10)days of execution of this Contract Renewal or replacement certificates shall
be furnished to Owner not less than twenty-one(21)days prior to the expiration or termination date of the
applicable policy(ies). If Contractor fails to maintain the required amounts of insurance or allows the
policies to lapse or expire during the term of the Contract,Owner may purchase said insurance and deduct
the cost of obtaining the insurance from Contractor's contract sum.
19.6 Contractor shall require any and all subcontractors performing Work under this Contract to
carry insurance of the types and with limits of liability as Contractor shall deem appropriate and
adequate for the Work being performed.Contractor shall obtain and make available for inspection by
Owner upon request current certificates of insurance evidencing insurance coverage carried by such
subcontractors.
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19.7 Mail the original certificate of insurance
to:
Mr.Floyd Batiste
CEO,Executive Director
City of Port Arthur Section
dA Economic Development
Corporation
501 Procter Street,Suite 100
Port Arthur,Texas 77640
Mr.Alam Ferias
Architect
Powers Brown Architecture
2100 Travis Street Suite 501
Houston,Texas 77002
XX. CHANGES
20.1 Owner may,at any time,without notice to the sureties,if any,by written order designated or
indicated to be a change order, make changes in the Work within the general scope of a Job Order,
including changes:
a. In the specifications(including drawings and designs);
b. In Owner-furnished facilities,equipment,materials,services,or site;or
a Directing acceleration in the performance of the Work, or otherwise altering the
schedule for performance of the Work.
20.2 Any other written order (which, as used in this paragraph, includes direction, instruction,
interpretation, or determination)from Owner that causes a change shall be treated as a change order
under this Article; provided, that Contractor gives Owner timely written notice stating the date,
circumstances,and source of the order and that Contractor regards the order as a change order.
20.3 Except as provided in this Article,no order,statement,or conduct of Owner shall be treated
as a change under this Article or entitle Contractor to an equitable adjustment hereunder.
20.4 Contractor must submit any proposal under this Article within thirty(30)calendar days after:
a. Receipt of a written change order under Paragraph 20.1 above or,
b. The furnishing of a written notice under Paragraph 20.2 above,
by submitting to Owner a written statement describing the general nature and amount of the proposal,
unless this period is extended by Owner.The statement of proposal for adjustment may be included in
the notice under Paragraph 20.2 above.
20.5 No proposal by Contractor for an equitable adjustment shall be allowed if asserted after final
payment under the Job Order.
XXI. PAYMENT AND PERFORMANCE BONDS
21.1 Payment Bond:
17
Contractor shall furnish a Payment Bond in the amount equal to one hundred percent(100%)of the
contract amount if the Job Order is in excess of$25,000,
21.2 Performance Bond:
Contractor shall furnish a Performance Bond in the amount equal to one hundred percent(100%)of the
Job Order amount if the Job Order is in excess of$100,000.00. The bonds must be executed by a
corporate surety authorized to do business in Texas and licensed in Texas to issue surety bonds,and
must be executed by a surety company that is authorized and admitted to write surety bonds in Texas.If
the amount of the bond exceeds$100,000.00,the surety must:
(a) Hold a certificate of authority from the U.S.Secretary of the Treasury to qualify as a surety on
obligations permitted or required under federal law;or
(b) Have obtained reinsurance for any liability in excess of$100,000.00 from a reinsurer that is
authorized and admitted as a reinsurer in Texas and is the holder of a certificate of authority
from the U.S. Secretary of the Treasury to qualify as a surety or reinsurer on obligations
permitted or required under federal law.
21.3 The Performance and/or Payment Bonds must be submitted to Owner before commencement
of any work.The bonds must be made payable to Owner.
XXii, PREVAILING WAGE RATES
22.1 Contractor shall comply with,and ensure each subcontractor complies with,all applicable laws
regarding prevailing wage rates,including, but not limited to,Chapter 2258 of the Texas Government
Code and any related federal requirements applicable to a Job Order. Contractor and all subcontractors
shall comply with all state and federal laws including, but not limited to,laws of labor,minimum wage,
safety,and equal employment opportunity.Contractor and all subcontractors must pay not less than the
general prevailing wage rate plus any applicable fringe benefits.Contractor shall pay riot less than the
wage scale of the various classes of labor as detailed in the prevailing wage schedule detailed in
Attachment B.
XXIII. MISCELLANEOUS PROVISIONS
23.1 Independent Contractor: Contractor acknowledges that it is engaged as an independent
contractor and that Owner shall have no responsibility to provide Contractor or its employees with
transportation,insurance or other fringe benefits normally associated with employee status.Contractor is
responsible for all income taxes required by applicable law. It is the intention of the parties that Contractor
is independent of Owner and is not an employee,agent,joint venture,or partner of Owner. Contractor
acknowledges that Owner has no responsibility for any conduct of any Contractor's employees,agents,
representatives,contractors,or subcontractors.
23.2 Confidentiality: Contractor shall treat any information supplied by Owner or information
pertaining to Owner as confidential and shall not disclose any such information to others except as
necessary for the performance of this Contract or a Job Order or as authorized by Owner in writing or
except when required by law.
23.3 Successors and Assigns:Owner and Contractor,respectively,bind themselves,their partners,
successors, assigns and legal representatives to the other party to the terms and conditions of this
Contract. This Contract is a personal service contract for the services of Contractor, and Contractor's
interest in this Contract, duties hereunder and/or fees due hereunder may not be assigned or delegated •
to a third party without written consent of Owner.The benefits and burdens of this Contract are,however,
assignable by Owner.
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23.4 Loss of Funding: Performance by Owner under this Contract may be dependent upon the
appropriation and allotment of funds by the Texas State Legislature(the`Legislature°)and/or allocation
of funds by the Owner's Board of Trustees. If the Legislature fails to appropriate or allot the necessary
funds, or the Board fails to allocate the necessary funds, then Owner shall issue written notice to
Contractor and Owner may terminate this Contract without further duty or obligation hereunder.Contractor
acknowledges that appropriation,allotment,and allocation of funds are beyond the control of Owner. The
parties agree that this.Contract and any Job Order issued by Owner are commitments of Owner's current
revenue only. Every payment obligation of Owner under this Contract is conditioned upon the availability
of funds appropriated or allocated for the payment of such obligation. If funds are not allocated and
available for the continuance of this Contract or any Job Order,this Contract or any Job Order may be
terminated by Owner at the end of the period for which funds are available.
23.5 Open Records: Contractor acknowledges that Owner is subject to the Texas Public Information
Act,and Contractor waives any claim against and releases from liability Owner,its officers,employees,
agents, and attorneys with respect to disclosure of information provided under or in this Contract or
otherwise created,assembled,maintained,or held by Contractor or Owner and determined by Owner,the
Attorney General of Texas,or a court of law to be subject to disclosure under the Texas Public Information
Act.
23.6 Franchise Tax Certification:A corporate or limited liability company Contractor certifies that it
is not currently delinquent in the payment of any franchise taxes due under Chapter 171 of the Texas Tax
Code,or that the corporation or limited liability company is exempt from the payment of such taxes,or that
the corporation or limited liability company is an out-of-state corporation or limited liability company that is
not subject to the Texas Franchise Tax,whichever is applicable.
23.7 Taxes:Owner is tax exempt,and Contractor shall avail itself of all tax exemptions applicable to
Contractor's work or expenses. Owner shall provide a tax exemption certificate to Contractor upon
Contractor's request. Owner shall not be liable for any taxes resulting from this Contract,except where
otherwise required by law.
23.8 Captions:The captions of paragraphs in this Contract are for convenience only and shall not
be considered or referred to in resolving questions of interpretation or construction.
23.9 Severability:Should any provisions(s)of this Contract be held invalid or unenforceable in any
respect,that provision shall not affect any other provisions,and this Contract shall be construed as if the
invalid or unenforceable provision(s)had riot been included.
23.10 Waivers:No delay or omission by either party in exercising any right or power provided under
the provisions of this Contract shall impair any such right or power or be construed to be a waiver of the
right or power.A written waiver granted by either of the parties of any provision of this Contract shall not
be construed as a future waiver of that provision or a waiver of any other provision of the Contract.
23.11 Force Majeure:No party shall be liable or responsible to the other for any loss or damage or for
any delays or failure to perform under this Contract due to causes beyond its reasonable control,including,
but not limited to,acts of God,employee strikes,epidemics,war,riots,flood,fire,sabotage,terrorist acts
or any other circumstances of like character.
23.12 Governing Law and Venue: This Contract shall be construed, interpreted and applied in
accordance with the laws of the State of Texas without regard for choice of law principles.All obligations
of the parties created hereunder are enforceable in Port Arthur,Jefferson County,Texas,which shall be
the exclusive venue for any dispute hereunder.
23.13 Entire Contract: This Contract, as defined herein, constitutes the sole and only agreement
between the parties with respect to the services contracted for and supersedes any prior understandings,
written or oral. No modification, alteration or waiver of this Contract or any of its provisions shall be
effective unless in writing and signed by both parties.No course of prior dealings,no usage of trade,and
19
no course of performance shall be used to modify,supplement or explain any terms used in this Contract.
23.14 Financial Interest:By signature hereon,Contractor certifies that no member of Owner's Board
of Trustees has a financial interest, directly or indirectly, in the transaction that is the subject of this
Contract.
23.15 Authority to Act: If Contractor is a corporation or a limited liability company, Contractor
warrants,represents,and agrees that(1)it is duly organized,validly existing and in good standing under
the laws of the state of its incorporation or organization;(2)it is duly authorized and in good standing to
conduct business in the State of Texas; (3)it has all necessary power and has received all necessary
approvals to execute and deliver this Contract;and(4)the individual executing this Contract on behalf of
Contractor has been duly authorized to act for and bind Contractor.
23.16 Records: Records of expenses pertaining to additional services, services performed on the
basis of a Worker Wage Rate or Monthly Salary Rate,or reimbursable expense,if allowed,shall be kept
on the basis of generally accepted accounting principles and in accordance with cost accounting
standards promulgated by the Federal Office of Management and Budget Cost Accounting Standards
Board and shall be available for audit by Owner or Owner's authorized representative on reasonable
notice.
23.17 Illegal Dumping: Contractor shall ensure that it and all of its subcontractors prevent illegal
dumping of litter in accordance with Title 5,Texas Health and Safety Code,Chapter 365.
23.18 Interpretation: Contractor agrees that the normal rules of construction that require that any
ambiguities in the Contract are to be construed against the drafter shall not be employed in the
interpretation of this Contract or any Job Order.
23.19 Modification: This Contract may only be modified by a written instrument executed by the
parties to be incorporated into this Contract.
23.20 Assignment: Contractor may not assign this Contract or any of its rights,duties or obligations
hereunder without the prior written approval of Owner. Any attempted assignment of this Contract by
Contractor shall be null and void. Any Job Order made as a result of this Contract may not be transferred,
assigned,subcontracted, mortgaged, pledged,or otherwise disposed of or encumbered in any way by
Contractor without the prior written approval of Owner.
23.21 Immunity: Nothing in this Contract will be construed to waive, modify, or amend any legal
defense available to Owner or any of Owner's past or present trustees,officers,agents,or employees,
including,without limitation,govemmental immunity from suit as provided by law.
XXIV. NOTICES
24.1 All notices,consents,approvals,demands,requests or other binding communications under this
Contract shall be in writing.Written notice may delivered in person to the designated representative of the
Contractor or Owner; mailed by U. S. mail to the last known business address of the designated
representative;or transmitted by fax machine to the last known business fax number of the designated
representative. Mail notices are deemed effective three business days after the date of mailing. Fax
notices are deemed effective the next business day after faxing.
24.2 The initially designated representatives of the parties for receipt of notices are as follows,
Either party may change their designated representative for receipt of notices by written notice.
20
24,2.1 If to OWNER:
Mr.Floyd Batiste
CEO.Executive Director
City of Port Arthur Section 4A
Economic Development Corporation
501 Procter Street,Suite 100
Port Arthur,Texas 77640
24.2.2 With Copies to:
Guy N.Goodson
Germer PLLC
P.O.Drawer 4915
Beaumont,Texas 77704
24.2.3 If to Contractor.
SETEX Facilities&Maintenance,LLC
Nathan Rivers,President
1660 S 23'd Street
Beaumont,Texas 77707
XXV. OTHER CONTRACTS
25.1 Owner may undertake or award other contracts for additional work at or near the site of Work
under this Contract or a Job Order.Contractor shall fully cooperate with the other contractors and with
Owner's employees and shall carefully adapt scheduling and performing the Work under this Contract
to accommodate the additional work,heeding any direction that may be provided by Owner.Contractor
shall not commit or permit any act that will interfere with the performance of work by any other contractor
or by Owner's employees.
25.2 Owner may award or enter into other contracts in its sole discretion,and nothing in this Contract
may be construed to imply that Contractor has the exclusive right to provide job order contracting
services to Owner.
XXVI. INDEMNIFICATION
26.1 CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS OWNER ITS AGENTS,
EMPLOYEES, TRUSTEES AND OTHER OFFICERS FROM ANY AND ALL CLAIMS. LIABILITY,
COSTS,SUITE OF LAW OR IN EQUITY,EXPENSES.ATTORNEYS'FEES,FINES.PENALTIES,OR
DAMAGES ASSERTED AGAINST IT BY REASON OF THE INTENTIONAL OR NE¢LIGENT ACTS
OR OMISSIONS OF THE CONTRACTOR,ITS AGENTS,SERVANTS.SUBCONTRACTORS,AND
EMPLOYEES IN THE PERFORMANCE OF THE CONTRACT.
XXVII. CONTRACT ORDER OF PRECEDENCE
27.1 In the event of an inconsistency between provisions of this Contract,the inconsistency shall
be resolved by giving precedence in the following order:
a. Contract Modifications,if any;
b. this Contract,including exhibits;
21
i<.
c. Job Orders;
d. Drawings;
e. Specifications;
f. The contract documents for Choice Partners Contract#20/017MR-17,including any
addenda thereto;
g. Contractor's proposal submitted in response to the solicitation for Choice Partners
Contract#20/017M R-17.
XXVIII. PARTY ANTITRUST VIOLATIONS
28.1 Contractor assigns to Owner any claim for overcharges,resulting from antitrust violations to the
extent that such violations concern materials or services supplied by third parties to Contractor toward
fulfillment of this Contract.
XXIX. AUDIT OF RECORDS
29.1 Pursuant to applicable laws, the Contractor shall retain and shall contractually require each
subcontractor to retain all data,books,documents and other records("records")relating to this Contract
for a period of five(5)years after completion of this Contract or any Job Order issued hereunder. This
includes all books and other evidence bearing on Contractor's costs and expenses under this Contract
or the Job Order. All records shall be subject to inspection and audit by the Owner at reasonable times,
without cost to Owner. Upon request,Contractor shall produce the original of any or all such records.If
approved by Owner,photographs,microphotographs or any authentic reproductions may be maintained
instead of original records and documents. If an audit or a compliance review has been announced,
Contractor shall retain its records and accounts until such audit or compliance review has been
completed.
IN WITNESS WHEREOF,Owner and Contractor have executed and delivered this Contract effective as
of the date identified above.
OWNER
By: City of Port Arthur Section 4A Economic Development,Corporation .„
Name:Floyd Batiste Date
Title:CEO/Executive Director
CONTRACTOR
By: SETEX Facilities&Maintenance LLC
Name:Nathan Rivers Date
Title:President
22
ATTACHMEMTs a '
The following Attachments are incorporated by reference for all purposes:
ATTACHMENT A: Job Order Form
< ,w
ATTACHMENT 8: Prevailing Wage Rates
{ r
t
ATTACHMENT A
JOB ORDER
This Job Order is subject to all terms and conditions of the Master Contract("Master Contract")between the
City of Port Arthur Section 4A Economic Development Corporation(Owner)and
(Job Order Contractor)dated ,and shall become part of the Contract upon execution by Owner Any
amendment or modification of this Job Order must be in writing and signed by both parties.
1. Agreed Work.The agreed Work shall include:
If applicable,any additional agreed Work,technical specifications,and/or drawings shall be as set forth and listed in the
Job Order Proposal attached hereto as Exhibit I.
2. Deadline for Performance. Job Order Contractor shall complete performance of the Work specified herein on
or before . The parties agree that the"per day"amount for Liquidated
Damages,as defined in Master Contract,shall be . The Date of Commencement is:[select one]
the date on which both parties duly execute this Job Order or will be fixed in a Notice to Proceed issued
by the Owner.
3. Place of Performance. Contractor shall perform the Work specified herein at the following location(s)
4. Agreed Total Price. The parties hereby agree that the Total Price for all Work under this Job Order is
$_ as specified in the Job Order Proposal attached hereto as Exhibit 1.
5. Owner's Authorized Rettresentative. Owner's authorized representative for acceptance of any completed Work
under this Job Order is:
AUTHORIZED AND ACCEPTED:
JOB ORDER CONTRACTOR/SETEX FACILITIES&MAINTENANCE,LLC
By: Date:
Name:
Title:
OWNER/CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION
By: Date:
Name:
Title:
EXHIBIT A: Contractor's Job Order Proposal,dated,.�
,
pM 9' Jew"` _ .
•
ATTACHMENT B
OWNER'S ADOPTED PREVAWNG WAGE•RATES
G
„'-'i'
H+
.
•
Exhibit " B "
SETEX
FACILITIES&MAINTENANCE
Strength in Construction"
Mailing Address:
P.O. Box 20658
Beaumont, Texas 77720-0658 November 2, 2020
Mr. Floyd Batiste
0 (409)842-8181 Port Arthur Economic Development Corp.
(409)842-2274 501 Proctor St
setexr setexconshuction.corn Port Arthur,Texas 77640
setexconstructioncom
Project: "Center for Community and Business Development"
General Contracting
Subject "Build out at 1nt and tad Floors Phase 2"
Job Order Contracting Dear Mr. Batiste,
We are pleased to submit our rough order of magnitude utilizing our 20/017MR-17
Facilities Maintenance Choice Partners JOC Texas Contract based on local CCI and our coefficient of.89.
Commercial Proposal/Budget Cost Recap:
• Concrete and Demo
Industrial • Steel and Erection
• Roofing and Waterproofing
• Doors, Frames and Hardware
Government • Casework and Tops
• Carpentry
• Drywall and Ceilings
• Flooring and Tile
Healthcare • Painting and Finish
• Specialties
• Operable Partitions
Infrastructure • Fire Sprinklers
• Plumbing
• HVAC
Corporate • Electrical
• Fire Alarm
Proposal Cost $ 1,337,276.00
Education Contingency $ 35,724.00
Bond(if applicable) $ 17,000.00
Total Price $ 1,430,000.00
Performing Arts
Historical
SETE)(0‘
FACILITIES&MAINTENANCE
"Strength in Construction"
Mailing Address:
P.O.Box 20658 Exclusions:
Beaumont, Texas 77720-0658
Unforeseen items beyond specified scope listed above, overtime, and liquidated
damages.
e (400)842-8181
• (409)842-2274 We estimate approximately completion on July 31, 2021.
A setex@setexconstructlon.com
e setexconstruction.com This pricing is based on recommended work hours of Monday thru Friday 7:00 am to
5:00 pm. Once accepted this proposal turns into a lump sum contract. Please contact
General Contracting us at 409-842-8181 at your convenience to discuss this estimate.
Respectfully submitted,
Job Order Contracting SE7X Facilities&Maintenance, LLC.
Facilities Maintenance Ji Shell
Project Manager
c SaTEXMie Nathan Rivers,Kate Leman.Guy Goodson,Floyd Renate,Mike WaidNy,Todd Stinson,Nam Ferias
Commercial 20-012g
Industrial
Government
Healthcare
Infrastructure
Corporate
Education
Performing Arts
Historical
Exhibit " C "
E
FACILITIES MAINTENANCE
"Strength in Construction"
Mailing Address:
P.O. Box 20658
Beaumont, Texas 77720-0858 November 2, 2020
Mr. Floyd Batiste
a (409)842-8181 Port Arthur Economic Development Corp.
• (409)842-2274 501 Proctor St.
* setex@setexmrrstruciion.com Port Arthur,Texas 77640
e setexconstructlon.cam
Project: "Center for Community and Business Development"
General Contracting
Subject: "Second(2"d)Elevator Addition"
Job Order Contracting Dear Mr. Batiste,
We are pleased to submit our rough order of magnitude utilizing our 20/017MR-17
Facilities Maintenance Choice Partners JOC Texas Contract based on local CCI and our coefficient of.89.
Commercial
Budoet/Proposal Recap:
industrial • Concrete and Demo
• Steel and Erection
• Roofing and Waterproofing
Government • Drywall and Finishing
• Elevator Flooring
• Painting and Finish
• Elevator
Healthcare • Fire Sprinklers
• Plumbing
• HVAC
Infrastructure • Electrical
• Fire Alarm
Proposal Cost $ 160,000.00
Corporate Contingency $ 7,500.00
Bond(if applicable) $ 2.600.00
Total Price $ 170,000.00
Education
Performing Arts
Historical
SETS
FACILITIES&MAINTENANCE
'Strength in Construction°
Mailing Address:
P.O.Box 20658 Exclusions:
Beaumont, Texas 77720-0658
Unforeseen items beyond specified scope listed above, overtime, and liquidated
damages.
(409)842-8181
41 (409)842-2274 We estimate approximately completion on Juty 31,2021.
setex@setexconstruction.com
setexconstnuction.00m This pricing is based on recommended work hours of Monday thru Friday 7:00 am to
5:00 pm. Once accepted this proposal turns into a lump sum contract. Please contact
General Contracting us at 409-842-8181 at your convenience to discuss this estimate.
Job Order Contracting Respectfully submitted,
SE Facilities 8 Maintenance,LLC.
Facilities Maintenance Jim Shell
Project Manager
cc SETEXJIde Nathan Rivera,Kate Leverett,Guy Goodson,Floyd Berate,Mke Waidiay,Todd Stinson,Aiem Fleas
Commercial 20-0129
Industrial
Government
Healthcare
infrastructure
Corporate
Education
Performing Arts
Historical