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24-R-108 Riata Lift Station construction projectRESOLUTION NO. 24-R-108 A RESOLUTION AUTHORIZING A CONSTRUCTION CONTRACT WITH KEYSTONE CONSTRUCTION SERVICES, LP RELATING TO THE RIATA LIFT STATION RELOCATION PROJECT WHEREAS, The City staff of the City of Schertz (the "City") has recommended that the City accept the bid from Keystone Construction Services, LP relating to the Riata Lift Station Relocation Project and approve the project expenditures; and WHEREAS, City staff has received qualifications indicating that Keystone Construction Services, LP is qualified to provide such services for the City; and WHEREAS, the project will be initially funded from the Sewer Reserves but will be reimbursed by TxDOT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the attached contract with Keystone Construction Services, LP for an amount of $2,545,375.00 with an amount not to exceed $2,800,000.00. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this day of . jI-Ju�024. 1 *1 ATTEST: Sheila Edmondson,'Cit, 50506221.1 Secretary CITY OF SCHERTZ, TEXAS Ra. h utierre , ayor -2- AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) THIS AGREEMENT is by and between City of Schertz Construction Services, LP Owner and Contractor hereby agree as follows: ARTICLE 1— WORK ("Owner") and ("Contractor"). 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Abandonment and relocation of the City's existing Riata Lift Station and associated gravity main, force main, and appurtenances. ARTICLE 2 —THE PROJECT 2.01 The Project, of which the Work under the Contract Documents is a part, is generally described as follows: Riata Lift Station and Off -Site Utilities Relocation Project. ARTICLE 3 — ENGINEER 3.01 The part of the Project that pertains to the Work has been designed by Engineer. 3.02 The Owner has retained Utilities Engineering Group ("Engineer") to act as Owner's representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 —CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. Contract Times: Days B. If a contract is awarded for multiple schedules, the Work is expected to be substantially completed within 300 calendar days after the date when the Contract Times commence to run as provided in Paragraph 4.01 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 15.06 of the General Conditions within 360 calendar days after the date of substantial completion. The number of days to substantial completion will be negotiated with the successful bidder and shall be within the range listed in this paragraph. If multiple schedules are awarded, the following Contract Times will apply for each schedule. C. Parts of the Work shall be substantially completed on or before the following Milestone(s): 1. E1CDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 7 4.02 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial and other losses if the Work is not completed and Milestones not achieved within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with the Contract. The Contractor acknowledges and recognizes that the Owner is entitled to full and beneficial occupancy and use of the completed work following expiration of the Contract Time. The Contractor further acknowledges and agrees that, if the Contractor fails to substantially, or cause the Substantial Completion of any portion of the Work within the Contract time, the Owner will sustain actual damages as a result of such failure. The exact amount of such damages will be difficult to ascertain. Therefore, the Owner and Contractor agree that, if the Contractor shall neglect, fail, or refuse to achieve substantial completion of the Work by the Substantial Completion date, subject to proper extension granted by the Owner, then the Contractor agrees to pay the Owner the sum of: 1. Six hundred dollars ($600.00) per day for each day in which such Work is not completed, not as penalty, but as liquidated damages, for the damages ("Liquidated Damages") that would be suffered by Owner as a result of delay for each and every calendar day that the Contractor shall have failed to have completed the Work as required 4erein. The Liquidated Damages shall be in lieu of any and all other damages which may be incurred by Owner as a result of the failure of Contractor to complete within the Contract Time. ARTICLE 5 — CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents the amounts that follow, subject to adjustment under the Contract: A. For all Work, at the prices stated in Contractor's Bid, attached hereto as an exhibit. The extended prices for Unit Price Work set forth as of the Effective Date of the Contract are based on estimated quantities. As provided in Paragraph 13.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer. ARTICLE 6 — PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 15 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 6.02 Progress Payments, Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment on a monthly basis during performance of the Work as provided in Paragraph 6.02.A.1 below, provided that such Applications for Payment have been submitted in a timely manner and otherwise meet the requirements of the Contract. All such payments will be measured by the Schedule of Values established as provided in the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no Schedule of Values, as provided elsewhere in the Contract. EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright 90 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 7 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Owner may withhold, including but not limited to liquidated damages, in accordance with the Contract a. 95 percent of Work completed (with the balance being retainage); and b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to the full amount of the contract, less such amounts set off by Owner pursuant to Paragraph 15.01.E of the General Conditions, and less such amounts as the Engineer shall determine for incomplete Work, retainage applicable to such work and unsettled claims. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 15.06 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 15.06. ARTICLE 7 — INTEREST 7.01 All amounts not paid when due shall bear interest at the maximum rate allowed by law, not to exceed 1% per month. ARTICLE 8 — CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Contract, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents. B. Contractor has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Contractor is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or adjacent to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings, and (2) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site that have been identified in the Supplementary Conditions, especially with respect to Technical Data in such reports and drawings. E. Contractor has considered the information known to Contractor itself; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site -related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 7 of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor; and (3) Contractor's safety precautions and programs. F. Based on the information and observations referred to in the preceding paragraph, Contractor agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. J. Contractor's entry into this Contract constitutes an incontrovertible representation by Contractor that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents. ARTICLE 9 — CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages A-1 to'A-7, inclusive). 2. Performance bond (pages PB-1 to';PB-3, inclusive). 3. Payment bond (pages OYB-1 to YB-3, inclusive). 4. General Conditions consisting of 58 pages of a modified version of EJCDC C-700, having a title page with the general title: STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT. 5. Supplementary Conditions (pages SC-1 to SC-16, inclusive). 6. Specifications as listed in the table of contents of the Project Manual. 7. Drawings (not attached but incorporated by reference) consisting of _ sheets with each sheet bearing the following general title: 8. Addenda (numbers, —tom inclusive). 9. Exhibits to this Agreement (enumerated as follows): a. Contractor's Bid (pages BF-1 to BF-14, inclusive). 10. The following which may be delivered or issued on or after the Effective Date of the Contract and are not attached hereto: a. Notice to Proceed. b. Work Change Directives. C. Change Orders. d. Field Orders. EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of civil Engineers. All rights reserved. Page 4 of 7 B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions. ARTICLE 10—MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractor's Certifications A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition; EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 5 of 7 3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. B. Certifications required by State Law 1. Non -Boycott of Energy. Contractor certifies that either (a) it does not boycott Israel and will not boycott energy companies; and (b) will not boycott energy companies during the term of the contract resulting from this solicitation. Contractor shall state any facts that make it exempt from the boycott certification as an attachment to this agreement. 2. Non -Boycott of Firearm Entity. Contractor certifies that it: (a) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (b) will not discriminate during the term of the contract against a firearm entity or firearm trade association . 10.06 Other Provisions A. Owner stipulates that if the General Conditions that are made a part of this Contract are based on EJCDC® C-700, Standard General Conditions for the Construction Contract, published by the Engineers Joint Contract Documents Committee®, and if Owner is the party that has furnished said General Conditions, then Owner has plainly shown all modifications to the standard wording of such published document to the Contractor, through a process such as highlighting or "track changes" (redline/strikeout), or in the Supplementary Conditions. EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 6 of 7 IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. This Agreement will be effective on (which is the Effective Date of the Contract). OWNER: CONTRACTOR: City of Schertz Keystone Construction Services, LP By: Title: City Manager Attest: Title: Address for giving notices: 1400 Schertz Parkway Schertz, TX 78154 (If Owner is a corporation, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of this Agreement.) By: Title: (If Contractor is a corporation, a partnership, or a joint venture, attach evidence of authority to sign.) Attest: Title: Address for giving notices: License No.: (where applicable) EJCDC® C-520 (Rev. 1), Agreement Between Owner and Contractor for Construction Contract (Stipulated Price). Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 7 of 7 FJCDC ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE CONTRACTOR (name and address): OWNER: City of Schertz 10 Commercial Place, Bldg 2 Schertz, Texas 78154 PERFORMANCE BOND SURETY (name and address of principal place of business): CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: Description (name and location): Riata Lift Station and Off -Site Utilities Relocation Project BOND Bond Number: Date (not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Modifications to this Bond Form: ❑ None ❑ See Paragraph 16 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL (seal) Contractor's Name and Corporate Seal Bv: Signature Print Name Title Attest: Signature SURETY (seal) Surety's Name and Corporate Seal By: Signature (attach power of attorney) Print Name Title Attest: Signature Title Title Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. EJCDC® C-630, Performance Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 1 of 3 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Paragraph 3. 3. If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after: 3.1 The Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Paragraph 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor, and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; 3.2 The Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and 3.3 The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. 4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. S. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owners concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable promptness under the circumstances: 5.4.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or 5.4.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. 6. If the Surety does not proceed as provided in Paragraph 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Paragraph 5.4, and the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication for: 7.1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 7.2 additional legal, design professional, and delay costs resulting from the Contractors Default, and resulting from the actions or failure to act of the Surety under Paragraph 5; and 7.3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the Surety's liability is limited to the amount of this Bond. 9. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors, and assigns. EJCDC® C-610, Performance Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2 of 3 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 11. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law, the minimum periods of limitations available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12, Notice to the Surety, the Owner, or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14. Definitions 14.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made including allowance for the Contractor for any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 14.2 Construction Contract: The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. 14.3 Contractor Default: Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. 14.4 Owner Default: Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 14.5 Contract Documents: All the documents that comprise the agreement between the Owner and Contractor. 15. If this Bond is issued for an agreement between a contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 16. Modifications to this Bond areas follows: EJCDC® C-610, Performance Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 3 of 3 EJCDC ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE CONTRACTOR (name and address): PAYMENT BOND SURETY (name and address of principal place of business): OWNER: City of Schertz 10 Commercial Place, Bldg 2 Schertz, Texas 78154 CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: Description (name and location): Riata Lift Station and Off -Site Utilities Relocation Project BOND Bond Number: Date (not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Modifications to this Bond Form: ❑ None ❑ See Paragraph 18 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL (seal) Contractor's Name and Corporate Seal Bv: Signature Print Name Title Attest: Signature SURETY Surety's Name and Corporate Seal By: Signature (attach power of attorney) Print Name Title Signature Title Title EJCDC® C-615, Payment Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 1 of 3 (seal) Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner to pay for labor, materials, and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies, and holds harmless the Owner from claims, demands, liens, or suits by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 13) of claims, demands, liens, or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, and tendered defense of such claims, demands, liens, or suits to the Contractor and the Surety. 4. When the Owner has satisfied the conditions in Paragraph 3, the Surety shall promptly and at the Surety's expense defend, indemnify, and hold harmless the Owner against a duly tendered claim, demand, lien, or suit. 5. The Surety's obligations to a Claimant under this Bond shall arise after the following: 5.1 Claimants who do not have a direct contract with the Contractor, 5.1.1 have furnished a written notice of non- payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and 5.1.2 have sent a Claim to the Surety (at the address described in Paragraph 13). 5.2 Claimants who are employed by or have a direct contract with the Contractor have sent a Claim to the Surety (at the address described in Paragraph 13). 6. If a notice of non-payment required by Paragraph 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Paragraph 5.1.1. 7. When a Claimant has satisfied the conditions of Paragraph 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and 7.2 Pay or arrange for payment of any undisputed amounts. 7.3 The Surety's failure to discharge its obligations under Paragraph 7.1 or 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Paragraph 7.1 or 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. 8. The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Paragraph 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 9. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 10. The Surety shall not be liable to the Owner, Claimants, or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to or give notice on behalf of Claimants, or otherwise have any obligations to Claimants under this Bond. EJCDC® C-615, Payment Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2 of 3 11. The Surety hereby waives notice of any change, including 7. The total amount of previous payments changes of time, to the Construction Contract or to related received by the Claimant; and subcontracts, purchase orders, and other obligations. 8. The total amount due and unpaid to the Claimant for labor, materials, or equipment 12. No suit or action shall be commenced by a Claimant under furnished as of the date of the Claim. this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the 16.2 Claimant: An individual or entity having a direct Construction Contract is located or after the expiration of contract with the Contractor or with a one year from the date (1) on which the Claimant sent a subcontractor of the Contractor to furnish labor, Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or materials, or equipment for use in the performance (2) on which the last labor or service was performed by of the Construction Contract. The term Claimant anyone or the last materials or equipment were furnished also includes any individual or entity that has by anyone under the Construction Contract, whichever of rightfully asserted a claim under an applicable (1) or (2) first occurs. If the provisions of this paragraph mechanic's lien or similar statute against the real are void or prohibited by law, the minimum period of property upon which the Project is located. The limitation available to sureties as a defense in the intent of this Bond shall be to include without jurisdiction of the suit shall be applicable. limitation in the terms of "labor, materials, or equipment" that part of the water, gas, power, 13. Notice and Claims to the Surety, the Owner, or the light, heat, oil, gasoline, telephone service, or Contractor shall be mailed or delivered to the address rental equipment used in the Construction shown on the page on which their signature appears. Contract, architectural and engineering services Actual receipt of notice or Claims, however accomplished, required for performance of the work of the shall be sufficient compliance as of the date received. Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may 14. When this Bond has been furnished to comply with a be asserted in the jurisdiction where the labor, statutory or other legal requirement in the location where materials, or equipment were furnished. the construction was to be performed, any provision in this Bond conflicting with said statutory or legal 16.3 Construction Contract: The agreement between requirement shall be deemed deleted herefrom and the Owner and Contractor identified on the cover provisions conforming to such statutory or other legal page, including all Contract Documents and all requirement shall be deemed incorporated herein. When changes made to the agreement and the Contract so furnished, the intent is that this Bond shall be construed Documents. as a statutory bond and not as a common law bond. 16.4 Owner Default: Failure of the Owner, which has 15. Upon requests by any person or entity appearing to be a not been remedied or waived, to pay the potential beneficiary of this Bond, the Contractor and Contractor as required under the Construction Owner shall promptly furnish a copy of this Bond or shall Contract or to perform and complete or comply permit a copy to be made. with the other material terms of the Construction Contract. 16. Definitions 16.5 Contract Documents: All the documents that 16.1 Claim: A written statement by the Claimant comprise the agreement between the Owner and including at a minimum: Contractor. 1. The name of the Claimant; 17. If this Bond is issued for an agreement between a 2. The name of the person for whom the labor contractor and subcontractor, the term Contractor in this was done, or materials or equipment Bond shall be deemed to be Subcontractor and the term furnished; Owner shall be deemed to be Contractor. 3. A copy of the agreement or purchase order pursuant to which labor, materials, or 18. Modifications to this Bond are as follows: equipment was furnished for use in the performance of the Construction Contract; 4. A brief description of the labor, materials, or equipment furnished; 5. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; 6. The total amount earned by the Claimant for labor, materials, or equipment furnished as of the date of the Claim; EJCDC® C-615, Payment Bond Copyright © 2013 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 3 of 3 WARRANTY BOND Contractor Surety Name: Name: Address (principal place of business): Address (principal place of business): Owner Construction Contract Name: City of Schertz Description (name and location): Address (principal place of business): Riata Lift Station and Off -site Utilities Relocation Project 10 Commercial Place Schertz, Texas 78154 Contract Price: Effective Date of Contract: Contract's Date of Substantial Completion: Bond Bond Amount: Bond Period: Commencing after Substantial Date of Bond: Completion of the Work under the Construction Contract, and continuing until one years after such Modifications to this Bond form: Substantial Completion. ❑ None ❑ See Paragraph 9 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth herein, do each cause this Warranty Bond to be duly executed by an authorized officer, agent, or representative. Contractor as Principal Surety (Full formal name of Contractor) (Full formal name of Surety) (corporate seal) By: By: (Signature) Name: Name: (Printed or typed) Title: Title: Attest: Attest: (Signature) I Name: Name: (Printed or typed) (Signature) (Attach Power of Attorney) (Printed or typed) (Signature) (Printed or typed) Title: Title: (Votes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party is considered plural where applicable. EJCDC® C-612, Warranty Bond. Copyright® 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 2 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner for the performance of the Construction Contract's Correction Period Obligations. The Construction Contract is incorporated herein by reference. 2. If the Contractor performs the Correction Period Obligations, the Surety and the Contractor shall have no obligation under this Warranty Bond. 3. If Owner gives written notice to Contractor and Surety during the Bond Period of Contractor's obligation under the Correction Period Obligations, and Contractor does not fulfill such obligation, then Surety shall be responsible for fulfillment of such Correction Period Obligations. Surety shall either fulfill the Correction Period Obligations itself, through its agents or contractors, or, in the alternative, Surety may waive the right to fulfill the Correction Period Obligations itself, and reimburse the Owner for all resulting costs incurred by Owner in performing Contractor's Correction Period Obligations, including but not limited to correction, removal, replacement, and repair costs. 4. The Surety's liability is limited to the amount of this Warranty Bond. Renewal or continuation of the Warranty Bond will not modify such amount, unless expressly agreed to by Surety in writing. 5. The Surety shall have no liability under this Warranty Bond for obligations of the Contractor that are unrelated to the Construction Contract. No right of action will accrue on this Warranty Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors, and assigns. 6. Any proceeding, legal or equitable, under this Warranty Bond may be instituted in any court of competent jurisdiction in the location in which the Work or part of the Work is located and must be instituted within two years after the Surety refuses or fails to perform its obligations under this Warranty Bond. 7. Written notice to the Surety, the Owner, or the Contractor must be mailed or delivered to the address shown in this Warranty Bond. 8. Definitions 8.1. Construction Contract —The agreement between the Owner and Contractor identified on the cover page of this Warranty Bond, including all Contract Documents and changes made to the agreement and the Contract Documents. 8.2. Contract Documents —All the documents that comprise the agreement between the Owner and Contractor. 8.3. Correction Period Obligations —The duties, responsibilities, commitments, and obligations of the Contractor with respect to correction or replacement of defective Work, as set forth in the Construction Contract's Correction Period clause, EJCDC® C-700, Standard General Conditions of the Construction Contract (2018), Paragraph 15.08, as duly modified. 8.4. Substantial Completion —As defined in the Construction Contract. 8.5. Work —As defined in the Construction Contract. 9. Modifications to this Bond are as follows: None EJCDC® C-612, Warranty Bond. Copyright® 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 2