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PR 24121: CONTRACT WITH VORTEX SERVICES FOR THE LEWIS DR. LIFT STATION REHABILITATION PROJECT
Cal of (irt rthu�_ Terus www.PortArthurTx.gov INTEROFFICE MEMORANDUM Date: January 14, 2025 To: The Honorable Mayor and City Council Through: Ronald Burton, CPM, City Manager From: Calvin Matthews, P.E., Water Utilities Director RE: PR No. 24121 —Execute Contract with Vortex Services for the Lewis Dr. Lift Station Rehabilitation Project. Introduction: This Agenda Item intends to seek the City Council's approval for executing a contract with Vortex Services. The contract provides for the rehabilitation of the existing Lewis Dr. Lift Station through BuyBoard Contract No. 731-24 in the total amount of$106,440.01. Funding is available in Account No. 405-40-000-8516-00-00-000, Project No. WS0021, Wastewater Lift Stations. Background: The existing lift station wet well concrete has been severely corroded from sewer gases and requires major rehabilitation. Vortex Services will clean the interior of the station and apply a Geopolymer Liner coating which will add structural stability to the station. The scope includes cleaning the grease and sludge, the installation of the liner, bypass pumping, associated service connections, appurtenances, all necessary labor, materials, and equipment. Budget Impact: The projected budgetary impact is $106,440.01. Funding is available in Account No. 405-40- 000-8516-00-00-000, Project No. WS0021, Wastewater Lift Stations. Recommendation: It is recommended that City Council approve PR No. 24121, to execute a contract with Vortex Services in the amount of$106,440.01, as discussed and/or outline above. "Remember,we are here to serve the Citizens of Port Arthur" P.O.Box 1089 X Port Arthur,Texas 77641-1089 X 409.983.8101 X FAX 409.982.6743 P.R. No. 24121 1/14/2025 cm Page 1 of 3 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH VORTEX SERVICES LLC, FOR THE REHABILITATION OF THE LEWIS DRIVE LIFT STATION THROUGH BUYBOARD CONTRACT NO. 731-24 IN THE TOTAL AMOUNT OF $106,440.01; FUNDS ARE AVAILABLE IN ACCOUNT NO. 405-40-000-8516-00-00-000, PROJECT NO. WS0021, WASTEWATER LIFT STATIONS. WHEREAS, Chapter 271 of the Texas Government Code allows a city, by resolution of its governing body, to participate in cooperative purchasing programs, such as Texas BuyBoard, as an alternative to formal bid process; and, WHEREAS, pursuant to Resolution No. 02-341, the City of Port Arthur entered into an interlocal agreement for cooperative purchasing with the BuyBoard Cooperative Purchasing Program; and, WHEREAS,the scope of project includes to clean the sludge and grease, pressure wash the interior of the station, bypass pump, and apply a Geopolymer Liner Coating which will add structural stability to the station; and, WHEREAS, Vortex Services has submitted a BuyBoard Contract No. 731-24 for the Lewis Dr. Lift Station Rehabilitation Project in the amount of$106,440.01 for consideration by the City Council. NOW THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: THAT,the facts and opinions in the preamble are true and correct; and, THAT, the City Manager is hereby authorized and directed to execute a contract, in substantially the same form attached as Exhibit "A", with Vortex Services, to provide contract P.R. No. 24121 1/14/2025 cm Page 2 of 3 services for the Lewis Dr. Lift Station Rehabilitation Project through BuyBoard Contract No. 731- 24 in the amount of$106,440.01; and, THAT, funds are available in Account No. 405-40-000-8516-00-00-000, Project No. WS0021, Wastewater Lift Stations;and, THAT, a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED THIS day of , 2025 at a Regular Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor ; Councilmembers: NOES: Thurman Bill Bartie Mayor ATTEST: APPROVED A, TO FORM: C Sherri Bellard Roxann Pais Cotroneo City Secretary City Attorney P.R. No. 24121 1/14/2025 cm Page 3 of 3 APPROVED FOR ADMINISTRATION: Ronald Burton, CPM tP alvin atthews, P.E. City Manager Director of Water Utilities APPROVED AS FOR AVAILABILITY OF FUNDS: oULGt-e, eitYlk LA64., Lyn a(Lyn) Boswell, MA, ICMA-CM Clifton E. Williams, Jr., CPPB Director of Finance Purchasing Manager EXHIBIT "A" (Contract Agreement) SPECIFICATIONS AND CONTRACT DOCUMENTS Lewis Dr. Lift Station Rehabilitation- Wet Well Liner 4 Cm of ` G ikl A Vit It�Y�_ Trsas CITY OF PORT ARTHUR JEFFERSON COUNTY, TEXAS TABLE OF CONTENTS A. CONSTRUCTION CONTRACT AGREEMENT B. BID F. GENERAL CONDITIONS I. PAYMENT BOND J. PERFORMANCE BOND N. INSURANCE O. TECHNICAL SPECIFICATIONS SECTION A CONSTRUCTION CONTRACT AGREEMENT CONSTRUCTION CONTRACT AGREEMENT [Non-Federally Funded Projects] THIS AGREEMENT, made this day of 2025,by and between the CITY OF PORT ARTHUR, a municipal corporation organized under the laws of the State of Texas, hereinafter called "OWNER", and Vortex Services LLC.,hereinafter called "CONTRACTOR". WITNESSETH: That for and in consideration of the payments, terms, conditions, and agreements set forth herein, OWNER and CONTRACTOR agree as follows: 1. The CONTRACTOR will commence and complete the construction of Lewis Dr. Lift Station Wet Well Rehab. 2. The CONTRACTOR will furnish at his own expense all the materials, supplies, tools, equipment, labor, and other services necessary for the construction and completion of the Project described herein. 3. The CONTRACTOR will commence the work required by the Contract Documents on or before a date and will complete the same within consecutive calendar days. 4. The CONTRACTOR agrees to perform all the Work described in the Contract Documents and comply with the terms therein for the estimated total amount of $106.440.01,as shown in the Service Proposal. 5. Work, following the Contract dated after the Notice to proceed, the Contractor shall complete the WORK within 60 consecutive calendar days. 6. The term "CONTRACT DOCUMENTS" means and includes the following: ➢ Agreement General Note ➢ PAYMENT BOND PERFORMANCE BOND ➢ Insurance ➢ TECHNICAL SPECIFICATIONS 6. The OWNER will pay to the CONTRACTOR in the manner and at such times as outlined in the General Conditions such amounts as required by the Contract Documents. 7. This Agreement shall be binding upon all parties hereto and their respective heirs, executors,administrators,successors,and assigns. IN WITNESS WHEREOF, the Parties hereto have executed, or caused to be executed by their duly authorized officials,this Agreement in two (2) copies, each of which shall be deemed an original on the date first above written. APPROVED IN FORM: OWNER: Page 1 of A CONSTRUCTION CONTRACT AGREEMENT [Non-Federally Funded Projects] CONTRACTOR: OWNER: Vortex Services LLC CITY OF PORT ARTHUR BY By NAME ADDRESS Ronald Burton,CPM,City Manager TITLE Page 2 of A SECTION B BID 4141 1k11400F ›IC r N./ ice s To: City Of Port Arthur Contact: Jess Liao Address: 444 4th St. Phone: (409)983-8193 Email: Project Name: TX-Port Arthur-Lewis Dr.Lift Station Rehab Bid Number: 2437408-1 Project Location: Lewis Dr., Port Arthur,TX Bid Date: 1/8/2025 Proposal Based On BuyBoard Contract 731-24 Item# Item Description Estimated Quantity Unit Unit Price Total Price I.20A.048 Mobilization-Texas 1.00 EACH $4,784.00 $4,784.00 I.3A.015 Structure Rehabilitation- 1-inch Geopolymer Liner 1,034.00 SF $38.00 $39,292.00 I.3A.014 Structure Rehabilitation-Each Additional 1/2 Inch 1,034.00 SF $11.50 $11,891.00 Geopolymer Liner. I.4A.002 Set Up 6"Pump And Piping Including Up To 1000 Feet 4.00 EACH $1,500.00 $6,000.00 Of Bypass Discharge Line(4-Pumps-2Primary 2 Backup) I.4A.016 Operate 6"Pumping System Per Pump(4-Pumps- 16.00 DY $2,000.00 $32,000.00 2Primary 2 Backup) I.4A.033 Tear Down 6"Pump And Piping Including 1000 Feet Of 4.00 EACH $1,500.00 $6,000.00 Bypass Discharge Line (4-Pumps-2Primary 2 Backup) I.5A.049 Vactor Truck Services(Per Truck And Includes An 20.00 HR $625.00 $12,500.00 Operator)*Will Bill As Needed II.21A.017 Infiltration Control-Chemical Grout(*will Bill As 5.00 GAL $350.00 $1,750.00 Needed) II.21A.018 Infiltration Control-Quad-Plug(5 Gallon)(*will Bill As 10.00 5GAL $65.00 $650.00 Needed) CO Allowance 1.00 LS $0.00 $0.00 CO Deduction 1.00 LS ($10,000.00) ($10,000.00) Bid Price Subtotal: $104,867.00 Total Performance&Payment Bond 1.50%: $1,573.01 Total Bid Price: $106,440.01 Notes: • Our pipe cleaning and dewatering are figured based on our site visit(which was determined to require a 6"diesel pump). Owner to provide bypass tie-in access to the forcemain at the lift station.If these conditions change,Vortex reserves the right to adjust our unit price accordingly. • Proposal includes standard signs and cones.Any additional maintenance of traffic(MOT)needed will be provided by Others. • Owner will provide a portable hydrant meter and access to onsite water for our use free of charge. • Owner will provide access to each and every manhole and or structure.This may include but not limited locating,exposing,and raising buried MH's prior to our crew mobilizing. • If necessary,Owner will provide Permits&Fees.Vortex will provide our standard insurance coverage. OCP or railroad insurance&or longshoreman insurance is not included. • Our Bid Proposal is valid for 30 days from the bid date. • Site Restoration will be performed by Others. • This is a unit priced contract and the actual billing will be based on installed quantities.If the installed quantities vary greater than 10%of the bid quantities,Vortex reserves the right to adjust our unit price accordingly. • Standard wages are included.Therefore,Prevailing wages and or Union Wage Rates are not included in this bid proposal. • Our bid proposal as submitted reflects the current material pricing established on or before the bid date listed within our proposal. In the event of unforeseen price increases of our raw materials,Vortex reserves the right to adjust our unit rate or overall bid proposal accordingly to account for such price increases. • Payment terms: Net 30 days.Interest will be added to balances outstanding after 30 days • Vortex's bid proposal shall be incorporated into the subcontract agreements.Vortex will initiate this project upon an agreement or receipt of a subcontract or purchase order. Copies of payment and performance bonds must be provided to Vortex. • Any delays besides weather that is outside of our control will be billed at a standby rate of$1,250/hour. Page 1 of 2 • Typically any debris collected from the Manhole(MH)rehab process is removed by hand but if there is a significant amount of debris collected,the Owner shall provide a Vac Truck to remove debris collected and dispose the debris that is pulled from the cleaning process. Please note,Vortex can also provide a vac truck at$500/HR(*4 hr min,travel time will be billed port to port) • Since the owner did not provide H2S levels,Vortex is assuming the existing structures to get rehab fall below our manufacturer's recommended H2S levels. • Owner to remove of any cords,piping,wires,floats etc,prior to our arrival and reinstall after we demob. ACCEPTED: CONFIRMED: The above prices,specifications and conditions are satisfactory and Vortex Services LLC are hereby accepted. Buyer: Signature: Authorized Signature: Date of Acceptance: Estimator: Nate Kennedy (832)392-1816 nkennedy©vortexcompanies.com Page 2 of 2 CITY OF PORT ARTHUR, TEXAS NON-COLLUSION AFFIDAVIT CITY OF PORT ARTHUR § STATE OF TEXAS § By the signature below, the signatory for the bidder certifies that neither he nor the firm, corporation, partnership or institution represented by the signatory or anyone acting for the firm bidding this project has violated the antitrust laws of this State, codified at Section 15.01, et seq., Texas Business and Commerce Code, or the Federal antitrust laws, nor communicated directly or indirectly the bid made to any competitor or any other person engaged in the same line of business, nor has the signatory or anyone acting for the firm, corporation or institution submitting a bid committed any other act of collusion related to the development and submission of this bid proposal. Signature: Printed Name: Title: Company: Date: SUBSCRIBED and sworn to before me by the above named on this the day of , 20 Notary Public in and for the State of Texas My commission expires: AFFIDAVIT All pages in Offeror's Responses containing statements, letters, etc., shall be signed by a duly authorized officer of the company whose signature is binding. The undersigned offers and agrees to one of the following: I hereby certify that I do not have outstanding debts with the City of Port Arthur. I further agree to pay succeeding debts as they become due. I hereby certify that I do have outstanding debts with the City of Port Arthur and agree to pay said debts prior to execution of this agreement. I further agree to pay succeeding debts as they become due. I hereby certify that I do have outstanding debts with the City of Port Arthur and agree to enter into an agreement for the payment of said debts. I further agree to pay succeeding debts as they become due. Firm Name Date Authorized Signature Title Name (please print) Telephone Email STATE: COUNTY: SUBSCRIBED AND SWORN to before me by the above named on this the day of , 20 Notary Public RETURN THIS AFFIDAVIT AS PART OF THE BID PROPOSAL CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with Chapter 176, Local Government Code, by a vendor who Date Received has a business relationship as defined by Section 176.001(1-a) with a local governmental entity and the vendor meets requirements under Section 176.006(a). By law this questionnaire must be filed with the records administrator of the local governmental entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1), Local Government Code. A vendor commits an offense if the vendor knowingly violates Section 176.006, Local Government Code.An offense under this section is a misdemeanor. IJ Name of vendor who has a business relationship with local governmental entity. J Check this box if you are filing an update to a previously filed questionnaire.(The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) J Name of local government officer about whom the information is being disclosed. Name of Officer Describe each employment or other business relationship with the local government officer,or a family member of the officer,as described by Section 176.003(a)(2)(A). Also describe any family relationship with the local government officer. Complete subparts A and B for each employment or business relationship described. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer or a family member of the officer receiving or likely to receive taxable income, other than investment income, from the vendor? Yes No B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction of the local government officer or a family member of the officer AND the taxable income is not received from the local governmental entity? Yes No Describe each employment or business relationship that the vendor named in Section 1 maintains with a corporation or other business entity with respect to which the local government officer serves as an officer or director, or holds an ownership interest of one percent or more. nCheck this box if the vendor has given the local government officer or afamily member of the officer one or more gifts as described in Section 176.003(a)(2)(B), excluding gifts described in Section 176.003(a-1). Signature of vendor doing business with the governmental entity Date Form provided by Texas Ethics Commission www.ethics.state.tx.us Revised 11/30/2015 CONFLICT OF INTEREST QUESTIONNAIRE For vendor doing business with local governmental entity A complete copy of Chapter 176 of the Local Government Code may be found at http://www.statutes.legis.state.tx.us/ Docs/LG/htm/LG.176.htm.For easy reference,below are some of the sections cited on this form. Local Government Code§176.001(1-a):"Business relationship"means a connection between two or more parties based on commercial activity of one of the parties. The term does not include a connection based on: (A) a transaction that is subject to rate or fee regulation by a federal,state,or local governmental entity or an agency of a federal,state,or local governmental entity; (B) a transaction conducted at a price and subject to terms available to the public;or (C) a purchase or lease of goods or services from a person that is chartered by a state or federal agency and that is subject to regular examination by,and reporting to,that agency. Local Government Code§176.003(a)(2)(A)and(B): (a)A local government officer shall file a conflicts disclosure statement with respect to a vendor if: (2) the vendor: (A) has an employment or other business relationship with the local government officer or a family member of the officer that results in the officer or family member receiving taxable income, other than investment income, that exceeds$2,500 during the 12-month period preceding the date that the officer becomes aware that (i) a contract between the local governmental entity and vendor has been executed; or (ii) the local governmental entity is considering entering into a contract with the vendor; (B) has given to the local government officer or a family member of the officer one or more gifts that have an aggregate value of more than$100 in the 12-month period preceding the date the officer becomes aware that: (i) a contract between the local governmental entity and vendor has been executed;or (ii) the local governmental entity is considering entering into a contract with the vendor. Local Government Code§176.006(a)and(a-1) (a)Avendor shall file a completed conflict of interest questionnaire if the vendor has a business relationship with a local governmental entity and: (1) has an employment or other business relationship with a local government officer of that local governmental entity,or a family member of the officer,described by Section 176.003(a)(2)(A); (2) has given a local government officer of that local governmental entity,or a family member of the officer,one or more gifts with the aggregate value specified by Section 176.003(a)(2)(B),excluding any gift described by Section 176.003(a-1);or (3) has a family relationship with a local government officer of that local governmental entity. (a-1) The completed conflict of interest questionnaire must be filed with the appropriate records administrator not later than the seventh business day after the later of: (1) the date that the vendor: (A) begins discussions or negotiations to enter into a contract with the local governmental entity;or (B) submits to the local governmental entity an application,response to a request for proposals or bids, correspondence, or another writing related to a potential contract with the local governmental entity;or (2) the date the vendor becomes aware: (A) of an employment or other business relationship with a local government officer,or a family member of the officer,described by Subsection(a); (B) that the vendor has given one or more gifts described by Subsection(a);or (C) of a family relationship with a local government officer. Form provided by Texas Ethics Commission www.ethics state.tx.us Revised 11/30/2015 House Bill 89 Verification 1, (Person name), the undersigned representative (hereafter referred to as "Representative") of (company or business name, hereafter referred to as "Business Entity"), being an adult over the age of eighteen (18) years of age, after being duly sworn by the undersigned notary, do hereby depose and affirm the following: 1 . That Representative is authorized to execute this verification on behalf of Business Entity; 2. That Business Entity does not boycott Israel and will not boycott Israel during the term of any contract that will be entered into between Business Entity and the City of Port Arthur; and 3. That Representative understands that the term "boycott Israel" is defined by Texas Government Code Section 2270.001 to mean refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes. SIGNATURE OF REPRESENTATIVE SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this day of , 20 Notary Public SB 252 CHAPTER 2252 CERTIFICATION I, , the undersigned n representative of (Company or Business Name) being an adult over the age of eighteen (18) years of age, pursuant to Texas Government Code, Chapter 2252, Section 2252.152 and Section 2252.153, certify that the company named above is not listed on the website of the Comptroller of the State of Texas concerning the listing of companies that are identified under Section 806.051, Section 807.051 or Section 2253.153. I further certify that should the above-named company enter into a contract that is on said listing of companies on the website of the Comptroller of the State of Texas which do business with Iran, Sudan or any Foreign Terrorist Organization, I will immediately notify the City of Port Arthur Purchasing Department. Name of Company Representative (Print) Signature of Company Representative Date SFCTION F GENERAL CONDITIONS NUMERICAL INDEX TO GENERAL CONDITIONS 1. Contract and Contract Documents 2. Definitions 3. Termination of Contract for Cause 4. Personnel 5. Reports and Information 6. Records and Audits 7. Findings Confidential 8. Copyright 9. Compliance with Laws 10. Interest of Members of City of Port Arthur 11. Interest of Other Local Public Officials 12. Interest of Contractor and Employees 13. Certificates and Permits 14. Guarantee of Work 15. Additional Instruction and Detail Drawings 16. Shop or Setting Drawings 17. Materials, Services and Facilities 1 18. CONTRACTOR'S Title toMaterials 19. Inspection and Testing of Materials 20. "Or Equal"Clause 21. Patents 22. Surveys 23. CONTRACTOR'S Obligations 24. Insurance 25. Certification of Compliance with Air and Water Acts F-I 26. Special Conditions Pertaining to Hazards, Safety Standards and Accident Prevention 27. Suspension of Work 28. National Historic Preservation Act of 1966 29. Required Provisions Deemed Inserted 30. Safety and Health Regulations for Construction 31. Use and Occupancy Prior to Acceptance by Owner 32. Use of Premises and Removal of Debris 33. Quantities of Estimate 34. Lands and Rights-of-Way 35. Conflicting Conditions in Contract Documents 36. Notice and Service Thereof 37. Separate Contract 38. Subcontracting 39. Architect/Engineer's Authority 40. Meaning of Intent 41. Contract Security 42. Additional or Substitute Bond 43. Assignments 44. Mutual Responsibility of CONTRACTOR'S 45. Acceptance of Final Payment Constitutes Release 46. Payments by Contractor 47. Construction Schedule and Periodic Estimates 48. Payments to Contractor 49. Correction of Work 50. Subsurface Conditions Found Different 51. Claims for Extra Cost 52. Changes in Work F-2 53. Extras 54. Time for Completion and Liquidated Damages 55. Weather Conditions 56. Protection of Work and Property--Emergency 57. Inspection 58. Superintendent by Contractor 59. Federal Labor Standards Provisions 60. Underpayments of Wages or Salaries 61. Anticipated Costs of Fringe Benefits 62. Overtime Compensation Required by Contract Work Hours and Safety Standards Act(76 Stat. 357-360; Title 40 U.S.C., Sections 327-332 63. Employment of Apprentices/Trainees 64. Employment of Certain Persons Prohibited 65. Employment of Laborers or Mechanics Not Listed in Aforesaid Wage Determination Decision 66. Fringe Benefits Not Expressed as Hourly Wage Rates 67. Posting Wage Determination Decisions and Authorized Wage Deductions 68. Complaints, Proceedings or Testimony by Employees 69. Claims and Disputes Pertaining to Wage Rates 70. Questions Concerning Certain Federal Statutes and Regulations 71. Payrolls and Basic Payroll Records of Contractor and Subcontractors 72. Specific Coverage of Certain Types of Work by Employees 73. Ineligible Subcontractors 74. Provisions to be Included in Certain Subcontracts 75. Breach of Foregoing Federal Labor Standards Provisions 76. Employment Practices 77. Contract Termination; Debarment 78. Kickbacks from Public Works Employees 79. Labor-Title 29 CFR Part 3 F-3 80. Weekly Statement with Respect to Payment of Wages 81. Submission of Weekly Statements and the Preservation and Inspection of Weekly Payroll Records 82. Payroll Deductions Permissible without Application to or Approval of the Secretary of Labor 83. Payroll Deductions Permissible with the Approval of the Secretary of Labor 84. Applications for the Approval of the Secretary of Labor 85. Section 3.8 Action by the Secretary of Labor upon Applications 86. Prohibited Payroll Deductions 87. Methods of Payment of Wages 88. Regulations Part of Contract 89. Equal Opportunity Provisions (E.O. 11246) 90. Section 3 Compliance in the Provision of Training, Employment and Business Opportunities 91. Civil Rights Act of 1964 92. Section 109 of the Housing and Community Development Act of 1974 93. Indemnification 94. Delays 95. Maintenance of Work 96. Antitrust 97. Labor, Materials, and Equipment 98. Federal Labor Standards Provisions 99. Delay, Disruption and/or Other Claims 100. Differing Site Conditions f-4 GENERAL CONDITIONS 1. CONTRACT AND CONTRACT DOCUMENTS The Plans, Specifications and Addenda, enumerated in the Agreement and paragraph 1 of the Supplemental General Conditions, shall form part of this Contract and the provisions thereof shall be as binding upon the parties hereto as if they were herein fully set forth. The table of contents, titles, headings, running headlines and marginal notes contained herein and in said Documents are solely to facilitate reference to various provisions of the Contract Documents and in no way affect, limit or cast light on the interpretation of the provisions to which they refer. 2. DEFINITIONS The following terms, as used in this Contract, are respectively defined as follows: a. "CONTRACTOR": A person, firm or corporation with whom the Contract is made with the OWNER or CITY OF PORT ARTHUR. b. "Sub-contractor": A person, firm or corporation supplying labor and materials or only labor for work at the site of the project for, and under separate Contract or agreement with, the CONTRACTOR. c. 'Work on (at)the Project": Work to be performed at the location of the project, including the transportation of materials and supplies to or from the location of the project by employees of the CONTRACTOR and any Subcontractor. d. "OWNER": Refers to the City of Port Arthur, Port Arthur,Texas. e. "CITY OF PORT ARTHUR": Refers to the City of Port Arthur, Port Arthur, Texas. f. "ENGINEER": City Engineer, City of Port Arthur,Texas 3. TERMINATION OF CONTRACT FOR CAUSE If, through any cause, the CONTRACTOR shall fail to fulfill in timely and proper manner his obligations under this Contract, or if the CONTRACTOR shall violate any of the covenants, agreements or stipulations of this Contract, the CITY OF PORT ARTHUR shall thereupon have the right to terminate this Contract by giving written notice to the CONTRACTOR of such termination and specifying the effective date thereof, at least five (5) days before the effective date of such termination. In such event, all finished or unfinished Documents, data, studies, surveys, drawings, maps, models, photographs, and reports prepared by the CONTRACTOR under this Contract shall, at the option of the CITY OF PORT ARTHUR - PUBLIC WORKS, become its property and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. Notwithstanding the above, the CONTRACTOR shall not be relieved of liability to the CITY OF PORT ARTHUR for damages sustained by the CITY OF PORT ARTHUR by virtue of any breach of the Contract by the CONTRACTOR, and the CITY OF PORT ARTHUR may withhold any payments to the CONTRACTOR for the purpose of set-off until such time as the exact amount of damages due the CITY OF PORT ARTHUR from the CONTRACTOR is determined. F-5 4. PERSONNEL a. The CONTRACTOR represents that he has, or will secure at his own expense, all Personnel required in performing the work under this Contract. Such personnel shall not be Employees of or have any contractual relationship with the CITY OF PORT ARTHUR. b. All of the work required hereunder will be performed by the CONTRACTOR or under his supervision and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under state and local law to perform such services. c. None of the work covered by this Contract shall be subcontracted without the prior written approval of the CITY OF PORT ARTHUR. Any work or services subcontracted hereunder shall be specified by written Contract or agreement and shall be subject to each provision of this Contract. 5. REPORTS AND INFORMATION The CONTRACTOR, at such times and in such forms as the CITY OF PORT ARTHUR may require, shall furnish the CITY OF PORT ARTHUR such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Contract, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Contract. 6. RECORDS AND AUDITS The CONTRACTOR shall maintain accounts and records, including personnel, property and financial records, adequate to identify and account for all costs pertaining to the Contract and such other records as may be deemed necessary by the CITY OF PORT ARTHUR to assure proper accounting for all project funds, both federal and non-federal shares. These records will be made available for audit purposes to the CITY OF PORT ARTHUR or any authorized representative, and will be retained for three (3) years after the expiration of this Contract unless permission to destroy them is granted by the CITY OF PORTARTHUR. 7. FINDINGS CONFIDENTIAL All of the reports, information, data, etc., prepared or assembled by the CONTRACTOR under this Contract are confidential and CONTRACTOR agrees that they shall not be made available to any individual or organization without the prior written approval of the CITY OF PORT ARTHUR. 8. COPYRIGHT No report, maps or other Documents produced in whole or in part under this Contract shall be the subject of an application for copyright by or on behalf of the CONTRACTOR. 9. COMPLIANCE WITH LAWS The CONTRACTOR shall comply with all applicable laws, ordinances, rules, orders, regulations and codes of the federal, state and local governments relating to performance of the work herein, the protection of adjacent property and the maintenance of passageways, guard fences or other protective facilities. 10. INTEREST OF MEMBERS OF CITY OF PORT ARTHUR No member of the governing body of the CITY OF PORT ARTHUR, and no other officer, employee or agent of the CITY OF PORT ARTHUR who exercises any functions or responsibilities F-6 in connection with the planning and carrying out of the program, shall have any personal financial interest, direct or indirect, in this Contract; and the CONTRACTOR shall take appropriate steps to assure compliance. 11. INTEREST OF OTHER LOCAL PUBLIC OFFICIALS No member of the governing body of the locality and no other public official of such locality, who exercises any functions or responsibilities in connection with the planning and carrying out of the program, shall have any personal financial interest, direct or indirect, in this Contract; and the CONTRACTOR shall take appropriate steps to assure compliance. 12. INTEREST OF CONTRACTOR AND EMPLOYEES The CONTRACTOR covenants that he presently has no interest and shall not acquire any interest, direct or indirect, in the study area or any parcels therein or any other interest which would conflict in any manner or degree with the performance of his services hereunder. The CONTRACTOR further covenants that in the performance of this Contract, no person having any such interest shall be employed. 13. CERTIFICATES AND PERMITS Except for required permits issued by OWNER, which shall be issued at no cost to CONTRACTOR. CONTRACTOR shall secure at his own expense from other public authorities all necessary certificates, licenses, approvals, and permits required in connection with the work of this Contract or any part thereof, and shall give all notices required by law, ordinance or regulation. CONTRACTOR shall pay all fees and charges incident to the due and lawful prosecution of the work of this Contract, and any extra work performed by him. 14. GUARANTEE OF WORK a. Neither the final certificate of payment nor any provision in the Contract Documents nor partial or entire occupancy of the premises by the OWNER shall constitute an acceptance of work not done in accordance with the Contract Documents or relieve the CONTRACTOR of liability in respect to any warranties or responsibility for faulty materials or workmanship. The CONTRACTOR guarantees and warrants that all materials and equipment which are to become part of the work shall be new unless otherwise specified and that all work will be of good quality and free from faults or defects and in accordance with the Contract Documents and of any inspections, tests or approvals required by the Contract Documents, law, ordinance, rules, regulations or orders of any public authority having jurisdiction. The OWNER will give notice of observed defects with reasonable promptness. b. Neither observations by Architect or Engineer nor inspections, tests or approvals by persons other than CONTRACTOR shall relieve CONTRACTOR from his obligations to perform the work in accordance with the requirements of the Contract. c. The provisions of this paragraph shall be cumulative of and not in limitation of the responsibility of CONTRACTOR for defects in the work or materials or damages resulting therefrom as otherwise provided by the law of the State of Texas or this Contract, including, without limitation, the implied warranty of fitness of the work and the implied obligation to perform the work in a good and workmanlike manner. 15. ADDITIONAL INSTRUCTIONS AND DETAIL DRAWINGS The CONTRACTOR will be furnished additional instructions and detail drawings as necessary to carry out the work included in the Contract. The additional drawings and instructions thus supplied F-7 to the CONTRACTOR will coordinate with the Contract Documents and will be so prepared that they can be reasonably interpreted as part thereof. The CONTRACTOR shall carry out the work in accordance with the additional detail drawings and instructions. The CONTRACTOR and the Architect/Engineer will prepare jointly (a) a schedule, fixing the dates at which special detail drawings will be required, such drawings, if any, to be furnished by the Architect/Engineer in accordance with said schedule, and (b) a schedule fixing the respective dates for the submission of shop drawings, the beginning of manufacture, testing and installation of materials, supplies and equipment, and the completion of the various parts of the work; each such schedule to be subject to change from time to time in accordance with the progress of the work. 16. SHOP OR SETTING DRAWINGS The CONTRACTOR shall submit promptly to the Architect/Engineer two copies of each shop or setting drawing prepared in accordance with the schedule predetermined as aforesaid. After examination of such drawings by the Architect/Engineer and the return thereof, the CONTRACTOR shall make such corrections to the drawings as have been indicated and shall furnish the Architect/Engineer with two corrected copies. If requested by the Architect/Engineer, the CONTRACTOR must furnish additional copies. Regardless of corrections made in or approval given to such drawings by the Architect/Engineer, the CONTRACTOR will nevertheless be responsible for the accuracy of such drawings and for their conformity to the Plans and Specifications, unless he notifies the Architect/Engineer in writing of any deviations at the time he furnishes such drawings. 17. MATERIALS. SERVICES AND FACILITIES a. It is understood that, except as otherwise specifically stated in the Contract Documents, the CONTRACTOR shall provide and pay for all materials, labor, tools, equipment, water, light, power, transportation, superintendents, temporary construction of every nature and all other services and facilities of every nature whatsoever necessary to execute, complete and deliver the work within the specified time. b. Any work necessary to be performed after regular working hours, on Sundays or Legal Holidays, shall be performed without additional expense to the OWNER. 18. CONTRACTOR'S TITLE TO MATERIALS No materials or supplies for the work shall be purchased by the CONTRACTOR or by any Subcontractor subject to any chattel mortgage or under a conditional sale Contract or other agreement by which an interest is retained by the seller. The CONTRACTOR warrants that he has good title to all materials and supplies used by him in the work, free from all liens, claims or encumbrances. 19. INSPECTION AND TESTING OF MATERIALS All materials, equipment, etc., used in the construction of the project shall be subject to adequate inspection and testing in accordance with accepted standards and frequency, or as required by the contract documents. The CONTRACTOR shall make all arrangements for such tests and inspections with a local independent testing laboratory acceptable to the OWNER, and the CONTRACTOR shall bear all related costs of tests and inspections. If such procedures for testing and inspection reveal failure to comply with accepted standards or with requirements established by the contract documents, all re-testing and re-inspection costs made necessary by such failure, including those of related procedures, shall also be at CONTRACTOR'S expense. F-8 If the ENGINEER and/or OWNER determines that portions of the project require additional testing or inspection not included in CONTRACTOR'S original bid, the ENGINEER shall, upon written authorization from the OWNER, instruct the CONTRACTOR to make arrangements for additional testing and inspection. The costs for such additional testing and inspection shall be at OWNER'S expense. The CONTRACTOR'S independent testing laboratory shall give timely notice to the CONTRACTOR and the ENGINEER of when and where tests and inspections are to be made so that the CONTRACTOR and the ENGINEER may be present for such procedures. If the ENGINEER is to observe tests and inspections, the ENGINEER will do so promptly and, where practical, at the normal pace of testing. Tests and inspections shall be made promptly to avoid unreasonable delays on the project. Required certificates and/or reports of all test and inspections shall, unless otherwise required by the contract documents, be promptly delivered by the independent testing laboratory to the CONTRACTOR, the ENGINEER, and the OWNER. 20. "OR EQUAL" CLAUSE Whenever a material, article or piece of equipment is identified on the Plans or in the Specifications by reference to manufacturers' or vendors' names, trade names, catalogue numbers, etc., it is intended merely to establish a standard; and, any material, article or equipment of other manufacturers and vendors which will perform adequately the duties imposed by the general design will be considered equally acceptable provided the material, article or equipment so proposed is, in the opinion of the Architect/Engineer, of equal substance and function. It shall not be purchased or installed by the CONTRACTOR without the Architect/Engineer's written approval. 21. PATENTS a. The CONTRACTOR shall hold and save the OWNER and its officers, agents, servants, and employees harmless from liability of any nature or kind, including cost and expenses for, or on account of, any patented or unpatented invention, process, article or appliance manufactured or used in the performance of the Contract, including its use by the OWNER, unless otherwise specifically stipulated in the Contract Documents. b. License or Royalty Fees: License and or royalty fees for the use of a process which is authorized by the OWNER of the project must be reasonable and paid to the holder of the patent, or his authorized licensee, direct by the OWNER and not by or through the CONTRACTOR. c. If the CONTRACTOR uses any design, device or materials covered by letters patent or copyright, he shall provide for such use by suitable agreement with the OWNER of such patented or copyrighted design, device, or material. It is mutually agreed and understood that, without exception, the Contract prices shall include all royalties or costs arising from the use of such design, device or materials in any way involved in the work. The CONTRACTOR and/or his Sureties shall indemnify and save harmless the OWNER of the project from any and all claims for infringement by reason of the use of such patented or copyrighted design, device or materials or any trademark or copyright in connection with work agreed to be performed under this Contract, and shall indemnify the OWNER for any cost,expense or damage which it may be obliged to pay by reason of such infringement at any time during the prosecution of the work or after completion of thework. F-9 22. SURVEYS a. The Engineer will provide one benchmark, near or on the site of the work, and will provide 2 points near or on the site to establish a base line for use by the CONTRACTOR for alignment control. Unless otherwise specified in the General Requirements, the CONTRACTOR shall furnish all other lines, grades, and bench required for proper execution of the work. b. The CONTRACTOR shall be responsible for laying out the work (unless otherwise specified in the General Requirements)and shall preserve all benchmarks, stakes, and other survey marks, and in case of their removal or destruction by its own employees or by its subcontractor's employees, the CONTRACTOR shall be responsible for the accurate replacement of such reference points by professionally qualified personnel at no additional cost to the OWNER. c. Unless otherwise expressly provided for in the Specifications, the OWNER will furnish the CONTRACTOR all surveys necessary for the execution of the work. 23. CONTRACTOR'S OBLIGATIONS The CONTRACTOR shall and will, in good workmanlike manner, do and perform all work and furnish all supplies and materials, machinery, equipment, facilities and means, except as herein otherwise expressly specified, necessary or proper to perform and complete all the work required by this Contract,within the time herein specified, in accordance with the provisions of this Contract and said Specifications and in accordance with the Plans and drawings covered by this Contract and any and all supplemental Plans and drawings, and in accordance with the directions of the Architect/Engineer as given from time to time during the progress of the work. He shall furnish, erect, maintain and remove such construction plant and such temporaryworks as may be required. The CONTRACTOR shall observe, comply with and be subject to all terms, conditions, requirements and limitations of the Contract and Specifications, and shall do, carry on and complete the entire work to the satisfaction of the Architect/Engineer and the OWNER. 24. INSURANCE The CONTRACTOR shall not commence work under this Contract until he has obtained all the insurance required herein and such insurance has been approved by the OWNER, nor shall the CONTRACTOR allow any Subcontractor to commence work on this Subcontract until the insurance required of the Subcontractor has been so obtained and approved. (See information to Bidders, paragraph 5.) 25. CERTIFICATION OF COMPLIANCE WITH AIR AND WATER ACTS (Applicable to federally assisted construction contracts and related subcontracts exceeding $100,000.00.) During the performance of this Contract, the CONTRACTOR and all Subcontractors shall comply with the requirements of the Clean Air Act, as amended, 42 U.S.C. 1857, et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 CFR Part 15, as amended. In addition to the foregoing requirements, all nonexempt CONTRACTOR'S and Subcontractors shall furnish to the OWNER the following: F-10 a. A stipulation by the CONTRACTOR or Subcontractor that any facility to be utilized in the performance of any nonexempt Contract or Subcontract is not listed on the List of Violating Facilities issued by the Environmental Protection Agency (EPA) pursuant to 40 CFR 15.20. b. Agreement by the CONTRACTOR to comply with all the requirements of Section 114 of the Clean Air Act, as amended (42 U.S.C. 1857c-8) and Section 308 of the Federal Water Pollution Act, as amended (33 U.S.C. 1318) relating to inspection, monitoring, entry, reports and information, as well as all other requirements specified in said Section 114 and Section 308 and all regulations and guidelines issued thereunder. c. A stipulation that, as a condition for the award of the Contract, prompt notice will be given of any notification received from the Director, Office of Federal Activities, EPA, indicating that a facility utilized, or to be utilized for the Contract, is under consideration to be listed on the EPA List of Violating Facilities. d. Agreement by the CONTRACTOR that he will include, or cause to be included, the criteria and requirements in paragraphs (a) through (d) of this section in every nonexempt Subcontract and requiring that the CONTRACTOR will take such action as the government may direct as a means of enforcing such provisions. 26 SPECIAL CONDITIONS PERTAINING TO HAZARDS. SAFETY STANDARDS AND ACCIDENT PREVENTION a. Lead-Based Paint Hazards: (Applicable to Contracts for construction or rehabilitation of residential structures.) The construction or rehabilitation of residential structures is subject to the HUD Lead-Based Paint regulations, 24 CFR Part 35. The CONTRACTOR and Subcontractors shall comply with the provisions for the elimination of lead-based paint hazards under subpart B of said regulations. The OWNER will be responsible for the inspections and certifications required under Section 35.14(f) thereof. b. Use of Explosives: When the use of explosives is necessary for the prosecution of the work, the CONTRACTOR shall observe all local, state and federal laws in purchasing and handling explosives. The CONTRACTOR shall take all necessary precautions to protect completed work, neighboring property, water lines or other underground structures. Where there is danger to structures or property from blasting, the charges shall be reduced, and the material shall be covered with suitable timber, steel or rope mats. The CONTRACTOR shall notify all OWNER'S of public utility property of the intention to use explosives at least eight (8) hours before blasting is done, close to such property. Any supervision or direction of use of explosives by the Engineer does not in any way reduce the responsibility of the CONTRACTOR or his Surety for damages that may be caused by such use. c. Danger Signals and Safety Devices: The CONTRACTOR shall make all necessary precautions to guard against damages to property and injury to persons. He shall put up and maintain in good condition sufficient red or warning lights at night, suitable barricades and other devices necessary to protect the public. In case the CONTRACTOR fails or neglects to take such precautions, the OWNER may have such lights and barricades installed and charge the cost of this work to the CONTRACTOR. Such action by the OWNER does not relieve the CONTRACTOR of any liability incurred under these Specifications or Contract. 27. SUSPENSION OF WORK Should the OWNER be prevented or enjoined from proceeding with work or from authorizing its prosecution either before or after its prosecution, by reason of any litigation, the CONTRACTOR shall not be entitled to make or assert claim for damage by reason of said delay, but time for completion of the work will be extended to such reasonable time as the OWNER may determine will compensate for time lost by such delay with such determination to be set forth in writing. 28. NATIONAL HISTORIC PRESERVATION ACT OF 1966 The CONTRACTOR agrees to contribute to the preservation and enhancement of structures and objects of historical, architectural, or archaeological significance when such items are found and/or unearthed during the course of project construction and to consult with the State Historic Preservation Officer for recovery of the items. (Reference: National Historic Preservation Act of 1966(80 Stat. 915, 16 U.S.C. 470) and Executive Order No. 11593 of May 31, 1971). 29. REQUIRED PROVISIONS DEEMED INSERTED Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and the Contract shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted or is not correctly inserted, then upon the application of either party, the Contract shall forthwith be physically amended to make such insertion or correction. 30. SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION In order to protect the lives and health of his employees under the Contract,the CONTRACTOR shall comply with all pertinent provisions of the Contract Work Hours and Safety Standards Act, as amended, commonly known as the Construction Safety Act as pertains to health and safety standards; and shall maintain an accurate record of all cases of death, occupational disease and injury requiring medical attention or causing loss of time from work, arising out of and in the course of employment on work under the Contract. The CONTRACTOR along shall be responsible for the safety, efficiency and adequacy of his plant, appliances and methods, and for any damage which may result from their failure or their improper construction, maintenance or operation. 31. USE AND OCCUPANCY PRIOR TO ACCEPTANCE BY OWNER The CONTRACTOR agrees to the use and occupancy of a portion or unit of the project before formal acceptance by the OWNER, provided the OWNER: a. Secures written consent of the CONTRACTOR except in the event, in the opinion of the Architect/Engineer,the CONTRACTOR is chargeable with unwarranted delay in completing the contract requirements; b. Secures consent of the Surety; c. Secures endorsement from the insurance carrier(s) permitting occupancy of the building or use of the project during the remaining period of construction; or, d. When the project consists of more than one building and one of the buildings is occupied, F-12 secures permanent fire and extended coverage insurance, including a permit from the insurance carrier to complete construction. 32. USE OF PREMISES AND REMOVAL OF DEBRIS The CONTRACTOR expressly undertakes at his own expense: a. To take every precaution against injuries to persons or damage to property; b. To store his apparatus, materials, supplies and equipment in such orderly fashion at the site of the work as will not unduly interfere with the progress of his work or the work of any other CONTRACTOR'S. c. To place upon the work or any part thereof only such loads as are consistent with the safety of that portion of the work; d. To clean up frequently all refuse, rubbish, scrap materials and debris caused by his operations, to the end that at all times the site of the work shall present a neat, orderly and workmanlike appearance; e. Before final payment to removal all surplus material, false work, temporary structures, including foundations thereof, plant of any description and debris of every nature resulting from his operations, and to put the site in a neat, orderly condition; f. To affect all cutting, fitting, or patching of his work required to make the same to conform to the Plans and Specifications and, except with the consent of the Architect/Engineer, not to cut or otherwise alter the work of any other CONTRACTOR. 33. QUANTITIES OF ESTIMATE Wherever the estimated quantities of work to be done and materials to be furnished under this Contract are shown in any of the documents including the proposal, they are given for use in comparing bids and the right is especially reserved, except as herein otherwise specifically limited, to increase or diminish them as may be deemed reasonably necessary or desirable by the OWNER to complete the work contemplated by the Contract, and such increase or diminution shall in no way vitiate this Contract, nor shall any such increase or diminution give cause for claims or liability for damages. 34. LAND AND RIGHTS-OF-WAY Prior to the start of construction, the OWNER shall obtain all lands and rights-of-way necessary for the carrying out and completion of work to be performed under this CONTRACT. 35. CONFLICTING CONDITIONS IN CONTRACT DOCUMENTS The Contract Documents are complementary and what is called for by one shall be as binding as if called for by all. In case of a conflict between any of the Contract Documents, priority of interpretation shall be in the following order: Signed Agreement (including General Conditions), Performance Bond, Payment Bond, Special Bonds (if any), Proposal, Special Conditions (including Information to Bidders), Advertisements for Bids, Detailed Drawings, Technical Specifications, General Drawings (Plans) and Supplemental General Conditions. F-13 36. NOTICE AND SERVICE THEREOF Any notice to any CONTRACTOR from the OWNER relative to any part of this Contract shall be in writing and considered delivered and the service thereof completed when said notice is posted, by certified or registered mail, to the said CONTRACTOR at his last given address or delivered in person to the said CONTRACTOR or his authorized representative on the work. 37. SEPARATE CONTRACT The CONTRACTOR shall coordinate his operations with those of other CONTRACTOR'S. Cooperation will be required in the arrangement for the storage of materials and in the detailed execution of the work. The CONTRACTOR, including his Subcontractors, shall keep informed of the progress and the detail work of other CONTRACTOR'S and shall notify the Architect/Engineer immediately of lack of progress or effective workmanship on the part of other CONTRACTOR'S. Failure of a CONTRACTOR to keep informed of the work progressing on the site and failure to give notice of lack of progress or defective workmanship by others shall be construed as acceptance by him of the status of the work as being satisfactory for proper coordination with his own work. 38. SUBCONTRACTING a. The CONTRACTOR may utilize the services of specialty Subcontractors on those parts of Work which, under normal contracting practices, are performed by specialty Subcontractors. b. The CONTRACTOR shall not award any work to any Subcontractor without prior written approval of the OWNER, which approval will not be given until the CONTRACTOR submits to the OWNER a written statement concerning the proposed award to the Subcontractor, which statement shall contain such information as the OWNER may require. c. The CONTRACTOR shall be as fully responsible to the OWNER for the acts or omissions of his Subcontractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him. d. The CONTRACTOR shall cause appropriate provisions to be inserted in all Subcontracts relative to the work to bind Subcontractors to the CONTRACTOR by the terms of the General Conditions and other Contract Documents insofar as applicable to the work of Subcontractors and to give the CONTRACTOR the same power as regards terminating any Subcontract that the OWNER may exercise over the CONTRACTOR under any provision of the Contract Documents. e. Nothing contained in this Contract shall create any contractual relation between any Subcontractor and the OWNER. f. In addition to the provisions, the CONTRACTOR shall perform not less than 50 percent of the "Services"as shown on the bid form with its own forces. The 50 percent requirement shall be understood to refer to the "Services"line on the bid form, based on estimated quantities. 39. ARCHITECT/ENGINEER'S AUTHORITY The Architect/Engineer shall give all orders and directions contemplated under this Contract and Specifications, relative to the execution of the work. The Architect/Engineer shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this Contract and shall decide all questions which may arise in relation to said work and the construction thereof. The Architect/Engineer's estimates, and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said Contract or Specifications, the determination or decision F-14 of the Architect/Engineer shall be a condition precedent to the right of the CONTRACTOR to receive any money or payment for work under this Contract affected in any manner or to any extent by such question. 40. MEANING OF INTENT The Architect/Engineer shall decide the meaning and intent of any portion of the Specifications and of any Plans or drawings where the same may be found obscure or be in dispute. Any differences or conflicts in regard to their work which may arise between the CONTRACTOR, under this Contract and other CONTRACTOR'S, performing work for the OWNER, shall be adjusted and determined by the Architect/Engineer. 41. CONTRACT SECURITY If the Contract amount exceeds Twenty-five Thousand Dollars ($25,000), a Payment Bond shall be furnished, and if the contract exceeds One Hundred Thousand Dollars ($100,000.00) a Performance Bond also shall be furnished, on prescribed forms in the amount of one hundred percent(100%) than that prescribed by state,territorial or local law, as security for the payment of all persons performing labor on the project under this Contract and furnishing materials in connection with this Contract and as security for the faithful performance of this Contract. 42. ADDITIONAL OR SUBSTITUTE BOND If at any time the OWNER,for justifiable cause, shall be or become dissatisfied with any Surety or Sureties for the Performance and/or Payment Bonds, the CONTRACTOR shall, within five (5) days after notice from the OWNER to do so, substitute an acceptable bond (or bonds) in such form and sum and signed by such other Surety or Sureties as may be satisfactory to the OWNER. The premiums on such bond shall be paid by the CONTRACTOR. No further payments shall be deemed due nor shall be made until the new Surety and Sureties shall have furnished such an acceptable bond to the OWNER. 43. ASSIGNMENTS The CONTRACTOR shall not assign the whole or any part of this Contract or any monies due or to become due hereunder without written consent of the OWNER. In case the CONTRACTOR assigns all or any part of any monies due or to become due under this Contract, the instrument of assignment shall contain a clause substantially to the effect that it is agreed that the right of the assignee in and to any monies due or to become due to the CONTRACTOR shall be subject to prior claims of all persons, firms and corporations of services rendered or materials supplied for the performance of the work called for in this Contract. 44. MUTUAL RESPONSIBILITY OF CONTRACTOR'S If, through acts of neglect on the part of the CONTRACTOR, any other CONTRACTOR or any Subcontractor shall suffer loss or damage on the work, the CONTRACTOR agrees to settle with such other CONTRACTOR or Subcontractor by agreement or arbitration if such other CONTRACTOR Subcontractor will so settle. If such other CONTRACTOR or Subcontractor shall assert any claim against the OWNER on account of any damage alleged to have been sustained, the OWNER shall notify the CONTRACTOR, who shall indemnify and safe harmless the OWNER F-15 against any such claim. 45. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE The Acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER of all claims and all liability to the CONTRACTOR for all things done or furnished in connection with this work and for every act and neglect of the OWNER and others relating to or arising out of this work. No payment, however, final or otherwise, shall operate to release the CONTRACTOR or his Sureties from any obligations under this Contract or the Performance and Payment Bonds. 46. PAYMENTS BY CONTRACTOR The CONTRACTOR shall pay(a)for all transportation and utility services no later than the 20th day of the calendar month following that in which services are rendered, (b) for all materials, tools and other expendable equipment to the extent of ninety percent(90%)cost thereof, no later than the 20th day of the calendar month following that in which such materials, tools and equipment are delivered at the site of the project, and the balance of the cost thereof, no later than the 30th day following the completion of that part of the work in or on which such materials, tools and equipment are incorporated or used, and (c) to each of his Subcontractors, no later than the 5th day following each payment to the CONTRACTOR, the respective amounts allowed the CONTRACTOR on account of the work performed by his Subcontractors to the extent of each Subcontractors interest therein. 47. CONSTRUCTION SCHEDULE A. The successful Bidder shall, within seven (7) calendar days of the date of the Notice of Award and prior to issuance of the Notice to Proceed, submit a detailed Critical Path Method (CPM) Construction Schedule, hereinafter called "Schedule". The Schedule shall follow the "Sequence of Work" which is listed in the Scope of Work section of these Contract Documents. The Schedule shall consist of the following: 1. A logic network CPM arrow or precedence diagram of sufficient detail to construct each segment of the project and to construct the total project. 2. A detailed activities list which includes the following information in tabular form: a. A listing of all submittal, production, procurement and construction management activities; b. The expected duration (in days) of each activity listed; c. The activities upon which the start of each activity depends; d. The resource requirements(manpower, material and equipment)for each activity; and e. An estimated dollar value of each activity such that the sum total value of all activities equals the total dollar value of the Bid. F-16 B. The Owner will review with the CONTRACTOR the proposed CPM schedule submitted by the CONTRACTOR. The purpose of this review is to assure adequate planning for the proper and timely execution of the Work and to assist the Owner in appraising the suitability of the proposed network Schedule for construction of the project. C. Upon acceptance by the OWNER the Schedule will become the basis for monitoring and measuring the progress of the Work. To assure proper tracking of progress throughout the performance of the Work, the CONTRCTOR shall maintain and continuously update his detailed network Schedule. The CONTRACTOR shall, during the first week of each month and at other times as the OWNER may request, furnish to the OWNER an updated schedule which is clearly marked to show the actual percent completion of each activity as of the date of the Schedule update. The CONTRATOR shall submit with the Schedule update, a narrative report of the progress made during the period covered by the Schedule update. This report shall outline accomplishments during the reporting period and shall include a discussion of problems encountered and of how those problems have been or will be dealt with. The narrative report shall also include a discussion of changes or other items encountered which, in the opinion of the CONTRACTOR, may cause problems to the future progress of the Work. The CONTRACTOR shall include in the report a plan of action for overcoming the potential problems stated. a. The OWNER retains the right to withhold progress payments until the CONTRACTOR'S updated schedule has been accepted by the OWNER. b. During the course of the Work the Schedule may be revised by agreement of the OWNER and the Contractor. Each revision of the Schedule shall supersede and replace all previous versions of the Schedule. The revised Schedule shall include the following information: 1. Date of revision; 2 Identification of all changes made to the original schedule, including the incorporation of an anticipated Change Orders; 3. Concise narrative explanation of the reasons for each change. c. The CONTRACTOR may request Schedule revisions by submitting a revised Schedule in the form outlined above. However, if the OWNER cannot agree to the suggested revisions, the Contractor shall make those adjustments as may be required to maintain the original Schedule. d. Responsibility for the CONTRACTOR'S Schedule(s) in all aspects, assumptions and implications, either known or unknown, made or assumed, by the CONTRACTOR in the preparation of his Schedule(s), is entirely that of the CONTRACTOR. Acceptance of the CONTRACTOR'S schedule(s) by the OWNER shall in no way make the OWNER responsible for the execution or non-execution of the CONTRACTOR'S schedule nor is the OWNER responsible or liable in any way for any acts, errors, omissions or negligence of the CONTRACTOR or any Sub-contractor or any of the CONTRACTR'S or Sub- contractor's agents, assigns, servants or employees or any other person, firm or corporation performing or attempting to perform the Work. F-17 48. PAYMENTS TO CONTRACTOR a. Not later than the thirty(30) calendar days from the date of submission to the City of Port Arthur,the OWNER shall make a progress payment to the CONTRACTOR on the basis of a duly certified and approved estimate of the work performed during the preceding calendar month under this Contract, but to insure the proper performance of the Contract, the OWNER shall retain ten percent (10%) (five percent[5%] if the total contract price exceeds$25,000)of the amount of each estimate until final completion and acceptance of all work covered by this Contract; Provided,that the CONTRACTOR shall submit his estimate no later than the fifth (5th)day of the month. Provided further, that on completion and acceptance of each separate building, public work or other division of the Contract on which the price is stated separately in the Contract, payment may be made in full, including retained percentages thereon, less authorized deductions. The CONTRACTOR is advised that the payment schedule noted is subject to fluctuation due to the City of Port Arthur Council's regular schedule of meeting on every other Tuesday. The CONTRACTOR may alter his estimate period such as to give the Engineer (ten)1 O working days prior to the next scheduled City of Port Arthur Council meeting to prepare an estimate of the work completed and submit said estimate for the OWNER'S action. 49. In preparing estimates, the material delivered on the site and preparatory work done may be taken into consideration. 50. All material and work covered by partial payments made shall thereupon become the sole property of the OWNER, but this provision shall not be construed as relieving the CONTRACTOR from the sole responsibility for the care and protection of materials and work upon which payments have been made or the restoration of any damaged work or as a waiver of the right of the OWNER to require the fulfillment of all of the terms of the Contract. A. OWNER'S Right to Withhold Certain Amounts and Make Application Thereof: The CONTRACTOR agrees that he will indemnify and save the OWNER harmless from all claims growing out of the lawful demands of Subcontractors, laborers, workmen, mechanics, materialmen and furnishers of machinery and parts thereof, equipment, power tools and all supplies, including commissary, incurred in the furtherance of the performance of this Contract. The CONTRACTOR shall, at the OWNER'S request, furnish satisfactory evidence that all obligations of nature hereinabove designated have been paid,discharged or waived. If the CONTRACTOR fails to do so,then the OWNER may, after having served written notice on the said CONTRACTOR, either pay unpaid bills, of which the OWNER has written notice, direct, or withhold from the CONTRACTOR'S unpaid compensation a sum of money deemed reasonably sufficient to pay any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been fully discharged whereupon payment to the CONTRACTOR shall be resumed, in accordance with the terms of this Contract, but in no event shall the provisions of this sentence be construed to impose any obligations upon the OWNER to either the CONTRACTOR or his Surety. In paying any unpaid bills of the CONTRACTOR, the OWNER shall be deemed the agent of the CONTRACTOR, and any payment so made by the OWNER shall be considered as a payment made under Contract by the OWNER to the CONTRACTOR and the OWNER shall not be liable to the CONTRACTOR for any such payments made in good faith. This provision shall not be construed to give rise to any third-party beneficiary rights in claimants. F-18 51. CORRECTION OF WORK All work, all materials, whether incorporated in the work or not, all processes of manufacture and all methods of construction shall be at all times and places subject to the inspection of the Architect/Engineer who shall be the final judge of the quality and suitability of the work, materials, processes of manufacture and methods of construction for the purposes for which they are used. Should they fail to meet his approval, they shall be forthwith reconstructed, made good, replaced and/or corrected, as the case may be, by the CONTRACTOR at his own expense. Rejected material shall immediately be removed from the site. If, in the opinion of the Architect/Engineer, it is undesirable to replace any defective or damaged materials or to reconstruct or correct any portion of the work injured or not performed in accordance with the Contract Documents, the compensation to be paid to the CONTRACTOR hereunder shall be reduced by such amount as in the judgement of the Architect/Engineer shall be equitable. 52. SUBSURFACE CONDITIONS FOUND DIFFERENT Should the CONTRACTOR encounter subsurface and/or latent conditions at the site materially differing from those shown on the Plans or indicated in the Specifications, he shall immediately give notice to the Architect/Engineer of such conditions before they are disturbed. The Architect/Engineer will thereupon promptly investigate the conditions and, if he finds that they materially differ from those shown on the Plans or indicated in the Specifications, he will at once make such changes in the Plans and/or Specifications as he may find necessary, any increase or decrease of cost resulting from such changes to be adjusted in the manner provided in paragraph 52 of the General Conditions. 53. CLAIMS FOR EXTRA COST No claim for extra work or cost shall be allowed unless the same was done pursuant to a written order of the Architect/Engineer approved by the OWNER, as aforesaid, and the claim presented with the first estimate after the changed or extra work is done. When work is performed under the terms of subparagraph 52(c) of the General Conditions, the CONTRACTOR shall furnish satisfactory bills, payrolls and vouchers covering all items of cost and when requested by the OWNER, give the OWNER access to accounts relating thereto. 54. CHANGES IN WORK No changes in the work covered by the approved Contract Documents shall be made without having prior written approval of the OWNER. Charges or credit for the work covered by the approved change shall be determined by one or more, or a combination of the following methods: a. Unit bid prices previously approved. b. An agreed lump sum. c. The actual cost of: i. Labor, including foreman; ii. Materials entering permanently into the work; iii. The ownership or rental cost of construction plant and equipment during the time of use F-19 on the extra work; iv. Power and consumable supplies for the operation of power equipment; v. Insurance; vi. Social Security and old age unemployment contributions. To the cost under(c)there shall be added a fixed fee to be agreed upon but not to exceed fifteen percent ( 15%) of the work. The fee shall be compensation to cover the cost of supervision, overhead, bond, profit and any other general expenses. 55. EXTRAS Without invalidating the Contract, the OWNER may order extra work or make changes by altering, adding to or deducting from the work, the Contract sum being adjusted accordingly, and the consent of the Surety being first obtained where necessary or desirable.All the work of the kind bid upon shall be paid for at the price stipulated in the proposal, and no claims for any extra work or materials shall be allowed unless the work is ordered in writing by the OWNER or its Architect/Engineer, acting officially for the OWNER, and the price is stated in such order. 56. TIME FOR COMPLETION AND LIQUIDATED DAMAGES It is hereby understood and mutually agreed, by and between the CONTRACTOR and the OWNER,that the date of beginning and the time for completion as specified in the Contract of the work to be done hereunder are ESSENTIAL CONDITIONS of this Contract; and it is further mutually understood and agreed that the work embraced in this Contract shall be commenced on a date to be specified in the "Notice to Proceed". It is agreed that the Contractor will pay the City $500.00 for each and every calendar day of delay beyond the Time prescribed in the Contract Documents for finishing the Work, as Liquidated Damages and not as a penalty or forfeiture. All liquidated damages specified in this Article shall be cumulative. In the event Contractor fails to complete the Work associated with more than one milestone, liquidated damages will accrue for each and every milestone, in the amount specified above, up and until the work identified for each milestone is complete. In the event the Liquidated Damages are not immediately paid to the City by the Contractor, the Contractor agrees the City may deduct that amount from any money due or that may become due the Contractor under the Contract. This Article does not exclude recovery of other damages specified in the Contract Documents. The CONTRACTOR agrees that said work shall be prosecuted regularly, diligently and without interruption at such rate of progress as will insure full completion thereof within the time specified. It is expressly understood and agreed, by and between the CONTRACTOR and the OWNER, that the time for the completion of the work described herein is a reasonable time for the completion of same, taking into consideration the average climatic range and usual industrial conditions prevailing in this locality. F-20 If the said CONTRACTOR shall neglect, fail or refuse to complete the work within the time herein specified, or any proper extension thereof granted by the OWNER, then the CONTRACTOR does hereby agree, as a part consideration for the awarding of this Contract, to pay to the OWNER the amount specified in the Contract, not as a penalty, but as liquidated damages for such breach of Contract as hereinafter set forth, for each and every consecutive calendar day, including, but not limited to, all Saturdays, Sundays, and Federal, State, and City of Port Arthur holidays and that the CONTRACTOR shall be in default after the time stipulated in the Contract for completing the work. The said amount is fixed and agreed upon by and between the CONTRACTOR and the OWNER because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the OWNER would in such event sustain, and said amount is agreed to be the amount of damages which the OWNER would sustain and said amount shall be retained from time to time by the OWNER from current periodical estimates. It is further agreed that time is of the essence of each and every portion of this Contract and of the Specifications wherein a definite and certain length of time is fixed for the performance of any act whatsoever; and where under the Contract an additional time is allowed for the completion of any work, the new time limit fixed by such extension shall be of the essence of this Contract. Provided, that the CONTRACTOR shall not be charged with any part of liquidated damages or any excess cost when the OWNER determines that any part of liquidated damages was not the fault of the CONTRACTOR and the OWNER determines that the request for extension by the CONTRACTOR is justified and due to: a. Any preference, priority or allocation order duly issued by the government; b. The following unforeseeable causes, namely: acts of the public enemy, acts of the OWNER, acts of another CONTRACTOR in the performance of a Contract with the OWNER, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, hurricanes and tornadoes; and rainy days claimed by the CONTRACTOR; however, rainy days shall be considered only if the CONTRACTOR notifies the Engineer or OWNER on the day the CONTRACTOR claims he cannot work because of rainy weather that day. Failure to so report will eliminate any claim for time extension because of rainy weather on that day. c. Rainy weather when 60 percent of his work force cannot work for seven (7) hours or more that day because of rainy weather and providing that he has complied with the condition under 54(b). d. Any delays of Subcontractors or suppliers occasioned by any of the causes specified in subsections (a) and (b) of this article. Provided, further, that the CONTRACTOR shall, within ten (10)working days after total calendar days delayed have been used up in the contract time and such delay thereafter, unless the OWNER shall grant a further period of time prior to the date of final settlement of the Contract, notify the OWNER, in writing, of the causes of delay, who shall ascertain the facts and extent of the delay and notify the CONTRACTOR within reasonable time of its decision in the matter. The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of the CONTRACTOR if a claim is made therefore as provided and if approved therefore by Engineer. Such delays shall include acts of neglect by the OWNER or others performing additional work, or by acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions, strikes, labor disputes, sabotage, or freight Fri embargoes. All time limits stated in the Contract Documents are of the essence of the Agreement. Provided, that this provision for liquidated damages shall be cumulative of and not in limitation of any other remedy available to OWNER, including, without limitation, the right to terminate as provided in paragraph 3 and to recover additional damages for any excess cost in otherwise completing the work. 57. WEATHER CONDITIONS Inclement weather is any extreme weather condition or conditions resulting immediately there-from, causing the CONTRACTOR to suspend construction operations, or preventing the CONTRACTOR from profitably utilizing at least 75 percent of the normal labor and equipment force engaged on the Work. Examples include rain, snow, wind, extreme temperatures, lightning, and storms. Should the CONTRACTOR prepare to begin work at the regular starting time at the beginning of any regular work shift on any day on which inclement weather, or the forecast by the local NOAA Weather Reporting Station of 30% or greater chance of inclement weather, or the conditions resulting from the weather, or the condition of the Work prevents work from beginning at the usual starting time, and the crew is dismissed as a result thereof, the CONTRACTOR will not be charged for a working day whether or not conditions change thereafter during said day and the major portion of the day could be considered to be suitable for such construction operations. In the event of temporary suspension of work, or during inclement weather, or whenever the Architect/Engineer shall direct, the CONTRACTOR will, and will cause his Subcontractors to, protect carefully his, and there, work and materials against damage or injury from the weather. If, in the opinion of the Architect/Engineer, any work or materials shall have been damaged or injured by reason of failure on the part of the CONTRACTOR or any of his Subcontractors so to protect his work, such materials shall be removed and replaced at the expense of the CONTRACTOR. 58. PROTECTION OF WORK AND PROPERTY--EMERGENCY The CONTRACTOR shall at all times safely guard the OWNER'S property from injury or loss in connection with this Contract. He shall at all times safely guard and protect his own work, and that of adjacent property, from damage. The CONTRACTOR shall replace or make good any such damage, loss or injury unless such be caused directly by errors contained in the Contract or by the OWNER, or his duly authorized representatives. In case of an emergency which threatens loss or injury of property and/or safety of life, the CONTRACTOR will be allowed to act, without previous instructions from the Architect/Engineer, in a diligent manner. He shall notify the Architect/Engineer immediately thereafter. Any claim for compensation by the CONTRACTOR due to such extra work shall be promptly submitted to the Architect/Engineer for approval. Where the CONTRACTOR has not taken action but has notified the Architect/Engineer of an emergency threatening injury to persons or damage to the work or any adjoining property, he shall act as instructed or authorized by the Architect/Engineer. The amount of reimbursement claimed by the CONTRACTOR on account of any emergency action shall be determined in the manner provided in paragraph 52 of the General Conditions. F-22 59. INSPECTION The authorized representatives and agents of the shall be permitted to inspect all work, materials, payrolls, records of personnel, invoices of materials and other relevant data and records. 60. SUPERINTENDENCE BY CONTRACTOR At the site of the work, the CONTRACTOR shall employ a construction superintendent or foreman who shall have full authority to act for the CONTRACTOR. It is understood that such representative shall be acceptable to the Architect/Engineer and shall be one who can be continued in the capacity for the particular job involved unless he ceases to be on the CONTRACTOR'S payroll. 61. FEDERAL LABOR STANDARDS PROVISIONS All laborers and mechanics employed upon the work covered by this Contract shall be paid unconditionally and not less often than once each week and without subsequent deduction or rebate on any account (except such payroll deductions as are made mandatory by law and such other payroll deductions as are permitted by the applicable regulations issued by the Secretary of Labor, United States Department of Labor, pursuant to the Anti-Kickback Act hereinafter identified)the full amount due at time of payment computed at wage rates not less than those contained in the wage determination decision of said Secretary of Labor (a copy of which is attached hereto and incorporated herein by reference), regardless of any contractual relationship which may be alleged to exist between the CONTRACTOR or any Subcontractor and such laborers and mechanics. All laborers and mechanics employed upon such work shall be paid in cash, except that payment may be by check if the employer provides or secures satisfactory facilities approved by the OWNER for the cashing of the same without cost or expense to the employee. For the purpose of this clause, contributions made or costs reasonably anticipated under Section 1(b) (2) of the Davis Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section 5.5 (a) (1) (iv) of Title 29, Code of Federal Regulations. Also, for the purpose of this clause, regular contributions made, or costs incurred for more than a weekly period under Plans, funds or programs, but covering the particular weekly period, are deemed to be constructively made or incurred during such weekly period. 62. UNDERPAYMENTS OF WAGES OR SALARIES In case of underpayment of wages by the CONTRACTOR or by any Subcontractor to laborers or mechanics employed by the CONTRACTOR or Subcontractor upon the work covered by the Contract, the OWNER, in addition to such other rights as may be afforded it under this Contract, shall withhold from the CONTRACTOR, out of any payments due the CONTRACTOR, so much thereof as the OWNER may consider necessary to pay such laborers or mechanics the full amount of wages required by this Contract. The amount so withheld may be disbursed by the OWNER for and on account of the CONTRACTOR or the Subcontractor (as may be appropriate), to the respective laborers or mechanics to whom the same is due or on their behalf to Plans, funds or programs for any type of fringe benefit prescribed in the applicable wagedetermination. 63. ANTICIPATED COSTS OF FRINGE BENEFITS If the CONTRACTOR does not make payments to a trustee or other third person, he may consider, as part of the wages of any laborer or mechanic, the amount of any costs reasonable anticipated in providing fringe benefits under a Plan or program of a type expressly listed in the wage determination decision of the Secretary of Labor which is a part of this Contract: Provided, however, the Secretary of Labor has found, upon the written request of the CONTRACTOR, that the F-23 applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the CONTRACTOR to set aside in a separate account assetforthe meeting of obligations underthe plan or program. A copy of any findings made by the Secretary of Labor in respect to fringe benefits being provided by the CONTRACTOR must be submitted to the OWNER with the first payroll filed by the CONTRACTOR subsequent to receipt of the findings. 64. OVERTIME COMPENSATION REQUIRED BY CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (76 Stat. 357-360: TITLE 40 U.S.C.. SECTIONS 327- 332 a. Overtime Requirements: No CONTRACTOR or Subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics, including watchmen and guards, shall require or permit any laborer or mechanic in any work week in which he is employed on such work to work in excess of forty (40) hours in such work week unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all hours worked in excess of forty (40) hours in such work week. b. Violation - Liability for Unpaid Wages Liquidated Damages: In the event of any violation of the clause set forth in paragraph (a), the CONTRACTOR and any Subcontractor responsible therefore shall be liable to any affected employee for his unpaid wages. In addition, such CONTRACTOR and Subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violations of the clause set forth in paragraph (a), in the sum of Ten Dollars ($10.00)for each calendar day on which such employee was required or permitted to work in excess of forty (40) hours without payment of the overtime wages required by the clause set forth in paragraph (a). c. Withholding for Liquidated Damages:The OWNER shall withhold or cause to be withheld from any monies payable on account of work performed by the CONTRACTOR or Subcontractor such sums as may administratively be determined to be necessary to satisfy any liabilities of such CONTRACTOR or Subcontractor for liquidated damages as provided in the clause set forth in paragraph (b). d. Subcontracts: The CONTRACTOR shall insert in any Subcontracts the clauses set forth in paragraphs(a), (b)and(c)of this section and also a clause requiring the Subcontractors to include these clauses in any lower tier Subcontracts which they may enter into,together with a clause requiring this insertion in any further Subcontracts that may in turn be made. 65. EMPLOYMENT OF APPRENTICES/TRAINEES a. Apprentices: Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Manpower Administration, Bureau of Apprenticeship and Training, or with a state apprenticeship agency recognized by the Bureau, or if a person is employed in his first ninety (90) days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a state apprenticeship agency(where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen in any craft classification shall not be greater than the ratio permitted to the CONTRACTOR as to his entire work force under the registered program. Any employee listed on a payroll at an apprentice wage rate, who is not a trainee as defined in subdivision F- 74 (b)of this subparagraph or is not registered or otherwise employed as stated above, shall be paid the wage rate determined by the Secretary of Labor for the classification of work he actually performed. The CONTRACTOR or Subcontractor will be required to furnish to the contracting officer or a representative of the Wage-Hour Division of the U.S. Department of Labor written evidence of the registration of his program and apprentices as well as the appropriate ratios and wage rates (expressed in percentages of the journeyman hourly rates)for the area of construction prior to using any apprentices on the Contract work. The wage rate paid apprentices shall be not less than the appropriate percentage of the journeyman's rate contained in the applicable wage determination. b. Trainees: Except as provided in 29 CFR 5.15, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification, by the U.S. Department of Labor, Manpower Administration, Bureau of Apprentice and Training. The ratio of trainees to journeymen shall not be greater than permitted under the plan approved by the Bureau of Apprenticeship and Training. Every trainee must be paid at not less than the rate specified in the approved program for his level of progress. Any employee listed on the payroll at a trainee rate, who is not registered and participating in a training plan approved by the Bureau of Apprenticeship and Training, shall be paid not less than the wage rate determined by the Secretary of Labor for the classification of work he actually performed. The CONTRACTOR or Subcontractor will be required to furnish the contracting officer or a representative of the Wage-Hour Division of the U.S. Department of Labor written evidence of the certification of his program, the registration of the trainees and the ratios and wage rates prescribed in that program. In the event the Bureau of Apprenticeship and Training withdraws approval of a training program, c.the CONTRACTOR will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is provided. d. Equal Employment Opportunity: The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order No. 11246, as amended, and 29 CFR Part 30. 66. EMPLOYMENT OF CERTAIN PERSONS PROHIBITED No person under the age of sixteen (16) years and no person who, at the time, is serving sentence in a penal or correctional institution shall be employed on the work covered by this Contract. 67. EMPLOYMENT OF LABORERS OR MECHANICS NOT LISTED IN AFORESAID WAGE DETERMINATION DECISION Unlisted classifications needed for work not included within the scope of the classifications listed in the wage determination in this Contract may be added after award only as provided in the labor standards contract clauses (29 CFR, 5.5 (a) (1) (ii). 68. FRINGE BENEFITS NOT EXPRESSED AS HOURLY WAGE RATES The OWNER shall require, whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly wage rate and the CONTRACTOR is obligated to pay cash equivalent of such a fringe benefit, an hourly cash equivalent thereof to be established. In the event the interested parties cannot agree upon a cash equivalent of the fringe benefit, the question, accompanied by the recommendation F-25 of the OWNER, shall be referred, through the Secretary of Housing and Urban Development, to the Secretary of Labor for determination. 69. POSTING WAGE DETERMINATION DECISIONS AND AUTHORIZED WAGE DEDUCTIONS The applicable wage poster and the applicable wage determination decisions, with respect to the various classification of laborers and mechanics employed and to be employed upon the work covered by this Contract, and a statement showing all deductions, if any, in accordance with the provisions of this Contract, to be made from wages actually earned by persons so employed or to be employed in such classifications, shall be posted at appropriate conspicuous points at the site of the work. 70. COMPLAINTS, PROCEEDINGS OR TESTIMONY BY EMPLOYEES No laborer or mechanic to whom the wage, salary or other labor standards provisions of this Contract are applicable shall be discharged or in any other manner discriminated against by the CONTRACTOR or any Subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this Contract to his employer. 71. CLAIMS AND DISPUTES PERTAINING TO WAGE RATES Claims and disputes pertaining to wage rates or to classifications of laborers and mechanics employed upon the work covered by this Contract shall be promptly reported by the CONTRACTOR in writing to the OWNER for referral by the latter through the Secretary of Housing and Urban Development to the Secretary of Labor, United States Department of Labor, whose decision shall be final with respect thereto. 72. QUESTIONS CONCERNING CERTAIN FEDERAL STATUTES AND REGULATIONS All questions arising under this Contract which relate to the application or interpretation of (a) the aforesaid Anti-Kickback Act, (b) the Contract Work Hours and Safety Standards Act, (c) the aforesaid Davis-Bacon Act, (d) the regulations issued by the Secretary of Labor, United States Department of Labor, pursuant to said Acts, or (e) the labor standards provisions of any other pertinent federal statute, shall be referred, through the OWNER and the Secretary of Housing and Urban Development, to the Secretary of Labor, United States Department of Labor, for said Secretary's appropriate ruling or interpretation which shall be authoritative and may be relied upon for the purposes of this Contract. 73. PAYROLLS AND BASIC PAYROLL RECORDS OF CONTRACTOR AND SUBCONTRACTOR The CONTRACTOR and each Subcontractor shall prepare his payrolls on forms satisfactory to and in accordance with instructions to be furnished by the OWNER The CONTRACTOR shall submit weekly to the OWNER one certified copy of all payrolls of the CONTRACTOR and of the Subcontractors, it being understood that the CONTRACTOR shall be responsible for the submission of copies of payrolls of all Subcontractors. Each such payroll shall contain the "Weekly Statement of Compliance" set forth in Section 3.3 of Title 29, Code of Federal Regulations. The payrolls and basic payroll records of the CONTRACTOR and each F-26 Subcontractor covering all laborers and mechanics employed upon the work covered by this Contract shall be maintained during the course of the work and preserved for a period of three (3) years thereafter. Such payrolls and basic payroll records shall contain the name and address of each employee, his correct classification, rate of pay (including rates of contributions or costs anticipated of the types described in Section 1 (b) (2) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. In addition, whenever the Secretary of Labor has found, under Section 5.5(a) (1) (iv) of Title 29, Code of Federal Regulations, that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in Section 1(b) (2) (B) of the Davis-Bacon Act, the CONTRACTOR of Subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible and that the plan or program has been communicated in writing to the laborers or mechanics affected, and will maintain records which show the costs anticipated or the actual cost incurred in providing such benefits. The CONTRACTOR and each Sub-contractor shall make his employment records, with respect to persons employed by him upon the work covered by this Contract, available for inspection by authorized representatives of the Secretary of Housing and Urban Development, the OWNER and the United States Department of Labor. Such representatives shall be permitted to interview employees of the CONTRACTOR or of any Subcontractors during working hours on the job. 74. SPECIFIC COVERAGE OF CERTAIN TYPES OF WORK BY EMPLOYEES The transporting of materials and supplies to or from the site of the project or program to which the Contract pertains by the employees of the CONTRACTOR or of any Subcontractor and the manufacturing or furnishing of materials, articles, supplies or equipment on the site of the project or program to which this Contract pertains by persons employed by the CONTRACTOR or by any Subcontractor, shall, for the purposes of this Contract, and without limiting the generality of the foregoing provisions of this Contract, shall be deemed to be work to which these Federal Labor Standards Provisions are applicable. 75. INELIGIBLE SUBCONTRACTORS The CONTRACTOR shall not subcontract any part of the work covered by this Contract or permit subcontracted work to be further subcontracted without the OWNER'S prior written approval of the Subcontractor. The OWNER will not approve any Subcontractor for work covered by this Contract who is at the time ineligible under the provisions of any applicable regulations issued by the Secretary of Labor, United States Department of Labor, or the Secretary of Housing and Urban Development to receive an award of such Subcontract. 76. PROVISIONS TO BE INCLUDED IN CERTAIN SUBCONTRACTS The CONTRACTOR shall include or cause to be included in each subcontract covering any of the work covered by this Contract, provisions which are consistent with these Federal Labor Standards Provisions and also a clause requiring the Subcontractors to include such provisions in any lower tier Subcontracts which they may enter into, together with a clause requiring such insertion in any further Subcontracts that may in turn be made. 77. BREACH OF FOREGOING FEDERAL LABOR STANDARDS PROVISIONS In addition to the causes for termination of this Contract as herein elsewhere set forth, the OWNER reserves the right to terminate this Contract if the CONTRACTOR or any Subcontractor, whose Subcontract covers any of the work covered by this Contract, shall breach any of these Federal Labor Standards Provisions. A breach of these Federal Labor Standards Provisions may also be grounds for debarment as provided by the applicable regulations issued by the Secretary of Labor, United States Department of Labor. 78. EMPLOYMENT PRACTICES The CONTRACTOR (1) shall, to the greatest extent practicable, follow hiring and employment practices for work on the project which will provide new job opportunities for the unemployed and underemployed, and (2) shall insert or cause to be inserted the same provision in each construction Subcontract. 79. CONTRACT TERMINATION: DEBARMENT A breach of Section 45 and the Federal Labor Standards Provisions may be grounds for termination of the Contract and for debarment as provided in 29 CFR 5.6. 80. KICKBACKS FROM PUBLIC WORKS EMPLOYEES a. Whoever, by force, intimidation, or threat of procuring dismissal from employment or by any other manner whatsoever, induces any person employed in the construction, prosecution, completion or repair of any public buildings, public works or buildings or works financed in whole or in part by loans or grants from the United States to give up any part of the compensation to which he is entitled under this Contract of employment, shall be fined not more than $5,000 or imprisoned not more than five (5) years, or both. b. The Secretary of Labor shall make reasonable regulations for CONTRACTOR'S and Subcontractors engaged in the construction, prosecution, completion or repair of public buildings, public works or buildings or works financed in whole or in part by loans or grants from the United States, including a provision that each Contractor and Subcontractor shall furnish weekly a statement with respect to the wages paid each employee during the preceding week. Section 1001 of Title 18 (United States Code) shall apply to such statements. c. Pursuant to the aforesaid Anti-Kickback Act, the Secretary of Labor, United States Department of Labor, has promulgated the regulations hereinafter set forth, which regulations are found in Title 29, Subtitle A, Code of Federal Regulations, Part 3. The term "this part", as used in the regulations hereinafter set forth, refers to Part 3 last above mentioned. Said regulations follow in Section 79. 81. LABOR-TITLE 29 CFR PART 3 This part prescribes "Anti-Kickback" regulations under Section 2 of the Act of June 13, 1934, as amended (40 U.S.C. 276c), popularly known as the Copeland Act. This part applies to any Contract which is subject to federal wage standards and which is for the construction, prosecution, completion or repair of public buildings, public works or buildings or works financed in whole or in part by loans or grants from the United States. This part is intended to aid in the enforcement of the minimum wage provisions of the Davis-Bacon Act and the various statutes dealing with federally-assisted construction that contain similar minimum wage provisions, including those provisions which are not subject to Reorganization Plan No. 14 (e.g. the College Housing Act of 1950, the Federal Water Pollution Control Act and the Housing Act of 1959), and in the enforcement of the overtime provisions of the Contract Work Hours Standards Act whenever they are applicable to construction work. This part details the obligation of CONTRACTOR'S and Subcontractors relative to the weekly submission of statements regarding the wages paid on work covered thereby, sets forth the circumstances and procedures governing the making of payroll deductions from the wages of those employed on such work and delineates the methods of payment permissible on such work. Section 3.2 definitions as used in this part: F-28 a. The terms "building" or "work" generally include construction activity as distinguished from manufacturing, furnishing or materials or servicing and maintenance work. The terms include without limitation, buildings, structures, and improvements of all types, such as bridges, dams, plants, highways, parkways, streets, subways, tunnels, sewers, mains, powerlines, pumping stations, railways, airports, terminals, docks, piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees and canals; dredging, shoring, scaffolding, drilling, blasting, excavating, clearing and landscaping. Unless conducted in connection with and at the site of such a building or work as is described in the foregoing sentence, the manufacture or furnishing of materials, articles, supplies or equipment (whether or not a federal or state agency acquires title to such materials, articles, supplies or equipment during the course of the manufacture or furnishing or owns the materials from which they are manufactured or furnished) is not a "building"or"work"within the meaning of the regulations in this part. b. The terms"construction", "prosecution", "completion"or"repair"mean all types of work done on a particular building or work at the site thereof, including, without limitation, altering, remodeling, painting and decorating, the transporting of materials and supplies to or from the building or work by the employees of the construction contractor or construction subcontractor, and the manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work by persons employed at the site by the CONTRACTOR or Subcontractor. c. The terms "public building" or "public work" include building or work for whose construction, prosecution, completion, or repair, as defined above, a federal agency is a contracting party, regardless of whether title thereof is in a federal agency. d. The term "building or work financed in whole or in part by loans or grants from the United States"includes building or work for whose construction, prosecution completion or repair, as defined as above, payment or part payment is made directly or indirectly from funds provided by loans or grants by a federal agency. The term does not include building or work for which federal assistance is limited solely to loan guarantees or insurance. e. Every person paid by a CONTRACTOR or Subcontractor in any manner for his labor in the construction, prosecution, completion or repair of any public buildings, or public works or buildings or works financed in whole or in part by loans or grants from the United States is "employed" and receiving "wages", regardless of any contractual relationship alleged to exist between him and the real employer. f. The term "any affiliated person" includes a spouse, child, parent or other close relative of the CONTRACTOR or Subcontractor; a partner or officer of the CONTRACTOR or Subcontractor; a corporation closely connected with the CONTRACTOR or Subcontractor as parent, subsidiary or otherwise, and an officer or agent of such corporation. g. The term "federal agency" means the United States, the District of Columbia, and all executive departments, independent establishments, administrative agencies and instrumentalities of the United States and of the District of Columbia, including corporations, all or substantially all of the stock which is beneficially owned by the United States, by the District of Columbia or any of the foregoing departments, establishments, agencies and instrumentalities. 82. WEEKLY STATEMENT WITH RESPECT TO PAYMENT OF WAGES a. As used in this section, the term "employee"shall not apply to persons in classifications F-29 higher than that of laborer or mechanic and those who are the immediate supervisors of such employees. b. Each CONTRACTOR or Subcontractor engaged in the construction, prosecution, completion or repair of any public buildings, or public works, or buildings or works financed in whole or in part by loans or grants from the United States, shall furnish each week a statement with respect to the wages paid each of its employees engaged on work covered by 29 CFR Parts 3 and 5 during the preceding weekly payroll period. This statement shall be executed by the CONTRACTOR or Subcontractor or by an authorized officer or employee of the CONTRACTOR or Subcontractor who supervises the payment of wages and shall be on form WH 348, "Statement of Compliance", or on identical form on the back of WH 347, "Payroll (for CONTRACTOR'S Optional Use)" or on any form with identical wording. Sample copies of WH 347 and WH 348 may be obtained from the government contracting or sponsoring agency and copies of these forms may be purchased at the Government Printing Office. c. The requirements of this section shall not apply to any Contract for Two Thousand Dollars ($2,000) or less. d. Upon a written finding by the head of a federal agency, the Secretary of Labor may provide reasonable limitations, variations, tolerances, and exemptions from the requirements of this section subject to such conditions as the Secretary of Labor may specify. 83. SUBMISSION OF WEEKLY STATEMENTS AND THE PRESERVATION AND INSPECTION OF WEEKLY PAYROLL RECORDS a. Each weekly statement required under§ 3.3 shall be delivered by the CONTRACTOR or Subcontractor, within seven (7) days after the regular payment date of the payroll period, to a representative of OWNER in charge at the site of the building or work or, if there is no representative of OWNER at the site of the building or work, the statement shall be mailed by the CONTRACTOR or Subcontractor, within such time, to the OWNER After such examination and check as may be made, such statement, or a copy thereof, shall be kept available and shall be transmitted together with a report of any violation, in accordance with applicable procedures prescribed by the United States Department of Labor. b. Each CONTRACTOR of Subcontractor shall preserve his weekly payroll records for a period of three (3) years from date of completion of the Contract. The payroll records shall set out accurately and completely the name and address of each laborer and mechanic, his correct classification, rate of pay, daily and weekly number of hours worked, deductions made and actual wages paid. Such payroll records shall be made available at all times for inspection by the contracting officer or his authorized representative and by authorized representatives of the Department of Labor. 84. PAYROLL DEDUCTIONS PERMISSIBLE WITHOUTAPPLICATION TO OR APPROVAL OF THE SECRETARY OF LABOR Deductions made under the circumstances or in the situations described in the paragraphs of this section may be made without application to and approval of the Secretary of Labor. a. Any deduction made in compliance with the requirements of federal, state or local law, such as federal or state withholding income taxes and federal social security taxes. F-30 b. Any deduction of sums previously paid to the employee as a bona fide prepayment of wages when such prepayment is made without discount or interest. A "bona fide prepayment of wages" is considered to have been made only when cash or its equivalent has been advanced to the person employed in such manner as to give him complete freedom of disposition of the advanced funds. c. Any deduction of amounts required by court process to be paid to another, unless the deduction is in favor of the CONTRACTOR, Subcontractor, or any affiliated person, or when collusion or collaboration exists. d. Any deduction constituting a contribution on behalf of the person employed to funds established by the employer or representatives of employees, or both, for the purpose of providing either from principal or income, or both, medical or hospital care, pensions or annuities on retirement, death benefits, compensation for injuries, illness, accidents, sickness or disability, or for insurance to provide any of the foregoing, or unemployment benefits, vacation pay, savings accounts or similar payments for the benefit of employees, their families and dependents: Provided, however, that the following standards are met: (1) the deduction is not otherwise prohibited by law; (2) it is either(i) voluntarily consented to by the employee in writing and in advance of the period in which the work is to be done and such consent is not a condition either for the obtaining of or for the continuation of employment, or (ii) provided for in a bona fide collective bargaining agreement between the e. CONTRACTOR or Subcontractor and representatives of its employees; (3) no profit or other benefit is otherwise obtained directly or indirectly, by the CONTRACTOR or Subcontractor or any affiliated person in the form of commission, dividend or otherwise; and(4)the deductions shall serve the convenience and interest of the employee. f. Any deduction contributing toward the purchase of United States Defense Stamps and Bonds when voluntarily authorized by the employee. g. Any deduction requested by the employee to enable him to repay loans to, or to purchase shares in credit unions organized and operated in accordance with federal and state credit union statutes. h. Any deduction voluntarily authorized by the employee for the making of contributions to governmental or quasi-governmental agencies such as the American Red Cross. i. Any deductions voluntarily authorized by the employee for the making of contributions to Community Chests, United Givers Funds, and similar charitable organizations. j. Any deductions to pay regular union initiation fees and membership dues, not including fines or special assessments: Provided, however, that a collective bargaining agreement between the CONTRACTOR or Subcontractor and representatives of its employees provides for such deductions and the deductions are not otherwise prohibited by law. k. Any deduction not more than for the"reasonable cost"of board, lodging or other facilities meeting the requirements of Section 3(m) of the Fair Labor Standards Act of 1938, as amended, and Part 531 of this title. When such a deduction is made, the additional records required under§ 516.27(a) of this title shall be kept. 85. PAYROLL DEDUCTIONS PERMISSIBLE WITH THE APPROVAL OF THE F-31 SECRETARY OF LABOR Any CONTRACTOR or Subcontractor may apply to the Secretary of Labor for permission to make any deduction not permitted under §3.5. The Secretary may grant permission whenever he finds that: a. The CONTRACTOR, Subcontractor o any affiliated person does not make a profit or benefit directly or indirectly from the deduction either in the form of a commission, dividend or otherwise; b. The deduction is not otherwise prohibited by law; c. The deduction is either (1) voluntarily consented to by the employee in writing and in advance of the period in which the work is to be done and such consent is not a condition either for the obtaining of employment or its continuance, or (2) provided for in a bona fide collective bargaining agreement between the CONTRACTOR or Subcontractor and representatives of its employees; and d. The deduction serves the convenience and interest of the employee. 86. APPLICATIONS FOR THE APPROVAL OF THE SECRETARY OF LABOR Any application for the making of payroll deductions under §3.6 shall comply with the requirements prescribed in the following paragraphs of this section: a. The application shall be in writing and shall be addressed to the Secretary of Labor. b. The application shall identify the Contract or Contracts under which the work in question is to be performed. Permission will be given for deductions only on specific, identified Contracts, except upon a showing of exceptional circumstances. c. The application shall state affirmatively that there is compliance with the standards set forth in the provisions of§3.6. The affirmation shall be accompanied by a full statement of the facts indicating such compliance. d. The application shall include a description of the proposed deduction. the purpose to be served thereby and the classes of laborers or mechanics from whose wages the proposed deduction would be made. e. The application shall state the name and business of any third person to whom any funds obtained from the proposed deductions are to be transmitted and the affiliation of such person, if any, with the applicant. 87. SECTION 3.8 ACTION BY THE SECRETARY OF LABOR UPON TO 86 The Secretary of Labor shall decide whether or not the requested deduction is permissible under provisions of §3.6 and shall notify the applicant in writing of his decision. 88. PROHIBITED PAYROLL DEDUCTIONS Deductions not elsewhere provided for by this part and which are not found to be permissible under §3.6 are prohibited. 89. METHODS OF PAYMENT OF WAGES F-31 The payment of wages shall be by cash, negotiable instruments payable on demand or the additional forms of compensation for which deductions are permissible under this part. No other methods of payment shall be recognized on work subject to the Copeland Act. 90. REGULATIONS PART OF CONTRACT All Contracts made with respect to the construction, prosecution, completion or repair of any public building or public work or building or work financed in whole or in part by loans or grants from the United States covered by the regulations in this part shall expressly bind the CONTRACTOR or Subcontractor to comply with such of the regulations in this part as may be applicable. In this regard, see §5.5(a) of this subtitle. 91. EQUAL OPPORTUNITY PROVISIONS (E.O. 11246) A. Activities and Contracts Subject to Executive Order 11246, as Amended (applicable to federally assisted construction contracts and related subcontracts under Ten Thousand Dollars ($10,000)): During the performance of this Contract, the CONTRACTOR agrees as follows: (1) The CONTRACTOR shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The CONTRACTOR shall take affirmative action to ensure that applicants for employment are employed and that employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or otherforms of compensation; and selection for training, including apprenticeship. (2) The CONTRACTOR shall post in conspicuous places, available to employees and applicants for employment, notices to be provided Contracting Officer setting forth the provisions of this nondiscrimination clause. The CONTRACTOR shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (3) CONTRACTOR'S shall incorporate foregoing requirements in all Subcontracts. B. Contracts Subject to Executive Order 11246, as Amended (applicable to federally assisted construction contracts and related subcontracts exceeding Ten Thousand Dollars ($10,000)): During the performance of this Contract, the CONTRACTOR agrees as follows: (1) The CONTRACTOR will not discriminate against any employee or applicant for Employment because of race, color, religion, sex or national origin. The CONTRACTOR will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The CONTRACTOR agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The CONTRACTOR will, in all solicitations or advertisements for employees placed by or on behalf of CONTRACTOR, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (3) The CONTRACTOR will send to each labor union or representative of workers, with which he has a collective bargaining agreement or other contract or understanding,a notice to F-33 be provided by the Contract Compliance Officer advising the said labor union or workers' representatives of the CONTRACTOR'S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The CONTRACTOR will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations and relevant orders of the Secretary of Labor. (5) The CONTRACTOR will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records and accounts by the Department and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. (6) In the event of the CONTRACTOR'S noncompliance with the non- discrimination clauses of this Contract or with any of the said rules, regulations or orders, this Contract may be cancelled, terminated or suspended in whole or in part, and the CONTRACTOR may be declared ineligible for further government CONTRACTOR'S or federally assisted construction Contract in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rule, regulation or order of the Secretary of Labor, or as otherwise provided by law. 1. The CONTRACTOR will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraph (1)through (7) in every Subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each Subcontractor or vendor. The CONTRACTOR will take such action with respect to any 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each Subcontractor or vendor. The CONTRACTOR will take such action with respect to any Subcontract or purchase order as the Department may direct as a means of enforcing such provisions, including sanctions of noncompliance: Provided, however, that in the event a CONTRACTOR becomes involved in, or is threatened with, litigation with a Subcontract or vendor as a result of such direction by the Department, the CONTRACTOR may request the United States to enter into such litigation to protect the interest of the United States. C. Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity (Executive Order 11246) (applicable to contracts/subcontracts exceeding Ten Thousand Dollars ($10,000)): (1) The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal Equal Employment Opportunity Construction Contract Specifications" set forth herein. (2) The goals and timetables for minority and female participation,expressed in percentage terms for the CONTRACTOR'S aggregate work force in each trade on all construction work in the covered area, are as follows: Goals for Minority Timetable Goals for Female Participation for Participation in Each Trade-8% Each Trade-8% F-34 These goals are applicable to all the CONTRACTOR'S construction work(whether or not it is federal or federally assisted) performed in the covered area. The CONTRACTOR'S compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the Specifications set forth in 41 CFR 60-4.3(a), and its efforts to meet the goals established for the geographical area where the Contract resulting from this solicitation is to be performed. The hours of minority and female employment and training must be substantially uniform throughout the length of the Contract, and in each trade, and the CONTRACTOR shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from CONTRACTOR to CONTRACTOR or from project to project for the sole purpose of meeting the CONTRACTOR'S goals shall be a violation of the Contract, the Executive Order and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed. (3) The CONTRACTOR shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within ten (10) working days of award of any construction subcontract in excess of$10,000 at any tier for Construction work under the Contract resulting from this solicitation. The notification shall list the name, address and telephone number of the Subcontractor; employer identification number; estimated dollar amount of the Subcontract; estimated starting and completion dates of the Subcontract; and the geographical area in which the Contract is to be performed. (4) As used in this Notice, and in the Contract resulting from this solicitation, the"covered area" is City of Port Arthur, Jefferson County, Texas. D.Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246): (1) As used in these Specifications: (a) "Covered area" means the geographical area described in the solicitation from which this contract resulted; (b) "Director" means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority; (c) "Employer identification number" means the Federal Social Security number used on the Employer's Quarterly Federal Tax Return, U.S. Treasury Department Form 941. (d) "Minority" includes: (i) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race); (iii) Asian and Pacific Islander(all persons having origins in any of the original peoples of the Far East, Southeast Asia the Indian Subcontinent or the Pacific Islands); and (iv) American Indian or Alaskan Native (all persons having origins in any of the original F-35 peoples of North American maintaining identifiable tribal affiliations through membership and participation or community identification). (2) Whenever the CONTRACTOR, or any subcontractor at any tier, Sub-contract a portion of the work involving any construction trade, it shall physically include in each Subcontract in excess of$10,000 the provisions of these Specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this Contract resulted. (3) If the CONTRACTOR is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. CONTRACTOR'S must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each CONTRACTOR or Subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other CONTRACTOR'S or Subcontractors toward a goal in an approved Plan does not excuse any covered CONTRACTOR'S or Subcontractors failure to take good faith efforts to achieve the Plan goals and timetables. (4) The CONTRACTOR shall implement the specific affirmative action standards provided in paragraphs 7a through 7p of these Specifications. The goals set forth in the solicitation from which the Contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the CONTRACTOR should reasonably be able to achieve in each Construction trade in which it has employees in the covered area. Covered construction CONTRACTOR'S performing construction work in geographical areas where they do not have a federal or federally assisted construction Contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the Federal Register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal Procurement Contracting Officers. The CONTRACTOR is expected to make substantially uniform progress toward its goals in each craft during the period specified. (5) Neither the provisions of any collective bargaining agreement nor the failure by a union with whom the CONTRACTOR has a collective bargaining agreement to refer either minorities or women shall excuse the CONTRACTOR'S obligations under these Specifications, Executive Order 11246, or the regulations promulgated pursuant thereto. (6) In order for the non-working training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the CONTRACTOR during the training period, and the CONTRACTOR must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor. (7) The CONTRACTOR shall take specific affirmative actions to ensure equal opportunity. The evaluation of the CONTRACTOR'S compliance with these Specifications shall be based upon its effort to achieve maximum results from its actions. The CONTRACTOR shall document these efforts fully and shall implement affirmative ACTION steps at least as extensive as the following: F-3 6 (a) Ensure and maintain a working environment free of harassment, intimidation and coercion at all sites and in all facilities at which the CONTRACTOR'S employees are assigned to work. The CONTRACTOR, where possible, will assign two or more women to each construction project. The CONTRACTOR shall specifically ensure that all foremen, superintendents and other on-site supervisory personnel are aware of and carry out the CONTRACTOR'S obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b) Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the CONTRACTOR or its unions have employment opportunities available and maintain a record of the organization's responses. c) Maintain a current file of the names, addresses and telephone numbers of each minority and female off-the-street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the CONTRACTOR by the union or, if referred, not employed by the CONTRACTOR, this shall be documented in the file with the reason therefore, along with whatever additional actions the CONTRACTOR may have taken. d) Provide immediate written notifications to the Director when the union or unions with which the CONTRACTOR has a collective bargaining agreement has not referred to the CONTRACTOR a minority person or woman sent by the CONTRACTOR, or when the CONTRACTOR has other information that the union referral process has impeded the CONTRACTOR'S efforts to meet its obligations. e) Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the CONTRACTOR'S employment needs, especially those programs funded or approved by the Department of Labor. The CONTRACTOR shall provide notice of these programs to the sources compiled under7b above. f) Disseminate the CONTRACTOR'S EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the CONTRACTOR in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed. g) Review, at least annually, the company's EEO policy and affirmative action obligations under these Specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with on-site supervisory personnel such as Superintendents, General Foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed and disposition of the subject matter. F-37 h) Disseminate the CONTRACTOR'S EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the CONTRACTOR'S EEO policy with other CONTRACTOR'S and Subcontractors with whom the CONTRACTOR does or anticipates doing business. i) Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the CONTRACTOR'S recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, the CONTRACTOR shall send written notification to organizations such as the above, describing the openings, screening procedures and tests to be used in the selection process. j) Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a CONTRACTOR'S work force. k) Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3. I) Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m) Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the CONTRACTOR'S obligations under the Specifications are being carried out. n) Ensure that all facilities and company activities are non-segregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. o) Document and maintain a record of all solicitations of offers for Subcontracts from minority and female construction CONTRACTOR'S and suppliers, including circulation of solicitations to minority and female CONTRACTOR associations and other business associations. p) Conduct a review, at least annually, of all supervisors' adherence to and performance under the CONTRACTOR'S EEO policies and affirmative action obligations. (4) CONTRACTOR'S are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7a though 7p). The efforts of a CONTRACTOR association, joint CONTRACTOR-union, CONTRACTOR- community or other similar group of which the CONTRACTOR is a member and participant, may be asserted as fulfilling any one or more of its obligations under 7a through 7p of these Specifications provided that the CONTRACTOR actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the CONTRACTOR'S minority and female work force participation, makes a good faith effort to meet its individual goals and timetables and can F-3 8 provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the CONTRACTOR. The obligation shall not be a defense for the CONTRACTOR'S non-compliance. (5) A single goal for minorities and a separate single goal for women have been established. The CONTRACTOR, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non-minority. Consequently, the CONTRACTOR may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner(for example, even though the CONTRACTOR has achieved its goals for women generally, the CONTRACTOR may be in violation of the Executive Order if a specific minority group of women is underutilized). (6) The CONTRACTOR shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex or national origin. (7) The CONTRACTOR shall not enter into any Subcontract with any person or firm debarred from government Contracts pursuant to Executive Order 11246. (8) The CONTRACTOR shall carry out such sanctions and penalties for violation of these Specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing Subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any CONTRACTOR who fails to carry out such sanctions and penalties shall be in violation of these Specifications and Executive Order 11246, as amended. (9) The CONTRACTOR, in fulfilling its obligations under these Specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph 7 of these Specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the CONTRACTOR fails to comply with the requirements of the Executive Order, the implementing regulations or these Specifications, the Director shall proceed in accordance with 41 CFR 60-4.8. (10) The CONTRACTOR shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the government and to keep records. Records shall at least include for each employee the name, address, telephone number, construction trade, union affiliation, if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice trainee, helper or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, CONTRACTOR'S shall not be required to maintain separate records. (11) Nothing herein provided shall be construed as a limitation upon which the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents(e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program). F-39 92. SECTION 3 COMPLIANCE IN THE PROVISION OF TRAINING. EMPLOYMENT AND BUSINESS OPPORTUNITIES During the performance of this Contract, the CONTRACTOR agrees as follows: a. The CONTRACTOR agrees to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701(u)), as amended, the HUD regulations issued pursuant thereto at 24 CFR Part 135 and any applicable rules and orders of HUD issued thereunder. b. The "Section 3 clause" set forth in 24 CFR 135.20(b) shall form part of this Contract as set forth in paragraph 1 of the General Conditions, "Contract and Contract Documents". c. CONTRACTOR'S shall incorporate the Section 3 clause shown below and the foregoing requirements in all Subcontracts. d. Section 3 clause as set forth in 24 CFR 135.20{b): i. The work to be performed under this Contract is on a project assisted under a program providing direct federal financial assistance from the Department of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. Section 3 requires that to the greatest extent feasible, opportunities for training and employment be given lower income residents of the project area and Contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in, the area of the project. ii. The parties to this Contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135 and all applicable rules and orders of the Department issued thereunder prior to the execution of this Contract. The parties to this Contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements. iii. The CONTRACTOR will send to each labor organization or representative of workers with which he has a collective bargaining agreement or other Contract or understanding, if any, a notice advising the said labor organization or workers representative of his commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training. iv. The CONTRACTOR will include this Section 3 clause in every Subcontract for work in connection with the project and will, at the direction of the applicant for, or recipient of federal financial assistance, take appropriate action pursuant to the Subcontract upon a finding that the Subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 CFR 135. The CONTRACTOR will not Subcontract with any Subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 135 and will not let any Subcontract unless the Subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. v. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 135 and all applicable rules and orders of the Department issued thereunder prior to the execution of the Contract shall be a condition of the federal financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors and assigns. Failure to fulfill these requirements shall be subject the applicant or recipient, F-40 or its CONTRACTOR'S and Subcontractors, its successors and assigns to those sanctions specified by the grant or loan agreement or Contract through which federal assistance is provided and to such sanctions as are specified by 24 CFR 135. 93. CIVIL RIGHTS ACT OF 1964 Under Chapter 106 of the Civil Practice & Remedies Code of the Revised Civil Statues of Texas, no person shall, on the ground of race, color, national origin, sex, age or handicap, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity of the City of Port Arthur. 94. SECTION 109 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974 No person in the United States shall on the ground of race, color, national origin or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. 95. INDEMNIFICATION The CONTRACTOR shall defend, indemnify, and hold harmless the OWNER and the Engineer and their respective officers, agents, and employees, from and against all damages, claims, losses, demands, suits, judgements, and costs, including reasonable attorney's fees and expenses arising out of or resulting from the performance of the work, provided that any such damages. claim, loss, demand, suit, judgement, cost or expense: a. Is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom; and, b. Is caused in whole or in part by any negligent act or omission of the CONTRACTOR, or Subcontractor, anyone directly or indirectly employed by any one of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. The obligation of the CONTRACTOR under this Paragraph shall not extend to the liability of the Engineer, his agents or employees arising out of the preparation or approval of maps, drawings, reports, surveys, Change Orders, designs or Specifications, or the giving of or the failure to give directions or instructions by the Engineer, his agents or employees, provided such giving or failure to give is the primary cause of the injury or damage. 96. DELAYS The CONTRACTOR shall receive no compensation for delays or hindrances to the work, except when direct and unavoidable extra cost to the CONTRACTOR is caused by the failure of the CITY OF PORT ARTHUR to provide information or material, if any, which is to be furnished by the CITY OF PORT ARTHUR. When such extra compensation is claimed, a written statement thereof shall be presented by the CONTRACTOR to the Engineer and, if by him found correct, shall be approved and referred by him to the Council for final approval or disapproval; and the action thereon by the Council shall be final and binding. If delay is caused by specific orders given by the Engineers to stop work, of by the performance of extra work, or by the failure of the CITY OF PORT ARTHUR to provide material or necessary instructions for carrying on the work, then such F-4l delay will entitle the CONTRACTOR to an equivalent extension of time, his application for which shall, however, be subject to the approval of the City of Port Arthur Council; and no such extension of time shall release the CONTRACTOR or the Surety on his performance bond from all his obligations hereunder which shall remain in full force until the discharge of the Contract. 97. MAINTENANCE OF WORK If, after approval of final payment and prior to expiration of one (1) year after date of Substantial Completion or such longer period as may be prescribed by law or by any applicable special guarantee required by the Contract Documents, any work is found to be defective, CONTRACTOR shall promptly, without cost to OWNER and in accordance with the OWNER'S written instructions, correct such defective work. If CONTRACTOR does not promptly comply with such instructions, OWNER may have such defective work corrected and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by CONTRACTOR. The provisions of this paragraph shall not limit the obligation of CONTRACTOR under paragraph 14 (Guarantee of Work) in any respect whatsoever, including the time period of such Guarantee of Work provision in paragraph 14 as will arise under the laws of the State of Texas and such Paragraph 14 and without regard to the provisions of this paragraph (Maintenance of Work), nor shall this paragraph (Maintenance of Work) be construed to establish any period of limitations for any cause of action against CONTRACTOR under the obligations of Paragraph 14. 98. ANTITRUST CONTRACTOR hereby assigns to OWNER any and all claims for overcharges associated with this Contract which arise under the anti-trust laws of the United States, 15 U.S.C.A. Sec. 1, et seq. (1973). 99. Labor. Materials. and Equipment: a. The CONTRACTOR shall provide competent, suitably qualified personnel to survey and lay out the work and perform construction as required by the Contract Documents. The CONTRACTOR shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the contract Documents, all Work at the site shall be performed during regular working hours, and the Contractor will not permit overtime work or the performance of work on Saturday, Sunday, or any legal holiday without the Owner's written consent given after prior written notice and approval by the Engineer. If the CONTRACTOR performs any work after regular working hours, or on Saturday, Sunday, or any legal holiday, it shall pay the OWNER any additional cost incurred by the OWNER as a result of such work. b. Except as otherwise provided in this Article, the CONTRACTOR shall receive no additional compensation for overtime work, i.e., work in excess of eight (8) hours in any one calendar day or forty (40) hours in any one (1) calendar week, even though such overtime work may be required under emergency conditions and may be ordered by the Engineer in writing. Additional compensation will be paid to the CONTRACTOR for overtime work only in the event that extra work is ordered by the Engineer, and the Change Order specifically authorizes the use of overtime work and then only to such extent as overtime wages are regularly being paid by the CONTRACTOR for overtime work of a similar nature in the same locality. F-42 d. All costs of inspection and testing performed during overtime work by the CONTRACTOR which is allowed solely for the convenience of the CONTRACTOR shall be borne by the CONTRACTOR. The OWNER shall have the authority to deduct the cost of all such inspection and testing from any partial payments otherwise due the CONTRACTOR. e. Unless otherwise specified in the Contract Documents, the CONTRACTOR shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, f. Telephone, water, sanitary facilities, temporary facilities and all other facilities, and incidentals necessary for the furnishing, performance, testing, start-up, and completion of the work. g. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. If required by the Engineer, the CONTRACTOR shall furnish satisfactory evidence(including reports of required tests)as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned in accordance with the instructions of the applicable supplier except as otherwise provided in the Contract Documents;but no provision of any such instructions will be effective to assign to the OWNER, nor any of the OWNER'S consultants, agents, or employees, any duty or authority to supervise or direct the furnishing or performance of the work or any duty or authority to undertake responsibility contrary to the provisions. F-43 100.FEDERAL LABOR STANDARDS PROVISIONS Federal Labor Standards Provisions U.S.Department of Housing and Urban Development Applicability The Project or Program to which the construction work times by the contractor and its sub-contractors at covered by his contract pertains is being assisted by the the site of the work in a prominent and accessible, United States of America and the following Federal place where it can be easily seen by the workers. Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal (a)Any class of laborers or mechanics which is assistance. not listed in the wage determination,and which is to be employed under the contract shall be A. I. (i) Minimum Wages. All laborers and mechanics classified in conformance with the wage employed or working upon the site of the work(or under determination.HUD shall approve an additional the United States Housing Act of 1937 or under the classification and wage rate and fringe benefits Housing Act of 1949 in the construction or development therefore only when the following criteria have of the project),will be paid unconditionally and not less often than once a week, and without subsequent been met: deduction or rebate on any account(except such payroll deductions as are permitted by regulations issued by the (I) The work to be performed by the classification Secretary of Labor under the Copeland Act. (29 CFR requested is not performed by a classification in the Part 3),the full amount of wages and bona fide fringe wage determination;and benefits (or cash equivalents thereof@ due at time of payment computed at rates not less than those contained (2) The classification is utilized in the area by the in the wage determination of the Secretary of Labor construction industry;and which is attached hereto and made a part thereof, regardless of any contractual relationship which may be (3) The proposed wage rate,including any bona fide alleged to exist between the contractor and such laborers fringe benefits,bears a reasonable relationship to the and mechanics.Contributions made or costs reasonably anticipated for bona fide fringe benefits under Section wage rates contained in the wage determination. I(b)(2)of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or (b) If the contractor and the laborers and mechanics to be mechanics,subject to the provisions of 29 CFR-5.S(a)( employed in the classification(if known),or their 1)(iv);also,regular contributions made or costs incurred representatives,and HUD or its designee agree on for more than a weekly period(but not less often than the classification and wage rate (including the quarterly)under plans,funds,or programs,which cover amount designated for fringe benefits where the particular weekly period, are deemed to be appropriate), a report of the action taken shall be constructively made or incurred during such weekly period. sent by HUD or its designee to the Administrator of the Wage and Hour Division, Employment Such laborers and mechanics shall be paid the Standards Administration, U.S. Department of appropriate wage rate and fringe benefits on the Labor, Washington, D.C. 20210. The wage determination for the classification of work Administrator,or an authorized representative,will actually performed without regard to skill,except approve, modify, or disapprove every additional as provided in 29 CFR Part 5.5(a)(4).Laborers or classification action within 30 days of receipt and mechanics performing work in more than one so advise HUD or its designee or will notify HUD classification may be compensated at the rate or its designee within the 30-day period that specified for each classification for the time additional time is necessary. (Approved by the actually worked therein: Provided, that the Office of Management and Budget under OMB employer's payroll records accurately set forth the control number 1215-0140.) time spent in each classification in which work is (c) In the event the contractor,the laborers or mechanics performed. The wage determination(including any to be employed m the classification or their additional classification and wage rates conformed representatives, and HUD or its designee do not under 29 CFR Part 5.5(a)(I)(ii) and the Davis- agree on the proposed classification and wage rate Bacon poster(WH-1321)shall be posted at all (including the amount designated for fringe benefits,where appropriate),HUD or its designee F_AA of 1937 or under the Housing Act of 1949 in the shall refer the questions,including the views of all construction or development of the project),all or interested parties and the recommendation of HUD part of the wages required by the contract,HUD or or its designee, to the Administrator for its designee may, after written notice to the determination.The Administrator,or an authorized contractor,sponsor,applicant,or owner,take such representative, will issue a determination within 30 action as may be necessary to cause the suspension days of receipt and so advise HUD or its designee of any further payment, advance, or guarantee of or will notify HUD or its designee within the 30- funds until such violations have ceased. HUD or its designee may,after written notice to the contractor day period that additional time is necessary. disburse such amounts withheld for and on account of (Approved by the Office of Management and the contractor or subcontractor to the respective Budget under OMB Control Number 1215-0140.) employees to whom they are due.The Comptroller General shall make such disbursements in the case (d) The Wage rate(including fringe benefits where of direct Davis-Bacon Act contracts. appropriate)determined pursuant to subparagraphs (1)(b)or(c)of this paragraph,shall be paid to all 3. (i) Payrolls and basic records. Payrolls and basic workers performing work in the classification records relating thereto shall be maintained by the under this contract from the first day on which contractor during the course of the work preserved work is performed in the classification. for a period of three years thereafter for all laborers and mechanics working at the site of the work(or (III) Whenever the minimum wage rate prescribed In under the United States Housing Act of 1937, or the contract for a class of laborers or mechanics under the Housing Act. Of 1949, in the includes a fringe benefit which is not expressed as construction or development of the project). Such an hourly rate, the contractor shall either pay the records shall contain the name,address,and social benefit as stated in the wage determination or shall security number of each such worker, his or her pay another bona fide fringe benefit or an hourly correct classification, hourly rates of wages paid cash equivalent thereof. (including rates of contribution or costs anticipated for bona fide fringe benefits or cash equivalents (iv)If the contractor does not make payments to a trustee thereof of the types described in Section(b)(2)(8) or other third person,the contractor may consider of the Davis-bacon Act),daily and weekly number as part of the wages of any laborer or mechanic the of hours worked, deductions made and actual amount of any costs reasonably anticipated in wages paid. Whenever the Secretary of Labor has providing bona fide fringe benefits under a plan or found under 29 CFR 5.5(a)(1)(iv)that the wages of program, Provided, That the Secretary of Labor any laborer or mechanic include the amount of any has found, upon the written request of the costs reasonably anticipated in providing benefits contractor, that the applicable standards of the under a plan or program described in Section I Davis Bacon Act have been met.The Secretary of (b)(2)(B) of the Davis-Bacon Act, the contractor Labor may require the contractor to set aside in a shall maintain records which show that the separate account asset for the meeting of commitment to provide such benefits is obligations under the plan or program. (Approved enforceable,that the plan or program is financially by the Office of Management and Budget under responsible,and that the plan or program has been 0MB Control Number 1215-0140.) communicated in writing to the laborers or mechanics affected, and records which show the 2. Withholding. HUD or its designee shall upon its costs anticipated or the actual cost incurred in own action or upon written request of an authorized providing such benefits. Contractors employing representative of the Department of Labor withhold or cause to be withheld from the contractor under apprentices or trainees under approved programs this contract or any other Federal contract with the shall maintain written evidence of the registration same prime contractor, or any other Federally- of apprenticeship programs and certification of assisted contract subject to Davis-Bacon prevailing trainee programs,the registration of the apprentices wage requirements,which is held by the same prime and trainees, and the ratios and wage rates contractor so much of the accrued payments or described in the applicable programs. (Approved advances as may be considered necessary to pay laborers and mechanics, including apprentices, by the Office of Management and Budget under trainees and helpers,employed by the contractor or OMB Control Numbers 1215-0140 and any subcontractor the full amount of wages required 121500017.) by the contractor in the event of failure to pay any laborer or mechanic, including any apprentice, (ii) (a) The contractor shall submit weekly for each trainee or helper,employed or working on the site week in which any contract work is performed a of the work(or under the United States Housing Act F-4S copy of all payrolls to HUD or its designee if the or criminal prosecution under Section I 00 I of Title agency is a party to the contract,but if the agency 18 and Section 231 of Title 31 of the United States is not such a party,the contractor will submit the Code. payrolls to the applicant sponsor,or owner,as the case may be, for transmission to HUD or its (iii) The contractor or subcontractor shall make the designee. The payrolls submitted shall set out records required under paragraph A.3.(I) of this accurately and completely all of the information section available for inspection, copying, or required to be maintained under 29 CFR Part transcription by authorized representatives of HUD 5.5(a)(3)(I).This information may be submitted in or its designee or the Department of Labor, and any form desired. Optional Form WH-347 is shall permit such representatives to interview available for this purpose and may be purchased employees during working hours on the job.If the from the Superintendent of Documents (Federal contractor or subcontractor fails to submit the Stock Number 029-005-00014-1),U.S. required records or to make them available,HUD Government Printing Office, Washington, DC. or its designee may, after written notice to the 20402.The prime contractor is responsible for the contractor,sponsor,applicant or owner,take such submission of copies of payrolls by all action as may be necessary to cause the suspension subcontractors. (Approved by the Office of of any further payment advance, or guarantee of Management and Budget under OMB Control funds.Furthermore,failure to submit the required Number 1215-0149.) records upon request or to make such records available may be grounds for debarment action (b) Each payroll submitted shall be accompanied by a pursuant to 29 CFR Part 5.12. "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who (Apprentices and Trainees) pays or supervises the payment of the persons (5) Apprentices.Apprentices will be permitted to work employed under the contract and shall certify the at less than the predetermined rate for the work they following: performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program (1) That the payroll for the payroll period contains the registered with the U.S.Department of Labor, Employment information required to be maintained under 29 and Training Administration, Bureau of Apprenticeship and CFR Part 5.5(a)(3)(i)and that such information is Training,or with a State Apprenticeship Agency recognized by the Bureau,or if a person is employed in his or her first 90 correct and complete; days of probationary employment as an apprentice in such an apprenticeship program,who is not individually registered in (2) That each laborer or mechanic (including each the program, but who has been certified by the Bureau of helper, apprentice, and trainee) employed on the Apprenticeship and Training or a State Apprenticeship contract during the payroll period has been paid the Agency(where appropriate)to be eligible for probationary full weekly wages earned, without rebate, either employment as an apprentice. The allowable ratio of directly or indirectly, and that no deductions have apprentices to journeymen on the job site in any craft been made either directly or indirectly from the full classification shall not be greater than the ratio permitted to the contractor as to the entire workforce under the registered wages earned,other than permissible deductions as program. Any worker listed on a payroll at an apprentice set forth in 29 CFR Part 3; wage rate, who is not registered or otherwise employed as stated above,shall be paid not less than the applicable wage (3) That each laborer or mechanic has been paid not rate on the wage determination for the classification of work less than the applicable wage rates and fringe actually performed. In addition, any apprentice performing benefits or cash equivalents for the classification work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable of work performed, as specified in the applicable wage rate on the wage determination for the actually wage determination incorporated into the contract. performed.Where a contractor is performing construction on a project in a locality other than that in which its program is (4) The weekly submission of a properly executed registered,the ratios and wage rates(expressed in percentages certification set forth on the reverse side of Optional of the journeyman's hourly rate)specified in the contractor's Form WH-347 shall satisfy the requirement for or subcontractor's registered program shall be observed. submission of the "Statement of Compliance" Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level required by paragraph A.3.(ii)(b)of this section. of progress expressed as a percentage of the journeymen hourly rate specified in benefits in accordance with the (d) The falsification of any of the above certifications prov1s10ns of the apprenticeship program. If the may subject the contractor or subcontractor to civil apprenticeship program does not specify fringe benefits,the wage determination for the applicable classification. If the 6. subcontracts. The contractor or subcontractor will Administrator determines that a different practice prevails for insert in any subcontracts the clauses contained in 29 the applicable apprentice classification,fringes shall be paid CFR 5.5(a)(1)through (10)and such other clauses as in accordance with the determination. In the event the HUD or its designee may be appropriate instructions Bureau of Apprenticeship and Training, or a State require,and also a clause requiring the subcontractors to Apprenticeship Agency recognized by the Bureau,withdraws include these clauses in any lower tier subcontracts.The approval of an apprenticeship program,the contractor will no prime contractor shall be responsible for the compliance longer be permitted to utilize apprentices at less than the by any subcontractor or lower tier subcontractor with all applicable predetermined rate for the work performed until an the contract clauses in 29 CFR Part 5.5. acceptable program is approved. 7. Contract termination; debarment. A breach of the (ii) Trainees. Except as provided in 29 CFR 5.16, contract clauses in 29 CFR 5.5 may be grounds for trainees will not be permitted to work at less than termination of the contract and for debarment as a the predetermined rate for the work performed contractor and a subcontractor as provided in 29 CFR unless they are employed pursuant to and 5.12. individually registered in a program which has received prior approval, evidenced by formal 8. Compliance with Davis-Bacon and Related Act certification by the U.S. Department of Labor, Requirements. All rulings and interpretations of the Employment and Training Administration. The Davis-Bacon and Related Acts contained in 29 CFR ratio of trainees to journeymen on the job site shall Parts I,3,and 5 are herein incorporated by reference in not be greater than permitted under the plan approved by the Employment and Training this contract. Administration. Every trainee must be paid at not less than the rate specified in the approved program 9. Disputes concerning labor standards. Disputes arising for the trainee's level of progress, expressed as a out of the labor standards provisions of this contract percentage of the journeyman hourly rate specified shall not be subject to the general disputes clauses of in the applicable wage determination. Trainees this contract. Such disputes shall be resolved in shall be paid fringe benefits in accordance with the accordance with the procedures of the Department of provisions of the trainee program. If the trainee program does not mention fringe benefits,trainees Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes shall be paid the full amount of fringe benefits within the meaning of this clause include disputes listed on the wage determination unless the between the contractor(or any of its subcontractors)and Administrator of the Wage and Hour Division HUD or its designee,the U.S.Department of Labor, or determines that there is an apprenticeship program the employees or their representatives. associated with the corresponding journeyman wage rate on the wage determination which I0. (i)Certification of Eligibility.By entering into this provides for less than full fringe benefits for contract the contractor certifies that neither it(nor he apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating or she)nor any person or firm who has an interest in in a training plan approved by the Employment and the contractor's firm is a person or firm ineligible to Training Administration shall be paid not less than be awarded Government contracts by virtue of Section the applicable wage rate on the wage determination 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(I) or for the work actually performed. In addition, any to be awarded HUD contracts or participate in HUD trainee performing work on the job site in excess of programs pursuant to 24 CFR Part 24. the ratio permitted under the registered program shall be paid not less than the applicable wage rate (ii) No part of this contract shall be subcontracted to or on the wage determination for the work actually performed. In the event the Employment and firm ineligible for award of a Government contract by virtue Training Administration withdraws approval of a of Section 3(a) of the Davis-Bacon Act or 29 CFR training program the contractor will no longer be 5.12(a)(I)or to be awarded HUD contracts or participate in permitted to utilize trainees at less than the HUD programs pursuant to 24 CFR Part 24. applicable predetermined rate for the work performed until an acceptable program is approved. (iii) The penalty for making false statements is prescribed (ii) Equal employment opportunity. The utilization of in the U.S.Criminal Code, 18 U.S.C. 1001.Additionally, apprentices, trainees and journeymen under this U.S. Criminal Code, Section I 01 0, Title 18, U.S.C. part shall be in conformity with the equal "Federal Housing Administration transaction", provides in employment requirements of Executive Order in part: "Whoever,for the purpose of... influencing in any 11246,as amended,and 29 CFR Part 30. way the action of such Administration makes,utters or 5. Compliance with Copeland Act requirements.The publishers any statement knowing the same to be false contractor shall comply with the requirements of29 shall be fined not more than$5,000 or imprisoned not more CFR Part 3 which are incorporated by reference in than two years,or both." this contract. F-4.7 action or upon written request of an authorized representative of the Department of Labor withhold 11. Complaints,Proceedings,or Testimony by Employees. or cause to be withheld,from any moneys payable No laborer or mechanic to whom the wage, salary, or on account of work performed by the contractor or other labor standards provisions of this Contract are subcontractor under any such contract or any other applicable shall be discharged or in any other manner Federal contract with the same prime contract, or discriminated against by the Contractor or any any other Federally-assisted contract subject to the subcontractor because such employee has filed any Contract Work Hours and Safety Standards Act complaint or instituted or caused to be instituted any which is held by the same prime contractor such proceeding or has testified or is about to testify in any sums as may be determined to be necessary to proceeding under or relating to the labor standards satisfy any liabilities of such contractor or applicable under this Contract to his employer. subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in B. Contract Work Hours and Safety Standards Act. As paragraph(2)of this paragraph. used in this paragraph the terms"laborers"and "mechanics"include watchmen and guards. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth (I) Overtime requirements. No contractor or sub- in subparagraph (I)through(4)of this paragraph contractor contracting for any part of the contract and also a clause requiring the subcontractors to work which may require or involve the include these clauses in any lower tier subcontracts. employment of laborers or mechanics shall require The prime contractor shall be responsible for or permit any such laborer or mechanic in any work compliance by any subcontractor or owner tier week in which he or she is employed on such work subcontractor with the clauses set forth in to work in excess of eight hours in such work week subparagraphs(I)through(4)of this paragraph. unless such laborer or mechanic receives compensation at a rate of pay for all hours worked C. Health and Safety in excess of eight hours in any calendar day or in excess of forty hours in such workweek,whichever (1) No laborer or mechanic shall be required to work in is greater. surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health (2) Violation; liability for unpaid wages; liquidated and safety as determined under construction safety damages.In the event of any violation of the clause and health standards promulgated by the Secretary set forth in subparagraph(I)of this paragraph,the of Labor by regulation. contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition,such contractor and subcontractor shall be g) The Contractor shall comply with all regulations liable to the United States(in the case of work done issued by the Secretary of Labor pursuant to Title under contract for the District of Columbia or a 29 Part 1926 (formerly part 1518) and failure to territory, to such District or to such territory), for comply may result in imposition of sanctions liquidated damages.Such liquidated damages shall pursuant to the Contract Work Hours and Safety be computed with respect to each individual laborer Standards Act.(Public Law 91-54,83 Stat 96). or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph(I)of this paragraph, in the sum of ( The Contractor shall include the provisions of this $10 for each calendar day on which such individual Article in every subcontract so that such provisions was required or permitted to work in excess of eight will be binding on each subcontractor. The hours or in excess of the standard workweek of forty Contractor shall take such action with respect to hours without payment of the overtime wages any subcontract as the Secretary of Housing and required by the clause set forth in sub paragraph(I) Urban Development or the Secretary of Labor shall of this paragraph. direct as a means of enforcing such provisions. (3) Withholding for unpaid wages and liquidated damages.HUD or its designee shall upon its own 101. DELAY. DISRUPTION OR OTHER CLAIMS Any claim by the CONTRACTOR for delay, disruption or any other claim shall be based on a written notice delivered to the CITY OF PORT ARTHUR and to the ENGINEER promptly (but in no case later than ten (10) calendar days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Within ten (10) calendar days of delivering said notice, the CONTRACTOR shall deliver to the CITY OF PORT ARTHUR and to the ENGINEER notice of the amount of the claim and specific and detailed support documentation and data on the impact claimed. Further, the CONTRACTOR shall furnish on a continuing basis all of the documents that in any way are purported to support the damages, costs, expenses and impact of the claim event. The CONTRACTOR'S failure to fully comply with any of these requirements with respect to any claim shall constitute a complete and final waiver of said claim. 102. Differing Site Conditions a. The CONTRACTOR shall notify the Engineer in writing of the following unforeseen conditions, hereinafter called differing site conditions, promptly upon their discovery(but in no event later than 14 calendar days) and before they are disturbed: 1. Subsurface or latent physical conditions at the site of the Work differing materially from those indicated, described, or delineated in the Contract Documents including those reports and documents discussed and 2. Unknown physical conditions at the site of the Work of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents including those reports and documents discussed. b. The Engineer will review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise the OWNER in writing of the Engineer's findings and conclusions. c. If the OWNER concludes that because of newly discovered conditions a change in the Contract Documents is required, a Change Order will be issued as provided, to reflect and document the consequences of the difference. d. In each such case, an increase or decrease in the Contract Price or an extension or reduction of the contract Time, or any combination thereof, will be allowable to the extent that they are attributable to any such difference. If the OWNER and the CONTRACTOR are unable to agree as to the amount or length thereof, a claim may be made therefore as provided in the General Conditions. e. The CONTRACTR'S failure to give notice of differing site conditions within fourteen (14) calendar days of discovery or before they are disturbed shall constitute a waiver of all claims in connection therewith, whetherdirect, consequential, or inconsequential in nature. f. Nothing herein shall be deemed to require the OWNER to indicate the presence of existing service laterals or appurtenances whenever the presence of such utilities on the site of the construction project can be inferred from the presence of other visible facilities, such as buildings, meter and junction boxes, on or adjacent to the site of the construction. F-49 103. Physical Conditions - Underground Utilities a. Shown or Indicated: The information shown or indicated in the Contract Documents with respect to existing, underground utilities at or contiguous to the site is based on information and data furnished to the OWNER or the Engineer by the owners of such underground utilities or by others. Unless it is expressly provided in the Supplementary General Conditions, the Owner and the Engineer shall not be responsible for the accuracy or completeness of any such information or data, and the Contractor shall have full responsibility for reviewing and checking all such information and data, for locating all underground utilities shown or indicated in the Contract Documents, for coordination of the work with the owners of such underground utilities during construction,for the safety and protection thereof and repairing any damage thereto resulting from the work, the cost of which will be considered as having been included in the Contract Price. b. Not Shown or Indicated: If an underground utility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and which the CONTRACTOR could not reasonably have been expected to be aware of, the CONTRACTOR shall identify the owner of such underground utility and give written notice thereof to that owner and shall notify the Engineer in accordance with the requirements of the General Conditions. F-50 SECTION I PAYMENT BOND PAYMENT BOND STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF JEFFERSON THAT we , of the City of County of , and State of , as Principal, and , as Surety, authorized under the laws of the State of Texas to act as Surety on bonds for principals are held and firmly bound unto the City of Port Arthur, Port Arthur, Texas, and to all Subcontractors, workmen, laborers,mechanics and furnishers of material, and any other claimant, as their interest may appear, all of whom shall have the right to sue upon their bond, in the penal sum of Dollars ($ ),lawful currency of the United States of America,for the payment of which, well and truly to be made, we do hereby bind ourselves, our heirs, executors, administrators and successors,jointly and severally and firmly by these presents: The condition of this Bond is such that, whereas, the above bounden Principal as prime contractor has on the day of , 2025, entered into a formal contract with the City of Port Arthur for which is hereby referred to and made part hereof as if fully written herein. NOW,THEREFORE, if the above bounden Principal shall protect all claimants supplying labor and material as provided for in Section 1 of Chapter 93 of the Acts of the 56th Regular Session of the Legislature of Texas(compiled as Article 5160 of Vernon's Texas Civil Statutes,as amended) and shall pay and perform any and every obligation that of such principal is required or provided for in such law, this bond being solely for the protection of all such claimants and being for the use of each such claimant, then this obligation shall be null and void, otherwise it shall remain in full force and effect. It is stipulated and agreed that no change, extension of time, addition to or modification of the Contract or work performed thereunder, shall in anywise affect the obligation of this bond,and surety expressly waives notice of any such change, extension of time, addition or modification. I-I IN WITNESS WHEREOF,the said Principal has caused these presents to be executed,and the said surety has caused these presents to be executed, each by its duly authorized agent and officer, and its corporate seal to be affixed at on this the day of , A.D., 2025. CONTRACTOR ATTEST: BY: TITLE: SURETY ATTEST: BY: TITLE: NOTE: Date of Bond must not be prior to date of Contract. If CONTRACTOR is Partnership, all partners shall execute Bond. Surety companies executing bonds must appear on Treasury Department's most current list (Circular 570 as amended) and be authorized to transact business in Texas. I-2 SECTION J PERFORMANCE BOND PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: THAT (Name of Contractor) (Address of Contractor) a , hereinafter called Principal, and (Name of Surety) (Address of Surety) hereinafter called Surety. are held and firmly bound unto (Name of Owner) (Address of Owner) hereinafter called OWNER, in the penal sum of Dollars, $( ) in lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, successors, and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such that whereas, the Principal entered into a certain Contract with the OWNER, dated the day of 2022, a copy of which is hereto attached and made a part hereof for the construction of: NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and agreements of said contract during the original term thereof, and any extensions thereof which may be granted by the OWNER, with or without notice to the Surety and during the one year guaranty period, and if he shall satisfy all claims and demands incurred under such contract, and shall fully indemnify and save harmless the OWNER from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the OWNER all outlay and expense which the OWNER may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. Provided, that this bond is executed pursuant to Article 5160 of the Revised Civil Statutes of Texas as amended and all liabilities on this bond shall be determined in accordance therewith. J-1 PROVIDED, FURTHER, that the said surety, for value received hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract or to WORK to be performed thereunder or the SPECIFICATIONS accompanying the same shall in any wise affect its obligation on this BOND, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract or to the WORK or the SPECIFICATIONS. PROVIDED, FURTHER, that no final settlement between the OWNER and the CONTRACTOR shall abridge the right of any beneficiary hereunder, whose claim may be unsatisfied. IN WITNESS WHEREOF, this instrument is executed in counterparts, each one of which shall be deemed an original, this the day of , 2025. ATTEST: Principal BY: (s) (Principal) Secretary [SEAL] (Witness as to Principal) (Address) Address Surety ATTEST: BY: Witness as to Surety Attorney-in-Fact Address Address NOTE: DATE OF BOND must not be prior to date of Contract. IF CONTRACTOR is Partnership, all partners should execute BOND. IMPORTANT: Surety companies executing BONDS must appear on the Treasury Department's most current list(Circular 570 as amended) and be authorized to transact business in the state where the PROJECT is located. J-2 SECTION N INSURANCE ® DATE(MM/DDIYYYY) AWRL CERTIFICATE OF LIABILITY INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: PHONE FAX (A/C,No,Ext): No): E-MAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A: INSURED INSURER B: INSURER C: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSW ADDL SUBR POLICY EFF POLY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY PREMISES Eoccurrence) $ CLAIMS-MADE OCCUR MED EXP(Any one person) $ PERSONAL&ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ POLICY JECT LOC $ AUTOMOBILE LIABILITY COMBINED SINULE LIMI I (Ea accident) ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULE BODILY INJURY(Per accident) $ AUTOS DAUTOS NON-OWNED PROPERTY DAMAGE HIRED AUTOS $ AUTOS (Per accident UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS'LIABILITY Y/N TORYLIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIVE - N/A E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space is required) CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2010 ACORD CORPORATION.All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD SECTION 0 TECHNICAL SPECIFICATIONS CITY OF PORT ARTHUR Lewis Drive Lift Station Rehabilitation Wet Well Liner GENERAL This contract provides for the rehabilitation of the existing lift station located on Lewis Dr., Port Arthur, Texas. The project includes cleaning the grease and sludge,pressure washing and preparing the coating, installing the Geopolymer Liner coating the wet well wall, bypass pumping, associated service connections, appurtenances, all necessary labor,materials, equipment, and testing. SPECIFIC This contract shall include all necessary labor, materials, equipment, tools, inspection, testing,and superintendence required for the complete and operable rehabilitation of the proposed project as shown on the contract plans and specifications. This contract includes, but is not limited to the following: The Scope of Service shall be performed specifically outlined in Exhibit A, attached, complete the tasks in accordance with a work schedule. CONDITIONS ALONG THE ROUTES The Contractor's attention is called to various physical conditions along the routes as follows. 1. Overhead power lines are located near or within the project site. The Contractor shall notify proper authorities at least 72 hours before construction begins. The Contractor shall take precautions to avoid damage to power lines, foundations, guywires,and appurtenances.The Contractor shall observe all applicable OSHA and owner requirements while working near the overhead power lines including restriction of height of the equipment. 2. Underground utilities and pipelines exist near or within the project area. During construction, the Contractor shall take the necessary precautions to avoid damaging the existing utilities within the limits of the project site. SPECIAL REQUIREMENTS The Contractor shall contact the lift station supervisor,Danny Luno, (409) 670- 3815 prior to starting any work within the project site. The Contractor shall restore all project locations to their original condition or better prior to the project completion.