HomeMy WebLinkAbout2019-09-03 10:00AM REGULAR MEETINGBRAZOS COUNTY
BRYAN, TEXAS
NOTICE OF MEETING AND AGENDA
%919 ALIG 30 P 1: 0u
BRAZOS COUNTY COMMISSIONERS COURT
THE COMMISSIONERS COURT OF BRAZOS COUNTY WILL MEET
IN REGULAR SESSION ON SEPTEMBER 312019 AT 10:00 AM IN
THE COMMISSIONERS COURTROOM OF THE COUNTY .
ADMINISTRATION BUILDING, 200 SOUTH TEXAS AVE., SUITE 106,
BRYAN, TX 77803
Invocation and Pledge of Allegiance
- U.S. and Texas Flag - Judge Peters
2. Call for Citizen input and/or concerns
Consider and take action on agenda items 3-20 .
3. Approval of the Following Job Descriptions:
• a) Approval of the following Job Description - Building and Grounds 1040hrs
(Class Code 0832, Pos. 09) For Expo
• b) Approval of the following Job Description - License Manager (Class Code
1239, Pos. 1) For Information Technology
4. Request from Facility Services for Payment Authorization to Kone, I nc. in the amount of
$1,131.64 for elevator repair at the Brazos County Expo Complex on the night of
8/8/2019 during the Lions Club Rodeo. After hour calls are not covered on contract.
5. Request form Facility Services for Payment Authorization to Baker Distributing for a/c
part in the amount of $64.00. Invoice was never received and PO was closed.
6. Request authorization to wire transfer to the Texas Health and- Human Services
Commission funds available and allowed for 2019 DY 8 UC Payment to HHSC in the
amount of $14,141,406.23.
7. Order Dividing One Election Precinct, Combining into another Election Precinct and
Creating Another Election Precinct for City of Bryan annexation Order 2349, Rellis
Campus. r
Vol. Pg.=
8. Order Dividing One Election Precinct and Creating Another Election Precinct due to
City of Bryan annexation Order 2362.
9. Approval of contract renewal with Rite of Passage, Inc. for juvenile detention services.
10. Approval of contact renewal with Rite of Passage, Inc. for juvenile residential services.
11. Approval of Extension of. Contract 19-026R for Fuel with Sunoco LLC for 1 month.
12. Approval of Amendment #1 to Agreement #19-071 with MNS, I nc. for the fiber cross
connect.
13. Approval of Agreement 20-027 for Arbitrage Calculation with PFM Asset Management,
LLC.
14. Approval of Award of RFP #CI P 20-501 for Elmo Weedon Road Reconstruction Phase
I. Recommended award: Knife River.
15. Approval of the Wellborn Special Utility District utility permit to construct a road bore for
a 2 inch water line crossing under Deer Hill Road 1,788 feet southwest of SH 6. Site is
located in Precinct 4.
16. Expenditure Journal Entries
FY 18/19 080108 - 080114
17. Tax Refund Applications for the following:
• a. Doretha Kay Hams -Overpayment $159.81
• b. David & Carrie A. Alafa - Overpayment $47.28
• c. Timothy J. & Rebecca J. Prater- Overpayment $9.29
• d. Betty Breedlove -Overpayment $26.91
18. Budget Amendments.
Budget Amendments FY 18/19
19. Personnel Change of Status.
Personnel Action Forms
20. Payment of Claims.
21. Juvenile director's report on detention population.
22. Sheriffs report on inmates.
23. Announcement of interest items and possible future agenda topics.
24. Call for Citizen input and/or concerns
25. Adjourn.
Vol, .,.cqqt P9.IQ5
PUBLIC COMMENTS
Public Comment during the Commission Meeting may be for all matters, both on and off.the agenda, and be limited to four
minutes per person. Persons are invited to submit comments in writing on the agenda items and/or attend and make comment at
the Commission meeting. Members of the public are reminded that the Brazos County Commissioners Court is a Constitutional
Court, with both judicial and legislative powers, created under Article V, Section 1 and Section 18 of the Texas Constitution. As a
Constitutional Court, the Brazos County Commissioners Court also possesses the power to issue a Contempt of Court Citation
under Section 81.024 of the Texas Local Government Code. Accordingly, members of the public in attendance at any Regular,
Special and/or Emergency meeting of the Court shall conduct themselves with proper respect and decorum in speaking to,
and/or addressing the Court; in participating in public discussions before the Court; and in all actions in the presence of the
Court. Those members of the public who are inappropriately attired and/or who do not conduct themselves in an orderly and
appropriate manner will be ordered to leave the meeting. Refusal to abide by the Court's Order and/or continued disruption of
the meeting may result in a Contempt of Court Citation.
It is not the intention of the Brazos County Commissioners Court to provide a public forum for the demeaning of any individual or
group. Neither is it the intention of the Court to allow a member (or members) of the public to insult the honesty and/or integrity
of the Court, as a body, or any member or members of the Court, or County employees, individually or collectively. Accordingly,
profane, insulting or threatening language directed toward the Court and/or any person in the Court's presence and/or racial,
ethnic or gender slurs or epithets will not be tolerated. Violation of these rules may result in the following sanctions:
1. cancellation of a speaker's time;
2. removal from the Commissioners Court;
3. a Contempt Citation; and/or
4. such other and/or criminal sanctions as may be authorized
under the Constitution, Statutes and Codes of the State of Texas.
The County Commissioners Court can deliberate or take action only if a matter has been listed on an agenda properly posted
prior to the meeting. During the public comment period, speakers may address matters not listed on the published agenda. The
Open Meeting Law does not expressly prohibit responses to public comments by the Commissioners Court. However, responses
from the County Judge or Commissioners to unlisted public comment topics could become deliberation on a matter without
notice to the public. To ensure the public has notice of all matters the Commissioners Court will consider, the County Judge
and/or Commissioners may choose not to respond to public comments, except to correct factual inaccuracies, recite existing
policy in response to an inquiry or to ask that a matter be listed on a future agenda. See Texas Open Meetings Act Section
551.042.
INVOCATION
Any invocation that may be offered before the official start of the Court meeting shall be to and for the benefit of the Court. The
views or beliefs expressed by the invocation speaker have not been previously reviewed or approved by the Court and do not
necessarily represent the religious beliefs or views of the Court in part or as a whole. No member of the community is required to
attend or participate in the invocation and such decision will have no impact on their right to actively participate in the business
of the Court.
The Commissioners Courtroom of the County Administration Building, 200 South Texas Ave., Suite 106, Bryan, TX 77803 is
wheelchair accessible. Handicap parking spaces are available. Any request for sign interpretive services must be made two
working days before the meeting. To make arrangements, please call (979) 361-4102.
Vol. P9•
MINUTES
SEPTEMBER 3, 2019
BRAZOS COUNTY COMMISSIONERS COURT
REGULAR MEETING
A regular meeting of the Commissioners' Court of Brazos County, Texas was held in the
Brazos County Commissioners Courtroom in the Administration Building, 200 South
Texas Avenue, in Bryan, Brazos County, Texas, beginning at 10:00 a.m. on Tuesday,
September 3, 2019 with the following members of the Court present:
Duane Peters, County Judge, Presiding;
Steve Aldrich, Commissioner of Precinct 1;
Sammy Catalena, Commissioner of Precinct 2, Absent;
Nancy Berry, Commissioner of Precinct 3;
Irma Cauley, Commissioner of Precinct 4;
Karen McQueen, County Clerk.
The attached sheets contain the names of the citizens and officials that were in
attendance.
Invocation and Pledge of Allegiance
- U.S. and Texas Flag - Judge Peters
2. Call for Citizen input and/or concerns
There was no citizen's input.
Consider and take action on agenda items 3-20
3. Approval of the Following Job Descriptions:
• a) Approval of the following Job Description - Building and Grounds 1040hrs
(Class Code 0832, Pos. 09) For Expo
V01. 29 - Pg.192
• b) Approval of the following Job Description - License Manager (Class Code
1239, Pos. 1) For Information Technology
A copy of the job descriptions is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
4. Request from Facility Services for Payment Authorization to Kone, Inc. in the amount of
$1,131.64 for elevator repair at the Brazos County Expo Complex on the night of
8/8/2019 during the Lions Club Rodeo. After hour calls are not covered on contract.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
5. Request form Facility Services for Payment Authorization to Baker Distributing for a/c
part in the amount of $64.00. Invoice was never received and PO was closed.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
6. Request authorization to wire transfer to the Texas Health and Human Services
Commission funds available and allowed for 2019 DY 8 UC Payment to HHSC in the
amount of $14,141,406.23.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
7. - Order Dividing One Election Precinct, Combining into another Election Precinct and
Creating Another Election Precinct for City of Bryan annexation Order 2349, Rellis
Campus.
A copy of the order is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry; Cauley, Peters. Absent: Catalena.
8. Order Dividing One Election Precinct and Creating Another Election Precinct due to
City of Bryan annexation Order 2362.
A copy of the order is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Steve Aldrich. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
?•
Vol.• '. Iq•
9. Approval of contract renewal with Rite of Passage, Inc. for juvenile detention services.
A copy of the renewal of contract is attached.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
10. Approval of contact renewal with Rite of Passage, Inc. for juvenile residential services.
A copy of the renewal of contract is attached.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
11. Approval of Extension of Contract 19-026R for Fuel with Sunoco LLC for 1 month.
A copy of the extension of contract is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
12. Approval of Amendment #1 to Agreement #19-071 with MNS, I nc. for the fiber cross
connect.
A copy of the amended contract with Managed Network Solutions, I nc. (MNS) is
attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Steve Aldrich. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
13. Approval of Agreement 20-027 for Arbitrage Calculation with PFM Asset Management,
LLC.
A copy of the agreement is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
14. Approval of Award of RFP #CI P 20-501 for Elmo Weedon Road Reconstruction Phase
I. Recommended award: Knife River.
The Court voted unanimously to accept the recommendation of the Purchasing Agent
and awarded RFP # CIP 20-501 Elmo Weedon Road Reconstruction Phase I to Knife
River Corp. A copy of the bid tabulation and contract is attached.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
15. Approval of the Wellborn Special Utility District utility permit to construct a road bore for
AD
Vol._ P9• tqa
a 2 inch water line crossing under Deer Hill Road 1,788 feet southwest of SH 6. Site is
located in Precinct 4.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
16. Expenditure Journal Entries
FY 18/19 080108 - 080114
A copy is attached.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
17. Tax Refund Applications for the following:
• a. Doretha Kay Hams -Overpayment $159.81
• b. David & Came A. Alafa -Overpayment $47.28
• c. Timothy J. & Rebecca J. Prater- Overpayment $9.29
• d. Betty Breedlove -Overpayment $26.91
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
18. Budget Amendments.
Budget Amendments FY 18/19
48.1 To correct information entered incorrectly for the budget between principal and
interest and to adjust the accounts to properly reflect the debt schedule allocation.
48.2 Reallocate funds for Constable, Precinct 3 - NRA Grant.
48.3 Reallocate funds for the Sheriff's Office - Administration.
48.4 Reallocate funds for the County Clerk - Records Management Fund.
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Irma Cauley. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
19. Personnel Change of Status.
Personnel Action Forms
A copy of the Personnel Change of Status requests is attached.
Motion: Approve, Moved by Commissioner Irma Cauley, Seconded by Commissioner
Nancy Berry. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
20. Payment of Claims.
Claims 8018459-8018661
Motion: Approve, Moved by Commissioner Nancy Berry, Seconded by Commissioner
Steve Aldrich. Passed. 4-0. Ayes: Aldrich, Berry, Cauley, Peters. Absent: Catalena.
21. Juvenile director's report on detention population.
Juvenile Director Linda Ricketson reported there are 31 juveniles in the detention center,
27 are male and 4 are female, and 25 have electronic monitors. Ms. Ricketson noted
that out of the 31 juveniles 5 are from other counties.
22. Sheriff's report on inmates.
Sheriff Chris Kirk stated there were 646 inmates in jail, 549 inmates are male and 97 are
female, 61 have electronic monitors and 18 are pending for monitors.
23. Announcement of interest items and possible future agenda topics.
Commissioner Berry reminded everyone that the Management Training series with
Nancy Baird is on Wednesday, September 4, 2019.
24. Call for Citizen input and/or concerns
Ramiro Galindo asked if this was the right time for the Workshop Session. Judge
Peters explained that it would take place at 10:15 a.m. at the conclusion of the Regular
Meeting.
25. Adjourn.
Vol.. ��/ •Pg.•
The foregoing minutes of the Commissioners Court Meeting held September 3. 2019
have been examined and are approved in open Court this 15th day of October 2019, in
Bryan, Brazos County, Texas .
Duane Peters
County Judge
�b--
Sammy Catalena
Commissioner, Precinct 2
Irma Cauley-
Attest:
kar&McQueen
Co un Clerk r
c
Steve Aldrich
Commissioner, Precinct 1
Nancy Berry
Commissioner, Precinct 3
Vol� Pg.
a�a
Pg—,Lof
BRAZOS COUNTY
COMMISSIONER'S COURT
3' DAY OF 4.u -&h , 20 I9
AM/,
Name
(PLEASE PRINT)
A�-�j M.e-QyL L=iy
IL
d,tA T�LDCL
ow rn �-�-� :\."
EIS Lc C41-bld&-L
z
Organization
(PLEASE PRINT)
CT%
�rs,�
Pg ;Z of --
BRAZOS COUNTY
COMMISSIONER'S COURT
DAY , —tw
L/PM5 ,:- = 1
a
Name
(PL E PRINT),
Irc�2Jtf{
mom
&/4 61 " -) J)/I v
=,lel M vv\Lc
M,,, (%lam wg Nam A
A-0 C�- /),o Vp
-7-es
Organization
rz�a
t
Vol. �_ Pg• C7�v1
Brazos County
Job Description
Last Updated: September 2014
RECEIVED
AUG Z 2 2019 ToreplaleRerlaron1.20 IVA12
Class'Number.,
832 Title: — Temporary Attendant,, Building & Grounds (1040 hrs.)
-- —- t -
Pay G�oupc�-_
.09 ; Department:
; Exposition Complex
FLEA Status:.
Non Exempt . Reports To:
I Event Supervisor, Event Coordinator „ Ali Managers
Approved Date:
j`10/01/2018 (,EEOC Category:'
I' - ._� — Temporary
09/30/2019 Employee
i Service/ Maintenance�—
Position End
Date:
I Signature:
Performs'and monitors daily operational) responslbllities including janitorial duties, responsibilities and maintenance of the Brazos County Exposition
perplex including setting -up, cleaning and tearing -down events.
Essential Duties: -I
;~Operates light to moderate equipment such as tractors with Implements, forklifts and skid steer loaders; Sets upltcars down rodeo equipment, parse
stalls, cattle ties, panels and pens; Sets upitears down meeting and event rooms, including stages, dance floors, tables, chairs and equipment and
assists with the soundlelectrical system setup and/or tear down; Cleans meeting and event rooms, including sweeping, vacuuming and taking out
trash; Cleans restrooms;iincluding using commercial chemicals to remove stains/odors and keeps them free of litter, Strips, waxes, buffs and. scrubs
-hoofs as needed and instructed. Keeps all floors dusted, mopped, and vacuumed;,Changes light bulbs and distributes supplies as necessary; Assists
Irr painting and other maintenance projects as necessary; Raises flags dally, weather permitting, takes down flags before leaving unless otherwise
specJfled:Operates a vacuum cleaner and hand cleaning materials, supplies and equipment; Cleans windows, doors, floors, water fountains, and
furniture; Keeps air conditioning adjusted to use requirements; Empties and deans waste receptacles and property disposes of trash; Assists visitors
i in a polite manner during events at the Exposition Complex; Keeps Janitorial and storage areas clean and orgenized;•Must be willing to work various I
hours as needed including some nights, weekends, holidays, eta: Communicates with Exposition Complex adminstrative assfstant/secretary
' regarding janitorial supply Inventory; Assists as necessary in Inventory control including equipment and consumaliles;-Assists.in scheduling work,
creating assignments and/or monitoring work as necessary for part-time and/or temporary building attendants/statL. !
;'Other Duties as assigned. (1)
—Sl/P9NfSiof7M
Received:.] Event Supervisor, Event CoordlnatoeA All Managers
rllgn scnoor graauation or its equivalent; or any aqui
provides the required knowledge, skills and abilities.
Certirtcates, Licenses,
Registrations
i
Required: None.
Preferred:
i
Knowledge; Skills, &
Abilities
TO
nu pnysiwi romans oescrloea nere are representative of those thal•must be met by an employee to i
successfulij. perform the essentiatfunctions of this Job; Reasonable accommodations may be made to enable
lndlylduals with disabilities to perform the essential functions. While performing the duties of this job, the
employee is regularly iiegiiired to sit; use hand to finger, handle, or to feel; reach with han ds and anus; bend
and kneel; and talk and hear. The employee frequently is required to stand and walk. Th a employee must
frequently IN and/or move otgbds weighing up to 100 pounds, such as bags of mulch end rocks. Specific
vision ablidies required for this Job include close vision, distance vision, and the ability to adjust focus.
vulu vpnruavn or wraiuu ai ano maintenance equlpment,,incluaing ire safe use of Commercial cleaning
chemicals. Ability to fopow oral,and written instructions;.ebility to loam the proper use of Janitorial equipment
and supplies•:ability td make minor repairs; ability to communicate and work effectively with co-workers; ability
to perform physicaf and strenuous work; and an ability to understand and follow Brazos County safety oollcies:
i nu worn environment cneractensucs oescnueo nere are representative or those an employee encounters
while performing the essential functions of this job; Reasonable accommodations may be made to enable
•-individuals.wiith disabilities to perform the essential functions. The noise level in the work environment is
frequently loud. The employee is constantly required to work closely with others as a part of a team to perform
multiple tasks simultaneously, and switch from one task to another. The employee is frequently required to
work under the pressures and meet deadiiries.. The employee may be exposed to extreme weather
condftlons.:,.
Duane Peters Date
County Judge
Brazos County
Job Description
Last Updated: 09/04/2012
RM
C,VFD 0811-5/2012
AUG 1 71419
Class Number:
Title:
License Manager
Pay Group:
23
Department:
Information Technology
FLSA Status:
Non Exempt
Reports To:
Senior Systems Analyst
Approved Date:
EEOC Category:
Professionals
General Summary:
Responsible and accountable for software license management including the development and implementation of policies, procedures, and best
practices. Ensures compliance with all existing and future software license requirements. Responsible for software and hardware support
agreements, renewals, and effective lifecycle planning and costing. Additional responsibilities include Office 365 and SharePoint Administration,
Laserfiche Administration, automation of software- deployment and asset management.
Essential Duties:
License Management:
• Determine, document and implement processes necessary to manage all existing and future software licenses.
• Build and maintain inventory of existing software'and associated license counts, domain names, SSL certificates, and other web assets.
• Track current software deployment/usage and ensure compliance with license requirements.
• Identify license gaps and recommend balancing solutions.
• Facilitate ongoing technical support and upgrade protection on selected software and hardware products by ensuring that maintenance, support
and upgrade protection renewals are managed/handled/ordered in advance of their expiration.
• Ensure Brazos County is protected by obtaining required licenses and maintaining appropriate support contracts.
• Collect information for budgeting, software compliance & inventory, contract summaries, and cost comparisons.
• Obtain Support Contract Quotes
• Assist IT Purchasing Manager in procuring software.
• Provide senior IT staff with advice on matters related to third party licensing and support services.
Software Deployment and Asset Management:
• Assist in management of life -cycle of desktop operating system build, applications, and packages
• Assist in creation and maintenance of operating system images, application packages, and software updates for deployment via automation
tools
• Assist with large scale and targeted distribution of software/enhancements/patches
• Monitor distribution and execution status and create reports to show status of application/patch distribution
• Support package deployment strategies
• Support configuration standards and configuration process implementation
• Assist with recommending, scheduling, and implementing server / application upgrades or repairs.
Office 365 and SharePoint Administration
• End user account management
• Provide end user support
• Assist with recommending, scheduling, and implementing upgrades and patches
• Collaborate with Network Team Manager and Security and Compliance Analyst to ensure operational security
• Collaborate with Network Team to ensure operational health including availability, performance, and reliability
• Perform routine monitoring and analysis including Audit Log Reports evaluation, utilization reports, permissions audit and growth reports
Laserfiche Administration
• Provide end user support
• Collaborate with Network Team Manager and Security and Compliance Analyst to ensure operational security
• Collaborate with Network Team to ensure operational health including availability, performance, and reliability
• Perform routine monitoring and analysis including analyzing Audit Trail Reports
• Assist with recommending, scheduling, and implementing server/ application upgrades, patches, and repairs
Other Duties as assigned.
Supervision
Received:
Given: This is a non -supervisory position.
Education
Required: Bachelor's degree in Computer Science, or a related field, or any equivalent combination of education and
experience which provides the required knowledge, skills, and abilities.
Preferred:
Vol. ani S Pg. �7
Experience
Required:
To perform this job successfully, an individual must be able to perform each essential duty satisfactorily. The
requirements listed below are representative of the knowledge, skill, and/or ability required. Reasonable
accommodations may be made to enable individuals with disabilities to perform the essential functions.
Preferred:
employee is regularly required to sit; use hands to type; reach with hands and arms; and talk and hear. The
Certificates, Licenses,
Registrations
Required: None required.
Preferred:
Fiftysical Demands
Typical:
The physical demands described here are representative of those that must be met by an employee to
successfully perform the essential functions of this job. Reasonable accommodations may be made to enable
individuals with disabilities to perform the essential functions. While performing the duties of this job, the
employee is regularly required to sit; use hands to type; reach with hands and arms; and talk and hear. The
employee frequently is required to stand and walk. The employee must occasionally lift and/or move objects
weighing up to 40 pounds, such as computers, printers, stacks of records, or other similar objects. Specific
vision abilities required by this job include close vision, and ability to adjust focus.
Knowledge, Skills, &
Abilities
Typical:
Required Skills
License Management
• Experience using an enterprise wide software asset management tool.
• Experience in the IT field that demonstrates strong knowledge and understanding of software license
management, knowledge of procurement practices, configuration management or asset management
• IT Asset, Management and Discovery Tools experience
• Experience interpreting licensing terms and conditions
• Minimum of three to five years' experience with software license administration
• Strong understanding of License Use Rights
General
• Must be extremely organized and detail oriented with strong analytical and problem solving skills.
• Ability to plan work to meet goals and deadlines.
• Self -motivated and able to work with minimal supervision.
• Ability to work in a fast -paced environment and manage multiple tasks/priorities
• Ability to work independently and as part of a team
• Team player with the ability to work well within a diverse organization.
• General technical knowledge Information Technology.
• Effective interpersonal, verbal, and written communication skills
Desired Skills
Software Deployment and Asset Management
• Ability to create, customize and automate package using standard Windows Installer format using various
software packaging and deployment tools and techniques.
• Ability to address DLL Conflicts, Windows Registry Environment Variables, and Batch Files.
• Knowledge of VB Scripting, PowerShell, Winbatch, and/or Windows Scripting Host for use In wrapping
application and creating custom actions.
• Knowledge of Windows 7 and Windows XP registries.
• Strong understanding of Windows 7 security and UAC interaction with certification, discovery, packaging,
and QA applications for Windows 7.
• Experience with Implementation of best practices for software deployment, configuration and maintenance
of patches, upgrades and other releases.
• Experience developing application testing plans and supporting documentation.
• Participation In package designs, sequencing, and prototype implementation and gatekeeper functions for
application publishing and delivery.
• Experience creating knowledgebase content for known Issues and document application release work
flows.
• Capable of performing basic application Interoperability and functionality testing.
Work Environment
a
Vol.�� • os
TypiCal' The work environment characteristics described here are representative of those an employee encounters
while perforating the essential functions of this job. Reasonable accommodations may be made to enable
Individuals with disabilities to perform the essential functions. The noise level in the work environment is usually
moderate, but may be noisy or distracting. The employee is required to perform multiple tasks simultaneously
and to perform tedious and exacting work. The employee may be required to work closely with others as part of
a team or perforin required job functions remotely, to work under time pressures to meet deadlines, and to
work in emergency situations.
PPR
Duane Peters D to
County Judge
ED
Vol. �O P9=�
ORDER DIVIDING ONE ELECTION PRECINCT,
COMBINING INTO ANOTHER ELECTION PRECINCT
AND CREATING ANOTHER ELECTION PRECINCT
WHEREAS, the City of Bryan approved Ordinance #2349 annexing 3,802 acres of land
with part of it being located in Voting Precinct 67; and
WHEREAS, the new boundary lines of the City of Bryan do not follow the existing
election precinct lines created by Brazos County; and
WHEREAS, Section 42.007 states "A commissioners court may not establish a county
election precinct containing territory inside a city with a population of 10,000 or more and
unincorporated territory outside the city"; and
WHEREAS, the Commissioner's Court is desirous of complying with the City of Bryan
city limit lines, and the Texas Election Code; and
WHEREAS, compliance with the Texas Election Code requires the division of one (1)
voting precinct and combining the annexed portion into another voting precinct or creating a new
election precinct; and
WHEREAS, Section 42.007 of the Texas Election Code provides for combining election
precincts and creating new election precincts;
NOW THEREFOR BE IT RESOLVED BY THE COMMISSIONERS COURT OF
BRAZOS COUNTY, TEXAS, that
Pursuant to Section 42.007 of the Texas Election Code that Election Precinct 67 be
divided to follow the City of Bryan city limit lines in Brazos County, Texas, to wit:
1. Election Precinct 67 be divided and be combined with Election Precinct 70.-
2.
0;
2. Election Precinct 70 be created to follow the new City of Bryan city limit lines and
vote at the current polling location; and
3. Election Precinct 94 be created that is within the boundaries but not annexed
property.
ADOPTED by the Commissioners Court this 3 day of September, 2019 by a vote of
_AYES and O NAYS.
ATTEST:
Duane Peters, County Judge
Karen McQueen, County Clerk
Vol. �9�_ Pg.,Q1-0--
Recommended
Annexation Area
-J,
.0;
40 41,
//:;,Ooo
00
♦
X
ID
NN
\M
,N
sz�
i ,gip
%
Development Agreements Received
C3 Recommended Annexation Area
-1WT
=213ryan City Limits f
®Brazos County i 0 0.25 0.5.,
S 1A
ORDER DIVIDING ONE ELECTION PRECINCT
AND CREATING ANOTHER ELECTION PRECINCT
WHEREAS, the City of Bryan approved Ordinance #2349 annexing 3,802 acres of land
with part of it being located in Voting Precinct 3; and
WHEREAS, the new boundary lines of the City of Bryan do not follow the existing
election precinct lines created by Brazos County; and
WHEREAS, Section 42.007 states "A commissioners court may not establish a county
election precinct containing territory inside a city with a population of 10,000 or more and
unincorporated territory outside the city"; and
WHEREAS, the Commissioner's Court is desirous of complying with the City of Bryan
city limit lines, and the Texas Election Code; and
WHEREAS, compliance with the Texas Election Code requires the division of one (1)
voting precinct and combining the annexed portion into another voting precinct or creating a new
election precinct; and
WHEREAS, Section 42.007 of the Texas Election Code provides for combining. election
precincts and creating new election precincts;
NOW THEREFOR BE IT RESOLVED BY THE COMMISSIONERS COURT OF
BRAZOS COUNTY, TEXAS, that
Pursuant to Section 42.007 of the Texas Election Code that Election Precinct 3 be divided
to follow the City of Bryan city limit lines in Brazos County, Texas, to wit:
1. Election Precinct 3 be divided;
2. Election Precinct 101 be created to follow the new City of Bryan city limit lines and
vote at the current polling location; and
3. Election precinct 100 be created that is not contiguous to Election Precinct 101; and
4. Election Precinct 95, 96 and 99 be created that is within the boundaries but not
annexed property.
ADOPTED by the Commissioners Court this J day of September, 2019 by a vote of
_AYES and _ 0 NAYS.
ATTEST:
County Clerk
7
Duane Peters, County Judge
/ Recommended / /...
Annexation Area
' ;tib '• ''. /T '��_----.,` ,�; � ' JJ
CP
90
/ R
`�.
k
1, . ` .,'I� • ' '��
,d Development Agreements Received
ORecommended Annexation Area
®Bryan City Limits p�P
®Brazos County i 0 0.25 0.5 1 __
ORDER DIVIDING ONE ELECTION PRECINCT
AND ADDING TO ANOTHER PRECINCT;
AND CREATING ANOTHER ELECTION PRECINCT
WHEREAS, the City of Bryan approved Ordinance #2349 annexing 3,802 acres of land
with part of it being located in Voting Precinct 23; and
WHEREAS, the new boundary lines of the City of Bryan do not follow the existing
election precinct lines created by Brazos County; and
WHEREAS, Section 42.007 states "A commissioners court may not establish a county
election precinct containing territory inside a city with a population of 10,000 or more and
unincorporated territory outside the city"; and
WHEREAS, the Commissioner's Court is desirous of complying with the City of Bryan
city limit lines, and the Texas Election Code; and
WHEREAS, compliance with the Texas Election Code requires the division of one (1)
voting precinct and combining the annexed portion into another voting precinct or creating a new
election precinct; and
WHEREAS, Section 42.007 of the Texas Election Code provides for combining election
precincts and creating new election precincts;
NOW THEREFOR BE IT RESOLVED BY THE COMUSSIONERS COURT OF
BRAZOS COUNTY, TEXAS, that
Pursuant to Section 42.007 of the Texas Election Code that Election Precinct 3 be divided
to follow the City of Bryan city limit lines in Brazos County, Texas, to wit:
1. Election Precinct 23 be divided and combined with. Election Precinct 101;
2. Election Precinct 97, and 98 be created that is within the boundaries but not annexed
Property
ADOPTED by the Commissioners Court this day of September, 2019 by a vote of
AYES and O NAYS.
ATTEST:
Duane Peters, County Judge
Vol.c-1 Pg �_
Recommended
Annexation Area
0.
T / �� r"' /
l - --- _ _ .// r: it //'.-
001�.
Alo
N
4-
'ZI;- Development Agreements Received
CMIRecommencled Annexation Area
®Bryan City Limits CSP
®Brazos County i 0' 0.25 '.0,5..-1
ORDER DIVIDING ONE ELECTION PRECINCT
AND. CREATING ANOTHER ELECTION PRECINCT
WHEREAS, the City of Bryan approved Ordinance #2362 annexing 154.45 acres of land
located in Voting Precinct 3; and
WHEREAS, the new boundary lines of the City of Bryan do not follow the existing
election precinct lines created by Brazos County; and
WHEREAS, Section 42.007 states "A commissioners court may not establish a county
election precinct containing territory inside a city with a population of 10,000 or more and
unincorporated territory outside the city"; and
WHEREAS, the Commissioner's Court is desirous of complying with the City of Bryan
city limit lines, and the Texas Election Code; and
WHEREAS, compliance with the Texas Election Code requires the division of one (1)
voting precinct and combining the annexed portion into another voting precinct or creating a new
election precinct; and
WHEREAS, Section 42.007 of the Texas Election Code provides for combining election
precincts and creating new election precincts;
NOW THEREFOR BE IT RESOLVED BY THE COMMISSIONERS COURT OF
BRAZOS COUNTY, TEXAS, that
Pursuant to Section 42.007 of the Texas Election Code that Election Precinct 3 be divided
to follow the City of Bryan city limit lines in Brazos County, Texas, to wit:
1. Election Precinct 3 be divided;
2. Election Precinct 102 be created to follow the new City of Bryan city limit lines and
vote at the current polling location;
ADOPTED by the Commissioners Court this -3 day of September, 2019 by a vote of
AYES and U NAYS.
ATTEST:
Duane Peters, County Judge
Karen McQueen, County Clerk
_CONTRACT FOR SECURE SHORT-TERM DETENTION SERVICES
RITE OF PASSAGE, INC.
In accordance with provisions of the Governor's Office, Criminal Justice Division and TJJD, Brazos County
Juvenile Board at the request of and on behalf of Brazos County (hereinafter called COUNTY), and Rite of
Passage. Inc. (hereinafter called SERVICE AGENT), by this Agreement, and in consideration of the mutual
promises set forth below, agree that'.
I. CONTRACT PERIOD
The contract period will be effective for a total of 12 months, commencing September 1, 2019 and
ending August 31, 2020.
II. PURPOSE
The purpose of this Secure Short-term Detention Services Agreement is to provide the County with
Short-term Detention Care for children of juvenile age, who are referred to a detention facility for act(s)
of delinquency or act(s) indicating a need for supervision, during pre-trial and pre-dispositional status
or in the post-dispositional treatment prescribed by the Court The placement facility to be utilized is
owned and operated by SERVICE AGENT and the business address of SERVICE AGENT is located
at 2560 Business Parkway,; Suite A, Minden, NV; 89423.
Contract Facility Name Address City / State/ Zip
Lake Granbury Youth Services 1300 Crossland Road Granbury, TX 76048
Ill. SERVICES
The SERVICE AGENT is an educational, vocational and athletic program for at -risk youth. The Service
Agency agrees to provide the following services, which shall be limited to adjudicated juvenile offenders
in licensed child care facilities as follows`.
A. Provide this child with room and board, supervision twenty-four hours per day, seven days a week;
an approved education program; recreation facilities; and counseling to each child placed within
the Facility.
B. Routine medical examination and treatment services within the Facility, which will be pre -approved
by and paid for by the COUNTY.
C.. If emergency examination, EMS treatment, health care treatment and /or hospitalization
outside the Facility ("Outside Treatment") is required for a child placed in the fadility, the
Administrator of the facility Is authorized to secure the Outside Treatment at the expense of
the County. The County agrees to indemnify- and hold harmless Service Agent, its officers,
directors, representatives, agents, shareholders and employees from any and all liability for
charges for Outside Treatment. The Administrator shall notify the appropriate Treatment.
Rite of Passage, Inc.
County Detention Contract
The Administrator shall notify the appropriate County officials of Outside Treatment within
twenty-four (24) hours of its occurrence.
B. Children from the County who are alleged to have engaged in delinquent conduct including a
need for supervision, as reflected in a Child in Need of Supervision Order (C1NS) will be
admitted to the facility under the authority of any Juvenile Court having jurisdiction or its
designated official., Children not released within forty-eight (48) hours (excluding weekends
and holidays) must have a detention hearing in the appropriate Juvenile Court in accordance
with the Texas Family Code, Title III (Section 54.01). If the child is ordered detained, a certified
copy of the Detention Order must be delivered to the detention Facility prior to the child's
re -admission.
C. Each child placed in the Facility shall be required to follow the rules and regulations of conduct
as fixed and determined by the Administrator and staff of the Facility.
D, If child is accepted by the Facility from the County and the child thereafter is determined
to be,'in the sole judgment of the Administrator, mentally unfit, dangerous, ortnmanageable
or whose mental or physical conduct would or might endanger the other occupants of the
Facility, then the Administrator shall notify the Probation Department of the County of this
determination. The child shall immediately be removed from the Facility,. It will be the
responsibility of the County to provide for the transportation for the removal of the child.,
E. Service Agent agrees that the facility will accept any child who qualifes, without regard to
such child's religion, race, creed, sex or national origin.
F. It is further understood and agreed by the parties that children placed in pre -adjudication
care in the facility shall be removed from the Facility by the appropriate authorities from the
County, or its agents, servants or employees at the conclusion of the ten (10) day working
period authorized by the Court Order issued at the conclusion of the initial detention hearing
by the Judge of the appropriate Juvenile Court unless ' a new Order has been issued
authorizing the continued detention, and a copy of the new Order has been delivered to
the Facility, or unless a waiver of the ten (10) working day hearing has been executed and
a signed copy of the waiver is received by the Facility. A copy of the Order issued pursuant
to the waiver shall be furnished to the Facility: The same understanding and agreement
between the parties exists with the exception that the court orders may authorize detention
for up to fifteen (15) working days after the initial hearing and detention period.
G. It is further understood and agreed by the parties that, children may be released to the
Probation Officer or other appropriate authority of the County pursuant to: (a) paragraph
E of this Agreement, (b) an Order of Release signed by the Judge of the Juvenile Court of
the placing County.
H. Service Agent shall be in compliance with all Standards and requirements of the Texas
Page 2 of 11
voa. Q8 Pg. Dig
Rite of Passage, Inc.
County Detention Contract
Juvenile Justice Department and all applicable State and Federal law.
1. Service Agent shall provide twenty (24) hour supervision for the client, 'including awake
staff during sleeping hours in a Secure Facility.
J.. Each child placed in the facility shall be provided the opportunity to complete the
Massachusetts Youth Screening Instrument (MAYSI-2) as required by the Texas Juvenile
Justice Department. Facility personnel administering the MAYSI-2 shall be properly
trained, sign the warning page, and document time and date administered. The MAYSI-
2 shall then be promptly provided to the Juvenile Probation Officer of the detaining
County.
K. Each child placed in the Facility shall be enrolled in an educational program. Special steps
shall be taken to comply with requirements of Special Education students and their needs.
L: It is further understood and agreed by the parties that nothing, in this contract shall be
construed to permit the placing County, its agents, servants, or employees in any way
to manage, control, direct or instruct Service Agent, its directors, officers, employees,
agents, shareholders and designees in any manner respecting its work, dulimor functions
pertaining to the maintenance and operation of the Facility. However, it is also understood
that the Juvenile Court of the County shall control the condition and terms of detention
supervision as to a particular child pursuant to the Texas Family Code, Section 51.12.
IV. COMPENSATION
A. For and in consideration of the above-mentioned services, Juvenile Probation agrees to
pay the Service Agent the sum of $136 per day for each child. The daily rate shall be
paid to the Service Agent -for each day a child is in detention. The cost is based on the
projected actual cost of care for children in the facility.
B. Psychiatric services will be provided to the child on an as needed basis. The initial psychiatric
evaluation and follow-up evaluations will be paid for by Juvenile'Probation at the current contracted
rates. These services and fees will be pre -authorized by the COUNTY.
C; Education services are provided on-site through an accredited charter school. Should the
COUNTY request GED preparation and/or testing, the COUNTY will be responsible for the rates
and fees associated with those services.
D. Service Agent will submit an invoice for payment of services to the Juvenile Probation
Fiscal Officer on a monthly basis. Said invoice shall be submitted with ten (10) working
days following the end of the invoiced month and shall include information deemed
necessary for adequate fiscal control, including but not limited to: to be attributed to
specific clients if appropriate, date service was rendered, total daily cost, and total
monthly cost. Each invoice received for payment will be reviewed by Juvenile Probation
Page 3 of 11
VOL. 2 B Pg. �?�
Rite of Passage, Inc.
County Detentibn Contract
in order to monitor Service Agent for financial compliance with this Agreement. Invoices
submitted by Service Agent in proper form shall be paid by Juvenile Probation in a timely
manner.
E. Service Agent shall account separately for the receipt and expenditure of any and all state
funds received from Juvenile Probation under this contract. Service Agent shall account
separately for state funds received and expended utilizing the following Generally Accepted
Accounting Practices (GAAP):
A. Service Agent has an outside audit completed on a yearly basis which specifies
receipt and expenditure of State funds. Service Agent shall forward a copy of the
annual outside audit to Juvenile Probation by March 1 following the end of the fiscal
year.
B. If Service Agent does not obtain an annual outside audit, then Service Agent shall
provide a separate accounting of funds received from Juvenile Probation in .whole
or in part paid from state funds. The accounting shall clearly list the state funds
received from Juvenile Probation and account for expenditures of said funds
including documentation of appropriate expenditures as well as the year's tax
forms and documentation. The accounting shall be provided to Juvenile Probation
thirty (30) days. prior to the renewal date of the contract.
F. It is understood and agreed by Service Agent that this Agreement is funded in whole or in
part with grant or state funds and shall be subject to termination without penalty, either in
whole or in part, If funds are not available or are not appropriated by the Texas Legislature.
G. In the event that State Reimbursement Rates are increased during the duration of the terms
of this contract, the new rates will become effective reflecting those of the increase.
H. Service Agent agrees to make claims for payment or direct any payment disputes to Juvenile
Probation's Fiscal Officer. Service Agent will not contact other department employees regarding
any claims of payment.
I. Service Agent will provide certification of eligibility to receive State funds as required by Texas
Family Code Section 231.006,
J. Except to the extent that a party to this Agreement seeks emergency judicial relief, the parties
agree to negotiate in good faith in an effort to resolve any disputes related to this contract that may
arise, no matter when the dispute may arise. If a dispute cannot be resolved by negotiation, the
dispute shall be submitted to mediation before the parties resort to arbitration or litigation. The
parties shall choose a mutually acceptable mediator to mediate the dispute, and the parties shall
pay the cost of mediation services equally..
Page 4 of 11
V®I.
Pg.�Z
Rite of Passage, Inc.
County Detention Contract
V. ADDITIONAL TERMS AND AGREEMENTS
A. Prior to transporting a child to the Facility for placement in Secure Short -Term Detention, the
official authorizing the placement shall call the Facility to ensure that space is available. Placement
of children by authorized officers of Juvenile Probation may be denied if space limitations
require as determined by the Facility.
B. A child will only be accepted in the Facility upon receipt by the Facility Administrator of a
proper order 1 Authorization for Detention from the Juvenile Court of the County.
C. Itis understood and agreed that any youth placed in the facility, by the contracted County,
shall be responsible for any damages caused by their youth. The Service Agent shall
notify the placing agency of such damages and provide estimates l invoices as soon as
they're available. Total cost of damages shall be placed on the normal monthly billing
statement, when all cost of Repairs have been received.
D. Each placed in the Facility shall be required to follow the rules and regulations of conduct
as fixed and determined by the Administrator and staff of the Facility.
E. This contract, terms and agreements are transferable.
VI. EXAMINATION OF PROGRAM RECORDS
A Service Agent agrees that it will permit Juvenile Probation to examine and evaluate its
program of services provided under the terms of thisagreement and / or to review its
records periodically. This examination and evaluation of the program may include site
visitation, observation of programs in operation, interview and the administration of
questionnaires to the staff. of Service Agent and the children when deemed necessary.
B. Service Agent shall provide to Juvenile Probation such descriptive information on contracted
children as requested on forms provided by Juvenile Probation.
C. For purpose of evaluation, inspection, auditing or reproduction, Service Agent agrees to
maintain and make available to authorized representatives of the State of Texas or
Juvenile Probation any and all books, documents or other evidence pertaining to the
costs and expenses of this Agreement.
D. Service Agent will keep a record of all services provided to Juvenile Probation under this
Agreement, and upon reasonable notice will provide information, records, papers, reports,
and other documents regarding services fumished as may be requested by Juvenile
Probation. Service Agent will maintain the records (as referenced above) for three (3) years
after the termination of this Agreement.
E. "Contractor understands that acceptance of funds under this contract acts as acceptance
Page 5 of 1 I
Rite of Passage, Inc.
County Detention Contract
of the authority of the State Auditor's Office, or any successor agency, to conduct an audit
it or investigation in connection with those funds. Contractor further agrees to cooperate
fully with the State Auditor's Office or its successor in the conduct of the audit or
investigation, including providing all records requested. Contractor will e n s u re that this
clause concerning the authority to audit funds received indirectly by subcontractors through
the Contractor and the requirement to cooperate is included in any subcontract it awards"
VII. CONFIDENTIALITY OF RECORDS
Service Agent shall maintain strict confidentiality of all information and records relating to
children involved in Juvenile Probation and shall not re -disclose the'iitformation except as
required to perform the services to be provided pursuant to this Agreement, or as may be
required by law.
VIII. DUTY TO REPORT
As required by §§261.101 and 261.405 of the Texas Family Code, Service Agent shall report
any allegations or incident of abuse, exploitation or neglect of any child (including but not limited
to a juvenile that has been placed by Juvenile Probation) within twenty-four (24) hours from
the time the allegation is made, to all of the following:
A. Local law enforcement agency (such as the Granbury Police Department);
0. Texas Juvenile Justice Department by submitting a TJJD Incident Report Form to facsimile number
1-512-424-6717 (or if unable to complete the form within 24 hours, then by calling toll-free 1-877-
786-7263, followed by submitting the reportwithin 24 hours of said call); and
C. Brazos County.
IX. DISCLOSURE OF INFORMATION
Service Agent warrants that, prior to entering this contract, it has verified and disclosed the following
information to Juvenile Probation, and agrees that it shall have an ongoing affirmative duty under this
Agreement to promptly ascertain and disclose in sufficient detail this same information to Juvenile
Probation:
A Any and all corrective action required by any of Service Agent's licensing authorities;
B. Any and all litigation filed against the Service Agent, or against its employees, interns,
volunteers, subcontractors, agents and / or consultants that have direct conflict with juveniles;
C. Any arrest of any employee, intern, volunteer, subcontractor, agent and /or consultant of the
Service Agent that has direct contact with juveniles;
Page 6 of 11
vol. Z Pg. 3
Rite of Passage, Inc.
County Detention Contract
D. Any finding of "Reason to Believe" by a stale regulatory agency in a child abuse, neglect and
exploitation investigation where an employee, intern, volunteer, subcontractor; agent and/or
consultant of the Service Agent that has direct contact with juveniles was the alleged or
designated perpetrator,
E. The identity of any of the Service Agent's employees, iintems, volunteers, subcontractors,
agents and/or consultants that have direct contact with juveniles that are registered sex
offenders; and
F. The identity of any of the Service Agent's employees, intems, volunteers, subcontractors,
agents and / or consultants that have direct contact with juveniles that have criminal history., For
the purpose of this Agreement, the term "criminal history" shall include: (1) current felony or
misdemeanor probation or parole; (2) a felony conviction or deferred adjudication within the past
ten years; or (3) a jailable misdemeanor conviction or deferred adjudication within the past five
years.
X. EQUAL OPPORTUNITY
Service Agent agrees to respect and protect the civil and legal rights of all children and their
parents. During the performance of this contract the Service Agent agrees it:
a) Will not discriminate against any child, childcare Agent, parent, employee or applicant for
employment because of race, color, religion, sex or national origin including but not limited to
employment, promotion, demotion or transfer, recruitment or advertising, lay-off or termination,
rates of pay or other forms of compensation and selection for training, including apprenticeship.
The Service Agent agrees to post in conspicuous places, available to employees and applicants
for employment, notices to be provided setting forth the provision of this non-discrimination.
b) Will, in all solicitations or advertisement for employees placed by or on behalf of the Service
Agent, state that all qualified applicants for positions in the Facility, will receive consideration
for employment without regard. to race, color, religion, sex, or national origin.
c) Shall abide by all applicable federal, State and local laws and regulations..
XI. OFFICIALS NOT TO BENEFIT
No officer, employee or agent of Juvenile Probation and no member of its governing body and
no other public officials of the governing body of the locality or localities in which the project is
situated or being carried who exercise any functions or responsibilities in the project, shall
participate in any decision relating to this Agreement which affects or conflicts with his / her
personal interest or have any personal or pecuniary interest, director indirect, in this Agreement
or the proceeds thereof.
Page 7 of I I
Rite of Passage, Inc.
County Detention Contract
XII. DEFAULT, SANCTIONS, PENALTIES FOR BREACH OF CONTRACT
Juvenile Probation may, by written notice of default to Service Agent, terminate the whole or any
part of this Agreement, as it deems appropriate, in any one of following circumstances:
A. If Service Agent fails to perform the work called for by this Agreement within the time'specified
herein or any extension thereof, or
B. If Service Agent fails to perform any of the other material provisions of this Agreement,
including failure to achieve the defined goals, outcomes, and outputs, or so fails to prosecute
the work as to endanger the performance of this Agreement in accordance with its terms, and
in either of these two circumstances after receiving notice of default, Service Agent does not
cure such failure within a period of ten (10) days.
C. Except to the extent that a party to this Agreement seeks emergency judicial relief, the parties
agree to negotiate in good faith in an effort to resolve any disputes related to this contract
that may arise, no matter when the dispute may arise. If a dispute cannot be resolved by
negotiation, the dispute shall be submitted to mediation before the parties resort to arbitration
or litigation. The parties shall choose a mutually acceptable mediator to mediate the dispute,
and the parties shall pay the costs of mediation services equally,
D. The prevailing party in any lawsuit arising out of this Agreement will be entitled to Attorney's fees
from the other party, including actions for declaratory relief.
E-. The prevailing party in any lawsuit arising out of this Agreement will be entitled to Attorney's fees
from the other party, including actions for declaratory relief. Al notices required under this
Agreement shall be in writing. They shall be sent by fax or by registered U.S. mail, return receipt
requested, to the party at the addresses listed below. A party must provide notice of a change of
address during the term of this Agreement, Unless specified otherwise, notice required in this
Agreement shall be deemed to have been received when actually received.
Rite of Passage-LGYS Brazos County
2560 Business Parkway Juvenile Probation
Minden, NV 89423 1401 Highway 21 W
Bryan, TX 77803
F. Captions in this Agreement are for convenience only and shall be deemed irrelevant in construing
the provisions of the Agreement.
G. The parties intend that, in construing and enforcing the provisions of the Agreement, mediators and
judges shall give maximum effect to the principles of contractual freedom and contractual
enforceability.
H. if any court finds any provision of this Agreement to be invalid or unenforceable, this finding shall
not affect the validity or enforceability of any other provision of the Agreement.:
Page 8 of 11
Vol.
an Pg.�
Rite of Passage, Inc.
County Detention Contract
I: No express or implied waiver by any party of any right of that party under this Agreement in any
specific circumstance shall be considered to waive that right of the party in any other circumstance.
J.. The covenants and agreements in this Agreement are binding on and issued to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives, successors,
and assigns.
XIII. TERMINATION
The initial term of this Contract shall be for a period of twelve months from the effective date; however,
if either party feels in its judgment that the contract cannot be successfully continued,: and desires to
terminate this contract, then the party so desiring to terminate may do so by notifying the other party in
writing, by certified mail or personal delivery to its principal office, of its intention to terminate the
contract thirty (30) calendar days from the date of the Notice of Termination. At 12:00 o'clock Midnight,
thirty (30) calendar days after the date of the Notice of Termination, this contract shall terminate,
become null and void, and be of no further force or effect. Such termination shall not affect or diminish
the County's responsibility for payment of any amounts due and owing at the time of termination of the
contract. The County shall remove at its expense all children placed in the Facility on or before the
termination date.
XIV. INDEMNIFICATION
It is further agreed that Service Agent will indemnify 'and hold harmless the County, against
any and all negligence, liability, loss, cost, claims or expenses arising out of wrongful and
negligent act(s) of commission or omission by Service Agent, its agents, servants or
employees arising from activities under this contract. Service Agent shall have no obligation
to indemnify and hold harmless the County for any act(s) of commission or omission of the
County or the County's agents, servants, or employees arising from or related to this contract
for which a claim or other action is made.
XV.REPRESENTATIONS & WARRANTIES
Service Agent hereby represents and warrants the following:
A That it has all necessary right, title, license and authority to enter into this Agreement;
B. That is qualified to do business in the State of Texas; that it hold all necessary licenses -and
staff certifications to provide the type(s) of services being contracted for, that it is in
compliance with all statutory and regulatory requirements f r the operations of its business;
and that there are no taxes due and owing to the State of Texas, the County, or any
political subdivision thereof;
C. Service Agent will maintain in force policies of general liability insurance against loss to any
person or property occasioned by acts or omissions of Service Agent. Certified copies of
Page 9 of 11
Vol. -2q-8 Pg. o� a
Rite of Passage, Inc.
County Detention Contract
original insurance policies shall be fum'ished to Juvenile Probation. Furthermore, the Juvenile
Probation shall be notified immediately upon any changes in the status of insurance
policies and shall promptly furnish updated certificates of insurance to Juvenile Probation.
D. That all of its employees, interns, volunteers, subcontractors, agents and/or consultants
will be properly trained to report allegations or incidents of abuse, exploitation or neglect
of ajuvenile in accordance with the requirements of Texas Family Code Chapter 261 and
any applicable Texas Juvenile Justice Department administrative rules regarding abuse,
neglect and exploitation allegations.
XVI. TEXAS LAW TO APPLY
The 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 Brazos County, Texas.
XVII. VENUE
Exclusive venue for any litigation arising from this Agreement shall be in Brazos County, Texas
XVIII.LEGAL CONSTRUCTION
In case any one or more of the provisions contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceable provision
shall not affect any other provision thereof and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained therein.
XIX. PRIOR AGREEMENTS SUPERSEDED
This Agreement constitutes the sole and only Agreement of the parties hereto and supersedes any
prior understandings or written or oral Agreement between the parties respecting the within subject
matter:
XX -PRISON RAPE ELIMINATION ACT (PREA)
A. Service Agent shall comply with all federal, state, county and city laws, ordinances, regulations and
standards applicable to the provision of services described herein and the performance of all
obligations undertaken pursuant to this contract, including the prison Rape Elimination Act of 2003
(PREA) which establishes a zero -tolerance standard againstsexual assaultof incarcerated person,
including juveniles and addresses the detection, elimination, prevention, and reporting of sexual
assault in facilities housing adult and juvenile offenders.
B. Under PREA, Service Agent shall make available to the chief Juvenile Probation Officer all incident -
based aggregated data reports for every allegation of sexual abuse at its facility or facilities, and all
Page 10 of 11
vol. _ate Pg.
Rite of Passage, Inc.
County Detention Contract
such data maybe requested by the Department of Justice form the previous calendar year no later
than June 30th (PRFA 115.387 (e) and (f)j.
C. All Contracted Counties shall ensure that their Department employees and / or employees of other
agencies that Contracted County send to the service Agent's location (facility), have completed
PREA training.
This Contract and Agreement is executed with the declared intention of the parties that this Contract
and Agreement is a contract providing for the care of children who have allegedly committed an act
of delinquency or an act indicating a need for supervision, and payment for such care will be made
by the County having juvenile jurisdiction for the children placed in the Facility.
Riibet of Pawage, Inc.
By:
Carolyn Jen d s -Biter
Old Financi 9 Offtcer
Br ou b J ' Rr t;diQn
By: .
iretrlor or; et; gnee
Brazos County Juvenile Probation Services
By_.
Bravos Couaty Juven% Board Representative
Page 11 of 11
ON 20 ! FULLY EXECUTED IN
DUPLICATE, EACR OF WHICH SHALL HAVE THE FULL FORCE AND EFFECT OF AN
ORIGINAL.
Brazos County Commissioners Court
By:
Duane Peters, County Judge
200 S. Texas Ave., Ste. 332
Bryan, TX 77803
Phone: 979-361-4102
Fax: 979-361-4503
—(!?hhcg�
Date
�a 1
•.. �.
_CONTRACT FOR RESIDENTIAL SERVICES
RITE OF PASSAGE, INC.
In accordance with provisions of the Governor's Office, Criminal Justice Division and TJJD, Brazos County Juvenile
Board at the request of and on behalf of Brazos County Juvenile Probation (hereinafter called COUNTY), and Rite
of Passage, Inc. (hereinafter called SERVICE AGENT), by this Agreement, and in consideration of the mutual
promises set forth below, agree that:
I. CONTRACT PERIOD
The contract period will be effective from September 1, 2019 through August 39, 2020. This Contract shall
automatically renew and extend for an additional one-year period on the first day of September of each
succeedinQvear unless COUNTY gives written notice to SERVICE'AGENT not less than 30 days prior to
the first dor of September of such succeeding anniversary. This renewal and extension is subiect to the
availability of funds for the contract year to the allocation of funds to meet the terms of this contract and
subject to the approval of the County Juvenile Probation Department and/or Juvenile Board This contract
need not be specifically Identified In the budget or budget process Upon renewal and extension of this
contract, all dates sums set forth herein shall be deemed modified as necessary to reflect the new and
extended term of the contract.
iI. PURPOSE
The purpose of this Residentlal Services Agreement Is to provide COUNTY with long term residential Care for
children adjudicated to have committed delinquent conduct. The placement facility to be utilized Is owned and
operated by SERVICE AGENT and the business address of SERVICE AGENT is located/at 2560 Business
Parkway, Suite A, Minden, NV, 89423. '
Contract Facility Name Address City / Statel Zip
Lake Granbury Youth Services 1300 Crossland Road Granbury, TX 76048
III. SERVICES
The SERVICE AGENT is an educational, vocational and athletic program for at -risk youth. The Service Agency
agrees to provide the following services, which shall be limited to adjudicated juvenile offenders in licensed
child care facilitles as follows:
A. Provide this child with the nurture, care, clothing, treatment and training suited to his/her needs.
B. Room & board, clothing, personal needs, recreation, incidentals, supervision, education, and social
services.
C. Transportation. Transportation Includes escorted admission into the program and unescorted exit for
students who have graduated/ completed the program. Students who do not complete the program will
receive an escorted exit.
D. It is the responsibility of the placing agency to pay for psychotropic medications that are prescribed to
student.
Vol.i
. ' g �-
Rite of Passage, Inc.
Residential Contract
E. Follow admission requirements related to medical screening, physical examination, medical testing and
immunization.
F. Encourage the maintenance of the natural parent-child relationship and include the child's parents in the
treatment plan when possible.
G. Not use corporal punishment, deprivation of meals, monetary allowances, visits from parents, home visits,
threat of removal or any type of degrading or humiliating punishment and to use constructive altemative
methods of discipline.
H. Respect and keep confidential information given about the child and their family.
I. Work toward termination of placement on a planned basis with maximum Involvement of the child, parents
and the agency.
J. Conduct a staffing or review on this child at least quarterly.
K. Submit an initial diagnostic summary to the agency within three (3) months from the date of placement.
L. Submit ongoing written evaluations to the agency and/or parents or guardians quarterly.
M. immediately notify responsible party of significant changes in this child's health, behavior or location.
N. Submit copies of any pertinent Information such as school reports. Medical reports and
psychological/psychlatric reports as completed.
O. Give responsible. party prior notice of at least 7 days of intent to discharge this child unless It is agreed
upon with the agency that less notice is necessary.
P. Conform to the applicable facility licensing/certification requirements.
Q. Provide access to appropriate parties of documentation when documentation is maintained on children in
their care.
R. Notify the agency and/or parents or guardians immediately if an application is made on behalf of this child
for any kind of income. Examples of income include, but are not limited to, child support payments,
Veterans Benefits, Railroad Retirement, Social Security, RSHDI, and Supplemental Security Income/State
Supplemental Program (SSI/SSP).
S. Remit to Department of Public Social Services any income received on behalf of this child while in foster
care up to the full cost of board and care plus medical cost. In addition, the agency will cooperate to have
the Social Security Adhilnistration, or the appropriate agency, make the Department of Public Social
Services the payee for any funds received on behalf of this child.
T. Provide and document paraprofessional counseling, off -campus visits or furloughs, major incidents and
worker contacts. COUNTY must approve the child's participation in any furloughs, home visits, or extended
agency trips.
U. Ensure that the child's parent(s) or legal guardian(s), COUNTY, and specifically the County Placement
Officer, including Texas Department of Juvenile Justice are notified if a child in placement makes an
unauthorized departure, becomes seriously ill, or is involved in a serious accident. The COUNTY and
parent(s) or legal guardian(s) will be informed immediately If during working hours. After normal working
hours, the Juvenile Services On -Call Officer will be notified as soon as possible, as well as the parent(s) or
legal guardian(s). In the event of serious illness or accident and for any required follow-up care SERVICE
Page 2 of 10
Vol. _aqPg. a31
Rite of Passage, inc.
Residential Contract
AGENT shall be responsible for having the child transported to the nearest hospital or emergency care
facility. If the child returns to the SERVICE AGENT within ten (10) days or prior to the last bllling day of the
month, whichever shall receive payment for those days the child was absent from the SERVICE AGENT,
but not to exceed ten (10) days payment.
V. Recognizing that a part of a child's rehabilitation program may include time away from the residential
setting of the SERVICE AGENT such as weekends, holidays, etc., and that the SERVICE AGENT must
retain space for this child until their return, COUNTY will pay the SERVICE AGENT the herein agreed upon
amount for such regularly scheduled days away from the SERVICE AGENT of its program providing they
do not exceed ten (10) days at any one time.
W. The SERVICE AGENT Is under no obligation to retain space for the child in unauthorized departure
situations.
X. The SERVICE AGENT is under no obligation to accept a child who is deemed inappropriate for placement
in the program by the SERVICE AGENT.
The COUNTY Agrees to the following:
A. Conduct a pre -placement visitation of the Rite of Passage sites. This visitation may be waived.
B. Acknowledge that Rite of Passage is a behavior modification and treatment program for at -risk youth.
C. Provide Rite of Passage the necessary background information and needs of the child necessary for
effective care. This shall include a social work assessment, medical reports, educational assessment,
psychologicaUpsychlatric evaluations, and identification of special needs when necessary. This shall be
made available to Rite of Passage within 14 days from date of placement.
D. Work with Rite of Passage toward development of a treatment plan.
E. Work toward termination of child's placement with Rite of Passage staff.
F. Continue paying for this child's care as long as eligible and Rite of Passage maintains child on an active
status or until Rite of Passage requests that placement be terminated.
G. Assist In the maintenance of the child's constructive relationships with parents and other family members.
H. Contact this child In Rite of Passage at least once a month. If case plan would Indicate less -frequent
contact, Rite of Passage will be Informed.
I. Inform Rite of Passage If child has any tendencies toward dangerous behavior.
J. Provide proof of medical coverage at the time of placement (if Applicable). If no medical coverage exists,
payment is the responsibility of the County.
K. Provide authorization for medical treatment, signed by parents or legal guardian.
L. County agrees to pay for treatment for youth placed with the SERVICE AGENT who had a pre-existing
medical condition, unless treatment for the pre-existing condition Is part of the rehabilitation program of the
SERVICE AGENT.
M. COUNTY agrees to pay all medical and/or dental bills if:
I) The SERVICE AGENT notifies the COUNTY or designee prior to the services being rendered; or;
Page 3 of 10
vol. Pg. 3oL
Rite of Passage, Inc.
Residentl Contract
11) lf, in vendor's (physician and/or dentist) opinion, the services cannot be delayed a sufficient amoun of
time to comply with the above without hardship to the youth; and,
iii) The SERVICE AGENT notifies the COUNTY and/or designee of the probable charges the next working
day after services are provided.
tv) As appropriate, the SERVICE AGENT will provide proof of Medicaid coverage to the Medical Service
Provider to enable them to seek Medicaid payment for medical services rendered.
N. Consent to. the Handle with Care Safe Physical Management Physical Restraint Procedure as the method
used by certified Rite of Passage personnel to Intervene with harmful behavior.
0. Consent to the Rite of Passage REFOCUS Programs as the protocol for students being placed in
protective separation rooms.
P. Consent to Rite of Passage Runaway Policy as the protocol for procedures for the truant student.
Q. Consent to the child participating in rigorous physical training and individual and team sports.
R. Represent that the child has no physical ailments or conditions that would prevent him from participating in
rigorous physical activities.
N. COMPENSATION
A. For and in consideration of the above-mentioned services, COUNTY agrees to pay SERVICE AGENT the
per diem rates based upon the IV -E Level of Care provided, currently $197.69, in accordance with the
Post -Adjudication Secure Correctional Facility schedule of rates set by the Texas Juvenile Justice
Department as currently effective or subsequently amended.
B. Psychiatric services will be provided to the child on an as needed basis. The Initial psychiatric evaluation
and follow-up evaluations will be paid for by Juvenile Probation at the current contracted rates. These
services and fees will be pre -authorized by the COUNTY.
C. Education services are provided on-site through an accredited charter school. Should the COUNTY
request GED preparation and/or testing, the COUNTY will be responsible for the rates and fees associated
with those services.
D. SERVICES AGENT will submit an invoice for payment of services to COUNTY on a monthly basis. Said
Invoice shall be submitted no later than ten (10) days -following the end of the invoiced month and shall
include information deemed necessary for adequate fiscal control, including but not limited to: name of the
child or children for whom payment is being requested along with the number of days (stated
consecutively), date service was rendered, hourly rate, total daily cost, and total monthly cost. Each
Invoice received for payment will be reviewed by COUNTY in order to monitor SERVICE AGENT for
financial compliance with this Agreement. Invoice submitted by SERVICE AGENT in proper form shall be
paid by COUNTY in a timely manner.
E. SERVICE AGENT is hereby notified that state funds are used to pay for services rendered to COUNTY.
For this reason, SERVICE AGENT shall account for the receipt and expenditure of all funds received from
COUNTY, and shall adhere to Generally Accepted Accounting Principles (GAAP) In the accounting,
reporting and auditing of such funds. In the event of an investigation by the TJJD or COUNTY, the
Page 4 of 10
Vole co --A"6 Pg. 3
Rite of Passage, Inc.
Residentlal Contract
SERVICE AGENT shall submit to COUNTY upon request a financial audit prepared by independent
certified public accountant.
V. INDIVIDUAL CASE PLAN AND FAMILY INVOLVEMENT
A. Each child placed with the SERVICE AGENT shall have a written Individualized Case Plan (ICP),
developed In concert with the child and mutually agreed upon by the appropriate SERVICE AGENT staff
and appropriate county personnel along with a family member within thirty (30) days of placement,
identifying which of the nine (9) domains pertain to the child. The Case Plan shall be reviewed every 3
months (90 days) thereafter or more often If necessary, until the child is released from the program.
B. The ICP shall contain the reasons why the placement will benefit the child and specify behavior goals and
objectives as they pertain to the nine (9) domains being sought for each child. Included shall be how the
goals and objectives are to be achieved in the SERVICE AGENT placement. The ICP shall state how the
parent(s), guardian(s), and where possible, grandparents or other extended family members will be
Involved in the Individual Program Plan to assist in preventing or controlling the child's alleged delinquent
behavior or alleged conduct indicating a need for supervision as defined in the Texas Family Code.
C. Copies of the original ICP and the periodic reviews are to be maintained by the SERVICE AGENT and the
COUNTY.
D. COUNTY reserves the right to terminate the child's placement at the SERVICE AGENT at Its discretion.
The SERVICE AGENT must not release a child to any person or agency other than the COUNTY without
the express consent of the COUNTY.
E. Unless otherwise stipulated by COUNTY, the child may visit freely with parents and relatives at the home in
accordance with established SERVICE AGENT policies.
F. Suspected .or. alleged cases of child abuse must be immediately reported to the COUNTY 'and the
Department of Human Services by the SERVICE AGENT.
VI. EXAMINATION OF PROGRAM AND RECORDS
A. The SERVICE AGENT agrees that it will permit the COUNTY to examine and evaluate its program of
services provided under the terms of this contract and to review COUNTY child records. This examination
and evaluation of the program may include unscheduled site visitations, observation of programs in
operation, interviews, and the administration of questionnaires to the staff of the SERVICE AGENT and the
child.
Page 5 of 40
Vol. Pg.
Rite of Passage, inc.
Residandai Contract
B. The SERVICE AGENT shall provide to the COUNTY such descriptive Information on contracted child as
requested on forms provided by the COUNTY.
C. The SERVICE AGENT agrees to maintain and make available for inspections, audit or reproduction by an
authorized representative of COUNTY and the State of Texas, books, documents, and other evidence
pertaining to the cost and expenses of this contract, (hereinafter called the "records").
D. The SERVICE AGENT shall retain all applicable records for a minimum of seven years or until any pending
audits and all questions arising there from have been resolved.
E. Provide the COUNTY with a written report of the child's progress on a monthly basis in a Monthly Progress
Report.
F. Document and maintain records pertaining to the effectiveness of goods and services provided to
contracted children, These records shall contain, but are not limited to:
I. percentage of youth in program successfully achieving set education goals,
ii. percentage of youth achieving set vocational goals,
iii. percentage of youth achieving set social skills goals,
iv. percentage of youth demonstrating overall progress,
Y. number and type of investigations made by the TXDFPS or any law enforcement agency due to
reports of abuse and/or neglect.
These records shall be made available to COUNTY for periodic inspection.
G. Service Provider shall adopt and comply with all federal, state, county, and city laws, ordinances,
regulations and standards applicable to the provision of services described herein and the performance of
all obligations undertaken pursuant to this Contract, including the Prison Rape Elimination Act of 2003
(PREA). The service provider has a zero tolerance towards all forms of sexual abuse and sexual
harassment in--dccordance with the provision of the Prison Rape Elimination Act of 2003 that provides for '
administrative and/or criminal disciplinary sanctions. The service provider shall adopt policies and comply
with the Prison Rape Elimination Act of 2003 (28 CFR SS 115) standards and shall permit the placing
county to monitor its facility and records as necessary to ensure that the Service Provider is complying with
said standards. Under the provisions of the Prison Rape Elimination Act of 2003, the Service Provider shall
provide to the placing county all Incident -based aggregate date reports for every allegation of sexual abuse
or sexual harassment and all such data that may be requested by the Department of Justice from the
previous calendar year no later than June 30 (SS115.387 (f)j and the data necessary to answer all
questions from the most recent version of the Survey of Sexual Violence. The Service Provider shall report
to the placing county in writing within 15 days any positive findings by a court or governmental agency that
the Service Provider has violated a relevant federal statute or rule.
Vol. ��� Pg" Pads 6of10
Rite of Passage, Inc.
H. Service Provider shall assist fully with any and ail audits. Residential Contract
VII. CONFIDENTIALITY OF RECORDS
A. SERVICE AGENT shall maintain strict confidentiality of all information and records relating to children
involved with COUNTY, and shall not re -disclose the information except as required to perform the services
to be provided pursuant to this Agreement, or as may be required by law.
Vill. DISCLOSURE OF INFORMATION
A. SERVICE AGENT warrants that, prior to entering this contract, it has verified and disclosed the following
information to COUNTY, and agrees that it shall have an ongoing affirmative duty under this Agreement to
promptly ascertain and disclose in sufficient detail this same information to COUNTY:
I. Any and all corrective action required by any of SERVICE AGENT's licensing authorities;
If. Any finding of "Reason'to Believe" by a state regulatory agency In a child abuse, neglect and
exploitation investigation where an employee, intern, volunteer, subcontractor, agent and/or
consultant of SERVICE AGENT that has direct contact with juveniles was the alleged or designated
perpetrator;
III. The identity of any of SERVICE AGENT's employees, Interns, volunteers, subcontractors, agents
and/or consultants that have direct contact with juveniles that have a criminal history. For the
purpose of this Agreement, the term criminal history shall include: (1) current felony and
misdemeanor probation or parole; (2) a felony conviction or deferred adjudication within the past
ten (10) years; or (3) a jail able misdemeanor conviction or deferred adjudication within the past
five (5) years.
IX. ASSURANCES
A. The SERVICE AGENT Is accountable for delivery of quality services and shall provide information
necessary to enable COUNTY to comply with standards of TJJD and to measure progress toward specified
Goals and Outcomes, if applicable. „
B. Under Section 231.006, Family Code, the SERVICE AGENT certifies that the individual or business entity
named in this contract is not Ineligible to receive the specified payment and acknowledges that this contract
may be terminated, and payment may be withheld if this certificate is inaccurate.
C. The SERVICE AGENT understands that acceptance of funds under this contract acts as acceptance of the
authority of the State Auditor's Office, or any successor agency, to conduct an audit or investigation in
connection with those funds. SERVICE AGENT further agrees to cooperate fully with the State Auditor's
Office or its successor in the conduct of the audit or Investigation, Including providing all records requested.
SERVICE AGENT will ensure that this clause concerning the authority to audit funds received indirectly by
Page 7 of 10
Vol. q..—._ Pg. a3(-_
Rite of Passage, Inc.
Realdentlal Contract
subcontractors through SERVICE AGENT and the requirement to cooperate is Included in any subcontract
it awards.
D. The SERVICE AGENT will pay all taxes, if any, required by law arising by virtue of the services performed
hereunder. The COUNTY Is qualified for sales tax exemption pursuant to Section 151.309 of the Texas
Limited Sales Excise and Use Tax Act.
E. The SERVICE AGENT currently meets and shall comply with all applicable state and federal laws and
licensing and/or certification requirements pertinent to the SERVICE AGENT's provision of services under
this agreement and must notify COUNTY within 24 hours of any future failure to meet licensing
requirements. Failure to comply with this requirement will be treated as a default.
F. Neither COUNTY nor any employee thereof is an agent of the SERVICE AGENT and neither SERVICE
AGENT nor any employee thereof is an agent of COUNTY. This agreement does not and shall not be
construed to entitle either party or any of their respective employees, If applicable, to any benefit, privilege
or other amenities of employment by the other party.
G. SERVICE AGENT agrees to indemnify and hold harmless the COUNTY against any and all claims,
lawsuits, settlements, judgments, penalties and expenses, including attorney's fees, with respect to
SERVICE AGENT'S performance under this contract for which the SERVICE AGENT is liable.
H. No person not a party to this contract may bring a cause of action pursuant to this contract as a third -party
beneficiary. This contract may not be interpreted to waive the sovereign immunity of any party to this
contract to the extent such a party may have immunity under Texas law.
I. SERVICE AGENT agrees to comply with all applicable laws, regulations and conditions required of TJJD
forjuvenile boards, juvenile probation departments and their subcontractors.
X. REPRESENTATION AND WARRANTIES
SERVICE AGENT hereby represents and warrants the following:
A. That it has all necessary right, title, license, and authority to enter into this Agreement;
B. That it carries sufficient insurance to provide protection to COUNTY under the indemnity provisions as well
as for any potential liabilities that arise form or related to this Agreement; and
C. That all of its employees, Interns, volunteers, subcontractors, agents and/or consultants will be properly
trained to report allegations or Incidents of abuse, exploitation or neglect of a juvenile in accordance with
the requirements of Texas Family Code, Chapter 261 and any applicable TJJD administrative rules
regarding abuse, neglect and exploitation allegations.
XI. FEE ASSESSMENT
Page a of t0
Vol. '-) Pg.
Rite of Passage, Inc.
Residential Contract
A. Children or their families shall not be assessed fees for services by the SERVICE AGENT unless
arrangements are specified by the Court. This does not preclude reasonable attempts to seek voluntary
contribution from families of county children for donations of clothing, personal articles, and funds to assist
in supporting a youth's rehabilitation.
B. if a child Is eligible for fiscal support from another state agency or organization, the SERVICE AGENT shall
ensure that COUNTY is not charged for such fiscal support for which the child is otherwise eligible.
XII. EQUAL OPPORTUNITY
A. Services shall be provided by the SERVICE AGENT in compliance with the Civil Rights Act of 1964. The
SERVICE AGENT will not discriminate against any employee, applicant for employment, or child because
of race, religion, sex, national origin, age or handicapped condition.
B. The SERVICE AGENT will take affirmative action to ensure that applicants are employed, and that the
employees are treated during employment without regard to their race, religion, sex, national origin, age, or
handicapped condition.
X1111 -OFFICIALS NOT TO BENEFIT
A. No officer, member or employee of COUNTY and no member of its governing body, and no other public
officials of the governing body of the locality or localities in which the project is situated or being carried out
who exercise any functions or responsibilities in the review or approval of the undertaking or carrying out of
this project, shall participate in any decision relating to this contract which affects his personal interest or
have any personal or pecuniary interest, direct or indirect in this contract or the proceeds thereof.
XIV. TERMINATION
A. Termination —Without Cause:
This contract may be terminated by either patty by providing written notice to the other party at least thirty (30)
days prior to the intended date of termination. Any notice or other writing required by this contract shall be
deemed given when personally delivered or mailed certified or registered United States Mail, postage prepaid,
addressed as follows:
Rite of Passage, Inc.
2560 Business Parkway, Suite A
Minden, NV 89423
Brazos County Juvenile Probation
1401 Highway 21 W
Bryan, TX 77803
B. Funding out: Service provider contracts that are funded in whole and in part with grant funds shall be
subject to termination without penalty, either in whole or in part, if funds are not available or are not
appropriated by the Texas Legislature.
Page 9 of 10
Vol. a� Pg. a 3 �
Rite of Pawage, Inc.
Residential Contract
B. Termination —With Cause:
The COUNTY may terminate this contract within thirty (30) days of delivery of written notice for SERVICE
AGENT'S failure to achieve the defined goals, outcomes, strategies and outputs as set forth in the provisions
and attachments to this contract and/or SERVICE AGENT'S failure to comply with all terms and conditions set
forth In this contract. Notice of termination shall be deemed given to SERVICE AGENT when personally
delivered or mailed certified or registered United States Mail, postage prepaid at the address listed above in
Paragraph A— Termination — Without Cause.
C. LIQUIDATED DAMAGES
1. In the event that this contract is terminated for cause by COUNTY, SERVICE AGENT agrees to pay
COUNTY for any monies paid for services not rendered by SERVICE AGENT prior to the effective date of
termination of this contract.
XV. AMENDMENT
COUNTY may amend, modify, or alter the terms of this Agreement and specify an effective date thereof.
COUNTY will then notify SERVICE AGENT in writing, dated subsequent to the date hereof, of such
changes and their effective date. Continuation of services after the effective date by SERVICE AGENT will
signify its acceptance of these changes. If SERVICE AGENT declines to accept changes made by
COUNTY, SERVICE AGENT may terminate this Agreement subject to the conditions therein.
XVI. LAW AND VENUE
A. In any legal action arising under this contract, the laws of Texas shall apply and venue shall be in Brazos
County, Texas.
Rite of Passage, Inc.
By'.
Carolyn Jenki s -Bower
Chief Financi I Officer
Bra s C my d venile a ion
By:
Chief/Director or Designee
Brazos County Juvenile Probation Services
By:
Brazos County Juvenile Board Representative
Vol. ;q,o® pg. Page 10 of 10
ON 20 FULLY EXECUTED IN
DUPLICATE, EACH -40F WHICH SHALL HAVE THE FULL FORCE AND EFFECT OF AN
ORIGINAL.
Brazos County ' sioners Court
By:
Duane Peters, County Judge
200 S. Texas Ave., Ste. 332
Bryan, TX 77803
Phone: 979-361-4102
Fax: 979-361-4503
c� A3
Date
Item Coversheet
BRAZOS COUNTY
BRYAN,TEXAS
DEPARTMENT: Purchasing NUMBER:
DATE OF COURT MEETING: 9/3/2019
ITEM:
TO:
FROM:
DATE:
FISCAL IMPACT:
BUDGETED:
DOLLAR AMOUNT:
ATTACHMENTS:
File Name
Extension letter - Sunoco LP.odf
Page 1 of 1
Approval of Extension of Contract 19-026R for Fuel with Sunoco LLC for 1 month.
Commissioners Court
Kaitlyn Nachlinger
08/29/2019
False
False
$0.00
Description
Extention Letter
Duane Peters
County Judge
Vol. -aq 00 Pg. ay �
Type
Backup Material
n
https://brazos.novusagenda.com/agendaweb/CoverSheet.aspx?ItemID=19377 8/29/2019
Aggie Buy Contract #
C9537149
Master Order
Texas A&M University, College Station, Texas
Change Order 8/29/19; Extension of term to September 30, 2019
Vendor:
Sunoco, LP
8020 Park Lane Suite 200
Dallas TX 75231
Phone: 800.786.6261
Contact: Russell Bennett
Contact Email: rbenngas@vahoo.com
Billing Address:
Texas A&M University
Financial Management Operations
Attn: Accounts Payable
6000 TAM
College Station, TX 77843-6000
United States
This Master Order shall be effective as of October 16, 2018 and pertains to all goods and/or services covered by Texas A&M University
Aggie Buy Contract # C9537149
This document is NOT considered as an order to ship from. Individual orders and/or requests for services as a result of this Master
Order shall be requested on an as needed basis.
1. Vendor shall provide goods and/or services as designated on the detailed specifications page that follows, plus the terms and
conditions as stated in Invitation -to -Bid # RFB Main 14-0031, and any addenda thereto, are all made a part hereof and
collectively evidence and constitute Texas A&M University Aggie Buy Contract # C9537149
2. Delivery Information:
Texas A&M University
Attn: Sherry Shipley
1376 TAMU; Transportation Services
Agronomy Road
College Station, TX 77843-1376
3. Payment: Payment shall be made within thirty (30) days after acceptance of goods and/or services and receipt of invoice,
whichever is later. Vendor shall submit one copy of an itemized invoice referencing the Aggie Buy Contract number and any
departmental issued purchase order number. Owner will incur no penalty for late payment if payment is made in 30 or fewer
days from receipt of goods or services and an uncontested invoice.
4. Term: The term of the Master Order shall be from October 16, 2018 through September 30, 2019. This is the final renewal
option for this agreement.
5. Insurance: Vendor shall provide the Texas A&M Purchasing Agent listed below certificates of insurance as required in the
specifications prior to performing work on campus.
6. FreightTerms: FOB Destination, Freight Prepaid and Allowed
7. Changes: Any changes to the Master Order must be made in writing by the Texas A&M Purchasing Agent as listed below.
8. Tax Exemption: The State of Texas is exempt from all Federal Excise Taxes. Texas A&M University is exempt from state and
municipal sales taxes under Texas Tax Code, Chapters 151 and 321, et. seq., for all purchases made for the exclusive use of
Texas A&M.
9. The laws of the State of Texas shall govern this Master Order.
Buyer Name: Patty Winkler, C.P.M.
Phone 979-845-4556
E-mail.. o-winkler@tamu.edu
By: I
Purchasing
for Texas A&M University
Vola
Page 1 of 6
aq �9°a�a
Detailed Specifications
C9537149 Fuel
Sunoco, LLC has purchased Brenco Marketing as of October 16, 2018 —see attached documentation to file of sale. Reference back to TAMU
Master Order C5535698.
PAR Requirements for Self—Performing Vendors
The HUB Subcontracting Plan (HSP) submitted with the bid response shall become a provision of the purchase order. The vendor cannot
change a subcontracting plan prior to its incorporation into the purchase order. TAC 20.14 (5). Per the Texas Administrative Code Chapter
20.14, Texas A&M requires the following:
• Vendors self -performing must submit a HUB Subcontracting Plan (HSP) Prime Contractor Progress Assessment Report (PAR) to
Texas A&M University on a monthly basis. The vendor will maintain business records documenting its compliance with the
approved HSP and will submit a PAR to the Texas A&M Department of Procurement Services no later than the Sth calendar day of
the month until the purchase order has been paid in full. TAC 20.14 (d). All PAR's shall be sent via e-mail to the following address:
hubprogram@tamu.edu. Payment requests submitted without the PAR will not be processed.
• Changes may not be made to the HSP without prior review and approval from the Texas A&M Department of Procurement Services.
The vendor shall submit to the TAM point of contact provided below a revised HSP if determined subcontracting will be necessary.
If the selected vendor subcontracts any of the work without complying with TAC 20.14 and without prior approval from the Texas A&M
Department of Procurement Services, the vendor will be deemed to have breached the purchase order and be subjectto any remedial actions
provided by Texas Government Code, Chapter 2161, state law and TAC 20.14 (6). Texas A&M will report nonperformance relative to its
purchase order to Texas Procurement and SupportServices in accordance with TAC 20.105, Subchapter F relating to the Vendor Performance
and Debarment Program.
Texas A&M Point of Contact
Patty Winkler, CTP, C.P.M.
Phone — 979-845-4556
E-mail p-winkler@tamu.edu
A copy of the PAR can also be found at the following link: http://www.window.state.tx.us/procurement/prog/hub/hub-subcontracting-plan/
Blanket Order for Unleaded, Diesel and Bio -Diesel for various departments on the campus of Texas A&M University for the
period of September 1, 2018 through September 30, 2019, as per the terms, conditions and mark-up offered in Request for Bid
#14-0031.
Quantities are estimated only and do not guarantee a purchase. Delivery to be made at times and in quantities requested by
Texas A&M University, ordering department Upon award, orders will be placed on an as needed basis.
Any unused quantities as of September 30, 2019 shall be considered cancelled.
The mark-up shall remain firm for the term of the agreement including any/all renewal options provided for in Request for Bid
#14-0031.
Mark-up per gallon includes any and all costs involved in the supply and delivery of all fuels with the exception of any applicable
state fuel tax and the Petroleum Product Delivery Fee.
Participating entities are exempt from certain Federal Excise Tax, State Sales and Transportation Taxes. Entities upon request will
execute tax exemption certificates.
The participating entities are subject to the State of Texas Road Tax @ $.20/gallon and all entities are subject to the State of
Texas Petroleum Delivery Fee. These taxes, state imposed fees and unloading fees are not included in the unit price and will be
itemized on the invoice to the ordering entity (if applicable) unloading fees are not acceptable.
Vol. aq 8 pg. 043 Page 2 of
The only acceptable change in the fees proposed during the contract term or any extension option would be in the event the
State of Texas or Federal Government makes adjustments in the fee levels of the State Petroleum Product Delivery fee or the
Federal Super Fund. The vendor may then pass these charges on to the entity if sufficient documentation can be provided for
the requested changes from the respective governing body(s). Any change in these specific fees will become effective thirty (30)
days after the contractor.and the participating entity agree to the change.
Payment Terms:
Net 30 days, upon acceptance of delivery and receipt of approved invoice.
The price per gallon of fuel is determined by applying the mark-up per gallon to the average rack for bio -diesel and unbranded
average per gallon price listed in the "Oil Price Information Service" (OPIS) Pad 3 Net Report for Hearne and Houston, TX as in
effect on the day of delivery.
Pricing Formula:
OPIS Price per Gallon + Vendor's Mark-up + $,20 per gallon tax = Unit Price per Gallon
Renewal 4 of 4:
This is the final renewal option for this agreement.
Cancellation:
If the suppler fails to perform in the manner specified in this contract or for reasons such as, but not limited to, consistent poor
service, unsafe habits or misrepresentation of product, Texas A&M University shall have the right to cancel the contract(s) by
providing the Supplier with thirty (30) days written notice.
Upon award, any order is subject to cancellation, either in whole or in part, if funds are not appropriated by the Texas Legislature
or otherwise made available to the end user.
The agreement may be terminated, without penalty, by Texas A&M without cause by giving thirty (30) days written notice of
such termination.
Change Order 4-24-19
Language brought forward from the terms and conditions of original bid — RFB Main 14-0031 as referenced in #1 of Page one (1)
of master order —
Failure to Deliver
If delivery is not accomplished within the time frame specified and agreed upon as specified herein, the participating entities
reserve the right to procure the product on the open market. It shall also be the participating entities right to bill the supplier
the difference between the contract price and the open market price as liquidated damages of actual cost to the participating
entities.
:Unit r Delivery
Item' t" Description Qty. Unrt Ext
Pkice Price tpayO
Unleaded Fuel, 87 Octane
Transport Loads of 7000/gallons
1. 295713 GAL 2.8307 866646.08
OPIS price as of 7/02/14 was $2.9077
Plus Vendor Mark-Up +.0230
Page 3 of 6
Vol. pg. ;Q4q
..
I em.
Description
;Qty;
Unit
• :.Unit
�' Price':
Ext Price
Del'
(D4g§2.
Unleaded Fuel, 87 Octane
Less than full transport truck delivery
2
Transport Loads of 500/gallons
5000
GAL
2.9977
14988.50
OPIS price as of 7/02/14 was $2.9077
Plus Vendor Mark-Up +.0900
#2 Diesel, Low Sulfur
Transport Truck Delivery of 6500/gallons
3.
387547
GAL
3.0081
1165780.13
OPTS price as of 7/02/14 was $2.9816
Plus Vendor Mark-Up $ .0265
#2 Diesel, Low Sulfur
Less than full transport truck delivery
4
Transport Loads of 500/gallons
15000
GAL
3.0716
46074.00
OPIS price as of 7/02/14 was $2.9816
Plus Vendor Mark-Up $ .0900
Dyed Diesel
Transport Truck Delivery of 6500/gallons
5.
6757
EA
3.0122
20353.43
OPIS price as of 7/02/14 was $2.9857
Plus Vendor Mark-Up $ .0265
Dyed Diesel
Less than full transport truck delivery
6
Transport Loads of 500/gallons
6757
GAL
3.0757
20782.50
OPIS price as of 7/2/14 was $2.9857
Plus Vendor Mark-Up $ .0900
Bio -Diesel, Range of B20, Soybean additive
Transport Truck Delivery of 6500/gallons
7.
64426
GAL
3.0585
197046.92
OPIS price as of 7/02/14 was $2.9795
Plus Vendor Mark-Up $ .0800
Delivery Fee:
The Petroleum Product Delivery Fee (Remediation fee) on each load
of gasoline and diesel fuel imported into Texas or withdrawn from
bulk storage facilities and delivered into cargo tanks or barges.
Fee Schedule:
8.
Gallons Delivered Fee
Less than 2,500 $3.75
2,500 but less than 5,000 $7.50
5,000 but less than 8,000 $11.75
8,000 but less than 10,000 $15.00
Each 5,000 gallon increment on
10,000 gallons or more $7.50
Vol Page 4 of 6
. 0�1 Pg • �V ,�
,.
Item,
n .. _'•..!,
; De3cription
'.
Qty
Unit
Unit:
,_
Fief Price '
Delivery.
3 k r ...
_...
rice
(Days)_;
For deliveries of at least 7,000 but less than 8,000 (whether single
product type or split load), special rules apply.
-If the gasoline portion of the delivery is less than 7,000 gallons, the
fee is $11.75.
-If the gasoline portion of the delivery is at least 7,000 gallons, the
total load is presumed to be at least 8,000 gallons and the fee is
$15.00.
The Fee will expire on September 1, 2011
If you have questions, please call Bryant K. Lomax, TPCA Manager,
and Tax Policy Division at 1-800-252-1383.
Additional Fuel Pricing and Tax Exemptions:
(1)— Excluded, Federal Excise Tax - NA
(2) — Federal Oil Spill Recovery Fee
The Federal Oil Spill Recovery Fee (which may also be referred to as
the Federal Oil Spill Liability Fund Tax) is currently $0.0019/gallon for
clear gasoline and diesel fuel. However, a lower rate may apply to
the purchase of blended fuels such as E10 gasoline which is
$0.0017/gallon. There are no purchasers exempt from this fee, See
IRS Publication 51Q Ch3
(3) — Federal LUST Tax
The current Federal Leaking Underground Storage Tank (LUST) tax is
$0.001/gallon. The LUST tax applies to all purchasers. See US master
Excise Tax Guide Chapter 54.
(4) —Texas State Fuel Tax
Gasoline and Diesel Fuel are currently $0.20/gallon
(5) — Texas Load Fee
The Texas Load Fee (which may also be referred to as the Petroleum
Products Delivery Fee) is currently based upon the withdrawal of
petroleum products into cargo tanks and varies according to the net
total gallons of ail products withdrawn. This fee ranges from $3.75 to
$15.00 based on number of gallons. See HB 2694.
9.
Federal Oil Spill Recovery Fee, effective 1/1/09 — for Gasoline (2)
1
Gal
0.00171
0.00171
10.
Federal Oil Spill Recovery Fee, effective 1/1/09—for Diesel (2)
1
Gal
0.0019
0.0019
Vol. �g Page 5 of 6
a9 �
• -
Item•
r - `•• . * L
Description "'' "
`Qty: ;
i
Unit
Unit••
Ext`Pric'e '
Delivery
'
Price
(Pays)
11.
Federal LUST Fax (3) — for Gasoline & Diesel
1
Gal
0.001
0.001
12.
Applicable Texas State Fuel Tax (6) — for Gasoline and Diesel
1
Gal
0.20
0.20
13
TX Load Fee (5) — For Gasoline and Diesel
1
Lot
15.00
15.00
Range of pricing - $3.75 - $15.00
Transfer Fee, per hour — one (1) driver and one (1) truck to transfer
1
HR
65.00
65.00
14
fuel from TAMU F&B Station to Utility Plant.
Unleaded Fuel, 87 Octane
Transport Loads of 7000/gallons
GAL
15
295713
2.9307
866646.08
OPIS price as of 7/02/14 was $2.9077
Plus Vendor Mark-Up +.0230
i
TOTAL
3,198,397.84
Page 6 of 6
v®i eo_ g 8 pg. a47—
DIVISION OF FINANCE
Department of Procurement Services
August 29, 2019
Sunoco, LP
8020 Park lane Suite 200
Dallas TX 75231
Phone: 800.786.6261
Fax:
Email: rickv john04..sunoco.com ;
rick.poindexter @i sunoco.com
Attn: Ricky John and/or Rick Poindexter
Re: Extension of Blanket Order for Annual Fuel Contract — C9537149
Texas A&M University is requesting the extension of the current agreement, C9537149 for Annual Fuel
Contract for one (1) additional month to allow us to complete the award of RFA Main 19-0032 — Annual Fuel
Contract.
Please sign below and return your response no later than Friday, August 30, 2019, if you have any questions,
I may be reached at (979) 845-4556 or via email at p-winklera.tammedu
Sincerely,
Patty Winkler, C.P.M.
Assistant Director
■■r■■r�r�rr�rr■■■■■■■■■■■■r■■•�r■■�■■rrrrrr�rrrrr■■rr�■■�r�■rrtr�■■�r■■�r•
S , LP grees t 'extend. he ct ent agreement.
Na a Date
Sunoco, L oes not agree to extend the current agreement.
Name Date
P.O. Box 30013
1477 TAMU
College Statlon, TX 77842-3013
TeL 979.845.4570 fax. 979.845.3800
http-.//Furchasing.tamu.edu
Nvw.•t,m.mwrbreasnu,.eroe•�n �a•
Vol. Pg. ani $
DATA CENTER SERVICES AMENDMENT
Proposal Date 8!2212019
Operator
Managed Network Solutions, Inc.
Data Center Location
Bryan, Texas
Operations Contact
Jacob Bertling
NOC Phone
979-393-9882
NOC Email
brynocCalfibertown.com
MNS Re resentative I Cnsty Graves
Contact Number 713-341-6084
Contact Emall Icgraves0fibertown.cliM
R N
a
:'MON0610 WORK-10101UNS.- ING.
UdsIgit.1•ntegettLlo:ri-Rt•at4uFeinenl
7.501 Earl Rudder Freeway South. & Ae 100
College Station, TX 77845
Customer jBrazos County lAddress 200 S. Texas Ave Suite #352 Bryan, Texas 77803
Customer Contact ILani Maness 113hone 979-361-4284 1 Email LmanessColbrazoscountvtx.aov
The Co -Location License Agreement with Service Commencement Date of 03.04-2008
is hereby amended, effective 11-01-2019, as follows:
QTY
DATA CENTER SERVICES DESCRIPTION
UNIT MRC
TOTAL MRC
.UNIT NRC
TOTAL NRC
The Term is extended thirty -sic (36) months after the effective date of this amendment
(the period from 11-01-2019 to 10-31-2022) This contract auto renews for 12 months
each October unless 30 days written notice is given; for the following serAces:
1
Fiber Cross Connect
$225.00
$225.00
TOTALI
1
$225.001
1
$0.00
NOTES:
All terms of the above referenced Co -Location License Agreement shall remain unchanged except as speed above In writing.
A proved:
Customer ignature
Finney Na cy (Aug a6, 2019) V
Operator Signature
aV \. Nancy Finney, CFO
Name and Title Name and Title
�► 3 19 Aug 26, 2019
Date r Date
Vol.� � Pg. qq
------ MANAGED_NETWORK-SOLUTIONS„••aNC,Co-location_License__ �l__.__---
Agreement
TERMS AND CONDITIONS
THIS CO -LOCATION LICENSE AGREEMENT ("Agreement") by and between MANAGED
NETWORK SOLUTIONS, INC: (hereinafter referred to as "Operator"), a Texas .Corporation with Its
principal place of business at 2501 Earl Rudder' Frwy S, College Station, TX 77845 and Brazos
County (hereinafter referred to as "Customer"), with its principal place of business at 200 South Texas
Avenue Suite #352 Bryan, Texas 778031s for a license to occupy or use portions of certain premises
owned or controlled by Operator ("Premises") as defined in the attached Service Order Form and for
the Co -location, Connectivity, and related services set forth in the Service Order Form ("Services").
Operator and Customer are sometimes referred to in this Agreement collectively as "parties" and
individually as a "party."
In consideration. of the mutual agreements and promises contained herein, the parties agree
as follows:
Grant of Access: Customer Equipment
a. Customer Equipment. In consideration of the fees and charges set out in this Agreement and
the representations and covenants made by Customer herein, and subject to the terms and conditions
of this Agreement, commencing on the "Service Commencement Date" set forth in the attached
Service Order Form executed by Operator and Customer, Operator hereby grants to Customer a
limited license to install, operate, and maintain certain equipment which is not provided to Customer
by Operator (the "Customer Equipment") in the Co -location Space located at 120 N Main, Bryan,
Texas. Customer's license to occupy the Co -location Space shall commence on the Service
Commencement Date as set forth on the Service Order Form executed by Operator and Customer
and shall expire on the last day of this Agreement. Operator hereby reserves all rights not specifically
---granted-to-Customer including, -without -limitation; the=righttto=-(-1)-access=and-use-of-the-Premises.-�---- --
other than the Co -Location Space, for its own use and for the use of its agents and licensees; (2) grant
additional licenses to other users for portions of the Premises other than the Co -Location Space; and
(3) exercise or grant other rights not inconsistent with the rights granted hereunder. Operator grants
-to Customer an exclusive right to access and use the Co -location space and Operator shall not allow
entry into the Co -location Space by anyone not requested or authorized by Customer, including but
not limited to, employees, contractors and subcontractors of Operator.
b. Installation and Removal of Customer Equipment. Customer shall arrange for delivery of each
unit of Customer Equipment to the Co -location Space at Customer's expense. Customer shall provide
Operator with no less .than one (1) day prior written notice of the actual delivery date. (email actually
received by Operator shall suffice as written notice): Unless otherwise agreed in writing, Customer
shall Install the Customer Equipment at the Co -location Space and shall be responsible 'for any
necessary cabling from the junction panel provided by Operator to the Customer Equipment.
Customer may not install any equipment at the Co -location Space, other than the Customer
Equipment, without Operator's prior written approval, which shall not be unreasonably withheld.
Customer shall provide Operator with written notification two (2) days before Customer removes any
Customer Equipment.
C. Use of Customer Equipment. Customer shall utilize the Co -location Space only for
Interconnection of the Customer Equipment with the Connectivity services provided herein by Operator
to Customer and/or Customer supplied Connectivity services, and for no other purpose. Customer
shall not use the Co -location Space, or allow access thereto or use thereof, except In accordance with
the terms of this License. Customer shall not use the Co -location Space for storage of equipment
other than the Customer Equipment or for any administrative function. Customer shall not interfere, or
allow the operation of its Customer Equipment to interfere, with Operator or any other occupant with
rights in another co -location space.
�. i . • I '� fa, •
d. Responsibility for Customer Equipment and Co -location Space. All Customer Equipment,
=----soitware-and=data-sTo—r6d=tf ereon=(tom—"SFo�ed=lnformatlon')=shall- ema n Customerssole=property:—==
Customer shall be responsible for the Customer Equipment,.Software, and Stored Information. Unless.
otherwise specifically agreed in writing, Operator shall have no duty to monitor, maintain or care for
the Customer Equipment, Software,.or Stored Information. Customer shall protect, maintain and keep
In good order the Co -location Space and the Customer Equipment, and shall ensure that neither
'Customer nor'its agetits or cohtractors'datnage any"part of the Premises, the Co-Iocatioh Space'or
any equipment located on or about the Premises. Damages attributable to the Customer, its agents
or contractors shall be the sole responsibility of the Customer.
e. Acceptance of Co -location Space Customer accepts the Co -location Space "as is" and
confirms the space is complete, in satisfactory condition, and suitable for the Customer's intended use
as specified in the Service Order Form.
f. Maintenanceof Co -location Space. Operator shall be responsible, and pay for all
maintenance necessary for the upkeep and continued use .of .the Co -location Space. Operator may
enter the Co -location Space to Inspect the area and perform routine maintenance. Should Operator
have reason to suspect that any maintenance will cause an interruption of Customer's use of the Co -
location Space, such maintenance shall'be scheduled at a time convenient for both parties. Operator
shall Immediately notify Customer In the event any condition at the C.o-location Space may interfere
with Customer's use of the Co -location Space or the Customer Equipment or Services.
2. Use of Co -location Space
a. Access and Security. Before beginning any delivery, installation, alteration, replacement or
removal work in the Co -location Space, Customer shall obtain Operator's prior written approval of
each of Customer's employees, agents, and contractors who will be accessing the Co -location Space
("Approved Personnel"). Operator shall, without Threat of liability; have the right to immediately exclude
or require the removal of any Approved Personnel, should Operator determine in its sole reasonable
discretion that such an action is in the best interest of safety and operational efficiency. Approved
Personnel may access the Co -location Space soleiv for the pumoses of .installing, maintaining.
repairing, replacing, operating, utilizing and removing the Customer Equipment on reasonable
advance notice to Operator. Approved Personnel shall at all times while on the Premises comply with
Operator rules and
regulations. Operator does not guarantee the safety or security of the Co -location Space or of the
Customer Equipment, however; Operator shall use commercially reasonable efforts. to monitor the
Premises for security purposes and prevent unauthorized third parties from accessing Customer's Co -
location Space and Customer Equipment. Such efforts shall include the use of security cameras to
monitor the premises and Co -location Space.
Installation and Alterations.
(i) Customer shall notify Operator before commencing any installation, addition, or alteration
within or about the Co -Location Space, or undertake any installation., upgrade or modification to
Customer's Equipment. Without the prior written approval of Operator, which shall not be
unreasonably withheld, Customer shall not:
(a) Undertake any installation, addition or alteration within or about the Co -Location Space; and/or
(b) Undertake any activity that would in any way result in an increased cost to Operator, or that
might negatively affect the use of the Co=Location Space or other equipment by Operator or any other
customers of Operator.
(ii) Whenever Operator's approval of work is required, Customer shall deliver a written request to
Operator, and shall specify all of the following:
(a) The names, titles and employer of each proposed contractor and subcontractor,
(b) A description of the services to be performed, and
Vol. Qq Pg--25L—
i
-------------
- --�--�----(c).--The-planned-dates-and-times-of
Operator shalt have the right to disapprove or require the removal of any contractor or subcontractor
selected for work in the Co -Location .Space; provided however that any suchdisapproval or request
for removal must be reasonable. All such approvals shall be valid only if given by Operator's Facilities
Construction Department,' Engineerinb DePartnierit, or their designated repfeseritative.
(III) Customer will give Operator the above written notice, the names and addresses of the persons
supplying labor and materials, and the certificates of insurance from each proposed contractor for the
proposed work on a schedule as follows:
(a) At least five (5) business days (Monday through Friday, excluding weekends) before
commencing any major alterations, additions, improvements or installations.
(iv) All maintenance, installation, interconnection, addition, upgrade., modification or other
alterations within the Co -Location Space, shall comply with all manufacturers' specifications and shall
meet or exceed all industry quality assurance standards to which each of Customer and Operator are
subject, e.g., but not limited to, NESS, IEEE, Bellcore..
(v) Customer will obtain all required permits and licenses pertaining to the installation, operation,
maintenance and repair of its Equipment at the Co -Location Space.
(vi) Customer shall pay or cause to be paid all costs and charges:
(a) For work done by Customer or caused to be done by Customer in the Co -Location Space,
(b) For all materials furnished for or in connection with such work; and
(c) For alterations or additions to the Co -Location Space or Equipment requested by Customer
requires_Operator to incur
Customer shall indemnify Operator against and hold Operator and the Co -Location Space free and
clear of and from all mechanics' liens and claims of liens, and all other liabilities, liens, claims and
demands on account of such work done by or on behalf of Customer. If any such lien is filed at any
time against the Co -Location Space, or any part thereof, Customer shall cause such lien to be
discharged of record within ten (10) days after the Filing thereof, except that if Customer desires to
contest such lien, it will furnish Operator, within such ten-day period, security reasonably satisfactory
to Operator in the form of.a bond or other security of at least one hundred percent 100% of the amount
of the claim, plus estimated costs and interest. If a final judgment establishing the validity or existence
of a lien for any amount is entered, Customer shall pay -and satisfy the same without delay. If Customer
fails to pay any charge for which a mechanics' lien has been filed, and has not given Operator security
as described above, Operator.may, at its option, pay such charge and related costs and interest, and
the -amount so paid, together with reasonable attorneys' fees incurred in connection with such lien, will
be immediately due from Customer to Operator. Nothing contained In this Agreement shall be deemed
to constitute a consent or agreement of Operator to subject the Co -Location Space to liability under
any mechanics' or other lien law. if Customer receives notice that a lien has been or is about to be
tiled against the Co -Location Space, or any action affecting title to the Co -Location Space has been
commenced on account of work done by or on behalf of, or materials fumished to or for Customer, it
will immediately give Operator notice of suchfiling. Operator shall have the right to post notices of
non -responsibility or similar notices on the Co -Location. Space in order to protect the Co -Location
Space against any such liens.
If Customer Equipment is not placed and maintained in accordance with the terms and conditions of
this Agreement and Customer fails to commence to correct the violation within ten (10) business days
from receipt of written notice thereof from Operator, then Operator may, at Its option, without further
notice. to Customer, correct the deficiency at Customer's expense without liability for damages. As
soon as practicable thereafter, Operator shall advise Customer in writing of the work performed or the
action taken. Customer shall reimburse Operator for all expenses reasonably incurred by Operator
associated with aqy work or actionep rformedby OperatorPursuent-hereto. Customer shall remit
- -- --- ---- - a ent-to-O eratorwithin-thirt30 da s from-its-recei tof-O erator's-invoice-therefore.------------------------- -
c. Alterations and Removal. Customer shall not make any construction changes or material
alterations (collectively "alterations") • to the Co -location Space, including. cabling and power
connections without Operator's, prior written consent, which shall not be unreasonably withheld. All
fixtures, alterations, additions, repalrs,' improvements and/or appurtenance§'attachetl to or built into,
on or about the Co -location Space, other than any.Customer Equipment, (collectively "fixtures") shall
be and remain part of the Co -location Space and shall not be removed by Customer unless so required
by Operator in which event the items required to be removed shall be removed at Customer's sole
cost and expense. Upon termination or expiration of this Agreement (other than termination pursuant
to Section 5(4)(1) hereof, Customer shall remove all Customer Equipment, except -fixtures, within thirty
(30) days from the date of such termination or expiration of this Agreement ("removal period"). In. the
event of a termination of this Agreement pursuant to Section 6(b).@ hereof, Customer shall remove
all Customer Equipment (other than fixtures) from the Co -location Space within five (5) business days.
Any items and/or Customer Equipment remaining after the removal periods set forth in this Section
may, at Operator's discretion, be removed, stored or disposed of, and such removal or disposal shall
be at Operator's discretion and shall be undertaken in a commercially reasonable fashion. The
proceeds, if any, from the sale of such equipment shall be applied to the outstanding invoices. of
customer, if any. Customer shall return to Operator at the end of the removal period, all access key
cards and other security devices that have been provided to Customer. Any remaining proceeds from
a sale of the Customer Equipment shall be promptly returned to Customer. .Customer shall be
responsible for all reasonable costs associated with removal, disposal and storage of the items and/or
Customer Equipment and for the cost of restoration of -the Co -location Space. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement for one (1) year.
d. Compliance with Laws and Regulations. Customer shall comply at all times with all applicable
Federal, state, and local laws, rules, regulations, ordinances, and other requirements relating to its
use of the Co -location Space and will obtain all required permits, licenses, or similar approvals or
registrations pertaining to the operation of its Customer Equipment, and shall also comply with
Operators general. rules and regula�o� relating to the �re�r ise$,_ _ ;
e. Third Parties. Customer may not permit any other person to occupy or use the Co -location
Space (including by placing such person's equipment in the Co -location Space) without first obtaining
Operator's prior written consent, which consent may be withheld or conditioned in Operator's sole
discretion.
f. Use of Electrical Capacity. All power whips furnished to the customer's space will be rate
limited at 80°/a of the breaker rating load. In addition, the total available power delivered to the customer
space is limited to 120 watts per -square foot. Operator will notify Customer if the breaker or watts per
square foot limitations are exceeded and Customer will purchase additional power capacity within 30
days. If Customer has not purchased sufficient additional power capacity to meet the above limits
within thirty (30) days of notice, Operator shall invoice Customer, and Customer shall pay within terms,
for additional power capacity to achieve the limits defined in this paragraph.
Services
a. During the'Term (as set out in the Service.Order Form) of this Agreement, and subject to the
terms and conditions of this Agreement, Operator will provide to Customer the Co -location,
connectivity, and related services agreed to in the Service Order Form. Charges for the Services are
as set forth in Section 4 and are payable in accordance with Section 4.
Connectivity, Facility Environment. and Power Services.
I. Right to Modify. Operator reserves the right to modify its network and facilities used to provide
the Connectivity, Facility Environment, and Power Services for purposes including but not limited to
accommodating evolving technology and increased network demand, and providing enhanced
services. Operator shall notify Customer in writing, five (5) business days in advance of any planned
Vol. aq$_ Pg. 953
chars e�- s and associated. planned outages downtimes, or Interruptions to ._Operator's network or
-----------facilities-that-may-adversely-affect-the-Services-provided-hereunder.-------------------------------- -- --
4. Fees and Billing
a. Fees. Customer will pay Operator the fees listed in the attached_ executed Service_ Order Form
for the provision of the Co -iodation Space -and the Services.
b. Billing. Monthly recurring fees are due no later than the first day of each month for which
services are provided. In the case of a payment made after thirty (30) days from its duedate, Customer
will be charged a $100 administrative fee and the late payment will accrue interest at the rate of one
and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is
lower. All non-recurring fees shall be payable net 30 as invoiced -by Operator. All payments shall be
made in U.S. dollars.
c. Taxes. Operator may Invoice and Customer shall pay all taxes, fees. or assessments and
other charges required to be collected by Operator by any governmental agency that may result from
the Customer's use of the Co -location Space. Customer shall be responsible for paying all taxes, fees
or assessments and other charges imposed on Customer by any governmental agency that may result
from this Agreement, or any of Customer's activities contemplated hereunder. Customer shall also be
liable for and shall pay all taxes levied against the Customer Equipment located on or about the Co -
location Space in a timely manner.
Term. Renewal and Termination
a. Term. This Agreement shall commence on the Service Commencement Date and, unless
earlier terminated in accordance with Section 5.b hereof, shall continue for the minimum term set forth
In the attached executed Service Order Form (the "Term"). The foregoing notwithstanding, in no event
shall Customer's right to occupy the Co -location. Space extend beyond the Term or the underlying
lease or other superior Interest In the Premises.
In the event of any holding over beyond the end of the Term .or any extension thereof, this Agreement
shall be deemed a monthly tenancy upon the covenants and conditions herein at a rate of 150% of
the monthly fees provided.herein.
Termination. This Agreement may be terminated in any of the following ways:
(i) Operator may terminate this Agreement without penalty on written notice to Customer
("Operator Termination Notice") in the event: (1) that Customer has breached any obligation under this
Agreement, or any of its representations or warranties under this Agreement. are inaccurate in any
material respect, and such breach or inaccuracy, is not cured within twenty (20) days after written
notice thereof, or (2) that an Event. of Default as defined, In Section 12 below has occurred, in which
event Operator may terminate this Agreement and take other actions as provided in that Section.
(ii) Customer may terminate this Agreement without penalty on written notice to Operator
("Customer Termination Notice") in the event: (1) of the insolvency of Operator or the institution of
voluntary or involuntary proceedings in bankruptcy or under any other insolvency law, or an
arrangement with creditors or receivership; or (2) that Operator has breached any obligation under
this Agreement, or any of its representations or warranties under this Agreement are Inaccurate in any
material respect, and such breach -or inaccuracy. Is not cured within twenty (20) days after. written
notice thereof.
(Ili) In the event of any damage, destruction or condemnation of the Co -location Space that
renders the Co -location Space unusable or inoperable, either party shall have the right to terminate
this License by giving notice to the other party within thirty (30) days after such damage, destruction
or condemnation.
(iv) Termination for Interference or Threat .to Safety. The installation and operation of -the
Customer Equipment shall not interfere electrically, or in any other manner whatsoever, with the
�egui mentor operations of Operator or with, any_other customer.or tenant,_.Notwithstanding
-..-_..----------lrrthis-License to -the -contrary; -it-is-expressly,understood-and agreed -that if. -- ------
(a) The installation or operation of the Equipment is reasonably determined by Operator to
interfere with any other communications systems or equipment at any time,
(b) Customer's .equipment poses an Immediate threat to the safety of Operator's employees or
the public,
(c) Customer's equipment interferes with the performance of Operator's service obligations, or
the use by other parties of their equipment, fiber, Ethernet, or coax, or
(d) Customer's equipment poses an immediate threat to the physical integrity of Operator's
facilities, or the facilities of the other parties, then Customer shall upon Operator's request (which may
be telephonic in the event of an emergency) as soon as possible, but in no event later than twenty-
four (24) hours in the case of an emergency and five (5) days for non -emergencies, do whatever is
commercially reasonable, at Customer's expense, to eliminate or remedy such interference. In the
event of an emergency or if Customer fails to take such other actions required by the foregoing
sentence, Operator may perform such actions on behalf of Customer, or relocate the Co -location
Space, the Customer Equipment and/or the Customer Installations, without incurring any liability
thereby, and Customer shall reimburse Operator for any commercially reasonable costs incurred in
connection therewith. If Operator reasonably determines that such interference cannot be rectified,
then Operator may at its option after written notice to Customer, terminate this License,, whereupon
Customer shall remove all of the Equipment and other property of Customer in the Co -location Space,
at Customer's sole cost and expense, within thirty (30) business days following such request and
otherwise in accordance with this Agreement.
6. Representations and Warranties
a. Customer Warranties. Customer represents and warrants to Operator: (i) that it owns or has
.__the_IegaL.right_and._authority.,-and wilLcontinue to-own_or_.maintain_the_IegaLright.and.authority...d.uring ____________
the Term, to place and use the Customer Equipment in the Co -location Space; (ii) that Customer's
services, products, materials and the Customer Equipment do not and will not operate in any manner
that would violate any -applicable law or regulation or the Operator rules and regulations and will not
Interfere electrically, or in any other manner whatsoever, with the equipment or -operations of Operator
or with any other customer or tenant.
b. Operator Warranties. Operator warrants to Customer that: (1) it owns or has the legal right
and authority; and will continue to own or maintain the legal right and authority during the Term, to
place and use the Operator -Provided Equipment in the Co -location Space; (2) it has the legal right
and authority, and will continue to have the legal right and, authority during the Term to provide the
related Services to Customer; (3) Operator represents and warrants that the Services shall be
performed in a professional, efficient, prompt, economical, skillful and careful manner, in accordance
with the methods, standards and practice currently prevailing among leading firms in the field of data
services; and (4) it owns and has the legal right and authority, and will continue to own and maintain
the legal right and authority during the Term, to allow Customer access to the Co -location. Space.
C. Disclaimers by Operator. SUBJECT TO SECTIONS 1, 2, 3 AND 6 HEREIN, THE CO -
LOCATION SPACE AND THE SERVICES ARE PROVIDED "AS IS" AND OPERATOR DOES NOT
MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED
WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY,
SUITABILITY OR FITNESS .FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE,
AND ANY WARRANTIES. ARISING. FROM A COURSE OF DEALING, USAGE, OR TRADE
PRACTICE. OPERATOR DOES NOT WARRANT THAT THE CO -LOCATION SPACE AND/OR THE
SERVICES WILL BE AVAILABLE UNINTERRUPTED, ERROR -FREE OR IN A COMPLETELY
SECURE BASIS. CUSTOMER HEREBY WAIVES ALL RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE TO MAKE REPAIRS TO THE CO -LOCATION SPACE OR THE
PREMISES AT OPERATOR'S EXPENSE.
•
7. Indemnity and Limitation of Liability
a. Operator Liability. Customer agrees, to the extent not prohibited by law, that Operator,
Operator affiliates, its agents, servants, employees, or contractors shall not be liable, except as
provided In Appendix A hereto, for any claim involving, concerning or related to the loss or destruction
of Customer data or any portion thereof or for any damage either to person or property sustained by
Customer or by other. persons due to the Premises or Co -location Space or any parf thereof becoming
out of repair or due to the happening of any accident or event In or about the Premises or Co -location
Space or due to the act or neglect of any occupant of the Premises or of any other person, .including,
but not limited to injury or damage caused by gas, electricity, Interruption of service or power, snow,
frost,. steam, sewage, sewer gas or odors, fire, water or the bursting or leaking of pipes, faucets,
sprinklers and plumbing fixtures (collectively, "excluded liability"),. unless such excluded liability arose
as the result of Operator's intentional misconduct or gross negligence or that of Operator's Its agents,
servants, employees, or contractors.
Except as excluded above, Operator shall indemnify, defend and hold harmless the Customer from
and against any and all third party claims, demands, actions, damages, liability, judgments, expenses
and costs (including but not limited to reasonable attorneys' fees) arising from (1) Operator's
infringement or misappropriation of intellectual property rights, defamation, libel, slander, obscenity,
pornography, or violation of rights of privacy or publicity, or Operator's spamming, or any other
offensive, harassing or illegal conduct; (ii) any breach by Operator of any warranty, covenant or
obligation hereunder, .(iii) any injury to or death of any person or damage to.any-property occurring
upon the, Co -location Space, the Premises, and/or the building or the land of which.the Premises are
a part, arising out of (or in connection with) negligence or willful misconduct, or (iv) the violation of any
law or regulation by Operator.
b. Limitation. IN NO EVENT WILL OPERATOR BE LIABLE TO CUSTOMER, OR ANY
EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY FOR ANY
CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING IN RELATION TO
THE CO -LOCATION SPACE, THE EQUIPMENT, THE SERVICES, INCLUDING WITHOUT
LIM=—I.OhLTHE_SERVICES�!<f.�ORTH.JN_THE_SERVLCE ORDEREORMA_ N.D_SCH.EDUlE(_S), __.�___
CUSTOMER'S BUSINESS OR OTHERWISE, WHICH CLAIMS INVOLVE INDIRECT, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, OPERATOR'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED
TO OR ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID
BY CUSTOMER TO OPERATOR PURSUANT TO THIS AGREEMENT FOR THE TWELVE (12)
MONTH PERIOD PRECEDING THE CLAIM OR THE VALUE OF THE CUSTOMER EQUIPMENTIN
THE CO -LOCATION SPACE, WHICHEVER IS GREATER.
C. Waiver of Liability and Indemnification. NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, EXCEPT AS PROVIDED IN APPENDIX A HERETO, OR TO
THE EXTENT CAUSED BY ITS OWN WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY,FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR
PUNITIVE DAMAGES, LOSS OF PROFITS OR CONSEQUENTIAL DAMAGES,. WHETHER
FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, SUCH PARTY'S
FAILURE TO PERFORM ITS OBLIGATIONS, OR A BREACH OF ITS REPRESENTATIONS
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, DAMAGE OR LOSS OF PROPERTY OR
EQUIPMENT, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, COST OF REPLACEMENT
SERVICES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS,
ANY INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), OR CLAIMS OF
CUSTOMERS. ALL CLAIMS WITH RESPECT TO SUCH SPECIAL, INCIDENTAL, INDIRECT,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARE HEREBY SPECIFICALLY
WAIVED.
d. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT OPERATOR INTENDS TO ALLOW
OTHER CUSTOMERS OR LICENSEES TO INSTALL EQUIPMENT NEAR THE CO -LOCATION
SPACE. CUSTOMER EXPRESSLY AGREES THAT OPERATOR SHALL HAVE NO LIABILITY FOR
ANY DAMAGES, COSTS, OR LOSSES INCURRED BY CUSTOMER CAUSED BY SUCH OTHER
-- - ----- ------ CUSTOMERS'-OR--LICENSEES'-ACTS;-EQUIPMENT,-OR-FAIL-URE-TO-AC7.-ADDITIONALLY,-IN----------------- -
NO EVENT SHALL OPERATOR BE LIABLE TO CUSTOMER FOR LOSS OF USE OR OTHER
DAMAGE OF ANY NATURE ARISING OUT OF THE LOSS, DESTRUCTION OR DAMAGE TO THE
CO -LOCATION SPACE OR ANY PORTION THEREOF, OR TO EQUIPMENT LOCATED THEREON
DUE TO WINDSTORM, FIRE, THEFT, VANDALISM, FLOOD OR ANY OTHER CASUALTY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN,' OPERATOR SHALL NOT ALLOW
ANY OTHER CUSTOMER TO USE OR ACCESS. THE PREMISES (EXCEPT FOR PURPOSES OF
TRYING TO SIGN NEW' CUSTOMERS) WITHOUT FIRST HAVING SIGNED A SIMILAR
AGREEMENT NO LESS FAVORABLE TO OPERATOR THAN THIS -AGREEMENT. OPERATOR'S
ONLY RESPONSIBILITY REGARDING OTHER CUSTOMERS IS THE STRICT ENFORCEMENT OF
THESE SIMILAR AGREEMENTS.
e. Customer shall indemnify, defend and hold harmless the Operator from and against any and
all third party claims,- demands, actions, damages,. liability, judgments, expenses and costs (including
but not limited to reasonable attorneys' fees) arising from (i) Customer's, and its agents, contractors
and invitees infringement or misappropriation of intellectual property rights, defamation, libel, slander,
obscenity, pornography, or violation of rights of privacy or publicity, or Customer's spamming, or any
other offensive, harassing or illegal conduct; (ii) any breach by Customer of any covenant or obligation
hereunder, (iii) any injury to or death of any person.or damage to any property occurring upon the, Co -
location Space, the Premises, and/or the building or the land of which the Premises are a part, arising
out of (or in connection with) negligence or willful misconduct, or (iv) the violation of any law or
regulation by Customer.
f. Limitation. EXCEPT FOR A BREACH OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS BY CUSTOMER, IN NO EVENT WILL CUSTOMER BE LIABLE TO OPERATOR,:OR ANY
EMPLOYEE, AGENT OR CONTRACTOR OF OPERATOR, FOR ANY CLAIMS, LOSSES, FINES,
PENALTIES, JUDGMENTS OR DAMAGES ARISING OUT* OF OR RELATED TO THIS
AGREEMENT, EVENIF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER
THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR
OTHERWISE, IN AN AMOUNT GREATER THAN THE TOTAL AMOUNT(S) PAID BY CUSTOMER
-----T- O -OPE RATO R- PUIRS UANT—TO=THIS-AG- REEM EN-T-EOR-THE-TWELVE-"(t2-)-MONTH-PERIOD - ---
PRECEDING THE CLAIM OR THE VALUE OF THE CUSTOMER EQUIPMENT IN THE CO -
LOCATION SPACE, WHICHEVER IS GREATER.
Casualty or Eminent Domain
If, in the event of any taking by eminent domain or damage by fire or other casualty to the Premises
and/or the Co -location Space ("Event'), Operator is unable to relocate Customer, then Customer and
Operator shall have the right to terminate this Agreement for convenience on the happening of such
an Event.
Left Blank Intentionally
10. Hazardous Materials.
Neither party will store, use, generate, or dispose of any "hazardous materials" (as defined below) in,
on, or about the Co -Location Space nor will either. party permit its agents, employees, or contractors
to do so. No semiconductors or other electronic equipment containing hazardous materials will either
be used or stored by Customer in or about the Co -location Space, and no such materials will be used
In any of the Equipment Installed by Customer. Notwithstanding the foregoing, subject to Operator's
prior written approval, Customer may use sealed batteries, which may contain environmentally
sensitive materials, as a back-up power supply for certain -items of its Equipment. Such batteries will
be Installed, maintained, and removed by Customer in accordance with all applicable laws and
Operator's reasonable requirements and will be the sole responsibility of Customer. If Customer
breaches the obligations stated in the preceding sentence, or if the presence of materials in the Co -
location Space caused or permitted by Customer during the term of this Agreement results in
_— _contamination of the Co -location Space or other property, and such materials are deemed. as a matter_-
-- -. -------of-law; to-be-hazardous-materials-afthe-time-of-instailation-or introduction°thereof,-then Customershall---
indemnify, defend and hold Operator harmless from any and all claims, judgments,. damages,
penalties, flnes, costs, liabilities or losses (including without limitation, diminution In value of the Co -
location Space, adjoining property, or other property, damages 'for the loss of restriction on use of
rentable or usable space or of any amenity of the Co -location Space; adjoining property, or other
property, damages arising from any adverse impact on marketing of space in -the Co -location Space;
adjoining property, or other property, and sums paid in settlement of claims,. actual attomeys'-fees;
consultant fees and expert fees) which arise during or after the term as a direct result of such
contamination.
For the purposes of this Agreement, "hazardous materials" shall mean any explosives, radioactive
materials, hazardous wastes, or hazardous substances, including without limitation substances
defined as "hazardous substances" in the Comprehensive Environmental Response Compensation
and LiabilityAct of 1980; as amended, 42 U.S.0.§ 9601=9657; the Hazardous Materials Transportation
Act of 1975,. 49 U:S.C. J 31801-1812; 'the Resource Conversation and Recovery Act of 1976, 42
U.S.C. § 6901-6987; or any other federal, state, or local statute, law ordinance, code rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct concerning
hazardous materials waste; or substances nor or at any time hereafter in effect. For the purposes of
this Agreement, "hazardous materials" shall not include diesel fuel stored on the premises for
generator operation, fire suppression extinguishing agents, batteries or other. materials used or stored
In the normal course of operation of the data center.
If. Customer knowingly encounters asbestos containing materials or any other environmentally
hazardous materials, Customer shall immediately give Operator notice and shall not proceed with any
work in the area containing such materials without approval by Operator of Customer's procedures for
performing work in such area and written authorization from Operator to proceed with such work.
Customer shall handle any such materials that it disturbs in the Co -location Space according to
applicable environmental and safety laws. Notwithstanding anything to the contrary., however,
Customer shall not have any responsibility for managing, monitoring, or abating, nor be the owner of,
nor have_anyJiabllityJ.or,_any-asbestos-cQntaining.maierial".r_.any_otb-eLenvltonmentalty-bazardous .
substances that Customer, its agents, contractors or employees have not brought into the Co -location
Space.
11. Insurance
11.1 Customer's Insurance
a. During the term of this Agreement, Customer shall, at Customer's sole cost and expense,
keep in full force and' effect the following insurance:
(ii) Commercial general liability Insurance Insuring Customer against any liability arising out of
the license, use occupancy or maintenance of the Co -Location Space and all areas appurtenant
thereto.. Such insurance shall be in the amount of One hundred Thousand Dollars ($100,000) per
single person for injury or death and Three Hundred Thousand Dollars ($300,000) per single
occurrence. The policy shall insure Property Damage in the amount of One Hundred Thousand
Dollars ($100,000) per occurrence.
(iii) Workers' compensation as required by applicable state law; and employer's liability insurance
with minimum limits of Five Hundred Thousand Dollars ($500,000) per occurrence.
(iv) Business automobile insurance in an amount not less than One Hundred Thousand
($100,000) per occurrence covering all autos used at the Co -Location Space, including owned, non -
owned and hired autos.
b. All the Insurance required of Customer under this Agreement shall: (1) be Issued as a primary
policy by an Insurer with an A M Best FSC of VII or better,
c. Each insurance certificate to evidence the requirements identified in this Section shall be
deposited with Operator with in ten (10) days of written request.
12. Events of Default
a. The occurrence of any one or more of the following events -beyond arty applicable cure time -
shall constitute a default and breach of this Agreement by Customer ("Events of Default"):
(i) Customer's failure to pay when due any monthly recurring charges, Initial non-recurring
charges., or other amounts when due, which failure is not cured by Customer within five (5) business
days after receiving .written notice of such failure from Operator.
(ii) The installation by Customer of any Equipment in the Co -location Space without first obtaining
Operator's consent, which shall not be unreasonably withheld.
(iii) Customer's vacation or abandonment of the, Co -location Space, if the vacation or
abandonment continues for a period of more than ninety (90) consecutive days, and rent Is not paid,
after written notice has beensent to. Customer by Operator.
(iv) Interference by Customer -with Operator -or any other user of the Co -Location Space, as
demonstrated by an engineer, that continues for twenty-four (24) hours following notice from. Operator.
(v) Customer's failure to cure any non -monetary default within thirty (30) days after written notice
of such default has been given to Customer by. Operator.
(vi) Customer is in default of its payment obligations hereunder on two or more occasions in any
six (6) month period.
(vii) Customer's failure to perform or observe any other term, covenant, or condition of this
Agreement if the.failure continues for ten (10) days after written notice has, been sent to the Customer
by Operator.
(viii) Customer ceases to use the Co -location Space for the authorized purpose described in this
Agreement.
(ix) Customer transfers or assigns its interest in this Agreement, except as specifically permitted
by the terms of this Agreement.
(x) The filing or execution or occurrence of any of the following:
(a) A voluntary. or Involuntary proceeding. in bankruptcy or under any other insolvency law
'by or against Customer;
(b) A corporate reorganization, receivership, or dissolution of Customer;
(c) An assignment for the benefit of creditors cr composition;
(d) A petition for the reorganization or modification of Customer's capital structure;
(e) A petition or other proceeding against Customer for the appointment of a trustee,
receiver, or liquidator for all or substantially all of any of Customer's property or for Customer's
Interest in this Agreement, or
(f) A proceeding by any governmental authority for the dissolution or liquidation of
Customer.
Upon the occurrence of any Event of Default, Operator may, without notice or demand and in addition
to any other right or remedy available at law or equity, terminate this Agreement. Customer shall have
10
Customer. Equipmeot from. the Co-location Space__ Should Customer fail to
-- --- — - ---remove-Customer-Equipment-with-thirty-(30)-days-after-termination; •Operatot•-shall••provide--written-- ------ -- —
notice to Customer and have the right to enter the Co-location Space and remove all Customer
Equipment. Operator shall place all Customer Equipment in a safe and suitable storage for no• less
than six (6) months. Customer shall be responsible for all storage costs should Customer desire to
take back possession of Customer Equipment. Following the six (6) month storage period, Operator
may, afterrprovlding. written notice to Customer; sell or otherwise dispose of Customer Equipment and
retain all. proceeds from the sale or disposal. If the proceeds of such sale or disposal do not cover the
cost of disposal, Customer shall be liable for the remained for the cost. At such time, Customer shall
owe no more obligations to Operator. Title and ownership shall remain with Customer until such time
as Customer Equipment is rightfully or disposed of.
13. General Provisions
a. No Third -Party Beneficiary. It is the explicit intention ofttie parties hereto, that no person or
entity other than the parties and their'respective successors and assigns is or shall be entitled to bring
any action to enforce any provision of this Agreement against either of the parties.
b. Relationship of the Parties, Customer and Operator are, and shall remain, Independent
contractors. Neither party will have the authority to make any representations,, claims or warranties of
any kind on behalf of the other party or on behalf of such party's licensors or suppliers.
C. Force Majeure. Subject. to the next following sentence, neither party shall be deemed In
default of this Agreement to the extent that performance of its obligations (other than an obligation to
pay for services rendered by the other party) or attempts to cure ahy breach are delayed or prevented
by reason of any act of God, fire, flood, natural disaster, act of government, strike, lockout, labor
trouble, restrictive laws or regulations, or any other cause beyond the reasonable control of such party
("Force Majeure"). In the event of such a Force Majeure, the party shall give. the other party prompt
written notice within one (1) day of the Force Majeure event. The, time for performance will be extended
be excused, and either party may terminate this Agreement under 5.b (iii) above for any interruption
of services because of such Force Majeure event lasting longer than three (3) days,
d. Assignment. This Agreement and the rights and obligations hereunder shall not be assigned
or otherwise transferred by either party without the prior written consent of the other party, which
consent cannot be unreasonably withheld. This Agreement will endure to the -benefit of and be binding
upon the parties and their respective successors and permitted assigns. Notwithstanding any consent,
to assignment, Customer shall remain jointly and severally liable for its obligations under this
Agreement.
e. Notices. All notices hereunder shall be delivered personally, emailed, or sent by facsimile
transmission, answer back requested, and shall be sent to the partles at the following addresses (or
at such other address for a party as shall be specified by like notice; provided that notices of a change
of address shall be effective only upon receipt thereof).
Notices to Operator: Notices to Customer:
Managed Network Solutions, Inc.
Brazos County
2501 Earl-Rudder-Frwy S
200 S. Texas Ave.,Ste.332
College Station, TX 77845
Bryan, Texas 77803
Attention: Business Office
Attention: Judge
Telephone: 979-393-9100
Telephone: 979-361-
4102
Facsimile: 979-764-2343
Facsimile: 979-361-4503
Email: info@fibertown.com
Email: _N/A
•
11
voi.
Pg. QLoo
4Such notice will be effectivey (i) if sent byr email or facsi_mile_gn the date of transmission unless
- - ---------transmitted-after,normal-business-hours-in which-case--on the following-date;-or-(Ii)-as-of- the---
delivered, if personally delivered.
f. Waiver. Any waiver of any right or default hereunder shall be effective only if given in writing
and shall not t operate as or imply a waiver of any similar or other right or default on any subsequent
occasion.
g. Severability. No determination by a court of competent jurisdiction that any term or provision
of this Agreement is invalid or otherwise unenforceable shall operate to invalidate or render
unenforceable any other term or provision of this Agreement and all remaining provisions shall be
enforced in accordance with their terms to the fullest extent permitted by law.
h. Governing LawNenue. This Agreement will be governed by and construed under, and the
legal relations between the parties hereto will be determined in accordance. with, the laws of the State
of Texas, without giving effect to such state's conflict of law principles. Venue for any legal action
arising out of or related to this Agreement shall be in the State District Courts located in Brazos County,
Texas.
I. Customer Data. Customer Equipment may be used to store sensitive, confidential or
proprietary information of Customer. At no time shall Operator have any rights- to access or use
Customer Equipment and all information on Customer Equipment shall remain at all times the property
of Customer.
j. IP Address Ownership. Operator shall maintain and control ownership of all IP addresses and
addresses that may be assigned to Customer by Operator under this Agreement and Operator shall
not change or remove any such IP numbers or addresses without the written consent of Customer,
which shall not be unreasonably withheld.
k. Intellectual Property. Both parties represent and warrantto the other that their actions under
.__---_._—._—this_Agreement:shall. not -knowingly infringe_the_Intellectual.property_or_other_proprietary rights oLthe_--_.___.._.—__
other party or anythird party..Customerfurther acknowledges that all right, title and interest in any and
all technology provided by Operator to Customer, Including the software that is part of or provided with
the Services, and any trademarks or service marks of Operator (collectively, "Operator Intellectual
Property'') is vested in Operator and/or in Operator's licensors. Operator acknowledges that Customer
business and Customer information and Customer software and technology and Customer claimed
trademark, patent and copyrights (collectively, the. "Customer Intellectual Property") shall remain the
property of Customer and are not transferred or licensed hereunder. Unless otherwise specifically
provided in this Agreement, neither party shall have right, title, claims or .interest in or to the other
party's Intellectual Property and may not copy, modify or translate the other party's Intellectual
Property or related documentation, or decomplle, disassemble or reverse engineer such Intellectual
Property.
Unless otherwise specifically provided in this Agreement, Customer is not authorized to distribute or
to authorize others to distribute the Operator Intellectual Property in any manner without the prior
Written consent of Operator; provided, however, that nothing in this sentence would preclude Customer
from using the Operator Intellectual Property as incorporated in the Services. This Section shall not
.operate to extinguish, restrict, vary, waive or affect in any manner whatsoever,any right, title or interest
which Customer may now have or hereafter acquires in, or in relation to; the third -party software that
is part of or provided with the Services solely to the extent -such third -party licensors publicly provide
such rights, title or interest in the third -party software to Customer.
I. No.Photographs. Customer may not photograph, or electronically or otherwise reproduce any
part of the interior of the Premises, without Operator's prior written permission.
M. Entire Agreement: Amendments: Headings. This Agreement, including the Service Order
Form and Schedule(s) hereto, constitutes the entire agreement between the. Parties pertaining to the
subject matter hereof and supersedes all prior or contemporaneous, written or oral negotiations,
agreements, negotiations, correspondence and understandings between the parties respecting the
12
Vol. aa� Pg. -_
__ .duly-executed,byboth,parties: The-Section-heddingsln,-thisAgreement-are-Inserted-for-convenience-----------------
of reference only and shall not be used in interpreting this Agreement.
n. Survival. The rights. and obligations of the parties in. this Agreement that would bytheir nature
or context be intended to.survive the expiration or termination pf this Agreement shall so survive, even
if not so designated in this agreement.
o. Subordination. Customer's rights under this Agreement:shall be.subordinate to any bona fide
mortgages, loans, deeds of trust, or any other .encumbrance upon the real or personal property that
may be incurred by Operator. Customer shall sign any such reasonable documents as are necessary
to satisfy any lender, private or institutional, to reflect said -subordination.
P. Attornev's Fees. If either party commences an action against the other party arising out of or
concerning this Agreement, the prevailing party in such litigation shall be entitled to reasonable
attorneys fees and costs in addition to such other relief as may be awarded.
q. Leasing Agent Commissions. Operator shall not be responsible for the payment of
commissions to any broker or agent.
13
'Vol.0��1 Pg. 02
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth
MEINAGED N TWORK SOL. T NSI INC.
By;
Name: Nancy Finney
Title: CFO
Date: (v/1 d
a C my
By:
Name: jilt' uane Reters y
Title: C6 (A i
Dater
•14
y. G � Pg.
.p
APPENDIX A - SLA
MANAGED NETWORK SOLUTIONS, INC.
TIER it Data Center
Service Level Agreement
MANAGED NETWORK SOLUTIONS, INC.
NETWORK AVAILABILITY - UPTIME
Operator's Availability Guarantee declares that the Operator Network will be -available 99.97% of the
time. If Operator fails to meet this Guarantee during any given calendar month, Customer's account
will be credited. At Customer's request, Operator will calculate the "Network"Unavailability" in a
calendar month. "Network Unavailability" consists of the number of minutes that the Operator
Network, a Operator -ordered telephone company circuit in the contiguous U.S.., or a Operator -owned
fiber optic or copper cable build -out was not available to Customer. This will not include
unavailability continuing. for one hour -or less which Customer fails to report to Operator within. five
days, or any unavailability resulting from: (a) Operator scheduled network maintenance; (b) arty
Customer -ordered telephone company circuits; (c) Customer's applications, equipment, or facilities;
(d).acts or omissions- of Customer, Operator or any use or user of the service authorized by Operator
Customer; or, (e), reasons of Force Majeure.
If Operator fails to meet this Availability Guarantee, the account shall be credited $.20 for each
minute of Network Unavailability in any calendar month.
MONITORING MECHANISM
- -..Operator-operates-commercial-software=packages•that monitor--all-circuits-that.Operator deploys ------
including data center connections. These commercial monitoring packages alert the Operator
network operation center (NOC) and "on call" engineers concerning network issues. Operator will
notify all customers' designated emergency contacts within 30 minutes of network trouble 24 hours a
day. The Operator's NOC is available 24x7.
15
Vol. aG$ Pg. qi
MANAGED NETWORK SOLUTIONS, INC.
TIER II Data Center
Service Order Form
Fees and Charges
Operator shall provide the following Services and equipment and Customer agrees to pay the
fees and charges set forth below:
Power
F
A' K
,tw elirp eeEacf RGEac. =o a11MRC,
120/10 power circuit
120/20 power circuit
Circuits and IP Services
.;Fee,/=acl :�N1RC,EaMchnTot�le>IRC` .'
0011k '6
1 iber Cross Connect 0 225
225
Total
225
Fuel Surcharges.
Operator reserves the right to recover electrical fuel surcharges from the Customer at any time
during the term of this agreement.
Sales tax shall be added to all invoices as applicable.
Term.
Contract term will be 12 months following the Service Commencement Date.
Service Commencement Date: November 1, 2018.
Customer Contact Information:
Name E-mail Phone #
Technical
$illb Melzow _ networkingtirazoscountvtx.Qov., _._ ;979-361=4'693
Accounting Helen.:Qook..;..;, _ _.,,..ahsookbrazoscountvfcaov
Additional Services
On -Site technical service is available at a rate of $125 per hour (1 hr minimum M -F, 8:00 AM to 5:00
PM, 3 hr. minimum outside of those times).
Note:
16
voi. Pg. ass
Quantities reflected are correct as of the lease agreement Service Commencement Date. Prices do
� ==='�_ ===� =not=inslucte-applicabCe•sales-- of x=wfiicfi-wiltbe=addedTo-ttie-custorners•invoise� = =-==-_-===_-=_•_==�-_•
All power whip pairs furnished to the .Customer's space will be rate limited at'80% of breaker rating
load. If the total load exceeds 80% of the breaker rating, Customer will be required to purchase an
additional power whip or whips to reduce the load to 80% or less. In addition, the Customer
understands that,the Data Center is a -Tier II designed faclllty: Failing to comply with the provisions of
this paragraph will forfeit all Customer remedies allowed in the Service Level Agreement in Appendix
A.
v" Special Conditions
APPROVED:.
M NAGED NETWORK SOL ONS, INC.
c
By:
Name: Nancy Finney
Title: CFO
Date: f//,/�
Name: IDuanePefecs i;: '`
Title: �tbbf tyJi VW--_
Date: q115 it
P-fM
213 Market Street
Harrisburg, PA 17101
717.232.2723
p m.com
June 5, 2019
ARBITRAGE REBATE COMPLIANCE SERVICES AUTHORIZATION LETTER
Ms. Katie Conner
County Auditor
Brazos County, Texas
300 East 26th Street
Suite 114
Bryan, TX 77803
Re: Arbitrage Rebate Compliance Services
Dear Ms. Conner:
This letter confirms the engagement of PFM Asset Management LLC ("PFMAM")
by Brazos County, Texas (the "Issuer") for the purpose of performing calculations relating
to the rebate requirements contained in Section 148(f) of the Internal Revenue Code of
1986 (the "Code"). The calculations are to be performed with respect to the debt
obligations listed on Exhibit A hereto (the "Bonds"); applying applicable federal tax rules.
The Issuer acknowledges that it is engaging PFMAM hereunder in connection with the
performance by PFMAM of only those services specifically set forth below.
PFMAM will calculate the amount of rebate liability with respect to the Bonds as
of the end of each bond year (or other appropriate period) and as of the final maturity or
redemption of the Bonds (each such date herein referred to as a "Calculation Date")
applying regulations of the United States Department of the Treasury in effect on such
Calculation Date. PFMAM will provide the following services: (i) calculation of the amount
of rebate liability with respect to the Bonds as of each Calculation Date, avid (ii) delivery
of schedules reflecting such rebate liability calculation and the assumptions involved.
The Issuer undertakes to provide or cause to be provided to PFMAM all relevant
data, as requested from time to time, with respect to each Calculation Date within 15
days after such date and the Issuer agrees to cooperate with all reasonable requests in
connection herewith. This information will be necessary to identify the amount of "gross
proceeds" (as that term is used in the Code) of the Bonds subject to the rebate
requirement, investment income thereon and applicable yields on the Bonds and on such
investments in order to calculate the rebate liability of the Issuerwith respect to the Bonds
as of the Calculation Date. PFMAM is not being engaged to duplicate work performed
by the prior Rebate Calculation Agent, if any, to independently determine whether there
were "prohibited payments" or "imputed receipts" within the meaning of Treasury
Regulations or to perform an audit or review of the investments acquired with gross
proceeds or the payment of debt service on the Bonds, and PFMAM will be entitled to
rely entirely on information provided by the Issuer without independent verification.
PFMAM Is also not being engaged to audit or review the tax exempt status of interest on
the Bonds or any other aspect of the Bond program except for the rebate liability to the
extent set forth in this engagement letter, and PFMAM shall be under no obligation to
consider any information obtained by PFMAM pursuant to this engagement for any
purpose other than determining such rebate liability. PFMAM shall not have any
obligation to update any report delivered hereunder because of events occurring,
changes in regulations, or data or information received, subsequent to the date of
delivery of such report.
W��
The fees payable to PFMAM with respect to the Bonds are as determined
pursuant to Exhibit B hereto. Calculation Date fees are due upon delivery of each
calculation.
This engagement is terminable in its entirety by either party hereto upon thirty
(30) days' written notice to the other party. If PFMAM terminates the engagement prior
to the initial Calculation thereunder, the initial set-up fee (if previously paid) shall be
refunded to the Issuer.
PFMAM is being retained hereunder only to perform the services specified
above. However, the Issuer may request PFMAM to advise the Issuer on matters not
covered by such services. Should PFMAM undertake to provide such advice, PFMAM
will only do so only if specifically requested in writing by the Issuer for a separate fee
based on a separate agreement.
PFMAM may rely upon the advice of counsel, who may be counsel to the Issuer,
and upon statements of accountants, brokers and other persons believed by it in good
faith to be experts in the matters upon which they are consulted. The Issuer agrees to
indemnify, defend, and hold harmless PFMAM and its officers, directors, employees,
agents, successors, and assigns from any and all losses, liabilities, damages and claims,
and all related costs and expenses, including attorneys' fees and costs of investigation,
litigation, settlement, judgment, interest and penalties arising from or in connection with
any claim made against PFMAM in connection with its performance of the services to be
provided by it pursuant hereto, unless arising primarily from PFMAM's negligence or
willful misconduct.
Additional Issues may be added, from time to time, to Exhibit A hereto by written
notice from the Issuer to PFMAM, and the fee schedule on Exhibit B shall apply unless
other fees are agreed to in writing.
If this engagement letter is satisfactory, please have an authorized official
acknowledge below and return one copy to the undersigned.
Very truly yours,
PFM
/Asset
� Management LLC
David Reeser
Managing Director
By:
Name: -`��
Title: 3 ��.- vU.c
Date: 9�1 3 /`/
Exhibit A
Description
1. $9,100,000 Certificates of Participation, Series 2015
2. $11,650,000 Certificates of Participation, Series 2017
$39,895,000 Limited Tax Refunding Bonds, Series 2017
Vol. pg--ao—
Exhibit B
ARBITRAGE REBATE COMPLIANCE SERVICES FEE SCHEDULE
Bond Issue
Calculation
Date
51h/Final Report
Fee (with
outstanding
proceeds)
51h/Final Report Fee
(with DSF only)
$9,100,000
Certificates of
10/13/2020
$3,500
$2,500
Participation,
Series 2015
$11,650,000
Certificates of
Participation, Series
2017
11/15/2022
$3,500
$2,500
$39,895,000 Limited
Tax Refunding
Bonds, Series 2017
RFP # CIP 20-501 Elmo Weedon Road Reconstruction Phase I
Max Points
Available
1 Total Cost including the contingency, alternates and addenda
Brazos Paving,
Inc.
Points for Cost
40
2 Completion Time
Kn Riv1n
Points for Time
15
3 Past performance on similar projects of size and scope
10
4 Overall Experience of Project Manager & Superintendent
20
5 Resource Availability
15
Proposal Total 100
'Final Price after Negotiation
Committee eco ended ward: ife Iver
Approved:
Date Approved: 90/3
Larry Young
Paving Inc.
Brazos Paving,
Inc.
Texcon
Smith &
Company
Angel Brothers
Kn Riv1n
$4,915,973.90
$4,877,042.00
$4,953,196.75
$5,064,938.50
$5,025,848.50
$4,Oq,2fl2 3$
33.27
33.54
33.02
32.29
32.55
X007
260
270
175
300
225
_
10.10
9.72
15.00
8.75
11.67
E T
10
10
10
10
10
0
20
20
20
20
20
20
15
15
15
15
15IS�
88.37
88.26
93.02
1 86.04
89.2193.7,5
AGREEMENT
FOR ELMO WEEDON ROAD
RECONSTRUCTION PHASE I
RFP # CIP 20-501
BRAZOS COUNTY, TEXAS -
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20501 Page 1
Vol.. Pg.—a] •
TABLE OF ARTICLES
1.' . General Provisions
:2. Owner
3. Contractor
4. Administration of the Contract
5. Subcontractors
.6. Construction by Owner or by Separate .Contractors
7..'. Changes in the Work
8. Time
9. Payments -and Completion .
10. Protection of Persons. and Property
11. Insurance and Bonds
12.. Uncovering and Correction of Work
13. Miscellaneous Provisions
14. Termination or Suspension of the Contract
15. Access to the Work
.16. Standards
17. Prohibition against personal interest in the Contract
18. Prevailing Wage Rates
19. Authority to -Contract
Agreement for Construction—Elmo Weedon Road. Reconstruction Phase I RFP CIP 20-501 Page 2
Vol. p9.
AGREEMENT FOR CONSTRUCTION OF BRAZOS COUNTY
ROADWAY
This Agreement for the construction of the ELMO WEEDON ROAD
RECONSTRUCTION PHASE I, Brazos County, Texas, in the amount of FOUR
MILLION, EIGHTY NINE THOUSAND, TWO HUNDRED TWO DOLLARS, THIRTY
NINE CENTS ($ 4,089,202.39) is entered into this 3 day of September 2019 by and
between BRAZOS COUNTY, TEXAS (hereafter referred to as "Owner"), 200 South
Texas Ave., Suite 352, Bryan, Texas 77803, and KNIFE RIVER., (hereinafter referred to
as "Contractor"). The ELMO WEEDON ROAD RECONSTRUCTION PHASE I is
hereinafter referred to as the "Project." The Engineer for the Project is the firm of
GESSNER ENGINEERING, LLP and is hereinafter referred to as "Engineer."
ARTICLE 1
GENERAL PROVISIONS
1.1. BASIC DEFINITIONS
1.1.1 THE COMPLETE CONTRACT DOCUMENTS: The complete Contract
Documents ("Contract Documents") consist of the Agreement between Owner and
Contractor (hereinafter the "Agreement"), Conditions of the Contract (General,
Supplementary and other Conditions), all documents included in RFP # CIP 20-501 and
the Drawings, Project Manual and Bid Specifications, as well as Addenda issued prior to
execution of the Contract, other documents listed in the Agreement and Modifications
issued after execution of the Contract.
A Modification is: (1) a written amendment to the Contract signed by both parties;
(2) a Change Order or Change Proposal Request; (3) a Construction Change Directive,
or (4) a clarification, interpretation or written order for a minor change in the Work issued
by the Engineer. Unless specifically enumerated in the Agreement, the Contract
Documents do not include other documents such as bidding requirements
(advertisement or invitation to bid, Instructions to Bidders, sample forms or portions of
addenda relating to bidding requirements). The Contract Documents executed in
accordance with Sub -paragraph 1.5.1. shall prevail in case of an inconsistency with
subsequent versions made through manipulatable electronic operations involving
computers.
1.1.2 THE CONTRACT: The Contract Documents form the Contract for Construction
("Contract"). The Contract represents the entire and integrated agreement between the
parties hereto and supersedes prior negotiations, representations or agreements, either
written or oral. The Contract may be amended or modified only by a Modification. The
Contract Documents shall not be construed to create a contractual relationship of any
kind: (1) between the Contractor and Engineer or Engineer's consultants; (2) between
the Owner and a Subcontractor or Sub—subcontractor, or (3) between any persons or
entities other than the Owner and Contractor. The Engineer shall, however, with the
consent of Owner, be entitled to performance and enforcement of obligations under the
Contract intended to facilitate performance of the Engineer's duties.
1.1.3 THE WORK: The term "Work" means the construction and services required by
the Contract, whether completed or partially completed, and includes all other labor,
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 3
materials, - equipment. and services provided or.to be provided by the Contractor to fulfill
the Contractor's obligations. The Work may constitute.the whole or apart of the Project.•.
:Although not indicated, "Work" includes providing supplementary or miscellaneous
items, appurtenances and devices incidental to or necessary for a sound, secure,
complete and functional installation.
1.1.4 THE PROJECT: The Project*is the rehabilitation.of_the ELMO WEEDON ROAD
RECONSTRUCTION PHASE I in Brazos County, Texas as specified in the Contract
-Documents. The Project may include construction by the Owner .or by separate
contractors.
1.1.4.1 SUMMARY'OF THE WORK: This project consists of the rehabilitation of a portion
of Elmo Weedon Road.
1.1.5 THE. DRAWINGS: The Drawings are the graphic and pictorial portions of the
Contract: Documents, wherever located. and whenever issued, showing the .design,
location • and dimensions of the -Work, generally including plans, elevations; sections,
details, schedules -and diagrams.
'1.1.6 THE SPECIFICATIONS: The Specifications' are that portion; of the. Contract
Documents consisting of fhe.written requirements for materials, equipment,, construction
systems, standards and workmanship for the Work, and performance of related services.
7.1.1.7 .THE PROJECT MANUAL: The Project Manual is the, volume usually assembled
for•the Work that may include the bidding requirements, sample forms, this Agreement,
Supplementary Conditions of the Contract and Specifications.
1.1.8 GENERAL DEFINITIONS: Construction industry technical.. terms not defined in
the..Contract Documents shall.have the meanings given.as listed in. the latest edition of
- the AIA:"Glossary of Construction. -industry. Terms.". Those not specifically defined at :
-either place shall have the meanings commonly attributed to them by the particular trade
involved.
.1 Provide: shall be understood�to mean: "Furnishing of all -labor, materials,
equipment, transportation and services referred to and installation of -the
materials, equipment and other items referred to, all in .compliance with the
requirement -of the -Contract Documents and applicable Federal, State and
local laws and ordinances as: well as requirements of Federal, State and
local authorities having jurisdiction :at the site•of the Work."
.2 Required: shall be understood. to refer to the requirements of the contract
...Documents unless its use in a sentence= clearly implies a different •
interpretation.
Z Where "as shown " "as indicated "as no similar terirls are
used, it shall be understood that reference to the Contract lirawings is
made, unless their user in a 'sentence' clearly implies a different .
interpretation.
.4 Where.! the terms "Plans" or- "Drawings" are used, they shall - be
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501. Page 4
FVl. aA O' pg.
understood to include drawings, details and schedules as applicable.
.5 Construction Time: the number of calendar days required to perform the
work. Refer to Sections 8. 1.1 and 8.1.2.
.6 Day: A calendar day beginning and ending at 12:00 midnight.
.7 Equal; approved equal; Engineer approved; acceptable; approved;
satisfactory; required; directed; instructed: Such terms and related
phrases shall relate to the opinions and interpretations of the Contract
Documents by the Engineer, unless otherwise stated, and shall be limited
in authority and responsibility as defined under this Agreement and the
contract between the Engineer and Owner.
.8 Date of Final Completion: The date when Engineer and Owner find all
the work of the Contract documents acceptable and the Contract fully
performed.
.9 Occurrence: Is defined as follows for purpose of insurance — An event
which occurs during -the policy period, or a continuous or repeated
exposure to conditions which result, during the policy period in bodily
injury, sickness or disease, or injury to or destruction of property, excluding
injuries or deaths of one or more persons or organizations, including the
loss of use thereof, resulting from a common cause or from exposure to
substantially the same .general condition existing at or emanating from
each location shall be deemed to result from one occurrence..
.10 Not—In—Contract ( N.1.C.): Work not included in this Contract.
.11 And/or: Shall mean both "and" and "or" and shall be enforceable by
Owner when read in either manner.
.12 General Contractor: Same as Contractor.
.13 Material Man; Material Supplier: Anyone that supplies material only and
does not perform any labor at the site of the work.
.14 'Timely Change: A change in the work that can be arranged before the
particular item of work has required the expenditure of any non—
recoverable costs by the Contractor and/or subcontractors.
15 Late Change: A change in the work that cannot be performed before the
particular item of work that requires the expenditure of some non—
recoverable cost after shop drawings, samples and/or schedules related to
the change have been reviewed and found acceptable.
.16 Prompt: Promptly and similar terms shall be to refer to a time period
of not less one week or more than two weeks.
.17 Addendum: A change to the Construction Documents (General
Documents, Specifications and Drawings) issued prior to the execution of
the Agreement.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 5
Vol. a Pg. ��
.18 Agreement/Contract: Agreement/Contract means the.same and are used
interchangeably throughout this document. This Agreement/Contract is the
signed agreement between Owner and Contractor for the performance of
the Work.
19 Critical Path: The' project's tasks that will cause the project end date to be
delayed if they. are delayed. The word "critical" does not imply how
important a task is; a task is critical solely because it must occur as
scheduled for the project to finish on time.
.20 Furnish: Unless specifically limited in context, the word "furnish" and any
derivatives thereof mean: deliver indicated items, materials, equipment,
apparatus, appurtenances and all items necessary for a complete and
.proper installation to Project site and stored in secure locations.
.21 Install: "Install" and any derivatives thereof mean; incorporated indicated
items, materials, equipment, apparatus, appurtenances and all items
necessary for the Work including all necessary labor, materials and
connections to perform a properly and complete installation ready for
operation of use, .including but not limited to unpacking and assembly, if
necessary.
.22 The Contractor Shall: In the interest of conciseness; sentences,
statements and clauses may be verb phrases with expressedverbs such
as "furnish," "install," "provide," "construct," "erect," "comply," "apply,"
"submit," etc. Any such sentences, statements and clauses are to be
interpreted to include the applicable form of the phrase "the Contract shall"
preceding the expressed verb, with the requirements described interpreted
as mandatory elements of the Contract.
23 Evaluation: "Evaluation" and any derivative thereof, as used in reference
to Engineer mean; to become generally familiar with the progress and
quality of the portion of Work completed to determine in general if it is being
performed in a manner indicating that the Work when completed may be
occupied or utilized by the Owner for its intended use. Such evaluations
shall be based on what is plainly visible at the- construction site during
periodic visits to the Project, and without the removal of material or other
Work that is in place.
.24 Inspect: "Inspect" and any derivative thereof, as used in reference to the
Engineer shall mean; Type of evaluation -that a reasonably prudent
Engineer, in the exercise of ordinary care, would make to determine if the
Work is in general accordance with the Contract -Documents; they are not
"inspections" as would necessarily disclose a_aefect.
25 See: In the interest of conciseness, references to specification sections.
and details are preceded by the word"see." Any such references are to
be interpreted to include applicable form of phrase "...and comply with."
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RPP CIP 20-501 Page 6
Vol._�11
_.dw:a
1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1. The intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the Work by the -Contractor. The Contract
Documents .are complementary and what is required by one shall be as binding as if
required by - all; performance by the Contractor shall -be required only to the extent
consistent with the Contract Documents and reasonably inferable from them.
1.2.2. Organization of the Specifications into divisions, sections and articles, and
arrangement of Drawings shall not control the. Contractor in dividing the Work among
Subcontractors or in establishing the extent of Work to be performed, nor limit the scope
of work performed by any trade or by any Sub -contractor or supplier.
1.2.3. Unless otherwise stated in the Contract Documents, words which have well—
known technical or construction industry meanings are used in the Contract Documents
in accordance with such recognized meanings.
1.2.4. General Conditions and Supplementary Condition and General Requirements
apply to all of the Contract Documents.
1.2.5 Precedence of the Contract Documents: The most recently issued Document
takes precedence over previous issues of the same Document. The order of precedence
is as follows with the highest authority listed as "A."
A. Modifications, Change Orders or a Change Proposal Request
B. This Agreement, including the General Conditions stated herein.
C. Addenda
D. Supplementary Conditions
E. Specifications and Drawings. In the case of an inconsistency between
Drawing and specifications or within either document, the better quality and
the greater quantity of work shall be provided unless otherwise directed by
Engineer.
1.2.6 Current Editions: When any work is governed by reference to standard, codes,
manufacturer's instructions or other reference documents, the latest issue in effect on
the original issue date of the Construction Documents shall apply whether or not the
proper edition is noted.
1.2.7 Enumeration of Items: Lists of "work included," "work excluded" and "description
of the work" and similar groupings are not intended to enumerate each and every item
of work or appurtenance required therein but shall be used in conjunction with all other
portions of the Contract Documents to establish the requirements for completion of the
Work or any portions thereof.
1.2.8 Reference Guarantees: When reference standards are made a part of the
requirements, the warranties and guarantees they contain 'shall apply, except for the
portions:that are less stringent than -those required by the Contract Documents or imply
or state exclusions, limitations or waivers that are inconsistent with the requirements of
the Contract Documents.
1.3. CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those which are: (1)
Agreement for Construction— Elmo Weedon Road. Reconstruction Phase I RFP C1P 20-501 Page 7
specifically defined; (2) the titles of numbered. articles- and identified references .to
Paragraphs, Subparagraphs and -Clauses in the document, or (3) the titles of other
documents published by the American Institute of Engineers.
1.4' INTERPRETATION
1.4.1. Inthe interest of brevity the -Contract Documents frequently omit.modifyin.g words
such as "all" and "any" -and articles such as "the" and "an," but the fact that a modifier or
an article is absent from one statement and appears in another is -not intended to affect
the interpretation of either. statement.
1.5 * EXECUTION OF CONTRACT DOCUMENTS
1.5.1 The Contract Documents shall be enumerated on attachment(s) to the Agreement
and attachments(s) shall be signed by the. Owner and Contractor as provided in the
Agreement.
1.5.2 Execution of the Contract by. the Contractor is. a- representation that the Contractor
has visited the site, become familiar with local conditions under which the work- is to be
performed and correlated personal observations with- -requirements of the Contract
Documents. Contractor shall verify the location of all.easements before beginning the
project.
1.6 OWNERSHIP AND USE OF ENGINEER'S DRAWINGS, SPECIFICATIONS AND
OTHER DOCUMENTS:
1.6.1. The Drawings, Specifications and other documents, including those in electronic
form, prepared by the Engineer and/or Engineer's consultants are Instruments of'the
Engineer's service through which 'the ' Work to be executed by the Contractor is
described. The Contractor may retain one contract record set. Neither the Contractor,
nor any Subcontractor, Sub—subcontractor or material or equipment supplier shall own
or claim a copyright 'in the Drawings, Specifications and other documents prepared by
-the Engineer or the Engineer's consultants, and unless'otherwise indicated the Engineer
.or the Engineer's consultants shall be deemed the author of them and will retain all
common law, statutory and' other reserved rights, in addition to -the copyright, unless
indicated differently in the Owner — Engineer Agreement. The Drawings, Specifications
and other documents prepared by the Engineer,' and copies thereof furnished to the
Contractor, are f&.use solely with respect to this Project: They are not to be used by the
Contractor or any Subcontractor, Sub—subcontractor or material or equipment supplier
on other projects or for additions to:this Project outside the scope of the work without the
specific written consent of the Owner, Engineer -and/or Engineer's consultants. The
Contractor, Subcontractors, Sub—subcontractors and material or equipment suppliers
are granted a limited license to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Engineer and/or Engineer's
consultants appropriate to and for use in the execution of their Work under the Contract
Documents. All copies made under this license shall bear the statutory copyright notice,
if any,- shown on the Drawings, Specifications and other documents prepared: by the
Engineer and/or the Engineer's consultants. Submittal or distribution to meet official
regulatory requirements or for other purposes in connection with this Project.is not to be
construed as publication in derogation of the En g ineer's 'copyright or other. reserved
rights.
1.6.2 CONTRACTOR'S USE OF INSTRUMENTS OF SERVICE IN ELECTRONIC
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 8
Vol. P .
FORM
1.6.2.1 Engineer may furnish or sell, at an agreed upon cost, to Contractor,
Subcontractor, Sub -subcontractor, and material and equipment supplier, or other
versions of Instruments of Service in electronic form for use solely with respect to this
Project. The Contract Documents executed or identified in accordance with
Subparagraph 1.5.1 shall prevail in case of an inconsistency with subsequent versions
made through manipulatable electronic means involving computers.
1.6.2.2 If required to be furnished, or if furnished, Engineer or Engineer's
Consultants will furnish electronic data in software format in use by Engineer at the time
Engineer's services are performed. Contractor, any Subcontractors or Sub -
subcontractors, material or equipment suppliers, or others shall be responsible for proper
storage, maintenance and conversions necessary to prevent degradation or
obsolescence of data. Any change or modification in electronic data by Contractor, any
Subcontractors or Sub -subcontractors, material or equipment suppliers, or others shall
be at their sole risk and without liability or legal exposure to Engineer, Engineer's
consultants or Owner, and to fullest extent permitted by law, the Contractor, any
Subcontractors or Sub -subcontractors, material or equipment suppliers agrees to hold
harmless and indemnify Engineer, Engineer's consultants and Owner from and against
all claims, liabilities, losses, damages and costs, including but not limited to reasonable
attorney's fees, arising there from or in connection therewith.
1.6.2.3 The Contractor, any Subcontractors or Sub -subcontractors, material or
equipment suppliers, and others understand that the conversion of electronic information
and data supplied by the Engineer or Engineer's consultants from the system and format
used by the Engineer or Engineer's consultants to an alternative or upgraded system or
format, whether performed by Engineer, Engineer's consultants or others, cannot be
accomplished without the introduction of inexactitudes, anomalies, omissions and errors.
In the event the electronic data furnished to the Contractor, any Subcontractors or Sub -
subcontractors, material or equipment suppliers, is converted, they agree to assume all
risks associated with such conversion. If Engineer and/or Engineer's consultants furnish
electronic data, the Contractor, any Subcontractors or Sub -subcontractors, material or
equipment suppliers, and others agrees to hold Engineer, Engineer's consultants and
Owner harmless and to waive any and all claims, liabilities, losses, damages and costs
arising out of, or in any way connected with, the conversion of electronic data supplied
by the Engineer or Engineer's .consultants.
1.6.2.4 If documents, including those in electronic form,' are modified, revised or
changed in- any way by the Contractor, Subcontractor, Sub -subcontractor, and material
and equipment supplier, or others, any reference to the Engineer and Engineer's
consultant and any professional seals and signatures shall be removed from the
documents.
1.6.2:5 In consideration for the use .of the Drawings; Specifications and other
documents, including those in electronic form, Contractor, Subcontractor, Sub -
subcontractor, material and equipment supplier and others agree to indemnify, defend
and hold harmless the Engineer, Engineer's consultants and Owner from and against,
any claim or liabilities arising out of such use.
ARTICLE 2
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 9
OWNER
2.1 DEFINITION
2.1.1 The Owner is Brazos County, Texas. The term "Owner". means the Owner or the
Owner's authorized representative. The Owner's representative is Gary Arnold, Capital
Project Manager, or such other person as may from time to time be so designated by
the Brazos County Commissioners. Court .to act on behalf of Owner.
2.1.2 The Owner upon reasonable -written request shall furnish to the Contractor in
writing information which is necessary and -relevant for the Contractor to evaluate, give
notice of or enforce mechanic's lien rights.- Such information shall include a: correct
statement of the record legal title to the -property on which. the Project is located, usually
referred to as the site, and the -Owner's interest therein at the time of execution of the
Agreement and within five (5) days:after any change, information of such change in title,
recorded or unrecorded.
2.2 INFORMATION AND SERVICES REQUIRED OF THE..OWNER
2.2.1 The Owner shall furnish surveys describing. physical characteristics and legal
limitations -for the site of the Project, -and a legal -description of the site. The Contractor
shall be entitled to rely on the accuracy of information furnished by the Owner but shall
exercise proper precautions relating to the safe performance of the Work.
2.2.2 Except for permits and fees, including those required under Paragraph 3.7, which
.are the. -responsibility of the Contractor under the Contract Documents, Owner shall
secure and pay for necessary approvals, easements, assessments and charges required
for construction.
2.2.3 Information or services required of.the Owner by the Contract Documents shall
be furnished by the Owner with reasonable promptness and complete and accurate to
the best of the Owner's information and belief. Any other information or services relevant
to the Contractor's performance of the Work under the Owner's control shall be furnished
by the Owner after receipt' from.the .Contractor of a written request for such information
or services.
2.2.4.. Contractor will be furnished, free of, charge, one set of Contract Documents in
Adobe '`PDF" file format suitable for plotting or printing. Contractor may use for limited
purpose of making prints thereof required for use in performance of Work, in accordance
with Paragraph 1.6.
2.2.5 The foregoing are in addition to other duties and: responsibilities of the Owner
enumerated herein and especially those in.respect to Article 6 (Construction by Owner
or by Separate Contractors), Article 9 (Payments- and Completion) and Article 11
(Insurance and Bonds).
2.3 OWNER'S RIGHT TO STOP THE WORK: If the Contractor fails to correct Work
which -is not in accordance with the -requirements of -the Contract Documents as required
by Paragraph 12.2 or fails, .more than once, to carry out' Work in accordance with the
Contract. Documents, the Owner by written order may order the Contractor to stop the
Work, -or any portion thereof, until the cause for such order has been eliminated;
however,.the right of the Ownerto stop the Work shall not give rise to a duty on the part
of the Owner to exercise this right for the benefit of the Contractor -or any other person
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page •10
Vol. . Pg. a
or entity, except to the extent required by Subparagraph .6.1.3. Owner does not waive
the rightto stop the work in any. future situation if Owner'waives this right in any one.
situation.
2.4' OWNER'S RIGHT TO CARRYOUT THE WORK
2.4.1 If. the Contractor defaults or neglects to carry. out the Work, or any portion thereof,
in accordance with the' Contract Documents 'or fails to complete, within the time period
stipulated, any items of work scheduled to be done subsequent to the Date of Substantial
Completion or fails to complete or correct any items of work disclosed subsequent to the
Date of Substantial Completion and fails within a seven day period after receipt of written
notice from.Owner to commence and continue correction. of such default or neglect with
diligence and promptness, the Owner -may, without prejudice to other remedies the
Owner may have, correct such deficiencies. In such case, an appropriate Change Order
shall be Issued deducting from payments then, or thereafter, due the Contractor the cost
of correcting.. such deficiencies, including compensation, for the Engineer's additional
services. and expenses made necessary by such default, neglect or failure.' Such action
by the Owner and amounts charged to the Contractor shall be done after consultation
with the Engineer. If. payments then or thereafter due the Contractor are not sufficient to
cover such amounts, the Contractor shall pay the difference to the Owner.
2.4.2 Neither Owner nor 'its . officers, agents, or employees ' are in any way liable or
accountable to Contractor or its Surety for any method by which completion of said Work,
or any. portion thereof, is accomplished or for price paid therefore, unless Surety is
required to pay cost to complete the Project, in excess of the amount contained in the
Owner -Contractor Agreement, as a direct result of the En.gineer's negligent issuance of
Certificate(s) for Payment. Contractor and Surety are, responsible for all costs for
completing the Work including cost'in excess of original Contract Sum'. Owner does not
forfeit right to recover damages from Contractor or Surety for failure to complete Contract
by taking over the Work or by. declaring Contract in default. Maintenance of the Work
remains Contractor's and Surety's responsibility as provided- for in Performance Bond
and guarantee of Contractor.
2.4.3 The Owner reserves the right to:
.1: observe the work, at•any time,•whenever it is in preparation or progress;
.2 make emergency- repairs :to the work during the guarantee period; to
prevent further damages and the Contractor shall pay for such repairs
when necessitated by defects in the Contractor's work;
.3 make changes to the work.
2.4.4 The Owner shall not be required to accept from the Contractor (unless specifically
agreed. upon):
.1 Partial Substantial Completion;
.2. Substantial Completion when it occurs prior to' the expiration of the
Construction Time:
ARTICLE 3
CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person. or entity identified as such in the Agfeement and is
referred to throughout the Contract- Documents as if singular in number. The. term
"Contractor" means the Contractor or the Contractor's authorized representative.
Agreement for Construction— Elmo Weedon Road.Reconstruction Phase I RFP CIP 20-501. Page 11
Vol. a pg.
3.1.2 The Contractor shall perform the Work in accordance with the Contract
Documents.
3.1.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the Engineer in
the Engineer's administration of the Contract, or -by tests, inspections or approvals
required or performed by persons or entities other than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD. CONDITIONS
3.2.1 Since the Contract Documents are complementary, before starting each portion of
the Work, the Contractor shall carefully study and compare the various Drawings and
other Contract Documents relative to that portion of the Work, as well as the information
furnished by the Owner pursuant to Subparagraph 2.2.1, shall take field measurements
of any existing conditions related to that portion of the Work and shall observe any
conditions at the site affecting it. These obligations are for the purpose of facilitating
construction by the Contractor and are not for the purpose of discovering errors,
omissions or inconsistencies in the Contract Documents; however, any errors,
inconsistencies or omissions discovered by the Contractor shall be reported promptly to
the Engineer as a properly prepared, timely Request For Information (RFI) in such form
as the Engineer may require.
3.2.2 Any design errors or -omissions noted by the Contractor during this review shall
be reported promptly to the Engineer, but it is recognized that the Contractor's review is
made in the Contractor's capacity as a contractor and not as a licensed design
professional unless otherwise specifically provided in the Contract Documents. The
Contractor is not required to ascertain that the Contract Documents are in accordance
with applicable laws, statutes, ordinances, codes and rules and regulations, unless they
bear upon construction means, methods, techniques or safety and health precautions,
but the Contractor shall promptly report to Engineer any nonconformity discovered by or
made known to the Contractor as a Request For Information (RFI) in such form as the
Engineer may require.
3.2.3 If the Contractor believes that additional cost or time is involved because of
clarifications, interpretations or instructions issued by the Engineer in response to the
Contractor's notices or requests for information pursuant to Subparagraphs 3.2.1 and
3.2.2, the Contractor shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If
the Contractor fails to perform the obligations of Subparagraphs 3.2.1 and 3.2.2, the
Contractor shall pay such costs and damages to the Owner as would have been avoided
if the Contractor had performed such obligations. The Contractor shall not be liable to
the Owner or Engineer for damages resulting from errors, inconsistencies or omissions
in the Contract Documents or for differences between field measurements or conditions
and the Contract Documents unless the Contractor recognized such error, inconsistency,
omission or difference and knowingly failed to report it to the Engineer.
3.2.3 The Contractor shall verify the location of all easements before beginning the
Project.
3.2.4 The Contractor shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 12
va. Pe..��
3.3 ' SUPERVISION"AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best
skill and attention. The Contractor shall- be solely responsible for and have control over
construction -means, methods, techniques," sequences and . procedures and for
coordinating all portions of the Work under the Contract, unless the Contract Documents .
give other specific instructions concerning these matters. If the'Contract'Documents give
specific instructions concerning construction means, methods, techniques, sequences
or procedures, the Contractor shall review, substantiate, and comply with current
industry .execution standards and manufacturer's current execution instructions and
evaluate the jobsite safety thereof and, except as stated- below, shall be fully and solely
responsible for the jobsite safety of -such means, methods, techniques, sequences or
procedures.
If the Contractor determines :that such means,. methods, techniques, sequences or
procedures may.not be safe, the Contractor.shall give timely written notice to the Owner -
and Engineer and shall not proceed with that portion of the.Work without further written
instructions. from the Engineer. If the Contractor is then: instructed to proceed with .the
required means, methods, techniques; sequences or procedures without acceptance of
changes proposed by the Contractor, the Owner shall be solely responsible for any
resulting loss or damage.
3.3.2 The Contractor shall be responsible. to the Owner for acts and..omissions of the
Contractor's employees, Subcontractors and their agents and employees, and other
persons performing portions of the Work under a contract.with the Contractor.
3.3.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of the Engineer in
the Engineer's administration of the Contract, or by tests, inspections or approvals
required or performed by persons other than the Contractor.
3.3.4 The Contractor shall. be responsible for inspection of portions of Work already
performed under this Contract to determine that such portions are in proper condition to
:receive subsequent Work:
3.3.5 Contractor is solely responsible for coordination .of scope of Work for its own
forces, and of Subcontractors and suppliers, and -to complete all Work, whether
performed by the Contractor or a Subcontractor.
3.3.6 The Contractor shall provide a full—time Project Superintendent. Refer to RFP
Section 8(f).
3.3.7 LavouMgrades will be per plans.
3.4 LABOR AND MATERIALS'
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for labor, materials, equipment, tools, construction equipment and
machinery, water, utilities, transportation .and other facilities and services necessary for
proper execution and completion of the Work, whether temporary or permanent, and
whether or not incorporated or to be incorporated in the Work.
Agreement for Constriction— EImo. Weedon Road Reconstruction Phase I RFP CIP 20-501 . Page 13
3.4.2 The Contractor may make substitutions only if allowed by Contract Documents
and with the consent of the Owner, after evaluation by the Engineer and in accordance
with a Change Order, or by Owner's approval of a Substitution Request.
3.4.3 The Contractor shall enforce strict discipline and good order among the
Contractor's employees and other persons carrying out the Contract. The Contractor
shall not permit employment of unfit persons or persons not skilled in tasks assigned to
them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and Engineer that all materials and
equipment furnished under this Contract will be of good quality and new unless otherwise
specified and that all Work will be provided in accordance with the requirements of the
Contract Documents and will be of good quality, free of faults and defects. All Work not
conforming to the requirements of the Contract Documents, including substitutions or
changes made by the Contractor or any subcontractor, material supplier or equipment
supplier that have not been specifically identified (PRIOR to Contract award) by means
of a Letter of Notice to Engineer and properly accepted and authorized by Engineer, shall
be considered defective and not in agreement with the requirements of the Contract
Documents, and shall be promptly corrected in accordance with the requirements of
Article 12 of this Agreement and amendments thereto as set forth in Supplementary
Conditions or Modifications. Notation or listing of such substitutions or changes on shop
drawings or other types of submittal will not be considered acceptable to Engineer
whether or not such submittal has been reviewed or stamped by Engineer. Notice must
be specific and transmitted in letter form. If required by Owner or Engineer, Contractor
shall furnish satisfactory evidence as to the kind and quality of materials and equipment
actually provided. This warranty is not limited by the provisions of Paragraph 12.2.
3.5.2 Immediately prior to Date of.Substantial Completion, Contractor shall execute and
deliver to Engineer, a written warranty in approved form, stating that all materials and
equipment provided and all work performed are in accordance with the requirements of
the Contract Documents and authorized modifications and additions thereto; and further
stating that Contractor guarantees, should any condition arise or be disclosed during the
time of Contract warranty, which conditions are due -to incomplete, or improper or
defective materials, or due to incomplete or improper or defective workmanship or
arrangement, such condition, together with all work affected in correcting such condition,
shall be (upon written notice from Owner) promptly and satisfactorily corrected by
Contractor at no additional cost to Owner. Contractor shall be fully responsible for the
prompt, satisfactory completion of all warranty work whether performed by his own or
subcontract personnel.
3.5.3 Work Covered by Warranty: Contractor's warranty shall cover all work under the
Contract; whether or not any portion or trade has been assigned or sub—let. In the event
any portion of the Work is performed by an assignee or subcontractor, Contractor shall
obtain from such assignee and/or subcontractor a written warranty to Contractor and
Owner covering their respective .portion of the Work for the period required. Contractor
shall deliver them, together with his own warranty, to Owner prior to final payment.
Assigns' and subcontractors' warranties shall expressly provide that the same shall be
enforceable directly by Owner, if he so elects, and shall run concurrently with
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 14
Vol. aaS pg.
Contractor's warranty. Warranty shall be secured by Contractor's Performance Bond as
directed by Owner.
3.5.4 Time of Warranty: Contractor's warranty shall be for a period of one year from
Date of Substantial Completion of the Work. Should a warranty required under any
Section of the Specifications or of this Contract be for a period of more than one year,
Contractor's and subcontractor's warranty, with respect to. such work, shall be for such
longer period. Warranty for work done subsequent to Date of Substantial Completion
shall be for a period of one year from date of Final Completion or such longer period, if
so specified.
3.5.5 Partial Occupancy: Should Owner occupy a portion of the Work before the date
of Substantial Completion, the warranty period for that portion so occupied shall begin
on the date of such occupancy as agreed in writing with Owner.
3.5.6 Objectionable Process: Where any material, process, or method or operation or
application procedure is required, which in the opinion of the Contractor, would render
the finished work unsuitable for the required warranty,.then, before a bid is submitted,
such unsuitable material, process, or application method shall be objected to in writing
to Engineer, stating reasons therefore and recommending other alternate materials or
methods so that the Work, when completed, will be suitable for the required warranty. In
the event the Contractor's recommendations are approved, the work shall be installed in
accordance therewith, and all changes in cost resulting there from shall be included in
the Contract bid amount.
3.5.7 Under the requirements of this Paragraph 3.5, Contractor shall be responsible for:
.1 Damages existing facilities, fences or other appurtenances or services
when damages result from use of faulty materials or negligent
workmanship.
.2 Warranting modifications accepted under subparagraph 3.5.6 above will
give satisfactory results.
.3 . Warranting substitutions will be equal or superior to the specified item or
method unless he specifically lists shortcomings in his request for making
substitution.
.4 Obtaining and enforcing all subcontract warranties with particular attention
being directed to enforcement of warranty work by electrical and other
subcontractors.
3.6 TAXES
3.6.1 Although Owner is a tax-exempt unit of local government, the Contractor shall pay
all sales, consumer, use and similar taxes for the Work or portions thereof provided by
the Contractorwhich may not be within Owner's exemption that are legally enacted when
Contractor's bids were received or negotiations between Owner and Contractor were
concluded, whether or not yet effective or merely scheduled to go into effect.
3.6.2 Contractor requires all Subcontractors, Sub -subcontractors and suppliers to bill
Contractor for all sales and use taxes on all materials and equipment incorporated into
Project as clearly discernible separate item to facilitate Contractor's keeping tax as
separate item of expense on records. Furnish this information to Owner to enable Owner
to meet state reporting requirements
Agreement for Constriction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 15
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise .provided in the Contract Documents, the. Contractor shall
secure and pay for the building permit and other permits and governmental fees, licenses
and inspections necessary for proper execution and completion of the Work which are
customarily secured after execution of the Contract and which are legally required when
bids are received or negotiations concluded.
3.7.1.1 Owner shall secure and pay for health and environmental impact fees,
water and sewer connections and impact fees, and zoning regulation fees and permits.
The Contractor shall secure and pay for all other permits and governmental fees,
licenses and inspections necessary for proper execution of and completion of Work
which are customarily secured after execution of Contract and which are legally required
when bids are received or Contract is executed.
3.7.2 The Contractor shall comply with and give notices required by applicable laws,
statutes, ordinances, codes, rules, regulations and lawful orders of public authorities
bearing on performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents
are in accordance with applicable laws, statutes, ordinances, building codes, and rules
and regulations, unless they bear upon construction means, methods, techniques or
safety and health precautions. However, if the Contractor observes that portions of the
Contract Documents are at variance therewith, the Contractor shall promptly notify the
Engineer and Owner in writing and necessary changes shall be accomplished by
appropriate Modification.
3.7.4 If the Contractor performs Work, knowing it to be contrary to laws, statutes,
ordinances, building codes, and rules and regulations without such. notice to the Engineer
and Owner, the Contractor shall assume full responsibility for such Work and shall bear
all the costs attributable for any and all repairs required for conformance, including but
not limited to, any penalties, fines or other damages realized..
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the
Contract Documents. Items covered by allowances shall be supplied for such amounts
and by such persons or entities as the Owner may direct, but the Contractor shall not be
required to employ persons or entities against which the Contractor makes reasonable
objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost to the Contractor of materials and
equipment delivered at the site and all required taxes, less applicable trade
discounts;
.2 Contractor's costs for unloading and handling at the site, labor, installation .
costs,. overhead, profit and other expenses contemplated for stated
allowance amounts shall be included in the allowances, and
.3 whenever costs are more than or less than allowances, *the Contract Sum
shall be adjusted accordingly by Change Order. The amount of the
Change Order shall reflect: (1) the difference between actual costs and the
allowances under Clause 3.8.2.2, and (2) changes in Contractor's costs
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 16
under Clause 3.8.2.3.
3.8.3 Contingency Allowance is established as $200,000.00 and shall be processed
pursuant to the Specifications.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent. Refer to RFP Section
8(f). ,
3.9.2 The Contractor, as soon as practicable after award of the Contract, shall furnish
in writing to the Owner and Engineer the name and qualifications of a proposed
superintendent. The Owner or Engineer may reply within fourteen (14) days to the
Contractor in writing stating: (1) whether the Owner or Engineer has reasonable objection
to the proposed superintendent, or (2) that the Owner or. Engineer requires additional
time to review. Failure of the Owner or Engineer to reply within the fourteen (14) day
period shall constitute notice of no reasonable objection.
3.9.3 The Contractor shall not employ a proposed superintendent to whom the Owner
or Engineer has made reasonable and timely objection. The Contractor shall not change
the superintendent without the Owner's consent, which shall not unreasonably be
withheld or delayed.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly (within ten (10) days) after notification of contract award,
shall prepare and submit for the Owner's and Engineer's information a Contractor's
construction schedule for the Work. The schedule shall not exceed time limits current
under the Contract Documents, shall be revised monthly or at appropriate intervals as
required by the conditions of the Work and Project whichever is less, shall be related to
the entire Project to the extent required by the Contract Documents and shall provide for
expeditious and practicable execution of the Work.
3.10.1.1 Owner may authorize construction activities to commence prior to
completion of Drawings and Specifications. If Drawings and Specifications require further
development at the time the initial construction schedule is prepared, Contractor shall:
1) allow time in the schedule for further development of Drawings and Specifications by
Engineer, including time for review by Owner and Contractor and for Contractor's
coordination of Subcontractors' Work, and 2) furnish to Owner, in a timely manner,
information regarding anticipated market conditions and construction cost, availability of
labor, materials and equipment, and proposed methods, sequences and time schedules
for construction of Work.
3.10.2 The Contractor shall prepare and keep current, for the Engineer's approval, a
schedule of submittals which is.coordinated with the Contractor's construction schedule
and allows the Engineer reasonable time, as defined by the Engineer to review
submittals. If the Contractor fails to submit a schedule, the Contractor shall not be entitled
to any increase in Contract Sum or extension of Contract Time based on the time
required for review of submittals. . .
3.10.3 The Contractor shall perform the Work in general accordance with the most recent
schedules submitted to the Owner and Engineer.
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 17
3.10.4 Owner shall not be bound by any early completion deadline submitted in any
schedule.
3.10.5 Owner does not approve or accept any schedule, but reserves the right to
review, comment and reject.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the
Drawings, Specifications, Addenda, Change Orders and other Modifications, in good
order and marked currently to record changes and selections made during construction,
and in addition approved Shop Drawings, Product Data, Samples and similar required
submittal. These shall be available to the Engineer and shall be delivered to the Owner
upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or a Subcontractor, Sub—subcontractor,
manufacturer, supplier or distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the Contractor to
illustrate materials or equipment for some portion of the,Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract
Documents. The purpose of their submittal is to demonstrate for those portions of the
Work for -which submittals are required the. way the Contractor proposes to conform to
the information given and the design concept expressed in the Contract Documents.
Review by the Engineer is subject to the limitations of Subparagraph 4.2.7. Informational
submittals upon which the Engineer is not expected to take responsive action may be so
identified in the Contract Documents. Submittals which are not required by the Contract
Documents may be returned by the Engineer without action.
3.12.5 The Contractor shall review for compliance with the Contract Documents, approve
and submit to the Engineer; ,Shop Drawings, Product Data, Samples and similar
submittals required by the Contract Documents with reasonable promptness and in such
sequence as to cause no delay in the Work or in the activities of the Owner or of separate
contractors. Submittals which are not marked as reviewed for compliance with the
Contract Documents and approved by the Contractor may be returned by- the Engineer
without action.
3.12.6 By submitting Shop Drawings, Product Data, Samples and similar submittals, the
Contractor and Sub -contractor represent to the Owner and Engineer that the Contractor
and Sub -contractor have (1) reviewed and approved them, (2) have reviewed for
compliance with the Contract Documents, (3) determined and verified materials, field
measurements and field construction criteria related thereto, or -will do so, and (4)
checked and coordinated the information contained within such submittals with the
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP C1P 20-501 Page 18
Vol. "•,A
requirements of the Work and of the Contract Documents, and have approved the
submittal.
3.12.7 The Contractor shall perform no portion of the Work requiring submittal and review
of Shop _Drawings, Product Data, Samples or similar submittals until the respective
submittal has been approved by. the Engineer. Such Work shall be in accordance with
approved submittals.
.1 The Contractor shall make all revisions as noted by Engineer and shall re—
submit the required number of corrected copies of Shop Drawings, product
data or samples until no exceptions are taken. The Contractor shall direct
specific attention, by cover letter accompanying resubmitted Shop
Drawings, to all revisions made in addition to those requested by Engineer
on previous submissions, if any.
3.12.8 The Work shall be in accordance with approved submittals except that the
Contractor shall not be relieved of responsibility for deviations from requirements of the
Contract Documents by the Engineer's approval of Shop Drawings, Product Data,
Samples or similar submittals unless the Contractor has specifically informed the
Engineer in writing of such deviation at the time of submittal and the Engineer has given
written approval to the specific deviation. The Contractor shall not be relieved of
responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar
submittals by the Engineer's approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop
Drawings, Product Data, Samples or similar submittals, to revisions other than those
requested by the Engineer on previous submittals. In absence of such written notice the
Engineer's approval of a re -submission shall not apply to such revisions.
3.12.10 The Contractor shall not be required to provide professional services which
constitute the practice of Engineer or engineering unless such services are specifically
required .by the Contract Documents for a portion of the Work or unless the Contractor
needs to provide such services in order to carry out the Contractor's responsibilities for
construction means, methods, techniques, sequences and procedures. The Contractor
shall not be required to provide professional services in violation of applicable law. If
professional design services or certifications by a design professional related to systems,
materials or equipment are specifically required of the Contractor by the Contract
Documents, the Owner and the Engineer will specify performance and design criteria
that such services must satisfy. The Contractor shall cause such services or
certifications to be provided by a properly licensed design professional, whose signature
and seal shall appear on all drawings, calculations, specifications, certifications, Shop
Drawings and other submittals prepared by such professional. Shop Drawings and other
submittals related to the Work designed or certified by such professional, if prepared by
others, shall bear such professional's written approval when submitted to the Engineer.
The Owner and the Engineer shall be entitled to rely upon the adequacy, accuracy and
completeness of the services, certifications or approvals performed by such design
professionals, provided the Owner and Engineer have specified to the Contractor
appropriate performance and design criteria that such services must satisfy. Pursuant
to this Subparagraph 3.12.10, the Engineer will review, approve or take other appropriate
action on submittals only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents. The
Agreement for Construction— Elmo Wcedon Road Reconstruction Phase I RFP CIP 20-501 Page 19
Contractor shall not be responsible for the adequacy of the. performance or design criteria
required. by the Contract Documents.
3.12.11 When professional certification of performance criteria of materials, systems. or
equipment is required by the Contract Documents, the Engineer shall be entitled to rely
upon the accuracy and completeness of such calculations and certifications.
3.13 USE OF SITE
3.13A The Contractor shall confine operations -at the site to areas permitted by
applicable laws, statutes, ordinances, policies, codes, rules and regulations, and lawful
orders of• public authorities -and the Contract Documents and shall not unreasonably
encumber the site with materials or equipment.
3.13.2 Contractor shall assume full responsibility for protection and safekeeping .of
materials stored on premises..
3.13.3 Contractor shall provide all-hecessary: precautions to protect public, visitors and
tenants from activities of Contractor or his agents on project.
3.14 CUTTING AND PATCHING -
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to
complete.the Work or to make its parts fit together properly.
3.14.2 The Contractor shall not damage or endanger a portion of the:Work, or fully or
partially completed construction, by the Owner, or separate contractors by cutting,
patching or otherwise altering such construction, or by excavation. The Contractor shall
not cut or otherwise alter such' construction by the Owner, or a separate contractor,
except with written consent of the Owner and of such separate contractor; such consent
shall not be unreasonably withheld. The. Contractor shall not unreasonably withhold from
the Owner, or a separate. contractor, the Contractor's consent to cutting or otherwise
altering the Work.
3.15 CLEANING UP•
3.15:1 The Contractor shall keep the premises. and surrounding : area free from
accumulation of waste rriaterials or rubbish caused by operations under the Contract. At
completion of the Work the Contractor shall remove from and about the Project waste
materials, rubbish, the Contractor's tools;- construction equipment, machinery and
surplus materials'.
3.15.2 If the contractor fails to -clean up as provided in 'the Contract Documents after
reasonable notice from Owner of such failure, the Owner may do so and the cost thereof
shall be charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide governmental authorities who lawfully request
access to the work, the Owner and Engineer proper facilities and equipment for access
to -the Work in preparation and progress wherever located. .
3.17 ROYALTIES AND PATENTS
3.17.1 The. Contractor. shall pay all royalties and license fees. The Contractor shall
Agreement for Construction — Elmo Weddon Road Reconstruction Phdse I RFP CIP 20-501 Page 20
VOL �a.�18"pg.
defend suits or claims for infringement.of patent rights and shall hold the Owner and
Engineer harmless from loss (including but not limited to attorney's fees, court cost, -and
other cost of defense), on account -thereof, but shall not be responsible for such defense
or.loss when a particular design, process or product of a particular manufacturer or
manufacturers is required by the Contract Doduments. ' However, if the Contractor has
: reasonto believe that the required -design, process or product is an infringement of a
copyright, trademark, trade name, or similar property right or interest, or a patent, the
Contractor shall be responsible for such loss unless such information is promptly
furnished to the Engineer.
3.18 INDEMNIFICATION
3.98.9 TO* THE FULLEST EXTENT "PERMITTED BY LAW, THE CONTRACTOR
SHALL' INDEMNIFY, DEFEND AND HOLD HARMLESS THE OWNER, ITS ELECTED
OFFICIALS, APPOINTED. OFFICIALS, OFFICERS,. DIRECTORS, EMPLOYEES,
AGENTS. AND REPRESENTATIVES,. ENGINEER, ENGINEER'S CONSULTANTS
(COLLECTIVELY REFERRED .TO.AS THE `INDEMNITEES")' FROM AND AGAINST
ANY AND ALL CLAIMS, LIABILITES, DAMAGES, LOSSES, COSTS, AND
EXPENSES, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES, ARISING
OUT OF, RESULTING FROM, OR OCCURRING IN CONNECTION WITH THE
PERFORMANCE OF THE WORK PROVIDED THAT SUCH CLAIM, LIABILITY,
DAMAGES, LOSS, COSTS OR EXPENSE IS ATTRIBUTABLE TO BODILY INJURY,
SICKNESS, DISEASE, OR DEATH OR TO INJURY TO, OR DESTRUCTION OF,
TANGIBLE PROPERTY (OTHER. THAN THE WORK ITSELF), INCLUDING THE LOSS
OF USE:THEREOF IN ANY WAY OCCURRING, INCIDENT TO, ARISING OUT OF OR
IN CONNECTION WITH: (A) A BREACH OF THE WARRANTIES PROVIDED BY THE
CONTRACTOR, (B) THE WORK PERFORMED OR' TO BE PERFORMED BY THE
CONTRACTOR,- ITS CONTRACTORS, SUB -CONTRACTORS, SUB -SUB-
CONTRACTORS, AND SUPPLIERS, AND THEIR EMPLOYEES AND AGENTS; (C)
ANY NEGLIGENT. ACTION AND/OR OMISSION OF THE INDEMNITEES. RELATED
IN ANYWAY TO THE PROJECT WHETHER THE INDEMNITEES ARE NEGLIGENT
IN WHOLE OR IN PART, AND EVEN WHEN THE LOSS IS= CAUSED BY THE SOLE
FAULT OR NEGLIGENCE (INCLUDING ACTS OR- OMISSIONS THAT .ARE
CHARACTERIZED "AS NEGLIGENCE PER SE, _ NEGLIGENCE PREMISED ON
STRICT LIABILITY, OR ANY' OTHER TYPE' OF NEGLIGENCE) OF THE
INDEMNITEES; OR R. (Df ANY FINES, PENALTIES,: DAMAGES (INCLUDING
PUNITIVE), LIABILITIES, COSTS AND EXPENSES IN CONNECTION WITH: (9) A
VIOLATION OF ANY LAW, STATUTE, RULE, -ORDINANCE, CODE OR OTHER
REQUIREMENT OF PUBLIC AUTHORITIES; (2) MEANS, METHODS, PROCEDURES
OR SEQUENCES OF EXECUTION OR PERFORMANCE OF THE WORK; AND (3)
FAILURE TO SECURE AND PAY FOR PERMITS, FEES, APPROVALS, LICENSES
AND INSPECTIONS FOR WHICH THE CONTRACTOR IS RESPONSIBLE UNDER
THE CONTRACT DOCUMENTS. THE. CONTRACTOR'S INDEMNITY OBLIGATION
HEREIN 'SHALL NOT BE. CONSTRUED TO . NEGATE, ABRIDGE . OR REDUCE
OTHER'RIGHTS OR OBLIGATIONS OF INDEMNITY THAT WHOULD OTHERWISE
EXIST -AS TO A PARTY OR PERSON -DESCRIBED IN .THIS SECTION 3.98. THE
SCOPE AND EXTENT OF THIS INDEMNITY SHALL"NOT BE' LIMITED BY THE
AVAILABILTY OF COVERAGE..UNDER THE CONTRACTOR'S ' INSURANCE AND
SHALL NOT LIMIT INDEMNITEES' OTHER LEGAL _• REMEDIES AGAINST
CONTRACTOR OR. ANY OTHER PERSON OR ENTITY. THIS INDEMNIFICATION
PROVISION SHALL SURVIVE TERMINATION OF THE: CONTRACT.
Agreement for Construction— EImo Weedon Road,Reconstruction Phase I RFP. CIP 20-501 Pap 21
Vol.� Pg. aGa
3.18.2 In claims against any person or entity indemnified under Paragraph 3.18 by an
employee of the .Contractor, a Subcontractor, Sub -Sub -contractor, 'anyone directly or
indirectly employed .by them or anyone for whose acts they: may be -liable-, the
indemnification obligation under Paragraph 3.18 shall not be limited by -a -limitation on.
amount or type of damages, compensation or benefits payable by or for the Contractor
-or a Subcontractor under workers' or workmen's compensation acts, disability benefit
acts or other employee benefit acts.
3.18.3 The obligations of the Contractor under Paragraph 3.18 shall not extend to the
liability of the•Engineer, the Engineer's consultants and:agents and employees of any of
them arising out of: (1) the preparation or approval of maps, drawings, opinions, reports,
surveys,' Change' Orders, designs or specifications; or (2) the giving of, or the failure to
give;' directions or instructions by the. Engineer, the- Engineer's consultants and' agents
and employees of any of them, provided such giving, or -failure to. give, is the primary
cause of the. injury or damage.. The ' indemnity for the Engineer, the Engineer's
Consultants, agents and employees does not extend to any indemnity prohibited by
Section 130.003 of the Texas Civil Practice and Remedies Code. -
3.19 ADDITIONAL REQUIREMENTS
3.19..1 Contractor shall submit to Engineer, in.writing, all substitutions proposed PRIOR
TO the bid openingdate. Contractor shall furnish sufficient data for evaluation. To be
acceptable for project use, -substitutions must be approved in writing by:Engineer or by _
appropriate addendum.
3.19.2 Contractor shall'follow manufacturer instructions. Where such instructions are in
conflict with the Contract Documents, Contractor shall notify .Engineer for clarification.
before* proceeding. A. copy of the manufacturers instructions shall be kept at job site
and made available to Engineer.
.3.19.3 Contractor shall stop the Work affected when' notified of.a proposed change and
When unsatisfactory results are anticipated. Contractor shall proceed only after receiving
additional instructions from Engineer.
3.19.4 Contractor shall establish and maintain bench marks, and all: -other grades,. lines,
and levels necessary.for the Work, report errors and inconsistencies to .Engineer, in
writing, before . commencing work- affected. Contractor shall be: responsible for .
placement of. Project Work and shall make all corrections•'necessary to achieve an
accurate layout of Project Work.
3.19.5 Contractor shall provide acceptable 'access facilities to the Work for the. Owner,
Engineer, and all local, -State :and Federal authorities having jurisdiction: All access
facilities shall- be made safe and reasonably convenient.
3.19:6 Contractor shall 'prepare quotations, for •proposed: changes in the _Work.
Quotations shall be in a "break—down` form. giving the''.number of units,: -unit cost of
materials', tool costs, taxes, overhead, profit, etc: Quotations shall reflect credits as well
as extras.
Agreement for Construction= Elmo. Weedori Road Reconstruction Phase II RFP CIIP,20-501 Page 22
FP
V01. Pg:
3.19.7 Contractor shall furnish written warranties using the form directed by Owner or
Engineer.
3.19.8 Contractor shall secure • required- inspection certificates and transmit them to
Engineer and Owner.
ARTICLE 4:
ADMINISTRATION OF .THE CONTRACT .
4.0 ..SCHEDULE OF. WORK (at a maximum, in calendar days)
Day 0:' Contractors receipt of Notice to -Proceed
Submittals, as needed, to be provided Within a reasonable time.
Day 300:-: Contractor attains Substantial Completion
Day 330: Contractor.attains Final Completion .
4.1 ENGINEER
4.1.1 The Engineer is the person: lawfully licensed- topractice-Engineering, or an entity
lawfully practicing -Engineering identified as such in the. Agreement and is referred to
throughout the Contract Documents as if singular in number. The term "Engineer" means
the Engineer or the Engineer's authorized, -representative or such representative as the
Engineer may designate, who may be employed by the Engineer as a consultant. .
4.1.1.1. Each of these terms;. "Engineer," "Engin6er," "Engineer/Engineer," "A/E," or .
"Engineer/Engineer" shall - mean Engineer,: -or an affiliate as - otherwise - provided in the
Contract Documents, or duly. authorized representatives,' such representatives acting
severally within scope of particular duties entrusted to them, unless otherwise provided
'in Contract Documents..
4.1.2 Duties, responsibilities- and limitations of authority of the Engineer as set forth in
the Contract Documents: shall not: be restricted, modified -or extended without -written -
consent:.of the Owner, Contractor and Engineer. Consent shall not -be unreasonably
withheld.
4.1.3 In case of .termination of employment"of the- Engineer, the Owner shall appoint a
new Engineer whose status under the Contract Documents -shall be that -of the former
Engineer. ..
4.2 ENGINEER'S ADMINISTRATION OF THE_ CONTRACT
4.2.1 The Engineer; acting in consultation with Owner's representative, will provide
administration. of .the Contract- as described in -the Contract,Ddcuments: (1) during
construction; (2) until final payment is due., and (3) with the Owner's concurrence, from
'time to time during the, -correction period described in Paragraph 12.2. The Engineer will
advise and consult'with the Owner. The. Engineer will have authority to act on behalf of
-the Owner only to the extent provided in- the Contract Documents, unless otherwise
:modified by written instrument in -accordance with other_provisions'of the Contract;
however,- such authority shall not be considered or construed' as* creating a fiduciary
relationship between the Engineer and Owner.
4.2:2 -The Engineer, .as a representative of. the Owner,::will vis it.the site at intervals
appropriate to the stage of the Contractor's operations, or as otherwise agreed by Owner
Agreement for Construction — Elmo. Weedoa Road.Reconstruction Phase I RFP CIP 20-501. Page 23
va.Pg•
and. Engineer, and as Engineer deems necessary: (1) to..become:generally familiar with
and to keep the Owher informed about the progress and aesthetic quality of the portion..
of the. -Work completed;. (2) to endeavor to guard the .Owner against defects and '
deficiencies in the, Work, and .(3) to determine- in general :if the Work observed is being
performed in- a manner indicating that'the Work, when -completed, will 'be in general
:-'accordance with'the Contract Documents.' However; the Engineer will :not be required to
make exhaustive or continuous ori -site evaluations or inspections to check.the quality or
quantity of the Work.: The Engineer will neither. have control over or charge of, nor be
responsible for, the construction means, methods, .techniques,.sequences or procedures,
or for the safety or health precautions and. programs. in connection with the Work, since
these are solely 'the Contractor's' rights and responsibilities. under, the Contract
Documents, except'as provided in Subparagraph 3.3.1.
4.2.2.1 Contractor shall. reimburse, -'Owner for compensationpaid to Engineer for
additional -site visits made necessary by fault,'neglect or.request of Contractor.
4.2.3 The Engineer will not have -control over or charge of and will. hot be responsible
for construction means, methods, techniques,' sequences or procedures, or for safety
precautions and 'programs in connection with the Work; since these : are solely the
Contractor's responsibility as provided in :Paragraph 3.3.' .'The Engineer will not be
responsible for 'the. Contractor's failure to perform the .Work :in accordance with the
Contract Documents or failure to complete Work on schedule. The Engineer will not have
..:control -.oVer 'or charge ' of. and will not be: responsible for acts or omissions.. of the
Contractor, Subcontractors, or their agents or employees, or of any other.persons
performing -portions of the Work.
4.2.4 Ekcepf. as otherwise provided in :the Contract Documents -or when direct
communications have been . specia_lly authorized, the. Owner and ' Contractor shall
endeavor. to communicate through the Engineer. Communications by and with the
consultants shall be through the Engineer; uhless otherwise approved by the. Engineer.
Communications by and with Subcontractors:and material suppliers shall be through the
Contractor. • Communications by and -with separate contractors shall be through the
Owner. The: Engineer's.presence at the Project Site shall .not imply concurrence or
approval of the work. Contractor shall call specific items to the Engineer's attention in
writing' if he.wishes to obtain -Engineer's. opinion..
4.2.5 Based --on 'the Engineer's - observations and evaluations of the Contractor's
Applications for Payment; the Engineer will review and certify the 'amounts due the
Contractor and will'issue Ce'rtificates.for Payment, in such. amounts.'
4.2.6 The Engineer has authority .to reject Work which does not conform to the Contract
Documents. - Whenever 'the Engineer considers it. -.necessary or advisable for
implementation of the intent of the Contract Documents,•the Engineer willhave authority
to require additional inspection or testing of the Work in accordance with Subparagraphs
13.5.2 and 13.5.3, whether or not such Work is fabricated; installed or completed.
However, neither this authority of the Engineer'nor a decision made in good faith either
to 6kercise or not to exercise such authority.shall give rise to. a: duty or responsibility of
the Engineer to the Contractor, Subcontractors, materials and.equipment suppliers, their .
agents or employees, -or other persons performing portions of the.Work. 'All. costs made'
necessary. -by such. failure,. including-, those of repeated procedures shall be at
Agreement for Construction —Elmo Weedou Road Reconstruction Phase I RFP CIP 20-501.. Page 24
Vol. pg..
�..:
Contractor's sole expense, including compensation for Engineer's services- and
expenses.
4.2.7 The Engineer.will review and approve or take other appropriate action upon the
Contractor's submittals such as Shop Drawings, Product•Data and Samples, -but only for
'the limited purpose of checking for conformance with information given and the: design
concept'expressed in the Contract Documents. Such review and action on the part of
the Engineer, is limited to only those submittals required by:the Contract Documents. The
Engineer's action will be taken with such reasonable promptness as to cause -no delay
in the Work or in the activities of the Owner, Contractor or separate contractors, while
allowing sufficient time in the 'Engineer's professional :judgment to permit adequate
review by the Engineer, Engineer's consultants and Owner, if needed. Review of such
submittals is' not conducted for the purpose of determining the accuracy and
completeness of other: details such as dimensions and quantities, or for substantiating
instructions. for installation or performance of equipment or systems, all of which remain
the responsibility of the Contractor as. required by- the Contract Documents. The
Engineer's review of the Contractor's submittals shall not relieve the Contractor of the
obligations under Paragraphs 3.3, 3.5 and 3.12. The' Engineer's review shall not
constitute approval of safety -or health precautions or, unless otherwise specifically stated
by Engineer, 'of any construction means, methods, techniques, sequences or
procedures. The Engineer's review -or approval of a specific .item shall not indicate
approval of an assembly of which the item is a component.
.4.2.8 The Engineer will prepare .Change Orders and Construction Change Directives,
or other change documents for changes in the Work for the Owner's approval and
execution, and the Engineer may authorize minor changes_ in the Work as provided in
Paragraph 7.4.
4.2.9 The Engineer and Owner will conduct inspections -to determine the date or dates
of Substantial Completion and the. -date of final completion. The Engineer may receive - -
and forward to the Owner for the'.Owner's.-review and records written warranties and
related documents as required by the Contract Documents and assembled by the
Contractor, and will issue a final Certificate for Payment based 'upon final- inspection
indicating the Work complies with the requirements of the Contract Documents.
4.2.1Off the Owner and Engineer agree, Engineer -will provide one or more. project
representatives to assist in carrying out the Engineer's responsibilities at the site. The
duties, responsibilities and limitations of authority of such -project representatives shall
be as set forth in an exhibit'to be. incorporated in the Contract Documents.
4.2.11 The Engineer will interpret and decide -matters concerning performance under,
and requirements of, the Contract Documents on written. request- of.either the Owner or
Contractor. The Engineer's response to such requests will be made in writing within any
time limits agreed upon or otherwise with reasonable promptness. If no agreement is
made concerning the time within which. interpretations required of the Engineer shall be
furnished in compliance with this. Paragraph 4.2, then delay shall not be recognized on
account of failure by the Engineer to furnish such interpretations until twenty (21) days
after written request is received.
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 25
Vol. pg..
4.2.12 Interpretations and decisions of the Engineer will be consistent with the intent of
and reasonably inferable from the Contract Documents and will be in writing or in the
form of drawings.
4.2.13 The Owner's -and Engineer's decisions on matters relating to aesthetic effect will
be final, if consistent with the intent expressed in the Contract Documents.
4.3 CLAIMS AND DISPUTES
4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a
matter of right, adjustment or interpretation of Contract terms, payment of money and
extension of time or other relief with respect to the terms of the Contract. The term
"Claim" also includes other disputes and matters in question between the Owner and
Contractor arising out of, or relating to, the Contract. Claims must be made by written
notice. The responsibility to substantiate Claims shall rest with the party making the
Claim.
4.3.1.1 Claims must contain following:
.1 Date of the event giving rise to such Claim and, if applicable, date when
the event ceased;
.2 Nature of occurrence or condition giving rise to the Claim;
.3 Identification of contractual provisions affected and a detailed explanation
of how the Claim is contrary to those provisions;
.4 An estimate of effect upon the Contract Sum, including an itemized
breakdown of additional cost, if any;
.5 An estimate of the effect upon the Project Schedule, including a
comparison of Project Construction Schedule and schedules prepared in
connection with the Claim. If required by Owner or Engineer, this shall
include showing in CPM format, both critical .and non-critical path activities
affected and showing Project Construction Schedule and Claim
sequences, durations and float substantiating delay claimed.
4.3.2 Decision of Engineer. Claims, including those alleging an error or omission by
the Engineer, shall be referred initially to the Engineer for action as provided in
Paragraph 4.4. A decision by the Engineer and Owner, as provided in Subparagraph
4.4.4, shall be required as a condition precedent to litigation of a Claim between the
Contractor and Owner as to all such matters arising prior to the date final payment is
due, •regardless of: (1) whether such matters relate to execution and progress of the
Work, or (2) the extent to which the Work has been completed.
4.3.3 Time Limits on Claims initiated prior to Final Payment. Claims by either party
must be initiated and submitted within twenty-one (21) days after occurrence of the
event giving rise to such Claim or within twenty-one (21) days after the claimant first
recognizes the condition giving rise to the Claim, whichever is later. Claims must be
initiated and submitted by written notice to the Engineer -and the other party. An
additional Claim made after the initial Claim has been implemented by Change Order
will not be considered unless submitted in a timely manner.
4.3.4 Continuing Contract Performance. Pending final resolution of a Claim, unless
otherwise agreed in writing or as provided in Sub -paragraph 9.7.1 and Article 14, the
Contractor shall proceed diligently with performance of the.Contract and the Owner shall
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-55001. Page 26
continue to make payments in accordan.ce with the Contract Documents.
.. 4.3.5 Waiver of Claims: Final Payment. -The making of final payment shall constitute.
a waiver of Claims -by. the Owner except those arising from:
.1 -liens.,' Claims, security interests or encumbrances arising out of the
Contract and unsettled;
.2- failure of the Work to comply.with the. requirements of the Contract -
Documents; or
..3. terms of special warranties .required by the Contract Documents. .
4.3.6 Claims for Concealed or Unknown Conditions.. If conditions'are encountered
at the site which are:: (1) subsurface or otherwise concealed physical conditions which
differ materially.from those indicated in the Contract Documents, or (2) unknown.
physical conditions of an. unusual nature, which differ materially from those ordinarily
found to exist and generally recognized as inherent in construction activities of the
character provided for in the'Contract Documents, then notice by the observing party
shall be.given to the other party'prornptly before conditions are disturbed. The
Engineer will. promptly:investigate and.evaluate such conditions and, if they differ*
materially and cause:'an increase or decrease -in the Contractor's cost of, or time
:.:required for, performance of any part of the -Work, will recommend an equitable. .
adjustment in the Contract Sum or-Contract.Time, .or both. If the Engineer determines
that the conditions at:the site are not materially different from those indicated in the
Contract Documents and that no change in the terms of the Contract is justified, the
'Engineer shall so notify the Owner -and Contractor in writing, stating the reasons.'
'Claims by either party.in opposition to such determination must be made and submitted
within twenty. -one (21) days after the Engineer has given. notice of the decision. if the
Owner and Contractor cannot agree on an adjustment in the Contract Sum or -Contract ...
Time, ,the adjustment shall -be referred to the. Engineer for initial determination, subject
to further proceedings -pursuant to Paragraph 4A'.
.4.3.7 .Claims -.for Additional Cost. If the. Contractor wishes to make Claim.for an.
increase in the Contract Sum, written notice as provided. herein shall be given before
proceeding to execute the Work. Prior notice is not required for Claims relating.to. an
°emergency endangering life or property arising under Paragraph 10.6. If the Contractor.
:believesadditional cost is involved for reasons including but not limited -to: (1) a written -
interpretation from the' Engineer; (2) an order -by: the Owner to stop the Work where the
Contractor was not at�fault;:(3) a written order fora minor change- iri the Work issued by
the Engineer; (�4)., failure.of.payment by the Owner;. (5) termination of'the Contract by the.
-Owner; (6) Owner's swspension, or (7) -other reasonable grounds,. Claim'shall be filed in
accordance. with this Paragraph 4.3.
4.3.8 . Claims for Additional Time.
4.3.8.1 If the Contractor wishes to make Claim -for an increase -in the Contract Time,
written. notice . as provided herein shall be - given.. The Contractor's :Qlaim shall
demonstrate that.the task is on the critical path and identify the new_completion date. In
the .case'of. a.continuing delay, only one Claim. is..necessary.
4.3.8.1:1 The Contractor's request for an increase in the time shall be submitted with pay -
applications. The delay impacting the critical path shall bek addressed no later -than the -
pay application for the month following the month 'in which- the time was lost.'
'Agreement for Construction— Elmo, Weedon Road Reconstruction Phase I RFP CIP 20-501 Page:27
Vol. pg.
4.3.8.1.2 ' Only delay impacting the critical path of the. Work shall be considered when
determining if Contractor is entitled to additional time.
4.3.8.2 If adverse weather conditions are the basis for a Claim for additional time, such
Claim shall be documented by data substantiating that weather conditions were
abnormal for the period of time, could not have been reasonably anticipated, that weather
conditions had an adverse effect on the scheduled construction and that the activities
delayed by weather were on the critical path.
4.3.8.2.1. Acceptable data for substantiating a claim for additional time will be local official
records. Furthermore, the effect of such abnormal weather must be demonstrated.,
4.3.8.3 Claims for increase in Contract Time shall set forth in detail the circumstances
that form the basis of the Claim, date upon which each cause of delay began to affect
progress of Work, date upon which each cause of delay ceased. to affect progress of
Work and the number of days' increase in Contract Time claimed as a consequence of
each such cause of delay. Contractor shall provide such supporting documentation as
Owner or Engineer may require including; where appropriate, a revised construction
schedule; indicating all activities affected by circumstances forming the basis of -the
Claim.
4.3.8.4 Contractor shall not be entitled to a separate increase in Contract Time for. each
one of the number of causes of delay which. may have concurrent or interrelated effects
on progress of Work or for concurrent delays.due to.fault of Contractor:
.4.3.9 Injury or Damage to Person or Property. If either party to the Contract suffers
injury or damage to person or property because of an act or omission.of the other party,
of any of the. other.party's employees or agents, or of others for whose acts such party
is legally liable, written notice .of such injury or damage, whether or not insured, shall be
-given to the other party within a reasonable time not exceeding twenty-one (21) days
after first observance. The notice shall provide sufficient detail to enable the other party
to investigate and evaluate the matter.
4.3.10 If unit prices are stated in the Contract Documents, or subsequently agreed upon,
and if quantities originally contemplated are materially changed in a proposed Change
Order or. Construction Change Directive, so that application of such unit prices to
quantities of Work proposed will cause substantial inequity to the Owner or Contractor,
the applicable unit prices shall be equitably adjusted.
4.3.11 Owner reserves the right to audit the Contractor's costs and bid documents if
Contractor files a claim against Owner.
4.3.12 Contractor, not owner.; .shall handle- any disputes which- .may arise between
subcontractor and owner..,
4.3.13 Owner will only -be required to pay for materials actually received and/or services
actually provided. Owner shall not be required to pay for -materials orservices described .
in the contract that are not used��or provided by .the contractor in -completion of the
contract. This term .supersedes any contradicting terms throughout -the contract and or
any- attachments.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501. Page 28
4.4 "RESOLUTION OF CLAIMS AND DISPUTES :
4.4.1. Decision of Engineer:
Claims, including those alleging an error or omission by the Engineer but
excluding those arising under Paragraphs 10.3 through 10:5, shall be referred initially to
the Engineer for decision. An initial decision by the, Engineer shall be required as a
condition precedent to mediation, arbitration (if allowed) or litigation. of all Claims between
the Contractor and Owner arising prior to the date final payment is d.ue, unless thirty (30)
days have passed after .the Claim has been. referred..to the .Engineer with no decision
-having been rendered by.the Engineer. The Engineer will not decide- disputes between
the Contractor and persons or entities other than the Owner.
4.4.2. -The Engineer will review Claims and: within twenty-one (21)'days of the. receipt
of the Claim take one or more of the: following preliminary actions within ten. (101) -days of
receipt of a Claim: (1) request additional. supporting data.from the Viaimant or a response
--with supporting data from the other party;. (2) reject. the Claim in whole or in.part; (3) .
recommend approval of the Claim 'by the other party.;:.(4) suggest a compromise, or (5)
advise the parties that the Engineer is unable to. resolve th-e Claim,: if the Engineer lacks
sufficient; information to evaluate the merits of the Claim -or if the -Engineer- concludes
that, in the Engineer's.s.ole discretion, it would be: ihapprogriate for the Engineer to"
resolve the Claim:
4.4.3 .1wevaluating Claims, the.Engineer may, but shall not be obligated -to, consult with
or seek information from either party:or from: persons with special knowledge or expertise
Who may assist the Engineer:in rendering a decision.. The Engineer may request the
Owner to. authorize retention of such persons at the Owner's expense.
4.4.4 If the .Engineer requests- a party. to provide a response to a Claim or to furnish
additional supporting data, such party shall respond, within ten (10) days after receipt of
-such request and" shall either, provide a response on the requested supporting data,
advise the Engineer when the response or supporting data will be furnished, or advise
the:Enginee-r that no supporting data will be furnished. Within twenty-one;(21) days of
receipt of the response orsupporting. data, if any, the Erigineer.will either reject or approve
the Claim in whole or in part.
4.4.5 If a Claim has not been. resolved after consideration of the foregoing and of further
evidence presented by the -parties-or requested by the Engineer, the. Engineer will notify
the parties in writing that. the Eng'ineer's decision will be made withid-seven "(7): days..
Upon expiration of such time period, the -Engineer will render to the parties the Engineer's
written. decision relative to the Claim. If any- change ; in "the. Contract Sum or. Contract
Time or both is included as part of'the Engineer's decision, Engineer.will be required to
submit his decision -to. the Brazos County Commissioners. Court for final approval. If.there
is a surety and there appears .to be a.possibilityof a Contractor's default, the Engineer
'may,.but is not. obligated to, notify the surety and:request-the surety's assistance in
resolving the controversy.
ARTICLE"5
SUBCONTRACTORS
5.1' DEFINITIONS
Agreement for Construction = Elmo Weedon Road Reconstruction Phase I RPP CIP 20-501. Page 29
Vol. pg.
5.1.1 A Subcontractor is a person or entity who has a direct contract with'the Contractor
to perform 'a portion of the Work at the site. The .term "Subcontractor" is referred to.
throughout the Contract Documents.as if singular in number and means a Subcontractor
or .an authorized representative of the..Subcontractor. The term "Subcontractor" does
not include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub—subcontractor is a person or'entity who has a director indirect contract
with a Subcontractor to perform a portion of the Work_.at the site. The term "Sub—
subcontractor" is referred to throughout the Contract Documents as if singular in number
and means a Sub—subcontractor or an. authorized representative of the Sub—
subcontractor.
5.1.3 Engineer and Engineer's consultants may, but'are not required.to, communicate
directly with any Subcontractor, Sub -subcontractor, or materials supplier. when it is
nebessary to obtain. information necessary for the Engineer or Engineer's consultants to
complete its services on the Project. The Engineer shall endeavor to keep Contractor
informed of conversations. Requests for information, interpretation or clarification, and
correspondence must all be in.writing and must be routed. -through Contractor.
'5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS
OF. THE WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements,
the Contractor, within fourteen (14) days. after award of the Contract, shall -furnish in
writing. to the Owner through the Engineer the names of persons or -entities (including
those who are to furnish materials or equipment fabricated to a special design) proposed
for each. principal portion of the work. The Engineer will promptly reply to the Contractor
in writing stating whether or not the Owner or the Engineer, after due investigation, has
reasonable objection to any such proposed person or entity. Failure of the Owner or
Engineer to reply promptly shall constitute notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to which the
Owner or Engineer has made reasonable and timely objection. The Contractor shall•not
be required to contract with anyone to whom the Contractor has made reasonable
objection.
5.2.3 If the Owner or Engineer has reasonable objection to a person or entity proposed
by the Contractor, the Contractor shall propose another to whom the Owner or Engineer
has no reasonable objection. The Contract Sum shall be increased or decreased by the
difference. in cost occasioned by such change and an appropriate Change Order shall
be issued. However, no increase in -the Contract Sum-sh'all be allowed for such change
unless the Contractor has acted promptly and responsively in submitting names as
required.
5.2.4 The Contractor shall not change a :Subcontractor, - person or entity previously
selected, if the -Owner 'or Engineer makes reasonable objection to such change.
Acceptance of the substitute Subcontractor after previous acceptance of a Subcontractor
for any portion of the work shall not constitute reason for an increase in the Contract
amount:
5.3- SUBCONTRACTUAL RELATIONS.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page -30
Vol-, ����
Vopg, o 1
By appropriate written agreement, the Contractor. shall require each
Subcontractor, to the extent of'the Work to be performed by the Subcontractor., to be
bound to the Contractor by terms of the Contract Documents, and to assume toward the
Contractor all the obligations and responsibilities which the -Contractor, by these
Documents, assumes toward the Owner and Engineer. Each subcontractor agreement
shall .preserve. and protect the rights of the Owner. and Engineer under the Contract
Documents. with respect to. the Work to be performed by the Subcontractor so that
subcontracting thereof .will not prejudice such rights, and shall allow to the Subcontractor,
unless specifically provided otherwise in the subcontract agreement, -the benefit of all
rights, .remedies and redress against the Contractor that the Contractor, by the Contract
Documents, has against the Owner. Where appropriate, the Contractor shall require
each Subcontractor to enter into similar agreements with Sub—subcontractors.
The Contractor shall make available to each. proposed. Subcontractor, prior to the
execution of the subcontract agreement, copies of the Contract Documents to which the
Subcontractor will be bound and;.upon written request of the Subcontractor, identify to
the Subcontractor terms and conditions of the proposed subcontract agreement which
may be at variance with the Contract Documents. Subcontractors shall similarly make
copies of. applicable portions of such documents available to their respective proposed
Sub—subcontractors.
5.3.2 Contractor is fully responsible for acts and omissions of Subcontractors, and
persons either, directly or indirectly, employed by them or under- their control, as
Contractor is for their own employees.
5.3.3 Nothing in Contract Documents creates any contractual relationship between any
Subcontractor or.Sub-subcontractor, or other levels of contractors and subcontractors,
and .Owner. or Engineer, except for provisions in paragraph 5.4.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the
Contractor to the Owner provided that:
.1 Assignment is effective only after termination of the Contract by the Owner
for cause. pursuant to Paragraph 14.2 and only for those subcontract
agreements which the Owner accepts by notifying the Subcontractor in
:..writing, and
.2: Assignment is subject to the prior rights of the surety; if any, obligated
under bond relating to the Contract.
5.4.2 Upon such Assignment, if the Work has been suspended.for more'than thirty (30)
days, the Subcontractor's compensation shall be equitably adjusted.
5.4.3 Contractor .will. provide. copies of its subcontracts, agreements and current
information on status of its accounts, upon -demand by Owner.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO. PERFORM CONSTRUCTION AND TO AWARD
SEPARATE CONTRACTS
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page. 31
EVol? . pg. �o oZ
6.1.1 Owner reserves the right to perform construction or operations related to the
Project with the Owner's own forces and to award separate contracts in connection with
other portions of the Project or other construction of operations on the site under
Conditions of the Contract identical, or substantially similar, to these including those
portions related to insurance and waiver of subrogation. If the Contractor claims that
delay or additional cost is involved because ,of such action by the Owner, the Contractor
shall make such Claim as provided in Paragraph 4.3.
6.1.2 When separate contracts are awarded for different portions of the Project or other
construction of operations on the site, the term "Contractor" in the Contract Documents
in each case shall mean the Contractor who executes each separate Owner—Contractor
Agreement.
6.1.3 The Owner shall provide for coordination of the activities of the Owner's own
forces and of each separate contractor with the Work of the Contractor, who shall
cooperate with them. The Contractor shall participate with other separate contractors
and the Owner in reviewing their construction schedules when directed to do so. The
Contractor shall make any revisions to the construction schedule and Contract Sum
deemed necessary after a joint review and mutual agreement. The construction
schedules shall then constitute the schedules to be used by the Contractor, separate.
contractors and the Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs
construction or operations related to the Project with the Owner's own forces, the Owner
shall be deemed to be subject to the same obligations and to have the same rights which
apply to the Contractor under the Conditions of the Contract, including, without excluding
others, those stated in Article 3, this Article 6 and Articles, 10, 11 and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate Contractors reasonable
opportunity for introduction and storage of their materials and equipment and
performance of their activities and shall connect and coordinate the Contractor's
construction and operations with theirs as required by the Contract Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon
construction or operations by the Owner or a separate contractor, the Contractor shall,
prior to proceeding with that portion of the Work, promptly report to the Engineer
apparent discrepancies or defects. in such other construction that would render it
unsuitable for such proper execution and results. Failure of the Contractor to report shall
constitute an acknowledgment that the Owner's or separate Contractors' completed, or
partially completed construction, is fit and proper to receive_ the Contractor's Work,
except as to defects not then reasonably discoverable.
6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner
which are payable to a separate contractor because of delays, improperly timed activities
or defective construction of the Contractor. The Owner shall be responsible to the
Contractor -for costs incurred by the Contractor because of delays, improperly timed
activities, and damage to the Work or defective construction of a separate contractor.
6.2.4 The Contractor shall promptly remedy damage caused by the Contractor to
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 32
Va � P". o
completed or partially completed construction or to property of -the Owner or separate
contractors as provided in Subparagraph 10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for
cutting and patching 'as are described for the Contractor -in Paragraph 3.14.
6.3 -OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, separate'contractors and the Owner as
to the .responsibility under their respective contracts for maintaining -the premises and
surrounding area free from waste materials and rubbish, the Owner may clean .up after
reasonable written notice and the cost will be paid by those responsible.
ARTICLE 7
CHANGES IN THE WORK
7.1 -CHANGES .
7.1.1 Changes in the. Work may be accomplished after execution. of the Contract and
without invalidating the Contract, by Change Order, Construction Change Directive or
order fora minor change in the Work, subject to the limitations stated in. this Article 7 and
elsewhere in the Contract Documents.
7.1.2 'A Change Order shall be based upon agreement among the Owner, Contractor
and Engineer; a Construction Change Directive requires .agreement by the .Owner. and
Engineer and may or may not be agreed to by the Contractor and an order.for a minor
change in the Work may be issued. by the Engineer alone.
7.1.3 Changes in: the Work shall be performed under applicable provisions of the
Contract Documents and the -Contractor shall proceed " promptly, unless- otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.1.4 If unit prices are stated in the:Contract. Documents, or subsequently agreed upon,
and if quantities originally contemplated are so changed in a proposed Change Order or
Construction Change Directive that application of such unit prices to quantities of Work
proposed will cause substantial inequity to the Owner.or Contractor, the. -applicable unit
prices dhall be .equitably adjusted:
7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Engineer and -signed by
the Owner, Contractor and Engineer, stating their agreement upon all of -the following:
.1 a change in the Work;
.2 the amount.of the adjustment in the Contract Sum, if any, and
.3 the extent of the adjustment in the Contract Time, if any..:
7.2.2 Methods used'in determining adjustments to the Contract Sum may include those
listed in Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared by the Engineer and
signed by the Owner and Engineer -directing a change in the Work and -stating a proposed
basis for adjustment; if any, in the Contract Sum. or Contract Time,. or both. The Owner
may by Construction Change Directive, without invalidating the Contract, order changes
Agreement for Construction —Elmo Weedon Road.Reconstruction Phase I RFP CIP 20-501 Page 33
in the Work within the general scope of the Contract consisting of additions, deletions or
other revisions, the Contract Sum and Contract Time being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement
on the terms of a Change Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract
Sum, the adjustment -shall be based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating date to permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed upon;
.3: cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly
proceed with the change in the Work involved and advise the Engineer of the
Contractor's agreement or disagreement with the method, if any, provided in the
Construction Change Directive for determining the proposed adjustment in the Contract
Sum or Contract Time.
7.3.5 A Construction Change Directive signed by' the Contractor indicates the
agreement of the Contractor therewith, including adjustment in Contract Sum and
Contract Time or the method for determining them. Such agreement shall be effective
immediately and shall be recorded as a Change Order.
7.3.6 If -the Contractor does not respond promptly or disagrees with the method for
adjustment in the Contract Sum, the method and the adjustment shall be determined by
the Engineer on the basis of reasonable expenditures and savings of those performing
the Work attributable to the change, including, in case of an increase in the Contract
Sum, a reasonable allowance for overhead and profit. In such case, and also under
Clause 7.3.3.3, the Contractor shall keep and present, in such form as the Engineer may
prescribe, an itemized accounting together with appropriate supporting data. Unless
otherwise provided in the Contract Documents, costs for the purposes of this
Subparagraph 7.3.6 shall be limited to the following:
.1 costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and workers'
or workmen's compensation insurance;
.2 costs of materials, supplies and equipment, including cost of
transportation, whether incorporated or consumed;
.3 rental costs of machinery and equipment, exclusive of hand tools, whether
rented from the Contractor or others;
.4 . costs. of premiums for all bonds and insurance, permit fees, and sales, use
or similar taxes related to the Work;
.5 additional costs of supervision and field office personnel directly
attributable to the change; and
.6 the maximum allowance for overhead and profit combined included in the
total cost to Owner shall be based on the following schedule:
A. for Contractor, for any work performed by his own forces, 15% of
the cost;
Agreement for Constriction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 34
vol. v pg. 3
B. for each subcontractor involved, work performed by his own forces,
10% of the cost;
C. for Contractor, for work performed by his subcontractor, 5% of the
amount due the subcontractor.
7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion
or change which results in a net decrease in the Contract Sum shall be actual net cost
as confirmed by the Engineer: When both additions and credits covering related Work
or substitutions are involved in a change, the allowance for overhead and profit shall be
figured on the basis of net increase, if any, with respect to that change. If the net value
of a change results in a credit from Contractor or subcontractor, the credit given shall be
the net cost, overhead and profit.
7.3.8 Pending final determination of the total cost of a Construction Change Directive to
the Owner, amounts not in dispute for such changes in the Work shall be included in
Applications for Payment accompanied by a Change Order indicating the parties'
agreement with part or all of such costs. For any portion of such cost that remains in
dispute, the Engineer will make an . interim determination for purposes of monthly
certification for payment for those costs. That determination of cost shall adjust the
Contract'Sum on"the same basis. as a Change Order, subject to the right of either party
to disagree and assert a claim in accordance with Article 4.
7.3.9 When the Owner and Contractor .agree with the determination made by the
Engineer concerning the adjustments in the Contract Sum and Contract Time, or
otherwise reach agreement upon the adjustments, such agreement shall be effective
immediately and shall be recorded by preparation and execution of an appropriate
Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 To the extent allowed by law, the Engineer has authority to order minor changes
in the Work not involving adjustment in the Contract Sum or extension of the Contract
Time and not inconsistent with the intent of the Contract Documents. Such changes
shall be effected by written order and shall be binding on the Owner and Contractor. The.
Contractor shall carry out such written orders promptly.
ARTICLE 8
TIME
8.1 DEFINITIONS
.8.1.1 The Contractor shall achieve substantial completion of the Work not later than
three hundred (300) calendar days from the date of commencement, subject to
adjustments of the time for completion as provided in this Agreement.
8.1.2 The date of commencement of the Work shall be effective upon the final approval
of the Agreement, receipt of performance and payment bonds and receipt by the
Contractor of the written notice to proceed from either the Owner or"the Engineer.
8.1.3. The date of Substantial completion is the date certified by the Engineer in
accordance with Paragraph 9.8.
Agreement for Construction—Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 35
E
Pg. O b
8.1.4 The term "day" as used in the contract documents shall mean calendar day.
8.1.5 The term "critical path" as used in the Contract Documents shall mean the
project's tasks that will cause the project end date to be delayed if they are delayed. The
word "critical" does not imply how important a task is; a task is critical solely because it
must occur as scheduled for the project to finish on time.
8.1.6 The term "free slack time" as used in the Contract Documents shall mean the
amount of time a task can be delayed without delaying another task.
8.1.7 The term "total slack time" as used in the Contract Documents shall mean the
amount of time a task can be delayed without delaying the finish date of the project.
8.2 PROGRESS AND COMPLETION
8.2.1 The Contractor agrees and understands the "TIME IS OF THE ESSENCE" for
anytime time periods referenced in this .Contract. The Contract further agrees .to the
referenced times as being reasonable for performing the work."
8.2.2 The Contractor shall not, except by agreement or instruction of the Owner in
writing, prematurely commence operations on the site or elsewhere or store materials or
equipment on site prior to the effective date of insurance required by Article 11 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall
not be changed by the effective date of such insurance. Unless the date of
commencement is established by the Contract Documents and a notice to proceed given
by the Owner, the Contractor shall notify the Owner in writing not less than -five (5) days
or other . agreed period before commencing the Work to permit the timely filing of
mortgages, mechanic's liens and other security interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.2.4 Contractor and their Subcontractors shall complete and coordinate Work in
accordance with established schedule.
8.2.5 Contractor is responsible for expediting Work, identifying potential conflicts and
coordination problems, and proposing measures to avoid such problems
8.2.6 Whenever it becomes apparent that any activity completion date may not be met,
unless delay is related to an approved extension of time; Contractor shall take some or
all of following actions and submit supplementary schedule indicating effect of action on
progress and completion ,of Work, all without additional costs to Owner;
.1 increase number of working hours per shift, shifts per working days,
working days per week, or amount of construction equipment, or any
combination of foregoing which will substantially eliminate backlog of Work,
and put Project back on schedule, and/or,
.2 increase* construction manpower in such quantity as will substantially
eliminate backlog of Work, and .put Project back on schedule, and/or,
.3 reschedule _activities to achieve maximum practical concurrency of
accomplishment of activities, and put Project back on schedule.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 36
Vol. Pg.?
8.2.7 If Contractor fails to take any ofactions indicated in subparagraph 8.2.6 within
three (3) days after receiving written notice, Owner may take action to attempt to put
Project back on schedule, and deduct cost of such actions from money due or to become
due Contractor, or shall be grounds for determination by Owner that Contractor is not
prosecuting Work with such diligence as will insure completion within Contract Time.
Upon such determination, Owner may terminate Contractor's right to proceed with Work,
or any separable part thereof, in accordance with provisions of -Article 14.
8.2.8 Contractor shall bear cost of any services of Engineer made necessary by delays
in completion of Work due to actions or inactions of Contractor or any Subcontractors.
Contractor shall promptly pay any such cost upon demand by Owner. At Owner's option,
these costs may be deducted from any amounts otherwise due Contractor.
8.3 DELAYS AND EXTENSION OF TIME
8.3.1 Except as otherwise provided in the Contract Documents, if the Contractor is
delayed at any time in the commencement or progress of the Work by an act or neglect
of the Owner or Engineer, or of an employee of either, or of a separate Contractor
employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire,
adverse conditions as provided for in 4.3.8.2, unusual delay in deliveries, unavoidable
casualties or other causes beyond the Contractor's control, or by.delay authorized by the
Owner, or by other causes which the Owner determines may justify delay, then the
Contract Time shall be extended by Change Order for such reasonable time as the
Engineer and -Owner may determine.
.1 If at least seven (7) hours of work time are available out of the working day,
no extensions of time will be allowed;
.2 No extension of time will be.allowed-for Saturdays, Sundays, or holidays
unless the Contract requires and stipulates overtime work and it has been
approved in writing by Owner; and
-.3 Time extensions will not be allowed for drying of materials when it is
possible for the Contractor to enclose area and materials or use an
acceptable drying process.
8.3.2 There will be no delay claims by Contractor if the Contractor finishes the Project
early, even if owner delays the work.
8.3.3 Claims relating to time shall be made in accordance with applicable provision of
Paragraph 4.3.
8.3.4 If Contract Time is extended pursuant to paragraph 8.3, such extension shall be
the exclusive remedy of Contractor and said Contractor shall not be entitled to .recover
damages from Owner or Engineer.
8.3.4 Owner's exercise of any of its rights under "ARTICLE 7 - CHANGES IN THE
WORK," regardless of the extent of number of such changes, or requirement of correction
or re-execution of defective work, or extent of number of Engineer's interpretations or
clarifications of the Contract Documents, shall not, under any circumstances, be
construed as neglect or intentional interference with Contractor's performance of the
Work.
Agreement for Construction — Elmo Wecdon Road Reconstruction Phase I RFP CIP 20-501 Page 37
ARTICLE 9
PAYMENTS AND.COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is FOUR MILION, EIGHTY NINE THOUSAND, TWO
HUNDRED TWO DOLLARS, THIRTY NINE CENTS ($ 4,089,202.39) and, subject to
authorized adjustments as provided in this Agreement, is the total amount payable by
the Owner to the Contractor for performance of the Work. -
9.2 SCHEDULE OF VALUES
9.2.1 Unless otherwise provided in the Contract documents, before the first application
for Payment, the Contractor shall submit to the Engineer-a:schedule of values allocated
to various portions of the Work prepared in such form and supported by such data to
substantiate its accuracy as the Engineer may require. This schedule, unless objected
to by the Engineer, shall be used as a basis for reviewing the Contractor's Applications
for Payment.
9.2.2 The Engineer will provide to the Contractor a list of the portions or sections of
work for which he wishes to have separate values included and those items for which he
will require material quantities to be shown.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 Unless otherwise provided in the Contract Documents; at least twenty (20) days
before the date established for each progress payment, the Contractor shall submit to
the Engineer an itemized Application for Payment for operations completed in
accordance with the schedule of values. Such application shall be notarized and
supported by such data substantiating the contractor's right to payment including the
most current Contractors Construction Schedule and/or copies of requisitions from
Subcontractors and material providers as the Owner or Engineer may require, and
reflecting retainage if provided for elsewhere in the Contract documents.
9.3.1.2 Such applications may not include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor or material supplier because of a
dispute or other reason.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made
on account of materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work. If approved in advance by the Owner, payment
may similarly be made for materials and equipment suitably stored off the site at a
location agreed upon in writing. Payment for materials and equipment stored on or off
the site shall be conditioned upon compliance by the Contractor with procedures
satisfactory to the Owner to establish the Owner's title to such materials and equipment
or otherwise protect the Owner's interest, and shall include applicable insurance, storage
and transportation to the site for such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work covered by an Application for
Payment will pass to the Owner no later than the time of payment. The Contractor further
warrants that upon submittal of an Application for Payment all Work for which Certificates
for Payment have been previously issued and payments received from the Owner shall,
to the best of the Contractor's knowledge, information and belief, be free and clear of
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 38
COMMISSIONER COURT MINUTES OF
SEPTEMBER 31 2019
ARE CONTINUED IN VOLUME 299 PAGE 1
Vol. �5.$-- pg --310
COMMISSIONER COURT MINUTES OF
SEPTEMBER 3, 2019
ARE CONTINUED FROM VOLUME 298
liens, claims, security interests or encumbrances in favor of the Contractor,
Subcontractors, material suppliers or other persons or entities making a claim by reason
of having provided labor, materials and equipment relating to the Work.
9.3.4 The Contractor shall submit his Application for Payment, amounting to 95% of the
cost of the work performed and 95% of the materials on hand in accordance with
paragraph 9.3.2 above, as of the last day of each month.
9.4 CERTIFICATES FOR PAYMENT
9.4.1 The Engineer will, within seven (7) days after receipt of the Contractor's
Application for Payment and the Engineer's• site visit, either, issue to the Owner a
Certificate for Payment for such amount as the Engineer determines is properly due or
notify the Contractor and Owner in writing of the Engineer's reasons for withholding
certification in whole or in part as provided in Subparagraph 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the
Engineer to the Owner, based on the Engineer's observations at the site and the data
comprising the Application for Payment, that the Work has progressed to the point
indicated and that, to the best of the Engineer's knowledge, information and belief, the
observed aesthetic quality of the Work is in accordance with the Contract Documents.
The Engineer's Certificate for Payment shall be based, .in part, on the recommendation
of the Contractor. The foregoing representations are subject to an evaluation of the Work
for conformance with the Contract documents upon Substantial Completion, to results of
subsequent tests and inspections, to minor. deviations from the Contract Documents
correctable prior to completion and to specific qualifications expressed by the Engineer.
The issuance of a Certificate for Payment will.further constitute a representation that the
Contractor is entitled to payment in the amount certified. However, the issuance of a
Certificate for Payment will not be a representation that the Engineer has: (1) made
exhaustive or continuous on—site evaluations and/or inspections to check the quality or
quantity of the Work; (2) reviewed construction means, methods, techniques, sequences
or procedures; (3) reviewed copies of requisitions received from Subcontractors and
material suppliers and other data requested by the Owner to substantiate the
.Contractor's right to payment; or (4) made examination to ascertain how or for what
purpose the contractor has used money previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION
9.5.1 The Engineer may decide not to certify payment and may withhold a Certificate
for Payment in whole or in part, to the extent reasonably necessary to protect the Owner
if, in the Engineer's opinion, the representations to the Owner required by Subparagraph
9.4.2 cannot be made. If the Engineer is unable to certify payment in.the amount of the
Application, the Engineer will notify the Contractor and Owner as provided in
Subparagraph 9.4.1. If the Contractor and Engineer cannot agree on a revised amount,
the Engineer will promptly issue a Certificate for Payment for the amount for which the
Engineer is able to make such representations to the Owner. The Engineer may also
decide not to certify payment or, because of subsequently discovered evidence or
subsequent observations, may' nullify the whole or a part of a Certificate for Payment
previously issued, to such extent as may be necessary in the Engineer's opinion to
protect the a Owner from loss because of:
.1 defective Work not remedied;
.2 third party claims filed or reasonable evidence indicating probable filing of
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 39
such claims;
.3 failure of the Contractor to make payments properly to Subcontractors or
for labor, materials or equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the Contract Sum;
.5 damage to the Owner or another contractor;
.6 reasonable evidence that the Work will not be completed within the
contract Time, and that the unpaid balance would not be adequate to cover
actual or liquidated damages for the anticipated delay;
.7 persistent failure to carry out the Work in accordance with the Contract
Documents;
.8 failure to comply with the approved Project Construction Schedule;
.9 erroneous estimates by the Contractoror a Sub -contractor of values of
Work performed, or
.10 the existence of any event of default under the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification
will be made for amounts previously withheld.
9.6 PROGRESS PAYMENTS
9.6.1 After the Engineer has issued a Certificate for Payment, the Owner shall make
payment in the manner and within the time provided in.the Contract Documents, and
shall so notify the Engineer.
9.6.1.1 Owner will make partial payments to Contractor within thirty (30) days after
receipt of Certificate for Payment from Engineer.
9.6.1.2 Owner may withhold payment to Contractor notwithstanding Engineer's
certification, if it is necessary, in Owner's opinion, to do so,to protect Owner from loss due
to any of the reasons set forth in -Subparagraphs 9.5.1.1 through 9.5.1.10, inclusive.
9.6.2 The Contractor shall pay each Sub -contractor any due amounts in accordance
with Texas Law. The Contractor shall, by appropriate agreement with each
Subcontractor, require each Subcontractor to make payments to Sub—subcontractors in
similar manner.
9.6.3 The Engineer will, ' on request, furnish to a Sub -contractor, if practicable,
information regarding percentages of completion or amounts applied for by the
Contractor and action taken thereon by -the Engineer on account of portions of the Work
done by such Sub -contractor."
9.6.4 The Owner has the right to request written evidence from the Contractor that the
Contractor has properly paid Subcontractors .and material and equipment suppliers
amounts paid by the Owner to the Contractor for subcontracted Work. If the Contractor
fails to furnish such evidence within seven (7) days, the Owner shall have the right to
contact Subcontractors to ascertain whether they have been properly paid. Neither the
Owner nor Engineer shall have an obligation to pay, or to see to the payment of money,
to a Subcontractor except as may otherwise be required by law.
9.6.5 Contractor's payment to material suppliers and equipment suppliers shall be
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 40
Vol. ,2qq_ p0,
treated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3.and 9.6.4.
9.6.6 A. Certificate for. Payment, a progress payment, or partial or entire use or
occupancy of the Project by the Owner shall not -constitute acceptance of.Work not in
accordance with the contract Documents.
9.7.FAILURE OF PAYMENT
9.7.1. If the Engineer does not issue. a. Certificate for Payment, through no fault of the
Contractor, within seven (7) days after receipt of the Contractor's Application for
Payment, or if the -Owner does not pay the contractor within seven (7) days after the date
established in the Contact Documents the amount certified by the' Engineer, then the
Contractor may, upon seven (7) additional days' written notice to the Owner or Engineer,
stop the�Work until payment of the-amounfowing has been received. The Contract Time
shall be extended appropriately and the Contract Sum shall be increased by the amount
of the Contractor's reasonable costs of shut—down, delay and start—up, as provided for
in the Contract Documents.
9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress -of the Work when the Work is
complete in accordance with the Contract Documents so the Owner can occupy'or utilize
the Work for itss-intended use.
9.8.2 Unless otherwise provided in the Contract Documents, when the Contractor
.considers that the Work,. or a portion thereof which the Owner agrees to -accept
separately, is'substantially complete, the Contractor shall thoroughly inspect the Work
.and prepare and submit to -the Engineer a comprehensive list of items to be,completed
or corrected, Contractor's Notice'of Substantial Completion, and a written request for
Engineer's review of the Work. The Contractor shall proceed promptly to complete and
correct items on the: list. Failure to include an item -on such list does not alter the
responsibility of the Contractor to complete all Work in accordance -with the Contract
Documents. Upon approval of Substantial•'Completion by Brazos County, Contractor.
has thirty (30) days -to reach Final Completion of the Work. If the Contractor does not
achieve Final'Completion within thirty (30).days after Substantial Completion,' Contractor
shall be subject to additional Liquidated Damages as set forth under. paragraph 9.11.2
herein.
9.8.3 Unless otherwise provided in the Contract Documents, after receipt, of the
Contractor's Notice of Substantial Completion and .the Contractor's list, the Engineer and
Owner will make inspections to determine whether the Work: or designated portion
.thereof is substantially complete... If tne'Engineer's and.Owner's inspections disclose any. .
item, whether or not included on the Contractor's list, which is not in accordance with the '
requirements. of the Contract Documents, the Contractor.. shall, before issuance of the
Certificate -of Substantial Completion, complete or correct'such item•upon notification by
the Engineer. In such case, the Contractor shall then. submit' another Contractor's, Notice,
of Substantial Completion and a -request for another inspection by -the Engineer and
Owner to determine -Substantial Completion.
9.8.4 When the Work is substantially complete, the-Engineer.will prepare a Certificate
of Substantial Completion which shall establish the date of.Substantial Completion, shall
establish -responsibilities of the Owner and Contractor for security; maintenance, heat,
Agreement for Construction —Elmo Weedon Road.Reconstructi.on.Phase I RFP CIP 20-501 Page 41
Vol. a P9.
utilities, damage to the Work and insurance, and shall. -fix the time within which the
contractor shall finish all items. on the list accompanying the. Certificate. Warranties
required.: by the .Contract Documents shall commence on the date of Substantial
Completion of the Work or designated portion thereof unless otherwise provided in -the
Certificate of Substantial Completion,. The Certificate of Substantial Completion shall be
submitted to the Owner and Contractor for. their written acceptance.or responsibilities
assigned to them in such Certificate.
9.8.5 The'Certificate of Substantial Completion shall be submitted to the Owner and
Contractor for their written acceptance of responsibilities assigned to them in such
Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make
payment. of retainage applying to such Work or designated portion thereof. . Such
payment shall be adjusted for Work that is1ncomplete or not in accordance with the
requirements of the. Contract Documents.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy, or use, any completed or partially completed portion of
the Work at any stage when'such portion is designated" by separate agreement with the
Contractor, provided such occupancy or use is -consented -to by the insurer as required
under Subparagraph 11.4:1.5 and authorized by public authorities having jurisdiction
over the' Work. ''Such partial occupancy, or .use, may commence whether or not the
portion is substantially complete provided that the Owner -and Contractor have accepted
in writing the responsibilities assigned to each of them for payments, retainage if any,
security; maintenance, heat, utilities, damage to the Work and insurance, and have
agreed in writing concerning the period for correction of the Work and commencement
of warranties required by the Contract, Documents. When the Contractor 'considers a
portion substantially complete, or the Ownernotifies'the Contractor of intent to occupy
or use a portion of the Work prior to substantial completion; the Contractor shall prepare
and submit a list to the Engineer as provided under Subparagraph 9.8.2. Consent of the
Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of _
the progress of the Work shall be determined by written agreement between the Owner a
and Contractor or, if no agreement is reached, by decision of the Engineer.
9.9.2 Immediately prior to such partial occupancy,*,or use, .the Owner, Contractor and
Engineer shall jointly inspect the area to be occupied or portion of the Work to be used
in order to determine and record the condition'of the Work.
9.9.3 .Unless otherwise agreed: upon, partial occupancy or use of a portion or portions
of the Work shall not constitute'acceptance of Work not complying with the requirements
of the Contract Documents.
9.10- FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Unless otherwise provided in the Contract Documents; the Contractor shall
inspect:the Work to determine that it is sufficiently. complete in accordance, -with the
Contract, Documents and -the Contract is fully performed. Upon receipt. of Contractor's
Notice of Final Completion written notice certifying that the Work is sufficiently complete
in accordance with the Contract Docume'nts,.that the Contract is.fully performed,. that the
Work is ready for final inspection and acceptance and upon receipt of a final Application.
for.Payment, the Engineer and. -Owner will in .a reasonable time, .make such inspection
and. when the Engineer and Owner finds the Work acceptable under the Contract
Agreement for Construction—Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 42
E.,
. 9 P $.
Documents and the Contract sufficiently performed, the Engineer will promptly issue a
final Certificate for Payment stating that to the best of the Engineer's knowledge,
information and belief, and on the basis of the Engineer's and Owner's on-site visits and
inspections, the Work has been sufficiently completed in accordance with terms and
conditions of the Contract Documents. The Engineer's final Certificate for Payment will
constitute a further representation that conditions listed in Subparagraph 9.10.2 as
precedent to the Contractor's being entitled to final payment have been fulfilled.
However, 95% of the contract amount will be due and payable to Contractor as noted in
said final Certificate, with the remaining 5% retainage due and payable to the Contractor
within thirty (30) days after acceptance of the Work by the Owner.
9.10.2 Unless otherwise provided in the Contract Documents, neither final payment nor
any remaining retained percentage shall become due until the Contractors submits to
the Engineer: (1) an affidavit that payrolls, bills for materials and equipment and other
indebtedness connected with the Work for which the Owner or the Owner's property
might be responsible or encumbered (less amounts withheld by Owner) have been paid
or otherwise satisfied; (2) a certificate evidencing that insurance required by the Contract
Document to remain in force after final payment is currently in effect and will not be
canceled. or allowed to expire until at least thirty (30) days' prior written notice has been
given to the Owner; (3) a written statement`that the Contractor knows of no substantial
reason that the insurance will not be renewable to cover the period required by the
Contract Documents; (4) consent of surety, if any, to final payment, and (5) if required
by the Owner, other data establishing payment or satisfaction of obligations, such as
receipts, releases and waivers of liens, claims, security interests or encumbrances
arising out of the Contract, to the extent and in such form as may be designated by the
Owner, for Owner's review and approval. if a Subcontractor refuses to furnish a release
or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the
Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after
payments are made, -the Contractor shall refund to the Owner all money that the Owner
may be compelled to pay in discharging such lien, including all costs and reasonable
attorney's fees.
9.10.3 If, .after Substantial Completion of the Work, Final Completion thereof is materially
delayed through no fault of the Contractor or by issuance of Change Orders affecting
final completion and, the Engineer so confirms, the Owner shall, upon application by the
Contractor and certification by the Engineer and without terminating the Contract, make
payment of the balance due for that portion of the Work fully completed and accepted.
If the remaining balance for Work not fully completed or corrected is less than retainage
stipulated in the Contract Documents and if bonds have been furnished the written
consent of surety to payment of the balance due for that portion of the Work fully
completed and accepted shall by submitted by the Contractor to the Engineer prior to
certification of such payment. Such payment shall be made under terms and conditions
governing final payment, except that it shall not constitute a waiver of claims.
9.10.3.1 Final payment constituting entire unpaid balance of Contract Amount will be
paid by Owner to Contractor within thirty (30) days after final Certificate for Payment has
been issued by Engineer.
9.10.4The making of final payment shall constitute a waiver of Claims by the Owner
except those arising from:
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 43
Vol..a9q pq,�_
.1 liens, Claims, security interests or encumbrances arising out of the
Contract and unsettled;
.2. failure of the Work to comply with the requirements of the Contract
Documents;
.3 terms of special warranties required by the Contract Documents, or.
.4 nonconforming, faulty or defective.. Work appearing. -at or after final
payment. -
9.10.5 Acceptance of final payment by the. Contractor, a Subcontractor or material
supplier -shall constitute a waiver of claims by that payee except those. previously made -
in writing :and identified by that payee as unsettled at'the time of final Application for
Payment.
9.11. LIQUIDATED DAMAGES —INTENTIONALLY DELETED
ARTICLE 10
PROTECTION OF PERSONS AND, PROPERTY
10.1 SAFETY AND HEALTH PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsiblfor initiating, maintaining a
end supervising all
safety and. health precautions and programs in connectionwith the. performance of the
Contract. This requirement applies continuously. and is not limited to normal Working
hours.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1. The Contractor shall at all times conduct all operations underthis Agreement in a
manner to avoid. the risk of bodily injury or risk of damage to the following -
.1 employees on the Work and other persons who may, be affected thereby,
to include but not limited to the Owner and Engineer and their consultants
and employees;
.2: the Work and materials and equipment:to be incorporated thereiri, whether
in storage on or off the site, under care, custody or control of the -Contractor
or the Contractor's Subcontractors or Sub—subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns
walks,. pavements, roadways, structures and utilities not designated for
removal,, relocation or replacement in thew urse of construction.
10.2.2 The Contractor shall comply with and: give notices required by applicable laws;
statutes, ordinances, codes, standards, rules, regulations, policies and lawful orders of
public authorities (including reference standards issued under the Occupation Safety Act
and the Occupancy Safety. and Health Administration) bearing on safety and- health of
persons or property ortheir protection from damage, injury -or loss..
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and .
performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent sites and utilities.
10.2:4 When -use or storage .of- hazardous materials or equipment. or unusual methods
are necessary for execution of the Work, such as driving;• or removal of piles, wrecking,
-Agreement for Construction= Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 44
Vol. o`�q q pg, _
demolition, excavation or other similar potentially dangerous work is necessary, the
Contractor shall exercise utmost care and carry on such activities under supervision of
properly qualified personnel and. shall .give Owner reasonable..advance* notice.-
Contractor
otice:Contractor is fully responsible for any and all damages, claims, and for the defense of all
actions against Owner and Engineer, and their consultants and employees resulting from
the prosecution of such work.
10.2.4.1 Use or storage of.explosives is prohibited.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or.
loss insured- under property insurance required by the Contract Documents) to property
referred to in Paragraphs 10.2.1.2. and 10.2.1.3 caused in whole or in part by the
Contractor, a Subcontractor, a .Sub—subcontractor;' or anyone directly or . indirectly
employed by any of them or by anyone for whose acts they may be liable and for which
the Contractor is responsible under Paragraphs 10.2.1.2 -and 10.2.1.3, except damage
or loss attributable to acts or omissions of the Owner or Engineer or anyonedirectly or
indirectly employed by either of them, or by anyone -for whose acts either of them may -
be liable and not attributable'to the fault or negligence of'the Contractor. -The foregoing
obligations of the Contractor are in addition to the Contractor's obligations .under
Paragraph 3.18.
10.2.6 The Contractor shall designate a responsible, properly trained and qualified
member or members of the Contractor's organization at the site whose duties shall be -
the prevention of accidents, damage to property and to supervise and train personnel in
the"use of dangerous and hazardous equipment; materials and substances necessary
for the execution of *the Work. This person shall. be the Contractor's. superintendent_
unless otherwise designated by the Contractor in writing to the Owner and Engineer.
10.2.7 The Contractor shall.not permit any part of the construction'or site, including new
construction or existing facilities to be loaded with weights that will exceed design loads
or so as to endanger safety of persons or property. or cause damage or'create an unsafe
condition.
10.2 .8 Contractor shall give notice in writing at least forty-eight (48) hours or longer if
required by affected parties before breaking ground, to all persons: having interests on
or near site, Public Utility Companies, owners of. property having structures or
improvements in proximity to site of the Work; agencies, authorities, inspectors, or those
otherwise in charge of property, streets, water pipes, gas pipes, sewer -pipes, telephone
cables, electric cables, railroads or otherwise who may be affected by Contractor's
operation, in order that they may remove any.'obstruction for which they.are responsible
and have representative on site to see that their property is properly :protected. Such
notice does not relieve Contractor of responsibility for any damages, claims, and'defense
of all actions against�Owner and Engineer resulting from performance of such Work in
connection with or arising.out of Contract.
10.2.9 All parts of Work shall be braced to resist wind or. other loads. Contractor shall
perform Work with the explicit understanding that the design of the Project is.based on
all parts of Work having been completed and as such, the methods of performance of
each part of Work.shall be done accordingly.
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 45
10.2.10 Temporary items such as, but not limited to:. scaffolding, staging, lifting and
.hoisting..: -devices,. shoring, excavation, barricades, and. safety and construction
procedures necessary in completion of Project shall be .the responsibility of the
Contractor and its -Subcontractors and' shall comply with all applicable codes and
regulations. -It shall not be responsibility of Owner, Engineer or their representatives to
determine if Contractor, Subcontractors or their representatives are in compliance with
the aforementioned regulations.
.10.2.11 :. The. Contractor shall comply with all. Federal. Occupational Safety and
Health Administration Hazard Communications Act (HAZCOM) requirements, including
properly maintaining. Materials.. Safety Data Sheets (MSDS) at the Project site. The
Contractor -shall ensure that all MSDS are compiled in a single location at the Project
site, and are available to the regulating agencies. The Contractor shall indemnify and
hold harmless the Owner and Engineer.for their respective failure -to comply with this
provision,
10.2.12 .The Contractor shall be -responsible for any'fines, penalties'or charges by any
regulatory. body by reason of any violation of safety or health regulations. .• Contractor
shall also be responsible for reimbursement of any OSHA -fines incurred by -the Engineer
for Project site safety conditions created or controlled by the Contractor -that result in the
Engineer receiving a citation under the OSHA multi-employercitation provision.
16.2.13.The Contractor shall notify Owner's and Engineer's personnel upon arrival -to the
Project.site of'any known safety or health hazards at the Project and the precautions
they should take.
10.2.14 -The Contractor shall provide safety and health equipment (excluding boots) for
the Owner and Engineer to protect them from safety and health risks during the
performance of their .services during the .construction of the Project.
10.2.15 The Engineer's review of Contractor's performance does not.include review of
adequacy of Contractor's safety or health measures.
.10.3 HAZARDOUS MATERIALS OR SUBSTANCES
10.3.1 The Contractor- is responsible for compliance with any requirements included in
the *Contract Documents regarding hazardous materials. if the Contractor encounters a
hazardous material or. substance hot addressed,'in' the Contract Documents and if
reasonable precautions will. be, inadequate to prevent foreseeable.bodiily injury or -death
to persons resulting from a hazardous material• or substance, including but not limited to,
asbestos or polychlorinated biphenyl (PCB) encountered on the site by the Contractor,.
the Contractor shall, upon recognizing the condition, immediately stop Work in the
affected area and report the condition to the Owner, in writing, with a copy to the Engineer.
10.3.1.1. The term "hazardous materials or substance" also includes, but is not limited to,
asbestos, asbestos. products, polychlorinated .biphenyl (PCB), radori gas, industrial
waste, acids, lead, alkaline; irritants, contaminants or other pollutants, excluding mild
chemicals used in'the cleaning of finished building materials.
10.3.2 Upon receipt of the Contractor's written notice, the Owner shall obtain the services
of a licensed- laboratory to verify the presence -or absence of the material- or .substance
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 46
Vol. a99� po,
reported by the Contractor and in the event such material or substance is found to be
present, to cause it to be rendered harmless. Unless otherwise required by the Contract
Documents, the Owner shall furnish in writing to the Contractor the names and
qualifications of persons or entities who are to perform tests verifying the presence or
absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. The Contractor will promptly reply to the
Owner in writing stating whether or not either has reasonable objection to the persons or
entities proposed by the Owner. If the Contractor has art objection to a person or entity
proposed by the Owner, the Owner shall propose another to whom the Contractor has no
reasonable objection. When the material or substance has been rendered' harmless,
Work in the affected area shall resume upon written agreement of the Owner and
Contractor. By Change Order the Contract Time shall be extended appropriately and the
Contract Sum shall be increased in the amount of the Contractor's reasonable additional
costs of shut-down, delay and start-up.
10.3.3 To the fullest extent permitted by law, .the Owner shall indemnify and hold harmless
the Contractor, Subcontractors, Engineer, Engineer's consultants and agents and
employees of any of them from and against. claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from performance of
the Work in the affected area if in fact the material or substance presents the risk of bodily
injury or death as described in Subparagraph 10.3.1 and has . not been rendered
harmless, provided that such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or destruction of tangible property (other
than the Work itself) except to the extent that such damage, loss or expense is to the fault
or negligence of the party seeking indemnity.
10.3.4 The Engineer and Engineer's consultants and employees' shall have no
responsibility for the discovery, presence, handling, removal or disposal of, or exposure
of persons, -to hazardous materials or toxic substances in any form at the Project site.
10.3.5 The Owner and Engineer shall not be responsible under Paragraph 10.3 for
hazardous materials and substances brought to the Project site by the Contractor unless
such materials or substances .were required by the Contract Documents and the
Contractor so notified the Owner and Engineer. The Contractor shall notify the Owner
and Engineer prior to bringing any hazardous material or substance onto the Project site.
10.3.61f, without negligence on the part of the Contractor, the Contractor is held liable by
a government agency for the cost of remediation of a hazardous material or substance
solely by reason of performing Work as required by the Contract Documents, the Owner
shall indemnify the Contractor for all cost and expense thereby incurred.
10.4 EMERGENCIES
10.4.1 In an emergency affecting safety or health of persons or property, the Contractor
shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss.
Additional compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Paragraph. 4.3. and Article 7.
10.4.2 The Contractor shall promptly report in writing to Owner and Engineer all accidents
arising out of, or in connection with, the performance of the Work, whether on or off the
site, which caused death, personal injury or property damage, giving full details and
statements of any. witnesses. In addition, if death, serious personal injuries or serious
Agreement for Construction — Elmo Weedon Road Reconstruction Phase i RFP CIP 20-501 Page 47
Vol. _ a9q Pp. i o
property damages are caused, the accident shall be reported immediately by telephone
or messenger to Owner and Engineer.
ARTICLE 11
INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase from and maintain in a company or companies
lawfully authorized to do business in the State of Texas such insurance as will protect
the Contractor from claims set forth below which. may arise out of, or result from, the
Contractor's operations under the Contract and for which the Contractor may by legally
liable, whether such operations be by Contractor or by a Subcontractor or by anyone
directly, or indirectly, employed by any of them, or by anyone for whose acts any of them
may. be liable:
.1 claims under workers' or workmen's compensation, disability benefit and
other similar employee benefit acts which are applicable to the Work to be
performed;
.2 claims -for damages because of bodily injury, occupational sickness or
disease, or death of the Contractor's employees;
.3 claims for damages because of'bodily injury, sickness, disease or death of
any person other than the Contractor's employees or persons or entities
excluded by statute from requirements of Subparagraph 11.1.1.1, but
required by .Contract Documents to provide insurance required by that .
Subparagraph;
.4 claims for damages insured by usual personal injury liability coverage
which are sustained by: (1) by a person as a result of an offense directly or
indirectly related to employment of such person by the Contractor; or (2)
by another person;
.5 claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting there from;
.6 claims for damages because of bodily injury, death of a'person or property
damage arising out of ownership, maintenance or use of a motor vehicle;
.7 claims for bodily injury or property damage arising out of completed
operations;
.8 claims. involving contractual liability insurance applicable to the
Contractor's obligations under Paragraph 3.18.
.9. Liability Insurance shall include all major divisions of coverage and be on a
comprehensive basis including:.
(1) Premises Operations (including X, C and U coverages as
applicable).
(2) Independent Contractors' Protective.
(3) Products and Completed Operations.
(4) Personal Injury Liability with Employment Exclusion deleted.
(5) Contractual, including specified provision for Contractor's
obligations under Paragraph 3.18.
(6) Owned, non -owned and hired motor vehicles.
(7) Broad. Form Property Damage including Completed Operations.
.10 If General Liability coverages are provided by a Commercial , General
Liability Policy on a claims -made basis, the policy date or Retroactive Date
shall predate the Contract; the termination date of the policy or applicable
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 48
VCA.a�g P0.
extended reporting period shall be no earlier than the termination date of
coverages required to be maintained after final payment, certified in
accordance with Subparagraph 9.10.2.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not less than
the limits of liability specified in the Bid documents or as required by law, whichever
coverage is greater. Coverage shall be written on an occurrence basis and shall be
maintained without interruption from date of commencement of the Work until date of
final payment and termination of any coverage required to be maintained after final
payment.
11.1.2.1 The insurance required by Subparagraph 11.1.1 shall be written for not less than
the following limits, or greater if required by law:
1. Workers' Compensation:
(a) State: Texas Statutory
(b) Applicable Federal (e.g., Longshoremen harbor work, Work at or
outside U.S. -Boundaries):
Statutory: Not Applicable
(c) Maritime: Not Applicable
(d) Employer's Liability: $ 500,000 each accident
$ 500,000 disease, policy limit
$ 500,000 disease, each employee
(e) Benefits required by union labor. contracts: As Applicable
(f) "Texas Waiver of Our Right to Recover From Others Endorsement"
shall be included in this policy. (Waiver of Subrogation)
2. Comprehensive or Commercial General Liability (including Premises -
Operations; Independent Contractors' Protective: Products and Completed
Operations; Broad Form Property Damage):
(a) Bodily Injury: $ 1,000,000 each occurrence
$ 1,000.,000 aggregate
(b) Property Damage: $ 1,000,000 each occurrence
$ 1,000,000 aggregate
(c) Products and Completed Operations Insurance to be maintained for
a minimum: period of five 5 year(s) after final payment:
(d) Property Damage Liability Insurance shall include coverage for the
following hazards:
1) X (Explosion).
2) C (Collapse).
3) U (Underground).
(e) Broad Form Property Coverage shall include Completed Operations.'
(f) "Texas Waiver of Our Right to Recover From Others Endorsement"
shall be -included -in this policy. (Waiver of Subrogation)
3.. Contractual Liability:
(a) Bodily Injury: $ 1,000,000 each occurrence
(b) Property Damage: $ 1,000,000. each' occurrence
•$ 2,000';000 aggregate
4.. Personal Injury with Employment Exclusion deleted: $ 1,000,000
aggregate
Agreement for Construction— Elmo Weedon Road Reconsfruction Phase I RFP CIP 20-501 _ Page 49
Vol. pg.
5. If the General Liability coverages are provided by a Commercial Liability
policy, the:
(a) General Aggregate shall be not less than $ 2,000,000 and it shall
apply, in total, to this Project only.
(b) Fire Damage Limit shall'be not -less than-$ 100,000 on any one
Fire.
(c) Medical Expense Limit shall. be not less than $ 10,000 on any one
person.
(d) °,Texas Waiver of Our Right to Recover From Others Endorsement"
shall be included in this policy. (Waiver of Subrogation)
6. Umbrella Excess Liability: $ 2,000,000 over primary insurance
$ 10,000 retention for self-insured hazards each
occurrence
7. Business Auto Liability (including owned, non -owned and hired vehicles):
(a) -Bodily Injury: $ 500,000 each person
$ 1,000,000 each accident
(b) Property Damage: $ 500,000 each occurrence
(c) "Texas Waiver of Our Right to Recover From Others Endorsement"
shall be included in this policy. (Waiver of Subrogation)
Note: The -State of Texas has a no-fault automobile insurance requirement.
Contractor shall be certain coverage is provided which conforms to any
specific stipulation in the law.
11.1.3 Certificates of Insurance acceptable to the Owner shall be filed with the Owner
prior to commencement of the Work. These Certificates and the insurance -policies
required.by this Paragraph 11.1 shall contain a provision that coverage afforded under
the policies will not be canceled, or allowed to expire, until at least thirty (30)- days prior
written notice has been given to the Owner. If any of the foregoing insurance coverage
are required to remain in force after final payment and are reasonably available, an
additional certificate -evidencing continuation of -such coverage shall be submitted with
the final Application for Payment as required by Subparagraph 9.10.2. Information
concerning reduction of coverage shall be furnished by the Contractor with reasonable
promptness in accordance with the Contractor's information and belief. Not later than
ten (10) days from award of bid, Contractor shall deliver to the Owner, copies of the
insurance certificate in accordance with the above requirements naming -Owner as
additional insured.
11.2 OWNER'S LIABILITY INSURANCE:.
11.2.1 The Owner reserves the right to be self-insured for any and all insurance of any
kind, type, or nature required by the Contract Documents.
11.2.1.1 Contractor shall purchase and maintain insurance covering Owner's contingent
liability for claims which may arise from operations under the Contract.
.1 Bodily Injury: -
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 5 0
Vol. P9•
$1,000,000 each occurrence
$1,000,000 aggregate
.2 Property Damage:
$ 1,000,000 each occurrence
$1,000,000 aggregate
11.3 PROPERTY INSURANCE
11 '.3.1 The Contractor shall purchase and maintain, in a company or companies lawfully
authorized to do business in the jurisdiction in which the Project is located, property
insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of
the initial Contract Sum, plus Engineer fees, plus value of subsequent Contract
modifications and cost of materials supplied or installed by others, comprising total value
for the entire Project at the site on a replacement cost basis without optional deductibles.
Such property insurance shall be maintained, unless otherwise provided in the Contract
Documents or otherwise agreed in writing by all persons and entities who are
beneficiaries of such insurance, until final payment has been made as provided in
Paragraph 9.10 or until no person or entity other than the Owner has an insurable interest
in the property required by this Paragraph 11.3 to be covered, whichever is later. This
insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub -
subcontractors in the Project. The form- of policy for this coverage shall be (Completed
Value) (Reporting), in the names of the Owner, Contractor, Subcontractors and Sub -
subcontractors as their interests may appear in amount equal to contract sum for the
Work. If Owner is damaged by failure of Contractor to maintain such insurance, then
Contractor shall bear all reasonable costs properly attributable thereto..
11.3.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall
include, without limitation, insurance against the perils of fire (with extended coverage)
and physical loss or damage including, without duplication of coverage, theft, vandalism,
malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and
startup, temporary buildings and debris removal including demolition occasioned by
enforcement of any applicable legal requirements and shall cover reasonable
compensation for Engineer's and Contractor's services and expenses required as a
result of such insured loss.
11.3.2 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and
maintain such insurance as will insure the Owner against loss of use of the Owner's
property due to fire or other hazards, however caused.
11.3.3 If the Contractor requests in writing that insurance for risks other than those
described herein or for other special hazards be included in the property insurance
policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be
charged to the Contractor by appropriate Change Order.
11.4 PERFORMANCE BOND AND PAYMENT BOND
11.4.1 Not later than ten (10) days from and -after the date on which the award of the bid
is made by the Owner, Contractor shall execute, as Principal, bonds joined in by a Surety
Company of the Contractor's choice, generally referred to as a "Performance Bond" and
a " Payment Bond," each in a penal sum equal to 100% of the Contract Sum. The Bonds
shall be on the form provided by Owner and shall be compatible with provisions of
governing authorities. Contractor shall file bonds with the Owner.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 51
Vol. Pg. 1
11.4.2 Surety Company executing..bonds shall be acceptable to Owner and shall be
authorized to do. business in the. State of Texas.
11.4.3 Surety. Company shall list the address and phone number of the.home office of
its' principal place of business. Surety shall:also provide the name, address and phone
number •of the local Agent issuing the bonds.
11.4.4 Contractor shall require attorney-in-fact who executes required bonds on. behalf
of surety to affix thereto a certified -and current copy of power of attorney.
11.4.5 Contractor shall deliver required bonds -to Owner not later than three (3) days
following the date the Agreement is entered into, or if Work is to be commenced prior
thereto in response to a letter of Intent, Contractor shall,. prior to commencement of Work,
submit evidence satisfactory to. Owner that such bonds will be furnished.
11.4.6 Upon the request of any person or -entity appearing to be a potential beneficiary of
bonds covering payment of obligations'arising under the Contract, the Contractor shall
promptly furnish a copy of the bonds or shall permit a copy to be made.
11.4.70ontractor shall keep surety informed of progress of Work and where necessary,
obtain surety's consent to, or waiver of: (1) notice of changes in the Work; (2) request for
reduction or release of retention; '(3) request for final payment; and (4) any other
information required by surety. :
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If. a portion of the Work- is. covered contrary to the Engineer's, Owner's or
governing authority's request or to requirements specifically expressed in the Contract
Documents, it must, if requested in writing by the Engineer, be uncovered for the
Engineer's, Owner's or governing.: authority's. examination and be replaced at the
Contractor's expense with change in the Contract Time.
12.1.2 If a portion of the Work has been covered which the Engineeri.Owner or governing
authority' has not specifically requested • to examine prior to its being covered, the
Engineer, Owner or governing authority may request to see such Work and it shall be
uncovered by the Contractor. If such Work -is in accordance with the Contract
Documents, costs of uncovering and replacement shall, -'by appropriate Change Order,
be at the Owner's expense. If such Work is not in accordance with the Contract
Documents, such cost and the cost of correction shall -be at the Contractor's expense
unless the condition. was caused by the Owner or a separate contractor in which event
-the Owner shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
.12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1 _ The Contractor shall promptly correct Work rejected by the Engineer,
Owner or. governing .authority or failing. to conform to the requirements of the Contract
Documents, whether observed before, or after, Substantial Completion and whether or
Agreement for Construction - Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 52
Vol. �'9• S
not fabricated, installed or completed. The Contractor shall bear costs of correcting such
rejected Work, including additional testing and inspections and compensation for the
Engineer's services and expenses made necessary thereby.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligation under Paragraph 3.5, if, within one (1)
year after the date of Substantial Completion of the Work, or designated portion thereof,
or after the date for commencement of warranties established -under Subparagraph
9.9.1, or by terms of an applicable special warranty required by the Contract Document,
any of the -Work is found to be not in accordance with the requirements of the Contract
Documents, the Contractor shall correct it promptly after receipt of written notice -from
the Owner to do so unless the Owner has previously given the Contractor a written
acceptance of such condition. This period of one (1) year shall be extended with respect
to portions of Work first performed after Substantial Completion by the period of time
between Substantial Completion and the actual performance of the Work. This obligation
under this paragraph 12.2.2 shall survive acceptance of the Work under the Contract
and termination of the Contract. The Owner shall give such notice promptly after
discovery of the condition.
12.2.2.2 The one (1) year period for correction of Work shall be extended with respect to
portions of Work first performed after Substantial Completion by the period -of time
between Substantial Completion and the actual completion of that portion of the Work.
12.2.2.3 The one (1) year period for correction of Work shall not be extended by corrective
Work performed by the Contractor pursuant to this Paragraph 12.2.
12.2.2.4 Upon request of Owner and prior.to expiration of one (1) year from date of
Substantial Completion, Engineer may conduct, and Contractor shall attend, a meeting
with Owner to review facility operations and performance.
12.2.3 The Contractor shall remove from the site portions of the Work which are not in
accordance with the requirements of -the Contract Documents and are neither corrected
by the Contractor nor accepted by the Owner.
12.2.4 The Contractor shall bear the cost of correcting destroyed, or damaged,
construction, whether completed or partially completed, of the Owner or separate
contractors caused by the Contractor's correction or removal of Work which is not in
accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to establish a.period
of limitation with respect to other obligations the Contractor has under the Contract
Documents. Establishment of the one (1) year period for correction of Work as described
in Subparagraph 122.2 relates only to the specific obligation of the Contractor to correct
the Work and has no relationship to the time within which the obligation to comply with
the Contract Documents may be sought to be enforced, -nor to the time within which
proceedings may be commenced to establish the Contractor's liability with respect to the
Contractor's obligations other than specifically to correct -the Work.
12.3 ACCEPTANCE OF NONCONFORMING WORK
Agreement for Construction—Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page- 53
���
Vol.Q
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring its
removal and correction, in which case the Contract Sum will be reduced as appropriate
and equitable. Contractor shall bear all direct, indirect and consequential costs
attributable to Owner's evaluation of and determination to accept such defective or
nonconforming Work (such costs to include but not limited to fees and charges of
Engineers, engineers, testing agencies, consultants, attorneys and other professionals).
Such adjustment shall be effected whether or not final payment has been made. If any
such acceptance occurs prior to final payment, Owner shall be entitled to an appropriate
decrease in the Contract Sum. If the acceptance. occurs after final payment, an
appropriate amount will be paid by the Contractor to the Owner.
ARTICLE 13
MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW: The Contract shall be governed by the laws of the State of
Texas and venue shall be at all times Brazos County, Texas.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their partners,
successors, assigns and legal representatives to the other party hereto and to partners,
successors, assigns and legal representatives of such other party in respect to
covenants, agreements and obligations contained in the Contract Documents. Neither
party to the Contract shall assign the Contract as a whole without written consent of the
other. If either party attempts to make such an assignment without such consent, that
party shall nevertheless remain legally responsible for all obligations under the Contract.
13.2.2 The Owner may, without consent of the. Contractor, assign the Contract to lender
providing construction financing for the Project. If the lender assumes the Owner's rights
and obligations under the Contract Documents. The Contractor shall execute all
consents reasonably required to facilitate such assignment.
13.2.3 Contractor shall not assign any monies due or to become due hereunder without
written consent of Owner and of Contractor's Surety. The Contractor shall file a copy of
such consent of Surety, together with copy of assignment with Owner and Engineer. In
case Contractor assigns all or any part of any monies due or to become due under this
Contract; instrument of assignment must contain a clause substantially to effect that it is
agreed that right of assignees in and to any monies due or to become due to Contractor
shall be subject to prior liens and claims of all persons, firms and corporations for
services rendered; for payment of all laborers and mechanics for labor performed; for
payment for all materials and equipment furnished and payment for all materials and
equipment used or rented in performance of the Work called for in Contract; and for
payment of any liens, claims, or amounts due to governments or any of their funds.
13.3 WRITTEN NOTICE: Written notice shall be deemed to have been duly served if
delivered' in person to the individual or a member of the firm or en_ tity or to an officer of
the corporation. for which it was intended, or if delivered or sent by registered or certified
mail or by courier service providing proof of delivery to the last business address known
to the party giving notice.
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 54
Vol.
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Documents and rights and
remedies available there under shall be in addition to and not a limitation of duties,
obligations, rights and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Engineer or Contractor shall constitute a
waiver of a right or duty afforded them under the Contract, nor shall such action or failure
to act constitute approval of or acquiescence in a breach there under, except as may be
specifically agreed in writing.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations or orders of public authorities
having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the
County shall make arrangements for such tests, inspections and approvals with .an
independent testing laboratory or entity, and shall bear all related costs of tests,
inspections and approvals. The Contractor shall give the testing agency, Project
inspector (if any), public authorities and (if requested), Engineer timely notice of when
and where tests and inspections are to be made so that they may observe such
procedures. The Owner shall bear costs of tests, inspections or approvals which do not
become requirements until after bids are received or negotiations concluded.
13.5.2 If the Engineer, Owner, Project inspector (if any), or public authorities having
jurisdiction determine that portions of the Work require additional testing, inspection or
approval not included under Subparagraph 13.5.1, the Project inspector (if any), or
Engineer will, upon written authorization from the Owner, instruct the Contractor to make
arrangements for such additional testing, inspection or approval by an entity acceptable
to the Owner, and the Contractor shall give timely notice to the testing agency, project
inspector (if any), governing agency, and (if requested), Engineer of when and where
tests and inspections are to be made so they may observe such procedures. The Owner
shall bear such costs except as provided in Subparagraph 13.5.3.
13.5.3 If procedures for testing, inspection or approval :under Subparagraphs 13.5.1 and
13.5.2 reveal failure of the portions of the Work to comply with requirements established
by the Contract Documents, laws, statutes, ordinances, codes, rules or regulations, all
costs made necessary by such failure including those of repeated procedures and
compensation for the Engineer's services and expenses shall be at the Contractor's
expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise
required by the Contract. Documents, be secured by the Contractor and .promptly
delivered to the Engineer and- Project inspector (if any).
13.5.5 If the Engineer, Owner or Project inspector (if any), is to observe tests, inspections
or approvals required by the Contract Documents, they will do so promptly and where
practicable, at the normal place of testing.
13.5.6 Test or inspections conducted pursuant to the Contract Documents shall be made
promptly to avoid unreasonable delay in the Work.
Agreement for Construction— Elmo Weedo econstruction Phase I RFP CIP 20-501 Page 55
Vol. PO. 8
13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from
the date payment is due at the legal rate prevailing for public entities under the laws of
the State of Texas.
13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
13.7.1 As between the Owner and Contractor:
.1 Before Substantial -Completion. Before Substantial Completion, any
applicable statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and all events not
later than such date of Substantial Completion;
.2 Between Substantial Completion and Final Certificate for Payment.
As to acts or failures to acts occurring subsequent to the relevant date of
Substantial Completion and prior to issuance of the final Certificate for
Payment, any applicable statute of limitations shall commence to run and
any alleged cause of action shall be deemed to have accrued in any and
all events not later than the date of issuance of the final Certificate for
Payment; and
.3 After Final Certificate for Payment. As to acts or failures to act occurring
after the relevant date of issuance of the final Certificate for Payment, any
applicable statute of limitations shall commence to run and any alleged
cause of action shall be deemed to have accrued in any and all events not
later than the date of any act or failure to act by the Contractor pursuant to
any warranty provided under Paragraph 3.5, the date of any correction of
the Work or failure to correct he Work by the Contractor under paragraph
12.2, or the date of actual commission of any other act or failure to perform
any duty or obligation by the Contractor or Owner, whichever occurs last.
13.8 EQUAL OPPORTUNITY
13.8.1 Contractor shall maintain policies of employment as follows:
.1 Contractor and Contractor's Subcontractors shall not discriminate against
any employee or applicant for employment because of race, religion, color,
sex or national origin. Contractor shall take affirmative action to ensure
that applicants are employed and that employees are treated during
employment without regard to their race, religion, color, sex or national
origin. Such action shall include, but'not be limited to the following:
employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
Contractor agrees to post in conspicuous places, available to employees
and applicants for employment, notices setting forth policies of
nondiscrimination.
.2 Contractor and Contractor's Subcontractors shall, in all solicitations or
advertisements for employees placed by them or on their behalf, state that
all qualified applicants will receive consideration for employment without
regard to race, religion, color, sex or national origin.
13.9 NON-DISCRIMINATION
13.9.1 In performance of Work, Contractor and Subcontractors agree not to discriminate
Agreement for Construction — Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 56
va. aq9 P9-�
against any employee or applicant for employment because of age, race, religion, color,
handicap, sex, physical condition, developmental disability, sexual orientation or national
origin..7his provision shall include, but not be limited to the following; employment,
upgrading, demotion, promotion or transfer; recruitment or recruitment advertising; -layoff
or'termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeships:
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the work is stopped for a period of
thirty (30) days .through_ no act .or fault of the Contractor or a Subcontractor, Sub—
subcontractor or their agents or: employees or any other persons performing portions of
the Work under the Contract•With the Contractor, for any of the following reasons:
.1 • issuance of:an order of a court or other public authority having
jurisdiction;
.2 an act of government, such as a declaration of national emergency, making
material unavailable;
.3 because the Engineer has not issued a Certificate for Payment and has
not notified the Contractor of the reason..for withholding certification as
provided in Subparagraph 9.4.1, or because the Owner .has not made
payment on a Certificate for Payment within the time stated in the .Contract
Documents; or
.4 -if repeated suspensions, delays or'interruptions by the- Owner as described
:in Paragraph 14.3 constitute in the aggregate more than 100 percent of the
total number' of days scheduled for completion, or one hundred..twenfy
(120) days in any three hundred sixty-five.(365) day period, whichever is
less.
14.1.2 If one of the above reasons exists, the.Contractor may, upon seven (7) additional
days written. notice to the Owner and Engineer, terminate the Contract and recover from
the Owner payment for Work executed and. ;for proven loss with respect to materials,
equipment, tools, and construction equipment and machinery, including reasonable
overhead., profit and damages.
14.1.3 :If the Work is stopped for a period of sixty (60) days through no act or fault'of the
Contractor or a Subcontractor or their agents, employees or any other . persons
performing portions of the Work under the Contract with the Contractor because the
Owner. has persistently failed to. fulfill the Owner's obligations under the. Contract
Documents with respect to matters important to the progress of the Work, the Contractor
may, upon seven (7) additional days written notice to the Owner and the Engineer,
terminate the Contract and recover from the Owner as provided in Subparagraph 14.1.2.
14.2 TERMINATION BY THE OWNER FOR CAUSE
14.2.1 The Owner may terminate the Contract if the Contractor:
.1: persistently or repeatedly refuses or fails.to supply enough properly skilled .
workers or proper materials;
.2 fails to make prompt payment to Subcontractors for materials or labor.in
accordance with the respective agreement between the Contractor and the
Agreement for Construction— Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page. 57
Vol. Pg.
Subcontractors;.
.3_ persistently disregards laws, ordinances; or rules, regulations or orders of :
a public authority having jurisdiction; or
A -otherwise is guilty of substantial breach ofa provision of the Contract
Documents.
14.22 When any of the above reasons exist and the Owner believes that sufficient -cause
exists to justify such' action, the Owner. may, without prejudice to. any other rights or
remedies of the Owner and after giving the C.ontractorand the Contractor's surety seven
(7) days:written notice, -terminate -employment of the. Contractor.and may, subject to any
prior rights of -the surety:
.1 :take possession of the --site and of all materials, equipment, .tools,
construction equipment and .machinerythereon'owned'by.the Contractor;
.2 .. accept assignment of subcontracts pursuant.to Paragraph 5.4; and
.3 finish the Work. by whatever reasonable method. the Owner may deem
expedient. .
14.213 When the Owner terminates the Contract for' -one of the reasons stated in
Subparagraph 14.2.1, -the Con tractor shall not be entitled to receive further payment until
the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work,
-including- compensation for the Engineer'sservices and expenses. made necessary
thereby; such excess shall be paid -to the Contractor. If such costs exceed the unpaid
balance, -the - Contractor shall:- pay the.' difference to the- Owner.- This obligation for
payment shall survive termination of the Contract.
14.3- 'SUSPENSION BY OWNER FOR CONVENIENCE
14.3.1 The Owner.may, without cause,.:order the Contractor in writing to suspend, delay
or interrupt the .Work in whole or..in part. -for such period of time as the Owner may
determine.
14.3.2 The Contract Sum and Contract Time. shall be adjusted.for increases in. the cost
and time caused by suspension,. delay or interruption as described in Subparagraph
14.3:1. Adjustment of the Contract Sum shall'include profit. No adjustment shall be made
to the extent:
.1 that performance is; -was or would have. been so suspended, delayed or
interrupted by another: cause for which the Contractor is responsible; or
.2 that an'equitatile.'adjustment is made or denied under another provision of
-the Contract.
14.4 TERMINATION' BY THE OWNER FOR CONVENIENCE
.14.4.1 The Owner may, at any time, .terminate the Contract for the 'Owne.r's convenience
and without cause.
1.4.4.2 Upon receipt of -written notice from the Owner of such termination for the Owner's
convenience, the Contractor shall:
:1 cease operations as directed by the Owner in"the notice;
.2... take actions necessary, or that the Owner -may diirect,.for the protection.
and preservation of the Work; and
Agreement for Constnrctibn—Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501... Page: 58
Vol.
.3 except for Work directed
termination stated. in the
purchase orders and . en
orders.
.to be performed prior to the effective date of
notice, terminate all existing subcontracts and
er into no further subcontracts and purchase
14.4.3'In case of such termination -for the Owner's'convenierrce, the Contractor shall be
entitled to receive payment for Work executed and costs. incurred. by reason of such
termination, along with reasonable overhead and profit on the Work not executed.
ARTICLE 15
ACCESS TO THE WORK .
15.1 . Engineer, the Owner, and their authorized representatives, shall have access at
all times to the work for inspection wherever it is in preparation or progress- and the
Contractor shall provide proper facilities for such access and inspection.
ARTICLE 16
STANDARDS
.16.1 . Any material specified by reference to the number, symbol or title of a specific
standard,, .such as a Commercial Standard, a Federal specification, a trade association
standard or other similar standard, shall comply with the requirements in the latest
revision thereof and any amendment or supplement thereto in effect on the date of these
Specifications, except as limited.'to type, class or grade, or modified in such reference.
16.2 The Standards referred to, except as modified in the Specifications, shall"have full
force and effect as .though printed in the Specifications. These Standards are not
furnished. to bidders -for the reason that the manufacturers and trade involved are
assumed to be familiar with their requirements. The. Engineer will furnish, upon request,
information as to how copies of the 'standards referred to may be obtained.
16.3 . ItJs not. the intent of the Specifications to limit 'materials -to the product of
particular manufacturer: Where definite materials, equipment and/or fixtures have been
specified by name, manufacturer or catalog number, it has been done to set a definite
standard and a reference for comparison of quality, application, physical conformity and
other characteristics. It is not the intention to.discriminate against, or prevent, any dealer,
jobber or manufacturer from furnishing materials, equipment'and fixtures which, in the
judgment of the Engineer, expressed in writing, meet or exceed the characteristics of the
specified. items.
ARTICLE 17
.PROHIBITION AGAINST PERSONAL INTEREST IN .CONTRACTS
-17.1 No officer 'or employee of Brazos County, Texas, shall :have.a financial interest,
direct or indirect, in this Agreement or shall be financially 1'nterested, directly or indirectly,
in the sale of any materials, supplies or services, except on behalf of. the County as an
officer or employee. Any willful violation of .this Article shall constitute malfeasance in
office and -any officer or employee guilty thereof shall -be subject to removal from his
office or position. Any violation of this Article with the knowledge, express or implied, of
Agreement for Construction Elmo Weedon Road Reconstruction Phase I RFP CIP 20-501 Page 59
the.Contractor or .Subcontractors shall render this Agreement:•:voidable. by Brazos
County.
-ARTICLE-18
PREVAILING WAGE RATES
18.1- PREVAILING.WAGE RATE DETERMINATION..
18.1.1. Chapter 2258, Texas. Government Code:, Title 10, requires state agencies, cities,
counties; independent school districts and all other political -subdivisions that engage .in
construction projects using public funds to include prevailing wage rates-in the project bid -
documents and the construction contract. "
ARTICLE 19
AUTHORITY TO CONTRACT
The County Judge is . authorized -to execute this - Agreement .upon the
Commissioners Court's approval.of the Agreement as set forth in -the minutes of the -
Couit's ; 2019, meeting.
This Agreement is.entered into in as of the day.and year first written above and is
-executed in at least .three (3) original copies of. which one' (1) is to 'be- delivered to .the
Contractor, one (1)- to the Engineer for use in the administration of the Contract, and the
remainder to the Owner.
OWNER:
BRAZOS COUNTY, TEXAS
Date:..
Brazos County Judge
330 South Texas Ave., Suite -332.
Brazos, Texas 77803
CONTRACTOR
KNIFE RIVER,' INC.
��; ... Date: Z�
Knife River
Agreement for Construction—Mmo-Weedon Road Reconshuetion Phase I RFP CIP 20-501 Page 60
t a
Item Coversheet
BRAZOS COUNTY
BRYAN,TEXAS
Page 1 of 1
U
DEPARTMENT: CC 2019 - Utility Permit - Wellborn
Road and Bridge NUMBER: SUD - Deer Hill Drive -1,788' SW
of SH 6.
DATE OF COURT MEETING: 9/3/2019
ITEM: Approval of the Wellborn Special Utility District utility permit to construct a road bore for a 2
inch water line crossing under Deer Hill Road 1,788 feet southwest of SH 6. Site is located
in Precinct 4.
TO:
Commissioners Court
FROM:
Darrell Kolwes
DATE:
08/29/2019
FISCAL IMPACT:
False
BUDGETED:
False
DOLLAR AMOU NT:
$0.00
ATTACHMENTS:
File Name Description Type
Utility Permit - Wellborn SUD - Deer Hill Drive - 1 788 SW of SH 8..odf Utility Permit - Wellborn SUD - Deer Hill Backup Material
Drive -1,788' SW of SH 6.
ROVED
� <y
Duane Peters Date
County Judge
vol. Q Pg. a4.
httDs://brazos.novusaaenda.com/At;endaWeb/CoverShect.asvx?ItemID=193 78
8/29/2019
APPLICATION FOR WATER UTILITY PERMIT
DESIGNATING PLACEMENT OF UTILITY IN COUNTY RIGHT OF WAY
TO: THE COUNTY ENGINEER OF BRAZOS COUNTY, TEXAS
Pursuant to the Texas Utility Code, Section 181.024, comes now Wellborn SUD [company
name], hereinafter referred to as "Company" a Texas [stale) Corporation, with authority to transact business
in Texas, acting by and through its duly authorized representative, and hereby petitions the County Engineer for the
right to lay, construct, maintain, repair and/or operate a gas facility under, over, across and/or along certain County
Roads as shown on drawings and diagrams attached hereto and said location described as follows:
Facility to Cross Road
Length of TYPE OF CONSTRUCTION
Road Name & Block Number Crossing (CHECK ONE)
Bored Jacked Driven Cased
Deer Hill Drive 100, X X
Facility to Parallel County Road Within Right -Of -Way
Road Name and Block
Number From To Depth Distance
CONSTRUCTION TYPE
2" Diameter .10 wall Thickness 4" Encasement Pipe
Material Specification PVC
Maximum Operation Pressure 200 PSI
The location and description of the proposed installation and appurtenances must be fully shown on the attached
detailed drawings.
The Company shall commence actual construction/work in good faith within 60 days from the date of said permit and
shall complete said construction /Work within 15 working days. (COMPANY MUST FILL IN). If such
construction is not begun by the 60'11 -day, Company will be required to apply for a new permit.
Company declares that prior to filing this application, it has ascertained the location of all existing utilities, both aerial
and underground, and the filing of this application is prima facie evidence that the proposed installation will not
conflict with any existing utility.
A copy of this permit shall be kept at the job site any time work is being performed.
It is expressly stipulated that this Permit is a license for permissive use only and that the placing of facilities upon
public property pursuant to this permit shall not operate to create or vest any property right in said holder.
It is understood and agreed that the rights and privileges herein set out are granted only to the extent of the County's
right, title and interest in the land to be entered upon and used by the holder and the holder will at all times assume risk
of and indemnify, defend and save harmless Brazos County from and against any and all loss, damages, cost or
expense arising in any manner on account of the exercise or attempted exercise by said holder of the aforesaid rights
and privileges. - ---
Any deviation from these specifications must be approved by Brazos County Engineer's Office or its designated
representative.
Approval of County Engineer's Office may take as long as two weeks after complete application is received.
Applicant agrees to comply with all rules of the County Commissioners and the County Engineer in construction of
said installation attached hereto as BRAZOS COUNTY DESIGN STANDARDS AND SAFETY PRECAUTION
REQUIREMENTS FOR WORK CONDUCTED IN BRAZOS COUNTY RIGHTS OF WAY and incorporated
herein for reference.
In the event Company falls to obtain a perndt prior to the installation or does not install utilities in compliance with
Installation requirements set fordr Herein (i.e. depth, location, etc), Company assumes all financial responsibility for
damages and/or destruction oflines, cables, etc. based upon its fallure to comply wills Brazos County requirements
Applicant agrees Mat if Brazos County demonstrates a violation of the terns of this policy, Applicant stipulates that
requisiles jar Injunctive relief exist and that Brazos County is entitled to relief enjoining any conduct by applicant
which Is contriny to fire policies
Tlds permit is a revocable permit. Brazos County reserves the right to revoke this permit at any time, in the sole
discretion of Brazos County, for interests of public health, safety or tvelfare, or for fallure to repair any damages
upon demand, or for any other reason deemed sr j client by Brazos County.
In the event Company falls to comply with any or all of the requirements as set forth herein, lite County may take
such action as it deeins appropriate to compel compliance. The County Engineerfarteer retakes the right to revoke
ibis Permit by verbal notification to the Applicant/Conepany.
Failure to obtain Leis permit and/or notify the County Engineer's OffIce within 24 hours of beginning construction
shall constitute groundsfor job sliutdown.
By signing below, I certify that I am authorized to represent the Company listed below, and that the Company agrees
to the conditions/provisions included in this permit.
Wellborn SUD
Company Name
By:
Signature
Gene Manager.
Title
P.O. Box 250
Address
Wellborn Tx 77881
City State Zip
979-690-9799
Telephone Number
iul ia0wellbomsud.com
Email:
WATER UTILITY APPROVAL
Brazos County offers no objection to the proposed location of the utility in the County right of way as shown by
11
accompanying drawings and notice dated . 1 — o2Q � 19 except as noted below:
EXCEPTIONS:
(Month/DayNear)
Gbu�-KJ�
4.8.razos County Engineer
ROAD RIGHT -OF -MY 1(Cf
CENTER LINEOF COUNTY ROAD
0.
I - r'. SHOW NORTH ARROW
3 j Frb,M �n�ev R D R� �OF14MAYi �eede1( Deev, I I!, iYoLuP✓l I
Q 13W ft ?�e�.r 11 - o>r 1-Lqg k'-& bDee
PLAN VIEW
CENTER LINE
oe
s �
s�
OD Bove ev�t j
F UNT1f ROAD
TYPICAL SECTION
1. IN' CROSSING ROAD OR GOING ALONG RIGHT-OF-WAY, SHOW DEPTH & LOCATION OF CONSTRUCTION IN TYPE
SECTION & PLAN
2. IN PLAN VIEW SHOW DISTANCE FROM YOUR CONSTRUCTION TO NEAREST INTERSECTION
3. IF'ABOVE PLAN VIEW AND/OR TYPE SECTION IS NOT APPLICABLE, THEN SHOW APPLICABLE PLAN AND/ OR SECTION
K=. �.
2 F -
x Z
�kK
z
s=
r�
.F
i
iq
BRAZOS COUNTY. ROADWAY SAFETY AND ROAD
PRESERVATION STANDARDS FOR WORK CONDUCTED IN
BRAZOS COUNTY RIGHTS OF WAY
A. General Requirements
1. Adequate drainage shall be maintained in ditches at all times.
2. Permittee will use best management. practices ("BMP") (EPA and TCEQ both provide lists of examples of
BMPs) to minimize erosion and sedimentation resulting from the proposed. installation,
3. The permittee shall take precautions to avoid damage to property. All County Right of Way and property
shall be restored to its original condition, as far as practical, in the opinion of -the County.Engineer or
appointed representative.
4. The construction and maintenanoe.of such utility shall not interfere with. the property or rights of a prior
occupant.
5. Permittee shall not interfere with other utilities .located in the right of way. In the event damages occur,
permittee will be liable to the County or other utilities running through the right of way:
6. County Engineer shall determine whether or not:permittee's plans shall inconvenience the public.- If. is..
determined that inconvenience to the public exists,, then. the County Engineer will decide whether such
project will be allowed or if an alternative exists so as not to inconvenience the public.
B. Safely Rea uirements
1. Proper traffic control measures'must be put in place prior to beginning work and remain in place during'
the duration of the job. All traffic_ oontrol measures must follow the Texas Manual of Uniform Traffic
Control Devices (TMUTCD). ,See Traffic Control Requirements. below.
2. During construction, all safety regulations of the Texas. Department of Transportation shall be observed..
3. Permittee must take stick precautions and measures, including placing and displaying safety devices, ° as
may be necessary, in order to safely conduct the public through the project area: Company shall provide
flagmen, signs, signals or devices necessary to provide complete safety to the public.
4. Adequate provisions must be made to cause minimum inconveniences to traffic and adjacentproperly
owners. .
5. No cable, conduit ah&or pole line shall be laid, constructed, maintained and/or repaired so as toconstitute
a danger or hazard of any kind to persons or vehicles using sach�road. Any poles placed in the Right of. I
Way for future installation shall be placed at the back of the Right of Way.. Exceptions maybe approved.
by the County Engineer. .
C. Traffic Control Plan :
1: -A traffic control plan, pursuant to the TMUTCD.oe Engineered Traffic Control Plan must be provided
for the following:
a:: - Any construction (i.e, pit, excavation, hole) left open ovennight,,requires specific nighttime traffic
... ._.......... ...... _control measures pursuant to the TMUTCD; ___. ........ _......
Vol. Pg.
b.. If construction is within ten (10) feet of the roadway; or
C. Any work performed in the road right-of-way;
2. Plan.must be attached to the permit and kept at the job site any time work is being performed.
..3. Plan must set forth the time of completion for the job.
D. Design Standards
1. All overhead installations shall conform to clearance standards of the Texas Department of Transportation
and the pole be placed in the designated area for power specified as set forth in the Texas U411 ies Code,
Section 181.045.
2. All pole installation (including lighting) shall be placed at the backside of the Right of Way to ensure
safety to the public. Any pole placed in violation of this requirement will be required to be moved to the:,
appropriate location at the company's expense. Exceptions niay be approved by the County Engineer.
3. All underground installations shall (these are minimum depths — utility may place deeper):
a. be placed at a minimum depth of forty-eight (48) inches below the top of the pavement;
b. be at least thirty-six (36) inches below ditch flow line when installation is within the area measured
from tap of bank to top of bank;
c. beat least forty-eight (48) inches below ditch flow line if low pressure gas or petroleum lines. For
high pressure gas and petroleum lines, see High Pressure Pipelines requirements listed below;
d. not be closer than ten (10) feet from the edge of pavement. Exceptions may apply in rights of way of
less than 60 feet.
4. Water Lines: All water lines must be a minimum 36 -inches below the ditch flow line and cased.
Waterlines shall be cased if crossing under the roadway. :. .
5. Utilities in all new developments that have 60 feet or greater of right of way shall be installed within
designated locations based upon the type of utility. The locations shall be as follows: (measured from .
back afright -of-way)-
Power —
y).Power— 0 to 2. feet, nominally:]'
Phone — 2 to 4 feet, nominally 3'
Gas — 4 to 6 feet; n6minally.5'
Cable -6 t68 feet, nominally 7'
6. Utilities with less than 60 feet right-of-way in all. new developments -shall install the utility in a similar
manner as referenced in No. 3 above; however, the County Engineer or its designated representative Will,
provide Finad approval of each utility location.
-1- The length of any trench to be opened in advance ofthe pipe, conduit or ducts may not be longer than 400' .: .
if left open over night or _unattended.
8... Crossings under a county road shall
a. bebored or jacked. 'ABSOLUTELY NO OPEN CUTS WITHIN COUNTY ROAD PAVEMENT;'-.':`.'*.
b. -be .pressure grouted for the full.length of the Crossing if the annular space between -pipe and casing and
soi.1 exceeds'one:.(1) inch. Brazos County must be given 24 hours notice of pressure grouting
-operations and have the opportunity to have an inspector on site to observe:pressure grouting
- operations;.:.......w_-..
Vol.X04
... gig. 3a .. •
c. .TxDOT Standard Specification Item 47b shall be followed for all boring, jacking, tunneling and joints.:
-9. Bore Pits::
a. no pits shall remain open.longer than 2 days; .
b. all pits shall have proper traffic control measures in place. See Traffic Control Plan listed above.
c. pits shall NOT be located within ten (10) feet from the. edge of pavement without prior approval from
the CountyEngineer or his'' fepresentatiJe;
d. when pits are to remain open for more than 8 hours, due diligence will be Used in protecting the spoil
pile to prevent drainage problems;
e. based upon soil conditions, the County Engineer or his representative may require shoring to protect. ;
avement integrity; .
f. B1.ased upon soil conditions; the County Engineer or his'representative may require'pits be placed
further from the edge of road.
10. Any installation within ten (10) feet of edge of pavement shall meet the following:
a. location must be approved by the County Engineer or his representative
b. backfilled with cement stabilized material.
c. based upon soil conditions, the County Engineer or his representative may require shoring to
protect pavement integrity,
d. all excess water and mud shall be removed from the trench prior to backfilling. Any backfill placed'
? during a rainy period or of other times where excess water cannot be prevented from entering the
: trench will be considered TEMPORARY and shall be'replaced with PERMANENT cement stabilized
material as soon as weather permits;
e. all disturbed base andpavement materials shall be removed and restored to the satisfaction of the
County Engineer or his reprdi6htatives. '
f, no side or lateral tamping to fill voids under the base and pavement materials is allowed.
11. Company must be careful to not jeopardize the slope.or integrity of the shoulder of the road.. In the event. .
Company damages the slope, shoulder or any other portion of the right-of-way, Company will be
responsible for repairing the damage and replacinj the right=6f-vray.to the condition it was prior to
commencing construction.
12. Operation of construction and/or maintenance equipment on the traveled surface of any improved County., s
road ;will not be permitted, except in an'instance whereby the laying, construction, maintenance and/or
'repair_of cables, coiiduits and/or pole lines cannot be accomplished by any other method and in this event'
all such equipment shall be of the rubber tire variety. Appropriate traffic.control shall be provided.
. ..
meeting TMUTCD requirements.
13. In the event said construction and/or maintenance and/or repair requires Company to remove; cut or
jeopardize any section of the road (asphalt, ceinerit,'road base; etc.), Company will be required to
a performance bond:or letter of credit securing necessary repairs. Said bond amount will be determined.by
the'County Engineer.
14. The applicant shall submit a letter of "No Objection" from the Ari my Corps of Engineers for all
designated wetlands and -environmentally sensitive Iands.
E: EnrerPencv work
1.: In the.event Company is required to perform emergency services, that requires excavation in a County.
• Ri to.f Way, and unable to notify the County En ineer prioe to conducting emergency rePairs ,Com anY
. ' ..
Vnl eG �g. 33
shall.notify County: Engineer. within 24 hours of beginning construction/repairs. This will allow the
County Engineer's Office an opportunity to inspect the site to ensure the integrity of the County Right of ,
Way and traffic safety controls used.
F. Repairs to.existine facilities
I. Maintenance and/or repair to existing cables, conduits, and/orpole lines which require disturbance of the
soil, shall not be performed until plans describing such maintenance and/or repair have been approved by.
the County Engineer or its designated representative and a permit has been obtained.
G. Relocation of utilities.
I. When and if the County Engineer determines that it.is necessary for the construction, repair, improvement, :.
alteration or relocation -of all or any portion of said road, any or: all poles, wires, pipes, cables or other
facilities and appurtenances authorized hereunder, shall be removed from said road, or reset or relocated'; .
thereon, as required by the County Engineer within a reasonable: time as determined by the County
Engineer and Utility Company, and: at the expense of the Utility Company.
H. LkIs Pressure Pipelines
1. All utility Permits for high pressure pipelines (generally 60 PSI or greater), whether pertaining to
controlled access or'non-controlled access installations, should contain the following additional
information in the description of the permit.
-diameter
-wall thickness
-material specification =
-minimum yield strength
-maximum operation pressure of the pipeline .
2. With the exception of the maximum operation pressure of the pipeline, this information is to be supplied'.,
for both the carrier pipe and the casing.
3. Assurance must also be given that the installation material and design meet the minimum Federal Safety. .
Standards for Liquid and Gas Pipe Lines. Assurance must be provided on company letterhead and.signed,:
by an authorized representative of the company.
4. Petroleum Pipelines:
.Depth
Tyne of Piaeline (below deepest ditch grade) Special laeauiremeiats
Encased Pipe Less than 10' Must lie covered with.conerete pad at least 36" deep :
:. Encased Pipe _-Greater than.l0' No concrete pad required
Non Cased Pipe Less than 10' . Must be covered with concrete pad at least 4131 -deep . .
> Non -.Cased Pipe Greater than 10' - No concrete pad. required
Concrete pad shall be minimum of 3" thick and width shall be pipe diameter plus 18" minimum.
5. Under no circumstances will a pipeline be installed parallel to a County. Road, within the Right -of- .
Way... ransmission lines have been determined to be petroleum pipelines (which includes natural
gas lines) and shall not be parallei.to a County Road: -------
6.:
...,.
6.: Natural Gas Distribution is a line that serves the.:final.customer.._ :..
Vol. G 9
MASS
W.
NM
lor ti. Ir
f ,
�tnml
w.lau amts -lam
Me eta 161.1— ."r
Tow liavw
see.1cle it
41'
Is"I 1.
rate RIA
30, 1 Go,
.120,
ow—
M. 295' 245' 35' 1 70' -160'
ISmia 21A
WORK,
AMD
Iss'
45
=0
731
L -11S
%
459- M AM 45- : 90-
320'
SOV
a.
240-
sw. sic 660, SO, 130- .5m,
.
Epi
ME its- 14W 65- mar Inc. •
M.
760* 770' 940' Sir Iw 600.
i�GOAD
mal anm m 75' Issw W
.IMF
si 9
Ra3
a
I
C WORK 3
V
EV -
g8
IT,
MASS
W.
NM
lor ti. Ir
f ,
�tnml
w.lau amts -lam
Me eta 161.1— ."r
Tow liavw
see.1cle it
41'
Is"I 1.
rate RIA
30, 1 Go,
.120,
ow—
M. 295' 245' 35' 1 70' -160'
ISmia 21A
WORK,
AMD
Iss'
45
=0
731
L -11S
%
459- M AM 45- : 90-
320'
SOV
500' 90' NO* 100" 409-
240-
sw. sic 660, SO, 130- .5m,
.
Epi
ME its- 14W 65- mar Inc. •
M.
760* 770' 940' Sir Iw 600.
475'
mal anm m 75' Issw W
5411-d
si 9
IT,
IW% renlCl»
-LEG
16 sign Fmffieflo.
0A FRO
�
W.
NM
lor ti. Ir
f ,
�tnml
w.lau amts -lam
Me eta 161.1— ."r
Tow liavw
ISO, 1011 ISO,
30, 1 Go,
.120,
ow—
M. 295' 245' 35' 1 70' -160'
130
263, fts, 320, 40, 1 so, 240,
Iss'
45
=0
731
L -11S
%
459- M AM 45- : 90-
320'
SOV
500' 90' NO* 100" 409-
240-
sw. sic 660, SO, 130- .5m,
.
ME its- 14W 65- mar Inc. •
M.
760* 770' 940' Sir Iw 600.
475'
mal anm m 75' Issw W
5411-d
0 v�hlc .
w p1hw owl 0 1 is.. mill. N or-mlonal ftwi Mly
VL%b as LLcwh,or rmwtFT) 11-1111IM191 ollsotgrTi'i-poetei sbeadmu
A
21011
ttSg;E
Cw"WIMIPO d.9c.4 arm 00 m TYPICAL
1 41 lmoa of tic by um IOL
mu , mu,
MMM1117 no I*vlcm 3mat 097U111 SIASIM41111 "nww valowl
;k_r� 111 111 - ma 0 ot all 1 BI J 0!
of 30 fem its
co"a OL ?ad VW.- d
Ra
GENERAL NOTES
1. Flop attodW ft slipm %tV* Wto� ore FUUM 1
:;L Ali "drcim.h i moksm mosmso orm mv= true.
-dSated .1" " Irloar. )MCI -e"be ad"'d Woo @MW Ftft
d.
Is" vie 41st --
I no US 4195,010d q;
glob. Vshlole *113 112 erd MIA lahnilty rotalln flahhp,
Iarea ara'I M arem of It an to 1001110,V3 32 t0110 fart In at
Imut ammir armaing tw
Wi. 41111iffy"ar lho WL It egrbors we to law p*&Omt
1: a t low or -Ww%"CqwllIQn% nwirs ft Twil. _,M, I If,
sawt. Tive J laylom or ~ Clio a l3lr4.ftf= M be.
9"llfuw for Itle a I IoNTOIN to Tho. � N - -
alar 710a try tr
mulm. rmt to thm *=a Irs wsw to p plot a v1dir MR ep00% -
L IN TCUS-11 for fiftUldar %We at dlvldo higibaW am m.vj ad
b1-1 IDW IN
Lr 7. Imal" mxmtctn ar ~ SWIMS* N.Iff
rIll"110 life as rat-, , MtIaSmWVWl0or.
L MI -5 '20= VCW slow may be jaw 1,1 plow a, Cut.]*
ra
Stu"
cov.0" crans
ROAD L 'M 1= 1W %IV4 for 11CUldr W% In C011M, IOWI X0&o;16
HOW: R&AD
AHEAD END
UDWOU contract WWI%. amicid
pvtoot Mail. .malls for "Wolai; 00 fasw
Cn-2 M.
if$ Ift woiwt CD All, ima for u=
4V A &"loom.' Slww 0-4 Traffic NQW1 IM
ac ` " I MASS
40, x 48, cue not. vA * "", 0 .1
AHEAD
15"
"I x 2ft IIA 11, TAMQW§ftu OHM
n
TRAFFIC, CONTROL .PLAN
-ROAD*'."
..CONVENTIONAU
SHOULDERil!WoArK
TCF (2-101 TCP (2-1b) TCP (2-1c)
TCP(2-1).-12
WORK SPACE NEAR SHOULDER WORK .SPACE ON -SHOULDER WORK ': VEHICLES :ON SHOULDER'
Conventional.Roads XonventlanoV;Roads. Conventional Roads ttn
tMI
_j
r9-
SUNGARD PENTAMATION
PAGE NUMBER: 1
DATE: 08/29/2019
BRAZOS
COUNTY, TX
BJOURNII
TIME: 11:59:05
BATCH JOURNAL
ENTRY EDIT LIST
CONTROL NUMBER
J E NUMBER DESCRIPTION
PERIOD/YR
STATUS
RECORD FUND
DIV/FUND
ACCOUNT PROJECT ACCOUNT ITEM DESCRIPTION
DEBIT AMOUNT
CREDIT AMOUNT
09 -03 -CC
080108
B BENTHUL 8.13.14.19
11/19
COMPLETE
374935 3000
3000
20284700
B BENTHUL 8.13.14.19
218.71
374936 3000
424100
61801000
B BENTHUL 8.13.14.19
218.71
TOTAL
JOURNAL
ENTRY
218.71
218.71
09 -03 -CC
080109
C OLDHAM 8.11.15.19
11/19
COMPLETE
374937 0100
0100
20359500
C OLDHAM 8.11.15.19
126.00
374938 0100
28000100
61801000
C OLDHAM 8.11.15.19
126.00
TOTAL
JOURNAL
ENTRY
126.00
126.00
09 -03 -CC
080110
E BLANCO 8.5.7.19
11/19
COMPLETE
374939 0100
31000200
61801000 LDETN190
61801000
E BLANCO 8.5.7.19
286.20
374940 0100
0100
20121030
E BLANCO 8.5.7.19
286.20
TOTAL
JOURNAL
ENTRY
286.20
286.20
09 -03 -CC
080111
G WASHINGTON 8.$.7.1
11/19
COMPLETE
374941 0100
31000200
61801000 LCORT190 61801000
G WASHINGTON 8.5.7.1
638.01
374942 0100
0100
20118390
G WASHINGTON 8.5.7.1
638.01
TOTAL
JOURNAL
ENTRY
638.01
638.01
09 -03 -CC
080112
M SULLIVAN 8.5.7.19
11/19
COMPLETE
374943 0100
31000200
61801000 LDETN190
61801000 M SULLIVAN 8.5.7.19
286.20
374944 0100
0100
20124680
M SULLIVAN 8.5.7.19
286.20
TOTAL
JOURNAL
ENTRY
286.20
286.20
09 -03 -CC
080113
S GOERLITZ 8.19.20.1
11/19
COMPLETE
374945 0100
0100
20119170
5 GOERLITZ 8.19.20.1
231.38
374946 0100
24200100
61801000
S GOERLITz 8.19.20.1
231.38
TOTAL
JOURNAL
ENTRY
231.38
231.38
09 -03 -cc
080114
T NUNN 8.19.20.19
11/19
COMPLETE
374947 0100
0100
20125260
T NUNN 8.19.20.19
231.38
374948 0100
24200100
61801000
T NUNN 8.19.20.19
231.38
TOTAL
JOURNAL
ENTRY
231.38
231.38
TOTAL
CONTROL
NUMBER
2,017.88
2,017.88
TOTAL
REPORT
2,017.88
2,017.88
A"ROM
3 �1
Duane Peters lyate
County Judge
BRAZOS COUNTY, TEXAS
BUDGET AMENDMENT(S) FOR THE 2018-2019 BUDGET YEAR
NO. 18/19 48.1— 48.4
On this the 3rd day of September 2019 at a regular meeting of the Commissioners' Court, the following
members were present:
A. Duane Peters, County Judge, Presiding
B. Steve Aldrich, Commissioner, Precinct 1
C. Sammy Catalena, Commissioner, Precinct 2
D. Nancy Berry, Commissioner, Precinct 3
E. Irma Cauley, Commissioner, Precinct 4
F. Karen McQueen, County Clerk
The following proceedings were held:
THAT WHEREAS, on 3rd day of September 2019 the Court heard and approved a budget
amendment(s) for the 2015-2019 budget year for Brazos County, Texas; and
WHEREAS, expenditure is necessary due to the necessity to meet unusual and unforeseen conditions
which could not be reasonably included in the original budget adopted i l September 2018, the following
amendment(s) to the original budget are hereby authorized, as described on the attached page(s).
ADOPTED AND APPROVED this the 3rd day of September 2019.
THE COMNHSSIONERS COURT OF BRAZOS COUNTY, TEXAS.
By:
Duane Peters, County Judge
Original: County Clerk's Office and
Attached to the original budget
Vol. a�4 _ P9• -J-' --
BRAZOS COUNTY, TEXAS
BUDGET AMENDMENTS
No. 18/19 - 48.1
9/312019
FUND
DEPARTMENT
DIVISION CATEGORY DESCRIPTION Increase Decrease
Debt Service
Debt Service - Interest
Bond - Interest 2,786,004.00
Debt Service
Debt Service -Principal
Bond - Principal 2,786,004.00
Debt Service
Debt Service - Interest
C.O. - Interest 1,514,970.00
Debt Service
Debt Service -Principal
C.O. - Principal 1,514,970.00
DR/CR
ACCOUNT NAME
Increase
Decrease
4100
60002000
85100000
DR
Bond - Principal
2,786,004.00
4100
60000100
85110000
CR
Bond - Interest
2,786,004.00
4100
60002000
85200000
DR
C.O. - Principal
1,514,970.00
4100
60000100
85210000
CR
C.O. - Interest
Debt Service
1,514,970.00
Reallocation of bud et behveen principal and interest to adjust the accounts to properly reflect debt schedule allocation. Entered information incorrectly in budget module during preparation.
s
tr
81271201.9'.
von. aqq Pg. 3fd
FUND
DIV
ACCT
DR/CR
ACCOUNT NAME
Increase
Decrease
4100
60002000
85100000
DR
Bond - Principal
2,786,004.00
4100
60000100
85110000
CR
Bond - Interest
2,786,004.00
4100
60002000
85200000
DR
C.O. - Principal
1,514,970.00
4100
60000100
85210000
CR
C.O. - Interest
1,514,970.00
von. aqq Pg. 3fd
BRAZOS COUNTY, TEXAS
BUDGET AMENDMENTS
No. 18119 - 48.2
9/3/2019
FUND DEPARTMENT DIVISION CATEGORY DESCRIPTION Increase Decrease
Grant Fund NRA - Constable Pct. 03 Minor Acquisitions 233.32
Grant Fund NRA - Constable Pct. #3 Departmental Support 233.32
NRA Grant - Constable Pct. k3
Reallocation of funds to the appropriate department's account to purchase ammo.
i
z
:Departrnt nt,Approgal
F.orAelcatm'Pur usnl ..
IMAIR
FUND
DIV
ACCT
DR/CR
ACCOUNT NAME
Increase Decrease
3000
303001
67320000
CR
Firearms
233.32
3000
303001
60320000
DR
Firearms Readiness
233.32
-IVI'119 -
voi 011 Pg.
BRAZOS COUNTY, TEXAS
BUDGET AMENDMENTS
No. 18119 - 48.3
11311900
FUND DEPARTMENT DIVISION CATEGORY DESCRIPTION Increase Decrease
General Fund Sherriff Administration Departmental Support 2,000.00
General Fund Sherriff Administration Professional Services 2.000.00
Sheriff Administration
Reallocation of funds to the appropriate de artmenfs account to cover the expenses on Sexual Assault Exams.
nrtP
8/2812019'
1`draceountm 'Pur
„`sesOnl • r �_..u..:= � ..�.._., : _:�. s.. .... _.�� _�_
�r���;�."-#,�. ... ,: _.... �� �" .._
FUND
DIV ACCT
DR/CR
ACCOUNT NAME Increase Decrease
0100
28000100 61110000
CR
Conference & Seminars 2,000.00
0100
28000100 72150000
DR
Clinic Services 2,000.00
Vol.Pg.�—
BRAZOS COUNTY, TEXAS
BUDGET AMENDMENTS
No. 18119 - 48.4
113H Ann
FUND DEPARTMENT DIVISION CATEGORY DESCRIPTION Increase Decrease
County Clerk
Management County Clerk Management
Fund Fund De artmentaiSupport 2.690.00
County Clerk
Management County Clerk Management
Fund Fund Minor Acquisitions 2.690.00
County Clerk Records Management Fund
Reallocation of funds to the appropriate department's account to purchase a paper shredder.
_, = -
For;.lccounhnc :: a3_� .posy _ e�°� � $ �Y���fr=,
u�
FUND
DIV
ACCT
DR/CR
ACCOUNT NAME
Increase Decrease
2000
21005000
61130000
CR
Contingency
2,690.00
2000
21005000
67256000
DR
Equipment - Other
2.690.00
PERSONNEL
CHANGE OF STATUS REQUESTS
Commissioner Court Date: September 03, 2019
Department Submitting Information: Human Resources
Purpose of Submissions: Consider and Take Action on Change Requests
Department Submitting Employee Request Action Requested
Request(s) Applies To
Exposition Complex Rueda, Guadalupe Employment
Facilities Services Gean, Ryan Employment
Road and Bridge Mendez Jr., Benito Separation*
Sheriffs Administratoin Basey, Jerry Change of Status
Sheriffs Office —Jail Division Nobles, Linda Change of Status
Tax Office Chavez-Valdovinos, Berenice Change of Status
Approved in Commissioners' Court: September 03.2019 :
County Judge's or Commissioner's Signature:
(This Copy to be attached to minutes)