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HomeMy WebLinkAboutContract 365927 Housing Department CITY Y: 651YL ;C)NTRACT NO A.L.E.R.T. Program (Area Lead Education Reduction and Training Program) A Lead Hazard Control Program NOTICE TO PROCEED Project Address: 2501 N.W. 28'�' Street To: Javier Villagomez Company Name: GTO Construction Address: 3617 Martin Street Fort Worth, TX 76119 Telephone #: 817-536-9888 Fax # 817-5364734 From: City of Fort Worth , A.L.E.R.T. Program -------------------------------------------------------------------------------------------------- Dear Mr. McGiverly: This is your Notice to Proceed Order to conduct Lead -Reduction activities(s) of single family home at 2501 N.W. 28t" Street Fort Worth, TX 76106. Work will commence on January 25, 2008 and will end on March 31, 2008. The total not to exceed cost is in the amount of $19,091.50. Any changes to this Notice to Proceed should be addressed in writing to the Director or his designee for approval, prior to executing those changes. If you have any questions, please do not hesitate to contact the office. Contractor Signature Date 02-Ob-Og g09:21 IN PROJECT NAME: A.L.E.R.T. (Area Lead Education, Reduction and Training) LEAD -BASED PAINT HAZARD CONTROL PROGRAM PROJECT NO.: 08-000047 STATE OF TEXAS COUNTY OF TARRANT This CONTRACT for lead hazard reduction ("CONTRACT") is between the CITY OF FORT WORTH (the "CITY"), a Texas home rule municipal corporation, acting by and through its duly authorized Assistant City Manager, and GTO Constrution, a Texas partnership ("CONTRACTOR"), acting by and through Javier Villa, its Managing Partner and CONTRACTOR'S duly authorized representative. (Sometimes CITY and CONTRACTOR are hereinafter referred to individually as a "Party" and collectively as the "Parties"). CITY has received certain funds from the U.S. Department of Housing and Urban Development ("HUD") under Sections 1012 and 1013 of the Residential Lead -Based Paint Hazard Reduction Act of 1992, which is Title X of the Housing and Community Development Act of 1992, as amended (the "Community Development Act") for utilization in connection with its Lead Based Paint Hazard Control Program ("LBPHCP" ); WHEREAS, the CITY'S HOUSING DEPARTMENT ("HOUSING DEPARTMENT") with the approval of the CITY COUNCIL ("CITY COUNCIL"), a a budget for such funds and has included therein an expenditure of funds for its LBPHCP (the "A.L.E.R.T. Project"); WHEREAS, the HOUSING DEPARTMENT is the designated CITY department responsible for the administration and monitoring of the A.L.E.R.T. Project and all matters pertaining to it; and, WHEREAS, the HOUSING DEPARTMENT wishes to engage CONTRACTOR to perform lead - based paint hazard control work for the A.L.E.R.T Project under the terms and conditions more particularly described in this CONTRACT. NOW THEREFORE, the Parties agree as follows: 1 I. DEFINITIONS 1.1 For purposes of this CONTRACT, in addition to the definitions and references set forth throughout this CONTRACT, the following terms shall have the meanings indicated. (A) "Business Day" —Every day %J the week, except Saturdays, Sundays and those scheduled holidays officially adopted and approved by the CITY COUNCIL for CITY employees. (B) "Certificate of Final Completion" —Certificate issued by the Director of the HOUSING DEPARTMENT that certifies that all work for a particular real property and the improvements located thereon has been completed under the terms of this CONTRACT. (C) "Governmental. Authority" —Any and all courts, boards, agencies, commissions, offices or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal or otherwise), whether now or hereafter in existence (D) "Homeowner" —The owners) of the real property and the improvements located thereon. (E) "Legal Requirements" — (i) Any and all present and future judicial decisions, statutes, rulings, rules, regulations, permits, certificates or ordinances of any Governmental Authority in any way applicable to CONTRACTOR, the Community Development Act, the A.L.E.R.T. Project or the Property, including, without limitation, the ownership, use, construction, rehabilitation, development, occupancy, possession, operation, maintenance, alteration, repair or reconstruction thereof, (ii) any and all covenants, conditions and restrictions contained in any deed or other form of conveyance or in any other instrument of any nature that relate in any way or are applicable to the Property or the ownership, use, construction, occupancy, possession, operation, maintenance, alteration, repair or reconstruction thereof, (iii) CONTRACTOR'S presently or subsequently effective bylaws and articles of incorporation or partnership, limited partnership, joint venture, trust or other form of business association agreement, if any; (iv) any and all leases related to the Property, (v) other contracts, whether written or oral, of any nature that relate in any way to the Property or the Project and to which CONTRACTOR may be bound. (F) "Occupant Protection Plan" -The measures and management procedures that will be taken during the lead -based paint hazard control work and all related activities to protect the occupants of the Property from exposure to any lead -based paint hazards. (G) "Project" —the lead -based paint hazard control work and all related activities to be performed on the Property by CONTRACTOR. (H) "Property" the real property and improvements located thereon as more particularly described in the deed to HOMEOWNER, commonly known as 2501N. W. 28��` Street Fort Worth, Texas 76106 (I) "Subcontractor" —Any person, firm or corporation that has a direct contract, whether oral or written, with CONTRACTOR to perform any portion of the Project or to provide materials or equipment to be incorporated into the Project. (J) 'Work — All labor necessary to complete the Project required by the Work Write -Up, and all materials and equipment incorporated or to be incorporated in the Project during the course of such lead -based paint hazard control work. (K) "Work Write -Up" —Any specifications, plans and drawings required by the CITY and the itemized list of all work approved by the CITY, together with any change orders approved by the CONTRACTOR, the Homeowner and the CITY. II. TERM 2.1 Except as otherwise provided for herein, this CONTRACT shall commence immediately upon its execution and shall terminate on the earlier of (a) 60 days, or (b) Project completion. III. RESPONSIBILITIES 3.1 CONTRACTOR hereby accepts the obligation to perform in a satisfactory and efficient manner, as solely determined by CITY, all services and activities required of it in this CONTRACT. 3.2 No later than execution of this CONTRACT, CONTRACTOR shall designate in writing a representative responsible for the management of all matters pertaining to this CONTRACT. 3.3 The Director of the HOUSING DEPARTMENT or his or her designate shall be CITY'S representative responsible for the administration of this CONTRACT. 3.4 Communications between CITY and CONTRACTOR shall be directed to the designated representatives of each as set forth in paragraphs 3.2 and 3.3. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS 4.1 CONTRACTOR understands and acknowledges that funds provided to it pursuant to this CONTRACT are funds that have been made available to CITY by HUD under its Lead -Based Paint Hazard Control Program and in accordance with City's HUD -approved Grant Application along with other specific assurances made by CITY. CONTRACTOR, therefore, promises that it will comply with all the requirements of the Community Development Act and its related regulations. CONTRACTOR understands and acknowledges that the Community Development Act or its related regulations do not constitute a complete compilation of all duties imposed upon CONTRACTOR by law or administrative ruling, nor do they limit the standards that CONTRACTOR must follow. Therefore, CONTRACTOR understands that if the regulations promulgated pursuant to the Community Development Act and/or the Lead -Based Paint Hazard Control Program are amended or revised, it shall comply with them or otherwise immediately notify CITY pursuant to the provisions of Article XXXV of this CONTRACT. 4.2 CONTRACTOR understands that summaries of certain compliance requirements mandated by applicable federal laws or regulations are contained in Housing Department Rehabilitation and Development Division Specification 101 and in the U.S. Department of, Housing .andUrban 7 tj1�81 Development, Lead Paint Safety (Field Guide), copies of which have previously been provided to CONTRACTOR, and that CONTRACTOR must at all times remain in compliance therewith. CONTRACTOR further understands that said summaries are intended only as such and in no way are meant to constitute a complete compilation of all duties imposed upon CONTRACTOR by law or administrative ruling, or to limit or narrow the standards which CONTRACTOR must follow. 4.3 CONTRACTOR warrants that all contractors and subcontractors receiving funds in connection with this Project are familiar with, and shall comply with, any and all applicable rules and regulations pertaining to HUD'S Lead -Based Paint Hazard Control Program and that a copy of the U.S. Department of Housing and Urban Development, Lead Paint Safety (Field Guide will be included as part of every contract awarded in connection with this Project. 4.4 CONTRACTOR shall observe and comply with all city, state and federal laws, regulations, ordinances and codes affecting CONTRACTOR's operations pursuant to this CONTRACT. V. LEGAL AUTHORITY 5.1 CONTRACTOR represents, warrants, assures and guarantees that it possesses full legal authority, to enter into this CONTRACT and to perform all of its responsibilities required hereunder. 5.2 CONTRACTOR'S designated representative that executes this CONTRACT on CONTRACTOR'S behalf represents, warrants, assures and guarantees that he or she has full legal authority to execute this CONTRACT on behalf of CONTRACTOR and to bind CONTRACTOR to all terms, performances and provisions herein contained. 5.3 In the event that a dispute arises as to either CONTRACTOR'S legal authority to enter into this CONTRACT or the legal authority of CONTRACTOR'S designated representative that executes this CONTRACT on behalf of CONTRACTOR, CITY shall have the right, at its option, to either temporarily suspend or terminate this CONTRACT. Should CITY temporarily suspend or terminate this CONTRACT pursuant to this paragraph, however, CONTRACTOR shall be liable to CITY for any money it has received from CITY for performance of any of the provisions hereof. VI. MAINTENANCE OF EFFORT 6.1 CONTRACTOR agrees that the funds and resources provided to it under the terms of this CONTRACT shall in no way be substituted for funds and resources provided from other sources, nor shall such funds and resources in any way serve to reduce the funds, resources, services, or other benefits which would have been available to, or provided through CONTRACTOR had this CONTRACT not been executed. VII. PERFORMANCE BY CONTRACTOR 7.1 CONTRACTOR, in accordance and compliance with the terms, provisions and requirements of this CONTRACT, and for each Property specified by CITY shall manage, perform and provide all of the L! activities and services set forth in the Work Write - Up, attached hereto and incorporated herein for all purposes as Exhibit "A", to CITY' S satisfaction. 7.2 Modifications or alterations to the Work Write -Up may be made only pursuant to the prior written approval of the HOUSING DEPARTMENT Director or his or her designate. 7.3 The Work to be performed hereunder shall commence and end on the date specified in the Notice to Proceed that is issued by CITY for the Property. 7.4 CONTRACTOR shall procure a state certified supervisor or project designer to prepare the Occupant Protection Plan. 7.5 All services performed hereunder shall be performed by certified lead firm and certified lead personnel, certified to perform lead -based paint activities in accordance with Sections 295.205-211 of the Texas Environmental Lead Reduction Rules, 7.6 CONTRACTOR shall ensure that all Work performed hereunder shall be performed in accordance with Section 295.212-214 of the Texas Environmental Lead Reduction Rules. CITY reserves the right to have personnel removed from the Project who are not performing their services in a workmanlike and professional manner, and in accordance with Texas Environmental Lead Reduction Rules. 7.7 If CONTRACTOR observes that the Work Write -Up is at variance with applicable laws, rules, ordinances, and/or regulations bearing on the conduct of the work, it shall promptly notify the HOUSING DEPARTMENT in writing. 7.8 Notwithstanding paragraph 7.7 hereinabove, if CONTRACTOR performs Work that it knows or reasonably should know is contrary to or varies from any applicable law, rule, ordinance, and/or regulation, and does not have written approval from the Texas Department of Health or the CITY to conduct such variance, the CONTRACTOR shall bear all costs and damages arising there from. 7.9 Upon completion of the Work, CONTRACTOR shall perform a visual inspection and sample wipe analMYsis of the Property to ensure that the Property is cleared of all surplus material, hazard, waste, refuse dirt and rubbish resulting from the Work performed hereunder. 7.10 If performance by CONTRACTOR is delayed as a direct result of riot, insurrection, fire, act of God, or operation of law, the CONTRACTOR shall notify CITY in writing of the delay and the reasons therefore within three (3) calendar days following the start of the delay, and upon written approval by CITY, CONTRACTOR shall extend the allotted time for completion of the Work by one (1) calendar day for each day lost. VIII. REIMBURSEMENT BY CITY 8.1 In consideration of CONTRACTOR's performance of its obligations in a satisfactory and efficient manner as determined solely by CITY, CITY agrees to reimburse CONTRACTOR for all eligible expenses incurred hereunder. Such reimbursements, however, shall be in accordance with the Work 5 Write -Up and shall be subject to any and all limitations and provisions set forth in this Article and in Article IX hereunder. 8.2 Notwithstanding any other provision of this CONTRACT, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of one hundred thousand and no/100 dollars ($100,000.00). 8.3 It is expressly understood and agreed by CITY and CONTRACTOR that CITY'S obligations under this Article are contingent upon the actual receipt of adequate LBPHCP funds to meet CITY' S liabilities hereunder. Should CITY not receive funds to make payments pursuant to this CONTRACT or should fund awards be reduced, CITY shall notify CONTRACTOR in writing within a reasonable time after such fact has been determined and may, at its option, either terminate this CONTRACT or reduce the amount of its liability accordingly. 8.4 It is expressly understood by CITY and CONTRACTOR that this CONTRACT in no way obligates CITY' S general fund monies or any other monies or credits of CITY. 8.5 CITY shall not be liable for any CONTRACTOR cost, or portion thereof, which: (A) Has been paid, reimbursed or is subject to payment or reimbursement from another source; (B) Was incurred prior to the commencement date or subsequent to the termination date of this CONTRACT specified in Article II hereinabove; (C) Is not in strict accordance with the terms of this CONTRACT, including all exhibits attached hereto; (D) Has not been billed to CITY within thirty (30) calendar days following billing to CONTRACTOR, or termination of this CONTRACT, whichever is earlier; or (E) Is not an allowable cost as defined by the Work Write -Up. 8.6 City shall not be liable for any CONTRACTOR cost, or portion thereof, which is or was incurred in connection with an activity of CONTRACTOR where: (A) Prior written authorization from CITY is required for the activity and such authorization was not first procured; or (B) CITY has requested that CONTRACTOR furnish data concerning such activity prior to proceeding further and CONTRACTOR nonetheless proceeds without first submitting the requested data and receiving CITY approval. 8.7 CITY shall not be obligated or liable under this CONTRACT to any party, other than CONTRACTOR, for payment of any monies or provision of any goods or services. IX. RECEIPT, DISBURSEMENT AND ACCOUNT OF FUNDS BY CONTRACTOR � !+� �,GUa 9.1 CONTRACTOR understands and agrees that it shall maintain a separate numbered account for the receipt and disbursement of all funds received pursuant to the CONTRACT. CONTRACTOR further agrees that: (A) Such account shall contain only funds received pursuant to this CONTRACT and that no other funds shall be mingled therewith; (B) All checks and withdrawals from such account shall have itemized documentation in support thereof, (C) Such account shall be maintained, under conditions approved by CITY, in a financial institution having federal deposit insurance coverage, with any account balance exceeding the federal deposit insurance coverage likewise secured; and (D) Upon CONTRACTOR'S written request and solely within the discretion of CITY, an alternative accounting mechanism may be permitted, provided such alternative adheres at all times to generally accepted accounting principals. 9.2 Regarding method of payment, CITY and CONTRACTOR agree as follows: (A) CONTRACTOR shall contact the HOUSING DEPARTMENT to inform it of completion of Project and schedule signing for the request for payment. The request for payment form will be provided by the HOUSING DEPARTMENT within three (3) days of completion of the Project. (B) CONTRACTOR shall submit to CITY such other reports as may be required by CITY under this CONTRACT. 9.3 Within ten (10) Business Days of City's written request, CONTRACTOR shall refund to CITY any SUM of money paid by CITY to CONTRACTOR later determined to: (A) Be an overpayment to CONTRACTOR; (B) Not to have been spent by CONTRACTOR strictly in accordance with the terms of this CONTRACT; or (C) Not supported by adequate documentation to fully justify the expenditure. 9.4 Upon termination of this CONTRACT, should any expense or charge for which payment has been made be subsequently disallowed or disapproved as a result of any auditing or monitoring by CITY, HUD, or any other authorized governmental agency, CONTRACTOR shall refund such amount within five (5) Business Days. Refunds of disallowed or disapproved costs, however, shall not be made from funds received pursuant to this CONTRACT or from funds received from or through the federal government or CITY. 9.5 In the event that the actual amount expended by CONTRACTOR to meet the level of performance specified in the Work Write -Up, or any amendment thereto, is less than that amount provided to i4 —, ram;J!G La CONTRACTOR pursuant to this CONTRACT, then CITY reserves the right to reappropriate or recapture any such under expended funds. 9.6 Utilizing a format approved by CITY, a "Contract Close - Out Package together with a final expenditure report, for the period commencing on the date of CONTRACTOR's last invoice requesting reimbursement of funds pursuant to this CONTRACT, shall be submitted by CONTRACTOR to CITY within fifteen (15) Business Days following the expiration of the term of this CONTRACT. X. SPECIAL CONDITIONS 10.1 CONTRACTOR understands and agrees that notwithstanding Article II hereof, the term of this CONTRACT does not obligate CITY to provide funds beyond City's fiscal year 200&2009. XL FURTHER REPRESENTATIONS WARRANTIES AND COVENANTS 11.1 CONTRACTOR further represents and warrants that: (A) All information, data or reports heretofore or hereafter provided to CITY and relied upon by it for purposes of this CONTRACT is, shall be and shall remain complete and accurate as of the date shown on the information, data or report, and that since said date shown, shall not have undergone any significant change without written notice to CITY; (B) Any supporting financial statements heretofore or hereafter provided to CITY are, shall be and shall remain complete, accurate and fairly reflective of the financial condition of CONTRACTOR on the date shown on said statements and during the period covered thereby, and that since said date shown, except as provided by written notice to CITY, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR, (C) No litigation or proceedings are presently pending or threatened against CONTRACTOR; (D) None of the provisions contained herein contravene or in any way conflict with the authority under which CONTRACTOR is doing business or with the provisions of any existing indenture or agreement of CONTRACTOR; (E) None of the assets of CONTRACTOR are- currently or for the duration of this CONTRACT anticipated to be subject to any lien or encumbrance of any character, except for current taxes not delinquent and except as shown in the financial statements provided by CONTRACTOR to CITY. 11.3 Each of the foregoing representations, warranties and covenants shall be continuing and deemed repeated each time CONTRACTOR submits a new request for payment in accordance with the terms, provision and requirements of this CONTRACT. XII. MAINTENANCE OF RECORDS 12.1 CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of any funds received pursuant to this CONTRACT. CONTRACTOR further agrees: (A) That maintenance of said records shall be in compliance with all terms, provisions and requirements of this CONTRACT and with all applicable federal and state regulations establishing standards for financial management; and (B) That CONTRACTOR's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. 12.2 CONTRACTOR agrees to retain, for the period of time and under the conditions specified by CITY, all books, records, documents, reports, and written accounting polices and procedures pertaining to the operation of programs and expenditures of funds under this CONTRACT. XIII. ACCESSIBILITY OF RECORD 13.1 At any reasonable time and as often as CITY may deem necessary, CONTRACTOR shall make all of its records available to CITY, HUD, or any of their authorized representatives, and shall permit CITY, HUD, or any of their authorized representatives to audit, examine, and make excerpts and/or copies of same. CONTRACTOR's records shall include, but shall not be limited to, the following: payroll, personnel and employment records; contracts; and invoices. XIV. PERFORMANCE RECORDS AND REPORTS 14.1 As often and in such form as CITY may require, CONTRACTOR shall furnish CITY such performance records and reports as deemed by CITY as pertinent to matters covered by this CONTRACT. 14.2 As of the commencement date of this CONTRACT, CONTRACTOR agrees to gather information and data relative to all programmatic and financial reporting. XV. MONITORING AND EVALUATION 15.1 CITY shall perform on -site monitoring of CONTRACTOR'S performance pursuant to the terms of this CONTRACT. 15.2 CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities so as to ensure compliance by CONTRACTOR with this CONTRACT, the Community Development Act, 9 the Work Write - Up, the program assurances and certifications executed by CITY (if applicable), and with all other laws, regulations and ordinances related to the performance hereof. 15.3 CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of record -keeping systems and to provide CITY with any data determined by CITY to be necessary for its effective fulfillment of its monitoring and evaluation responsibilities. 15.4 CONTRACTOR agrees that it will cooperate with CITY in such a way so as not to obstruct or delay CITY in its monitoring of CONTRACTOR's performance and that it will designate one of its staff to coordinate the monitoring process as requested by CITY. 15.5 After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. 15.6 Copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies shall be submitted to CITY within five (5) Business Days of receipt thereof by CONTRACTOR. XVI. EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION 16.1 CONTRACTOR shall comply with all applicable local, state and federal equal employment opportunity and affirmative action rules, regulations and laws. 16.2 So that CITY can investigate compliance with local, state and federal equal employment opportunity and affirmative action rules, regulations and laws, CONTRACTOR shall furnish to CITY any and all information and reports requested by CITY, and shall permit access by CITY of any and all of its books, records and accounts. 16.3 In the event of non-compliance by CONTRACTOR (or CONTRACTOR'S Sub -contractors) with local, state and federal equal employment opportunity and affirmative action rules, regulations and laws, this CONTRACT may be canceled, terminated, or suspended by CITY, in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. XVII. NONDISCRIMINATION 17.1 This CONTRACT is made and entered into with reference specifically to Chapter 17, Article III, Division 3 ("Employment Practices"), of the Code of the City of Fort Worth (1986), as amended, and Seller hereby covenants and agrees that Seller, its employees, officers, agents, contractors or Subcontractors, have fully complied with all provisions of same and that no employee, participant, applicant, contractor or Subcontractor has been discriminated against according to the terms of such CITY Ordinance by Seller, its employees, officers, agents, contractors or Subcontractors herein. XVIII. CONFLICT OF INTEREST 18.1 CONTRACTOR covenants that neither it nor any member of its governing body or of its staff presently has any interest, direct or indirect, which would conflict in any manner or degree with the 10 performance of services required to be performed under this CONTRACT. CONTRACTOR further covenants that in the performance of this CONTRACT, no persons having such interest shall be employed or appointed as a member of its governing body or of its staff. 18.2 CONTRACTOR further covenants that no member of its governing body or of its staff shall possess any interest in, or use their position for, a purpose that is or gives the appearance of being motivated by desire for private gain for themselves or others, particularly those with which they have family, business, or other ties. 18.3 No member of CITY' S governing body or of its staff who exercises any function or responsibility in the review of approval of the undertaking or carrying out of this CONTRACT shall. (A) Participate in any decision relating to this CONTRACT which may affect his or her personal interest or the interest of any corporation, partnership, or association in which he or she has a direct or indirect interest; (B) Have any direct or indirect interest in this CONTRACT or the proceeds thereof. 18.4 CONTRACTOR acknowledges that it has been informed that the CITY Charter and CITY Ethics Code prohibit a CITY officer or employee, as those terms are defined in the Ethics Code, from having a financial interest in any contract with the CITY or any CITY Agency such as city owned utilities. An officer or employee has a "prohibited financial interest" in a contract with the CITY or in the sale to the CITY of land, materials, supplies or services, if any of the following individual(s) or entities is party to the contract or sale: a CITY officer or employee; his or her parent, child or spouse; a business entity in which the officer or employee or his or her parents, child or spouse owns ten (10) percent or more of the voting stock or shares of the business entity, or ten (10) percent or more of the fair market value of the business entity; or a business entity in which any individual or entity above listed is a subcontractor on a CITY contract, a partner or a parent or subsidiary business entity. 18.5 CONTRACTOR warrants and certifies, and this CONTRACT is made in reliance thereon, that it, its officers, employees and agents are neither officers nor employees of the CITY. CONTRACTOR further warrants and certifies that is has tendered to the City a Discretionary Contracts Disclosure Statement in compliance with the CITY' S Ethics Code. XIX. POLITICAL ACTIVITY 19.1 None of the performance rendered hereunder shall involve, and no portion of the funds received hereunder shall be used, either directly or indirectly,. for any political activity including, but not limited to, an activity to further the election or defeat of any candidate for public office or for any activity undertaken to influence the passage, defeat or final content of local, state or federal legislation. XX. PUBLICITY 20.1 When appropriate, as determined by and upon written approval of CITY, CONTRACTOR shall publicize the activities conducted by CONTRACTOR pursuant to the terms of this CONTRACT. In any news release, sign, brochure, or other advertising medium disseminating information prepared or distributed by or for CONTRACTOR, however, mention shall made of HUD funded CITY participation having made the Project possible. XXI. PUBLICATIONS 21.1 All published materials and written reports submitted pursuant to this CONTRACT shall be originally developed unless otherwise specifically provided for herein. If material not originally developed is included in a report, however, said material shall have its source identified, either in the body of the report or by footnote, regardless of whether the material is in a verbatim or extensive paraphrase format. 21.2 All published materials submitted pursuant to this Project shall include the following reference on the front cover of title page. "This document was prepared in accordance with the City of Fort Worth's Lead Based Paint Hazard Control Program (A.L.E.R.T. Project), with funding received from the United States Department of Housing and Urban Development." XXII. RIGHTS TO PROPOSAL AND CONTRACTUAL MATERIAL 22.1 All finished or unfinished reports, documents, data, studies, surveys, charts, drawings, maps, models, photographs, designs, plans, schedules, or other appended documentation to any proposal or contract, and any responses, inquiries, correspondence and related material submitted by CONTRACTOR, shall, upon receipt, become the property of CITY. XXIII. DEBARMENT CLAUSE 23.1 CONTRACTOR certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this CONTRACT by HUD or any other federal department or agency. XXIV. SUB -CONTRACTING 24.1 Any other clause of this CONTRACT to the contrary notwithstanding, none of the work or services covered by this CONTRACT shall be sub -contracted without the prior written approval of CITY. Any work or services approved for sub -contracting hereunder, however, shall be sub -contracted only by written contract or agreement and, unless specific waiver is granted in writing by CITY, shall be subject by its terms to each and every provision of this CONTRACT. Compliance by Subcontractors with this CONTRACT shall be the responsibility of CONTRACTOR. 24.2 CONTRACTOR shall ensure that all Subcontractors are certified, reputable and competent. 12 24.3 CONTRACTOR shall provide to CITY copies of all certificates of its employees, Subcontractors, and their employees who will be performing work which requires a certificate under the Texas Environmental Lead Reduction Rules. Such certification shall provide the name of the certified worker and the certificate number. 24.4 CONTRACTOR agrees that no subcontract approved pursuant to this CONTRACT shall provide for payment on a "cost plus a percentage of cost" basis. 24.5 Despite CITY approval of a subcontract, CITY shall in no event be obligated to any third party, including any Subcontractor of CONTRACTOR, for performance of work or services, nor shall CITY funds ever be used for payment of work or services performed prior to the date of CONTRACT execution or extending beyond the date of CONTRACT termination. XXV. CHANGES AND AMENDMENTS 25.1 Except when the terms of this CONTRACT expressly provide otherwise, any alterations, additions, or deletions to the terms hereof shall be by amendment in writing executed by both CITY and CONTRACTOR. 25.2 Whenever and as often as deemed necessary by CITY, CITY may request and require changes to CONTRACTOR's Work Write -Up. Changes as requested or required by CITY, however, must be by written amendment and may incorporate increases to the terms, provisions and conditions of this CONTRACT. 25.3 Except pursuant to (a) prior submission by CONTRACTOR of detailed information regarding budget and Project revisions and (b) prior written approval thereof by CITY, CONTRACTOR shall neither make transfers between or among line items set forth in the Work Write -Up. Instead, CONTRACTOR shall request Work Write -Up revisions in writing and in a form prescribed by CITY; such request for revisions, however, shall not increase the total monetary obligation of CITY as provided for pursuant to this CONTRACT, nor shall said revisions significantly change the nature, intent, or scope of the Project funded hereunder. 25.4 In the event that the level of funding .for CONTRACTOR or for the Project is altered, CONTRACTOR shall submit, immediately upon request by CITY, a revised Work Write -Up and Project information so as to enable re-evaluation by CITY of the original funding levels set forth in the original Work Write -Up. 25.5 It is understood and agreed by the Parties that changes in applicable local, state and federal rules, regulations or laws may occur during the term of this CONTRACT and that any such changes shall be automatically incorporated into this CONTRACT without written amendment, and shall become apart of this CONTRACT as of the effective date of the said rule, regulation or law. 25.6 CONTRACTOR agrees to notify CITY in writing of any proposed change in physical location for Work to be performed pursuant to the terms of this CONTRACT. Such notice shall be provided by CONTRACTOR to CITY at least thirty (30) calendar days in advance of the proposed change. 13 XXVII SUSPENSION OF FUNDING 26.1 Upon determination by CITY of WINRAC I OR's failure to timely and properly perform pursuant to the provisions of this CONTRACT, CITY, without limiting or waiving any rights it may otherwise have, may, at its discretion and upon five (5) Business Days' written notice to CONTRACTOR, withhold further payments to CONTRACTOR. City's notice shall specifically set forth CONTRACTOR'S default or failure as well as the action required for cure. 26.2 The period of funding suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. Upon expiration of the suspension period: (A) Should CITY determine that the default or deficiency has been cured, CONTRACTOR may be restored to full compliance status and paid all eligible funds withheld during the suspension period; or (B) Should CITY determine continued non-compliance, the provisions of Article XXVII hereunder may be effectuated. XXVII. TERMINATION 27.1 "Termination" of this CONTRACT shall mean termination by expiration of the CONTRACT term or earlier termination pursuant to any of the provisions hereof. 27.2 CITY may terminate this CONTRACT for any of the following reasons: (A) Neglect or failure by CONTRACTOR to perform or observe any of the terms, conditions, covenants or guarantees of this CONTRACT or of any written contract or amendment between CITY and CONTRACTOR; (B) Termination or reduction of funding of the A.L.E.R.T. Project by HUD; (C) Failure by CONTRACTOR to cure, within the period prescribed pursuant to the above Article XXVI of this CONTRACT, any default or deficiency which was the basis for said suspension of funding; (D) Finding by CITY that CONTRACTOR: (1) Is in such unsatisfactory financial condition as to endanger performance under this CONTRACT, including, but not limited to: (a) The apparent inability of CONTRACTOR to meet its financial obligations; (b) Items that reflect detrimentally on the credit worthiness of CONTRACTOR, including, but not limited to, liens, encumbrances, and the like on the assets. of CONTRACTOR. 14 (2) Has allocated inventory to this CONTRACT substantially exceeding reasonable requirements; or (3) Is delinquent, in the ordinary course of business, in the payment of state or federal taxes or in the payment of costs of performance of this CONTRACT; (E) Appointment of a trustee, receiver or liquidator for all or a substantial part of CONTRACTOR's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against CONTRACTOR; (F) The entry by a court of competent jurisdiction of a final order providing for the modification or alteration of the rights of CONTRACTOR'S creditors; (G) Inability by CONTRACTOR to conform to changes in local, state and federal rules, regulations and laws as provided for in Article IV and in paragraph number 25.5 of this CONTRACT; (H) Violation by CONTRACTOR of any rule, regulation or law to which CONTRACTOR is bound under the terms of this CONTRACT; and (I) Failure to complete the Project in accordance with the completion date set forth in the Notice to Proceed issued by CITY to CONTRACTOR. 27.3 CITY may terminate this CONTRACT for convenience at any time after which CONTRACTOR shall be paid an amount not to exceed the total accrued expenditures as of the effective date of termination. In no event, however, will compensation to CONTRACTOR exceed an amount which bears the same ratio to the total compensation as the services actually performed by CONTRACTOR bears to the total services required of CONTRACTOR, less payments previously made. 27.4 CONTRACTOR may terminate this CONTRACT for any of the following reasons: (A) Cessation of outside funding upon which CONTRACTOR depends for performance hereunder; or (B) Upon the dissolution of CONTRACTOR'S organization, provided such dissolution was not occasioned by a breach of this CONTRACT. 27.5 Upon a decision to terminate by either CITY or CONTRACTOR, written notice of such, and the effective date thereof, shall be immediately provided to the other Party. 27.6 Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw, or otherwise terminate any outstanding orders or subcontracts that relate to the performance of this CONTRACT. To this effect, CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expense, encumbrances or obligations whatsoever incurred after the date of termination. 27.7 Upon receipt of notice to terminate, all finished or unfinished documents, data, studies, surveys, charts, drawings, maps, models, photographs, designs, plans, schedules, or other appended documentation to any proposal or contract, prepared by or on behalf of CONTRACTOR under this 15 CONTRACT shall, at the option of CITY, and in accordance with Article XXII, become the property of CITY and shall, if requested by CITY, be delivered by CONTRACTOR to CITY in a timely and expeditious manner. 27.8 Within thirty (30) days after receipt of notice to terminate, CONTRACTOR shall submit a statement to CITY indicating in detail the services performed under this CONTRACT prior to the effective date of termination. 27.9 Any termination of this CONTRACT as herein provided shall not relieve CONTRACTOR from the payment of any sum(s) that shall then be due and payable or become due and payable to CITY hereunder or as provided for at law or in equity, or any claim for damages then or therefore accruing against CONTRACTOR hereunder or by law or in equity, and any such termination shall not prevent CITY from enforcing the payment of any such sum(s) or claim(s) for damages from CONTRACTOR. Instead, all rights, options, and remedies of CITY contained in this CONTRACT shall be construed and held to be cumulative and no one of them shall be exclusive of the other, and CITY shall have the right to pursue any one or all such remedies or any such other remedy or relief which may be provided by law or in equity whether or not stated in this CONTRACT. 27.10 Should this CONTRACT be terminated by either party hereto for any reason, including termination under Section 27.3 of this CONTRACT, if the work required hereunder of CONTRACTOR is not fully competed to the satisfaction of CITY in accordance with the terms of this CONTRACT, CONTRACTOR shall refund any and all sums of money paid by CITY to CONTRACTOR within ten (10) Business Days of City's written request thereof. 27.11 Upon termination of this CONTRACT by CITY under paragraph number 27.2(A), CONTRACTOR shall be barred from future CONTRACTS with CITY absent the express written consent of the City Manager of CITY, or his or her designate. NOTIFICATION OF ACTION BROUGHT 28.1 In the event that any claim, demand, suit, proceeding, cause of action or other action (hereinafter collectively referred to as "claim") is made or brought against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) Business Days after it being notified. CONTRACTOR's notice to CITY shall state the date and hour of notification to CONTRACTOR of the claim; the names and addresses of those instituting or threatening to institute the claim, the basis of the claim; and the name(s) of any others against whom the claim is being made or threatened. Written notice pursuant to this Article shall be delivered either personally or by mail in accordance with Article XXXV of this CONTRACT. XXIX. ASSIGNMENTS 29.1 CONTRACTOR shall not transfer, pledge or otherwise assign this CONTRACT, any interest in and to same, or any claim arising thereunder, without first procuring the written approval of CITY. Any attempt at transfer, pledge or other assignment shall be void ab initio and shall confer no rights upon any third person. XXX. SEVERABILITY OF PROVISIONS 30.1 If any clause or provision of this CONTRACT is held invalid, illegal or unenforceable under present or future federal, state or local laws, including but not limited to the CITY Charter, CITY Code, or CITY ordinances, then and in that event it is the intention of the Parties that such invalidity, illegality or unenforceability shall not effect any other clause or provision hereof and that the remainder of this CONTRACT shall be construed as if such invalid, illegal or unenforceable clause or provision was never contained herein; it is also the intention of the Parties that in lieu of each clause or provision of this CONTRACT that is invalid, illegal, or unenforceable, there be added as a part of the CONTRACT a clause or provision as similar in terms to such invalid, illegal or unenforceable clause or provision as may be possible, legal, valid and enforceable. XXXI. RENEWAL NOT AUTOMATIC 31.1 Funding under this CONTRACT and any amendments or waivers that may be made or granted hereunder shall not be automatically renewed on the anniversary date of this CONTRACT. To the contrary, funding of any project requiring contract execution shall be provided only upon approval of the CITY COUNCIL. XXXII. NON -WAIVER OF PERFORMANCE 32.1 No waiver by CITY of a breach of any of the terms, conditions, covenants or guarantees of this CONTRACT shall be construed or held to be a waiver of any succeeding or preceding breach of the same or any other term, condition, covenant or guarantee herein contained. Further, any failure of CITY to insist in any one or more cases upon the strict performance of any of the covenants of this CONTRACT, or to exercise any option herein contained, shall in no event be construed as a waiver or relinquishment for the future of such covenant or option. In fact, no waiver, change, modification or discharge by either Party of any provision of this CONTRACT shall be deemed to have been made or shall be effective unless expressed in writing and signed by the Party to be charged. 32.2 No act or omission of CITY shall in any manner impair or prejudice any right, power, privilege, or remedy available to CITY hereunder or by law or equity, such rights, powers, privileges, or remedies to be always specifically preserved hereby. 32.3 No representative or agent of CITY may be waive the effect of the provisions of this Article. 33.1 This CONTRACT constitutes the final and entire agreement between the Parties and contains all of the terms and conditions agreed upon by them. No other agreements, oral or otherwise, regarding 17 the subject matter of this CONTRACT shall be deemed to exist or to bind the Parties unless same be in writing, dated subsequent to the date hereof, and duly executed by the Parties. XXXI V . INTERPRETATION 34.1 In the event any disagreement or dispute should arise between the Parties pertaining to the interpretation or meaning of any part of this CONTRACT or its governing rules, regulations, laws, codes or ordinances, CITY, as the Party ultimately responsible to HUD for matters of compliance, shall have the final authority to render or secure an interpretation. XXXV. NOTICES 35.1 For purposes of this CONTRACT, all official communications and notices among the parties shall be deemed sufficient if in writing and mailed, registered or certified mail, postage prepaid, to the addresses set forth below: CITY: Jerome C. Walker, Director Housing Department 1000 Throckmorton St. Fort Worth, Texas 76102 CONTRACTOR: G I Construction 3617 Martin Street Fort Worth, TX 76119 Notice of changes of address by either Party must be made in writing delivered to the other Party's last known address within five (5) business days of such change. XXXVI. PARTIES BOUND 36.1 This CONTRACT shall be binding on and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns, except as otherwise expressly provided herein. XXXVII. GENDER 37.1 Words of gender used in this CONTRACT shall be held and construed to include the other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires. XXXVIII. RELATIONSHIP OF PARTIES 38.1 Nothing contained herein shall be deemed or construed by the Parties or by any third party, as creating the relationship of principal and agent, partners, joint ventures' or any other similar such relationship between the parties hereto. XXXIX. TEXAS LAW TO APPLY 39.1 THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES CREATED HEREUNDER ARE PERFORMABLE IN TARRANT COUNTY, TEXAS. XL. LIQUIDATED DAMAGES 40.1 CONTRACTOR and CITY recognize that time is of the essence of this CONTRACT and that CITY will suffer financial loss if the Project is not completed within the times specified in the Notice to Proceed (hereinafter "NTP"). The Parties also recognize the delays, expense, and difficulties in proving in a legal proceeding the actual loss suffered by CITY if the Project is not completed on time. Accordingly, instead of requiring such proof, CITY and CONTRACTOR agree that as liquidated damages for delay only, and not as a penalty, CONTRACTOR shall pay CITY $100.00 for each day that expires after the time specified in the NTP and shall continue to pay such amount until the Project is completed. FAILED CLEARANCES 41.1 CONTRACTOR shall be held responsible for all costs associated with re -testing, which includes but is not limited to wipe samples (at cost not to exceed $25.00 per sample) and consultant's time (at cost of $75.00 per hour, if a consultant is retained), due to failure to clear Project of all lead hazards. XLII. CAPTIONS 42.1 The captions contained in this CONTRACT are for convenience of reference only, and in no way limit or enlarge the terms and/or conditions of this CONTRACT. CITY OF FORT WORTH HOUSING DEPARTMENT INDEMNIFICATION AND RELEASE STATEMENT To the extent permitted by law, CONTRACTOR assumes entire responsibility and liability for losses, expenses, demands, and claims in connection with or arising from any injury, or alleged injury (including death) to any person, or damage, or alleged damage to property sustained or alleged to have been sustained in connection with or to have arisen from or resulting from the performance of services or operations by CONTRACTOR, and including losses, expenses, or damages sustained by CITY, its agents, representatives, and employees from any and all such losses, expenses, damages, demands, and claims, and agrees to pay the cost to defend any suit or action brought against them, or any of them, based on any 19 such alleged injury or damage, and to pay all damages, costs, and expenses in connection with or resulting there from. CONTRACTOR covenants and agrees to FULLY INDEMNIFY and HOLD HARMLESS the CITY and its officers, employees, volunteers and representatives, individually or collectively, from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death and property damage, made upon the CITY directly or indirectly arising out of, resulting from or related to CONTRACTOR'S activities under this CONTRACT, including any acts or omissions of CONTRACTOR, any agent, officer, director, representative officers, agents, employees, directors and representatives while in the exercise of performance of the rights or duties under this CONTRACT. The indemnity provided for in this paragraph shall not apply to any liability resulting From the negligence of CITY, its officers or employees. The provisions of this indemnification are solely for the benefit of the Parties and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. CONTRACTOR shall promptly advise the CITY in writing of any claim or demand against the CITY or CONTRACTOR known to CONTRACTOR related to or arising out of CONTRACTOR'S activities under this CONTRACT. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] RELEASE Contractor agrees to and shall release CITY, its agents, employees, officers, and legal representative from any liability arising out of the sole and/or concurrent negligence of the CITY for injury, death, damage or loss to persons or property sustained in connection with or incidental to performance under this CONTRACT, even if the injury, death, damage, or loss is caused by the CITY'S sole or concurrent negligence and / or the CITY' S strict products liability or strict statutory liability. CONTRACTOR By. A0�- a �� o 5 Aut o ized Representative Date EXECUTED this the day of GZJA UUx- 520084 CITY OF FORT WORTH, TEXAS By: APPROVED AS TO FORM: Assistant City Attorney Attachments: Exhibit "A" Work Write -Up Atte�t�d By: GTO CONSTRUCTION J i r Villagomez Owner 21