Item 9C - Attachment A - Southlake - VendorMember Agreement - GeosurfacesVENDOR/MEMBER AGREEMENT FOR RENOVATIONS TO
THE BICENTENNIAL PARK BASEBALL FIELD;
BICENTENNIAL PARK SITE AMENITIES;
BOB JONES PARK SOCCER FIELDS;
BOB JONES PARK SITE AMENITIES;
BOB JONES PARK SOFTBALL FIELD; AND INCLUDING
BOB JONES PARK & BICENTENNIAL PARK — ADD ALTERNATES
This Vendor/Member Agreement (the "Agreement") is hereby entered into and effective as of the
day of , 2023, by and between GeoSurfaces, Inc. (the "Vendor" or
"Contractor"), and the City of Southlake, a Texas home -rule municipal corporation (the "City"), and the
Southlake Parks Development Corporation ("SPDC"), a nonprofit corporation organized under Title 12, Subtitle
Cl, of the Texas Local Government Code ("Act"), for the renovations projects identified in the title above
(collectively referred to as the "Project").
RECITALS
WHEREAS, the Vendor submitted the following proposals: (1) TIPS RFP 230203 Sports, Activity
Equipment, and Related Services; (2) TIPS RFP 230104 Trades, Labor, and Materials; (3) TIPS #230201
Synthetic Turf or Natural Sports Fields, Grounds, Courts, and Tracks Goods and Services (Part 1); and (4)
TIPS #230201 Synthetic Turf or Natural Sports Fields, Grounds, Courts, and Tracks Goods and Services (Part
2), to the Interlocal Purchasing System ("TIPS"), which is a government purchasing cooperative and
Department of Texas Region 8 Education Service Center; and
WHEREAS, Vendor and TIPS have entered into TIPS Vendor Agreements, whereby Vendor has
agreed to sell to TIPS and its members certain goods and services of a nature and quality as represented in the
specifications and proposals, and at a specified price; and
WHEREAS, the City has entered into an agreement with the TIPS to be a member and may purchase
specified goods and services at the prices listed pursuant to the TIPS Vendor Agreements; and
WHEREAS, the City is authorized pursuant to Texas Local Gov't Code Ch. 271, and Texas Gov't
Code Ch. 791, to enter into cooperative purchasing agreements and is deemed thereby to satisfy state laws
requiring competitive bidding; and
WHEREAS, the City desires to purchase, and Vendor desires to sell and provide, certain goods and
services under the TIPS Vendor Agreements; and
WHEREAS, the City and Vendor intend to comply with all applicable laws relative to performance
and payment bonds, as well as laws relative to workers compensation and liability insurance for services
rendered pursuant to this Agreement; and
WHEREAS, the City and Vendor desire to enter into this legally enforceable Agreement to clarify
and make explicit the rights, duties, and responsibilities between the parties, and in case of any conflicts
between this Agreement and the provisions of the TIPS Vendor Agreements, the terms of this Agreement shall
prevail; and
WHEREAS, the City and Vendor recognize and agree that this Agreement does not amend or alter the
rights, duties, and obligations between Vendor and TIPS, or between the City and TIPS under their respective
contracts with TIPS; and
WHEREAS, the Board of Directors of the SPDC has authorized funding the costs associated with the
construction of the Project, and further finds and determines that such expenditures constitute an eligible "project",
as that term is defined in Texas Local Gov't Code Ch. 501 and 505,
NOW, THEREFORE, the City and Vendor agree that the recitals above are true and correct, and
further agree mutually agree as follows:
1. Vendor agrees to furnish and deliver to the City, the goods and services requested by the City for the
Project. The City agrees to pay Vendor for the goods and services at the prices shown on the proposals provided
by the Vendor and dated September 8t1i, 2023, which are incorporated into this Agreement by reference as if
fully set forth herein. The total amount of costs for the Project shall not exceed $ 11,207,231.00
without further written approval by the City. The cost's allocated to each portion of the Work are
shown as follows:
a. The Bicentennial Park Baseball Field: $ 3,624,900.00
b. Bicentennial Park Site Amenities: $ 573,500.00
c. Bob Jones Park Soccer Fields: $ 3,397,200.00
d. Bob Jones Park Site Amenities: $ 618,600.00
e. Bob Jones Park Softball Field: $ 2,855,200.00
f. Bob Jones Park & Bicentennial Park — Add Alternates: $137,831.00
Add alternates selected for the Project must be approved writing by the Vendor, City, and SPDC through a
valid written Change Order.
2. The City shall make payment for goods and services in accordance with the Texas Prompt Payment
Act, Chapter 2251,Texas Government Code. The date of any payment, whether net or gross, shall be
determined by calculating the number of days after receipt of invoices from Vendor.
3. This Agreement is made and shall be construed according to the laws of the State of Texas, without
regard for conflicts of law principles. Venue of any court action brought directly or indirectly by reason of this
Agreement shall be in Tarrant County, Texas. This Agreement is made and is to be performed in Tarrant
County, Texas.
4. All written notices shall be deemed to have been duly served if delivered in person to an individual,
officer, legal representative, or member of the party for whom it is intended, or if delivered at or sent by
registered mail to the last business address known to the person giving the notice.
5. The waiver or failure of either party to exercise in any respect any right provided for in this agreement
shall not be deemed a waiver of any further right under this agreement.
6. If any provision of this agreement is invalid, illegal, or unenforceable under any applicable statute,
court decision, or rule of law, it is to that extent to be deemed omitted. The remainder of the agreement shall
be valid and enforceable to the maximum extent possible.
7. Definition of Terms: Wherever the words, forms or phrases defined herein or pronouns used in their
place occur in these Specifications, in the Agreement, in the bonds, in the Advertisement, or any otherdocument
or instrument herein contemplated, or to which these Specifications apply or may apply, the intent and meaning
shall be interpreted as follows:
7.1 Calendar Days: A calendar day is defined as any solar day of 24 hours; including all holidays,
regardless of weather conditions, material availability, or other conditions not under the control of
the Contractor.
7.2 Change Order: Shall mean a written order to the Contractor executed by the City and the
Engineer, issued after execution of this Agreement, authorizing and directing a change in the Work
or an adjustment in the Agreement Price or the Agreement Time, or any combination thereof, and as
more specifically defined in Texas Local Gov't Code Ch. 252. The Agreement Price and the
Agreement Time may be changed only by written Change Order, which may require approval by the
SPDC and the City Council.
7.3 City: The City of Southlake, is a Texas home -rule municipal corporation, acting by and
through (a) its governing body, (b) its Mayor, or (c) its City Manager, each of whom is required by
charter to perform specific duties.
7.4 City Council: The City Council of the City of Southlake, Texas.
7.5 "Vendor/Member Agreement" or "Agreement": The Agreement shall consist of the
Proposals, Bonds, Plans, Specifications, GEOFLO+ 10 Year Product Warranty Terms and
Conditions, GEOGREEN & GEOBASE 10-year Product Warranty Terms and Conditions, TIPS
Vendor Agreements, and all modifications and amendments incorporated therein, and any other
documents made a part of the Agreement by the mutual written agreement of the City and Contractor.
In the event of any conflicts the Vendor/Member Agreement shall prevail and the order of precedence
shall be as follows: (1) The Vendor/Member Agreement; (2) Proposals; (3) Bonds; (4) Plans; (5)
Specifications; (6) GEOFLO+ 10 Year Product Warranty Terms and Conditions, and the
GEOGREEN & GEOBASE 10-year Product Warranty Terms and Conditions; and (7) the TIPS
Vendor Agreements.
7.6 Contractor or Vendor: GeoSurfaces, Inc.
7.7 Agreement Time: The number of calendar days from the date on which the Work is permitted
to proceed, by written "notice to proceed", through the date set forth for Final Completion,
which is 180 days from the date of the "notice to proceed", as may be mutually amended by
written Change Order, shall constitute the "Agreement Time".
7.8 En ig neer: The City Engineer, or his designee.
7.9 Extra Work: All work that may be required by the Engineer or City to be done by the
Contractor to accomplish any changes, alterations, addition of the work shown on the Plans,
or reasonably implied by theSpecifications and not covered by the Contractor's Proposal(s).
7.10 Final Completion: Shall mean total (100%) completion of the Work in accordance with the
Plans and Specifications, and as finally determined in writing by the City in the City's sole
discretion.
7.11 Maintenance Bond: The approved form of security furnished by the Contractor and its surety
as a guaranteeon the part of the Contractor to correct any discrepancy or deficiency which
may arise as a result of faultymaintenance or workmanship for a period of two (2) years from
final acceptance of the Work.
7.12 Overtime: Normal working hours for City construction inspections is between 8 a.m. and 5
p.m. Monday through Friday except for City recognized holidays. The Contractor will be
required to pay for overtime for any activities that the City determines needs to be performed
with the presence of a City construction inspector beyond these time allowances unless
approved in writing otherwise.
7.13 Payment Bond: The approved form of security furnished by the Contractor and his surety as
a guarantee for the protection of all claimants supplying labor and material in the prosecution
of the Work.
7.14 Performance Bond: The approved form of security furnished by the Contractor and his surety
as a guaranteeon the part of the Contractor to execute the Work in accordance with the Plans,
Specifications, and terms of the Agreement.
7.15 Plan or Plans: All the drawings pertaining to the Project and made a part thereof, including
such supplementary drawings or addenda as the Engineer may issue in order to clarify other
drawings, or for thepurpose of showing changes in the Work hereinafter authorized, or for
showing details not shown thereon.
7.16 Proposal: The written statement or statements of the Contractor proposing to do the Work
contemplated, including all approved forms on which the formal bids or proposals for the
Work are to be prepared.
7.17 Retainaae: Means the percentage of the payment withheld in this Agreement to secure
performance of the Agreement.
7.18 Specifications: The specifications as set forth in the Proposal(s) for the Project.
7.19 Subcontractor: Any person, persons, partnership, company, firm, associations, or corporation
having a direct contract with the Contractor, but having no privity of contract with the City. A
subcontractor includesone who furnished material worked to a special design according to the
Plans or Specifications of this Workbut does not include one who merely furnished material
not so worked.
7.20 Substantial Completion: Shall mean that stage in the progression of the Work when the Work
is sufficiently complete in accordance with the Agreement, and as determined by the City in
the City's sole discretion, such that only final punch -list items or minor work remains and
the Contractor can achieve Final Completion within the time period approved in the
Certificate of Substantial Completion.
7.21 Sureties or Surety: The corporate bodies which are bound by such bonds as are required with
and for the Contractor. Sureties are responsible for the entire and satisfactory fulfillment of
the Agreement, and for any and all requirements as set out in the Project Plans and
Specifications.
7.22 Warranty Period: Shall mean the period of time specified in the Agreement during which
certain terms applicable to the warranting of work performed under the Agreement are in
effect.
7.23 Working Hours: Work shall be done only during the regular and commonly accepted and
described working hours between 7:00 a.m. and 6:00 p.m. Work may be done nights,
Saturdays, Sundays, or during any City holidays with approval by the Engineer and upon
payment of the City Inspector's overtime costs.
7.24 Work or the work: Unless otherwise stipulated, the Contractor shall provide and pay for all
materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and all
water, lights, power, fuel, transportation, and other facilities necessary for the execution and
completion of the work covered by the Agreement. All materials shall be of good quality and
acceptable to the City. The Contractor shall, if required, furnish satisfactory evidence as to
the quality of materials. Materials or work described in words which so applied have a
commonly known technical or trace meaning shall refer to such commonlyknown meaning.
8. Surety Bonds: With the execution and delivery of the Agreement, the Contractor shall furnish and
file with the City in the amount herein required, the following Surety Bonds:
8.1 Performance Bond: A good and sufficient Performance Bond in the amount equal to one
hundred percent of the total amount of the Agreement, as evidenced by the proposal
tabulation or otherwise,guaranteeing the full and faithful execution of the work in accordance
with the Plans and Specifications and Texas Gov't Code Ch. 2253, as amended.
8.2 Payment Bond: A good and sufficient bond in an amount equal to one hundred percent of
thetotal amount of the Agreement, as evidenced by the proposal tabulation, or otherwise
guaranteeing the full and proper protection of all claimants supplying labor and materials in
the prosecution of the work providedfor in the Agreement and for the use of each claimant,
and in accordance with Texas Gov't Code Ch. 2253, as amended.
8.3 Maintenance Bond: A Maintenance Bond in the amount equal to one hundred percent of the
totalAgreement price for the construction and maintenance of work shall be furnished by the
Contractor. The Maintenance Bond shall be for a period of two (2) years from and after the
date of completion and final acceptance of the Project. The Contractor shall maintain and
keep in good repair the work contemplated under these Plans, Specifications, drawings, etc.,
and perform for a period as set forth in the Maintenance Bond, from the date of acceptance,
all necessary repairs, reconstruction, and renewal of any part of said construction, and to
finish the labor and materials to make good and to repair any defective condition growing
out of or on account of the breakage or failure of any material or substance of improper
function of same. Said Maintenance Bond includes the complete restoration to a functional
use acceptable to the City of any work required by faulty material during the period set forth
in the Maintenance Bond.
9. Sureties: No sureties will be accepted by the City who are now in default or delinquent on any bonds
orwho are interested in any litigation against the City. All bonds shall be made on one corporate surety
authorized to do business in the State of Texas and acceptable to the City. An acceptable surety to the City
shall be determined as any surety listed on the latest United States Treasury Department list of companies
holding certificates of authority as acceptable sureties on Federal Bonds. Each bond shall be executed by the
Contractor and the surety. Should any surety on the Agreement be determined unsatisfactory at any time by
the City, notice will be givento the Contractor to that effect, and the Contractor shall immediately provide a
new surety satisfactory to the City. No payment will be made under the Agreement until the new surety or
sureties, as required, have qualified and been accepted by the City. The Agreement shall not be operative,
nor will any payments be dueor paid until approval of the bonds have been made by the City.
10. Intent of Plans and Specifications: The intent of the Plans and Specifications is to prescribe acomplete
work or improvement which the Contractor undertakes to do in full compliance with the Plans, Specifications,
Proposals, and Agreement. The Contractor shall do all work as provided inthe Plans, Specifications,
Proposals, and Agreement, and shall do such additional extra work as may be considered necessary to
complete the Work in satisfactory and acceptable manner. The Contractor shall furnish all labor, tools,
materials, machinery, equipment, and incidentals necessary to the prosecution of the Work.
11. Increased and Decreased Quantities: The City reserves the right to alter the quantities of the work to
be performed or to extend or shorten the improvements at any time when and as found necessary, the
Contractor shall perform the Work as altered. No allowance will be made for any change in anticipated profits
nor shall such changes be considered as waiving or invalidating any conditions or provisions of the Agreement
and bonds.
12. Alteration of Plans and Specifications: The City reserves the right to make such changes in the Plans
and Specifications and in the character of the work as may be necessary or desirable to ensure completion in
the most satisfactory manner, provided such changes do not materially alter the Plans and Specification or
change the general nature of the work as a whole. Such changes shall not be considered as waiving or
invalidating any condition or provision of the Agreement or bonds.
13. Extra Work: When any work is necessary to the proper completion of the project for which no prices
are provided in the Proposal and Agreement, the Contractor shall not do such work, but only when andas
ordered in writing by the Engineer, subject, however, to the right of the Contractor to require a written
confirmation of such extra work order by the City. It is also agreed that the compensation to be paid the
Contractor for performing said extra work shall be determined prior to commencing any extra work. No claim
for extra work of any kind will be allowed unless ordered in writing by the Engineer. In case ofany orders or
instructions, for which Contractor should receive compensation or an adjustment in the Agreement Time,
Contractor shall make written requests to the Engineer, for written order authorizing suchextra work.
14. Final Clean -Up: Upon completion of the Work and before acceptance and final payment willbe made,
the Contractor shall clean and remove from the site of the work surplus and discarded materials, temporary
structures, discarded materials, and debris of every kind, he shall leave the site of the Work in aneat and
orderly condition equal to that which originally existed. Surplus and waste materials removed from the site
of the Work shall be disposed of at locations satisfactory to the Engineer.
15. Engineer's Authority and Duty: Unless otherwise specified, it is mutually agreed between theparties
to this Agreement that the Engineer may inspect all work included herein. The Engineer may stop the Work
whenever such stoppage may be necessary to ensure the proper execution of the Agreement. In order to
prevent delays and disputes and to discourage litigation, it is further agreed that the Engineer shall in all cases
determine the amounts and quantities of the several kinds of work which are to be paid for under this
Agreement, and shall in all cases decide every question which may arise relative to the execution of this
Agreement on the part of the said Contractor.
16. Contractor's Du , and Superintendence: The Contractor shall give personal attention to the faithful
prosecution and completion of this Agreement and shall keep on the Work, during its progress, a competent
superintendent who shall represent the Contractor and all directions given to the superintendent shall be as
binding as if given to the Contractor. Important directions shall be confirmed in writing to the Contractor,
and other directions shall be so confirmed on written request in each case.
17. The Contractor will be supplied with three copies of the Plans and Specifications and shall have
available one copy of said Plans and Specifications on the work site at all times. The Contractor shall give to
the Work the consistent attention necessary to facilitate the progress thereof, and he shall cooperate with the
Engineer, his inspectors, and with other Contractors, in every way possible. The Contractor shall provide all
facilities to enable the Engineer and his inspectors to inspect all workmanship and materials relating tothe
Work.
18. Contractor's Understanding: It is understood and agreed that the Contractor has, by careful
examination satisfied itself as to the nature and location of the Work, the conformation of the ground, the
character quality and quantity of the materials to be encountered, the character of equipment and facilities
needed in preparation for and during the prosecution of the Work, the general and local conditions,and all other
matters which can in any way affect the work under this Agreement. No verbal agreement or conversation
with any officer, agent or employee of the City either before or after the execution of this Agreement, shall
affect or modify any of the terms of obligations herein contained and Contractor shall have no claim for
differing site conditions under any circumstance.
19. Character of Workers: The Contractor agrees to employ only orderly and competent workers, skillful
in the performance of the type of Work required under this Agreement, to do the Work; and agrees that
whenever the Engineer shall inform the Contractor in writing that any worker on the Work, is in his opinion
incompetent, unfaithful or disorderly, such worker shall be discharged from the Work and shall not again be
employed on the Work without the Engineer's written consent.
20. Sanitation: Necessary sanitary conveniences for the use of the laborers on the Work, properly
secluded from public observation, shall be constructed and maintained by the Contractor in such a manner
and at such points as shall be approved by the Engineer, and their use and cleanliness shall be strictly enforced.
21. Preliminary Approval: The Engineer shall not have the power to waive the obligation of this Agreement
for the furnishing by the Contractor of good materials, and of the Contractor performing good and acceptable
work as herein described, and in full accordance with the Plans and Specifications. No failure or omission of
the Engineer to reject defective work or materials shall release the Contractor from the obligations to at once
tear out, remove and properly replace the same at any time prior to final acceptance upon the discovery of said
defective work or materials; provided, however, that the Engineer shall, upon request of the Contractor inspect
and accept or reject any material furnished, and in event the material has been once accepted by the Engineer,
such acceptance shall be binding on the City, unless it can be clearly shown that such materials furnished do
not meet the Specifications for this Work.
22. Any questioned Work may be ordered taken up or removed for reexamination by the Engineer, prior to
finalacceptance, and if found not in accordance with the Specifications for said Work, all expense of removing,
reexamination and replacement shall be borne by the Contractor; otherwise the expense thus incurred shall be
allowed as extra work, and shall be paid for by the City, provided that, where inspection or approval is
specifically required by the Specifications prior to performance of certain work, should the Contractor proceed
with such work without requesting prior inspection and approval the Contractor shall bear all expense of taking
up, removing and replacing his work if so directed by the Engineer.
23. Defects and Remedies: It is further agreed that if the Work or any part thereof, or any materials brought
on the site of the Work for use in the work or selected for the same, shall be deemed by the Engineer, as
unsuitable or not in conformity with the Plans and Specifications, the Contractor shall, after receipt of written
notice from the Engineer, forthwith remove such materials and rebuild or otherwise remedy such work so that it
shall be in full accordance with this Agreement.
24. Changes and Alterations: The Contractor further agrees that the City may make such changesand
alterations as the City may see fit, in the line, grade, form, dimensions, Plans or materials for the Work herein
contemplated, or any part thereof, either before or after the beginning of the construction, without affecting the
validity of the Agreement and the accompanying Bonds.
25. Conformity with Plans: All work shall conform to the lines, grades, cross -sections, and dimensions
shown on the Plans. Any deviation from the Plans which may be required by the exigencies of construction
will be determined by the Engineer and authorized by the Engineer in writing.
26. Existing Structures and Utilities: The location of gas mains, water mains, conduits, sewer, and other
utilities or improvements is unknown, and the City assumes no responsibility for failure to show them in their
exact locations. It is mutually agreed that such failure may be considered eligible for claims for additional
compensation for extra work or for increasing the pay quantities through a Change Order.
27. Source of Supply of Materials: The materials shall be the best procurable, as required by the Plans,
Specifications and this Agreement. The Contractor shall not start delivery of materials until the Engineer has
approved the source of supply. Only materials conforming to these Specifications shall be used in the Work,
and such materials shall be used only after written approval has been given by the Engineer, and only so long
as the quality of said materials remains equal to the requirements of the Specifications. After approval by the
Engineer, any material that becomes damaged or contaminated duringdelivery, handling, or storage will not be
permitted to be used in the Work and must be replaced by Contractor at no cost to the City.
28. Samples and Tests of Materials: Where, in the opinion of the Engineer, or as called for in the
Specifications, tests of materials are necessary, such tests will be made at the expense of the Contractor unless
otherwise provided. Tests, unless otherwise specified, will be made in accordance with the latest methods of
the American Society for Testing Materials. The Contractor shall provide such facilities as theEngineer may
require for collecting and forwarding samples and shall not use the materials represented bythe samples until
tests have been made. The Contractor shall furnish adequate samples without charge to the City.
29. Storage of Materials: Materials shall be stored so as to ensure the preservation of their qualityand
fitness for the Work. When directed by the Engineer, they shall be placed on wooded platforms or other hard,
clean surfaces, and not on the ground, and shall be placed under cover when necessary for protection. Stored
materials shall be placed and located so as to facilitate prompt inspection by the City.
30. Inspection: The Contractor shall furnish the Engineer with every reasonable facility for ascertaining
whether or not the work performed was in accordance with the requirements and intent of thePlans and
Specifications. Any work done or materials used without suitable supervision or inspection by the Engineer
may be ordered removed and replaced at the Contractor's expense.
31. Removal of Defective, Rejected, or Unauthorized Work: All work which has been rejected shall be
repaired at Contractor's expense, or if it cannot be repaired satisfactorily, it shall be removed and replaced at
the Contractor's expense. Defective materials shall be immediately removed from the site of the work by the
Contractor. Defective work, work done without line and grade having been given, work done out of the lines
or not in conformity with the grades shown on the Plans or as given, save as herein provided, work done without
proper inspection, or any extra or unclassified work done without written authority and prior agreement in
writing as to prices shall be done at the Contractor's expense.
Upon failure of the Contractor to repair satisfactorily or to remove and replace, if so directed, defective,
rejected, or unauthorized work or materials immediately after receiving notice from the Engineer or the City,
the Engineer or the City will, after giving notice to the Contractor, have the authority to cause the defective,
rejected, or unauthorized work or materials to be remedied or removed and replaced by the Surety, the City, or
by any third -party contractor, all at the City's sole discretion without any duty to mitigatecosts, and to charge the
costs thereof against the Contractor, or deduct the cost thereof from any moneys due or to become due the
Contractor, without the need for a written Change Order deducting the same.
32. Final Inspection: The Engineer will make final inspection of all work included in the Agreement as
practicable after the work is completed and ready for acceptance. If the work performed by the Contractor is
not acceptable to the Engineer at the time of such inspection the Engineer will inform the Contractor as to the
particular defect(s) before final acceptance will be made.
This Agreement shall be read and construed in compliance with Texas Business & Commerce Code
Ch. 59, as amended, and the Contractor must, within a reasonable time of learning of a defect, inaccuracy,
inadequacy, or insufficiency in the plans, specifications, or other design documents, disclose in writing to the
City the existence of any known defect in the plans, specifications, or other design documents that is discovered
by the Contractor, or that reasonably should have been discovered by the Contractor using ordinary diligence,
before or during construction. The Contractor shall be liable for the consequences of defects that result from
the Contractor's failure to disclose as authorized by Texas Business & Commerce Code Ch. 59.
33. Prevailing Wage: Among other things, this Article provides that it shall be mandatory upon the
Contractor and upon any subcontractor under him to pay not less than the prevailing rates of per diem wages
in the locality at the time of construction to all laborers, workmen, and mechanics employed by them in the
execution of the Agreement. No claims for additional compensation shall be considered by the City because
of payments of wage rates in excess of the applicable rate provided herein. Pursuant to Texas Gov't Code Ch.
2258, the Contractor shall forfeit, as a penalty to City, sixty dollars ($60.00) for each laborer, workman, or
mechanic employed for each calendar day, or portion thereof, in which such laborer, workman, or mechanic is
paid less than the stipulated prevailing wage rates for any work done under this Contract by the Contractor or
any subcontractor employed on the project.
34. Dispute Resolution: All questions of dispute under this Agreement that cannot be resolved between
the Engineer and Contractor shall be submitted to the City Council at the request of either party and the decision
of the City Council shall be final and unappealable.
35. Law and Ordinance: The Contractor shall at all times observe and comply with all Federal, State and
local laws, ordinances, and regulations, which in any manner effect the Agreement or the Work, and must
maintain any and all required licenses and certificates required under the same laws, statutes, ordinances,
regulations and standards for services and/or goods during the term of the Agreement. If the Contractor
observes that the Plans and Specifications are a variance therewith, the Contractor shall promptly notify the
Engineer in writing, and any necessary changes shall be adjusted as provided in the Agreement for changes in
the Work. The City may automatically terminate this Agreement without liability to the City if the Contractor
performs any Work knowing it to be contrary to such laws, ordinances, rules, and regulations.
36. Permits and Licenses: The Contractor shall procure all permits and licenses, pay all charges and fees,
and give all notices necessary and incident to the due and lawful prosecution of the Work.
37. Protection against Royalties or Patented Invention: The Contractor shall pay and be liable for any and
all royalties and license fees related to Contractor's use, manner, and method of construction, and shall provide
for the use of any design, device, materials or process covered by letter patentor copyright by suitable legal
agreement with the patentee or owner. The Contractor warrants the accuracy, adequacy, sufficiency, or
suitability of plans, specifications, or other design documents provided to the Contractor by the Contractor's
agents, contractors, fabricators, or suppliers, or its consultants, of any tier.
38. Public Convenience and Safety: Materials stored at a worksite shall be placed and the work shall at all
times be conducted, so as to cause no greater obstruction to the traveling public than is considerednecessary by
the Engineer. The Contractor shall make provisions by bridges or otherwise at all cross streets, highways,
sidewalks, and private driveways for the free passage of pedestrians and vehicles; provided, where bridging is
impracticable or unnecessary in the opinion of the Engineer, the Contractor may make arrangements
satisfactory to the Engineer for the diversion of traffic, and shall, at Contractor's own expense, provide all
material and perform all work necessary for the construction and maintenance of roadways and bridges for the
diversion of traffic. Sidewalks are not to be obstructed except by special permission of the Engineer.
The materials excavated, all the construction materials or Plans used in the construction of the Work,
shall be placed so as not to endanger the Work or prevent free access to all fire hydrants, water valves, gas
valves, manholes for telephone, telegraph, signal, or electric conduits, sanitary, storm, or any other public
utilities.
The City reserves the right to remedy any neglect on the part of the Contractor in the interest of public
convenience and safety which may come to its attention, after twenty-four (24) hours' notice in writing to the
Contractor, save in cases of emergency, when it shall have the right to remedy any neglect without notice; in
either case, the cost of such work done by the City shall be deducted from moneys due the Contractor. Any
action by City under this provision shall not abrogate Contractor's duties. City undertakes no obligation to
inspect the work site for neglect of the public convenience.
39. Privileges of Contractor in Streets, Alleys and Right -of Way: For the performance of the Agreement,
the Contractor will be permitted to occupy such portions of streets or alleys or other public places or other
rights -of -way as provided for in the ordinances of the City, as shown on the Plans, or as permitted by the
Engineer. A reasonable number of tools, materials, and equipment for construction purposes may be stored in
such space, but not more than is necessary to avoid delays in the construction. Excavated and waste materials
shall be piled or stacked in such a way as not to interfere with spaces that may be designated to be left free and
unobstructed not to inconvenience occupants of adjoining property.
40. Barricades, Lights and Watchmen: Where the Work is carried on, in or adjacent to any street, alley or
public place, the Contractor shall at his own expense furnish and erect such barricades, fences, lights and
danger signals, and shall provide such watchmen, and shall take such other precautionary measures for the
protection of persons or property and of the work as are necessary. Barricades shall be erected to deter vehicles
from being driven on or into any work under construction. Barricades, temporary pavement markings and signs
shall be maintained in good condition and be in conformance with all installation, legibility and
retroreflectivity requirements of the current edition of the Texas Manual on Uniform Traffic Control Devices
until completion and acceptance of all work within the public right-of-way or until the Contractor is directed
otherwise by the Engineer.
The Contractor shall be held responsible for all damage to the Work or injury to users of the roadway
due to the failure of barricades, signs, lights, and watchmen to protect it, and whenever evidence is found
of such damage, the Engineer may order the damaged portion immediately removed and replaced by the
Contractor at his cost and expense.
41. Responsibility for Damage Claims: The Contractor shall provide, maintain, and be responsible for
all necessary barricades, warning lights, or signs for the Project; and will be required to pay any judgment,
with costs, including reasonable attorney's fees, which may be obtained against the City growing out of such
injury or damage.
42. Contractor's Claim for Damage: Should the Contractor claim compensation for any alleged damage
by reason of the acts or omissions of the City, he shall, within three days after sustaining such damage, make
a written statement to the Engineer, setting out in detail the nature of the alleged damage, and on or before
the 25th day of the month succeeding that in which any such damage is claimed to have been sustained, the
Contractor shall file with the Engineer an itemized statement of the details and amount of such alleged
damaged, and upon request, shall give the Engineer access to all books of accounts, receipts, vouchers, bills
of lading, and other books or papers containing any evidence as to the amount of such alleged damage, which
shall be subject to the audit provisions of this Agreement. Unless such statement shall be filed as herein above
required, the Contractor's claim for compensation shall be waived and he shall not be entitled to payment on
account of such damage.
43. Public Utilities and other Property to be Changed: In case it is necessary to change or move the
property of any owner or of a public utility, such property shall not be moved or interfered with until ordered
to do so by the Engineer. The right is reserved to the owner of public utilities to enter upon the site of the
Work for the purpose of making such changes or repairs of their property as may be necessary for
performance of the Work. The City reserves the right of entering upon the site of the Work for the purpose
of repairing or re-laying sewer and water lines and appurtenance, repairing structures, and other
improvements or public utilities, and for making other repairs, changes, or extension to any City property.
44. Temporary Sewer and Drain Connections: When existing sewers must be taken up or removed, the
Contractor shall, at his own cost and expense, provide and maintain temporary outlets and connections for
private and public drains and sewer. The Contractor shall also take care of all sewage and drainage which will
be received from these drains and sewers; and for this purpose, the Contractor shall provide and maintain, at
his own expense, adequate pumping facilities and temporary outlets or diversions. The Contractor, at his own
expense, shall construct such troughs, pipes or other structures necessary, and be prepared at all times to dispose
of drainage and sewage received from these temporary connections until such time as the permanent
connections are built and in service. The existing sewers and connection shall be kept in service and maintained
under the Agreement, except where specified or ordered to be abandoned by the Engineer. All water or sewage
shall be disposed of in a satisfactory manner so that no nuisance is created, and so that the Work under
construction will be adequately protected.
45. Arrangement and Charge for Water Furnished by the City: Where the Contractor desires to use City
water in connection with any construction work, the Contractor shall make complete and satisfactory
arrangements with the City's Water Department for so doing.
46. Use of Fire Hydrants: No person shall open, turn off, interfere with, attach any pipe or hose to, or
connect anything with any fire hydrant, stop valve, or stop cock, or tap any water main belonging to the City,
unless authorized to do so by the City's Water Department.
47. Use of a Section or Portion of the Work: Wherever in the opinion of the Engineer any section or
portion of the work or any structure is in suitable condition, it may be put into use upon the written order of
the Engineer, and such usage shall not be held to be in any way an acceptance of said Work or structure or
any part thereof, or as evidence of Substantial Completion of the Work, or as a waiver of any of the provisions
of these Plans, Specifications, or the Agreement pending Final Completion and acceptance of the Work. All
necessary repairs and removals of any section of the Work so put into use, due to defective materials or
workmanship or to operations of the Contractor shall be performed by the Contractor at Contractor's own
cost and expense.
48. Contractor's Responsibility for the Work: Until written final acceptance by the Engineer, as provided
for in this Agreement and the Plans and Specifications, the Work shall be under the charge and care of the
Contractor and the Contractor shall take every precaution to prevent injury or damage to the Work or any
part thereof by action of the elements, weather, or from any other cause whatsoever, whether arising from the
execution or non -execution of the Work. The Contractor shall rebuild, restore, and make good at Contractor's
own cost and expense, all injuries or damages to any part of the Work occasioned by any of the herein above
causes.
49. Assignment and Subletting: The Contractor further agrees that it will retain personal control and will
give the Contractor's personal attention to the fulfillment of this Agreement and that the Contractor will not
assign by Power of Attorney, pass through agreement, or otherwise, or sublet this Agreement, without the
written consent of the City, and that no part of the work will be sublet to anyone objectionable to the Engineer
of the City. This section expressly prohibits the assignment or pass through of claims, rights, or causes of
action between Contractor and any subcontractors, materialmen, or suppliers, or any other third -party
performing Work under the Agreement.
50. Prosecution of the Work: The Contractor shall complete the Work to be performed under this
Agreement within the Agreement Time and in accordance with the Plans and Specifications, and shall
conduct the work in such a manner and with sufficient equipment, materials, and labor as is necessary to
insure its completion within the time limit. The sequence of all construction operations may otherwise be
directed by or approved by the Engineer in writing. Such written direction or approval by the Engineer shall
not relieve the Contractor from the full responsibility of the complete performance of the Agreement. Should
the prosecution of the work be discontinued by the Contractor, the Contractor shall notify the Engineer at
least twenty-four (24) hours in advance of resuming operation.
51. Time and Order of Completion: It is the meaning and intent of this Agreement, unless otherwise
herein specifically provided, that the Contractor shall be allowed to prosecute the Work at such time and
seasons, in such order of precedence, and in such a manner as shall be most conducive to economy of
construction; provided, however, that the order and the time of prosecution shall be such that the Work shall
be completed as a whole and in part, in accordance with this Agreement, the Plans, and Specifications, and
within the time of completion designated in the Proposal; provided, also, that when the City is having other
work done, either by Contractor or by the City's own force, the Engineer may direct the timing of the
Agreement, so that conflict will be avoided and the construction of the various works being done for the City
shall be harmonized.
The Contractor shall submit a weekly schedule, which shall show the order in which the Contractor
will start the several parts of the Work, and estimated dates of completion of the several parts. The Engineer
may also request the Contractor to submit additional schedules at such times as the Engineer may determine
to be necessary to ensure timely completion of the Work.
52. Extension of Time: Should the Contractor be delayed in the completion of the Work by any act or
neglect of the City or Engineer, or any employee of either, or by other Contractor's employed by the City, or
by changes ordered in the Work, or by strikes, lockouts, fires, and unusual delays by common carriers, or
unavoidable cause or causes beyond the Contractor's control, as determined in the City's sole discretion, or
by any cause which the Engineer may decide justifies delay, then an extension of the time may be allowed
for completing the Work, sufficient to compensate for the delay, the amount of the extension to be determined
by the Engineer; provided, however that the Contractor shall give the Engineer notice in writing of the cause
of such delay within 30 days of the beginning of the delay.
53. Hindrances and Delays: Except as provided in Section 52, no claims shall be made by the Contractor
for damages resulting from hindrances or delays from any cause (except where the Work is stopped by order
of the City) during the progress of any portion of the Work. In case said Work shall be stopped by an act of
the City, then such expense as in the judgment of the Engineer, caused by such stoppage of said Work shall be
paid for by the City to the Contractor, pursuant to a valid written Change Order.
Once the work order is transmitted to the Contractor, the Contractor shall devote both manpower and
equipment to the project on a continuous basis each and every workday in sufficient quantity to bring the project
to Final Completion without delay. The Engineer shall be the sole judge, with appeal only to the City Council,
of whether the Contractor has devoted both manpower and equipment to the project on a continuous basis to
bring the project to completion. If the Engineer or his designee should determine the Contractor has failed to
diligently prosecute the project and the City Council does not reverse the decision of the Engineer or his
designee, the Engineer may have the remaining work performed by another contractor, or the Surety under the
Performance Bond, and deduct whatever cost is paid to the substitute contractor from the Contractor's Contract,
without the need for a written Change Order deducting the same.
54. Time and Liquidated Damages: The Agreement Time is of the essence and will be strictly enforced.
Liquidated damages will be assessed against the Contractor for failure to complete the project to total (100%)
Final Completion within the Agreement Time. The Contractor and surety agree that the liquidated damages
provisions in this Agreement are reasonable, facially valid, are not a penalty, and do not otherwise operate as
a penalty.
For each and every calendar day that any Work shall remain incomplete after the expiration of the
Agreement Time as specified in the Agreement, including any time extension authorized in writing by the
City, the sum of $1,000.00 per calendar day may be deducted from the moneys due to the Contractor, or may
be charged against the Contractor, not as a penalty, but as liquidated damages. The Contractor agrees that for
purposes of Texas Gov't Code Ch. 2252, a bona fide dispute exists if liquidated damages are assessed under
this Agreement and the City may withhold Retainage to satisfy liquidated damages owed to the City hereunder.
The sum of money thus deducted or charged as liquidated damages is not to be considered as a penalty,
but shall be deemed, taken, and treated as reasonable liquidated damages, representing a reasonable estimate
of damages, or a reasonable forecast of just compensation, because the harm caused by the breach is incapable
or extremely difficult of estimation due to the public nature of the work and the likely loss to be sustained by
the City and the general public, estimated at or before the time of executing this Agreement.
Further, the parties acknowledge the City's paramount purposes and duty to protect the "public fisc"
and the general health, safety, and welfare of the public, and the parties agree that any alleged disparity between
actual and liquidated damages shall be construed as bridgeable and acceptable as a matter of law and public
policy and shall be calculated and construed in favor of the City.
55. Insurance. Prior to the commencement of work under this Agreement, Contractor shall obtain and
shall continue to maintain, in full force and effect during the term of this Agreement, insurance policies with
companies licensed to do business in the State of Texas and rated not less than "A" in the current Best Key
Rating Guide, which shall include commercial general liability, automobile liability and worker's
compensation coverage, in accordance with any City ordinance or directive. The minimum limits for this
coverage shall be $1,000,000.00 per occurrence / $2,000,000 aggregate for general liability, $1,000,000
combined single limit for automobile liability and Texas statutory limits for workers' compensation, unless
modified in accordance with any ordinance or directive. Contractor shall also maintain cyber liability (or
equivalent) insurance providing limits of no less than $1,000,000 per occurrence (inclusive of any amounts
provided by an umbrella or excess policy). Insurance obtained by Contractor shall be primary and
noncontributory, and City shall be named as an additional insured under the general liability and automobile
policies. The City shall be given at least thirty (30) days prior notice of any material change in coverage or
of cancellation of such policies, and Contractor shall provide the City with a copy of any such notice of
material change in coverage or cancellation of any such policies, within three (3) business days of its receipt
of such a notice. For purposes of this section, a material change in coverage includes, but is not limited to, a
reduction in coverage below the amounts required under this agreement. Contractor shall provide a waiver
of subrogation in favor of the City on all coverages where available and represents that it has taken all actions
necessary under the policy or policies for the City to have the status of additional insured and to effectuate
any required waiver of subrogation. Contractor shall furnish the City with original copies of the policies or
certificates evidencing such coverage prior to commencement of any work under this Agreement.
Contractor shall provide City with the certifications relating to workers' compensation coverage in
accordance with Section 406.096 of the Texas Labor Code, for itself and for each of its subcontractors on the
Project. Specifically, Contractor shall certify to City in writing that the Contractor provides workers'
compensation insurance coverage for each employee of the Contractor on the Project, and shall provide the
same certification from each of its subcontractors relating to coverage of subcontractor's employees on the
Project.
56. INDEMNIFICATION. THE VENDOR (THE "INDEMNIFYING PARTY"), SHALL
INDEMNIFY, DEFEND, AND HOLD HARMLESS THE CITY, TOGETHER WITH THE CITY'S
OFFICERS, AGENTS, COUNCIL MEMBERS, EMPLOYEES, ATTORNEYS AND
REPRESENTATIVES (COLLECTIVELY, INCLUDING THE CITY, THE "CITY INDEMNIFIED
PARTIES"), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, DEMANDS,
CAUSES OF ACTION, CLAIMS, JUDGMENTS, SUITS, COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) MADE BY ANY THIRD -PARTY, TO THE EXTENT
ARISING FROM OR RELATED TO THE SERVICES PROVIDED BY THE VENDOR PURSUANT
TO THIS AGREEMENT (COLLECTIVELY, "INDEMNIFIED CLAIMS"), REGARDLESS OF
THE LEGAL THEORY ASSERTED BY ANY THIRD PARTIES AND REGARDLESS OF
WHETHER THE DAMAGES OR CLAIMS OF THIRD -PARTIES ARE KNOWN OR FULLY
APPRECIATED AT THIS TIME BY VENDOR OR THE CITY. THE INDEMNITIES IN THIS
AGREEMENT ARE SPECIFICALLY INTENDED TO OPERATE AND BE APPLICABLE EVEN
IF IT IS ALLEGED OR PROVED THAT ALL OR SOME OF THE DAMAGES BEING SOUGHT
WERE CAUSED IN WHOLE OR IN PART BY ANY ACT, ERROR, OMISSION, NEGLIGENCE,
GROSS NEGLIGENCE, INTENTIONAL CONDUCT, BREACH OF CONTRACT, BREACH OF
WARRANTY, VIOLATION OF STATUTE OR COMMON LAW, VIOLATIONS OF THE STATE
OR FEDERAL CONSTITUTIONS, OR ANY OTHER CONDUCT WHATSOEVER OF THE CITY
INDEMNIFIED PARTIES. VENDOR SHALL GIVE TO THE CITY REASONABLE NOTICE OF
ANY SUCH CLAIMS OR ACTIONS. VENDOR SHALL USE LEGAL COUNSEL REASONABLY
ACCEPTABLE TO THE CITY IN CARRYING OUT ITS OBLIGATIONS HEREUNDER. THE
PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLY
TERMINATION OF THIS AGREEMENT. THIS INDEMNIFICATION IS NOT INTENDED TO
APPLY TO CLAIMS MADE AGAINST THE CITY INDEMNIFIED PARTIES RESULTING FROM
NEGLIGENT ACTS OF CITY EMPLOYEES COVERED UNDER SECTION 101.021 OF THE
TEXAS CIVIL PRACTICE AND REMEDIES CODE.
57. Governmental Functions/Immunities. The parties hereby acknowledge and agree that City is entering
this Agreement pursuant to its governmental functions and that nothing contained in this Agreement shall be
construed as constituting a waiver of the City's governmental immunity from suit or liability, which is
expressly reserved to the extent allowed by law. Notwithstanding anything to the contrary herein, the parties
hereby acknowledge and agree that to the extent this is subject to the provisions of Subchapter I of Chapter
271, TEXAS LOCAL GOVERNMENT CODE, as amended, the City's immunity from suit is waived only
as set forth in Subchapter I of Chapter 271, TEXAS LOCAL GOVERNMENT CODE. Further, the parties
agree that this Agreement is made subject to all applicable provisions of the Texas Civil Practices and
Remedies Code, including, but not limited to all defenses, limitations, and exceptions to the limited waiver
of immunity from liability provided in Chapter 101 and Chapter 75.
58. Substantial Completion: When the Contractor believes that the Work is substantially complete, the
Contractor shall submit to the Engineer a final punch -list of items to be completed or corrected. When the
Engineer, on the basis of an inspection, determines that the Work is in fact substantially complete, the
Engineer will prepare a Certificate of Substantial Completion, which shall (1) establish the date of Substantial
Completion; (2) shall state the responsibilities of the City and the Contractor for Project security,
maintenance, heat, utilities, damage to the Work, and insurance; and (3) shall fix the time within which the
Contractor shall complete the items listed therein, which shall not exceed thirty (30) days. The Certificate of
Substantial Completion shall be submitted to the City and the Contractor for their written acceptance of the
responsibilities assigned to them in such certificate.
Upon Substantial Completion of the Work, and execution by both the City and the Contractor of the
Certificate of Substantial Completion, the City may pay the Contractor an amount sufficient to increase total
payments to the Contractor to one hundred percent (100%) of the Agreement Price less any Retainage
withheld for the reasonable cost, as determined by the City and the Engineer, for completing all incomplete
Work, including punch -list items, and correcting and bringing into conformance all defective and
nonconforming Work, and resolving all unsettled bona fide disputes and other claims.
59. Retainage: The City may withhold Retainage in the amount of five percent (5%) of the Agreement
price, and the rate of Retainage may not exceed five percent (5%) for any item in a bid schedule or schedule
of values for the Project, including materials and equipment delivered on site to be installed.
60. Warranty: The Warranty Period is two (2) years, commencing on the date of Final Completion and
Acceptance of the Work by the City. The warranty provided in this section is a guarantee by the Contractor
that is made in addition to the guarantees and warranties included in the GEOFLO+ 10 Year Product Warranty
Terms and Conditions, GEOGREEN & GEOBASE 10-year Product Warranty Terms and Conditions, TIPS
Vendor Agreements, and Maintenance Bond, and the warranty provided during the Warranty Period shall not
limit the City's rights or remedies under the Maintenance Bond, or the GEOFLO+ 10 Year Product Warranty
Terms and Conditions. The Contractor warrants and guarantees to the City during the Warranty Period that
all labor furnished and Work performed under the Agreement has yielded only first-class results, that
materials and equipment furnished are of good quality and new, and that the Work is of good quality, free
from faults and defects and in strict conformance with this Agreement. All Work not conforming to these
requirements may be considered defective, and the Contractor shall promptly repair or replace such defective
Work upon demand by the City without any further objection by the Contractor. This Warranty Period shall
not be construed as a limitation on any rights or remedies available the parties under Texas Civil Practice and
Remedies Code Ch. 16.
All products' and manufacture's guarantees or warranties shall be assigned to the City upon
installation and Final Completion and Acceptance of the Work by the City.
61. Suspension by Court Order: The Contractor shall suspend such part or parts of the Work ordered to
be suspended by a court of competent jurisdiction and will not be entitled to additional compensation by
virtue of such court order. Neither will Contractor be liable to the City in the event the Work is suspended by
court order, unless the court order is caused in whole or in part by the Contractor's negligent or willful acts
or omissions.
62. Temporary Suspensions: The Engineer shall have the authority to suspend the Work whollyor in part
for such period or periods as the Engineer may deem necessary due to unsuitable weather conditionsas are
considered unfavorable for the suitable prosecution of the Work. If it should become necessaryto stop the Work
for an indefinite period, the Contractor shall protect the Work and store all materials in such a manner that
they will not obstruct or impede the public unnecessarily nor become damaged in any way and the Engineer
shall take every precaution to prevent damage or deterioration.
63. Abandonment by Contractor: In case the Contractor should abandon and fail or refuse to resume the
Work within ten (10) calendar days after written notification from the City or the Engineer, then, where a
performance bond exists, the Surety on the bond may be notified in writing and directed to complete the Work,
and a copy of said notice shall be delivered to the Contractor. After receiving said notice of abandonment, the
Contractor shall not remove ftom the Work or Project any materials, equipment, tools, or supplies then on the
site, but the same, together with any materials and equipment and under Agreement for the Work may be held
for use on the Work by the City or the Surety on the performance bond, or another contractor in completion
of the Work; and the Contractor shall not receive any rental or credit therefore, it being understood that the use
of such equipment and materials will mitigate the cost to complete the Work.
64. Fulfillment of Contract: The Agreement will be considered fulfilled, save as provided in any
maintenance stipulations, bond, or by law, when all the Work has been 100% completed, the final inspection
made by the Engineer, and final acceptance and final payment made by the City.
The City shall then pay the Contractor within thirty-one (31) days of the last day of the preceding
month the total amount of the Engineer's statement, less five percent (5%) of the amount thereof as Retainage
withheld by the City until final payment, and further less all previous payments and all further sums that may
be retained by the City under the terms of this Agreement.
It is understood, however, that in case the Contractor achieves Substantial Completion and some
unexpected and unusual delay occurs due to a force majeure event or no fault or neglect on the part of the
Contractor as determined by the City, the City may, upon written recommendations of the Engineer, release a
reasonable and equitable portion of the Retainage to the Contractor; or the Contractor at the City's option, may
be relieved of the obligation for fully completing the Work, and thereupon, the Contractor shall receive payment
of the balance due him under the Agreement subject only to the conditions stated under "Final Payment."
65. Final Completion and Acceptance: Within five (5) days after the Contractor has given the Engineer
written notice that the Work has been 100% finally completed, the Engineer and the City shall inspect the Work
and within said time, if the Work is found to be 100% complete in accordance with the Agreement, the City
shall issue to the Contractor a Letter of Acceptance within ten calendar (10) days.
66. Final Payment: Upon the issuance of the Letter of Acceptance, the Engineer, shall proceed to make
final measurements and prepare a final statement of the value of all work performed and materials furnished
under the terms of the Agreement and shall certify same to the City, who shall pay to the Contractor within
thirty (31) days after the date of the Letter of Acceptance, and receipt of a notarized Affidavit of Bills Paid,
and Unconditional Lien Waivers, the balance due the Contractor under the terms of this Agreement, provided
the Contractor has fully performed contractual obligations under the terms of this Contract; and said payment
shall become due in any event upon said performance by the Contractor. Neither the Letter of Acceptance nor
the final payment, nor any provisions in the Agreement, shall relieve the Contractor of the obligation for the
fulfillment of any warranty, bond, or other obligation, which may be required by the Agreement, or which may
survive the termination and completion of the Agreement. If no bona fide dispute or other default, breach, or
claim exists under this Agreement or applicable law, the City shall release any Retainage withheld upon
application for Final Payment.
67. Payments Withheld: The City may, on account of subsequently discovered evidence, bona fide
dispute, or Contractor's unexcused delay or abandonment, withhold or nullify the whole or part of any
certificate, amounts due, or request for payment to such extent as may be necessary to protect itself from loss
on account of any or each of the following:
(a) Defective, rejected, unauthorized, or abandoned work not remedied by Contractor,
(b) Claims filed or reasonable evidence indicating probable filing of claims,
(c) Failure of the Contractor to make payments properly to subcontractors or for material or labor,
(d) Damage to another contractor,
(e) Contractor bankruptcy, insolvency, notification of any tax liens,
(f) Liquidated Damages owed to the City, or
(g) Unexcused delay by the Contractor in completing the Work.
68. Delayed Payments: Should the City fail to make payment to the Contractor of the sum named in any
partial or final statement or invoice when an undisputed payment is due and when no bona fide dispute exists,
or should the Engineer fail to issue any statement on or before the date above provided, then the City shall pay
to the Contractor, in addition to the sum shown as due by such statement, interest thereon at the rate in effect
on September 1 of the fiscal year in which the payment becomes overdue. The rate in effect on September 1 is
equal to the sum of one percent (1%) plus the prime rate as published in the Wall Street Journal on the first day
of July of the preceding fiscal year that does not fall on a Saturday or Sunday, unless otherwise specified, from
date due until fully paid, which shall fully liquidate any injury to the Contractor growing out of such delay in
payment not promptly made, unless such payments were withheld in accordance with the provisions of the
Agreement or Texas Gov't Code Ch. 2251.
In accordance with Texas Gov't Code Sec. 2251.042, the City shall notify the Contractor of an error
or disputed amount in a partial or final statement or invoice submitted under this Agreement not later than the
2 1 " day after the date the City receives the partial or final statement or invoice, and the City shall include in
such notice a detailed statement of the amount of the partial or final statement or invoice which is disputed.
The City may withhold from payments required no more than 110% percent of the amount disputed in the
partial or final statement or invoice. This paragraph shall not be construed as a limitation or cap on the City's
right to withhold payments or amounts under this Agreement, or for amounts withheld for payment of
Liquidated Damages owed to the City, or for Retainage withheld due to a bona fide dispute, as provided in this
Agreement.
69. Termination. The City may, at any time, with thirty (30) calendar days written notice terminate the
Agreement, or any part or portion thereof, for a breach of this Agreement after ten (10) days written notice to
cure the alleged breach of this Agreement. Upon receipt of notice from the City of such termination, the
Contractor shall:
1. cease operations as directed by the Owner in the notice and, if required by the Owner, participate
in an inspection of the Work with the Owner and the Architect/Engineer to record the extent of
completion thereof, to identify the Work remaining to be completed or corrected, and to determine
what temporary facilities, tools, equipment and construction machinery are to remain at the site
pending completion of the Work;
2. complete or correct the items directed by the Owner, and take actions necessary, or that the Owner
may direct, for the protection and preservation of the Work any stored materials and equipment;
and
3. except for Work directed to be performed prior to the effective date of termination stated in the
notice, terminate all existing subcontracts and purchase orders and enter into no further
subcontracts and purchase orders.
In the case of such termination, the Contractor shall only be entitled to receive payment for work
properly executed through the date of termination, and any other relief authorized by Texas Local Gov't Code
Ch. 271. The Contractor's obligations surviving final payment under the Contract, including without limitation
those with respect to records retention (audit), insurance, indemnification, and correction of Work that has been
completed at the time of termination, remains effective notwithstanding termination by the Owner. The
Contractor understands and agrees that consequential, punitive, and exemplary damages arising out of or
relating to this Contract are not available against the Owner as a matter of law under Texas Local Gov't Code
Ch. 271, or any other law.
70. Time Filing Claims: Unless otherwise specified in the Agreement, it is further agreed by both parties
hereto that all questions of dispute or adjustment presented by the Contractor shall be in writing and filed with
the Engineer within thirty (30) calendar days after the Engineer has given any directions, orders or instructions
to which the Contractor so desires to take exception. The Engineer shall reply to such written exceptions by
the Contractor and render his final decision in writing. It is further agreed that final acceptance of the Work by
the City and the acceptance by the Contractor of the final payment shall be a waiver and a bar of any claims
for delays or otherwise by the Contractor, except, where noted otherwise in the Agreement.
MISCELLANEOUS
1. The terms and conditions of any exculpatory or indemnity provisions in the Agreement shall construed
in favor of the party being protected and shall survive the termination and completion of the Agreement. The
judicial doctrine that provides that documents or exculpatory provisions are to be construed against the drafter
or provider of such documents or provisions does not apply to this Agreement, as each party has had a
reasonable opportunity to obtain and consult with their own legal counsel regarding this Agreement.
2. Contractor shall perform the Work as an independent contractor and shall not be considered an
employee of the City for any purpose whatsoever, including, but not limited to, entitlement to City employee
benefits. Contractor hereby expressly waives any claim or entitlement to such benefits. Furthermore, this
Agreement is not intended to create, nor should it be construed as creating, a partnership, association, joint
venture, or trust.
3. The waiver or failure of either party to exercise, in any respect, any right provided for in this Agreement
shall not be deemed a waiver of any further right under this Agreement.
4. If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute,
court decision, or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall
be valid and enforceable to the maximum extent possible.
5. No right or remedy granted herein or reserved to either party is exclusive of any other right or remedy
provided or permitted by law or equity, but each shall be cumulative of every other right or remedy given
hereunder. The waiver or failure of either party to exercise, in any respect, any right provided for in this
Agreement shall not be deemed a waiver of any further right under this Agreement.
6. This Agreement is subject to the appropriation of public funds by the City in its budget adopted for
any fiscal year for the specific purpose of making payments pursuant to this Agreement for that fiscal year. The
obligation of the City pursuant to this Agreement in any fiscal year for which this Agreement is in effect shall
constitute a current expense of the City for that fiscal year only, and shall not constitute an indebtedness of the
City of any monies other than those lawfully appropriated in any fiscal year. In the event of non -appropriation
of funds in any fiscal year to make payments pursuant to this Agreement, this Agreement may be terminated
without any liability to either party.
7. Compliance with Texas Accessibility Standards and ADA. Contractor shall construct the Work in
compliance with the Texas Accessibility Standards (TAS) issued by the Texas Department of Licensing and
Regulation, under the Architectural Barriers Act, Article 9102, Texas Civil Statutes. The TAS establishes
minimum accessibility requirements to be consistent with minimum accessibility requirements of the
Americans with Disabilities Act (P.L. 101-336).
8. Inspection of Books and Records; Audit. The Contractor shall keep a complete and accurate record to
document its work on the Project and to expedite any audit that might be conducted by the City. The Contractor
shall maintain records sufficient to document that funds provided under the Agreement were expended only
for eligible costs that were incurred in accordance with all applicable state and local laws, rules, policies, and
procedures, and in accordance with all applicable provisions of this Agreement. The Contractor shall maintain
all books, documents, papers, accounting records and other documentation relating to costs incurred under this
Agreement and shall make such materials available to the City for review and inspection during the Agreement
period and for seven (7) years from the date of Final Completion of work defined under this Agreement, or
until any pending litigation or claims are resolved, whichever is later.
The requirements of Subchapter J, Chapter 552, Texas Government Code, may apply to this Contract
and the Contractor agrees that this Contract can be terminated if the Contractor knowingly or intentionally fails
to comply with a requirement of that subchapter. Upon request by the Owner, the Contractor shall promptly
provide to the Owner any Contracting Information related to the Contract that is in the custody or possession
of the Contractor; and on completion of the contract, provide at no cost to the Owner all Contracting
Information related to the Contract that is in the custody or possession of the Contractor.
Contractor shall keep, maintain, and account for all "Contracting Information" as that term is defined
in Texas Government Code Ch. 552, including, but not limited to all communications, books, documents,
accounting records, materials, equipment, and labor related to the Work, and must keep such full and detailed
records as may be necessary for proper financial management pursuant to the Contract for a period of seven
(7) years after final payment, or until any pending litigation or claims are resolved, whichever is later.
Furthermore, the Owner has the right to examine the Contractor's and its Subcontractors' and suppliers' records
directly or indirectly pertaining or relating to the Work or the Contract and the Contractor must grant the Owner
access to and an opportunity to copy such records at all reasonable times during the Contract period and for
seven (7) years after final payment, or until any pending litigation or claims are resolved, whichever is later.
9. The City may conduct an audit or investigation of any entity receiving funds from the City directly
under this Agreement, or indirectly through the Contractor or a subcontractor, materialman, or supplier.
Acceptance of funds directly under the Agreement, or indirectly through the Contractor or a subcontractor,
materialman, or supplier under this Agreement acts as acceptance of the authority of the City to conduct an
audit or investigation in connection with those funds. An entity that is the subject of an audit or investigation
must provide the City with access to any information the City considers relevant to the investigation or audit
without delay.
10. To the extent required by Texas law, Contractor verifies that: (1) It does not have a practice, policy,
guidance, or directive that discriminates against a firearm entity or firearm trade association, as defined in
Texas Government Code § 2274.001, and that it will not during the term of the Contract discriminate against a
firearm entity or firearm trade association; (2) It does not "boycott Israel" as that term is defined in Texas
Government Code § 808.001 and it will not boycott Israel during the term of the Contract; and (3) It does not
"boycott energy companies," as those terms are defined in Texas Government Code §§ 809.001 and 2274.001,
and it will not boycott energy companies during the term of the Agreement.
11. Waiver of Attorney's Fees. The parties expressly covenant and agree that in the event of any litigation
arising between the parties to this Agreement, each party shall be solely responsible for payment of its attorneys
and that in no event shall either party be responsible for the other party's attorneys' fees regardless of the
outcome of the litigation.
12. This Agreement may be executed in Counterparts, each of which shall be deemed an original and
constitute one and the same instrument.
13. This Agreement, together with all exhibits referenced herein, embodies the complete agreement of the
parties hereto, superseding all oral or written previous and contemporary agreements between the parties and
relating to matters in this Agreement.
{Signatures on following page}
IN WITNESS WHEREOF, the Parties hereto have accepted the terms of this Agreement and caused
this Agreement, including the exhibits attached hereto and incorporated herein by reference for all purposes, to
be executed as of the dates set forth below.
CITY OF SOUTHLAKE, TEXAS
John Huffinan, Mayor
Date:
ATTEST:
Amy Shelley, City Secretary
SOUTHLAKE PARKS DEVELOPMENT
CORPORATION
Randy Williamson, President
Date:
ATTEST:
Amy Shelley, City Secretary
STATE OF
COUNTY OF
GEOSURFACES, INC.:
By:
Name:
Title:
Date:
This instrument was acknowledged before me on the day of ,
2023, by the of GeoSurfaces, Inc., on behalf of
said company.
Notary Public, State of