Owner-Contractor Construction Agreement This agreement is entered into as of ( Effective Date ) between Lone Star College (the "College"), a public junior college pursuant to Section 130.004 of the Texas Education Code, and ( Contractor ). WITNESSETH, that for and in consideration of the promises of the parties herein and the mutual covenants set forth in this contract, the College and the Contractor agree to be legally bound as follows: 1. SCOPE OF WORK. Contractor agrees to commence and complete all services set forth in or reasonable inferred from attached hereto as Exhibit A. All work shall be completed in accordance with the construction documents or guidelines provided by the College, if any. 2. TERM. This contract shall become effective on the issuance of a College Purchase Order and shall continue in effect until. Contractor shall achieve Substantial Completion no later than. Substantial completion is the stage in the project where the work is sufficiently complete in accordance with the construction documents so the College can utilize the work for its intended use. 3. TERMINATION. The College reserves and has the right and privilege of canceling, suspending, or abandoning the execution of all or any service in connection with this Agreement at any time upon three (3) days written notice to the Contractor. The Contractor may terminate this Agreement upon thirty (30) days written notice to the College should the College substantially fail to perform their obligations under the terms of this Agreement. The College's liability in case of early termination will be limited to paying for the work already performed and the expenses already incurred as of the date of the termination, less any and all foreseen or unforeseen damages sustained by the College as a result of any default or consequence of termination. 4. COMPENSATION. For the services to be provided hereunder the College shall pay Contractor a fee not to exceed dollars ($ ). This amount includes an owner s allowance of $. This allowance is for the College to cover unexpected expenses incurred during the project. Any cost associated with a change proposal request will be paid out of the owner s allowance. Payments will be made progressively within forty-five (45) days of receipt of proper invoices. 5. INSURANCE. Contractor shall secure and maintain in force, until final acceptance for the project and through any warranty period, the following types and amounts of insurance. The insurance shall be evidenced by delivery to the College of certificates of insurance executed by the insurer or its authorized agent stating coverages, limits, expiration dates and compliance with all applicable required provisions. The Contractor shall update all expired policies prior to submission for monthly payment. Failure to update policies shall be reason for withholding of payment until renewal is provided to the College. Send the insurance certificate to the Lone Star College, c/o Purchasing Department, 5000 Research Forest Drive, The Woodlands, Texas 77381. Page 1 of 7
Policies must include the following clauses: 1) Endorsement to provide a minimum of thirty (30) days advance notice of cancellation, non-renewal, or material change of policies. Reference to the Cancellation endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance. 2) This insurance shall apply as primary insurance/non-contributory with respect to any other insurance or self-insurance programs available to the College. Reference to the as primary/non-contributory endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance. 3) The College shall be named as an Additional Insured on a Primary and Non-Contributory basis for ongoing and completed operations on all policies except workers compensation and to the full extent allowable by law. Reference to the Additional Insured endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance. 4) The workers compensation and employers liability policy will provide a waiver of subrogation in favor of the College. 5) Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall require each subcontractor performing work under the Contract, at the subcontractor's own expense, to maintain during the term of the Contract, the same stipulated minimum insurance including the required provisions and additional policy conditions as shown below. As an alternative, the Contractor may include its subcontractors as additional insureds on its own coverage as prescribed under these requirements. The Contractor's certificate of insurance shall note in such event that the subcontractors are included as additional insureds and that Contractor agrees to provide Workers Compensation for the subcontractors and their employees. The Contractor shall obtain and monitor the certificates of insurance from each subcontractor in order to assure compliance with the insurance requirements. The Contractor must retain the certificates of insurance for the duration of the Contract plus 5 years and shall have the responsibility of enforcing these insurance requirements among its subcontractors. The College shall be entitled, upon request and without expense, to receive copies of these certificates. Coverage shall be written on an occurrence basis by companies authorized and admitted to do business in the State of Texas and rated A- VII or better by A.M. Best Company or otherwise acceptable to the College as follows: 1. Commercial General Liability Insurance. Shall be in place through any warranty period and will include Independent Contractor's liability, Elevators, Products and Completed Operations, Explosion, Collapse, Underground Hazards and Contractual Liability, covering, but not limited to, the liability assumed under the indemnification provisions of this contract, fully insuring Contractor's (or Subcontractors) liability for bodily injury and property damage with a combined bodily injury (including death) and property damage minimum limit of: $1,000,000 per occurrence $2,000,000 general aggregate Page 2 of 7
$2,000,000 products and completed operations aggregate 2. Workers' Compensation. Insurance with limits as required by the Texas Workers Compensation Act, with the policy endorsed to provide a waiver of subrogation as to the College, Employer's Liability insurance of not less then: $1,000,000 each accident $1,000,000 disease each employee $1,000,000 disease policy limit A Waiver of Subrogation in favor of Lone Star College with respect to injuries/illness to contractor's employees is required. A copy of the endorsement to policy must be submitted to the College ORM prior to commencement of any work or service pursuant to any contract. Non-subscribers may be required to provide proof of financial strength by providing a letter of credit from a financial institution or other such proof of financial assurance. Self-Insured entities will be required to provide a copy of their Certificate of Authority to Self-Insure as provided by the Texas Department of Insurance, Division of Workers' Compensation. 3. Comprehensive Automobile Liability. Insurance covering owned, hired, and non-owned vehicles, with a combined bodily injury (including death) and property damage minimum limit of $1,000,000 per occurrence. No aggregate shall be permitted for this type of coverage. Such insurance is to include coverage for loading and unloading hazards. 4. Excess (Umbrella) Liability Insurance. The Contractor shall obtain, pay for and maintain excess/umbrella liability insurance during the contract term, insuring the Contractor (or subcontractor) for an amount of not less $2,000,000 and that provides coverage at least as broad as and applies in excess and follows form of the primary liability coverages required hereinabove. The policy shall provide "drop down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. The required Commercial General Liability, Commercial Automobile and Employers Liability limits may be accomplished through a combination of primary and excess/umbrella liability policies written on a follow-form basis. 5. Professional Liability Insurance (if required): The Contractor shall provide and maintain, and shall require all subcontractors to provide and maintain, insurance to cover claims for negligent acts and/or errors and/or omissions that may arise from the work performed by the Design Professional, subcontractors, or anyone directly or indirectly employed by them. Professional Liability Insurance (Occurrence Form) or if the insurance is written on a claims-made form, shall continue for ten (10) years following the completion of the performance or the attempted performance of the provisions of this agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the effective date of this agreement. If the coverage is canceled or non-renewed and not replaced with another claims-made policy form with a retroactive date prior to the effective date or coinciding with the effective date of this agreement the Contractor must purchase Extended Reporting ( Tail ) coverage for a minimum of ten (10) years following the completion of the performance or the attempted performance of the provisions of this agreement, providing coverage in the amount of a) For a major project or continuing services projects where the aggregate project limit is greater than $2,000,000: $5,000,000 per claim and aggregate liability limit is required; b) For a major project or Page 3 of 7
continuing services projects where the aggregate project limit is $2,000,000 or less: $2,000,000 per claim and aggregate liability limit is required. 6. CHANGE ORDERS. If there is a change in the project scope, a change order or change proposal request must be approved by the College Project Director and engineer before Contractor proceeds with the changes. The change order or change proposal request must state the change in the project scope, the amount of the adjustment in the contract sum, if any, and the extent of the adjustment in the contract time, if any. 7. DISPUTE RESOLUTION PROCESS. The dispute resolution process provided for in Chapter 2260 of the Texas Government Code shall be used, as further described herein, by the College and Contractor to attempt to resolve any claim for breach of contract made by Contractor: a. Contractor's claims for breach of this contract that the Parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Chapter 2260, subchapter B, of the Government Code. To initiate the process, Contractor shall submit written notice, as required by subchapter B, to [for the College, the Chancellor; for component institutions, the President] or his/her designee. Said notice shall specifically state that the provisions of Chapter 2260, subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of the College and Contractor otherwise entitled to notice under the Parties' contract. Compliance by Contractor with subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, subchapter C, of the Government Code. b. The contested case process provided in Chapter 2260, subchapter C, of the Government Code is Contractor's sole and exclusive process for seeking a remedy for any and all alleged breaches of contract by the College if the Parties are unable to resolve their disputes under subparagraph (a) of this paragraph. c. Compliance with the contested case process provided in subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this contract by the College nor any other conduct of any representative of the College relating to the contract shall be considered a waiver of sovereign immunity to suit. d. The submission, processing and resolution of Contractor's claim is governed by the published rules adopted by the Attorney General of the State of Texas pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended. These rules are found at 1 T.A.C. Part 3 Chapter 68. e. Neither the occurrence of an event nor the pendency of a claim constitutes grounds for the suspension of performance by the Contractor, in whole or in part. 8. DEFAULT AND LIQUIDATED DAMAGES. IF THE CONTRACTOR FAILS TO PROSECUTE THE WORK WITH DILIGENCE AND FAILS TO COMPLETE THE WORK WITHIN THE SPECIFIED TIME OF THIS CONTRACT, OR ANY EXTENSION THEREOF, INCLUDING THE CORRECTION OF DEFICIENCIES FOUND DURING THE FINAL INSPECTION, CONTRACTOR SHALL PAY TO THE COLLEGE AS LIQUIDATED DAMAGES, AND NOT AS A PENALTY, THE SUM OF $ PER DAY FOR EACH CALENDAR DAY BEYOND THE COMPLETION DATES SET FORTH HEREIN. Page 4 of 7
9. DELAY. Should the Contractor be delayed in the prosecution or completion of the WORK by other contractors employed by the College, or by any damage caused by fire, weather conditions or casualty for which the Contractor is not responsible, or by general strikes or lockouts caused by reason of any or all of the causes aforesaid, an extended period shall be determined and fixed at the sole discretion of the College; but no such allowance shall be made unless a claim therefore is presented in writing to the College within ten (10) days of the occurrence of such delay. Contract time may be extended only through a written change order. 10. NOTICES. All notices, requests, demands and other communications required hereunder shall be written and shall be deemed to have been personally delivered or when deposited in a regularly maintained receptacle of the United States Postal Service, postage prepaid, registered or certified, return receipt requested, properly addressed to: College: Contractor: 11. INDEMNIFICATION. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the College, its Board of Trustees, its member colleges, agents, employees, officers, directors, volunteers, administrators, successors and assigns from and against all claims, injuries, damages, losses, costs, liens, expenses fees, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to reasonable attorneys' fees, whether arising before, during or after completion of the Contractor's work, caused by or arising out of or resulting from performance of work, of whatever nature, provided that any such claim, damage, loss or expense (l) is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any act or omission by the Contractor, and subcontractor, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, but only to that extent, proportion or degree that the claims, damages, losses and expenses are attributable to the act or omission of the Contractor or its subcontractors. IN THE EVENT Contractor AND OWNER ARE FOUND JOINTLY LIABLE BY A COURT OF COMPETENT JURISDICTION, LIABILITY WILL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE STATE UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. 12. CORPORATE FRANCHISE TAX. Contractor (or Seller or other designation of contracting party) certifies that, upon the effective date of this agreement, either (1) it is not delinquent in payment of State of Texas corporate franchise taxes, or (2) it is not subject to the payment of such taxes. Contractor (or other designation of contracting party) agrees that any false statement with respect to franchise tax status shall be a material breach hereof, and the College shall be entitled to terminate this Agreement upon written notice thereof to Contractor (or other designation). Page 5 of 7
13. COMPLIANCE. Contractor agrees to abide by and perform the work under this Contract in compliance with all applicable City, State of Texas and Federal laws, rules, regulations and policies. While on the premises of the College or its components, Contractor agrees to abide by the policies and procedures of the College and its components relative to conduct on its premises. 14. PROJECT CLOSE OUT. If applicable, before the final payment is processed, Contractor shall develop a punch list with the College and the College s engineer, if any. Contractor shall complete all punch list items within days from the date of the punch walk. After punch list items are confirmed to be complete by the College and the College s engineer, if any. Contractor shall supply the College with an affidavit from each subcontractor stating that all invoices incurred as a result of this project have been paid in full. Contractor shall provide the College with a notarized affidavit stating that all materials used on this project do not contain asbestos, lead, and PCB. 15. WARRANTIES. Contractor warrants to the College that all materials and equipment furnished and installed under this contract will be new and of good quality unless otherwise permitted by the construction documents. The work shall be free from defects and the work shall conform with the requirements of the construction documents. Work not conforming to these requirements shall be considered defective and shall be replaced by the Contractor at the Contractor s expense promptly upon receiving notice by the College. Before final payment is released, Contractor shall provide all written warranties as required in the specifications. 16. RETAINAGE. If applicable, the Contractor shall receive payment less percent ( %) retainage. The retained payment shall be released by the College upon completion of all work, acceptance, issuance of full certificate of occupancy and receipt by the College of all certified close out documents as provided in the Contract Documents. The retainage amount will be deposited in an interest bearing account in accordance with applicable law. 17. MISCELLANEOUS. a. It is Contractor s responsibility to notify the College in writing two days prior to using any materials producing toxic odors or fumes which could affect users in the project area or areas connected through a common HVAC system. If Contractor does not notify the College in accordance with this agreement, Contractor will be solely responsible for any damages or claims that result from the release of the toxic odors or fumes. b. Contractor shall supply Material Safety Data Sheets (MSDS) to the College on all materials used on this project prior to the arrival of the materials on the job site. c. Contractor shall procure all necessary building permits required for performance under this agreement and shall post permits at project site as required by law. Contractor shall obtain all required inspections. d. Contractor hereby certifies that if any of its principals or owners is a child support obligor, he/she is no more than 30 days delinquent in paying child support. e. Nothing in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against the College. It is agreed by the College and the Contractor that this Agreement is intended for the benefit of the College and Contractor only and not Page 6 of 7
for the benefit of architects, engineers, contractors, subcontractors, including suppliers or any of their employees or agents, or any other person. f. This Agreement shall be governed by the laws of the State of Texas. Its validity and the interpretation of its terms shall be governed by the laws of the State of Texas. If any provisions of this contract are determined to be invalid or unenforceable by a court of competent jurisdiction, the remaining terms and conditions hereof shall remain in full force and effect. It is mutually agreed by the parties that if litigation should arise concerning all or any part of this contract, venue shall lie in Harris County, Texas. g. Contractor agrees that all work on the project pursuant to this contract shall be at the Contractor s exclusive risk until final and complete acceptance thereof by the College, and in case of any loss or damage thereto, in whole or in part, prior to such acceptance, except for that caused by the negligence of the College, such loss and/or damage shall be borne by the Contractor. h. Contractor agrees to secure a payment and/or a performance bond in accordance with Texas Government Code 2253.021 upon execution of this contract. The Payment & Performance Bonds must be delivered to the College within 10 days after Contractor receives the purchase order for the services from the College. The services cannot be manned until the Payment & Performance Bonds have been received by the College. The bonding company must be acceptable to the College. i. This instrument, Exhibit A, and the College s Uniform General and Supplementary General Conditions (if applicable) which is attached hereto and incorporated herein as if copied verbatim contains the entire Agreement between the College and the Contractor and can be modified only by written instrument signed by authorized representatives of the College and the Contractor. In the case of any conflict between these documents, this instrument will govern. Executed in the year and day referenced above. LONE STAR COLLEGE CONTRACTOR Signature Date Signature Date Printed Name Printed Name Title Title Note: Modification of this Form requires approval of OGC. Page 7 of 7