General Terms and Conditions - Fpc USA General Ter… · Texas Contract Page 3 Contract General Terms And Conditions right is reserved by Owner to withhold its consent to the making

Formosa Plastics

Construction Contract

General Terms and Conditions

October 13, 2014

Texas Version

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Table of Contents

Section Contents Page

Definitions .......................................................................................................................................................1 1.

1.1 “Contract” ......................................................................................................................................... 1 1.2 “Contractor” ...................................................................................................................................... 1 1.3 “Contractor Schedule” ...................................................................................................................... 1 1.4 “Drawings and Specifications” ......................................................................................................... 1 1.5 “Other Contractors” .......................................................................................................................... 1 1.6 “Site” ................................................................................................................................................. 1 1.7 “Work” .............................................................................................................................................. 1

Contractual Relationship .................................................................................................................................1 2.

Work to be Performed .....................................................................................................................................2 3.

3.1 Contractor Preparation and Responsibility for Work ........................................................................ 2 3.2 Subcontractors ................................................................................................................................... 2 3.3 Contractor Responsibility to Coordinate with Work of Others ......................................................... 3 3.4 Contractor’s Scheduling of Work ..................................................................................................... 5 3.5 Contractor shall employ competent employees ................................................................................. 5 3.6 Drawings and Specifications ............................................................................................................. 6 3.7 Contractor Submittals ....................................................................................................................... 6 3.8 Ownership and Use of Drawings ...................................................................................................... 7 3.9 Utilities .............................................................................................................................................. 7 3.10 Other Facilities Supplied by Contractor ............................................................................................ 7

Materials Supplied by Owner and by Contractor ............................................................................................8 4.

4.1 General .............................................................................................................................................. 8 4.2 Contractor’s Responsibility for Materials Furnished by Owner ....................................................... 8 4.3 Handling and Storage of All Materials ............................................................................................. 9

Title ............................................................................................................................................................... 10 5.

Introduction of Hazardous Materials to Site .................................................................................................. 11 6.

6.1 General ............................................................................................................................................ 11 6.2 Violations by Contractor ................................................................................................................. 11

Work Site Maintenance, Trash Removal, and Site Cleaning ........................................................................ 11 7.

Owner’s Review of Contractor’s Work; Inspections ..................................................................................... 12 8.

Tests .............................................................................................................................................................. 13 9.

Drug and Alcohol Prohibition ....................................................................................................................... 13 10.

Compliance with Laws and Regulations ....................................................................................................... 14 11.

Safety............................................................................................................................................................. 15 12.

12.1 General ............................................................................................................................................ 15 12.2 Emergencies .................................................................................................................................... 15 12.3 Occupational Safety and Health Act (OSHA) ................................................................................. 15

Non-Discrimination ....................................................................................................................................... 16 13.

Royalties and Patents .................................................................................................................................... 16 14.

Liens and Claims ........................................................................................................................................... 16 15.

Passes and Badges ......................................................................................................................................... 17 16.

Indemnity of Owner by Contractor ............................................................................................................... 17 17.

17.1 INDEMNITY FOR CONTRACTOR EMPLOYEE CLAIMS. ...................................................... 17 17.2 GENERAL INDEMNITY .............................................................................................................. 18 17.3 No Limitation .................................................................................................................................. 19

Insurance ....................................................................................................................................................... 19 18.

18.1 Insurance Policies Required ............................................................................................................ 19 Guarantees ..................................................................................................................................................... 19 19.

Progress Reports of Contractor ..................................................................................................................... 19 20.

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20.1 Performance Time ........................................................................................................................... 19 20.2 Progress Reports ............................................................................................................................. 20

Compensation and Payment .......................................................................................................................... 20 21.

21.2 Taxes and Assessments ................................................................................................................... 22 No Damages for Delay; Overtime ................................................................................................................. 22 22.

Delays and Extension of Time; Force Majeure ............................................................................................. 23 23.

23.1 Force Majeure Event ....................................................................................................................... 23 Changes in the Work and Extra Work ........................................................................................................... 25 24.

24.1 General ............................................................................................................................................ 25 24.1 Payment for Changes in Work ........................................................................................................ 25

Termination of Contract ................................................................................................................................ 26 25.

25.1 Terminations by Owner for Cause .................................................................................................. 26 25.2 Terminations by Owner for Convenience ....................................................................................... 27

Non-Assignment ............................................................................................................................................ 28 26.

Confidential Information ............................................................................................................................... 28 27.

Contract Includes Entire Agreement ............................................................................................................. 28 28.

Limitations of Liability ................................................................................................................................. 28 29.

Arbitration ..................................................................................................................................................... 29 30.

A. Performance Bond ......................................................................................... Error! Bookmark not defined. B. Payment Bond ............................................................................................... Error! Bookmark not defined.

Exhibit 1 – General Terms and Conditions

Exhibit 1(a) Conditional Waiver and Release on Progress Payment

Exhibit 1(b) Conditional Waiver and Release on Final Payment

Exhibit 1(c) All Bills Paid Affidavit

Exhibit 2 – Insurance Requirements

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General Terms And Conditions

Definitions 1.

1.1 “Contract”

means the documents identified as composing the Contract in the Contract Summary

Form.

1.2 “Contractor”

means the entity or entities identified as Contractor in the Contract Summary Form.

1.3 “Contractor Schedule”

means the Work schedule prepared by Contractor and approved by Owner as

provided in 3.4.

1.4 “Drawings and Specifications”

means drawings and specifications provided by Owner to Contractor with detailed

information of the Work to be performed.

1.5 “Other Contractors”

means other contractors, vendors, suppliers and laborers, and when periodically

applicable Owner’s employees, engaged in construction, maintenance, and operation

activities at the Site.

1.6 “Site”

means the facilities and premises located in the State of Texas of Owner and its

affiliates where work by Contractor is required to be performed under the Contract.

1.7 “Work”

means all work, services, equipment, and material required to be managed,

coordinated, designed, engineered, specified, installed or supplied by Contractor

under this Contract, including all management, coordination, work, services,

equipment and material reasonably inferable for the performance of items necessary

to carry out Contractor’s obligations under the Contract.

Contractual Relationship 2.

In the performance of this Contract, Contractor shall be an independent contractor

and not an agent or employee of Owner. No personnel furnished by Contractor shall

be, under any circumstances, employees, agents or servants of Owner.

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Work to be Performed 3.

3.1 Contractor Preparation and Responsibility for Work

a) Contractor warrants that it has examined the Site, its Scope of Work, and the visible

or planned work and available schedules of Other Contractors’ work that may affect

Contractor’s Work and assumes full responsibility for the performance of the Work,

at the Contract Price and within the Contractor Schedule, in a manner adequate to

meet the Site conditions and to avoid conflict with or disruption of Other Contractors’

work encountered during the performance thereof.

b) Contractor shall, at its own cost and expense, supply and furnish at the location where

the Work is to be performed: all labor, materials, equipment, tools, transportation,

supervision, coordination and management; and bear all items of expense, necessary

for the complete and satisfactory performance of this Contract, except only such

items as Owner in this Contract specifically agrees to supply or furnish. In addition,

any equipment, materials or services not specifically described in the Drawings and

Specifications but which may be fairly implied as required thereby, or necessary to

complete the Work for the use intended, shall be within Contractor’s Scope of Work

hereunder unless expressly excluded from the Scope of Work.

c) Contractor shall make full preparation before proceeding with its own Work

including, without limitation, coordination and verification of proper completion of

work and work schedules of Other Contractors that may affect Contract’s Work. If by

reason of Contractor’s failure in preparation, it is found necessary to reconstruct any

part of the Work, Contractor shall remove and rebuild such Work at its own expense

to comply with the requirements of the Contract.

d) Contractor shall supervise and direct the Work, using Contractor’s best skill and

attention. 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 and with respect to Other

Contractors’ work. If the Drawings and Specifications give specific instructions

concerning construction means, methods, techniques, sequences or procedures, the

Contractor shall 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 Contractor determines that such means,

methods, techniques, sequences or procedures may not be safe, Contractor shall give

timely written notice to Owner and shall not proceed with that portion of the Work

without further written instructions from Owner.

3.2 Subcontractors

a) Contractor shall procure Owner’s written approval before subcontracting any portion

of the Work and shall obtain Owner’s written approval of all subcontractors. The

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right is reserved by Owner to withhold its consent to the making of any subcontract.

No such approval shall relieve Contractor from any of the obligations under this

Contract to Owner.

b) Contractor shall require each Subcontractor to be bound to the Contractor by terms of

the Contract, and to assume toward the Contractor all the obligations and

responsibilities, including the responsibility for safety of the Subcontractor’s Work,

which the Contractor is required to assume toward the Owner. Each subcontract

agreement shall preserve and protect the rights of the Owner under the Contract 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, has

against the Owner. The Contractor shall require each Subcontractor to enter into

similar agreements with any Sub-subcontractors. The Contractor shall make available

to each proposed Subcontractor, prior to the execution of the subcontract agreement,

copies of the Contract to which the Subcontractor will be bound. The Contractor shall

require each Subcontractor to similarly make copies of applicable portions of such

documents available to their respective proposed Sub-subcontractors.

c) Contractor shall be and remain liable as if no such subcontract has been made or

approved by Owner. Contractor shall be as fully responsible to Owner for any act or

omission of any person directly or indirectly employed by Contractor, and for any act

or omission of any subcontractor, any of persons either directly or indirectly

employed by such subcontractor, as though the act or omission was done by an

employee of Contractor subject to Contractor’s direction.

d) Contractor shall require in all subcontracts that the subcontractor and its

subcontractors and suppliers of any tier agree to arbitration of disputes that may arise

with respect to Owner, and to be joined in any arbitration conducted, under Section

30 hereof.

e) Contractor shall check subcontractor’s work in full detail and keep such records and

furnish such reports and information relative to subcontractor and subcontractor’s

work as Owner may request. Owner reserves the right to investigate any

subcontractors to Contractor for qualification obligations under the Contract.

f) The work of any subcontractor shall be subject to inspection by the Owner’s

inspectors to the same extent as the work of Contractor, and all subcontracts let by

Contractor under the terms hereof shall so provide.

3.3 Contractor Responsibility to Coordinate with Work of Others

a) Contractor acknowledges that there will be many Other Contractors working at or

near the Site at the same time as Contractor performs its Work. Planning, exchanges

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of information and coordination of activities by and among Contractor and Other

Contractors is essential to achieving timely completion of Work while minimizing

conflicts, disruptions and delays. UNLIKE OTHER CONSTRUCTION PROJECTS

IN WHICH CONTRACTOR MAY HAVE PARTICIPATED, THE PLANNING,

EXCHANGES OF INFORMATION AND COORDINATION OF ACTIVITIES

DIRECTLY BY AND AMONG CONTRACTOR AND OTHER CONTRACTORS

CONCERNING THE WORK IS THE PRIMARY SCHEDULING AND WORK

COORDINATION TOOL USED FOR THE WORK.

b) Before starting operations, and from time to time as Work progresses, Contractor

shall examine the work installed by Other Contractors, or for work to be installed

shall examine the Contract Documents and discuss such work with the installing

Other Contractor(s), insofar as such work influences Contractor’s Work. Contractor

will maintain direct liaison with all Other Contractors whose work could affect the

Work under this Contract. Contractor shall promptly notify Owner and the applicable

Other Contractor(s) in writing if any condition exists that will prevent Contractor

from completing its Work in accordance with the Contractor Schedule and the

Contract. Should Contractor start or continue its Work without such notifications,

such action shall be deemed Contractor’s acceptance of all work of the Other

Contractors and of conditions then existing. Contractor shall also promptly notify in

writing Owner and Other Contractors that may be affected by Contractor’s Work of

any proposed changes in Contractor’s Work or Contractor’s Schedule and planning,

and any such changes shall be coordinated with the affected Other Contractor(s).

c) During the course of its Work, Contractor is responsible to manage, coordinate, plan,

schedule and execute its Work in such a manner that will not interfere with the work

of Other Contractors, and so that Other Contractors’ work will not interfere with the

Work of Contractor. Owner will assist this coordination of the work of Contractor and

Other Contractors by holding regular Coordination Meetings. (See 20.2(c)). Owner

will provide information from Contractor and Other Contractors described in 3.4,

with any modifications over time from coordination among Contractor and Other

Contractors, as well as overall Project schedule milestones reflected in Owner’s

master schedule. It is the duty of Contractor at the Coordination Meetings and

otherwise during the course of the Work to exchange scheduling and planning

information with Other Contractors whose work may affect or be affected by the

Work and to adjust the time and location of engaging work forces and resources in

Work to avoid delays, disruptions or conflicts and to accommodate the orderly and

timely overall progress of the Work and Other Contractors’ work.

d) The Contractor shall promptly notify Owner if Contractor cannot coordinate any

portion of the Work scheduling and planning with any Other Contractors. The

Contractor shall fully describe such circumstances to Owner in writing. Owner will

consider the written information from Contractor and the affected Other

Contractor(s), and any other applicable information then available to Owner, and

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render a decision on how the Contractor and Other Contractors shall proceed. The

Owner shall not be liable to Contractor for any such decision rendered in good faith

nor shall any such decision rendered in good faith be considered intentional

misconduct, active interference or arbitrary and capricious. Notification of Owner of

the failure of Other Contractors to timely and properly complete their work does not

relieve Contractor of its continuing obligation to coordinate its Work with Other

Contractors.

3.4 Contractor’s Scheduling of Work

a) Contractor’s scheduled hours of work, while on Owner’s Site must be approved by

Owner.

b) Contractor shall submit within 15 days after the date of execution of this Contract for

Owner’s approval, a time schedule for the completion of the various portions of the

Work. Upon Owner’s approval of such schedule it shall be the “Contractor

Schedule.” The Contractor Schedule shall comply with the completion date in the

Contract and with milestones established in Owner’s master schedule. It shall be

itemized and detailed, shall show manning, resource availability and the start and

finish times, as well as the duration, for each work item. The Contractor Schedule

shall be broken down and itemized by separate areas when Contractor is working in

more than one area. The Contractor Schedule shall be used for providing information

for coordination and planning of Work by Contractor with Work of Other

Contractors. Its scheduled events shall be modified as necessary for proper

coordination of Work, provided that in no event shall such modifications change the

completion date in the Contract unless the Contract is separately amended for this

purpose under Section 24. Contractor shall comply with the Contractor Schedule, as

properly modified, in all respects in the performance of the Work. The Contractor

Schedule shall not be used as a basis for determining payments due, as described in

Section 21.

c) Contractor shall make available, for Owner’s use during the progress of the Work,

any portion of completed Work as Owner may direct.

3.5 Contractor shall employ competent employees

a) Contractor shall employ, at the Site, a competent English-speaking superintendent

who, on behalf of the Contractor, shall have complete charge of all Work, and who

shall have full authority to represent Contractor in all matters concerning the

performance of the Work under his supervision. Any communications given such

person by Owner shall be considered as given to Contractor. The superintendent shall

be the primary liaison of Contractor for the coordination activities described in 3.3.

Contractor shall advise Owner in writing of the name, address and telephone (day and

night) of the designated superintendent. Any employee of the Contractor, including

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the superintendent, determined by Owner as unskilled or unfit shall be promptly

replaced by Contractor.

b) Contractor shall provide demonstrated skill by its employees, subcontractors, agents

and representatives in appropriate crafts, welding, etc., by presenting current

certification (within the last 12 months) and/or testing results upon request by Owner

or such other further documentation as Owner may reasonably request. Nevertheless,

Owner’s review, or lack of review of any such certification, testing or documentation

shall not any in respect constitute acceptance by Owner of Contractor’s employees’

craft skills and does not modify, amend or relieve Contractor of Contractor’s

responsibilities and liabilities contained in this Contract.

3.6 Drawings and Specifications

a) Anything mentioned in the Specifications and not shown on the Drawings, or shown

on the Drawings and not mentioned in the Specifications, shall be of like effect as if

shown and mentioned in both. In case of direct conflict between the Specifications

and the Drawings, or in case of discrepancies, omissions and/or errors, the matter

shall be submitted immediately to Owner for determination. Such determination shall

be at the sole discretion of Owner and shall be binding on both parties, subject to

Section 24 for material changes in the Wok caused by the Owner, if any.

b) Contractor agrees to furnish such drawings, specifications and data in addition to the

Drawings and Specifications as Owner may specify or as are reasonably necessary to

complete the Work. Owner will not issue approvals of drawings, specifications and

data furnished by Contractor, but Owner reserves the right to review and comment on

such drawings, specifications and data to the extent, if any, that Owner deems

desirable. Contractor, however, shall begin and continue performance of its Work

under this Contract without waiting for Owner’s review or comments. Drawings will

not be returned to Contractor unless Owner elects to make comments. Any such

review and comment by Owner or any failure to review, unless expressly agreed in

writing to the contrary, shall not alter any of the terms and conditions of this Contract

or relieve Contractor of any responsibility or liability for the accuracy and

completeness of such data and materials or be interpreted as Owner’s approval of

such drawings and data.

3.7 Contractor Submittals

a) Contractor and its subcontractors shall furnish Owner, with such promptness as to

cause no delay in its Work or in the work of any Other Contractors, all shop

fabrication or setting drawings and schedules (“Submittals”), properly identified,

required for the Work by the specifications or requested by Owner. Review of shop

drawings by Owner shall not relieve Contractor from responsibility for deviations

from the drawings or specifications, unless Contractor has, in writing, called the

Owner’s attention to such deviations at the time of submission and received Owner’s

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written acceptance of such deviation, nor shall it relieve Contractor from

responsibility for errors or omissions of any sort in the Submittals. The Contractor

shall confirm upon transmitting to Owner in writing on each Submittal that it

reviewed and coordinated the information in the Submittal with the Drawings and

Specifications. Unless otherwise specified in writing, Contractor shall submit to

Owner:

1) For preliminary review, at least three (3) sets of Submittals, two sets of which will

be retained by Owner and the remainder returned to Contractor with notations by

the Owner, if any.

2) For final review, one (1) set of the reproducible drawings.

3.8 Ownership and Use of Drawings

a) All Drawings and Specifications and copies thereof furnished by Owner or prepared

for Owner by Contractor are Owner’s property and not to be used by Contractor for

any other work; and, with the exception of the signed Contract set, are to be returned

to Owner on request at the completion of the Work.

3.9 Utilities

a) Owner will not furnish any utility services to Contractor including, without

limitation, gas, water and electrical services unless set forth in the Scope of Work.

Owner may, at Owner’s sole discretion, allow Contractor to tie into Owner’s existing

service lines; however, Contractor shall, at its own expense, furnish, install and

remove from Owner’s Site, upon completion of the Work, all temporary lines and

connections necessary to convey the services to Contractor.

3.10 Other Facilities Supplied by Contractor

a) Contractor shall provide at its own cost such sanitary, warehouse and other non-

permanent facilities, which are not made available by Owner to Contractor at the Site.

Such facilities shall comply with Owner’s standards in regards to size, shape,

appearance and type of construction. All facilities of Contractor on the Site shall be of

non-combustible construction. Location of such facilities shall be as directed by

Owner. All such facilities so furnished by Contractor shall be removed by Contractor

promptly upon completion of the Work or at the request of Owner.

b) The Contractor must provide all necessary sanitary facilities for its employees and

subcontractors, including toilet, clean-up facilities, and water drinking facilities.

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Materials Supplied by Owner and by Contractor 4.

4.1 General

a) Owner will furnish only those materials and/or services specifically set forth in the

Bid Package as materials and services to be furnished by Owner, if any. Any quantity

of materials and/or services not specifically set forth in the Bid Package as materials

and/or services to be furnished by Owner but are required to perform the Work shall

be considered within the Contractor’s Scope of Work and shall be supplied by

Contractor at its own cost, unless otherwise explicitly stated to the contrary in this

Contract.

b) Where Contractor supplies material called for by the Work in the Contract that is

specified by trade name or number, no substitution is permitted without written

permission of Owner’s representative.

c) Where Owner is supplying material, particular material may be made available and

conveyed to Contractor at Owner’s yard or warehouse or may be delivered directly to

Contractor by Owner’s vendor.

d) Owner shall furnish Contractor, upon request by the Contractor, information Owner

has stating the identity of vendors of Owner-supplied material, locations, availability,

delivery schedules and any other reasonably available information for those materials,

supplies, equipment, labor, or services that Owner has agreed to provide to Contractor

under the terms of this Contract.

e) Contractor may obtain Owner-supplied material that is in Owner’s yard or warehouse

at the Site after providing Owner with reasonable written notice that it wishes to take

possession of portions of that material on a particular day, which notice in no event

will be less than seven days before the day Contractor proposes to accept delivery of

the material requested at the Owner’s yard or warehouse.

4.2 Contractor’s Responsibility for Materials Furnished by Owner

a) If the materials are to be delivered directly to Contractor by material vendors, these

materials will be specified in a “Receiving Ticket” provided by Owner.

b) Contractor shall then be responsible for the following actions:

1) Notify, on a timely basis (at least seven (7) business days), the aforesaid vendors

of the items, quantity, shipping destination and delivery schedule.

2) Contractor shall fill out and sign the “Receiving Ticket” and forward same to

Owner’s Storeroom (on Owner’s premises) within two (2) business days after

receipt of material.

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3) Any additional freight charges resulting from Contractor’s request to have

materials furnished by Owner shipped to a location more than 100 miles from the

actual Site of the installed Work shall be the responsibility of Contractor.

4) In case of any material discrepancy or discrepancies, quality defects and/or

delivery delays, Contractor shall follow-up with supplying vendors directly in

order to rectify the problem. Contractor shall notify Owner promptly in writing

(within (5) business days) of any unresolved problems relating to material

deliveries.

4.3 Handling and Storage of All Materials

a) Contractor shall be responsible for the receipt, inspection, storage, security, and care

of all materials, including but not limited to, materials from Owner’s storeroom,

Owner’s carrier, or directly from the vendor.

b) Contractor shall be responsible for receiving, loading, unloading, transporting,

securing and storing all material received from Owner’s warehouse or yard or from

vendors in a safe and workmanlike manner to eliminate damage or loss. The

Contractor shall be solely responsible for all damages to, or loss of, any equipment or

materials while being handled, secured or stored by Contractor.

c) All materials shall be stored at designated areas assigned by Owner, which may be

unimproved. Contractor shall protect all materials from damage or loss by suitable

means acceptable to Owner. Contractor is solely responsible for preparing and

maintaining its designated area for (1) appropriate storage of equipment and

materials, including but not limited to protection from weather and water, and (2)

security in the designated area.

d) Materials and equipment subject to weather discoloration, such as building

components in storage, spun aluminum light poles, etc., shall be properly protected.

Machined and polished surfaces and exposed parts of all materials subject to rust or

corrosion shall be frequently greased and/or otherwise maintained as specified by the

manufacturer to preserve their condition and kept covered at the expense of the

Contractor.

e) Contractor shall maintain valves, fittings, and other materials in a manner to prevent

them from being damaged, and in the manner recommended by the manufacturer to

preserve their condition, prevent loss, and permit easy access for checking of

quantities. Contractor shall place valves, flanged fittings or other material with

finished surfaces always on skids to prevent the surfaces from coming into contact

with the earth. A planked-over area raised above the ground shall be an acceptable

alternate to skids.

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f) Contractor shall segregate and store separately all fill, sand, gravel, rebar, and anchor

bolts, upon delivery to the Site, to prevent the commingling of such materials and

minimize loss through admixture with surface water, soil or refuse. Fill, sand, and

gravel shall not be stored over existing underground pipelines or other underground

facilities. Rebar and anchor bolts shall be stored above ground on pallets or logs.

g) Contractor may store conduit and cable reels outside, but they shall be adequately

blocked on dunnage and adequately protected from weather and dirt.

h) Contractor must store inside an enclosed temporary warehouse area furnished by

Contractor conduit fittings, hardware, instrumentation, push-button switches, switch

boards, MCCs, starter panels. switchgear, HV termination kits, light fixtures,

distribution panel boards, fixture wire, switch board control wire, control panels,

control devices, cable ends (which shall be wrapped with proper tape) and any

equipment which is specified for indoor storage.

i) Contractor shall immediately notify Owner in writing, of damage to, or loss of, any

Owner-furnished materials.

j) Contractor shall maintain a current log of all materials furnished by Owner, easily

accessible by Owner, indicating the quantity of materials received and used and the

remaining balance.

k) Unless otherwise stated in the Bid Package, any surplus materials of like kind to that

provided by Owner delivered to the Site shall belong to Owner. “Scrap” means any

materials not incorporated into the Work, whether of like kind to that supplied by

Owner under the Contract or that result from demolition activities at the Site under

the Contract, that in Owner’s opinion have value. Owner may at its option (1) require

Contractor to remove Scrap from the Site at Contractor’s expense, or (2) deliver

Scrap to Owner’s location designated for the storage of such materials. Removal of

any materials from the Site, including but not limited to Scrap, shall require Owner’s

written authorization.

Title 5.

a) The title to all Work completed, all Work in the course of construction, and all

material furnished by Owner or by Contractor, irrespective of the location thereof,

shall be in Owner, but the ownership thereof by Owner will not absolve Contractor

for liability for loss of or damage to same as provided herein.

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Introduction of Hazardous Materials to Site 6.

6.1 General

a) Contractor shall submit Material Safety Data Sheets complying with the Federal

Hazard Communication Standard (OSHA 1910.1200) and obtain the approval of

Owner before introducing any Hazardous Materials onto Owner property or the Site.

Such materials shall be properly labeled and strictly controlled by Contractor as to

use and disposal. Storage and use of and personal protection for handling such

materials must comply with the instruction on the Material Safety Data Sheets.

b) Contractor is responsible for Hazardous Materials introduced to the Site by itself,

Contractor’s Subcontractors, and Contractor’s Sub-Subcontractors. Contractor shall

indemnify, defend and hold harmless Owner, including its officers, directors,

employees and agents from and against all claims, losses, damages, liabilities, and

expenses, including attorney’s fees and expenses, arising out of or resulting from

those Hazardous Materials introduced to the Site by Contractor, Contractor’s

Subcontractors and Contractor’s Sub-Subcontractors.

6.2 Violations by Contractor

a) Owner shall have the right to immediately stop the performance of all or any part of

the Services impacted if at any time Owner in its reasonable judgment determines that

Contractor has violated any of the provisions of this Section. Further, if Contractor

fails to initiate correction any such violation within seven (7) days following the

written notice of Owner to Contractor of the violation, and thereafter promptly and

diligently prosecute such correction, Owner shall have the right to terminate the

Contract, without penalty, immediately upon written notice thereof to Contractor. In

all other respects, such termination shall be in accordance with the provisions of the

Termination For Default Section hereof.

Work Site Maintenance, Trash Removal, and Site Cleaning 7.

a) The Contractor’s Work site must be maintained in a neat and orderly manner on a

daily basis. Contractor shall keep Owner’s premises and the adjoining premises,

driveways, and streets clean of rubbish caused by Contractors operations. If Owner,

in Owner’s sole opinion, deems that Contractor’s Work site requires cleaning, Owner

will notify Contractor in writing of such requirement. Owner may not allow

Contractor to resume work until such cleaning has been completed to Owner’s

satisfaction. If Contractor does not comply with Owner’s notice within 24 hours after

receipt, Owner may cause such cleaning to be done and charge the cost of the same to

Contractor and deduct such costs from any moneys due hereunder. If a dispute arises

among the Contractor and other contractors as to the responsibility for maintaining

the areas of their work, keeping access road clean and free of hazard, and keeping

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surrounding areas free from waste materials and trash, Owner may clean up and

allocate the costs among the contractors as it determines to be just.

b) Owner will not provide dumpsters for Contractor’s trash disposal.

c) Contractor shall haul waste and trash off Owner’s premises and dispose of them at the

proper location. Any materials which are generated from demolition activities on

Owner’s premises must be disposed of in accordance with the bid documents;

however, other than plant trash, Contractor must not remove or dispose of any

materials, including, but not limited to contaminated solid or hazardous waste (per

RCRA) without Owner’s written authorization. If in the performance of the Work,

discharges of pollutants, oils, greases or toxic materials have occurred, the Contractor

shall be responsible, at Contractor’s sole cost and expense, for clean-up of all affected

areas and/or removal of all affected materials to Owner’s satisfaction in accordance

with all Federal, State and Local laws, orders, rules and regulations. See Section 4.3

(b) concerning Contractor’s duties with respect to Scrap.

d) Upon termination or completion of the Work, Contractor shall remove all of its tools,

equipment, and temporary facilities, and shall leave all portions of the Site in which

Contractor has operated “Broom Clean” and ready for use.

Owner’s Review of Contractor’s Work; Inspections 8.

a) All Work and/or materials furnished by Contractor shall be at all times open to

inspection by Owner. Contractor shall provide for Owner’s representative sufficient,

safe, and proper facilities for access and inspection. When any Work is being

executed away from the premises, Owner shall be notified in a reasonable time where

such Work is to be done and when it will be ready for inspection, so that Owner may,

if it so desires, inspect the same from time to time before delivery to the Site. Any

item of the Work being executed away from the Site shall be sufficiently labeled so as

to make clear to third parties any ownership interest of the Owner therein.

b) If the Scope of Work, specifications, Owner’s instructions, laws, ordinances, or any

public authority require any Work to be specially tested or approved, Contractor shall

be responsible to keep Owner appraised of such requirements and shall give Owner

reasonable notice of the Work’s readiness for inspection. Furthermore, if the

inspection is by another authority other than the Owner, reasonable notice of the date

for such inspection shall be given to the Owner by the Contractor.

c) Inspection or failure to inspect by Owner shall not relieve Contractor of any

responsibility or liability hereunder or, in particular, with respect to materials and

workmanship nor shall such, in any respect, constitute acceptance thereof by Owner.

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d) Contractor shall not proceed with any subsequent portion of Work if Drawings or

Specifications require that inspection be done and accepted by Owner or Owner’s

representative prior to proceeding with any subsequent portion.

e) If upon inspection, any portion of the Work does not meet acceptable standards, in the

sole opinion of the Owner, Contractor shall replace and repair such unacceptable

Work and/or materials, including replacement of subcontractors if such are not

satisfactory to Owner, at Contractor’s sole cost. In the event of Contractor’s failure to

replace any such unacceptable Work or materials within a reasonable time, Owner

may replace the Work and/or materials itself, by whatever method it may deem

expedient, and deduct the cost thereof from the monies due, or thereafter to become

due, to the Contractor under this Contract

f) Owner reserves the right to make an examination before final acceptance of the Work

as a whole. If such Work is found by Owner to be defective or unacceptable in any

material respect whether or not due to the negligence or fault in any respect of

Contractor or its subcontractors, Contractor shall defray all the expenses of both such

examination and such additional costs as may be necessary to render the Work

satisfactory to Owner. lf, however, such Work is found to meet both the requirements

of the Contract, Contractor shall be compensated for its costs as if such examination

and replacement performed by the Contractor constituted a “change” within the

meaning of and in accordance with Section 24 hereof.

Tests 9.

a) Contractor shall perform all tests as are specified in the Scope of Work, specifications

or drawings. Contractor shall provide Owner a reasonable advance written notice of

time and place all tests will be performed. Additional tests may be requested by

Owner and Owner shall pay all costs of such tests or engineering services, except

where the tests show the workmanship or materials to be defective or unacceptable, in

the sole opinion of Owner, in which event all subsequent tests which are necessary, in

Owner’s opinion, to prove correction of defective or unacceptable workmanship or

materials shall be at the sole cost of Contractor.

Drug and Alcohol Prohibition 10.

a) Owner prohibits the use, sale, purchase, transference, and/or possession of any illegal

drugs, prohibited drugs, any drugs used in an illegal manner, or alcoholic beverages

on Owner’s premises. Contractor shall take all necessary precautions and actions,

including but not limited to pre-employment/new-hire drug testing, random drug

testing, post-accident drug testing, for cause drug testing, and any other legal drug

testing, to ensure that none of Contractor’s employees are allowed access to Owner’s

premises while under the influence of any of the substances identified above. Owner

may, as a condition of access to Owner’s premises, require Contractor provide

Contractor’s employees’ most recent drug test results or proof of such testing.

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Contractor will allow Owner to audit Contractor’s records, for compliance with the

drug and alcohol testing specified herein, however, Owner’s audit, or failure to audit,

shall not any in respect constitute acceptance by Owner of Contractor’s drug and

alcohol testing program and does not modify, amend or relieve Contractor of

Contractor’s responsibilities and liabilities contained in this Contract. Contractor

assumes sole responsibility for any property damage and/or personal injuries resulting

from Contractor’s employees’ conduct while under the influence of drugs or alcohol.

Compliance with Laws and Regulations 11.

a) The Contractor shall comply with and be absolutely and solely responsible for all of

Contractor’s employees engaged in the Work, as well as Contractor’s representatives,

suppliers, subcontractors, and visitors and shall be subject to all Federal, State, and

Local rules and regulations pertaining to conduct on the Site. or in the Contractor’s

Work site to the extent that Contractor’s Work, in whole or in part, is performed off

the Site, as the case may be, and any special rules as may be set by Owner for the

safe, orderly and efficient conduct of all operations on the Site.

b) Release or spilling of pollutants, oils, greases and toxic materials to the earth,

premises, ditches, or systems is prohibited. Any such action will be cleaned by

Contractor to Owner’s standards. Notwithstanding anything contained herein to the

contrary, Contractor shall observe and be subject to, at its sole cost and expense, all

Federal, State and Local environmental laws, rules and regulations.

c) Contractor shall comply strictly with all Federal, State, and Local laws, orders, rules,

and regulations applicable to its operation in the performance of the Work hereunder.

Contractor shall procure and pay for all permits and inspections required by any

governmental authority for any part of the Work, except, and only to the extent

otherwise specified in writing by Owner Contractor shall promptly notify Owner if

the drawings and/or specifications are at variance with requirements of any such

applicable law, ordinance, rule or regulation. Contractor is specifically responsible for

compliance with all laws pertaining to the eligibility of its employees to work.

d) Contractor warrants that the Work, and the performance thereof, under the Contract

will conform in all respects to the requirements set forth in this Section and agrees to

indemnify, defend and hold Owner harmless from any and all liabilities, claims, civil

fines and penalties, including costs, settlements, and attorney’s fees, which may arise

out of the Work which does not meet these requirements.

e) The Contractor shall include the provisions of this Section in every subcontract issued

by Contractor so that such provisions will be binding upon each of Contractor’s

subcontractors and shall require the subcontractors to do so likewise.

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Safety 12.

12.1 General

a) Contractor shall take all necessary precautions to protect all property and persons

from damage or injury arising from the Work and at the Site and in its Work area(s)

while under Contractor’s control. Contractor shall, while upon or about the Site,

observe and comply with all fire, safety, and other rules and regulations heretofore or

hereafter prescribed by Owner, and shall be responsible for observance thereof by all

of Contractor’s employees, agents, licensees, permitees, subcontractors, and any other

person allowed access to the Site by Contractor.

b) Contractor shall be solely responsible for developing and implementing all safety

programs with respect to its Work, the Site and Work area(s) and for providing its

employees personal safety equipment as required by the Owner. All necessary

permits required on the Site must be obtained by the Contractor from the appropriate

Owner representative.

c) Contractor acknowledges that safety rules may change from time to time, and it is

Contractor’s responsibility to keep current on all safety rules, including Owner’s

safety rules and regulations and to inform and appropriately train his employees, and

his subcontractor’s employees with regard to any such hues and/or changes.

12.2 Emergencies

a) In an emergency affecting the safety of life or of the Work, or of adjoining property,

the Contractor, without special instruction or authorization from Owner, is hereby

permitted to act at its discretion, to prevent or mitigate such threatened loss or injury.

Any compensation or adjustment in Contract Price claimed by the Contractor due to

such emergency shall be determined by the Field Change Order procedures of Section

24.

12.3 Occupational Safety and Health Act (OSHA)

a) Contractor warrants that the Work, and the performance thereof, under the Contract

complies with and conforms in all respects to the mandates of the Occupational

Safety and Health Act and all applicable Regulations, Rulings, Orders and Standards

promulgated thereunder and agrees to indemnify, defend and hold Owner harmless

from any and all liabilities, claims, civil fines and penalties, including costs,

settlements, and attorneys’ fees, which may arise out of the Work which does not

meet these requirements.

b) All equipment to be used in the performance of the Work must meet the OSHA

inspection and certification program. At Owner’s request, documentation of such

program must be provided to Owner. Nevertheless, Owner’s review, or lack of review

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of any such documentation provided, shall not in any respect constitute acceptance by

Owner of Contractor’s program and does not modify, amend or relieve Contractor of

Contractor’s responsibilities and liabilities contained in this Contract.

Non-Discrimination 13.

a) Contractor, in performing the Work required hereunder, shall comply with all

Federal, State and Local laws, rules, regulations and orders prohibiting and/or

regulating discrimination in the Work place, including, without limitation, the

provisions of title VII of the Civil Rights Act of 1964 and of Executive Order 11246

and shall not discriminate against any employee or applicant for employment because

of religion, race, color, sex, age or national origin or physical handicap.

Royalties and Patents 14.

a) Contractor hereby warrants the use or sale of materials and equipment manufactured

or delivered hereunder will not infringe claims of any patent (to the extent the design

for such materials and equipment is not furnished by Owner); and Contractor agrees

to be responsible for and to defend at its sole expense all suits and proceedings

against Owner based on any such alleged patent infringement and pay all costs,

expenses, judgments and damages, including all attorneys’ fees, which Owner may

have to pay or incur by reason of any such suit or proceedings.

Liens and Claims 15.

a) Contractor does hereby indemnify and save harmless Owner from all claims,

demands, causes of action or suits of whatsoever nature arising out of the services,

labor, equipment and materials furnished to Contractor by its subcontractors and Sub-

subcontractors and suppliers of any tier.

b) Contractor shall immediately pay and discharge, or shall provide security sufficient

and satisfactory in itself to pay and discharge, any obligation or alleged obligation it

or any of its subcontractors and suppliers may have, in aid of the enforcement of

which a lien is established, or is attempted to be established upon or against Owner’s

property or that of Owner’s affiliates, subsidiaries, or related companies wherever the

same may be situated.

c) As a condition precedent to any payment hereunder, Contractor shall submit waivers

and releases of Contractor and Contractor’s subcontractors and suppliers of any and

all claims on the forms attached as Exhibit 1. Such releases shall be submitted

covering all such claims as a condition precedent to final payment.

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Passes and Badges 16.

a) Before access to Owner’s premises will be allowed, Contractor shall acquire from

Owner, for each of Contractor’s employees, agents, representatives, subcontractors

employees and any other persons that Contractor requires in the performance of the

Work, an Identification Badge. Such Identification Badge must be carried and clearly

displayed by each individual while on Owner’s premises. Contractor shall comply

with all of Owner’s entry requirements to obtain Identification Badges and/or Vehicle

Passes. Owner may, at Owner’s sole discretion, deny access to any individual or

vehicle that does not have an Identification Badge and/or Vehicle Pass.

b) Contractor is responsible for collecting and returning to Owner any and all badges,

passes, vehicle passes, and similar permissions of Contractor’s employees upon the

completion of Contractor’s Work. In the event that any such permission is not so

collected and returned, the Contractor agrees to accept a $50.00 charge for each

permission not returned, and for any individual that is on the Owner’s premises by

reason of the possession of such permission, the Contractor agrees that the Indemnity

contained in Section 17 of the Contract shall be extended to Owner in the event of

any damages being incurred by Owner for any reason related to the entrance of such

individual onto Owner’s premises, including but not limited to damages resulting

from the injury or death of such individual or others, regardless of the completion

status of the Contractor’s Work or the employment status of the individual involved.

Indemnity of Owner by Contractor 17.

17.1 INDEMNITY FOR CONTRACTOR EMPLOYEE CLAIMS.

a) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,

INCLUDING, BUT NOT LIMITED TO, CHAPTER 151 OF THE TEXAS

INSURANCE CODE, CONTRACTOR SHALL INDEMNIFY, PROTECT,

DEFEND AND HOLD HARMLESS OWNER AND ITS AFFILIATED

COMPANIES (INCLUDING BUT NOT LIMITED TO THOSE ENTITIES

DESCRIBED IN PARAGRAPH 2(A) OF EXHIBIT 2 “INSURANCE

REQUIREMENTS,” AND EACH OF THEIR SHAREHOLDERS, PARTNERS,

OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, EMPLOYEES,

JOINT VENTURERS, INVITEES AND LICENSEES, AND ANY PERSON OR

ENTITY ANY OF THEM HAS CONTRACTUALLY AGREED TO INDEMNIFY

(COLLECTIVELY, THE “OWNER INDEMNITEES”) FOR, FROM, AND

AGAINST ALL CLAIMS, LOSSES, EXPENSES, COSTS, DEMANDS, SUITS,

CAUSES OF ACTION, JUDGMENTS, AND DAMAGES, INCLUDING

WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES, FOR BODILY

INJURY OR DEATH OF ANY EMPLOYEE OF CONTRACTOR, ITS AGENTS,

REPRESENTATIVES OR SUBCONTRACTORS OF ANY TIER, WHICH

ACTUALLY OR ALLEGEDLY ARISES OUT OF OR IS RELATED TO, IN ANY

WAY, THIS CONTRACT OR THE WORK TO BE PERFORMED UNDER THIS

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CONTRACT, INCLUDING BUT NOT LIMITED TO CLAIMS OCCASIONED

BY, CONTRIBUTED TO, OR ARISING OUT OF, IN WHOLE OR IN PART, THE

NEGLIGENCE, BREACH, VIOLATION OF ANY STATUTE, RULE OR

REGULATION, STRICT LIABILITY OR OTHER ACT OR OMISSION OF

CONTRACTOR, ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR

SUBCONTRACTORS OF ANY TIER, EVEN IF THE BODILY INJURY OR

DEATH IS CAUSED BY OR ALLEGED TO HAVE BEEN CAUSED BY, IN

WHOLE OR IN PART, THE SOLE, COMPARATIVE OR CONCURRENT

NEGLIGENCE, FAULT OR STRICT LIABILITY OF ANY OF THE OWNER

INDEMNITEES.

17.2 GENERAL INDEMNITY

a) FOR ALL CLAIMS NOT ADDRESSED IN THE ABOVE SECTION 17.1,

INCLUDING, WITHOUT LIMITATION, CLAIMS FOR DAMAGE TO OR LOSS

OF USE OF PROPERTY AND CLAIMS FOR BODILY INJURY TO OR DEATH

OF ANY PERSON OTHER THAN ANY EMPLOYEES OF CONTRACTOR, ITS

AGENTS, REPRESENTATIVES OR SUBCONTRACTORS OF ANY TIER, AND

CONTRACTOR SHALL INDEMNIFY, PROTECT, DEFEND AND HOLD

HARMLESS THE OWNER INDEMNITEES FOR, FROM, AND AGAINST ALL

CLAIMS, LOSSES, EXPENSES, COSTS, DEMANDS, SUITS, CAUSES OF

ACTION, JUDGMENTS AND DAMAGES, INCLUDING WITHOUT

LIMITATION, ATTORNEYS’ FEES AND EXPENSES, OF ANY NATURE

WHATSOEVER ARISING OUT OF OR RELATED TO THIS CONTRACT OR

THE WORK TO BE PERFORMED UNDER THIS CONTRACT, INCLUDING,

BUT NOT LIMITED TO, CLAIMS OCCASIONED BY, CONTRIBUTED TO, OR

ARISING OUT OF, IN WHOLE OR IN PART, THE NEGLIGENCE, BREACH,

VIOLATION OF ANY STATUTE, RULE OR REGULATION, STRICT

LIABILITY OR OTHER ACT OR OMISSION OF CONTRACTOR, ITS

EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS OF

ANY TIER, EXCEPT CONTRACTOR’S OBLIGATIONS UNDER THIS

PARAGRAPH SHALL NOT APPLY TO CLAIMS CAUSED BY THE

NEGLIGENCE, FAULT, VIOLATION OF A STATUTE, ORDINANCE,

GOVERNMENTAL REGULATION, STANDARD OR RULE, OR THE BREACH

OF CONTRACT BY THE OWNER INDEMNITEES, THEIR AGENTS,

EMPLOYEES, OR ANY THIRD PARTY UNDER THE CONTROL OR

SUPERVISION OF THE OWNER INDEMNITEES (OTHER THAN

CONTRACTOR AND ITS AGENTS, EMPLOYEES OR SUBCONTRACTORS OF

ANY TIER).

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17.3 No Limitation

a) The indemnification obligations in this Section shall not be limited to damages,

compensation, or benefits payable under insurance policies, workers compensation

acts, disability benefits acts, or other employees benefit acts.

b) The defense, hold harmless and indemnification obligations in this Section 17 shall

survive the termination or expiration of this Contract.

Insurance 18.

18.1 Insurance Policies Required

Contractor shall procure at Contractor’s expense and maintain the insurance required

by Owner’s Insurance Requirements.

Guarantees 19.

a) Contractor warrants that all materials furnished and all Work performed by

Contractor pursuant to this Contract shall be of the best quality of their respective

kinds (unless otherwise authorized by Owner), be free from faulty design (to the

extent said design is not specified by Owner), workmanship, or materials and to be of

sufficient size and capacity and of proper material so as to fulfill in all respects the

operating conditions specified.

b) Contractor agrees that it will within a period of 12 months after final acceptance of

the Work as a whole, at its own expense and without cost to Owner, repair or replace

all materials, equipment or Work furnished or performed by Contractor that does not

conform to the warranty stated above, and repair or replace any damage to other work

caused by any such non-conforming materials, equipment or Work or by the above

repairing or replacement of such defective Work. Owner may, at its option, make any

necessary repairs and charge the cost thereof to Contractor. Contractor hereby

separately agrees to inform Owner of the existence of any defects, whether latent or

patent, immediately upon becoming aware thereof, and failure to do so shall

constitute a material breach hereunder.

Progress Reports of Contractor 20.

20.1 Performance Time

a) Time is of the essence in Contractor’s performance of this Contract. All actions taken

by Contractor shall be taken to ensure that the performance of this Contract is fully

expedited. Contractor shall indemnify and hold harmless Owner from and against any

cost, penalty or liability incurred by Owner because of Contractor’s failure to

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complete the Work within the time specified herein for reasons within Contractor’s

control.

20.2 Progress Reports

a) Prior to commencement of the Work, Contractor shall prepare and submit to Owner,

for Owner’s approval. a schedule of values of various parts, steps, milestones or

portions of the Work as and which aggregate the total Contract Price hereunder,

divided so as to afford a guide to Owner for making payments hereunder (hereafter

referred to as “Contractor’s Measurement Plan”).

b) Contractor shall submit to Owner’s representative a daily report indicating the total

number of man-hours expended in performance of this Contract.

c) Contractor will progress towards completion of the Work in a continuous and orderly

manner without interruptions or abandonment for any substantial period of time.

Periodic progress, coordination and active participation in planning meetings

(“Coordination Meetings”) will be held by the Owner’s representative. Attendance at

this meeting by Contractor is mandatory. Contractor will submit a weekly bar graph,

beginning prior to initial Work start, noting each major item of Work, and noting

proposed, actual, and revised Work progress. Contractor shall fill out a weekly job

ticket (if requested by Owner) with actual start date, current percentage completion

and/or finish dates.

Compensation and Payment 21.

a) Contractor agrees to accept the Contract Price as full compensation for doing all

Work, furnishing all materials, and performing all provisions embraced in this

Contract; for all loss or damage arising out of the nature of the Work as from the

action of the elements or from any unforeseen or unknown difficulties or obstructions

which may arise or be encountered in the prosecution of the Work until its

acceptance: and for all risk of every description connected with the Work not

expressly given to others in this Contract.

b) Unless otherwise provided for in this Contract, Owner shall pay to Contractor, for

performance of this Contract, partial payments as the Work progresses, as follows:

1) Payments made to Contractor will be made on measured Work complete, such

measurements to be made in accordance with the Contractor’s Measurement Plan

previously submitted and approved by Owner. The Measurement Plan must be

summarized and submitted in the form of a C-Chart, which is strictly for payment

purposes, and that identifies the value of each portion of the work completed in

accordance with the Contract Price and approved Measurement Plan. On a weekly

basis, and no later than 12:00pm on the first working day after the close of

Contractor’s billing week, Contractor must provide to Owner an updated C-Chart

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reflecting the status of Work completed, along with lien releases in the form

specified in Exhibit 1 on behalf of Contractor, its subcontractors, and suppliers.

c) Owner may, at Owner’s sole discretion, make payments to Contractor without the

preparation of a C-Chart. If Owner allows such payments the Contractor must submit

an invoice to Owner based on a percentage completion or milestone designation.

Contractor will be required to provide additional documentation to show the

percentage of Work completed. Owner reserves the right to make the final

determination of percentage of Work properly completed for payment purposes.

d) Any application for payment submitted by Contractor for payments due hereunder

must be submitted to Owner’s Accounting Office at the location indicated in the

Contract and must contain the Contract Number for which payment is being

requested. Contractor shall, as a condition precedent to an obligation to make a

progress payment, submit with the application for payment a Conditional Waiver and

Release on Progress Payment in the statutory form attached as Exhibit 1(a) from the

Contractor and all its subcontractors and suppliers of any tier whose contract price

exceeds five percent (5%) of the Contractor’s Contract Price. Owner shall pay the

approved amounts of each invoice less 10% retainage within 30 days after receipt and

approval.

e) As soon as practicable after completion of all Work hereunder, Owner shall make

final inspection and test. If such inspection and tests prove satisfactory, the Work as a

whole shall be accepted and the amount then remaining amounts due to Contractor

shall be paid no earlier than 30 days from such acceptance date, provided that

Contractor shall have informed Owner of all defects pursuant to Section 19 hereof.

f) As condition precedent to Owner’s obligation to make final payment, Contractor shall

furnish Owner with:

1) Conditional Waiver and Release on Final Payment in the statutory form provided

in Exhibit 1(b) from the Contractor and all its subcontractors and suppliers of any

tier whose contract price exceeds five percent (5%) of the Contractor’s Contract

Price; and

2) an All Bills Paid Affidavit in the form attached as Exhibit 1(c).

g) Owner may withhold payment otherwise due because of defective or non-compliant

Work or material provided under this Contract or any other contract between Owner

and Contract that is not remedied; failure of Contractor to provide to Owner contracts

Schedules or any other reports or documentation required under this Contract; failure

of Contractor to obtain and pay the cost of removal of any unnecessary debris,

material, tools or equipment under the provisions of Section 7; damage to Other

Contractors or their work; claims against Contractor for damages and injuries, failure

to pay obligations under Section 15; any breach by Contractor of any contract with

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Owner, including but not limited to indemnification provisions of this Contract or

other contracts, loss, damage; wastage of Owner-furnished material; failure of

Contractor to make payment properly to subcontractors, or for material or labor; if

Owner reasonably believes that claims will be filed against Contractor; or that the

Contract cannot be completed for the balance then unpaid. If the foregoing causes are

removed, the withheld payments shall promptly be made. If the said causes are not

removed, on written notice, Owner may rectify the same at Contractor’s expense.

h) Acceptance of final payment by the Contractor shall constitute a waiver of claims

against Owner except those previously made in writing and identified by Contractor

as unsettled at the time of final application for payment with the specific dollar

amount associated with such claim.

i) Contractor shall within seven (7) days following the payment of the final payment by

the payor bank execute and deliver to Owner the Unconditional Waiver and Release

on Final Payment in the statutory form attached as Exhibit 1(d) from the Contractor

and all its subcontractors and suppliers of any tier whose contract price exceeds five

percent (5%) of the Contractor’s Contract Price. This provision is an essential term

of this Agreement, the breach of which cannot be satisfied by monetary damages, and

the Parties agree that it may be enforced by specific performance.

21.2 Taxes and Assessments

Contractor shall invoice Owner in accordance with all Federal, State and Local laws,

rules and regulations. Owner, as a Texas State direct permit holder, will accrue and

pay the appropriate Texas State and Local sales and use taxes based on Contractor’s

invoiced amounts. Contractor shall hold Owner harmless from any and all liabilities,

claims, fines and penalties, including reasonable costs, settlements and attorneys’

fees, which are related in any way to Contractor’s failure to invoice as described

herein. Except to the extent indicated herein, Contractor accepts full and exclusive

liability for the sales, use, ad valorem, gross receipts, or other taxes levied with

respect to materials furnished or work performed by Contractor, or payment made to

Contractor and assessments for unemployment insurance, old age benefits, annuities,

disability benefits, or other purposes which are in whole or in part measured by and or

based upon wages, salaries or other remuneration paid to persons employed by

Contractor in regard to Work performed hereunder.

No Damages for Delay; Overtime 22.

a) In the event that Contractor experiences any delay or interference in performance of

the Work for any reason not the fault of Contractor and for any period of time caused

by Force Majeure, acts or omissions of Owner, Other Contractors or any others, or

conditions present at the Site that the Contractor had no ability to control, Contractor

may request an extension of time for performance of the Work to the extent of such

delay or interference. Contractor’s sole remedy in any such case shall be an

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extension of time of performance of the Work commensurate with the critical path

delay so caused. To the fullest extent permitted by applicable law, Contractor shall

not be entitled to any increase in the Contract Price or any other financial

compensation as a consequence of such delays or interference. To the fullest extent

permitted by applicable law, Contractor hereby waives and releases all claims for

monetary damages it may suffer because of delay in the Work, REGARDLESS OF

WHETHER ANY SUCH DAMAGES ARE CAUSED, IN WHOLE OR IN PART,

BY THE NEGLIGENCE, BREACH OF CONTRACT OR OTHER FAULT OF

OWNER OR OTHERS WORKING FOR OR ON OWNER’S BEHALF;

PROVIDED, HOWEVER, THAT THIS WAIVER AND RELEASE SHALL NOT

APPLY TO THE EXTENT ANY SUCH DELAY IS FOUND CAUSED BY THE

INTENTIONAL MISCONDUCT, INTENTIONAL ACTIVE INTERFERENCE, OR

ARBITRARY AND CAPRICIOUS CONDUCT OF OWNER.

b) If Contractor is responsible for any delays in the time and sequence of the schedule,

Contractor shall pay Owner for all costs and damages suffered by Owner as a result

of such delays.

c) If Contractor or its subcontractors or suppliers of any tier delay the progress of the

Work, Contractor shall, without additional cost to Owner, add such additional labor

and resources, perform such overtime and take such other measures as may be

necessary to avoid delay in the completion of Work.

d) Owner reserves the right to direct Contractor to work overtime to complete the Work

prior to the Time of Completion as set forth herein and, if so directed in writing,

Contractor shall Work such overtime. Such overtime shall be treated in the same

manner prescribed by Section 24.

Delays and Extension of Time; Force Majeure 23.

23.1 Force Majeure Event

a) As used herein, the term “Force Majeure Event” shall mean any event or

circumstance, or combination of events or circumstances, that arise after the Effective

Date, are beyond the reasonable control of the party claiming the Force Majeure

Event, are unavoidable or could not be prevented or overcome by the reasonable

efforts and due diligence of the party claiming the Force Majeure Event and have an

impact which will actually, demonstrably, adversely and materially affect the critical

path of the Work and performance of its obligations in accordance with the terms of

this Contract. Without limiting the generality of the foregoing, events that may give

rise to a Force Majeure Event include, without limitation, acts of God, natural

disasters, fires, earthquakes, lightning, floods, terrorism, civil disturbances, riots, war,

strikes, lockouts or other labor disputes (except as set forth below), and the action of

or failure to act on the part of any governmental authority having or asserting

jurisdiction that is binding upon the parties and has been opposed by all reasonable

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means. Events that shall not give rise to a Force Majeure Event shall include, without

limitation, Site events that affect the cost or availability of equipment, labor, materials

or supplies (except to the extent such event is otherwise caused by a Force Majeure

Event), or strikes, lockouts or other labor disputes solely limited to the labor of the

party (or its subcontractors or vendors, as applicable, as opposed to being regional,

national, industry-wide or otherwise extending beyond the labor of such affected

party) desiring to claim a Force Majeure Event.

b) Contractor has considered and included the risk of lost days or efficiency due to

adverse climate or weather conditions at the Site within the time for completion of the

Work specified by the Contract in the Contract Price and within the Contractor

Schedule, and thus Contractor shall not be entitled to an extension of the time or

additional compensation as a result of such conditions experienced in the geographic

area of the Site. Contractor is advised that the Site is subject to periods of heavy and

extended rainfall in all seasons and to tropical storms that may result in flash flooding

and other poor working conditions that can delay or prevent the progress of the Work

and affect ground conditions, access and egress.

c) If the performance of any obligation of Contractor or Owner is prevented in whole or

in part by a Force Majeure Event, then such party shall not be held responsible for the

non-performance of such obligation during the continuance of the delay, provided

prompt notice and full particulars of such delay have been given to the other party in

accordance with this Section.

d) No party may claim from the other party any penalties, interests, damages and

compensation for the delays or failures in fulfilling its contractual obligations in the

event of a Force Majeure Event, but in all cases the party claiming a Force Majeure

Event shall use its best efforts to mitigate the effects thereof, and to remove such

Force Majeure Event and resume performance of its obligations hereunder as soon as

possible. All costs required to mitigate such damages and also those costs incurred to

minimize the effect shall be borne by the party that incurred them.

e) If either party is prevented from performing its obligations under this Contract due to

Force Majeure Event, Owner may (1) direct Contractor to move performance,

production or procurement of the Work to an alternate facility at Owner’s expense in

order to cure the Force Majeure Event and deliver the Work according to an adjusted

Contractor Schedule (and, if so directed, Contractor shall so move performance,

production or procurement in the manner Contractor reasonably believes will permit

the most efficient and expeditious completion of Contractor’s obligations under this

Contract) or (2) terminate the Contract and pay Contractor any reasonable, actual

cancellation charges owed to suppliers by Contractor as a result of the termination

and reasonable, actual purchase commitments made by Contractor in the ordinary

course of business to suppliers before the date of terminating the Contract, less any

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costs or profit or fee theretofore paid by Owner, such being Owner’s sole liability to

Contractor therefor.

Changes in the Work and Extra Work 24.

24.1 General

a) Owner reserves the right to make any changes, at any time in the Drawings and

Specifications, Scope of Work, and/or schedule including the omission of certain

Work, by giving written notice thereof to Contractor.

b) Contractor shall make no changes in the Work nor shall it perform work for which it

expects to claim additional payment unless Owner has issued a properly signed and

approved Field Change Order as described in this Section authorizing such change,

and the charges therefor.

c) If a change causes or is expected to cause a material increase or decrease in

Contractor’s cost of performing the Work, or the time of performance, Contractor

shall give written notice thereof to Owner within (10) days after it receives notice of

such changes.

d) Notwithstanding anything contained herein to the contrary, Contractor’s failure to

give Owner such written notice within the aforesaid (10) days will be deemed as a

waiver by Contractor of any Contract Price adjustment and any claim that Contractor

may have, or believes it may have, of any kind, nature or description whatsoever,

including without limitation, such as set forth in this Section.

e) Any request from Contractor for compensation for additional work done that is not in

strict compliance with this Section will not be accepted or paid by Owner.

24.1 Payment for Changes in Work

a) Contractor shall provide prior to commencing work for which it will seek an

equitable adjustment in the Contract Price and Contractor’s proposal with a detailed

cost breakdown acceptable to Owner titled “Field Change Order” signed by

Contractor and seek approval of the Field Change Order in writing from Owner’s

Representative.

b) Contractor shall cooperate with Owner in keeping records of costs related to such

proposal. If Contractor’s proposal is accepted by Owner in writing as legitimate

changes in Work, compensation shall be computed and paid in accordance with this

Section.

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c) Authorized changes in the Work increasing or decreasing cost of the Work to

Contractor and authorized extra Work, will use Contractor’s Additional Work

Schedule in this Contract.

d) Such authorized changes in the Work as are not covered by Contractor’s completion

of Owner’s Bid Form shall be paid for by lump sum price as agreed upon in writing

by Contractor and Owner in advance using the rates in Contractor’s Additional Work

Schedule in this Contract.

e) Contractor shall state in the Field Change Order the entire compensation Contractor

seeks on whatever basis on account of the change, without exception or limitation.

f) All Contractor applications for payment with charges based on Field Change Orders

shall be submitted to the Owner’s authorized representative by Contractor upon

certified triplicate statements to which shall be attached original receipted bills

covering the cost and the freight and haulage charges on all materials furnished by

Contractor and used in the changes in the Work. Such applications for payment shall

be submitted to Owner no later than the next succeeding reporting period following

that in which the change in Work was completed. Contractor acknowledges that

prompt submission of any such application for payment and supporting cost data is

essential to the efficient administration of the project. Contractor agrees that

Contractor’s failure to submit such documentation for change in Work performed

within such period of time and failure to include any other charges in such Field

Change Orders shall absolutely waive any claim by Contractor for additional

compensation for the changes in the Work that are the subject of the Field Charge

Order.

Termination of Contract 25.

25.1 Terminations by Owner for Cause

a) Owner may, at its sole discretion, terminate this Contract for cause, including but not

limited to the following, if Contractor, its subcontractors, its employees, or any other

entity that Contractor utilizes in the performance of this Contract:

1) At any time refuses, neglects or is unable, for any reason, to supply sufficient

skilled labor or the proper quality and quantity of materials; or

2) Fails in any respect to perform the Work, or any separate portion thereof, with

promptness and diligence: or

3) Fails in the performance of any of the agreements committed to and contained

herein; or

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4) Fails to start the Work on the agreed date without obtaining Owner’s prior written

approval for the delay; or

5) Fails to comply with Owner’s safety or environmental rules, or any Federal, State

or local environmental or safety regulation or law applicable to the Work; or

6) Fails to pay its obligations as they become due; or

7) Fails to coordinate its Work with other contractors on Owner’s premises.

b) In the event of the occurrence of any of the above, or the occurrence of any other

matter which the Owner feels will jeopardize the Contractor Schedule, the quality of

the Work, the integrity of the project as a whole, or the safety or environment of the

Site, Owner shall give Contractor written notice of Owner’s requirement that

Contractor correct the problem. Contractor shall, within two (2) business days after

receipt of the notice, correct the problem to the satisfaction of the Owner. If

corrective action is not taken and Contractor fails to take appropriate action to prevent

a reoccurrence, or if Contractor has received several previous notices from Owner

regarding Contractor’s problems, Owner may, at its sole discretion, terminate this

Contract immediately.

c) In the event of such termination, Owner may provide such labor and/or materials to

finish the Work and deduct the cost thereof from any moneys due, or thereafter to

become due, to the Contractor under this Contract. Owner may finish the Work by

whatever method it may deem expedient, including the hiring of another contractor or

contractors under such form of contract as Owner may deem advisable. Further, in the

event of such termination, all materials, documents, records, certifications, drawings,

supplies, equipment or tools furnished and/or paid for by Owner shall be immediately

returned by Contractor, undamaged, to Owner. Contractor shall not be entitled to

receive any further payment until the Work is completed. If the unpaid balance of this

Contract exceeds the total expense of finishing the Work, which expense shall include

all costs and expenses for additional managerial and/or administrative services and

such other costs and damages as Owner may suffer, such difference shall be paid to

the Contractor upon completion of the Work, and if such expense exceeds said unpaid

balance, Contractor and its sureties, if any, shall be liable for and shall pay the

difference to Owner.

25.2 Terminations by Owner for Convenience

a) The Owner may, at its option, at any time, terminate the whole or part of this Contract

for the convenience of the Owner. Contractor agrees that upon any such termination,

the Contractor’s sole remedy shall be payment of full value for all Work properly

performed or materials delivered as of the date of termination, plus demobilization

costs incurred by Contractor that are identified by Contractor in its bid for which this

Contract was awarded, less all payments Contractor has previously received on

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account of such Work performed. Contractor waives all claims for damages,

including lost or anticipated profits, arising from or related to any such termination by

Contractor.

Non-Assignment 26.

Contractor agrees not to assign or subcontract the Work, or any part thereof, nor

assign any money to become due hereunder, without first obtaining written consent of

Owner.

Confidential Information 27.

Contractor is responsible to protect for a period of no less than ten (10) years from the

time of completion of the Work, any confidential Owner information which it may be

entrusted with or come to discover in the execution of its Work. Unless otherwise

informed by Owner in writing, Contractor shall presume that all information in its

possession including, without limitation, details about the Work, other work at the

Site or otherwise on Owner’s property is confidential information of Owner. Failure

to meet the above shall constitute a material breach hereunder.

Contract Includes Entire Agreement 28.

This Contract embodies the entire agreement between Owner and Contractor.

Contractor represents that in entering into this Contract it does not rely on any

previous oral or implied representation, inducement, or understanding of any kind.

Any changes in the provisions of this Contract, or in the attachments hereto, made

subsequent to the execution hereof, shall be made in writing and executed in the same

manner as this Contract. Failure of Owner to enforce or insist upon any obligation of

Contractor, or of any term or condition, under this Contract shall not be deemed to be

a waiver by Owner of such obligation or term or condition.

Limitations of Liability 29.

a) Owner shall under no circumstances be liable for any consequential, incidental

or special damages of Contractor, and Contractor hereby waives and releases all

such claims, even if such damages are caused by the negligence, strict liability, or

other fault of Owner.

b) Both parties hereto expressly agree and absolutely waive any and all right to

bring any demand, claim, or action against the other for exemplary, treble or

punitive damages in any forum, under any theory of recovery, at any time, even

if such damages are caused by the negligence, strict liability, or other fault of

either party.

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c) Owner may require Contractor’s employees sign a Site Access Agreement before

a badge is issued or access to Owner’s premises is allowed. The Site Access

Agreement may contain an arbitration clause in addition to other site specific

provisions or requirements of Owner. Owner may, at its sole discretion, deny

access to any person refusing to sign the Site Access Agreement.

Arbitration 30.

a) Any controversy or claim arising out of or relating to this Contract, or the breach

thereof, shall be resolved by arbitration by a mutually agreed upon single arbitrator

unless one party hereto requests a panel of three arbitrators in which event the

arbitration shall be decided by a panel of three neutral arbitrators. The arbitration

shall be conducted in accordance with the latest Construction Industry Arbitration

Rules of the American Arbitration Association, in Houston, Texas, and judgment

upon the award rendered by the arbitrator(s) may be entered in any court having

jurisdiction thereof. The arbitrator(s) shall provide the parties with a written

explanation of the reasoning behind the decision and award. If a sole arbitrator is

utilized, he shall be unbiased and shall not have worked as an employee or arbitrator

for either party. If three arbitrators are utilized, each shall meet the same criteria.

b) Notice of such arbitration shall be sent to the Contractor at the address for notice on

the Contract Summary Form, and to Owner at the address for notice on the Contract

Summary Form, with a copy to:

9 Peach Tree Hill Road

Livingston. New Jersey 07039

Attention: Legal Department

c) Either party, at its sole discretion, may include by joinder persons or entities

substantially involved in a common question of law or fact whose presence is

required if complete relief is to be accorded in arbitration, provided that the party

sought to be joined consented to such joinder in their respective contracts (see 3.2(d))

or otherwise consents in writing to such joinder. Consent to arbitration involving an

additional person or entity shall not constitute consent to arbitration of any claim,

dispute or other matter in question not described in the written consent. Owner and

Contractor grant to any person or entity made a party to an arbitration conducted

under this joinder provision the same rights of joinder and consolidation as the Owner

and Contractor under this Agreement.

d) The foregoing agreement to arbitrate and to arbitrate with an additional person or

entity are independent obligations and shall be specifically enforceable under

applicable law in any court having jurisdiction thereof.

e) The prevailing party in any arbitration of this Contract shall recover its reasonable

attorneys’ fees, and all expenses incurred in the arbitration, including reasonable

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expert witness fees, reasonable travel expenses of witnesses, and fees and expenses of

the American Arbitration Association and the arbitrators.

f) The arbitrator or arbitration panel shall upon the request of either party enter a

confidentiality order that prevents the disclosure of Confidential Information

described in Section 27, and the claims, evidence and award that are the subject of the

arbitration.

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Exhibit 1

Exhibit 1(a) Conditional Waiver and Release on Progress Payment

(Pursuant to Texas Property Code §53.284(b))

Project

Job No.

On receipt by the signer of this document of a check from

______________________________________ (person with whom signer contracted) in the sum

of $______________________ payable to ___________________ (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is

drawn, this document becomes effective to release any mechanic’s lien right, any right arising

from a payment bond that complies with a state or federal statute, any common law payment

bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute

related to claim or payment rights for persons in the signer’s position that the signer has on the

property of _______________ (owner) located at _____________ (location) to the following

extent: ______________________________ (job description).

This release covers a progress payment for all labor, services, equipment, or materials

furnished to the property or to ________________________ (person with whom signer

contracted) as indicated in the attached statement(s) or progress payment request(s), except for

unpaid retention, pending modifications and changes, or other items furnished.

Before any recipient of this document relies on this document, the recipient should verify

evidence of payment to the signer.

The signer warrants that the signer has already paid or will use the funds received from

this progress payment to promptly pay in full all of the signer’s laborers, subcontractors,

materialmen, and suppliers for all work, materials, equipment, or services provided for or to the

above referenced project in regard to the attached statement(s) or progress payment request(s).

Date

(Company Name) By _____________________________ (Signature) (Title)

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Exhibit 1

STATE OF TEXAS §

§

COUNTY OF ________ §

This instrument was ACKNOWLEDGED before me by

___________________________ (signer’s name), as _____________________ (title) of

___________________________ (company) known to me to be the person whose name is

subscribed to the foregoing instrument, who after being duly sworn acknowledged to me that the

same was the act of ________________________________ (company) and that he/she executed

same as an act of such company for the purposes and consideration stated therein.

Given under my hand and seal of office, this the ______ day of __________________,

20_____.

__________________________________________

NOTARY PUBLIC, STATE OF TEXAS

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Exhibit 1

Exhibit 1(b)

Conditional Waiver and Release on Final Payment

(Pursuant to Texas Property Code §53.284(d))

Project

Job No.

On receipt by the signer of this document of a check from

_______________________________________ (person with whom signer contracted) in the

sum of $___________________ payable to ___________________ (payee or payees of check)

and when the check has been properly endorsed and has been paid by the bank on which it is

drawn, this document becomes effective to release any mechanic’s lien right, any right arising

from a payment bond that complies with a state or federal statute, any common law payment

bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute

related to claim or payment rights for persons in the signer’s position that the signer has on the

property of ______________ (owner) located at ____________________ (location) to the

following extent: _________________________ (job description).

This release covers the final payment to the signer for all labor, services, equipment, or

materials furnished to the property or to ________________________________ (person with

whom signer contracted).

Before any recipient of this document relies on this document, the recipient should verify

evidence of payment to the signer.

The signer warrants that the signer has already paid or will use the funds received from

this final payment to promptly pay in full all of the signer’s laborers, subcontractors,

materialmen, and suppliers for all work, materials, equipment, or services provided for or to the

above referenced project up to the date of this waiver and release.

Date


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Exhibit 1

STATE OF TEXAS §

§









20_____.

__________________________________________


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Exhibit 1

Exhibit 1(c)

All Bills Paid Affidavit

The State of _________ §

§

County of ___________ §

BEFORE ME, the undersigned authority, on this day personally appeared __________,

who upon his oath did depose and state as follows:

“My name is _____________________. I am the _____________________ or

authorized officer of ___________________, hereinafter referred to as “Contractor”. I am over

18 years of age, have personal knowledge of the facts set forth below and am competent and

authorized to make this Affidavit.

Contractor swears, affirms, warrants and represents that all of its subcontractors

consultants, suppliers, vendors and/or laborers that have supplied services, labor, materials,

and/or equipment to Contractor in connection with Contractor’s Work for Owner have been paid

in full, except for those listed on the attached Ex. A, if any. Contractor further swears, warrants

and represents that all items listed on Ex. A, if any, will be paid by Contractor from funds paid

by Owner in reliance on this Affidavit. If none are listed or if there is no Ex. A attached, then

Contractor swears and affirms that there are none under penalty of perjury. Contractor further

agrees to release, indemnify, defend and hold Owner harmless of and from any and all claims,

liabilities, demands, damages or costs, including attorneys’ fees and expenses, which Owner may

incur by virtue of the Contractor’s failure to pay any of its subcontractors, consultants, suppliers,

vendors and/or laborers in connection with the Work.”

Contractor:________________________________

By:______________________________________

Printed Name: ____________________________

Title: ____________________________________

Sworn to and subscribed before me by ________________________on this ______ day

of________________________, 20__.

___________________________________

Notary Public in and for the

State of ___________

My commission expires:

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Exhibit 1

NOTICE: THIS DOCUMENT WAIVES RIGHTS UNCONDITIONALLY AND STATES

THAT YOU HAVE BEEN PAID FOR GIVING UP THOSE RIGHTS. IT IS

PROHIBITED FOR A PERSON TO REQUIRE YOU TO SIGN THIS DOCUMENT IF

YOU HAVE NOT BEEN PAID THE PAYMENT AMOUNT SET FORTH BELOW. IF

YOU HAVE NOT BEEN PAID, USE A CONDITIONAL RELEASE FORM.

Exhibit 1(d)

Unconditional Waiver and Release on Final Payment

(Pursuant to Texas Property Code §53.284(e))

Project ________________

Job No. _______________

The signer of this document has been paid in full for all labor, services, equipment, or materials

furnished to the property or to _________________ (person with whom signer contracted) on the

property of___________________ located at ______________________________________

(location) to the following extent: _______________________________ (job description). The

signer therefore waives and releases any mechanic’s lien right, any right arising from a payment

bond that complies with a state or federal statute, any common law payment bond right, any

claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or

payment rights for persons in the signer’s position.

The signer warrants that the signer has already paid or will use the funds received from this final

payment to promptly pay in full all of the signer’s laborers, subcontractors, materialmen, and

suppliers for all work, materials, equipment, or services provided for or to the above referenced

project up to the date of this waiver and release.

Date


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Exhibit 1

STATE OF TEXAS §

§









20_____.

__________________________________________


_________________________________________ NOTARY PUBLIC, STATE OF T