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Home My WebLink AboutContract 61514-PM2CSC No. 61514-PM2 CONTRACT DOCUMENTS FOR STREET LIGHT IMPROVEMENTS LONE STAR AT LIBERTY TRAILS PHASE 1B BROOKFIELD WATER CONTROL AND IMPROVEMENT OF .......... III *: i KEVIN�M.•MURPHY..i 01 ................................. 144318 //i O.c�'•.��CENSE�•'�C��.�� 1%%%S%NAL DISTRICT OF DENTON COUNTY CITY OF FORT WORTH ETJ DENTON COUNTY, TEXAS OWNER/DEVELOPER: D. R. HORTON — TEXAS, LTD. DFW WEST DIVISION 6751 North Freeway Fort Worth, Texas 76131 Tel: 817-230-0800 Fax: 817-230-0896 ENGINEER: Pape -Dawson Engineers, Inc. 201 Main St., Suite 901 Fort Worth, Texas, 76102 Tel: 817-870-3668 Attention: Kevin M. Murphy, P.E. TBPE Firm Registration #470 Pape -Dawson Project No. 61290-01 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX CONSTRUCTION CONTRACT TABLE OF CONTENTS Pate No. RECITALS- ...................................................................................................4 ARTICLE 1 —DEFINITIONS ......................................................................................... 4 ARTICLE 2 — CONSTRUCTION................................................................................... 5 ARTICLE 3 — CONTRACT PRICE AND PAYMENT .................................................. 6 ARTICLE 4 — CONTRACT DOCUMENTS.................................................................. 7 ARTICLE 5 — SURVEYS, STAKES, AND PERMITS..................................................7 ARTICLE 6 —EXAMINATION OF JOB SITE.............................................................. 9 ARTICLE 7 — TESTING, INSPECTIONS AND CORRECTION OF WORK .............. 9 ARTICLE 8 — CHANGES IN WORK..........................................................................10 ARTICLE 9 — TIME FOR COMPLETION: EXTENSIONS OF TIME......................10 ARTICLE 10 — USE OF LAND BY OWNER..............................................................12 ARTICLE 11 — TRAFFIC CONTROL AND CLEAN UP...........................................12 ARTICLE 12 — SUBCONTRACTORS........................................................................12 ARTICLE 13 — PROTECTION AND CHARACTER OF WORKMEN......................13 ARTICLE 14 — PROTECTION OF PROJECT.............................................................14 ARTICLE 15 — INDEMNITY AGREEMENT.............................................................14 ARTICLE 16 — INSURANCE TO BE MAINTAINED BY CONTRACTOR .............15 ARTICLE 17—NO WAIVER.......................................................................................17 ARTICLE 18 — WARRANTY.......................................................................................17 ARTICLE 19 — TERMINATION OF CONTRACTOR BY OWNER .........................17 1 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc TABLE OF CONTENTS, Continued Paze No. ARTICLE 20 — OTHER CONTRACTORS.................................................................. 21 ARTICLE 21 — ATTORNEY'S FEES..........................................................................21 ARTICLE 22 — NOTICES............................................................................................. 21 ARTICLE 23 — ASSIGNMENTS..................................................................................22 ARTICLE 24 — GENERAL PROVISIONS.................................................................. 22 ARTICLE 25 — NON-DISCRIMINATION.................................................................. 23 ARTICLE 26 — TAXES.................................................................................................23 ARTICLE 27 — BOOKS AND RECORDS................................................................... 24 ARTICLE 28 — BOYCOTTING ISRAEL & ANTI -TERRORISM VERIFICATION. 24 ARTICLE 29 — ETHICS................................................................................................ 24 ARTICLE 30 — ENVIRONMENTAL PROTECTION ................................................. 25 ARTICLE 3' - PREVAILING WAGE ACT................................................................. 25 SIGNATUREPAGE ....................................................................................................26 2 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc TABLE OF CONTENTS, Continued LIST OF EXHIBITS EXHIBIT A IMPROVEMENTS EXHIBIT B CONTRACT DOCUMENTS EXHIBIT C SPECIFICATIONS EXHIBIT D ESTIMATED QUANTITIES AND UNIT COSTS EXHIBIT E SPECIAL CONDITIONS EXHIBIT F INVOICING INSTRUCTIONS EXHIBIT G SURVEY STAKING PROVIDED BY OWNER EXHIBIT H PROHIBITION ON BOYCOTTING ISRAEL EXHIBIT I FORM 1295 EXHIBIT J GEOTECHNICAL REPORT 3 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specifications\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT, referred to as "Contract," dated as of the date on the Contract Signature Page by and between the "Owner" designated on the Contract Signature Page and the "Contractor" designated on the Contract Signature Page is entered into with reference to the following recitals: A. Owner holds title to the land shown in the "Contract Documents" (as that term is hereinafter defined). The land described is referred to as the "Premises". B. Owner desires to have improvements constructed on portions of the Premises. The Improvements consist of the improvements described on Exhibit A to this Contract. C. Owner desires to engage Contractor and Contractor desires to be engaged as an independent contractor to perform the Work hereinafter described. NOW, THEREFORE, in consideration of the mutual promises contained herein the parties hereto agree as follows: ARTICLE 1 — DEFINITIONS 1.1 Whenever used in this Contract the following terms shall have the meaning hereinafter set forth: 1.1.1 "Improvements" shall mean the improvements to be constructed by Contractor pursuant to this Contract as described in Exhibit A. 1.1.2 "Work" shall mean the labor, material, and service required by the Contractor to construct the Improvements. 1.1.3 "Contract Documents" shall mean and include the following documents to the extent that the documents have been prepared: (1) This Construction Contract; (ii) The approved project drawings, specifications, general conditions and special conditions specifically referenced in this Construction Contract. (The special conditions, if any, are attached hereto as Exhibit E and incorporated herein by reference.) (iii) All addenda and modifications incorporated into or otherwise expressly made a part of any of the documents enumerated above before execution of this Contract; and 4 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc (iv) Any modification, change order or written order for a change made or issued pursuant to the terms and conditions of this Contract. An enumeration of the Contract Documents appears in Exhibit B to this Contract. The Specifications are attached hereto as Exhibit C and incorporated herein by reference. 1.1.4 "Engineer" shall mean the Design Engineer of Record and his authorized representatives. 1.1.5 "Governing Public Authority" shall mean the governmental authority such as: District, Town, City, County, State and/or Federal government having jurisdiction over the Project whether it being public or private to include any and all of the Project's parts thereof. 1.1.6 "Subcontractor" shall mean any independent contractor having a direct contract with Contractor to furnish equipment, materials, or labor, labor and materials, or labor and equipment for the Improvements. 1.1.7 "Construction Manager" shall mean the person designated by Owner, who shall be the Owner's agent for making decisions or giving approvals at the Project Site which may be necessary or prudent for the smooth flow of the Work. All notices required to be given by Contractor to Owner in this Contract shall be deemed properly delivered to Owner when delivered to Construction Manager and Contractor shall be entitled to rely on Construction Manager's instruction and approvals. Owner shall have the right to change the Construction Manager at any time. 1.1.8 "Progress Payment" shall mean any installation of the Contract price payable to Contractor in the manner specified herein. 1.1.9 "Project Site" shall mean those portions of the Premises reasonably required for Contractor's use in constructing the Improvements. ARTICLE 2 — CONSTRUCTION 2.1 Contractor shall furnish and/or perform, or, subject to Owner's right to approve any subcontractor as hereinafter set forth, cause to be furnished and/or performed, all labor, materials and equipment, of every kind and description necessary to construct the Improvements in a first-class and good workmanlike manner in strict accordance with the requirements and provisions of the Contract Documents. 2.2 Contractor shall prepare and submit, after instructions from Owner to commence, an estimated progress schedule for constructing the Improvements to be approved by the Construction Manager and Owner. 5 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 2.3 Contractor agrees to cooperate with the Construction Manager, as Owner's agent. The Construction Manager is authorized to give instructions, on Owner's behalf, to facilitate the smooth flow of work. 2.4 All drawings, specifications, descriptions, plats, field notes, reports, designs, samples and other documents or materials compiled or furnished by Contractor in the course of or as a result of performing the Work shall be the property of Owner and may be used by Owner for any purpose whatsoever at Owner's sole risk and expense. ARTICLE 3 — CONTRACT PRICE AND PAYMENT 3.1 Unit Price. Owner shall pay Contractor for each item of the Work a unit price, as shown in Exhibit D, attached to this Contract. These unit prices shall be considered inclusive of all work. This work consists of delivery of the Contractual Improvements complete. 3.2 Progress Pavments. Contractor may submit monthly progress billings for "Progress Payments" for one hundred percent (100%) of the value of the portion of the Work performed (excluding stored materials) during each monthly period, by following the format and procedure set forth in Exhibit F, Invoicing Instructions. Progress billings shall be submitted to the Construction Manager by the 251h day of the month. Subject to the provisions of this Article, ten percent (10%) of all Progress Payments shall be retained by Owner until Contractor's scope of work has been completed and accepted by the Owner and the Governing Public Authority. Such statement shall be categorized according to the code and unit item listing set forth on Exhibit D attached to this Contract. Such statement shall show the retained percentage. Subject to the aforesaid, Progress Payments will be made within twenty (20) days following Owner's receipt of Contractor's statement. Progress Payments for Improvements shall not be construed as evidence of acceptance of any part of Contractor's work. Contractor agrees to furnish, if and when required by Owner, payroll affidavits, receipts, vouchers, releases or claims for labor and material by Contractor and/or by subcontractors or other persons performing work or furnishing materials to Contractor or any subcontractor, all in form of content of satisfactory to Owner. 3.3 Withholding of Pavment. Owner may withhold from any Progress or other payment due Contractor under the terms of this Contract such amount as in the reasonable judgment of Owner shall be necessary to protect Owner from loss because of (i) defective work not remedied, (ii) lien claims filed, or evidence presented to Owner indicating a reasonable probability that such claims will be filed, by persons or entities who supplied labor, materials, or equipment used in the construction of the Improvements, (iii) failure of Contractor properly to pay subcontractors and persons supplying labor, materials, or equipment for use in the construction of the Improvements, (iv) damage caused by Contractor or its subcontractor, (v) reasonable evidence that the work cannot be completed for the unpaid balance due of the Contract Price, (vi) failure of Contractor to substantially comply with the material terms of this Contract. When the above causes have been removed, payment shall be made for the amount withheld because of them. C S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 3.4 Final Pavment. Final payment, constituting the entire unpaid balance of the Contract price shall be made by Owner to Contractor when (i) the Contractor's Work has been fully performed and accepted by both the Governing Public Authority, Owner, and Engineer; and (ii) Contractor has furnished to Owner a final affidavit, in the form attached hereto, that payrolls, bills for materials and equipment, payments due to subcontractors, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered, have been paid or otherwise satisfied. Contractor agrees to obtain lien waivers from all Subcontractors on the project. ARTICLE 4 — CONTRACT DOCUMENTS 4.1 The Contract Documents are intended to complement each other and any items required by any one such document shall be deemed to be required by all such documents. Any word used in the Contract Documents, or any of them, which has a well-known technical or trade meaning shall be deemed to have been used in such document or documents in accordance with such meaning. In the event of any conflict between different provisions of the Contract Documents, Contractor shall advise Owner of such conflict and Owner shall direct Contractor how to proceed with regard to the matter about which there is such conflict. Contractor shall maintain one complete set of the Contract Documents at the Job Site which shall be available to the Construction Manager at all times and upon which the Contractor shall record all change and field adjustments. 4.2 Contractor understands and acknowledges that the detailed information contained in the Contract Documents is shown or stated therein with as much accuracy as could be obtained at the time such documents were prepared but that the exact accuracy of such detailed information is not guaranteed and the exact locations, measurements, and levels of the various items shown on the Contract Documents will be governed by the physical requirements of the Premises and the Improvements. 4.3 Contractor shall carefully examine all drawings and specifications for the Improvements before commencing the construction hereof and promptly notify Owner in writing of any observed discrepancies in such documents before commencing construction, but Contractor shall not be responsible for verifying the accuracy or completeness of such drawings and specifications prepared by Owner's engineers, architects or others. ARTICLE 5 — SURVEYS, STAKES, AND PERMITS 5.1 Unless otherwise provided in the Contract Documents, Owner, at its own cost and expense, shall furnish all land surveys of the Premises required for the performance of this Contract, including surveys showing the general location of any easements or public utility lines on the Premises. Owner shall install points, benchmarks, and stakes on the ground which are described in detail in Exhibit G, "Survey Staking Provided by Owner" and incorporated herein by reference. Contractor shall give Construction Manager at least twenty-four (24) hours prior notice of any such staking required by Contractor. 7 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 5.2 Contractor shall be responsible for all layouts not described in Exhibit G and shall protect and preserve the established reference points and shall make no changes of relocation or said points without the prior written approval of Owner. 5.3 Contractor shall be liable for the destruction or loss of any such benchmarks, reference points, or stakes caused by the negligent or intentional act or omission of Contractor or Contractor's employees, agents or representatives. 5.4 Contractor shall secure all permits from Governing Public Authority at his expense for the proper execution of the Work. Inspection fees, if any, shall be paid by the Owner. 5.5 Contractor shall not enter property adjacent to the Premises for any purpose without obtaining written permission to do so from the owner of such adjacent property and shall provide written notice or evidence of same to Owner. Contractor shall be responsible for the preservation of all public property, wetlands, floodplains, trees, monuments, structures, fences, and improvements, along or adjacent to any street and/or right-of-way, from damages from Contractor's Work and shall use every precaution necessary to prevent damage of all monuments and property marks until an authorized agent of Owner has witnessed or otherwise referenced their location and shall not remove them until directed. Locations or utilities shown in the Contract Documents are general locations only and Contractor shall be responsible for determining the precise location of any and all utilities on the Premises prior to commencing the Work. Contractor shall also be responsible for calling for locations and locating existing utilities not documented or shown on plans. In the event Contractor shall disturb any landscaped or hardscaped areas while performing the Work, Contractor shall return those areas to their original condition prior to the Work being fully performed. Rectification of damage or destruction to the landscaping or hardscaped areas forming part of the adjacent properties shall be at Contractor's sole cost and expense. 5.6 Contractor shall, at all times, so conduct the Work as to insure the least possible obstruction to traffic and inconvenience to the general public and the residents in the vicinity of the Work, and to insure the protection of persons and property. Roads or streets shall not be closed to the public except with permission of the proper authorities. Fire hydrants and water valves on or adjacent to the Work shall be kept accessible to fire- fighting equipment at all times. Temporary provisions shall be made by Contractor to ensure the use of sidewalks and the proper functioning of all gutters, sewer inlets, drainage ditches and irrigation ditches, which shall not be obstructed. Contractor is to advise Owner should any roads, streets, or other existing improvements require closure. 5.7 Contractor shall provide and maintain such sanitary accommodations for the use of its employees and those of its subcontractors as may be necessary to comply with the requirements and regulations of the local and state departments of health and Owner. 8 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc ARTICLE 6 — EXAMINATION OF JOB SITE 6.1 Contractor has by careful examination ascertained (i) the nature and location of the Improvements, (ii) the surface conformation of the ground on which the Improvements are to be constructed, (iii) the character, quality, and quantity of the materials, equipment and facilities necessary to complete the Improvements, and (iv) the general and local observable conditions pertaining to the Improvements. Contractor enters this Contract solely because of the results of such examination and not because of any representations pertaining to the Improvements or the completion thereof made to Contractor by Owner or any agent of Owner and not contained in this Contract. Owner agrees that subsurface or other presently unknown conditions may be encountered during performance of the Work which may result in extension of time for completion and increase in compensation due Contractor. Contractor agrees to notify Owner promptly in writing upon encountering any such condition. Contractor will advise Owner in writing of the extent of the time delays and provide revised schedules of anticipated completion dates. ARTICLE 7 — TESTING, INSPECTIONS AND CORRECTION OF WORK 7.1 Should the Owner, the Contract Documents, or any law, ordinance, or Governing Public Authority require that any portion of the Work be tested or inspected, Contractor shall give notice to Owner (or Governing Public Authority if the Governing Public Authority is the inspecting body) when such portion is ready for such testing, inspection, or approval, or, if the testing, inspection or approval is to be made or given by a person other than Owner, of the time, place, and date when such testing, inspection or approval is to be made or given. Should any portion of the Work be covered up before inspection has taken place, the Contractor, at Contractor's sole cost and expense, shall uncover such portion of the Work for inspection as required by Owner or Governing Public Authority. 7.2 Owner or Governing Public Authority may request reexamination of any portion of the Work and Contractor must uncover such Work. Should such portion of the Work be found on such reexamination not to conform to the Contract Documents, Contractor shall bear the full cost of uncovering and replacing such portion. Should such portion of the Work on such reexamination be found to conform to the Contract Documents, Owner shall pay all costs of uncovering and replacing such portion. 7.3 Contractor shall promptly correct any portion of the Work that has been damaged or not performed in accordance with this Contract. If Contractor fails to make such corrections or fails to carry out the Work in accordance with this Contract, then Owner may give Contractor written notice to do so; and if Contractor fails within a seven (7) day period after receipt of such written notice to commence and continue correction and performance with diligence and promptness, then Owner may, without prejudice to other remedies Owner may have, correct such deficiencies or perform such Work; in such case an appropriate Change Order shall be issued deducting from payments then or thereafter due to Contractor the cost of correcting such deficiencies or performing such Work. If payments then or thereafter due to Contractor are not sufficient to cover such amounts, E S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc Contractor shall pay the difference to Owner. Contractor shall be required to pay such difference immediately upon written demand by Owner. ARTICLE 8 — CHANGES IN WORK 8.1 Without invalidating this Contract and without notice to any surety or sureties on any bond or bonds required by Contractor, Owner may order modifications in the Work or may order additional work not shown in the Contract Documents to be performed by Contractor and such modifications or additional work may entitle Contractor to extra compensation. Such modifications or extra work shall be authorized by a written Change Order, signed by Owner, such written Change Order to be executed prior to such modifications or extra work being commenced. 8.2 If modifications in the Work or additional work not shown on the Contract Documents are authorized pursuant to Paragraph 8.1 above, such additional work or modification shall be performed by Contractor and the cost thereof added to the Contract Price and paid by Owner upon completion of such additional work or modification. ARTICLE 9 — TIME FOR COMPLETION: EXTENSIONS OF TIME 9.1 Owner shall give Contractor written notice to proceed and Contractor shall complete the work in the number of working days specified on the Exhibit D of the Contract. Contractor shall provide Owner a schedule prior to commencing work. Contractor shall commence work on the Improvements in accordance with schedule and shall, unless delayed by one of the causes stated in Paragraph 9.4, below, and documented as mentioned in Paragraph 9.5 below, work diligently and substantially continuously until completion of the Improvements. 9.2 A working day is defined as a calendar day not including Saturdays, Sundays, or those legal non -days as specified in the list prepared by the Owner for contract purposes, in which weather or conditions not under the control of the Contractor shall permit the performance of the principal units of work underway for a continuous period of not less than seven (7) hours between 7:00 a.m. and 6:00 p.m. A principal unit of work shall be that unit which controls the completion time of the Contract. Nothing in this definition shall be construed as prohibiting the Contractor from working on Saturdays if he so desires and permission of the Governing Public Agency has been granted. If Saturday or Sunday work is permitted, working time shall be charged on the same basis as weekdays. Where the working time is expressed as calendar days or a specific date, the concept of working days shall no longer be relevant to the contract. 9.3 Substantial Completion date shall be defined in this contract and/or any of its accompanying exhibits as the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. to S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 9.4 Either party, Contractor or Owner, may be excused for delays in the performance of this Contract caused by any intentional acts or gross neglect of the other, by any acts of any public enemy, by any acts of any governmental agency, by war or war defense conditions, by fires, by unusual delays in transportation, by labor disputes, or by any other cause resulting in delay of the Work which is beyond such party's reasonable control. Each party shall use due diligence to avoid any such delay or default and to resume performance under this Contract as promptly as possible after any such delay. 9.5 The completion date may only be changed for a delay of one of the causes mentioned in Paragraph 9.4. Any claim for an extension in the completion date by Contractor shall be based on written notice and supporting data delivered to Owner within thirty (30) days of the occurrence of the delaying event giving rise to the claim. Owner may allow Contractor an additional period of time to ascertain and collect more accurate data; however, all claims for adjustment of the Completion Date shall be determined by Owner. 9.6 The completion date will be extended in an amount equal to time lost due to delays beyond the control of Contractor, if a claim is made therefore and approved by Owner, as provided in Paragraph 9.5, which approval will not be unreasonably withheld or delayed. 9.7 Liquidated Damages for Failure to Complete on Time: The time of completion is the essence of this Contract. For each calendar day that any work shall remain uncompleted after the time specified in the Proposal and the Contract, or the increased time granted by the Owner, or as equitably increased by additional work or materials ordered after the Contract is signed, the sum per day given in the following schedule, unless otherwise specified in the Special Conditions, shall be deducted from the monies due the Contractor. Amount of Liquidated Damages ($) Amount of Contract ($) Less than 5,000.00 60.00 Per Day 5,000.00 to 14,999.99 80.00 Per Day 15,000.00 to 24,999.99 100.00 Per Day 25,000.00 to 49,999.99 120.00 Per Day 50,000.00 to 99,999.99 250.00 Per Day 100,000.00 to 249,999.99 500.00 Per Day 250,000.00 to 499,999.99 750.00 Per Day 500,000.00 to 999,999.99 1,000.00 Per Day More than 1,000,000.00 1,250.00 Per Day 11 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc The sum of money thus deducted for such delay, failure, or non -completion is not to be considered as a penalty, but shall be deemed, taken, and treated as reasonable liquidated damages, per calendar day that the Contractor shall be in default after the time stipulated on the Contract for completing the Work. The said amounts are fixed and agreed upon by and between Owner and Contractor because of the impracticability and extreme difficulty of fixing and ascertaining the actual damages the Owner in such event would sustain; and said amounts are agreed to be the amount of damages which the Owner would sustain and which shall be retained from the monies due, or that may become due, the Contractor under this contract; and if said monies be insufficient to cover the amount owing, then the Contractor or his surety shall pay any additional amounts due. ARTICLE 10 — USE OF LAND BY OWNER 10.1 During construction of Improvements, Owner shall have the right to use such portion(s) of the Premises as may from time to time be deemed safe for such use by the Construction Manager. The use by Owner of any such portion(s) of the Premises shall not (i) constitute an acceptance by Owner of any Improvements which may have been constructed on such portion of the Premises by Contractor, (ii) affect in any way the dates and times when payments become due to Contractor from Owner under this Contract, or (iii) prejudice Owner's rights under this Contract. The Improvements shall be deemed completed only when all Work under this Contract has been fully performed and a notice of completion of the Improvements has been duly accepted in writing by Owner and Governing Public Authority which acceptance will not be unreasonably withheld or delayed. ARTICLE 11 — TRAFFIC CONTROL AND CLEAN UP 11.1 Whenever the performance of the Work under this Contract creates a condition which could be hazardous to the public, Contractor shall take all necessary precautions and provide adequate means to protect those who must pass through, over, or adjacent to the Work. Contractor will notice Owner in writing of such risk. 11.2 During the performance of this Contract, Contractor shall keep all property adjacent to the Premises free of all accumulated rubbish and waste materials caused by Contractor's operations in performing this Contract. On completion of the Improvements, Contractor promptly shall remove all such rubbish and waste materials, structures and all equipment used by it in performing this Contract from the Premises and adjacent property. If the Contractor fails to maintain and clean the Premises, the Owner may use the procedure provided in Paragraph 7.3 and the cost shall be charged against the Contractor. ARTICLE 12 — SUBCONTRACTORS 12.1 Before subcontracting any portion of the Work, Contractor shall deliver to Owner a written list of the names of all persons and entities intended to be employed by Contractor as Subcontractors to work on Improvements. 12 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc 12.2 Should Owner have any objections to the employment of any person or entity named on the list of Subcontractors delivered to Owner pursuant to the foregoing paragraph, Owner shall serve written notice of such objection on Contractor within five (5) business days after the delivery of such list and Contractor shall substitute another person or entity acceptable to Owner in place of the person or entity to whom such objection was made. 12.3 Contractor shall not employ any person or entity as a Subcontractor on the Improvements that has been objected to by Owner. Failure of Owner to serve written notice on Contractor pursuant to Paragraph 12.2 of any objections it may have to any person or entity named on the list of Subcontractors within five (5) business days after the delivery of such list to Owner shall constitute approval by Owner of the employment of such person or entity as a Subcontractor on the Improvements. 12.4 Contractor shall be as fully responsible to Owner for the acts and omissions of its Subcontractors and of persons either directly or indirectly employed by such Subcontractors as Contractor is for the acts and omissions of persons directly employed by Contractor. 12.5 Nothing contained in this Article or in any of the Contract Documents shall create a contractual relationship of any kind between any Subcontractor and Owner. ARTICLE 13 — PROTECTION AND CHARACTER OF WORKMEN 13.1 Contractor shall take all necessary precautions for the safety of persons employed to work on the Improvements and shall without limiting the generality of the foregoing (i) comply with all applicable provisions of any federal, state, county, or municipal safety laws, ordinances, regulations, or building codes, to prevent injury to such persons while on, about, or adjacent to the Premises, (ii) properly erect and maintain at all times such safeguards for the protection of persons employed to work on the Improvements as the conditions and progress of the Work may require and (iii) conspicuously post such signs as may be necessary to warn persons employed to work on the Improvements of all latent hazards known to and created by Contractor existing on the Premises. 13.2 Contractor shall at all times be responsible for the conduct and discipline of Contractor's employees and/or any Subcontractor or persons employed by Subcontractors. All workmen must have sufficient knowledge, skill, and experience to perform properly the work assigned to them. Any supervisor, foreman, or workmen employed by Contractor or any Subcontractor who does not perform his work in a skillful manner or appears to be incompetent or to act in a disorderly or intemperate manner shall, at the written request of Owner, be discharged immediately and shall not be employed again in any portion of the Work without the approval of Owner. ARTICLE 14 — PROTECTION OF PROJECT 14.1 Contractor shall furnish and install at its own cost and expense such material and devices as are customarily furnished by similar contractors in the industry to protect the 13 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc Improvements or any part thereof from damage or destruction by rain, wind, or the elements prior to full and final completion of the Improvements. Contractor shall be responsible for such protection of the Improvements until acceptance by Owner. 14.2 In the event of an emergency endangering life or property, Contractor shall perform any work and shall furnish and install any materials and equipment necessary or prudent during the emergency. In all cases Contractor shall notify Owner of the emergency as soon as practicable, but it shall not wait for instructions before proceeding to properly protect both life and property. Unless caused by Contractor, its employees, agents or Subcontractors, Contractor shall be entitled to reasonable compensation from Owner for such materials or equipment furnished during any such emergency. ARTICLE 15 — INDEMNITY AGREEMENT 15.1 Contractor shall indemnify and hold harmless Owner, Construction Manager, and Engineer their agents, successors and assigns ("indemnitees") from and against any and all claims, and liabilities, of any nature, kind or description, including, without limitation, court costs, attorneys' fees, costs of investigation, directly or indirectly arising out of, caused by, or resulting from (in whole or in part) the performance of Contractor's work or the acts or omissions of Contractor's employees, agents, Subcontractors or representatives. THIS INDEMNITY OBLIGATION SHALL INCLUDE SUCH CLAIMS, DAMAGES OR CAUSES OF ACTION, THAT MAY BE CAUSED OR ALLEGED TO BE CAUSED IN PART BY THE NEGLIGENCE OR OTHER ACT OR OMISSION OF OWNER, CONSTRUCTION MANAGER, ENGINEER, OR ANY OTHER INDEMNITEE. WHERE SUCH CLAIMS, DAMAGES, LOSSES AND EXPENSES ARE BROUGHT BY AN EMPLOYEE OR BORROWED SERVANT OF CONTRACTOR, AND SUCH CLAIMS ARE BARRED FROM BEING BROUGHT AGAINST CONTRACTOR UNDER APPLICABLE WORKERS COMPENSATION LAWS OR PROPORTIONAL RESPONSIBILITY LAWS OR A JURY ISSUE IS REQUESTED BUT NOT GRANTED ON THE ISSUE OF CONTRACTOR'S CONTRIBUTORY NEGLIGENCE, SUCH CLAIMS SHALL BE DEEMED TO ARISE ONLY IN PART FROM THE NEGLIGENCE OF INDEMNITEES AND SUBCONTRACTOR AGREES TO INDEMNIFY THE CONTRACTOR, THE OWNER AND ALL INDEMNITEES FROM THE CONSEQUENCE OF THEIR OWN CONTRIBUTORY NEGLIGENCE. This indemnification shall not be subject to limitation by any policy of workers compensation or other insurance or damages payable or paid under any policy of insurance carried by Contractor. The indemnity set forth above includes any claims, liabilities, fines, and/or remedial action required, including attorney's fees, including strict liability arising out of any actual or alleged injury to persons or property or contamination of the environment, whether from pollution, or otherwise and whether or not prosecuted by a governmental entity. Such indemnity includes any representation or action required in connection with any administrative proceedings arising out of actual or alleged damage to the environment, including, but not limited to, notification that any indemnitee may be a potentially responsible party for any actual or alleged damage to the environment. The obligation for indemnity shall survive termination of this Contract. 14 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc THE INDEMNITY SET FORTH ABOVE SHALL INCLUDE, WITHOUT LIMITATION, ANY AND ALL PENALTIES IMPOSED ON ACCOUNT OF THE VIOLATION OF ANY LAW OR REGULATION, CAUSED OR ALLEGED TO BE CAUSED IN WHOLE OR IN PART BY CONTRACTOR'S WORK. CONTRACTOR SHALL (I) AT ITS OWN COST AND EXPENSE AND RISK, DEFEND ALL SUITS, ACTIONS OR OTHER LEGAL PROCEEDINGS THAT MAY BE BROUGHT OR INSTITUTED BY A THIRD PERSON AGAINST OWNER, CONSTRUCTION MANAGER, ENGINEER, THEIR AGENTS OR SERVANTS ON ANY SUCH CLAIM, DEMAND, OR CAUSE OF ACTION OR SUCH THIRD PERSON OR TO ENFORCE ANY SUCH PENALTY, (II) PAY AND SATISFY ANY JUDGMENT OR DECREE THAT MAY BE RENDERED AGAINST OWNER, CONSTRUCTION MANAGER, OR ENGINEER THEIR AGENTS OR SERVANTS IN ANY SUCH SUIT, ACTION, OR OTHER LEGAL PROCEEDINGS AND (III) REIMBURSE OWNER, CONSTRUCTION MANAGER, OR ENGINEER THEIR AGENTS AND SERVANTS FOR ANY AND ALL REASONABLE LEGAL EXPENSES INCURRED BY ANY OF THEM IN CONNECTION THEREWITH. ARTICLE 16 — INSURANCE TO BE MAINTAINED BY CONTRACTOR 16.1 Contractor, at its own expense, shall procure and maintain in full force and effect during the performance of this Agreement and for one year thereafter, except as noted below, the following policies of insurance: 16.1.1 Statutory Workers Compensation Insurance and Employer's Liability Insurance with a minimum of $100,000 per occurrence. 16.1.2 Broad Form Comprehensive General Liability including Completed Operations, Products Liability Premises and Operations, Contractual Liability, Personal Injury XCU, Broad Form Property Damage, Contractors' Protective, with a combined single limit of not less than $1,000,000 for each occurrence. 16.1.3 Comprehensive Automobile Liability Insurance for all motor vehicles operated by or for Contractor, owned and non -owned, with a combined single limit of not less than $1,000,000. 16.2 During the express warranty period referred to in this Contract, Contractor agrees to maintain said Comprehensive General Liability Insurance, including Completed Operations and Products Liability coverage. 16.3 Prior to commencement of the Work described in this Contract, Contractor agrees to deliver to Owner and to Construction Manager, without expense to Owner or Construction Manager, a Certificate (on an ACORD form confirming coverage) from Contractor's insurance companies which shall certify, when applicable, the following: 15 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc 16.3.1 That each said policy is then in full force and effect and the expiration date and limits thereof. 16.3.2 That each said policy shall not be canceled or materially changed without ten (10) days prior written notice to Owner or Construction Manager. 16.3.3 That each the Owner, the Construction Manager, and the Engineer is named as additional insured under each policy. 16.3.4 That such insurance shall expressly provide that "It is understood and agreed that the Owner, the Construction Manager, and the Engineer may have or may procure for its own account non-contributing insurance without notice to this insurance company and without prejudice to this insurance. Any such insurance procured by the Owner shall not be called upon for contribution with the insurance afforded by this policy. This policy shall be considered primary insurance as to Owner, the Construction Manager, and the Engineer in connection with the Work of the insured arising out of or in connection with its Contract with Owner." 16.3.5 That the parties to the described policies of insurance hereby agree to irrevocably waive subrogation, claim, or recovery against the Owner, the Construction Manager, and the Engineer in connection with the work certified. 16.4 All of the insurance required to be procured and maintained by Contractor pursuant to Paragraph 16.1 shall be issued by insurance companies acceptable to Owner. When any required insurance, due to the attainment of a normal expiration date or renewal date, shall expire, the Contractor shall supply both the Owner, the Construction Manager, and the Engineer with certificates of insurance and amendatory riders or endorsements that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as was provided by the previous policy. In the event any renewal or replacement policy, for whatever reason obtained or required, is written by a carrier other than that with whom the coverage was previously placed, or the subsequent policy differs in any way from the previous policy, the Contractor shall also furnish the Owner, the Construction Manager, and the Engineer with a certified copy of the renewal or replacement policy unless the Owner provides the Contractor with prior written consent to submit only a Certificate of Insurance for any such policy. All renewal and replacement policies shall be in form and substance satisfactory to the Owner, the Construction Manager, and the Engineer and written by carriers acceptable to the Owner. Certificates of insurance required herein shall provide a statement confirming coverage of the Owner, of the Construction Manager, and of the Engineer as an additional insured. Certificates issued "for informational purposes only" and "which confer no rights on the certificate holder", such as ACORD 24, will not be accepted. 16 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc If the Contractor fails to purchase and maintain, or require to be purchased and maintained, any insurance required herein, the Owner may, but shall not be obligated to, upon five (5) days written notice to the Contractor, purchase such insurance on behalf of the Contractor and shall be entitled to be reimbursed by the Contractor upon demand. ARTICLE 17 — NO WAIVER 17.1 Neither (i) payment to Contractor by Owner of the full Contract price for any portion of the Work, nor (ii) acceptance of the Improvements by Owner or any governmental agency having appropriate jurisdiction shall relieve Contractor of liability for defective materials or workmanship used in the construction of the Improvements or failure to construct the Improvements according to the requirements of the Contract Documents or Change Orders. Acceptance by Contractor of any payment provided for in the Contract Documents shall be a representation by Contractor to Owner that the portion of the Work required by the Contract Documents to be performed before such payment became due, has been completed by Contractor in accordance with the Contract Documents or Change Orders. ARTICLE 18 — WARRANTY 18.1 Except as provided in any special guarantees contained in the Contract Documents or any guarantees by the manufacturers of any materials used in the construction of the Improvements, Contractor shall remedy any defects due to faulty materials or workmanship and shall pay for any damage to other work resulting therefrom which shall appear within the longer of (i) one (1) year after the date of completion of the particular phase of work, or (ii) the maintenance period required by the appropriate Governing Public Authority if the Improvements are to be dedicated to public use. ARTICLE 19 — TERMINATION OF CONTRACT BY OWNER 19.1 Should Contractor commit any of the acts of default described in Paragraph 19.2 and should such act remain uncured for a period of ten (10) days after Owner gives written notice thereof to Contractor and Contractor has failed to take substantial actions during such ten (10) day period to cure such act of default, Owner may, without prejudice to any other rights or remedies given Owner by law, equity or the Contract Documents (i) terminate the services of Contractor under this Contract, (ii) take possession of the Improvements and all materials located on the Premises for which Owner has made payable to the Contractor, (iii) complete the Improvements by whatever method Owner may deem expedient. 19.2 It shall be deemed to be and constitute an act of default by Contractor if Contractor should: 19.2.1 File a petition in bankruptcy, or if a petition is filed against Contractor and such petition is not dismissed within 60 days of its filing. 17 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc 19.2.2 Make a general assignment for the benefit of Contractor's creditors. 19.2.3 Allow a receiver of Contractor's assets to be appointed because of Contractor's insolvency. 19.2.4 Refuse or fail, except as provided in Article 9 hereof entitled "TIME FOR COMPLETION: EXTENSIONS OF TIME," to supply enough properly -skilled workmen or proper materials to complete the Improvements in the time specified in this Contract. 19.2.5 Fail to make prompt payments to Subcontractors, laborers, or materialmen for labor performed on, or materials or equipment used in, construction of the Improvements. 19.2.6 Disregard any law or ordinance relating to the Improvements or the completion thereof, or 19.2.7 Otherwise commit a substantial violation of any material provision of the Contract Documents. 19.3 If, on completion of the Improvements by Owner, the expenses incurred by Owner in completing the Improvements, including any compensation paid by Owner for supervisorial services in completing the Improvements, exceed the unpaid balance of the Contract Price, such excess shall promptly be paid by Contractor to Owner, and if there is any excess of the unpaid balance of the Contract price above such expenses in completing the Improvements, such excess shall promptly be paid by Owner to Contractor. 19.4 Should services of Contractor under this contract be terminated by Owner pursuant to Paragraph 19.1 before completion of the Improvements, Contractor shall promptly, within ten (10) days after service of written notice on Contractor to do so, remove all its equipment and supplies from any property owned or controlled by Owner. Should Contractor fail to so remove its equipment and supplies, Owner may remove the same and store them at the cost and expense of Contractor. 19.5 In addition to Owner's other rights and remedies under this Contract or available to Owner at law or in equity, Owner may elect to terminate this Contract for any or no reason as follows: 19.5.1 This Contract may be canceled and terminated at the option of Owner at any time during the term of the Contract upon thirty (30) days written notice to the Contractor ("Notice of Cancellation"). In the event of such cancellation, the Contractor shall present to the Construction Manager within ten (10) days after Notice of Cancellation, a claim for final payment consisting of the actual amount due based upon the unit prices for Work set forth on Exhibit D completed through the thirty (30) day cancellation period. 18 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 19.5.2 Payment of such amount plus all retainage shall be made to Contractor within twenty (20) days after the claim for payment is sent to the Construction Manager and the Contractor shall have no other claim against the Owner for such amount and agrees to execute a final lien release. ARTICLE 20 — OTHER CONTRACTORS 20.1 Owner reserves the right to enter into other contracts with other contractor(s) to perform other types of work on the Premises. Contractor shall allow Owner, and any such other contractor(s), reasonable opportunity to store equipment and materials of Owner and such other contractor(s) on the Premises, and to execute and perform such contracts, and Contractor shall properly connect and coordinate the Work with that of Owner and other such contractor(s). 20.2 Where the successful performance of the Contractor's Work is dependent on the proper performance of work under another contract let by Owner in connection with the Improvements, Contractor shall observe the completed work performed under such other contract and promptly serve written notice on Owner of any observed defects therein which will interfere with the successful performance of the Contractor's Work. 20.3 Owner and other contractors shall each be responsible for any costs of repairing any damages each has caused to the Improvements. ARTICLE 21 — ATTORNEY'S FEES 21.1.1 Should any litigation be commenced between the parties hereto concerning the Improvements, any provision of the Contract Documents, or the rights and obligations of either in relation thereto, the prevailing party in such litigation proceedings shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorneys' fees in such litigation proceeding. 19 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc ARTICLE 22 — NOTICES 22.1 Unless otherwise specifically provided herein, all notices, demands or other communication given hereunder shall be in writing and shall be deemed to have been duly given as of personal delivery, or if mailed, as of the second business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Owner, to: DR HORTON — TEXAS LTD. 6751 North Freeway, Fort Worth, Texas 76131 Tel: 817-230-0800 If to Contractor, to: Independent Utility Construction, Inc. 5109 Sun Valley Dr Fort Worth, TX 76119 817-478-4444 or to such other address or to such other person as any party shall designate to the others for such purpose in the manner hereinabove set forth. Delivery to Construction Manager shall be deemed delivery to Owner. ARTICLE 23 — ASSIGNMENTS 23.1 This Contract is for the personal services of Contractor and Contractor shall not assign this Contract, without the prior written consent of Owner, which consent shall be in Owner's sole discretion and may be unreasonably or arbitrarily withheld. Any such assignment without Owner's prior written consent shall be null and void and deemed to be an act of default hereunder. ARTICLE 24 — GENERAL PROVISIONS 24.1 The Contract Documents contain the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. 24.2 No modification, waiver, amendment, discharge or change of this Contract shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge or change is or may be sought. 24.3 Time is of the essence of each obligation of each party hereto. 24.4 The use herein of (i) the neutral gender includes the masculine and the feminine and (ii) the singular number indicates the plural, whenever the context so requires. 20 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc 24.5 Captions in this Contract are inserted for convenience of reference only and do not define, describe or limit the scope or the intent of this Contract or any of the terms hereof. 24.6 All exhibits referred to herein and attached hereto are a part hereof. 24.7 All terms of this Contract shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective legal representatives, successors and assigns; nothing in the foregoing provision shall be construed to alter the Article entitled "Assignments." 24.8 This Contract shall be construed and enforced in accordance with the laws of the State of Texas. 24.9 This Contract may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. ARTICLE 25 — NON-DISCRIMINATION 25.1 Contractor hereby certifies that the Work performed, produced, and/or furnished under this Contract has been or will be performed, produced, and/or furnished in full and complete compliance with all applicable federal and state laws and regulations and amendments thereto, insofar as they relate to non-discrimination in employment including, among others, the Fair Labor Standards Act (29 U.S.C. Section 201 et seq.); the Equal Pay Act (29 U.S.C. Section 206, et seq.); Executive Order No. 11246 (Equal Employment Opportunity) effective October 24, 1965, and all regulations of the Secretary of Labor promulgated thereunder; Section 503 of the Rehabilitation Act of 1973 (29 U.S.C. Section 793) and 41 C.F.R. section 60-741.4 and Executive Order 117589; the Vietnam Era Veterans Readjustment Assistance Act of 1984 (38 U.S.C. Section 2021, et seq.) and 41 C.F.R. Section 60-250.4 and Executive Order 11701; Executive Order 11625 regarding utilization of minority business enterprises; Section 7 of the Defense Acquisition Regulation and Parts 1-7 of the Federal Procurement Regulations; Section 7-104.36(b) of the Armed Services Procurement Regulations (ASPR) setting forth the minority business enterprises subcontractor program clause; Section 7-104.14(a) of the ASPR regarding utilization of small business concerns; Section 1.805 of the ASPR regarding labor surplus area concerns; Section 7.104.14(b) and 7-104.20(b) of the ASPR regarding small business and labor surplus subcontractors; Executive Order 12138 regarding utilization of female -owned business enterprises. Contractor certifies that it does not and will not maintain any facilities it provides for its employees in the segregated manner, or permit the employees to perform their services at any location under its control where segregated facilities are maintained. Contractor agrees to execute, upon Owner's request, Owner's standard form of Certificate of Compliance with the United States Government's laws and regulations governing equal employment opportunity, the employment of the handicapped, and the employment of veterans of the Vietnam era, which Certificate of Compliance, as it may be reasonably 21 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc revised, upon execution by Contractor shall become a part hereof without further reference thereto. Contractor further agrees that, upon Owner's request, Contractor will obtain identical certificates from proposed Subcontractors prior to the award of subcontracts if such subcontracts are not exempt from the provisions of the aforesaid laws and regulations and that Contractor will retain certifications in its files. Contractor recognizes its responsibilities under the Immigration and Naturalization Act as recently amended and agrees to comply in all respects with the requirements of the Act as amended in so far as Contractor's employees are concerned. ARTICLE 26 — TAXES 26.1 Contractor shall pay all federal, state, and local taxes including, but not limited to, sales, privilege, use, contracting, and excise taxes owing by Contractor in connection with payments made to Contractor for Contractor's performance under this Contract. 26.2 If Owner subsequently pays any sales, privilege, use, contracting, or excise taxes as an Owner -Builder or Prime Contractor because of the sale or off -site improvements performed or because the property benefitted by such off -site improvements, Contractor will request refunds from the taxing authority of any taxes which it paid and for which Contractor would not have been liable if Owner had been Owner -Builder or Prime Contractor. Contractor shall also, provided Owner paid such tax amounts previously to Contractor, at Owner's election, pay such refunds to Owner, credit refunds to Owner's account or execute a waiver of the right to a refund. ARTICLE 27 — BOOKS AND RECORDS 27.1 Contractor agrees to make, keep, and maintain, in accordance with generally accepted accounting principles and practices consistently applied from year to year, complete books, records, invoices and records of payments relating to the Work while it is being performed. 27.2 For the purposes of audit Owner shall have the right to examine either directly or through its authorized representatives or agents, after at least three (3) days prior notice, during business hours and for a reasonable length of time, the books, records, and accounts of Contractor insofar as they are pertinent to this Contract. Owner's right to inspection shall not apply to the Contractor's trade secrets or other proprietary information designated and/or asserted as such. ARTICLE 28 —BOYCOTTING ISRAEL AND ANTI -TERRORISM VERIFICATION 28.1 HOUSE BILL 89 VERIFICATION. By signing and entering into this Agreement, Contractor verifies, pursuant to the Government Code Section 2270.001, it does not boycott Israel and will not boycott Israel during the term of this Agreement. 28.2 ANTI -TERRORISM VERIFICATION. Contractor hereby represents and warrants that at the time of this Agreement neither Contractor, nor any wholly -owned subsidiary, 22 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc majority -owned subsidiary, parent company or affiliate of Contractor: (i) engages in business with Iran, Sudan, or any foreign terrorist organization as described in Chapters 806 or 807 of the Texas Government Code, or Subchapter F of Chapter 2252 of the Texas Government Code; or (ii) is a company listed by the Texas Comptroller under Sections 806.051, 807.051, or 2252.13 of the Texas Government Code. The term "foreign terrorist organization" has the meaning assigned to such term in Section 2252.151 of the Texas Government Code. ARTICLE 29 —ETHICS 29.1 Form 1295 Filing: By signing and entering into this Agreement, Contractor agrees to comply with House Bill 1295 which added section 2252.908 of the Government Code. The law states that a governmental entity or state agency may not enter into certain contracts with a business entitv unless the business entitv submits a disclosure of interested parties to the governmental entity or state agency at the time the business entitv submits the signed contract to the governmental entity or state agency. Form 1295 Must be filed online at www.ethics.state.tx.us/File. Exhibit I ARTICLE 30 — ENVIRONMENTAL PROTECTION 30.1 Environmental Compliance: Contractor shall comply with applicable laws, regulations, orders and guidance administered by the U.S. Environmental Protection Agency, the Texas Commission on Environmental Quality (TCEQ) and any local agency(s) with jurisdiction. The matters covered by this paragraph include, without limitation, discharges of waste to air, water, or land, solid waste disposal and management of "hazardous substances". 30.2 Compliance with TPDES: All work shall be performed in accordance with the terms and conditions of the general Texas Pollutant Discharge Elimination System (TPDES) permit and the Storm Water Pollution Prevention Plan specific to this project. The Owner will be considered the Operator for the project. By signature of this Contract, the Contractor certifies: The Contractor shall be required to maintain all erosion control devices during the Work. The Contractor shall also immediately repair any erosion control devices damaged in the course of the Work. The Contractor shall adhere to all EPA, TCEQ, and MS4 regulations and requirements pertaining to his activities during the term of this contract. 30.3 Jurisdictional Waters of the U.S.: Contractor shall respect all designated "Waters of the U.S." or "Wetlands" at or near the project during his course of construction. No vehicles, machinery, materials storage, fill, or excavation shall occur in these areas unless specified on the plans. If Contractor is unsure of "Jurisdictional Area", he shall notify the Owner's representative for clarification. 23 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 113 Street Light_Contract Book.doc ARTICLE 31 — PREVAILING WAGE RATE 31.1 Chapter 2258 of the Texas Government Code provides that any political subdivision of the State of Texas shall ascertain the general prevailing wage rate received by the classes of worker employed on projects similar to this project and shall specify in the call for bids and in the Contract the minimum wage rates which shall be paid for each type of worker. This statute further provides that the Contractor or subcontractors shall pay, as a penalty, to the Developer Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in the Contract. The Developer is authorized to withhold from the Contractor the amount of this penalty from any payment due under the Contract. 31.2 The statute likewise requires that the Contractor and subcontractors keep an accurate record of the names and occupations of all persons employed by them in the construction of the Project and to show the actual per diem wages paid to each worker. These records are open to the inspection of the Developer. 31.3 The Contractor is required to pay at least the minimum Prevailing Wage Rate that applies to Denton County, Texas. 24 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specificafions\3.1.1 Contracts\Contracts Books\Street Light Contract\Lone Star at Liberty Trails Phase 1B Street Light_Contract Book.doc OWNER: DR HORTON — TEXAS LTD. Date: J� .2 By: -- - �— Name: Title: 4s-v7-� Witness or Attest:*6 Av- CONTRACTOR: Independent Utility Construction, Inc. Date: Aril 15th, 2024 By: (Z �� Name: Richard Wolfe Title: PresideQ Witness or Attest: ristina Garcia Office Manager 25 S:\projects\612\90\01\3.0 Construction\3.1 Contracts and Specifications\3.1.1 Contracts\Contracts Books\Stroct Light Contract\Lone Star at Liberty Trails Phase IA Street Light Contract Book.doc EXHIBIT A IMPROVEMENTS Street Light Improvements for Lone Star at Libertv Trails Phase IB, as shown on the City of Fort Worth approved plans prepared by Pane -Dawson Engineers. Inc., dated September 2023, and all issued revisions thereafter. EXHIBIT B CONTRACT DOCUMENTS The Contract Documents consist of the following: 1. This contract and all exhibits. 2. Plans for the Construction of Water, Sewer, Paving, Drainage, & Street Light Improvements to Serve Lone Star at Libertv Trails. Phase IB, prepared by Pape_ Dawson Engineers, Inc., dated September 2023 and all issued revisions thereafter. EXHIBIT C SPECIFICATIONS 1. All paving improvements shall be performed in accordance with the City of Fort Worth and Owner's geotechnical engineer's recommendations, construction plans, and technical specifications. 2. All work dedicated to the City of Fort Worth shall be performed in accordance with City of Fort Worth Standard Construction Details and Specifications or to North Central Texas Council of Governments (NCTCOG) Specifications and Standard Details as dictated by City of Fort Worth. Questions regarding City standards and specifications or North Central Texas Council of Governments Specifications and Standard Details should be referred to the City of Fort Worth. 3. If a specification or construction detail is not provided for any portion of the Contractor's Work, the Contractor shall notify the Construction Manager/Owner's representative/Engineer of Record immediately before commencing said Work. EXHIBIT D ESTIMATED QUANTITIES AND UNIT COSTS, PERFORMANCE BOND, PAYMENT BOND, CONTRACTOR INSURANCE Street Lights DAP - BID PROPOSAL Page 1 of 1 SECTION 00 42 43 Developer Awarded Projects - PROPOSAL FORM UNIT PRICE BID Bidder's Application Project Item Information Bidder's Proposal Bidhst Item Description Specification Section No. Unit of Bid Unit Price Bid Value No. Measure Quantity UNIT V: STREET LIGHTING IMPROVEMENTS 1 2605.3015 2" CONDT PVC SCH 80 (T) 26 05 33 LF 2,761 17.69 48,842.09 2 3441.1405 NO 2 Insulated Elec Condr _ 3441 10 LF 1,818 3.66 6,653.88 3 3441.1410 NO 10 Insulated Elec Condr _ 3441 10 LF 6,465 1.48 9,56820 4 3441.1645 Furnish/Install Type 33A Arm 34 41 20 EA 4 319.00 1,276.00 5 3441.1646 Furnish/Install Type 33B Arm 34 41 20 EA 47 319.00 14,993.00 6 3441.3050 Furnish/Install Luminare (ATBO P101 MVOLT R2 3K MP 3441 20 EA NL P7 AO RFD325607) 45 346.00 15,570.00 7 3441.3050 Furnish/Install Luminare (ATBO P101 MVOLT R4 3K MP 3441 20 EA NL P7 AO RFD325606) 2 346.00 692.00 8 3441.3050 Furnish/Install Luminare (ATBO P303 MVOLT R2 3K MP 3541 20 EA NL P7 AO RFD322792) 4 484.00 1,936.00 9 3441.3301 Rdwy Illum Foundation Type 1 34 41 20 EA 47 1,651.00 77,597.00 10 3441.3302 Rdwy Illum Foundation Type 3 33 41 20 EA 4 1,956.00 7,824.00 11 3441.3341 Rdwy Illum TY 11 Pole 344126 EA 47 1,972.00 92,684.00 12 3441.3352 Rdwy Illum TY 18 Pole 3441 20 EA 4 2,527.00 10.108.00 TOTAL UNIT V: STREET LIGHTING IMPROVEMENTS 287.744.17 Bid Summary UNIT V: STREET LIGHTING IMPROVEMENTS This Bid is submitted by the entity named below: BIDDER: Independent Utility Construction, Inc. 5109 Sun Valley Drive Fort Worth, TX 76119 Contractor agrees to complete WORK for FINAL ACCEPTANCE within CONTRACT commences to run as provided in the General Conditions. END OF SECTION Total Construction Bid $287,744.171 BY: h rd Wolfe �� TITLE: President DATE: 01 /17/2024 40 working days after the date when the CITY OF FORT WORTH STANDARD CONSTRUCTION SPECIFICATION DOCUMENTS -DEVELOPER AWARDED PROJECTS Form Version May 22, 2019 00 42 43_Bid Proposal DAP LB) xIsx EXHIBIT E SPECIAL CONDITIONS EXCAVATION/COMPACTION SPECIFICATION: All earthwork shall be performed in accordance with the City of Fort Worth and Owner's geotechnical engineer's recommendations and specifications for this project. All excavation quantities shall be defined as in place material (bank yards not truck yards). 2. GOVERNING PUBLIC AUTHORITY SPECIFICATION: All work dedicated to the Governing Public Authority shall be performed in accordance with their Standard Construction Details and Specifications. Questions regarding Governing Public Authority standards and specifications should be referred to the City. If a specification is not provided for any portion of the Contractor's Work, the Contractor shall notify the Engineer immediately before commencing said Work. 3. OBSTRUCTIONS: Relocation of franchise poles and underground franchise utilities, and similar items will be performed by Owner, except where otherwise indicated. The Contractor shall coordinate and plan his work around such relocation or removal. 4. WATER FOR CONSTRUCTION: All water required shall be furnished by the Contractor at his expense. Water shall be clean and potable. c EXC n NI n TION/B n T n NG& THarthv.ede-- raetar alxill k. wed of the or1l is p-,ogr-ess dtffingthe exea 3—.-, phxmo of eafist-n-letteH, So Engineer- oan make , if neeessar-y. The intent is to eemplete the site in a balunooa etit/f;,l , rdit r, ,„loco lmul an -or haul aff has been p e ,sly apply �ed 3. Earth.&,,.,.1, r,.,,4ac4;Dy &hall nat lea-,,e the &;to , Ntil hig work hag b eld surveyed for- ver-ifieation. it ;s the G,,,-.•1,-.,eto-'s po-.-.,`1bility t , „tact the E,-., ifleo, field ver-ifieation. 6. WET UTILITY EX V T10N/Tn> NGH SPOILS: The Wet Utifit-y Gen�faeter- shall haul exeess „ iliyy of +o an ama an&ito or an adjaeent site as detefmined by Genstnaetion Manager- andler- Owner's Representative. All spoil fnater-ial shall be defined ro is ply o spoils (l.,,,y yards tr, v . ^rdo). &poil raleeation Zhall be ; ;rlofit,l '7 EXC Ay A TT(lN4 ENG14 SPOILS (OTHER T14n i t W T UTILITY VOI E): Ems retaining aKa, o1a11 ba wasted on sitedjaeent sitareas Bete d by spollJ until r-ConstmetioirManager- -Fni Owners Representative issues wr-itten3 o:4,-? la:. --goy than T' in diafnete�-EepAfae orz aw mzpaasible their- spoils. All spoil distfibution will be ✓1g meccrial &hall be defined ao in &ae g. GRADING DIN TO E n N E: The E,,,.th., o fk Contr,, tiZ' 51hall gr-a e the stfeets and alleys t within n 10 feet of gran gmakoo "i on. TN,. 0,vmor'o Fur: 1hprovide Periavuti6ivrstreet scry after- e& zvirtr-ci6t6i .Y shall be gr-aded to within 0.3 feet ef plan gr-ades. 9. DEWATERING: Dewatering, if required, is not included as a separate pay item and shall be included subsidiary to the bid items. Contractor shall make determination of extent of dewatering necessary to complete the project in accordance with the plans and specifications. 4-0. PIP) TE: The Utility Cont,-ae or fall patff storm sewer- inlets in two stagesThe first 4agc Olmll ti, d rhall n Paving Gon# e*.cc ahall L\19ek oinlets whenplac-ing eener-etepavement. U61i� Contfaeto-. ohall r-aur- inlet tops (seeend stage) a -ad bleekettts after- eener-ete pa-,�ement has been plaeed. Utility Contmetior ill be+xprr_�r/-b e for- providing inlet r,-oteet n agai 11. ADlUFTl\ OF UTI1ITIES-4t ohall h the responsibility of the Utility Gentr-aeter- te pe4arm an neees�al grade adjustment all ap4en-anc�al e manhelo riri, fire hydrants, gem „bli thority. The 44ity Cont or vhall ti responsible f p „a;r d, and inlo-Ic pr-eteetion durin ors. TK�,- st t perf ,_.v, this o.Aft 51-.all be ineidental t the bid ;tows 12. INSPECTION FEES: The Owner shall be responsible for paying all inspection fees required by the governing public authority. Contractor shall be responsible for any fees related to inspector overtime and re -inspections. 13. PERMIT FEES: Contractor shall be responsible for all permit fees, which may include, but not limited to, batch plant permits, grading permits; water meters for construction, driveway permits, wall permits, fence permits, and other similar construction permits. mil. TEFTl`IC: The U44 y--andPvingo'hal fo r-dinating all testing required to eemplete his work a -ad aeeeptanee by the Goveffli Publie Authority a -ad the speeifieations. All independent laboratories must be approve by the Owner- and the g PuU.io Shall be sent he 15. DENSITY TESTING DURING EARTHWORK PHASE: The Owner shall pay for all testing during the earthwork phase of the project, to include providing 79G letter. The Earthwork Contractor shall work with the testing laboratory in scheduling the tests at the proper times as recommended by the Owner's geotechnical engineer or City representative. One set of the report shall be sent to the Engineer. 16. CLEANUP: Each Contractor shall be responsible for making a final cleanup of his work before final acceptance by the Owner. This cleanup shall include removal of all objectionable rocks, debris, concrete, asphalt, or other construction materials; and in general, preparing the premises in an orderly manner and appearance. 17. CONCRETE BATCH TCH PLAT -IT: Th or A. all b. > state, and federal pefmits required for- assembly and operation of a eone bata'i plrnt. Tin^',, ao�, ,,„+ , �* u,,,;ted—te T Q air pormit, E7'. Stofm W or -%llut;o 4ios Plan paFmit. The Paving Cont o slmll pay all as-ed with the ch plant. The Ahall furniAh oopioz of all pats to the Owner- 18. STORM WATER POLLUTION PREVENTION: The Owner shall prepare a Storm Water Pollution Prevention Plan for the project and install or have installed as per contract, erosion control devices as necessary to comply with the plan and EPA/TCEQ/MS4 guidelines. The Owner shall provide inspections as required by the plan and EPA/TCEQ/MS4. It shall be the responsibility of the Contractor to protect all erosion control devices. Any erosion control damaged shall be immediately repaired at the Contractor's expense. Contractor shall be responsible for protection of fuel and other hazardous substances at the site. It is the Contractor's obligation to secure any and all additional required permits and adhere to all requirements as set forth by, but not limited to, the EPA, TCEQ, and MS4 agencies. The Contractor shall clean streets of all materials upon demand of SWPPP inspector or Owner's representative to maintain the project in good standing with EPA/TCEQ/MS4. 19. TREES: Contractor shall protect all trees unless authorized for removal by Owner. Owner shall back charge any tree damaged by the Contractor at a rate of $150 per caliper inch. The Contractor shall not store equipment, vehicles, or materials beneath any tree on the premises. 20. TREE DISPOSAL: Contractor is responsible for the disposal of all trees removed by their work. Tree disposal shall be included in all bid items, unless specified in the bid proposal. Trees shall be disposed of offsite, unless otherwise agreed upon in writing. 21. RECORD DRAWINGS: The Contractor shall furnish and deliver to the Engineer record drawings (i.e. "as- built" plans) showing any and all field changes. The drawings shall be provided to Engineer prior to issuance of final Contractor payment. In lieu of record drawings, if no changes have occurred, Contractor shall submit a written document on Contractor's letterhead, signed by Contractor Owner or Officer stating that the project was built according to Engineer's plans with no changes to project. 22. BONDS: Contractor is responsible to pay for, and must provide all necessary bonding as required by the Owner, the City, and State. 23. HOUSE BILL 89 VERIFICATION. By signing and entering into this agreement Constructor verifies pursuant to the Government Code Section 2270.001 if does not boycott Israel during the term of this Agreement. 24. ANTI -TERRORISM VERIFICATION. Contractor hereby represents and warrants that at the time of this Agreement neither Contractor, nor any wholly -owned subsidiary majority -owned subsidiary, parent company or affiliate of Contractor (i) engages in business with Iran, Sudan, or any foreign terrorist organization as described in Chapters 806 or 807 of the Texas Government Code or Subchapter F of Chapter 2252 of the Texas Comptroller under Sections 806.051.807.051, or 2252.13 of the Texas Government Code. The term "foreign terrorist organization" has the meaning assigned to such term in Section 2252.151 of Texas Government Code. EXHIBIT F INVOICING INSTRUCTIONS 1. Invoices must include the Project Name, Invoice Date, Pay Application Number and be separated by line items shown on Exhibit D of this Contract. 2. Retainage and cumulative billing data must be included on the invoice. 3. Original notarized partial and final lien releases in a format approved by the Owner must be submitted with all invoices. 4. One (1) original invoice shall be submitted to the Construction Manager/Owner's Representative and one (1) copy to the Engineer. The Construction Manager/Owner's Representative shall forward the invoice to the Owner with a recommendation for approval. The Construction Manager/Owner's Representative will notify the Contractor of any discrepancies in billing prior to forwarding to the Owner. 5. Invoices shall be submitted by the 25th day of each month. EXHIBIT G SURVEY STAKING PROVIDED BY OWNER A one-time survey staking shall be provided by the Owner's Surveyor, which will include the following: Set initial construction control. 2. Stake lot corners for franchise utility construction. EXHIBIT H PROHIBITION ON BOYCOTTING ISRAEL PROHIBITION ON BOYCOTTING ISRAEL AND CONTRACTING WITH TERRORIST ORGANIZATIONS VERIFICATION This verification is hereby incorporated into the terms of the Contract by and between Owner for Independent utility Brookfield Water Control and Improvement District of Denton Countv and Construction. Inc. entered into this the16th day of April JOPZ 2024 Independent Utility 1.01 Construction. Inc. in conjunction with the execution of the above -referenced Contract and in accordance with Chapter 2270 of the Texas Government Code, effective Sept. 1 2017, does hereby agree, confirm, and verify that it: A. Does not Boycott Israel; and B. Will not Boycott Israel during the term of the contract "Boycott Israel" has the meaning given to it in Chapter 808 of Subtitle A, Title 8 of the Texas Government Code. As of the effective date of the statute, the term means "refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli -controlled territory, but does not include an action make for ordinary business purposes." 1.02 Contractor hereby certifies that it is not a entity that contracts with or provides supplies or services to a foreign terrorist organization, as defined by Section 2252.151(2), Texas Government Code, and has not been identified as a company known to have contracts with or provide supplies or services to a foreign terrorist organization as identified on a list prepared and maintained under Section 806.051, 807.051, or 2252.153, Texas Government Code. 1.03 Contractor hereby acknowledges and agrees that this verification is a material term of the contract and Owner is expressly relying on this verification in agreeing to enter into the contract with Contractor. 1.04 TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONTRACTOR AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS OWNER FROM ALL CLAIMS, CAUSES OF ACTION, LEGAL PROCEEDINGS, DAMAGES, COSTS, FEES AND EXPENSES ARISING OUT OF OR RELATED TO AN ACTUAL OR ALLEGED MISREPRESENTATION BY CONTRACTOR PROVID ZEREUNDER. Contractor Signature State of Texas County of Tarrant Before me, a not public, on this day personally appeared known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that th tatements therein contained in Paragraph 1.01 A and Band Paragraph 1.0 e e and c rrect. (Personalized Seal) - Notary Public's Signature CHRISTINA GARCIA Notary Public, State of Texas };` Comm. Expires 12-20-2024 ,°;,;�`� Notary ID 130940785 Receipt and incorporation into the above -referenced contract hereby agreed to and acknowledged by: Owner Signature EXHIBIT I FORM 1295 EXHIBIT I GEOTECHNICAL REPORT