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05-05-08 TC Agenda Packet
TOWN OF J TEXAS BOARD OF ALDERMEN REGULAR MEETING AGENDA May 5, 2008 WESTLAKE CIVIC CAMPUS 2600 J. T. OTTINGER ROAD t 7:00 p.m. s 1. CALL TOORDER. 2. CITIZENS' PRESENTATIONS: This is an opportunity for citizens to address the Board on any matter whether or not it is posted on the agenda. The Board cannot by law take action nor have any discussion or deliberations on any presentation made to the Board at this time concerning an item not listed on the agenda. Any item presented may be noticed on a future agenda for deliberation or action. 3. CONSIDER A RESOLUTION AUTHORIZING AGREEMENT WITH STEELE & FREEMAN, INC. FOR CONSTRUCTION MANAGER AT-RISK SERVICE FOR THE WESTLAKE ARTS AND SCIENCES CENTER BUILDING PROJECT LOCATED ON THE WESTLAKE CIVIC CAMPUS. . CONSIDER A RESOLUTION AUTHORIZING AN AGREEMENT WITH NORTH TEXAS CONTRACTING, INC. FORT E RELOCATION OF APPROXIMATELY 1,400 LF WATER AND 710 LF SANITARY SEWER LINES AS INCLUDED IN THE CONTRACT. 5. CONSIDER A RESOLUTION AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN INTERLOCAL AGREEMENT WITH THE CITE' OF FORT WORTH FOR THE ENVIRONMENTAL COLLECTION CENTER AND HOUSEHOLD HAZARDOUS WASTE PROGRAM. 6. DISCUSS AND CONSIDER RECOGNITION FOR OUTGOING PUBLIC OFFICIALS. 7. CONSIDER A RESOLUTION RATIFYING THE ACCEPTANCE AND EXECUTION OF AN AGREEMENT WITH AKIN GUMP STRAUSS HAUER & FELD,LLP FOR LEGISLATIVE SERVICES RELATED TO THE ACADEMY. 8. CONSIDER A RESOLUTION RATIFYING THE ACCEPTANCE AND EXECUTION OF AN AGREEMENT WITH CAROL YN M. MARSHALL, CPA TO PERFORM A UTILITY RATE STUDY. 9. CONSENT AGENDA: All items listed below are considered routine by the Board of Aldermen and will be enacted with one motion. There will be no separate discussion of items unless a Board member or citizen so requests, in which event the item will be removed from the general order of business and considered in its normal sequence. A. Review and approve any outstanding bills. 10. ADJOURNMENT. ANY ITEM ON THIS POSTED AGENDA COULD BE DISCUSSED IN EXECUTIVE SESSION AS LONG AS IT IS WITHIN ONE OFT PERMITTED CATEGORIES UNDER SECTIONS 551.071 THROUGH 551.076 AND SECTION 551.087 OF THE TEXAS GOVERNMENT CODE. CERTIFICATION I certify that the above notice was posted at the Town Hall of the Town of Westlake, 3 Village Circle, and Westlake Civic Campus, 2600 J.T. Ottinger Road, Westlake, Texas, on Friday, April 18, 2008,by 5 p.m. under the Open Meetings Act, Chapter 551 of the Texas Government Code. Kim Sutter, TRMC, Town Secretary If you plan to attend this public meeting and have a disability that requires special needs, please advise the Town Secretary 48 hours in advance at 817-490-5710 and reasonable accommodations will be made to assist you. ITEM 3 Town of Westlake MAY 5,2008 Memo To: Honorable Mayor and Members of the Board of Aldermen From: Troy J. Meyer, Director of Facilities & Recreation Subject: Regular Meeting of May 5, 2008 Date: April 25, 2008 ITEM Consider a resolution authorizing an agreement with Steele & Freeman, Inc. for Construction Manager at-risk services for the `Vestlake f4—s and Sciences Center located on the Westlake Civic Campus. BACKGROUND In February 2008. the Board approved a Request For Qualifications (RFQ) for Construction Manager at Risk services for the Arts and Sciences Center located at the Civic Campus. There were eight (8) RFQ's submitted on March 20, 2008. After review by town staff and the building committee, three Construction Manager at Risk contractors presented their services to the Board of Aldermen on April 14, 2008. Steele & Freeman, Inc. was the Aldermen's first choice. On April 23, 2008, Town staff met with Steele & Freeman to negotiate services. Attached is the agreement that was reached between the Town and CM at risk. The Town attorney has reviewed the agreement. Steele & Freeman. Inc. will provide Construction Manager at Risk services covered by this agreement to include pre-construction, construction documents. and construction administration within our scope. FUNDING The funds to facilitate this agreement have been included in the adopted FY 2007-08 budget. The attached contract from Steele & Freeman, Inc. is $347,500, plus the cost of the bonds and insurance. This is only for Phase I of the project at this time. The contract is written in a way that would not obligate the town for services beyond Phase I unless needed. TOWN OF WESTLAKE RESOLUTION NO. 08-25 AUTHORIZING AN AGREEMENT WITH STEELE & FREEMAN, INC. FOR CONSTRUCTION MANAGER AT-RISK SERVICE FOR THE WESTLAKE ARTS AND SCIENCES CENTER BUILDING PROJECT LOCATED ON THE WESTLAKE CIVIC CAMPUS. WHEREAS, the Board of Aldermen finds that the construction of the additional classrooms, office space, parking areas and related space will benefit the public; and WHEREAS, the Board of Aldermen finds that the proposed Contractor at risk services of Steele & Freedman are desired to perform the pre-construction and construction services for the Arts & sciences Centers; and WHEREAS, the Board of Aldermen finds that the passage of this Resolution is in the best interest of the public, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. THAT, the above findings are hereby found to be true and correct and are incorporated herein in the entirety. SECTION 2. THAT, the Board of Aldermen of the Town of Westlake, Texas, hereby approves the agreement with Steele & Freeman Inc. relating to the Westlake Arts & Sciences Center construction on the Westlake Civic Campus, attached hereto as Exhibit "A"; and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake, Texas. PASSED AND APPROVED ON THIS 5" DAY OF MAY 2008. Scott Bradley, Mayor ATTEST: Kim Sutter. TRMC, Town Secretary Thomas E. Brvmer, Town Manager APPROVED AS TO FORM: L. Stanton Lowry, Town Attorney Document TM Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor AGREEMENT made as of the Fifth day of May in the year of Two Thousand Eight (In words, indiceae day, month crud year) ADDITIONS AND DELETIONS: The author of this document has BETWEEN the Owner: added information needed for its (Nmne and address) completion.The author may also have revised the text of the original Town of Westlake AIA standard form.An Additions and 3 Villa-e Circle,Suite 202 Deletions Report that notes added Westlake,Texas 76262 information as well as revisions to the standard form text is available and the Construction Manager: from the author and should be (Name and address) reviewed.A vertical line in the left margin of this document indicates Steele&Freeman,Inc. where the author has added 1301 Lawson Road necessary information and where Fort Worth,Texas 76131 the author has added to or deleted from the original AIA text. The Project is: This document has important legal (Name, address and brief description) consequences. Consultation with an attorney is encouraged with respect Town of Westlake Arts and Sciences Center to its completion or modification. 2600 J.T.Ottinger Road The 1997 Edition of AIA Document Westlake,Texas 76262 A201,General Conditions of the Contract for Construction,is referred The Architect is: to herein.This Agreement requires (Name and address) modification if other general conditions are utilized. Gideon Toal 500 West 7th Street Fort Worth,Texas 76102 The Owner and Construction Mana<ucr agree as set forth below: AIA Document A121T'CMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. � Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04128±2008 under Order No.1000325529_1 which expires on 10,126/2008,and is not for resale. User Notes: (1022077538) TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS §1.1 Relationship of the Parties §1.2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES §2.1 Preconstruction Phase §2.2 Guaranteed Maximum Price Proposal and Contract Time §2.3 Construction Phase §2.4 Professional Services §2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES §3.1 Information and Services §3.2 Owner's Designated Representative §3.3 Architect §3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES §4.1 Compensation §4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES §5.1 Compensation §5.2 Guaranteed Maximum Price §5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE §6.1 Costs to Be Reimbursed §6.2 Costs Not to Be Reimbursed §6.3 Discounts,Rebates and Refunds §6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE §7.1 Progress Payments §7.2 Final Payment ARTICLE 8 INSURANCE AND BONDS §8.1 Insurance Required of the Construction Manager §8.2 Insurance Required of the Owner §8.3 Perfonnance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS §9.1 Dispute Resolution §9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION §10.1 Termination Prior to Establishing Guaranteed Maximum Price §10.2 Termination Subsequent to Establishing Guaranteed Maximum Price §10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES AIA Document A121 TMCMC-2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 2 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04;28,12008 under Order No.1000325529_t which expires on 10126!2008.and is not for resale. User Notes: (1022077538) ARTICLE 1 GENERAL PROVISIONS §1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement,and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner.The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner.The Owner shall endeavor to promote harmony and cooperation among the Owner,Architect,Construction Manager and other persons or entities employed by the Owner for the Project. §1.2 GENERAL CONDITIONS For the Construction Phase,the General Conditions of the contract shall be the AIA®Document A201 T"-1997, General Conditions of the Contract for Construction,which is incorporated herein by reference.For the Preconstruction Phase,or in the event that the Preconstruction and Construction Phases proceed concurrently, A201 Tv'-1997 shall apply to the Preconstruction Phase only as specifically provided in this Agreement.The term "Contractor" as used in A201 TM_1997 shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article.The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services.If the Owner and Construction Manager agree, after consultation with the Architect,the Construction Phase may commence before the Preconstruction Phase is completed,in which case both phases will proceed concurrently. §2.1 PRECONSTRUCTION PHASE §2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget requirements,each in terms of the other. §2.1.2 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials,building systems and equipment.The Construction Manager shall provide recommendations on construction feasibility;actions designed to minimize adverse effects of labor or material shortages;time requirements for procurement, installation and construction completion;and factors related to construction cost, including estimates of alternative designs or materials,preliminary budgets and possible economies. §2.1.3 PRELIMINARY PROJECT SCHEDULE When Project requirements described in Section 3.1.1 have been sufficiently identified,the Construction Manager shall prepare,and periodically update,a preliminary Project schedule for the Architect's review and the Owner's approval.The Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the performance of the Architect's services.The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner,Architect and Construction Manager. As design proceeds,the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information,submittal of a Guaranteed Maximum Price proposal,preparation and processing of shop drawings and samples,delivery of materials or equipment requiring long-lead-time procurement,Owner's occupancy requirements showing portions of the Project having occupancy priority,and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met,the Construction Manager shall make appropriate recommendations to the Owner and Architect. §2.1.4 PHASED CONSTRUCTION The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project,taking into consideration such factors as economies,time of performance,availability of labor and materials,and provisions for temporary facilities. AIA Document A121 TMCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. VVARNING:This document is protected by U.S.Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal pens'ties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04`28/2008 under Order No.1000325529_1 which expires on 10126/2008.and is not for resale. User Notes: (1022077538) §2.1.5 PRELIMINARY COST ESTIMATES §2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria,the Construction Manager shall prepare,for the review of the Architect and approval of the Owner,a preliminary cost estimate utilizing area,volume or similar conceptual estimating techniques. §2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner,the Construction Manager shall prepare,for the review of the Architect and approval of the Owner,a more detailed estimate with supporting data.During the preparation of the Design Development Documents,the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner,Architect and Construction Manager. §2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner.During the preparation of the Construction Documents,the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner,Architect and Construction Manager. §2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget,the Construction Manager shall make appropriate recommendations to the Owner and Architect. §2.1.6 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors,including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work.The Architect will promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier.The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. §2.1.7 LONG-LEAD-TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead- time items which will constitute part of the Work as required to meet the Project schedule.If such long-lead-time items are procured by the Owner,they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal,all contracts for such items shall be assigned by the Owner to the Construction Manager,who shall accept responsibility for such items as if procured by the Construction Manager.The Construction!Manager shall expedite the delivery of long-lead-time items. §2.1.8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price.The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws,statutes,ordinances,building codes,rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith,the Construction Manager shall promptly notify the Architect and Owner in writing. §2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction Manager shall comply with applicable laws,regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. §2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME §2.2.1 When the Drawings and Specifications are sufficiently complete,the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee. §2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared,the Construction Manager shall provide in the Guaranteed Maximum Price for further development of AIA Document A121 TMCMe—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 4 Unauthorized reproduction or distribution of this document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04.2812008 under Order No.1000325529_1 which expires on 10262008,and is not for resale. User Notes: (1022077538) the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope,systems, kinds and quality of materials,finishes or equipment,all of which,if required,shall be incorporated by Change Order. §2.2.3 The estimated Cost of the Work shall include the Construction Manager's contingency,a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs arising under Section 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. §2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: .1 A list of the Drawings and Specifications,including all addenda thereto and the Conditions of the Contract,which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. A The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories,allowances,contingency,and other items and the Fee that comprise the Guaranteed Maximum Price. .5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date.of Substantial Completion is based. §2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis.In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented,they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal,its basis,or both. §2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager,the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. §2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed,the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work,except as the Owner may specifically authorize in writing. §2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal,the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1.The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contract Documents,and the Date of Substantial Completion shall be subject to adjustment as provided in the Contract Documents. §2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1.Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner,Architect and Construction Manager.The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed-upon assumptions and clarifications. §2,2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. §2.3 CONSTRUCTION PHASE §2.3.1 GENERAL §2.3.1.1 The Construction Phase shall commence on the earlier of: AIA Document A121TMCMC—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and international Treaties. Unauthorized reproduction or distribution of this document,or any portion of it.may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04!2812008 under Order No.1000325529_1 which expires on 10126/2008,and is not for resale. User Notes: (1022077538) (1) the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed,or (2) the Owner's first authorization to the Construction Manager to: (a)award a subcontract,or (b)undertake construction Work with the Construction Manager's own forces,or (c)issue a purchase order for materials or equipment required for the Work. §2.3.2 ADMINISTRATION §2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager.The Construction Manager shall obtain bids from Subcontractors and frorn suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and,after analyzing such bids,shall deliver such bids to the Owner and Architect.The Owner will then determine,with the advice of the Construction Manager and subject to the reasonable objection of the Architect,which bids will be accepted.The Owner may designate specific persons or entities from whom the Construction Manager shall obtain bids;however,if the Guaranteed Maximum Price has been established,the Owner may not prohibit the Construction Manager from obtaining bids from other qualified bidders.The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. §2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the Owner and Architect(1) is recommended to the Owner by the Construction Manager;(2) is qualified to perform that portion of the Work;and(3)has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions,but the Owner requires that another bid be accepted,then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the Owner. §2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. §2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner,Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. §2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal,the Construction Manager shall prepare a schedule in accordance with Section 3.10 of A201",'-1997,including the Owner's occupancy requirements. §2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work.The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site,number of workers,Work accomplished,problems encountered and other similar relevant data as the Owner may reasonably require.The log shall be available to the Owner and Architect. §2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes.The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. §2.4 PROFESSIONAL SERVICES Section 3.12.I0of A2011'"-1997 shall apply to both the Prcconstruction and Construction Phases. §2.5 HAZARDOUS MATERIALS Section 10.3 of A201T`t-1997 shall apply to both the Preconstruction and Construction Phases. AIA Document A1211mCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 6 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the taw. This document was produced by AIA software at 09:37:28 on 04;282008 under Order No.1000325529_1 which expires on 10126%2008,and is not for resale. User Notes: (1022077538) ARTICLE 3 OWNER'S RESPONSIBILITIES §3.1 INFORMATION AND SERVICES §3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives,constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems,and site requirements. §3.1.2 The Owner shall,at the written request of the Construction Manager prior to commencement of the Construction Phase and thereafter,furnish to the Construction Manager reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract.Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work.After such evidence has been furnished,the Owner shall not materially vary such financial arrangements without prior notice to the Construction Manager. §3.1.3 The Owner shall establish and update an overall budget for the Project,based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner. §3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS,SURVEYS AND REPORTS in the Preconstruction Phase,the Owner shall furnish the following with reasonable promptness and at the Owner's expense. Except to the extent that the Construction Manager knows of any inaccuracy,the Construction Manager shall be entitled to rely upon the accuracy of any such information,reports,surveys,drawings and tests described in Sections 3.1.4.1 through 3.1.4.4 but shall exercise customary precautions relating to the performance of the Work. §3.1.4.1 Reports,surveys,drawings and tests concerning the conditions of the site which are required by law. §3.1.4.2 Surveys describing physical characteristics,legal limitations and utility locations for the site of the Project, and a written legal description of the site.The surveys and legal information shall include,as applicable,grades and lines of streets,alleys,pavements and adjoining property and structures;adjacent drainage;rights-of-way, restrictions,easements,encroachments,zoning,deed restrictions,boundaries and contours of the site;locations, dimensions and necessary data pertaining to existing buildings,other improvements and trees;and information concerning available utility services and lines,both public and private,above and below grade,including inverts and depths. All information on the survey shall be referenced to a project benchmark. §31.4.3 The services of a geotechnical engineer when such services are requested by the Construction Manager. Such services may include but are not limited to test borings,test pits,determinations of soil hearing values, percolation tests.evaluations of hazardous materials,ground corrosion and resistivity tests,including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. §3.1.4.4 Structural,mechanical,chemical,air and water pollution tests,tests for hazardous materials,and other laboratory and environmental tests, inspections and reports which are required by law. §3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager. §3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization.This representative shall have the authority to make decisions on behalf of the Owner concerning estimates and schedules,construction budgets,and changes in the Work,and shall render such decisions promptly and furnish information expeditiously,so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Section 4.2.1 of A201T1'-1997,the Architect does not have such authority. §3.3 ARCHITECT The Owner shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services,other than cost estimating services,described in the edition oC AIA @ Document B 15 F--1997,1lbbrervuted Standard Form ofilgreement Bellveen Owner and Architect current as of the date of this Agreement.The Owner shall authorize and cause the Architect to provide those Additional Services described AIA Document A121 T'"CMC—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document Is protected by U.S.Copyright Law and International Treaties. 7 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 041282008 under Order No.1000325529_1 which expires on 10,'26%2008,and is not for resale. User Notes: (1022077538) in B15 I T''t-1997,requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work.Such services shall be provided in accordance with time schedules agreed to by the Owner,Architect and Construction Manager.Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner's Agreement with the Architect,from which compensation provisions may be deleted. §3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project.The Owner shall furnish such legal services as are necessary to provide the information and services required under Section 3.1. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: §4.1 COMPENSATION §4.1,1 For the services described in Sections 2.1 and 2.2,the Construction Manager's compensation shall_be calculated as follows: Reference Attachment#1 to AIA Document A121/CMc dated May 5,2008. (State basis of compensation, whether-a stipulated sum, multiple of Direct Personnel Expense, actual cost, etc. Include a statement of reimbursable cost items as applicable.) §4.1.2 Compensation for Preconstruction Phase Services shall be equitably adjusted if such services extend beyond Zero ( 0 )days from the date of this Agreement or if the originally contemplated scope of services is significantly modified. §4.1.3 If compensation is based on a multiple of Direct Personnel Expense,Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto,such as employment taxes and other statutory employee benefits,insurance, sick leave,holidays,vacations,pensions and similar contributions and benefits. §4.2 PAYMENTS §4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and,where applicable,shall be in proportion to services performed. §4.2.2 Payments are due and payable Thirty( 30 )days from the date the Construction Managers invoice is received by the Owner.Amounts unpaid after the elate on which payment is due shall bear interest at the rate entered below,or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located_ (Insert rate of interest agreed upon.) (Usary lairs and requirements tinder the Federal Truth in Lenditrg A(-/, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of bftsiness, the location of the Project and elsewhere may affect the 1�arlidity of this provision. Legal advice should be obtained with respect to deletions or rnodifxcations, and also regarding requirements such as written disclosures or iraivers.) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: AIA Document A121ImCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. $ Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04!28i2008 under Order No.1000325529_1 which expires on 10126!2008,and is not for resale. User Notes: (1022077538) §5.1 COMPENSATION §5.1.1 For the Construction Manager's performance of the Work as described in Section 2.3,the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 6 and the Construction Manager's Fee determined as follows: Reference Attachment#1 to AIA Document A121/CMc dated May 5,2008. (State a hasp sum,percentage of actual Cost of the Work or other provision,/or determining the Construction Manager's Fee,and explain how the Construction Manager's Fee is to be adjusted for changes in the Work.) §5.2 GUARANTEED MAXIMUM PRICE §5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1,subject to additions and deductions by changes in the Work as provided in the Contract Documents.Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price.Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. (Insert specific provisions if the Construction Manager is to participate in any savings.) §5.3 CHANGES IN THE WORK §5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Section 7.3.3 of A201T`f-1997. §5.3.2 In calculating adjustments to subcontracts(except those awarded with the Owner's prior consent on the basis of cost plus a fee),the terms"cost"and"fee"as used in Section 7.3.3.3 of A201 TM-1997 and the terms"costs"and "a reasonable allowance for overhead and profit"as used in Section 7.3.6 of A201T`f-1997 shall have the meanings assigned to them in that document and shall not be modified by this Article 5.Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. §5.3.3 In calculating adjustments to the Contract,the terms"cost" and"costs"as used in the above-referenced provisions of A201TM-1997 shall mean the Cost of the Work as defined in Article 6 of this Agreement,and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Section 5.1.1 of this Agreement. §5.3.4 If no specific provision is made in Section 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work,or if the extent of such changes is such, in the aggregate,that application of the adjustment provisions of Section 5.1.1 will cause substantial inequity to the Owner or Construction Manager,the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE §6.1 COSTS TO BE REIMBURSED §6.1.1 The term"Cost of the Work"shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the Owner.The Cost of the Work shall include only the items set forth in this Article 6. §6.1.2 LABOR COSTS .1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. .2 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agreement. AIA Document A121 T"'CMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 9 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04128/2008 under Order No.1000325529_1 which expires on 10126.2008,and is not for resale. User Notes: (1022077538) Classification Name {If it is intended that the wages or salaries of certain personnel stationed at the Construction Manager's principal gfffce or of other than the site office shall be included in the Cost of the Work, such personnel shall be identifted below.) .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories,workshops or on the road,in expediting the production or transportation of materials or equipment required for the Work,but only for that portion of their time required for the Work. .4 Costs paid or incurred by the Construction Manager I,or taxes, insurance,contributions,assessments and benefits required by law or collective bargaining agreements,and,for personnel not covered by such agreements,customary benefits such as sick leave,medical and health benefits,holidays, vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Sections 6.1.2.1 through 6.1.2.3. §6.1.3 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. §6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including transportation,of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding Section 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage.Unused excess materials,if any, shall be handed over to the Owner at the completion of the Work or,at the Owner's option,shall be sold by the Construction Manager;amounts realized,if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work. §6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT,TEMPORARY FACILITIES AND RELATED ITEMS .1 Costs, including transportation,installation,maintenance,dismantling and removal of materials, supplies,temporary facilities, machinery,equipment,and hand tools not customarily owned by the construction workers,which are provided by the Construction Manager at the site and fully consumed in the performance of the Work;and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager.Cost for items previously used by the Construction Manager shall mean fair market value. .2 Rental charges for temporary facilities,machinery,equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site,whether rented from the Construction Manager or others,and costs of transportation, installation,minor repairs and replacements,dismantling and removal thereof.Rates and quantities of equipment rented shall be subject to the Owner's prior approval. .3 Costs of removal of debris from the site. .4 Reproduction costs,costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges,telephone at the site and reasonable petty cash expenses of the site office. .5 That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. §6.1.6 MISCELLANEOUS COSTS .1 That portion directly attributable to this Contract of premiums for insurance and bonds. (I f charges for self-insurcarce are to be included,specify the basis of're imbursemew.) Reference Attachment#1 to AIA Document Al2l/CMc dated May 5,2008. .2 Sales,use or similar taxes imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable. .3 Fees and assessments for the building permit and for other permits,licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required by the Contract Documents,except those related to nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. AIA Document A121 TMCMC—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 1® Unauthori2ed reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the n aximum extent possible under the law. This document was produced by AIA software al 09:37:28 on 04'28!2008 under Order No.1000325529_1 which expires on 10/26,'2008.and is not for resale. User Notes: (1022077538) .5 Royalties and license fees paid for the use of a particular design,process or product required by the Contract Documents;the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents;payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent;provided,however,that such costs of legal defenses,judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties,fees and casts are not excluded by the last sentence of Section 3.17.1 of A201T`t-1997 or other provisions of the Contract Documents. .6 Data processing costs related to the Work. .7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. .8 Legal,mediation and arbitration costs,other than those arising from disputes between the Owner and Construction Manager,reasonably incurred by the Construction Manager in the performance of the Work and with the Owner's written permission, which permission shall not be unreasonably withheld. .9 Expenses incurred in accordance with Construction Manager's standard personnel policy for relocation and temporary living allowances of personnel required for the Work,in case it is necessary to relocate such personnel from distant locations. §6.1.7 OTHER COSTS .1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. §6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The Cost of the Work shall also include costs described in Section 6.1.1 which are incurred by the Construction Manager: 1 In taking action to prevent threatened damage,injury or loss in case of an emergency affecting the safety of persons and property,as provided in Section 10.6 of A201T`l-1997. .2 In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the Construction Manager's Subcontractors or suppliers,provided that such damaged or nonconforming Work was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in this agreement of the Construction Manager or the Construction Manager's foremen,engineers or superintendents,or other supervisory,administrative or managerial personnel of the Construction Manager,or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppliers,and only to the extent that the cost of repair or correction is not recoverable by the Construction Manager from insurance,Subcontractors or suppliers. §6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of AIA or A201I`t-1997 other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 62. §6.2 COSTS NOT TO BE REIMBURSED §6.2.1 The Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office,except as specifically provided in Sections 6.1.2.2 and 6.1.2.3. .2 Expenses of the Construction Manager's principal office and offices other than the site office,except as specifically provided in Section 6.1. .3 Overhead and general expenses,except as may be expressly included in Section 6.1. .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. .5 Rental costs of machinery and equipment,except as specifically provided in Section 6.1.5.2. .6 Except as provided in Section 6.1.8.2,costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forth in this Agreement. AIA Document A121"CMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 11 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04/28;'2008 under Order No.1000325529_1 which expires on 1012612008,and is not for resale. User Notes: (1022077538) .7 Costs incurred in the performance of Preconstruction Phase Services. .8 Except as provided in Section 6.1.7.1,any cost not specifically and expressly described in Section 6.1. .9 Costs which would cause the Guaranteed Maximum Price to be exceeded. §6.3 DISCOUNTS,REBATES AND REFUNDS §6.31 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if(I) before making the payment,the Construction Manager included them in an Application for Payment and received payment therefor from the Owner,or(2)the Owner has deposited funds with the Construction Manager with which to make payments;otherwise,cash discounts shall accrue to the Construction Manager.Trade discounts,rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner,and the Construction Manager shall make provisions so that they can be secured. §6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3.1 shall be credited to the Owner as a deduction from the Cost of the Work. §6.4 ACCOUNTING RECORDS §6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract;the accounting and control systems shall be satisfactory to the Owner.The Owner and the Owner's accountants shall be afforded access to the Construction Manager's records,books,correspondence,instructions,drawings,receipts, subcontracts,purchase orders,vouchers, memoranda and other data relating to this Project,and the Construction Manager shall preserve these for a period of three years after final payment,or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE §7.1 PROGRESS PAYMENTS §7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect,the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. §7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,or as follows: §7.1.3 Provided an Application for Payment is received by the Architect not later than the Last day of a month. the Owner shall make payment to the Construction Manager not later than the Thirtieth day of the following month. If an Application for Payment is received by the Architect after the application date fixed above,payment shall be made by the Owner not later than Thirty ( 30 )days after the Architect receives the Application for Payment. §7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls,petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed(1)progress payments already received by the Construction Manager; less(2)that portion of those payments attributable to the Construction Manager's Fee;plus(3)payrolls for the period covered by the present Application for Payment. §7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents.The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work,except that the Construction Manager's Fee shall be shown as a single separate item.The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require.This schedule, unless objected to by the Architect,shall be used as a basis for reviewing the Construction Manager's Applications for Payment. §7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment.The percentage completion shall be the lesser of(1)the perccntagc of that portion of the Work which has actually been completed or(2)the percentage obtained by dividing AIA Document A121 TMCMe—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 12 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04?28'2008 under Order No.1000325529_1 which expires on 10/2812008.and is not for resale. User Notes: (1022077538) (a)the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by(b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. §7.1.7 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the Owner of changes in the Work,amounts not in dispute may be included as provided in Section 7.3.8 of A201T`1-1997,even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or,if approved in advance by the Owner,suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee, less retainage of Ten percent ( 10.00%n ).The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5.1.1 or,if the Construction Manager's Fee is stated as a fixed sum in that Section,shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. .4 Subtract the aggregate of previous payments made by the Owner. .5 Subtract the shortfall,if any,indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment,or resulting from errors subsequently discovered by the Owner's accountants in such documentation. .6 Subtract amounts,if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of A201 T.1,1—1997. §7.1.8 Except with the Owner's prior approval,payments to Subcontractors shall be subject to retention of not less than Ten percent ( 10.00% ).The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. §7.1.9 Except with the Owner's prior approval,the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. §7.1.10 In taking action on the Construction Manager's Applications for Payment,the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the.Architect has made,a detailed examination,audit or arithmetic verification of the documentation submitted in accordance with Section 7.1.4 or other supporting data,that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations,audits and verifications, if'required by the Owner,will he performed by the Owner's accountants acting in the sole interest of the Owner. §7.2 FINAL PAYMENT §7.2.1 Final payment shall be made by the Owner to the Construction Manager when(f)the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct nonconforming Work,as provided in Section 12.2.2 of A201T"-1997,and to satisfy other requirements,if any, which necessarily survive final payment;(2)a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner's accountants;and(3)a Final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the Owner not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: §7.2.2 The amount of the final payment shall be calculated as follows: AIA Document A121 T'"CMc—2003 and AGC Document 565.Copyright O 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 13 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04/2812008 under Order No.1000325529_1 which expires on 10126'2008,and is not for resale. User Notes: (1022077538) .1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee,but not more than the Guaranteed Maximum Price. .2 Subtract amounts,if any, for which the Architect withholds,in whole or in part,a final Certificate for Payment as provided in Section 9.5.1 of A2011",1-1997 or other provisions of the Contract Documents. .3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager,the Construction Manager shall reimburse the difference to the Owner. §7,2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager.Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting,and provided the other conditions of Section 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's accountants,either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of A201 TM-1997 .The time periods stated in this Section 7.2 supersede those stated in Section 9.4.1 of A201T`1-1997. §7.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager,the Construction Manager shall be entitled to proceed in accordance with Article 9 without a further decision of the Architect. Unless agreed to otherwise,a demand for mediation or arbitration of the disputed amount shall be made by the Construction Manager within 60 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment.Failure to make such demand within this 60-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount,the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. §7.2.5 If,subsequent to final payment and at the Owner's request,the Construction Manager incurs costs described in Section 6.1 and not excluded by Section 6.2(1)to correct nonconforming Work or(2)arising from the resolution of disputes,the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee,if any,related thereto on the same basis as if such costs had been incurred prior to final payment,but not in excess of the Guaranteed Maximum Price.If the Construction Manager has participated in savings,the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. ARTICLE 8 INSURANCE AND BONDS §8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER During both phases of the Project,the Construction Manager shall purchase and maintain insurance as set forth in Section 1 1.1 oi'A201T`l-1997. Such insurance shall be written for not less than the following limits,or greater if required by law: §8.1.1 Workers'Compensation and Employers' Liability meeting statutory limits mandated by state and federal laws. If(1) limits in excess of those required by statute are to be provided,or(2)the employer is not statutorily bound to obtain such insurance coverage or(3)additional coverages are required, additional coverages and limits for such insurance shall be as follows: §8.1.2 Commercial General Liability including coverage for Premises-Operations,Independent Contractors' Protective,Products-Completed Operations,Contractual Liability,Personal Injury and Broad Form Property Damage(including coverage for Explosion,Collapse and Underground hazards): $1,000,000.00 Each Occurrence $2,000,000.00 General Aggregate $1,000.000.00 Personal and Advertising Injury $2,000,000.00 Products-Completed Operations Aggregate AIA Document A121 TmCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 14 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent passible under the law. This document was produced by AIA software at 09:37:28 on 04128%2008 under Order No.1000325529_1 which expires on 10!26!2008.and is not for resale. User Notes: (1022077538) .1 The policy shall be endorsed to have the General Aggregate apply to this Project only. 2 Products and Completed Operations insurance shall be maintained for a minimum period of at least Two ( 2 )year(s)after either 90 days following Substantial Completion or final payment, whichever is earlier. .3 The Contractual Liability insurance shall include coverage sufficient to meet the obligations in Section 3.18 of A201T`I-1997. §8.1.3 Automobile Liability(owned, non-owned and hired vehicles)for bodily injury and property damage: $1,000,000.00 Each Accident §8.1.4 Other coverage: Umbrella Liability: $10,000,000 Each Occurrence,General Aggregate,ProductslComplete Operations. (If Umbrella Excess Liability coverage is required over the prirnca-y insurance or retention, insert the coverage limits. Commercial General Liability and Automobile Liability=limits may be attained by individual policies or by a combination of primary policies and Umbrella toad/or Excess Liability policies. If Project Management Protective Liability Insurance is to be provided, state the limits here.) §8.2 INSURANCE REQUIRED OF THE OWNER During both phases of the Project,the Owner shall purchase and maintain liability and property insurance, including waivers of subrogation,as set forth in Sections 1 L2 and 11.4 of A201 TM-1 997.Such insurance shall be written for not less than the following limits,or greater if required by law: §8.2.1 Property Insurance: Deductible Per Occurrence Aggregate Deductible §8.2.2 Boiler and Machinery insurance with a limit of: (If not a blanket police, list the objects to be insured.) §8.3 PERFORMANCE BOND AND PAYMENT BOND §8.3.1 The Construction Manager shall (Insert"shall"or"shall not")furnish bonds covering faithful performance of the Contract and payment of obligations arising there under.Bonds may be obtained through the Construction Manager's usual source,and the cost thereof shall be included in the Cost of the Work.The amount of each bond shall be equal to One hundred percent ( 100.00% )of the Contract Sum. §8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least three days before the commencement of any Work at the Project site. ARTICLE 9 MISCELLANEOUS PROVISIONS §9.1 DISPUTE RESOLUTION §9.1.1 During both the Preconstruction and Construction Phases,Claims,disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Sections 4.3 through 4.6 of A201 TM-1997 except that,during the Preconstruction Phase,no decision by the Architect shall be a condition precedent to mediation or arbitration. §9.2 OTHER PROVISIONS §9.2.1 Unless otherwise noted,the terms used in this Agreement shall have the same meaning as those in A201T t- 1997,Gerneral Conditions of the Contract for Construction. §9.2.2 EXTENT OF CONTRACT This Contract,which includes this Agreement and the other documents incorporated herein by reference,represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations,representations or agreements,either written or oral.This Agreement may be amended only by written AIA Document A1211'CMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 15 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04%28%2008 under Order No.1000325529_1 which expires on 10%26,2008,and is not for resale. User Notes: (1022077538) instrument signed by both the Owner and Construction Manager.If anything in any document incorporated into this Agreement is inconsistent with this Agreement,this Agreement shall govern. §9.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of A201T"1-1997 shall apply to both the Preconstruction and Construction Phases. §9.2.4 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located. §9.2.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves,their partners,successors,assigns and legal representatives to the other party hereto and to partners,successors,assigns and legal representatives of such other party in respect to covenants,agreements and obligations contained in the Contract Documents.Except as provided in Section 13.2.2 of A201 T"1-1997,neither party to the Contract shall assign the Contract as a whole without written consent of the other.If either party attempts to make such an assignment without such consent,that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION §10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE §10.1.1 Prior to execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price,the Owner may terminate this Contract at any time without cause,and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1 of A201T"t-1997. §101.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 prior to commencement of the Construction Phase,the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination;provided,however,that the compensation for such services shall not exceed the compensation set forth in Section 4.1.1. §10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase,the Construction Manager shall,in addition to the compensation provided in Section 10.1.2,be paid an amount calculated as follows: A Take the Cost of the Work incurred by the Construction Manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section,an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation,either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1.To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders(including rental agreements),the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10,execute and deliver all such papers and take all such steps,including the legal assignment of such subcontracts and other contractual rights of the Construction Manager,as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts,purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendment No. I shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment,the Owner shall reimburse or indemnify the Construction Manager with respect to all costs arising under the subcontract,purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated.If the Owner elects not to accept the assignment of any subcontract,purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated,the Construction Manager shall AIA Document A121 TICMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 16 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04128%2008 under Order No.1000325529_1 which expires on 10/2612008,and is not for resale. User Notes: (1022077538) terminate such subcontract,purchase order or rental agreement and the Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such termination. §10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1,the Contract may be terminated as provided in Article 14 of A20IT'`f-1997. §10.2.1 In the event of such termination by the Owner,the amount payable to the Construction Manager pursuant to Section 14.1.3 of A201T111-1997 shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Sections 10.1.2 and 10.1.3 of this Agreement. §10.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Section 14.1.3 of A20IT1,'-1997 shall not exceed the amount the Construction Manager would have been entitled to receive under Sections 10.1.2 and 10.1.3 above,except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. §10.3 SUSPENSION The Work may be suspended by the Owner as provided in .Article 14 of A20 T%1-1997;in such case,the Guaranteed Maximum Price,if established,shall be increased as provided in Section 14.3.2 of A201T11-1997 except that the term "cost of performance of the Contract" in that Section shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Sections 5.1.1 and 5.3.4 of this Agreement. ARTICLE 11 OTHER CONDITIONS AND SERVICES This Agreement entered into as of the day and year first written above. OWNER CONSTRUCTION MANAGER (Signature) (Signanrre) Michael D.Freeman, President (Printed name and title) (Printed name and title) Date Date May 5,2005 ATTEST ATTEST Dena Rowland,Secretary AIA Document A121 TMCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and International Treaties. 17 Unauthorized reproduction or distribution of this document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04128!2008 under Order No.1000325529_1 which expires on 10126'2008;and is not for resale. User Notes: (1022077538) Additions and eletions Report for AIA®Document A121TMCMc— 2003 and AGC Document 565 This Additions and Deletions Report,as defined on page 1 of the associated document,reproduces below all text the author has added to the standard form AIA document in order to complete it,as well as any text the author may have added to or deleted from the original AIA text.Added text is shown underlined.Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document.This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 09:37:28 on 04/2812008. PAGE made as of the Fifth day of May in the year of Two Thousand Eight Town of Westlake 3 Village Circle.Suite 202 Westlake,Texas 76262 Steele&Freeman,Inc. 1301 Lawson Road Fort Worth Texas 76131 Town of Westlake Arts and Sciences Center 2600 J.T.Ottineer Road Westlake.Texas 76262 Gideon Toal 500 West 7th Street Fort Worth,Texas 76102 PAGE 8 Reference Attachment#1 to AIA Document A121/CMe dated May 5.2008. §4.1.2 Compensation for Preconstruction Phase Services shall be equitably adjusted if such services extend beyond Zero ( 0 )days from the date of this Agreement or if the originally contemplated scope of services is significantly modified. §4.2.2 Payments are due and payable Thirtv( 30 )days from the date the Construction Manager's invoice is received by the Owner.Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below,or in the absence thereof,at the legal rate prevailing from time to time at the place where the Project is located. PAGE 9 Reference Attachment#1 to AIA Document A121/CMc dated May 5.2008. PAGE 10 Reference Attachment#1 to AIA Document A121/CMc dated May 5, 2008. Additions and Deletions Report for AIA Document A121 TICMC—2003 and AGC Document 565.Copyright O 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and 1 international Treaties.Unauthorized reproduction or distribution of this document,or any portion of it..may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04;28:2008 under Order No.1000325529_1 which expires on 10'26.2008,and is not for resale. User Notes: (1022077538) PAGE 12 §7.1.3 Provided an Application for Payment is received by the Architect not later than the Last day of a month,the Owner shall make payment to the Construction Manager not later than the Thirtieth day of the following month.If an Application for Payment is received by the Architect after the application date fixed above,payment shall be made by the Owner not later than Thirty ( 30 )days after the Architect receives the Application for Payment. PAGE 13 3 Add the Construction Manager's Fee, less retainage of Ten percent ( 10.00% ).The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5.1.1 or,if the Construction Manager's Fee is stated as a fixed sum in that Section,shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. §7.1.8 Except with the Owner's prior approval,payments to Subcontractors shall be subject to retention of not less than Ten percent ( 10.00% ).The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. PAGE 14 $1.000.000.00 Each Occurrence $2,000,000.00 General Aggregate $1.000.000.00 Personal and Advertising Injury $2,000.000.00 Products-Completed Operations Aggregate PAGE 15 2 Products and Completed Operations insurance shall be maintained for a minimum period of at least Two ( 2 )year(s)after either 90 days following Substantial Completion or final payment, whichever is earlier. $1,000.000.00 Each Accident Umbrella Liability: $10.000.000 Each Occurrence.General Aggregate.Products/Complete Operations. §83.1 The Construction Manager shall (Insert"shall"or"shall not")furnish bonds covering faithful performance of the Contract and payment of obligations arising t",feli;ldeF.there under.Bonds may be obtained through the Construction Manager's usual source,and the cost thereof shall be included in the Cost of the Work.The amount of each bond shall be equal to One hundred percent ( 100.00/0 )of the Contract Sum. PAGE 17 Michael D. Freeman,President Date Date May 5,2008 ATTEST ATTEST Dena Rowland,Secretary Additions and Deletions Report for AIA Document A121 TMCMc—2003 and AGC Document 565.Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING:This document is protected by U.S.Copyright Law and 2 International Treaties.Unauthorized reproduction or distribution of,his document,or any portion of it..may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:37:28 on 04.'28/2008 under Order No.1000325529_1 which expires on 1012612008,and is not for resale. User Notes: (1022077538) Certification of Document's Authenticity AIAO Document D40I TM — 2003 I, ,hereby certify,to the best of my knowledge,information and belief,that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 09:37:28 on 04/28/2008 under Order No. 1000325529_I from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA°Document Al2 I T'tCMe—2003 and AGC Document 565- Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor,as published by the AIA in its software,other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401 TM—2003.Copyright©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING:This ACA"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AiA"Document,or any portion of it, 1 may result in severe civil and criminal penalties..and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 09:37:28 on 04/2812008 under Order No.1000325529_1 which expires on 10.126?2008.and is not for resale. User Notes: (1022077538) ATTACHMENT #1 TO THE STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER THE PROJECT REFERENCED IN THE "AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER" IS: Arts and Sciences Center Town of Westlake Westlake, Texas 1. Article 4, Paragraph 4.1.1 To include personnel expenses, project estimates, preliminary project schedule, value engineering, constructability reviews, pre-planning, overhead and profit, and other services, through the design and construction document phases to conclude with the establishment of the guaranteed maximum price. Pre-construction Service Fee 10,000.00 2. Article 5, Paragraph 5.1.1 Home office personnel Job Office Rental Operations Manager Printing -Shop and Record Drawings Project Manager Pick-up truck rental Superintendent Haul and Set up trailers Assistant Superintendents Fuel and Maintenance for Pick-up Secretarial Support Two-way Radios Employee Benefits for above Project Office Telephones Worker's Compensation for above First Aid Supplies Project Office Supplies Temp. Fire Extinguishers for Constr. Personnel Relocation Drug Screens (SFI personnel only) Project Office Utilities Project Schedules Travel and Lodging Accounting and Audit Fees Project Office Machines Data Processing AGC Trade Association Fees Wafer, Ice, Cups for Vgmf Team Portable toilets for Management Trailer Profit portion of Construction Phase Fee 87,500.00* *Based on an estimated total construction cost of $2,500,000.00. A percentage fee of 3.5% shall be applied to any sum greater than the original fee basis and for changes in the work resulting in an increase in the Guaranteed Maximum Price. Steele&Freeman,Inc. Attachment#1 to A IA/A 121 May 5,2008 Art and Sciences Center Page 1 of 3 Overhead portion of the Construction Phase Fee 250,000.00* *Based on a ten -month construction duration. A monthly fee of $25,000 shall be applied for any approved additional construction duration beyond the original fee basis. 2. Article 6, Paragraph 6.1.6.1 a. The Construction Manager shall be paid for providing Payment Bond, Performance Bond and 2-Year Maintenance Bond according to the following percentage to be applied to the Guaranteed Maximum Price and for changes in the work resulting in an increase in the Guaranteed Maximum Price: 1.10% of the Guaranteed Maximum Price b. The Construction Manager shall be paid for providing General Liability & Umbrella Insurance according to the following percentage to be applied to the Guaranteed Maximum Price and for changes in the work resulting in an increase in the Guaranteed Maximum Price: 0.60% of the Guaranteed Maximum Price c. The Construction Manager shall be paid for providing Builders Risk Insurance according to the following percentage to be applied to the Guaranteed Maximum Price and for changes in the work resulting in an increase in the Guaranteed Maximum Price: 0.18% of the Guaranteed Maximum Price Steele&Freeman, Inc. Attachment'I I to AIA/A 121 May 5,2008 Art and Sciences Center Page 2 of 3 EXECUTED this 5th day of May, 2008 OWNER: CONSTRUCTION MANAGER: TOWN OF WESTLAKE STEELE & FREEMAN, INC. By: By: Michael D. Freeman Title: Title: President, Steele & Freeman, Inc. ATTEST: ATTEST: By: By: Dena Rowland Title: Title: Secretary, Steele & Freeman, Inc. Steele&Freeman,Inc. Attachment#1 to AIA/A 121 May 5,2008 Art and Sciences Center Page 3 of 3 Exhibit AMENDMENT N . 2 TO AGREEMENT BETWEEN TOWN OF WESTLAKE AN CONTRACTOR S'TEELE & FREEMAN DATE: May 5, 2008 CONTRACT DATE: May 5, 2008 OWNER: Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 CONTRACTOR: Steele & Freeman, Inc. 1301 Lawson Road Fort Worth, Texas 76131 ARCHITECT(s): Gideon Toal 500 West 7th Street, Suite 1400 Fort Worth, TX 76102 PROJECT: Arts and Sciences Center THIS AMENDMENT NO. 2 TO THE AGREEMENT BETWEEN THE TOWN OF WESTLAKE AND STEELE & FREEMENT ( the "Amendment No. 2") is dated as of the 5`1' day of May in the year 2008, by and between the Town of Westlake, Texas (hereinafter called OWNER) and Steele & Freeman inc.. (hereinafter called CONTRACTOR), and made a part of the Contract of even date between the Owner and Contractor(the -Contract") OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree to this Amendment No. 2, by amending the Contract as follows: Article 1. WEB SITE CONTRACTOR shall provide Owner a Nvebsite with weekly written updates and photographs of the project. Article 2. ON SITE STAFF CONTRACTOR shall provide a superintendent on-site when work is being done by the sub-contractors. Article 3. LIQUIDATED DAMAGES CONTRACTOR agrees to pay a $1,000.00 per day to the Owner each calendar day beyond the Date of Substantial Completion. The Date of Substantial Completion will be determined and agreed upon with the Guaranteed Maximum Price and adjusted in Change Orders, if necessary, during the course of construction. Substantial Completion define as fined in AIA A201 sections 9.8.1,9.8.2,9.8.3,9.8.4 and 9.8.5. Article 4. CLAIMS OR DISPUTES The following sections, A121 Article 9 sec 9.1, and A201 all of 4.4.1, Arbitration Sec. 4.6 .1 -4.6.6 are hereby deleted and replaced with the below statement. "The parties agree that any claims or disputes that cannot be resolved must first be sent to non-binding mediation with a mediator to be agreed upon by the parties. The costs of the mediation shall be borne equally by the parties. Mediation is a prerequisite to the initiation of any legal action regarding the terms, conditions, obligations, remedies or interpretation of this Agreement." Article 5 The Owner reserves the right to bid the furniture, AV equipment and landscaping as a cost saving measure. Article 6. RETAINAGE The construction manager fee, less retainage of 10%. The 10% retainage will be deposited in an interest-bearing account with interest earned paid to the contractor. EXECUTED this 5th day of May, 2008. OWNER: CONSTRUCTION MANAGER: By: By: Michael D. Freeman Title: Title: President, Steele & Freeman, I nc. ATTEST: By: Title: ADocument A201 TM General Conditions of the Contract for Construction for the following PROJECT: (Name and location or address): ADDITIONS AND DELETIONS: Town of Westlake Arts and Sciences Center The author of this document has 2600 J.T.Cittinger Road added information needed for its Westlake,Texas 76262 completion.The author may also have revised the text of the original THE OWNER: AIA standard form.An Additions and (Name and address): Deletions Report that notes added Town of Westlake information as well as revisions to 3 Village Circle, Suite 202 the standard form text is available Westlake,Texas 76262 from the author and should be reviewed.A vertical line in the left THE ARCHITECT: margin of this document indicates (Name and address): where the author has added Gideon Toal necessary information and where 500 West 7th Street the author has added to or deleted Fort Worth,Texas 76102 from the original AIA text. This document has important legal consequences. Consultation with an TABLE OF ARTICLES attorney is encouraged with respect to its completion or modification. 1 GENERAL PROVISIONS This document has been approved and endorsed by The Associated 2 OWNER General Contractors of America 3 CONTRACTOR 4 ADMINISTRATION OF THE CONTRACT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 1 reproduction or distribution of this AIA' Document..or any portion,of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529_1 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) INDEX 3.1.3,4.2,4.3.4,4.4,9.4,9.5 (Numbers and Topics in Bold are Section Headings) Architect's Approvals 2.4,3.1.3,3.5.1,3.10.2,4.2.7 Acceptance of Nonconforming Work Architect's Authority to Reject Work 9.6.6,9.9.3,12.3 3.5.1,4.2.6, 12.1.2, 12.2.1 Acceptance of Work Architect's Copyright 9.6.6,9.82,9.9.3,9.10.1,9.10.3, 12.3 1.6 Access to Work Architect's Decisions 3.16,6.2.1, 12.1 4.2.6,4.2.7,4.2.11,4.2.12,4.2.13,4.3.4,4.4.1,4.4.5, Accident Prevention 4.4.6,4.5,6.3,7.3.6,7.3.8,8.1.3, 8.3.1,9.2,9.4, 42.3, 10 9.5.1,9.8.4,9.9.1, 13.5.2, 14.2.2, 14.2.4 Acts and Omissions Architect's Inspections 3.2,3.3.2,3.118,3.18,4.2.3,4.3.8,4.4.1,8.3.1, 4.2.2,4.2.9,43.4,9.42,9.8.3,9.9.2,9.10.1, 13.5 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1 Architect's Instructions Addenda 3.2.3,33.1,4.2.6,4.2.7,4.2.8,7.4.1, 12.1, 13.5.2 1.1.1,3.11 Architect's Interpretations Additional Costs,Claims for 4.2.11,4.2.12,4.3.6 4.3.4,4.3.5,4.3.6,6.1.1, 10.3 Architect's Project Representative Additional Inspections and Testing 4.2.10 9.8.3, 12.2.1, 13.5 Architect's Relationship with Contractor Additional Time,Claims for 1.1.2, 1.6,3.1.3,32.1,3.2.2,3.2.3,3.3.1,3.4.2,3.5.1, 4.3.4,4.3.7,8.3.2 3.7.3,3.10,3.11,3.12,3.16,3.18,4.1.2,4.1.3,4.2, ADMINISTRATION OF THE CONTRACT 4.3.4,4.4.1,4.4.7,5.2,6.2.2,7,8.3.1,9.2,9.3,9.4, 3.1.3,4,9.4,9.5 9.5,9.7,9.8,9.9, 10.2.6, 10.3, 11.3, 11.4.7. 12, Advertisement or Invitation to Bid 13.4.2, 13.5 1.1.1 Architect's Relationship with Subcontractors Aesthetic Effect 1.1.2,4.2.3,4.2.4,4.2.6,9.6.3,9.6.4, 11.4.7 4.2.13,4.5.1 Architect's Representations Allowances 9.4.2,9.5.1,9.10.1 3.8 Architect's Site Visits All-risk Insurance 4.2.2,4.2.5,4.2.9,4.3.4,9.4.2,9.5.1,9.9.2.9.10.1, 11.4.1.1 13.5 Applications for Payment Asbestos 4.2.5,7.3.8,9.2,9.3,9.4,9.5.1,9.6.3,9.7.1,9.8.5, 10.3.1 9.10, 11.1.3, 14.2.4, 14.43 Attorneys' Fees Approvals 3.18.1,9.10.2, 10.3.3 2.4,3.1.3,3.5,3.10.2, 3.12,4.2.7,9.3.2, 13.4.2, 13.5 Award of Separate Contracts Arbitration 6.1.1,6.1.2 4.3.3,4.4,4.5.1,4.5.2,4.6,8.3.1,9.7.1, 11.4.9, Award of Subcontracts and Other Contracts for 1 1.4.10 Portions of the Work Architect 5.2 4.1 Basic Definitions Architect,Definition of 1.1 4.1.1 Bidding Requirements Architect,Extent of Authority 1.1.1, 1.1.7,5.2.1, 11.5.1 2.4,3.12.7,4.2,4.3.6,4.4,52,6.3,7.1.2,7.3.6,7.4, Boiler and Machinery Insurance 9.2,9.3.1,9.4,9.5,9.8.3,9.10.1, 9.10.3, 12.1, 12.2.1, 11.4.2 13.5.1, 13.5.2, 14.2.2, 14.2.4 Bonds,Lien Architect,Limitations of Authority and 9.10.2 Responsibility Bonds,Performance,and Payment 2.1.1,3.33,3.12.4,3.12.8,3.12.10,4.12,42.1, 7.3.6.4,9.6.7,9.10.3, 11.4.9, 11.5 4.2.2,4.2.3,4.2.6,4.2.7,4210,4.2.12,4.2.13,4.4, Building Permit 52.1,7.4,9.42,9.6.4,9.6.6 3.7.1 Architect's Additional Services and Expenses Capitalization 2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 142.4 1.3 Architect's Administration of the Contract Certificate of Substantial Completion AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 2 reproduction or distribution of this AIA'` Document,or any portion of it,may result in severe civil and criminal penalties.and wilt be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529_I which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) 9.8.3,9.8.4,9.8.5 1.6.1,3.2.2,3.6,3.7,3.12.10,3.13,4.1.1,4.4.8,4.6.4, Certificates for Payment 4.6.6,9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 4.2.5,4.2.9,9.3.3,9.4,9.5,9.6.1,9.6.6,9.7.1,9.10.1, 13.5.2, 13.6, 14.1.1, 142.1.3 9.10.3, 13.7. 14.1.1.3, 14.2.4 Concealed or Unknown Conditions Certificates of Inspection,Testing or Approval 4.3.4,8.3.1, 10.3 13.5.4 Conditions of the Contract Certificates of Insurance 1.1.1, 1.1.7,6.1.1,6.1.4 9.10.2, 11.1.3 Consent,Written Change Orders 1.6,3.4.2,3.12.8,3.14.2,4.1.2,4.3.4,4.6.4,9.3.2, 1.1.1,2.4.1,3.42.3.8.2.3,3.11.1,3.12.8,42.8,4.3.4, 9.8.5,9.9.1,9.10.2,9.10.3, 11.4.1, 13.2, 13.4.2 4.3.9,5.2.3,7.1,7.2,7.3,8.3.1,9.3.1.1,9.10.3, CONSTRUCTION BY OWNER OR BY 11.4.1.2, 11.4.4,11.4.9, 12.1.2 SEPARATE CONTRACTORS Change Orders,Definition of 1.1.4,6 7.2.1 Construction Change Directive,Definition of CHANCES IN THE WORD 7.3.1 3.11,4.2.8,7,8.3.1,9.3.1.1, 11.4.9 Construction Change Directives Claim,Definition of 1.1.1,3.12.8,4.2.8,4.3.9,7.1,7.3,9.3.1.1 4.3.1 Construction Schedules,Contractor's Claims and Disputes 1.4.1.2,3.10,3.12.1,3.12.2,4.3.7.2,6.1.3 32.3,4.3,4.4,4.5,4.6,6.1.1,6.3,7.3.8,9.3.3,9.10.4, Contingent Assignment of Subcontracts 10.3.3 5.4,14.2.2.2 Claims and Timely Assertion of Claims Continuing Contract Performance 4.6.5 4.3.3 Claims for Additional Cost Contract,Definition of 3.2.3,4.3.4,4.3.5.4.3.6,6.1.1,7.3.8, 10.3.2 1.1.2 Claims for Additional Time CONTRACT,TERMINATION OR 3.2.3,4.3.4,4.3.7,6.1.1,8.3.2, 10.3.2 SUSPENSION OF THE Claims for Concealed or Unknown Conditions 5.4.1.1, 11.49, 14 4.3.4 Contract Administration Claims for Damages 3.1.3,4,9.4,9.5 3.2.3,3.18,4.3.10,6.1.1,8.3.3,9.5.1,9.6.7, 10.3.3. Contract Award and Execution,Conditions Relating 11.1.1, 11.4.5, 11.4.7, I4.1.3, 14.2.4 to Claims Subject to Arbitration 3.7.1.3.10,5.2,6.1, 11.1.3, 11.4.6, 11.5.1 4.4.1,4.5.1,4.6.1 Contract Documents,The Cleaning Up 1.1,1.2 3.15,6.3 Contract Documents,Copies Furnished and Use of Commencement of Statutory Limitation Period 1.6,2 2.5,5.3 13.7 Contract Documents,Definition of Commencement of the Work,Conditions Relating to 1.1.1 2.2.1,32.1,3.4.1,3.7.1,3.10.1,3.12.6,4.3.5,5.2.1, Contract Sum 5.2.3,6.2.2,8.1.2,8.2.2,8.3.1, 1 1.1, 11.4.1, 11.4.6, 3.81 4.3.4,43.5,4.4.5,5.2.3,72,7.3,7.4,9.1,9.4.2, 11.5.1 9.5.1.4,9.6.7,9.7, 103.2, 11.4.1, 14.2.4, 14.3.2 Commencement of the Work,Definition of Contract Sum, Definition of 8.1.2 9.1 Communications Facilitating Contract Contract Time Administration 4.3.4,4.3.7.4.4.5,5.2.3,7.2.1.3, 7.3,7.4,8.1.1,8.2, 3.9.1,4.2.4 8.3.1,9.5.1,9.7, 10.12, 12.1.1, 14.3.2 Completion.Conditions Relating to Contract Time,Definition of 1.6.1,3.4.1,3.11,3.15,4.2.2,42.9,82,9.4.2,9.8, 8.1.1 9.9.1,9.10, 12.21 13.7, 14.1.2 CONTRACTOR COMPLETION,PAYMENTS AND 3 9 Contractor,Definition of Completion,Substantial 3.1.6.1.2 42.9,8.1.1,8.1.3,8.23,9.4.2,9.8,9.9.1,9.10.3, Contractor's Construction Schedules 9.10.4.2, 12 2, 13.7 1.4.1.2,3.10,3.12.1,3.12.2,4.3.7.2.6.1.3 Compliance with Laws Contractor's Employees AIA Document A201TM'—1997.Copyright©1911,1915,1918,1925.1937.1951,1958,1961,1963,1966.1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 3 reproduction or distribution of this AIA' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04;28'2008 under Order No.1000325529_1 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) 3.3.2,3.4.3,18.1,3.9,3.18.2.4.2.3,42.6, 10.2, 10.3, 6.15,3.14 1 1.1.1, 11.4.7, 14.1, 14.2.1.1, Damage to Construction of Owner or Separate Contractor's Liability Insurance Contractors 11.1 3.14.2,62.4,9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11,1, Contractor's Relationship with Separate Contractors 1 1.4, 12.2.4 and Owner's Forces Damage to the Work 3.12.5,3.14.2,4.2.4,6, 11.4.7, 12.12, 12.2.4 3.14.2,9.9.1, 1021.2, 10.2.5, 10.6, I 1.4, 12 2.4 Contractor's Relationship with Subcontractors Damages,Claims for 1.2.2,3.32,3.18.1,3.18.2,5,9.62,9.6.7,9.10.2, 3.2.3,3.18,4.3.10,6.1.1, 8.3.3,9.5.1,9.6.7, 10.33, 11.4.1.2, 11.4.7,l 1.4.8 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4 Contractor's Relationship with the Architect Damages for Delay 1.1.2, 1.6,3.1.3,3.2.1,3.2.2,3.2.3,3.3.1,3.4.2,3.5.1, 6.1.1,8.3.3,9.5.1.6,9.7, 10.3.2 3.7.3,3.10,3.11,3.12,3.16,3.18, 4.1.2,4.1.3,4.2, Date of Commencement of the Work,Definition of 4.3.4,4.4.1,4.4.7,5.2,6.2.2,7,8.3.1,92,9.3,9.4, 8.12 9.5,9.7,9.8,9.9, 102.6, 10.3, 11.3, 11.4.7, 12, Date of Substantial Completion,Definition of 13.4.2, 13.5 8.1.3 Contractor's Representations Day,Definition of 1.5.2,3.5.1,3.12.6,6.2.2,8.2.1,9.3.3,9.8.2 8.1.4 Contractor's Responsibility for Those Performing the Decisions of the Architect Work 4.2.6,42.7,4.2.11,4.2.12,42.13,4.3.4,4.4.1,4.4.5, 3.3.2,3.18,4.2.3,4.3.8,5.3.1,6.1.3,6.2,6.3,9.5.1, 4.4.6,4.5,6.3,7.3.6,7.3.8,8.1.3,8.3.1,92,9.4, 10 9.5.1,9.8.4,9.9.1, 13.5.2, 14.22, 14.2.4 Contractor's Review of Contract Documents Decisions to Withhold Certification 1.5.2,3.2,3.7.3 9.4.1,9.5,9.7, 14.1.1.3 Contractor's Right to Stop the Work Defective or Nonconforming Work,Acceptance, 9.7 Rejection and Correction of Contractor's Right to Terminate the Contract 2.3,2.4,3.5.1,42.6,6.2.5,9.5.1,9.5.2,9.6.6,9.8.2, 4.3.10, 14.1 9.9.3,9.10.4, 12.2.1, 13.7.1.3 Contractor's Submittals Defective Work,Definition of 110,3.11,3.12,42.7,5.2.1,52.3,7.3.6,92.9.3, 3.5.1 9.8.2,9.8.3,9.9.1,9.10.2,9.103, 11.1.3, 11.5.2 Definitions Contractor's Superintendent 1.1,2.1.1,3.1,3.5.1,3.12.1,3.12.2,3.12.3,4.1.1, 3.9, 10.2.6 4.3.1,5.1,6.1.2,7.2.1,7.3.1,7.16,8.1, 9.1,9.8.1 Contractor's Supervision and Construction Delays and Extensions of Time Procedures 3.2.3,4.3.1,4.3.4,4.3.7,4.4.5,5.2.3,7.2.1,7.3.1, 1.2.2,3.3,3.4,3.12.10,4.22,4.2.7,4.3.3,6.1.1 7.4.1,8.3,9.5.1,9.7.1, 10.3.2, 10.6.1, 14.3.2 6.2.4,7.1.3,7.3.4,73.6,82, 10, 12, 14 Disputes Contractual Liability Insurance 4.1.4,4.3,4.4,4.5,4.6,63,7.3.8 11.2, 11.3 Documents and Samples at the Site Coordination and Correlation 3.11 1.2, 1.5.2,3.3.1,3.10,3.12.6,6.1.3,6.2.1 Drawings,Definition of Copies Furnished of Drawings and Specifications 1.1.5 1.6.22.5,3.11 Drawings and Specifications,Use and Ownership of Copyrights l.1.1, 1.3,2.2.5,3.11,5.3 1.6,3.17 Effective Date of Insurance Correction of Work 8.2.2, 11.1.2 2.3,2.4,17.4,4.2.1,9.42,9.82,9.8.3,9.9.1, 12.12, Emergencies 12.2, 13.7.1.3 4.3.5, 10.6, 14.1.1.2 Correlation and Intent of the Contract Documents Employees,Contractor's 1.2 3.3.2,3.4.3,3.8.1,3.9, 3.18.2,42.3,4.2.6, 10.2, l 0.3, Cost,Definition of 11.1.1, 11.4.7, 14.1, 14.2.1.1 7.3.6 Equipment,Labor,Materials and Costs 1.1.3, 1.1.6,3.4,3.5.1, 3.8.2,3.8.3,3.12,3.13,3.15.1, 2.4,3.23,3.7.4,3.8.2,3.152,4.3,5.4.2,6.1.1,6.23, 4.2.6,4.2.7,5.2.1,6.2.1,7.3.6, 9.3.2,9.3.3,9.5.1.3, 7.3.3.3,7.3.6,7.3.7,7.3.8,9.10.2, 10.3.2, 10.5, 11.3, 9.10.2, 10.2.1, 102.4, 14.11.2 1 1.4, 12.1, 12.2.1, 12.2.4, 115, 14 Execution and Progress of the Work Cutting and Patching AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937.1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA`Document is protected by U.S.Copyright Lava and International Treaties.Unauthorized 4 reproduction or distribution of this AIA'` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04.'28!2008 under Order No.1000325529_1 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) 1.1.3, 1.2.1, 1.2.2,2.2.3,2.2.5,3.1,3.3,3.4,3.5,3.7, Insurance,Project Management Protective 3.10,3.12,3.14,4.2.2,4.2.3,4.3.3,6.2.2,7.1.3,7.3.4, Liability 8.2,9.5,9.9.1, 10 2, 10.3, 12.2, 14.2, 14.3 11.3 Extensions of Time Insurance,Property 3.2.3,4.3.1,4.3.4,4.3.7,4.4.5,5.2.3,7.2.1,7.3,7 A.1, 10.2.5, 11.4 9.5.1,9.7.1, 10.3.2, 10.6.1, 14.3.2 Insurance,Stored Materials Failure of Payment 9.3.2, 11.4.1.4 4.3.6,9.5.1.3,9.7,9.10.2, 14.1.1.3, 14.2.1.2, 13.6 INSURANCE AND BONDS Faulty Work 11 (See Defective or Nonconforming Work) Insurance Companies,Consent to Partial Occupancy Final Completion and Final Payment 9.9.1, 11.4.1.5 4.2.1,4.29,4.3.2,9.8.2,9.10, 11.1.2, 11.1.3, 11.4.1, Insurance Companies,Settlement with 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3 11.4.10 Financial Arrangements,Owner's Intent of the Contract Documents 2.2.1, 13.2.2, 14.1.1.5 1.2.1,4.2.7,4.2.12,4.2.13,7.4 Fire and Extended Coverage Insurance Interest 11.4 13.6 GENERAL PROVISIONS Interpretation 1 1.2.3, 1.4,4.1.1,4.3.1.5.1.6.1.2.8.1.4 Governing Law Interpretations,Written 13.1 4.2.11,4.2.12,4.3.6 Guarantees(See Warranty) Joinder and Consolidation of Claims Required Hazardous Materials 4.6.4 102.4, 10.3, 10.5 Judgment on Final Award Identification of Contract Documents 4.6.6 1.5.1 Labor and Materials,Equipment Identification of Subcontractors and Suppliers 1.1.3, 1.1.6,3.4,3.5.1,3.8.2,3.8.3,3.12,3.13,3.15.1, 5.2.1 42.6,4.2.7,5.2.1,6.2.1,7.3.6, 9.3.2,9.3.3,9.5.1.3, Indemnification 9.10.2, 10.2.1, 10.2.4, 14.2.1.2 3.17,3.18,9.10.2, 10.3.3, 10.5, 11.4.1.2. 11.4.7 Labor Disputes Information and Services Required of the Owner 8.3.1 2.1.2,2.2,3.2.1,3.12.4,3.12.10,4.2.7,4.3.3,6.1.3. Laws and Regulations 6.1.4,6.2.5,9.3.2,9.6.1,9.6.4,9.9.2,9.10.3, 10.3.3, 1.6,3.2.2,3.6,3.7,3.12.10,3.13,4.1.1,4.4.8,4.6, 11.2. 11.4, 13.5.1, 13.5.1 14.1.1.4, 14.1A 9.6.4,9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, Injury or Damage to Person or Property 13.5.2, 13.6, 14 4.3.8,10.2, 10.6 Liens Inspections 2.1.2,4.4.8,82.2,9.3.3,9.10 3.1.3,3.3.3,3.7.1,4.2.2,4.2.6,4.2.9,9A.2,9.8.1 - Limitation on Consolidation or Joinder 9.8.3,9.9.2,9.10.1. 122.1, 13.5 4.6.4 Instructions to Bidders Limitations,Statutes of L L I 4.6.3, 12.2.6, 13.7 Instructions to the Contractor Limitations of Liability 32.3,3.3.1,3.8.1,4.2.8,5.2.1,7, 12,8.2.2, 13.5.2 2.3.3.2.1.3.5.1,3.7.13.12.8.3.12.1 O,3.17,3.19, Insurance 4.2.6,4.2.7,4.2.12,6.2.19.4.2,9.6.4, 9.6.7,9.10.4, 3.18.1,6.1.1,7.3.6,811,9.3.2,9.8.4,9.9.1,9.10.2, 10.3.3, 10.2.5, 11.12, 11.2.1, 11.4.7, 12.2.5, 13.42 9.10.5, 11 Limitations of Time Insurance,Boiler and Machinery 2.1.2,2.2,2.4,3.2,1,3.7.3,3.10,3.11,3,12.5,3.15.1, 11.4.2 4.2.7,4.3,4.4,4.5,4.6,52,5.3, 5.4,6.2.4,7.3,7.4, Insurance,Contractor's Liability 8.19.2,93.1,93.3,9.4.1,9.5,9.6,9.7,9.8,9.9, 11.1 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13,5, Insurance,Effective Date of 13.7, 14 8.22. 11.1.2 Loss of Use Insurance Insurance,Loss of Use 11.4.3 11.4.3 Material Suppliers Insurance,Owner's Liability 1.6,3.12.1,4.2.4,42.6,5.2.1,9.3,9.4.2,9.6,9.10.5 11.2 Materials,Hazardous 10.2.4, 10.3, 10.5 AIA Document A201 TM-1997.Copyright 0 1911,1915,1918,1925,1937,1951,1958,1961.1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved, WARNING:This AIA�` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AM— Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the 5 maximum extent possible under the law. This document was produced by AIR software at 09:31:06 on 04,12812008 under Order No-I 000325529 1 which expires on 1012612008.and is not for resale. - User Notes; (2820102598) Materials,Labor,Equipment and 1.6,2.1.1,2.3,2.4,3.4.2,3.8.1,3.12.10,3.14.2,4.1.2, 1.1.3, 1.1.6, 1.6.1,3.4,3.5.1,3.8.2,3.8.23,3.12,3.13, 4.1.3,4.2.4,4.2.9,4.3.6,4.4.7, 5 2.1,5.2.4,5.4.1, 3.15.1,4.2.6,42.7,5.2.1,62.1, 7.3.6,9.3.2,9.3.3, 6.1,6.3,7.2.1,7.3.1,8.2 2,8.3.1,9.3.1,9.3.2,9.5.1, 9.5.1.3,9.10.2, 10.2.1, 10.2.4, 14.2.1.2 9.9.1,9.10.2, 10.32, 11.1.3, 11.3.1, 11.4.3, 11.4.10, Means,Methods,Techniques,Sequences and 12.2.2, 12.3.1, 13.12, 14.3, 14.4 Procedures of Construction Owner's Financial Capability 3.3.1,3.12.10,4.2.2,4.2.7,9.4.2 2.2.1, 13.2.2, 14.1.1.5 Mechanic's Lien Owner's Liability Insurance 4.4.8 11.2 Mediation Owner's Loss of Use Insurance 4.4.1,4.4.5,4.4.6,4.4.8,4.5,4.6.1,4.62,8.3.1, 10.5 11.4.3 Minor Changes in the Fork Owner's Relationship with Subcontractors 1.1.1,3.12.8,4.2.8,4.3.6,7.1,7.4 1.1.2,5.2,5.3,5.4,9.6.4,9.10.2, 14.2.2 MISCELLANEOUS PROVISIONS Owner's Right to,Carry Out the Work 13 2.4,12.2.4.14.2.2.2 Modifications,Definition of Owner's Right to Clean Up 1.1.1 6,3 Modifications to the Contract Owner's Right to Perform Construction and to 1.1.1, 1.1.2,3.7.3,3.11,4.1.2,4.2.1,5.2.3,7,8.3.1, Award Separate Contracts 9.7, 10.3.2, 11 A.1 6.1 Mutual Responsibility Owner's Right to Stop the Work 6.2 2.3 Nonconforming Work,Acceptance of Owner's Right to Suspend the Work 9.6.6,9.9.3,12.3 14.3 Nonconforming Work,Rejection and Correction of Owner's Right to Terminate the Contract 2.3,2.4,3.5.1,4.2.6,6.2.5,9.5.1,9.8.2,9.93,9.10.4, 14.2 122.1, 13.7.1.3 Ownership and Use of Drawings,Specifications Notice and Other Instruments of Service 2.2.1,2.3,2.4,3.2.3,3.3.1,3.7.2,3.7.4,3.12.9,4.3, 1.1.1, 1.6,2.2.5,3.2.1,3.11.1,3.17.1,4.2.12,5.3 4.4.8,4.6.5,5.2.1,8.22,9.7,9.10, 10.2.2, 11.1.3, Partial Occupancy or Use 11.4.6, 12.22, 122.4, 13.3, 13.5.1, 13.5.2, 14.1, 14.2 9.6.6,9.9, 11.4.1.5 Notice,Written Patching,Cutting and 2.3,2.4,3.3.1,3.9,3.12.9,3.12.10,4.3,4.4.8,4.6.5, 3.14,6.2.5 5.2.1,822,9.7,9.10, 1022, 10.3, 11.1.3, 1 1.4.6, Patents 12.22, 12.2.4, 13.3, 14 3.17 Notice of Testing and Inspections Payment,Applications for 13.5.1, 13.52 4.15,7.3.8,9.2,9.3,9.4,9.5.1,9.6.3,9.7.1,9.8.5, Notice to Proceed 9.10.1,9.10.3,9.10.5, 11.1.3, 14.2.4, 144.3 822 Payment,Certificates for Notices,Permits,Fees and 4.2.5,4.2.9,9.3.3,9.4,9.5,9.6.1,9.6.6,9.7.1,9.10.1, 2.2.2,3.7,3.13,7.3.6.4, 10 2.2 9.10.3, 13.7, 14.1.13, 142.4 Observations,Contractor's Payment,Failure of 1.5.2,3.2,3.7.3,4.3.4 4.3.6,9.5.1.3,9.7,9.10.2, 14.1.1.3, 14.2.1.2, 13.6 Occupancy Payment,Final 2.2.2,9.6.6,9.8, 11.4.1.5 4.2.1,4.2.9,4.3.2,9.8.2),9.10, 11.1.2, 11.1.3, 11.4.1, Orders,Written 11.4.5, 12.3.1, 13.7, 142.4, 14.43 1.1.1,2.3,3.9,4.3.6,7,8.2.2. 1 1.4.9, 12.1, 12.2, Payment Bond,Performance Band and 115.2, 14.3.1 7.3.64,9.6.7,9.10.3, 11.4.9, 11.5 OWNER Payments,Progress 2 4.3.3,9.3,9.6,9.8.5,9.10.3, 13.6, 14.2.3 Owner,Definition of PAYMENTS AND COMPLETION 2.1 9 Owner,Information and Services Required of the Payments to Subcontractors 2.1.2,2.2,3.2.1,3.12.4,3.12.10,4.2.7,4.33,6.1.3, 5.4.2,9.5.1.3,9.6.2,9.6.3,9.6.4,9.6.7, 11.4.8, 6.1.4,6.2.5,9.3.2,9.6.1,9.6.4,9.9.2,9.10.3, 10.3.3, 142.1.2 1 12, 1 1.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 PCB Owner's Authority 10.3.1 AIA Document A2011m—1997.Copyright Co 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 13 reproduction or distribution of this AIA".` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04728!2008 under Order No.1000325529 1 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) Performance Bond and Payment Bond Review of Contractor's Submittals by Owner and 7.3.6.4,9.6.7,9.10.3, 11.4.9, 11.5 Architect Permits,Fees and Notices 3.10.1,3.10.2,3.11,3.12,4.2,5.2,6.1.3,9.2,9.8.2 2.2.2,3.7,3.13,7.3.6.4, 10.2.2 Review of Shop Drawings,Product Data and PERSONS AND PROPERTY,PROTECTION Samples by Contractor OF 3.12 10 Rights and Remedies 1.1.2,2.3,2.4,3.5.1,3.15.2,4.2.6,4.3.4,4.5,4.6,5.3, Polychlorinated Biphenyl 5.4,6.1,6.3,7.3.1,8.3,9.5.1,9.7, 10.2.5, 10.3, 10.3.1 112.2, 12.2.4, 13.4, 14 Product Data.Definition of Royalties,Patents and Copyrights 3.12.2 3.17 Product Data and Samples,Shop Drawings Rules and Notices for Arbitration 3.11,3.12,4.2.7 4.6.2 Progress and Completion Safety of Persons and Property 4.2.21 4.3.3,8.2,9.8,9.9.1, 14.1.4 10.2,1.0.6 Progress Payments Safety Precautions and Programs 4.3.3,9.3,9.6,9.8.5,9.10.3, 13.6, 14.2.3 3.3.1,4.2.2,4.2.7,5.3.1, 10.1, 10.2, 10.6 Project,Definition of the Samples,Definition of 1.1.4 3.12.3 Project Management Protective Liability Samples,Shop Drawings,Product Data and Insurance 3.11,3.12,4.2.7 11.3 Samples at the Site,Documents and Project Manual,Definition of the 3.11 1.1.7 Schedule of Values Project Manuals 9.2,9.3.1 2.2.5 Schedules, Project Representatives 1.4.1.2,3.10,3.Construction 12.1,3.12.2,4.3.7.2, 4.2.10 6.1.3 Property Insurance Separate Contracts and Contractors 10.2.5, 11.4 1.1.4,3.12.5,3.14.2,4.2.4,4.2.7,4.6.4,6,8.3.1, PROTECTION OF PERSONS AND PROPERTY 11.4.7, 12.1.2, 12.2.5 10 Shop Drawings,Definition of Regulations and Laws 3.12.1 1.6,3.2.2,3.6,3.7,3,1110,3.13,4.1.1,4.4.8,4.6, Shop Drawings,Product Data and Samples 9.6.4,9.9.1, 10.2.2, 11.1. 11.4, 13.1, 13.4, 13.5.1, 3.1 1,3.12,4.2.7 115.2, 13.6, 14 Site,Use of Rejection of Work 3.13,6.11,6.2.1 3.5.1,4.2.6, 12.2.1 Site Inspections Releases and Waivers of Liens 1.2.2,3.2.1,3.3.3,3.7.1,4.2,43.4,9.4.2.9.10.1, 13.5 9.102) Site Visits,Architect's Representations 4.2.2,4,2.9,4.3.4,9.4.2,9.5.1,9.9.2,9.10.1, 13.5 1.5.2,3.5.1,3.12.6,6.2.2,8.2.1,9.3.3,9.4.2,9.5.1. Special Inspections and Testing 9.8.2,9.10.l 4.2.6, Z� .2.6, 12.2.1� 13.5 Representatives Specifications,Definition of the 2.1.1,3.1.1,3.9,4.1.1,4.2.1,4.2.10,5.1.1.5.1.2, 1.1.6 13.2.1 Specifications,The Resolution of Claims and Disputes 1.1.1,1.1.6, 1.1.7, 1.2.2, 1.6,3.11,3.12.10,3.17 4.4,4.5,4.6 Statute of Limitations Responsibility for Those Performing the Work 4.6.3, 12.2.6, 13.7 3.32,3.18,4.2.3,4.3,8,5.3.1,6.1.3,6.2,6.3.9.5.1, Stopping the Work 10 2.3,4.3.6,9.7, 10.3, 14.1 Retainage Stored Materials 9.3.1,9.6.2,9.8.5,99.1,9.10.2,9.10.3 62.1,9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4 Review of Contract Documents and Field Subcontractor,Definition of Conditions by Contractor 5.1.1 1.5.2,3.2,3.7.3,3.12.7,6.1.3 SUBCONTRACTORS AIA Document A2011"-1997.Copyright@ 1911,1915,1918.1925,1937, 1951,1958.1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA Document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the 7 n1aXiMUM extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1 000325529 1 which expires on 10/26,12008,and is not for resale. User Notes: (2820102598) 5 TERMINATION OR SUSPENSION OF THE Subcontractors,Work by CONTRACT 1.2.2,3.3.2,3.12.1,4.2.3,5.2.3,5.3,5.4,9.3.1.2, 14 9.6.7 Tests and Inspections Subcontractual Relations 3.1.3,3.3.3,4.2.2,4.2.6,4.2.9,9.4.2,9.8.3,9.9.2, 5.3,5.4,9.3.1.2,9.6,9.10 10.2.1,11.4.7,11.4.8,14.1, 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5 14.2.1,14.3.2 TIME Submittals 8 1.6,3.10,3.11,112,4.2.7,5.2.1,5.2.3,7.3.6,9.2, Time,Delays and Extensions of 9.3,9.8.9.9.1,9.10.2,9.10.3, 11.1.3 3.2.3,4.3.1,4.3.4,4.3.7,4.4.5,5.2.3,7.2.1,7.3,1, Subrogation,Waivers of 7.4.1,8.3,9.5.1,9.7.1, 10.3.2, 10.6.1, 14.3.2 6.1.1, 11.4.5,11.4.7 Time Limits Substantial Completion 2.1.2,2.2,2.4,3.2.1,3.7.3,3.10,3.11,3.12.5,3.15.1, 4.2.9,8.1.1,8.1.3,8.2.3,9.4.2,9.8,9.9.1,9.10.3, 4.2,4.3,4.4,4.5,4.6,5.2,5.3,5.4, 6.2.4,7.3,7.4, 9.10.4.2, 12.2, 13.7 8.2,9.2,9.3.1,9.3.3,9.4.1,9.5,9.6,9.7,9.8,9.9, Substantial Completion,Definition of 9.10, 11.13, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 9.8.1 13.7, 14 Substitution of Subcontractors Time Limits on Claims 5.2.3,5.2.4 4.3.2,4.3.4,4.3.8,4.4,4.5,4.6 Substitution of Architect Title to Work 4.1.3 9.3.2,9.3.3 Substitutions of Materials UNCOVERING AND CORRECTION OF 3.4.2,3.5.1,7.3.7 WORK Sub-subcontractor,Definition of 12 5.1.2 Uncovering of Work Subsurface Conditions 12.1 4.3.4 Unforeseen Conditions Successors and Assigns 4.3.4,8.3.1, 10.3 13.2 Unit Prices Superintendent 4.19,7.3.3.2 3.9,10.2.6 Use of Documents Supervision and Construction Procedures 1.1.1, 1.6.2 2.5,3.12.6,5.3 1.2.2,3.3,3.4, 3.12.10,4.2.2,4.2.7,4.3.3,6.1.3, Use of Site 6.2.4,7.1.3,7.3.6, 8.2, 8.3.1,9.4.2, 10, 12, 14 3.13,6.1.1,6.2.1 Surety Values,Schedule of 4.4.7,5.4.1.2,9.8.5,9.10.2,9.10.3, 14.2.2 9.2,9.3.1 Surety,Consent of Waiver of Claims by the Architect 9.10.2,9.10.3 13.4.2 Surveys Waiver of Claims by the Contractor 2.2.3 4.3,10,9.10.5, 11.4.7, 13.4.2 Suspension by the Owner for Convenience Waiver of Claims by the Owner 14.4 4.3.10,9.9.3,9.10.3,9.10.4, 114.3, 11.4.5, 11.4.7, Suspension of the Work 12.2.2.1, 13.4.2, 14.2.4 5.4.2, 14.3 Waiver of Consequential Damages Suspension or Termination of the Contract 4.3.10,14.2.4 4.3.6,5.4.1.1, 11.4.9, 14 Waiver of Liens Taxes 9.10.2,9.10.4 3.6,3.8.2.1,7.3.6.4 Waivers or Subrogation Termination by the Contractor 6.1.1. 1 1.4.5,11.4.7 4.3.10, 14.1 Warranty Termination by the Owner for Cause 3.5,4.2.9,4.3.5.3,9.3.3,9.8.4,9.9.1,9.10.4, 12.2.2, 4.3.10,5.4.1.1, 14.2 13.7.1.3 Termination of the Architect Weather Delays 4.1.3 4.3.7.2 Termination of the Contractor Work,Definition of 14.2.2 1.1.3 Written Consent AIA Document A201TM—1997.Copyright @ 1911,1915,1918,1925.1937,1951,1958,1961,1963.1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. VVIARNING:This AIA' Document is protected by U.S.Copyright Law and International Treaties,Unauthorized reproduction or distribution of this AIA'Document,or any portion of it,may result in severe civil and criminal penalties,and will be crosecuted to the 8 maximum extent possible under the law. This document was produced by AIA Software at 09:31:06 on 04.128!2008 under Order No.100032.55291 which expires on 10/2612008,and is not for resale. User Notes: (2820102598) 1.6,3.4.2,3.12.8,3.14.2,4.1.2,4.3.4,4.6.4,9.3.2, 2.3,2.4,3.3.1,3.9,3.12.9,3.12.10,4.3,4.4.8,4.6.5, 9.8.5,9.9.1,9.10.2,9.10.3, 11.4.1, 13.2, 13.4.2 5.2.1,8.2.2,9.7,9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, Written Interpretations 12.2.2, 12.2.4, 13.3, 14 4.2.11,4.2.12,4.3.6 Written Orders Written Notice 1.1.1,2.3,3.9,4.3.6,7,8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1 AIA Document A201TIl—1997.Copyright OO 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This Alk' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 9 reproduction or distribution of this AlA' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28!2008 under Order No.1 0003255291 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) ARTICLE 1 GENERAL PROVISIONS §1.1 BASIC DEFINITIONS §1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor(hereinafter the Agreement), Conditions of the Contract(General,Supplementary and other Conditions),Drawings,Specifications,Addenda issued prior to execution of the Contract,other documents listed in the Agreement and Modifications issued after execution of the Contract.A Modification is(1)a written amendment to the Contract signed by both parties,(2)a Change Order,(3)a Construction Change Directive or(4)a written order for a minor change in the Work issued by the Architect.Unless specifically enumerated in the Agreement,the Contract Documents do not include other documents such as bidding requirements(advertisement or invitation to bid,Instructions to Bidders,sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements). §1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction.The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,representations or agreements,either written or oral.The Contract may be amended or modified only by a Modification.The Contract Documents shall not be construed to create a contractual relationship of any kind(1)between the Architect and Contractor,(2)between the Owner and a Subcontractor or Sub-subcontractor,(3)between the Owner and Architect or(4)between any persons or entities other than the Owner and Contractor.The Architect shall,however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. §1.1.3 THE WORK The term"Work"means the construction and services required by the Contract Documents,whether completed or partially completed,and includes all other labor,materials,equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations.The Work may constitute the whole or a part of the Project. §1.1.4 THE PROJECT The Project is the total construction ol'which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. §1.1.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design,location and dimensions of the Work,generally including plans,elevations,sections,details,schedules and diagrams. §1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work,and performance of related services. §1.1.7 THE PROJECT MANUAL The Project Manual is a volume assembled for the Work which may include the bidding requirements,sample forms,Conditions of the Contract and Specifications. §1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS §1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor.The Contract Documents are complementary,and what is required by one shall be as binding as if required by all;performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. §1,2.2 Organization of the Specifications into divisions,sections and articles,and arranuement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. §1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. AIA Document A2011m—1997.Copyright O 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved_. WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized lo reproduction or distribution of this AIA Document.or any portion of If,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04./28.2008 under Order No.1000325529 1 which expires on 10/26/2008,and is not for resale. — User(dotes: (2820102598) §1.3 CAPITALIZATION §1.3.1 Terms capitalized in these General Conditions include those which are(1)specifically defined,(2)the titles of numbered articles or(3)the titles of other documents published by the American Institute of Architects. §1.4 INTERPRETATION §1,4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as"all" and"any" and articles such as"the"and"an,"but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. §1.5 EXECUTION OF CONTRACT DOCUMENTS §1.5.1 The Contract Documents shall be signed by the Owner and Contractor.If either the Owner or Contractor or both do not sign all the Contract Documents,the Architect shall identify such unsigned Documents upon request. §1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. §1.6 OWNERSHIP AND USE OF DRAWINGS,SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE §1.6.1 The Drawings,Specifications and other documents,including those in electronic form,prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described.The Contractor may retain one record set.Neither the Contractor nor any Subcontractor, Sub-subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings,Specifications and other documents prepared by the Architect or the Architect's consultants,and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of thern and will retain all common law, statutory and other reserved rights,in addition to the copyrights.All copies of Instruments of Service,except the Contractor's record set,shall be returned or suitably accounted for to the Architect,on request,upon completion of the Work.The Drawings,Specifications and other documents prepared by the Architect and the Architect's consultants,and copies thereof furnished to the Contractor,are for use solely with respect to this Project.They are not to be used by the Contractor or any Subcontractor,Sub-subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner,Architect and the Architect's consultants.The Contractor,Subcontractors,Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings,Specifications and other documents prepared by the Architect and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents.All copies made under this authorization shall bear the statutory copyright notice, if any,shown on the Drawings,Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER §2.1 GENERAL §2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number.The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Section 4.2.1,the Architect does not have such authority.The term"Owner"means the Owner or the Owner's authorized representative. §2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request,information necessary and relevant for the Contractor to evaluate,give notice of or enforce mechanic's lien rights.Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site,and the Owner's interest therein. §2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER §2.2.1 The Owner shall,at the written request of the Contractor,prior to commencement of the Work and thereafter, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of'such evidence shall be a condition precedent to commencement or AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925.1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA'`Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 11 reproduction or distribution of this AIA, Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the few. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529_I which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) continuation of the Work.Alter such evidence has been furnished,the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. §2.2.2 Except for permits and fees,including those required under Section 3.7.1,which are the responsibility of the Contractor under the Contract Documents,the Owner shall secure and pay for necessary approvals,easements, assessments and charges required for construction,use or occupancy of permanent structures or for permanent changes in existing facilities. §2.2.3 The Owner shall furnish surveys describing physical characteristics,legal limitations and utility locations for the site of the Project,and a legal description of the site.The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. §2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable promptness.Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. §2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished,free of charge,such copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work. §2.3 OWNER'S RIGHT TO STOP THE WORK §2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or persistently fails to carry out Work in accordance with the Contract Documents,the Owner may issue a written order to the Contractor to stop the Work,or any portion thereof,until the cause for such order has been eliminated;however,the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. §2.4 OWNER'S RIGHT TO CARRY OUT THE WORK §2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness,the Owner may after such seven-day period give the Contractor a second written notice to correct such deficiencies within a three-day period.If the Contractor within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may,without prejudice to other remedies the Owner may have,correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies,including Owner's expenses and compensation for the Architect's additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect.If payments then or thereafter due the Contractor are not sufficient to cover such amounts,the Contractor shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR §3.1 GENERAL §3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number.The term"Contractor" means the Contractor or the Contractor's authorized representative. §3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. §3.13 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract,or by tests, inspections or approvals required or performed by persons other than the Contractor. §3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR §3.2.1 Since the Contract Documents are complementary,before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the AIA Document A2011m—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AW! Document is protected by U.S.Copyright Law and International Treaties.Unauthorized �2 reproduction or distribution of this AIA'! Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04./28/2008 under Order No.1000325529 1 which expires on 10/26/2008,and is not for resale. — User Notes: (2820102598) Work,as well as the information furnished by the Owner pursuant to Section 2.2.3,shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors,omissions,or inconsistencies in the Contract Documents;however,any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. §3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the Architect,but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents.The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws,statutes, ordinances,building codes,and rules and regulations,but any nonconformity discovered by or made known to the Contractor shall be reported promptly to the Architect. §3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect in response to the Contractor's notices or requests for information pursuant to Sections 3.2.1 and 3.2.2,the Contractor shall make Claims as provided in Sections 4.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Sections 3.2.1 and 3.2.2,the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations.The Contractor shall not be liable to the Owner or Architect for damages resulting from errors,inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized such error,inconsistency,omission or difference and knowingly failed to report it to the Architect. §3.3 SUPERVISION AND CONSTRUCTION PROCEDURES §3.3.1 The Contractor shall supervise and direct the Work,using the Contractor's best skill and attention.The Contractor shall be solely responsible for and have control over construction means, methods,techniques,sequences and procedures and for coordinating all portions of the Work under the Contract,unless the Contract Documents give other specific instructions concerning these matters.If the Contract Documents give specific instructions concerning construction means,methods,techniques,sequences or procedures,the Contractor shall evaluate the jobsite safety thereof and,except as stated below,shall be fully and solely responsible for the jobsite safety of such means,methods, techniques,sequences or procedures.If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe,the Contractor shall give timely written notice-to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect.If the Contractor is then instructed to proceed with the required means,methods,techniques,sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage. §3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees,and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. §3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to.receive subsequent Work. §3.4 LABOR AND MATERIALS §3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials,equipment,tools,construction equipment and machinery, water,heat,utilities,transportation,and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. §3.4,2 The Contractor may make substitutions only with the consent of the Owner,after evaluation by the Architect and in accordance with a Change Order. §3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract.The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. AIA Document A201 T"'—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976.1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 1� reproduction or distribution of this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04128'2008 under Order No.1000325529 1 which expires on 10/2612008,and is not for resale. — User Notes: (2820102598) §3.5 WARRANTY §3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents,that the Work will be free from defects not inherent in the quality required or permitted,and that the Work will conform to the requirements of the Contract Documents.Work not conforming to these requirements, including substitutions not properly approved and authorized,may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse,modifications not executed by the Contractor,improper or insufficient maintenance,improper operation,or normal wear and tear and normal usage.If required by the Architect,the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. §3.6 TAXES §3.6.1 The Contractor shall pay sales,consumer,use and similar taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded,whether or not yet effective or merely scheduled to go into effect. §3.7 PERMITS,FEES AND NOTICES §3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees,licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. §3.7.2 The Contractor shall comply with and give notices required by laws,ordinances,rules,regulations and lawful orders of public authorities applicable to performance of the Work. v §3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws,statutes,ordinances,building codes,and rules and regulations.However,if the Contractor observes that portions of the Contract Documents are at variance therewith,the Contractor shall promptly notify the Architect and Owner in writing,and necessary changes shall be accomplished by appropriate Modification. §3.7.4 If the Contractor performs Work knowing it to be contrary to laws,statutes,ordinances,building codes,and rules and regulations without such notice to the Architect and Owner,the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. §3.8 ALLOWANCES §3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents.Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. §3.8.2 Unless otherwise provided in the Contract Documents: .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes,less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site,labor,installation costs,overhead,profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; .3 whenever costs are more than or less than allowances,the Contract Sum shall be adjusted accordingly by Change Order.The amount of the Change Order shall reflect(1)the difference between actual costs and the allowances under Section 3.8.2.1 and(2)changes in Contractor's costs under Section 3.8.2.2. §3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. §3.9 SUPERINTENDENT §3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work.The superintendent shall represent the Contractor,and communications given to the superintendent shall be as binding as if given to the Contractor.Important AIA Document A201 TN—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA' Document is protected by U.S.Copyright Law and international'treaties.Unauthorized 14 reproduction or distribution of this AIA'' Document,or any portion of it,may result in severe civil and criminal penalties;and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04.128/2008 under Order No.1000325529_1 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) communications shall be confirmed in writing.Other communications shall be similarly confirmed on written request in each case. §3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES §3.10.1 The Contractor,promptly after being awarded the Contract,shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work.The schedule shall not exceed time limits current under the Contract Documents,shall be revised at appropriate intervals as required by the conditions of the Work and Project,shall be related to the entire Project to the extent required by the Contract Documents,and shall provide for expeditious and practicable execution of the Work. §3.10.2 The Contractor shall prepare and keep current,for the Architect's approval,a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. §3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. §3.11 DOCUMENTS AND SAMPLES AT THE SITE §3.111 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda,Change Orders and other Modifications,in good order and marked currently to record field changes and selections made during construction,and one record copy of approved Shop Drawings,Product Data,Samples and similar required submittals.These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work. §3.12 SHOP DRAWINGS,PRODUCT DATA AND SAMPLES §3.12.1 Shop Drawings are drawings,diagrams,schedules and other data specially prepared for the Work by the Contractor or a Subcontractor,Sub-subcontractor,manufacturer,supplier or distributor to illustrate some portion of the Work. §3.12.2 Product Data are illustrations,standard schedules,performance charts,instructions,brochures,diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. §3.12.3 Samples are physical examples which illustrate materials,equipment or workmanship and establish standards by which the Work will be judged. §3.12.4 Shop Drawings, Product Data,Samples and similar submittals are not Contract Documents.The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents.Review by the Architect is subject to the limitations of Section 4.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents.Submittals which are not required by the Contract Documents may be returned by the Architect without action. §3.125 The Contractor shall review for compliance with the Contract Documents,approve and submit to the Architect Shop Drawings,Product Data,Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. §3.12.6 By approving and submitting Shop Drawings,Product Data,Samples and similar submittals,the Contractor represents that the Contractor has determined and verified materials,field measurements and field construction criteria related thereto,or will do so,and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. §3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings,Product Data,Samples or similar submittals until the respective submittal has been approved by the Architect. AIA Document A201 TM—1997.Copyright ©1911,1915.1918,1925,1937,1951.1958,1961,1963,1966.1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AW Document is protected by U.S.Copyright Lava and International Treaties.Unauthorized 15 reproduction or distribution of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the':aw. This document was produced by AIA software at 09:31:06 on 04'28/2008 under Order No.1000325529_1 which expires on 10/26!2008,and is not for resale. User Notes: (2820102598) §3.12.3 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data,Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and(1)the Architect has given written approval to the specific deviation as a minor change in the Work,or(2)a Change Order or Construction Change Directive has been issued authorizing the deviation.The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data,Samples or similar submittals by the Architect's approval thereof. §3.12.9 The Contractor shall direct specific attention,in writing or on resubmitted Shop Drawings,Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals.In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. §3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means,methods,techniques,sequences and procedures.The Contractor shall not be required to provide professional services in violation of applicable law.If professional design services or certifications by a design professional related to systems.materials or equipment are specifically required of the Contractor by the Contract Documents,the Owner and the Architect will specify all performance and design criteria that such services must satisfy.The Contractor shall cause such services or certifications to be provided by a properly licensed design professional,whose signature and seal shall appear on all drawings,calculations, specifications,certifications,Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional,if prepared by others,shall bear such professional's written approval when submitted to the Architect.The Owner and the Architect shall be entitled to rely upon the adequacy,accuracy and completeness of the services,certifications or approvals performed by such design professionals,provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy.Pursuant to this Section 3.12.10,the Architect will review,approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. §3.13 USE OF SITE §3.13.1 The Contractor shall confine operations at the site to areas permitted by law,ordinances,permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. §3.14 CUTTING AND PATCHING §3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. §3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting,patching or otherwise altering such construction,or by excavation.The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and ol'such separate contractor;such consent shall not be unreasonably withheld.The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. §3.15 CLEANING UP §3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract.At completion of the Work,the Contractor shall remove from and about the Project waste materials,rubbish,the Contractor's tools,construction equipment,machinery and surplus materials. §3.15.2 If the Contractor fails to clean up as provided in the Contract Documents,the Owner may do so and the cost thereof shall be charged to the Contractor. AIA Document A201 TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved_. WARNING:This AIA"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIA Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the rnaximurn extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28.`2008 under Order No,1000325529_1 which expires on 10.-2612008,and is not for resale. User Notes: (2820102598) §3.16 ACCESS TO WORK §3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. §3.17 ROYALTIES,PATENTS AND COPYRIGHTS §3.17.1 The Contractor shall pay all royalties and license fees.The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof,but shall not be responsible for such defense or loss when a particular design,process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings,Specifications or other documents prepared by the Owner or Architect.However,if the Contractor has reason to believe that the required design,process or product is an infringement of a copyright or a patent,the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. §3.18 INDEMNIFICATION §3.18.1 To the fullest extent permitted by law and to the extent claims,damages,losses or expenses are not covered by Project Management Protective Liability insurance purchased by the Contractor in accordance with Section 1 1.3, the Contractor shall indemnify and hold harmless the Owner,Architect,Architect's consultants,and agents and employees of any of them from and against claims,damages, losses and expenses,including but not limited to attorneys' fees,arising out of or resulting from performance of the Work,provided that such claim,damage,loss or expense is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property (other than the Work itself),but only to the extent caused by the negligent acts or omissions of the Contractor,a Subcontractor,anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim,damage,loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate,abridge,or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.18. §3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor,anyone directly or indirectly employed by them or anyone for whose acts they may be liable,the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers'compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 4 ADMINISTRATION OF THE CONTRACT §4.1 ARCHITECT §4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number.The term"Architect" means the Architect or the Architect's authorized representative. §4.1.2 Duties,responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted,modified or extended without written consent of the Owner,Contractor and Architect. Consent shall not be unreasonably withheld. §4.1.3 If the employment of the Architect is terminated,the Owner shall employ a new Architect against whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the former Architect. §4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT §4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents,and will be an Owner's representative(1)during construction,(2)until final payment is due and(3) with the Owner's concurrence, from time to time during the one-year period for correction of Work described in Section 12.2.The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract. §4.2.2 The Architect,as a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations(I)to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed,(2)to endeavor to guard the Owner against defects and AIA Document A201TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This ATA``Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 17 reproduction or distribution of this AIA' Document or any portion of it,may result in severe civil and criminal penalties;and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04!28!2008 under Order No.1 0003255291 which expires on 10/26.+2008,and is not for resale. User Notes: (2820102598) deficiencies in the Work,and(3)to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed,will be in accordance with the Contract Documents. However,the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of,nor be responsible for,the construction means, methods, techniques, sequences or procedures,or for the safety precautions and programs in connection with the Work,since these are solely the Contractor's rights and responsibilities under the Contract Documents,except as provided in Section 3.3.1. §4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents.The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor,Subcontractors,or their agents or employees,or any other persons or entities performing portions of the Work. §4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract.Communications by and with the Architect's consultants shall be through the Architect.Communications by and with Subcontractors and material suppliers shall be through the Contractor.Communications by and with separate contractors shall be through the Owner. §4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment,the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. §4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents.Whenever the Architect considers it necessary or advisable,the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 13.5.3,whether or not such Work is fabricated, installed or completed.However,neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors,material and equipment suppliers,their agents or employees,or other persons or entities performing portions of the Work. §4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings,Product Data and Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner,Contractor or separate contractors,while allowing sufficient time in the Architect's professional judgment to permit adequate review.Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities,or for substantiating instructions for installation or performance of equipment or systems,all of which remain the responsibility of the Contractor as required by the Contract Documents.The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3,3.5 and 3.12.The Architect's review shall not constitute approval of safety precautions or,unless otherwise specifically stated by the Architect,of any construction means,methods,techniques,sequences or procedures.The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. §4.2.8 The Architect will prepare Change Orders and Construction Change Directives,and may authorize minor Chan;-=es in the Work as provided in Section 7.4. §4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract and assembled by the Contractor,and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. §4.2.10 If the Owner and Architect agree,the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site.The duties,responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. AIA Document A2011'"—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 1$ reproduction or distribution of this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04128?2008 under Order No.1000325529 1 which expires on 10/2612008.and is not for resale. — User Notes: (2820102598) §4.2.11 The Architect will interpret and decide matters concerning performance under and requirements of,the Contract Documents on written request of either the Owner or Contractor.The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness.If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Section 4.2,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them. §4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings.When making such interpretations and initial decisions,the Architect will endeavor to secure faithful performance by both Owner and Contractor,will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. §4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. §4.3 CLAIMS AND DISPUTES §4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking,as a matter of right,adjustment or interpretation of Contract terms,payment of money,extension of time or other relief with respect to the terms of the Contract.The term"Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract.Claims must be initiated by written notice.The responsibility to substantiate Claims shall rest with the party making the Claim. §4.3.2 Time Limits on Claims.Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later.Claims must be initiated by written notice to the Architect and the other party. §4.3.3 Continuing Contract Performance.Pending final resolution of a Claim except as otherwise agreed in writing or as provided in Section 9.7.1 and Article 14,the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. §4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents,then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after first observance of the conditions.The Architect will promptly investigate such conditions and,if they differ materially and cause an increase or decrease in the Contractor's cost of',or time required for,performance of any part of the Work,will recommend an equitable adjustment in the Contract Sum or Contract Time,or both.If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and Contractor in writing, stating the reasons.Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision.If the conditions encountered are materially different,the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time,the adjustment shall be referred to the Architect for initial determination,subject to further proceedings pursuant to Section 4.4. §4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work.Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.6. §4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to(1)a written interpretation from the Architect, (2)an order by the Owner to stop the Work where the Contractor was not at fault, (3)a written order for a minor change in the Work issued by the Architect,(4)failure of payment by the Owner,(5) termination of the Contract by the Owner,(6)Owner's suspension or(7)other reasonable grounds,Claim shall be filed in accordance with this Section 4.3. AIA Document A201TM—1997.Copyright ©1911,1915.1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA'' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 9 reproduction or distribution of this AtA'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the Iaw. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529_1 which expires on 10,12612008,and is not for resale. User Notes: (2820102598) §4.3.7 Claims for Additional Time §4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time,written notice as provided herein shall be given.The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work.In the case of a continuing delay only one Claim is necessary. §4,3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time,could not have been reasonably anticipated and had an adverse effect on the scheduled construction. §4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party,or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured,shall be given to the other party within a reasonable time not exceeding 21 days after discovery.The notice shall provide sufficient detail to enable the other party to investigate the matter. §4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon,and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor,the applicable unit prices shall be equitably adjusted. §4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract.This mutual waiver includes: A damages incurred by the Owner for rental expenses, for losses of use,income,profit,financing, business and reputation,and for loss of management or employee productivity or of the services of such persons;and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing,business and reputation,and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation,to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this Section 4.3.10 shall be deemed to preclude an award of liquidated direct damages, when applicable,in accordance with the requirements of the Contract Documents. §4.4 RESOLUTION OF CLAIMS AND DISPUTES §4.4.1 Decision of Architect. Claims,including those alleging an error or omission by the Architect but excluding those arising under Sections 10.3 through 10.5,shall be referred initially to the Architect for decision.An initial decision by the Architect shall be required as a condition precedent to mediation,arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect.The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. §4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions:(1)request additional supporting data from the claimant or a response with supporting data from the other party,(2)reject the Claim in whole or in part,(3)approve the Claim,(4)suggest a compromise,or(5) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole discretion,it would be inappropriate for the Architect to resolve the Claim. §4.4.3 In evaluating Claims,the Architect may,but shall not be obligated to,consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Architect in rendering a decision.The Architect may request the Owner to authorize retention of such persons at the Owner's expense. §4.4.4If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond,within ten days after receipt of such request,and shall either provide a response on the requested supporting data,advise the Architect when the response or supporting data will be furnished or advise the Architect that no supporting data will be furnished. Upon receipt of the response or supporting data,if any,the .Architect will either reject or approve the Claim in whole or in part. AIA Document A201TM—1997.Copyright ©1911.1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA Document is protected by U.S.Copyright Law and international Treaties.Unauthorized 20 reproduction or distribution of this AIA- Document..or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529 1 which expires on 10,'2612008,and is not for resale. User Notes: (2820102598) §4.4.5 The Architect will approve or reject Claims by written decision,which shall state the reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both.The approval or rejection of a Claim by the Architect shall be final and binding on the parties but subject to mediation and arbitration. §4.4.6 When a written decision of the Architect states that(1)the decision is final but subject to mediation and arbitration and(2)a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the final written decision,then failure to demand arbitration within said 30 days' period shall result in the Architect's decision becoming final and binding upon the Owner and Contractor.If the Architect renders a decision after arbitration proceedings have been initiated,such decision may be entered as evidence,but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. §4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter,the Architect or the Owner may,but is not obligated to,notify the surety,if any,of the nature and amount of the Claim.If the Claim relates to a possibility of a Contractor's default, the Architect or the Owner may,but is not obligated to,notify the surety and request the surety's assistance in resolving the controversy. §4.4.8 If a Claim relates to or is the subject of a mechanic's lien,the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the Claim by the Architect,by mediation or by arbitration. §4.5 MEDIATION §4.5.1 Any Claim arising out of or related to the Contract,except Claims relating to aesthetic effect and except those waived as provided for in Sections 4.3.10,9.10.4 and 9.10.5 shall,after initial decision by the Architect or 30 days alter submission of the Claim to the Architect,be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. §4.5.2 The parties shall endeavor to resolve their Claims by mediation which,unless the parties mutually agree otherwise,shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect.Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association.The request may be made concurrently with the filing of a demand for arbitration but,in such event,mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order. §4.5.3 The parties shall share the mediator's fee and any filing fees equally.The mediation shall be held in the place where the Project is located,unless another location is mutually agreed upon.Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. §4.6 ARBITRATION §4.6,1 Any Clairn arising out of or related to the Contract,except Claims relating to aesthetic effect and except those waived as provided for in Sections 4.3.10,9.10.4 and 9.10.5,shall,after decision by the Architect or 30 days after submission of the Claim to the Architect,be subject to arbitration. Prior to arbitration,the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5. §4.6.2 Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise,shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect.The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association,and a copy shall be filed with the Architect. §4.6.3 A demand for arbitration shall be made within the time limits specified in Sections 4.4.6 and 4.6.1 as applicable,and in other cases within a reasonable time after the Claim has arisen,and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section 13.7. AIA Document A201 TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA`Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 2� reproduction or distribution of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04?28f2008 under Order No.1000325529 1 which expires on 10/26,'2008,and is not for resale. User Notes: (2820102598) §4.6.4 Limitation on Consolidation or Joinder. No arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner,the Architect,the Architect's employees or consultants,except by written consent containing specific reference to the Agreement and signed by the Architect,Owner,Contractor and any other person or entity sought to be joined.No arbitration shall include,by consolidation or joinder or in any other manner, parties other than the Owner,Contractor,a separate contractor as described in Article 6 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration.No person or entity other than the Owner,Contractor or a separate contractor as described in Article 6 shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial.Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of a Claim not described therein or with a person or entity not named or described therein.The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. §4.6.5 Claims and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. §4.6.6 Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final,and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 5 SUBCONTRACTORS §5.1 DEFINITIONS §5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site.The term"Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor.The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. §5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site.The term"Sub-subcontractor"is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. §5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK §5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements,the Contractor,as soon as practicable after award of the Contract,shall furnish in writing to the Owner through the Architect the names of persons or entities(including those who are to fumish materials or equipment fabricated to a special design) proposed for each principal portion of the Work.The Architect will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect,after due investigation,has reasonable objection to any such proposed person or entity.Failure of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection. §5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection.The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. §5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor,the Contractor shall propose another to whom the Owner or Architect has no reasonable objection.If the proposed but rejected Subcontractor was reasonably capable of performing the Work,the Contract Sum and Contract Time shall be increased or decreased by the difference,if any,occasioned by such change,and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. §5.2.4 The Contractor shall not change a Subcontractor,person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. AIA Document A201Tm—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 22 reproduction or distribution of this AIA!f Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04'28'2008 under Order No.1000325529 1 which expires on 10.126%2008,and is not for resale. User Notes: (2820102598) §5.3 SUBCONTRACTUAL RELATIONS §5.3.1 By appropriate agreement,written where legally required for validity,the Contractor shall require each Subcontractor,to the extent of the Work to be performed by the Subcontractor,to be bound to the Contractor by terms of the Contract Documents,and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work,which the Contractor,by these Documents, assumes toward the Owner and Architect.Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights,and shall allow to the Subcontractor,unless specifically provided otherwise in the subcontract agreement,the benefit of all rights,remedies and redress against the Contractor that the Contractor,by the Contract Documents,has against the Owner.Where appropriate,the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors.The Contractor shall make available to each proposed Subcontractor,prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound,and,upon written request of the, Subcontractor,identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents.Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. §5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS §5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: ,1 assignment is effective only after tenmination of the Contract by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing;and .2 assignment is subject to the prior rights of the surety,if any,obligated under bond relating to the Contract. §5.4.2 Upon such assignment,if the Work has been suspended for more than 30 days,the Subcontractor's compensation shalt be equitably adjusted for increases in cost resulting from the suspension. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS §6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS §6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces,and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner,the Contractor shall make such Claim as provided in Section 4.3. §6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site,the term"Contractor"in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. §6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor,who shall cooperate with them.The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so.The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement.The construction schedules shall then constitute the schedules to be used by the Contractor,separate contractors and the Owner until subsequently revised. §6.1.4 Unless otherwise provided in the Contract Documents,when the Owner performs construction or operations related to the Project with the Owner's own forces,the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract,including,without excluding others, those stated in Article 3,this Article 6 and Articles 10, 11 and 12. §6.2 MUTUAL RESPONSIBILITY §6.2.1 The Contractor shalt afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities,and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. AIA Document A201TI—1997.Copyright G 1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved_. WARNING:This A(A' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 23 reproduction or distribution of this AIA'Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04.!28`2008 under Order No.1 000325529_1 which expires on 10126!2008,and is not for resale. User Notes: (2820102598) §6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor,the Contractor shall,prior to proceeding with that portion of the Work,promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results.Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work,except as to defects not then reasonably discoverable. §6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a separate contractor because of delays,improperly timed activities or defective construction of the Contractor.The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed activities,damage to the Work or defective construction of a separate contractor. §6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. §6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. §6.3 OWNER'S RIGHT TO CLEAN UP §6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK §7.1 GENERAL §7.1.1 Changes in the Work may be accomplished after execution of the Contract,and without invalidating the Contract,by Change Order,Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. §7.1.2 A Change Order shall be based upon agreement among the Owner,Contractor and Architect;a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor;an order for a minor change in the Work may be issued by the Architect alone. §7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents.,and the Contractor shall proceed promptly,unless otherwise provided in the Change Order,Construction Change Directive or order for a minor change in the Work. §7.2 CHANGE ORDERS §7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner,Contractor and Architect, stating their agreement upon all of the following: .1 change in the Work; .2 the amount of the adjustment, if any, in the Contract Sum;and .3 the extent of the adjustment,if any, in the Contract Time. §7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Section 7.3.3. §7.3 CONSTRUCTION CHANGE DIRECTIVES §7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect,directing a change in the Work prior to agreement on adjustment,if any", in the Contract Sum or Contract Time,or both.The Owner may by Construction Change Directive,without invalidating the Contract,order changes in the Work within the general scope of the Contract consisting of additions,deletions or other revisions,the Contract Sum and Contract Time being adjusted accordingly. §7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. AIA Document A201TM—1997.Copyright©1911,1915,1918, 1925,1937,1951,1958,1961.1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AW 'Document is protected by U.S.Copyright Lave and International Treaties.Unauthorized 24 reproduction or distribution of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28'2008 under Order No.1000325529 t which expires on 10/26(2008,and is not for resale. User Notes: (2820102598) §7.3.3 If the Construction Change Directive provides for in adjustment to the Contract Sum,the adjustment shall be based on one of the following methods: .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 unit prices stated in the Contract Documents or subsequently agreed upon; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee;or V .4 as provided in Section 7.3.6. §7.3.4 Upon receipt of a Construction Change Directive,the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method,if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. §7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith,including adjustment in Contract Sum and Contract Time or the method for determining them.Such agreement shall be effective immediately and shall be recorded as a Change Order. §7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings of those performing the Work attributable to the change,including,in case of an increase in the Contract Sum,a reasonable allowance for overhead and profit.In such case,and also under Section 7.3.3.3,the Contractor shall keep and present,in such form as the Architect may prescribe,an itemized accounting together with appropriate supporting data.Unless otherwise provided in the Contract Documents,costs for the purposes of this Section 7.3.6 shall be limited to the following: ,1 costs of labor, including social security,old age and unemployment insurance, fringe benefits required by agreement or custom,and workers'compensation insurance; .2 costs of materials,supplies and equipment,including cost of transportation, whether incorporated or consumed; .3 rental costs of machinery and equipment,exclusive of hand tools,whether rented from the Contractor or others; .4 costs of premiums for all bonds and insurance,permit fees,and sales, use or similar taxes related to the Work;and .5 additional costs of supervision and field office personnel directly attributable to the change. §7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect.When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase,if any, with respect to that change. §7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner,amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties'agreement with part or all of such costs.For any portion of such cost that remains in dispute,the Architect will make an interim determination for purposes of monthly certification for payment for those costs.That determination of cost shall adjust the Contract Sum on the same basis as a Change Order,subject to the right of either party to disagree and assert a claim in accordance with Article 4. §7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time,or otherwise reach agreement upon the adjustments,such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. §7.4 MINOR CHANGES IN THE WORK §7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor.The Contractor shall carry out such written orders promptly. AIA Document A201T1"—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AEA'` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 25 reproduction or distribution of this AIA_`Document..or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04%28!2008 under Order No.1 0003255291 which expires on 10,25!2008,and is not for resale. User Notes: (2820102598) ARTICLE 8 TIME §8.1 DEFINITIONS §8.1.1 Unless otherwise provided,Contract Time is the period of time,including authorized adjustments,allotted in the Contract Documents for Substantial Completion of the Work. §8.1.2 The date of commencement of the Work is the date established in the Agreement. §8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. §8.1.4 The term"day"as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. §8.2 PROGRESS AND COMPLETION §8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. §8.2.2 The Contractor shall not knowingly,except by agreement or instruction of the Owner in writing,prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 1 I to be furnished by the Contractor and Owner.The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to proceed given by the Owner,the Contractor shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages,mechanic's liens and other security interests. §8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. §8.3 DELAYS AND EXTENSIONS OF TIME §8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect,or of an employee of either,or of a separate contractor employed by the Owner,or by changes ordered in the Work,or by labor disputes,fire,unusual delay in deliveries,unavoidable casualties or other causes beyond the Contractor's control,or by delay authorized by the Owner pending mediation and arbitration,or by other causes which the Architect determines may justify delay,then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. §8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section 4.3. §8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. ARTICLE 9 PAYMENTS AND COMPLETION §9.1 CONTRACT SUM §9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments,is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. §9.2 SCHEDULE OF VALUES §9.2.1 Before the first Application for Payment,the Contractor shall submit to the Architect a schedule of values allocated to various portions of the Work,prepared in such form and supported by such data to substantiate its accuracy as the Architect may require.This schedule,unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. §9.3 APPLICATIONS FOR PAYMENT §9.3.1 At least ten days before the date established for each progress payment,the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be notarized, if required,and supported by such data substantiating the Contractor's right to AIA Document A2011m—1997.Copyright ©1911,1915,1918.1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA"Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 26 reproduction or distribution of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04+'28/2008 under Order No.1000325529 1 which expires on 10l26?2008,and is not for resale. User Notes: (2820102598) payment as the Owner or Architect may require,such as copies of requisitions from Subcontractors and material suppliers,and reflecting retainage if provided for in the Contract Documents. §9.3.1.1 As provided in Section 7.3.8,such applications may include requests for payment on account of'changes in the Work which have been properly authorized by Construction Change Directives,or by interim determinations of the Architect,but not yet included in Change Orders. §9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier,unless such Work has been performed by others whom the Contractor intends to pay. §9.3.2 Unless otherwise provided in the Contract Documents,payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work.If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing.Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest,and shall include the costs of applicable insurance,storage and transportation to the site for such materials and equipment stored off the site. §9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment.The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall,to the best of the Contractor's knowledge,information and belief,be free and clear of liens,claims, security interests or encumbrances in favor of the Contractor,Subcontractors,material suppliers,or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. §9.4 CERTIFICATES FOR PAYMENT §9.4.1 The Architect will,within seven days after receipt of the Contractor's Application for Payment,either issue to the Owner a Certificate for Payment,with a copy to the Contractor, for such amount as the Architect determines is properly due,or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Section 9.5.1. §9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising,the Application for Payment,that the Work has progressed to the point indicated and that,to the best of the Architect's knowledge,information and belief,the quality of the Work is in accordance with the Contract Documents.The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion,to results of subsequent tests and inspections,to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect.The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified.However,the issuance of a Certificate for Payment will not be a representation that the Architect has(1)made exhaustive or continuous on- site inspections to check the quality or quantity of the Work,(2)reviewed construction means,methods, techniques, sequences or procedures,(3)reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment,or(4)made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. §9.5 DECISIONS TO WITHHOLD CERTIFICATION §9.5.1 The Architect may withhold a Certificate for Payment in whole or in part,to the extent reasonably necessary to protect the Owner,if in the Architect's opinion the representations to the Owner required by Section 9.4.2 cannot be made.If the Architect is unable to certify payment in the amount of the Application,the Architect will notify the Contractor and Owner as provided in Section 9.4.1.If the Contractor and Architect cannot agree on a revised amount,the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner.The Architect may also withhold a Certificate for Payment or,because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2,because of: .1 defective Work not remedied, AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AiA' Document is protected by U.S.Copyright Law and International Treaties:Unauthorized 27 reproduction or distribution of this AIA" Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum,extent possible under the law. This document was produced by AIA software at 09:31:06 on 04+281/2008 under Order No.1000325529 1 which expires on 10/26.%2008,and is not for resale. User Notes: (2820102598) .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or another contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time,and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 persistent failure to carry out the Work in accordance with the Contract Documents. §9.5.2 When the above reasons for withholding certification are removed,certification will be made for amounts previously withheld. §9.6 PROGRESS PAYMENTS §9.6.1 After the Architect has issued a Certificate for Payment,the Owner shall make payment in the manner and within the time provided in the Contract Documents,and shall so notify the Architect. §9.6.2 The Contractor shall promptly pay each Subcontractor,upon receipt of payment from the Owner,out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work,the amount to which said Subcontractor is entitled,reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work.The Contractor shall,by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a similar manner. §9.6.3 The Architect will,on request,furnish to a Subcontractor,if practicable,information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor. §9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. - §9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2,9.6.3 and 9.6.4. §9.6.6 A Certificate for Payment,a progress payment,or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. §9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sun of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials,or both,under contract with the Contractor for which payment was made by the Owner.Nothing contained herein shall require money to be placed in a separate account and not commingled with money of the Contractor,shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. §9.7 FAILURE OF PAYMENT §9.7.1 If the Architect does not issue a Certificate for Payment,through no fault of the Contractor, within seven days after receipt of the Contractor's Application for Payment,or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by arbitration,then the Contractor may,upon seven additional days' written notice to the Owner and Architect,stop the Work until payment of the amount owing has been received.The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut-down,delay and start-up,plus interest as provided for in the Contract Documents. AIA Document A201TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized no reproduction or distribution of this AIA= Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28/2008 under Order No.1000325529_1 which expires on 10/26/2008.and is not for resale. User Notes: (2820102598) §9.8 SUBSTANTIAL COMPLETION §9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. §9.8.2 When the Contractor considers that the Work,or a portion thereof which the Owner agrees to accept separately,is substantially complete,the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment.Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. §9.8.3 Upon receipt of the Contractor's list,the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete.If the Architect's inspection discloses any item,whether or not included on the Contractor's list,which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall,before issuance of the Certificate of Substantial Completion,complete or correct such item upon notification by the Architect.In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. §9.8.4 When the Work or designated portion thereof is substantially complete,the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion,shall establish responsibilities of the Owner and Contractor for security,maintenance,heat,utilities,damage to the Work and insurance,and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate.Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. §9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate.Upon such acceptance and consent of surety,if any,the Owner shall make payment of retainage applying to such Work or designated portion thereof.Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. §9.9 PARTIAL OCCUPANCY OR USE - §9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor,provided such occupancy or use is consented to by the insurer as required under Section 11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete,provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage,if any.security, maintenance,heat,utilities,damage to the Work and insurance,and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents.When the Contractor considers a portion substantially complete,the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2.Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld.The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or,if no agreement is reached,by decision of the Architect. §9.9.2 Immediately prior to such partial occupancy or use,the Owner,Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. §9.9.3 Unless otherwise agreed upon,partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. §9.10 FINAL COMPLETION AND FINAL PAYMENT §9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment;the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed,the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge,information and belief,and on the basis of the Architect's on-site visits and inspections,the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA`` Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 29 reproduction or distribution of this AIA` Document,or any portion of it,may result In severe civil and criminal penalties.and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28!2008 under Order No.10003255291 which expires on 10126.2008,and is not for resale. User Notes: (2820102598) the final Certificate is due and payable.The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. §9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect(1)an affidavit that payrolls,bills for materials and equipment,and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered(less amounts withheld by Owner)have been paid or otherwise satisfied,(2)a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner,(3)a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents,(4)consent of surety,if any,to final payment and(5),if required by the Owner,other data establishing payment or satisfaction of obligations,such as receipts,releases and waivers of liens,claims,security interests or encumbrances arising out of the Contract,to the extent and in such form as may be designated by the Owner.If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien.If such lien remains unsatisfied after payments are made,the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien,including all costs and reasonable attorneys' fees. §9.10.3 If,after Substantial Completion of the Work,final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion,and the Architect so confirms,the Owner shall, upon application by the Contractor and certification by the Architect,and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted.If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents,and if bonds have been furnished,the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment.Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. §9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens,Claims,security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents;or .3 terms of special warranties required by the Contract Documents. §9.10.5 Acceptance of final payment by the Contractor,a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY §101 SAFETY PRECAUTIONS AND PROGRAMS §10.1.1 The Contractor shall be responsible for initiating,maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. §10.2 SAFETY OF PERSONS AND PROPERTY §10.2.1 The Contractor shall take reasonable precautions for safety of,and shall provide reasonable protection to prevent damage,injury or loss to: A employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site,under care,custody or control of the Contractor or the Contractor's Subcontractors or Sub- subcontractors; and .3 other property at the site or adjacent thereto,such as trees,shrubs,lawns,walks,pavements, roadways,structures and utilities riot designated for removal,relocation or replacement in the course of construction. §1022 The Contractor shall give notices and comply with applicable laws,ordinances,rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. AIA Document A201 TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA'.' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized �� reproduction or distribution of this AIA'` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/2812008 under Order No.1000325529 1 which expires on 10/26,,2008,and is not for resale. — User Notes: (2820102598) §10.2.3 The Contractor shall erect and maintain,as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. §10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work,the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. §10.2.5 The Contractor shall promptly remedy damage and loss(other than damage or loss insured under property insurance required by the Contract Documents)to property referred to in Sections 10.2.12 and 10.2.1.3 caused in whole or in part by the Contractor,a Subcontractor,a Sub-subcontractor,or anyone directly or indirectly employed by any of them,or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3,except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them,or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor.The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. §10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents.This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. §10.2.7 The Contractor shall not load or pen-nit any part of the construction or site to be loaded so as to endanger its safety. §10.3 HAZARDOUS MATERIALS §10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance,including but not limited to asbestos or polychlorinated biphenyl(PCB), encountered on the site by the Contractor,the Contractor shall,upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. §10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present,to verify that it has been rendered harmless.Unless otherwise required by the Contract Documents,the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance.The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner.If either the Contractor or Architect has an objection to a person or entity proposed by the Owner,the Owner shall propose another to whom the Contractor and the Architect have no reasonable objection.When the material or substance has been rendered harmless,Work in the affected area shall resume upon written agreement of the Owner and Contractor.The Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shut-down,delay and start-up, which adjustments shall be accomplished as provided in Article 7. §10.3.3 To the fullest extent permitted by law,the Owner shall indemnify and hold harmless the Contractor, Subcontractors,Architect,Architect's consultants and agents and employees of any of them from and against claims,damages, losses and expenses,including but not limited to attorneys' fees,arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless,provided that such claim,damage,loss or expense is attributable to bodily injury,sickness,disease or death,or to injury to or destruction of tangible property (other than the Work itself)and provided that such damage,loss or expense is not due to the sole negligence of a party seeking indemnity. §10.4 The Owner shall not be responsible under Section 10.3 for materials and substances brought to the site by the Contractor unless such materials or substances were required by the Contract Documents. AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This ASA' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 31 reproduction or distribution of this AIA` Document,or any portion o€it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04,128,2008 under Order No.1000325529 1 which expires on 10/26/2008,and is not for resale. — User Notes: (2820102598) §10.5 If,without negligence on the part of the Contractor,the Contractor is held liable for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. §10.6 EMERGENCIES §10.6.1 In an emergency affecting safety of persons or property,the Contractor shall act,at the Contractor's discretion,to prevent threatened damage,injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Section 4.3 and Article 7. ARTICLE 11 INSURANCE AND BONDS §11.1 CONTRACTOR'S LIABILITY INSURANCE §11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable,whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them,or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation,disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily injury,occupational sickness or disease,or death of the Contractor's employees; .3 claims for damages because of bodily injury,sickness or disease,or death of any person other than the Contractor's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages,other than to the Work itself,because of injury to or destruction of tangible property,including loss of use resulting therefrom; .6 claims for damages because of bodily injury,death of a person or property damage arising out of ownership,maintenance or use of a motor vehicle; 7 claims for bodily injury or property damage arising out of completed operations;and .8 claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18. §11.1.2 The insurance required by Section 1 1.1.1 shall be written for not less than limits of liability specified in the Contract Documents or required by law,whichever coverage is greater.Coverages, whether written on an occurrence or claims-made basis,shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. §11.1.3 Certificates of insurance acceptable to the Owner shall be Filed with the Owner prior to commencement of the Work.These certificates and the insurance policies required by this Section 11.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days'prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final payment and are reasonably available,an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section 9.10.2.Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate,or both, shall be furnished by the Contractor with reasonable promptness in accordance with the Contractor's information and belief. §11.2 OWNER'S LIABILITY INSURANCE §11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. §11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE §11.3.1 Optionally,the Owner may require the Contractor to purchase and maintain Project Management Protective Liability insurance from the Contractor's usual sources as primary coverage for the Owner's,Contractor's and Architect's vicarious liability for construction operations under the Contract.Unless otherwise required by the Contract Documents,the Owner shall reimburse the Contractor by increasing the Contract Su1ri to pay the cost of purchasing and maintaining such optional insurance coverage,and the Contractor shall not be responsible for purchasing any other liability insurance on behalf of the Owner.The minimum limits of liability purchased with such coverage shall be equal to the aggregate of the limits required for Contractor's Liability Insurance under Sections 1 1.1.1? through 1 l.1.1.5. AIA Document A201TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970.1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA' Document is protected by U.S.Copyright Law and international Treaties.Unauthorized 32 reproduction or distribution of this AIA` Document,or any portion of it;may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04128.12008 under Order No.10003255291 which expires on 10/26/2008,and is not for resale. User Notes: (2820102598) §11.3.2 To the extent damages are covered by Project Management Protective Liability insurance,the Owner. Contractor and Architect waive all rights against each other for damages,except such rights as they may have to the proceeds of such insurance.The policy shall provide for such waivers of subrogation by endorsement or otherwise. §11.3.3 The Owner shall not require the Contractor to include the Owner,Architect or other persons or entities as additional insureds on the Contractor's Liability Insurance coverage under Section 11.1. §11.4 PROPERTY INSURANCE §11.4.1 Unless otherwise provided,the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located,property insurance written on a builder's risk"all-risk"or equivalent policy form in the amount of the initial Contract Sum,plus value of subsequent Contract modifications and cost of materials supplied or installed by others,comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles.Such property insurance shall be maintained,unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance,until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.4 to be covered, whichever is later.This insurance shall include interests of the Owner,the Contractor,Subcontractors and Sub- subcontractors in the Project. §11.4.1.1 Property insurance shall be on an "all-risk"or equivalent policy form and shall include, without limitation, insurance against the perils of fire(with extended coverage)and physical loss or damage including, without duplication of coverage,theft,vandalism,malicious mischief,collapse,earthquake,flood,windstorm, falsework, testing and startup,temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements,and shall cover reasonable compensation for Architect's and Contractor's services and expenses required as a result of such insured loss. §11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in the amount described above,the Owner shall so inform the Contractor in writing prior to commencement of the Work.The Contractor may then effect insurance which will protect the interests of the Contractor,Subcontractors and Sub-subcontractors in the Work,and by appropriate Change Order the cost thereof shall be charged to the Owner.If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above,without so notifying the Contractor in writing,then the Owner shall bear all reasonable costs properly attributable thereto. §11.4.1.3 If the property insurance requires deductibles,the Owner shall pay costs not covered because of such deductibles. §11.4.1.4 This property insurance shall cover portions of the Work stored off the site,and also portions of the Work in transit. §11.4.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise.The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall,without mutual written consent,take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. §11.4.2 Boiler and Machinery Insurance.The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law,which shall specifically cover such insured objects during installation and until final acceptance by the Owner;this insurance shall include interests of the Owner,Contractor, Subcontractors and Sub-subcontractors in the Work,and the Owner and Contractor shall be named insureds. §11.4.3 Loss of Use Insurance.The Owner,at the Owner's option,may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards,however caused.The Owner waives all rights of action against the Contractor f'or loss of use of the Owner's property,including consequential losses due to fire or other hazards however caused. A1A Document A201 TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AWA Document is protected by U.S.Copyright Law,and international Treaties.Unauthorized 33 reproduction or distribution of this A€A"Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/2812008 under Order No.1000325529_4 which expires on 10!262008,and is not for resale. User Notes: (2820102598) §11.4.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the Owner shall,if possible,include such insurance,and the cost thereof shall be charged to the Contractor by appropriate Change Order. §11.4.5 If during the Project construction period the Owner insures properties,real or personal or both,at or adjacent to the site by property insurance under policies separate from those insuring the Project,or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period,the Owner shall waive all riohts in accordance with the terms of Section 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance.All separate policies shall provide this waiver of subrogation by endorsement or otherwise. §11.4.6 Before an exposure to loss may occur,the Owner shall file with the Contractor a copy of each policy that includes insurance coverages required by this Section 11.4.Each policy shall contain all generally applicable conditions,definitions,exclusions and endorsements related to this Project.Each policy shall contain a provision that the policy will not be canceled or allowed to expire,and that its limits will not be reduced,until at least 30 days' prior written notice has been given to the Contractor. §11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against(1)each other and any of their subcontractors,sub-subcontractors,agents and employees,each of the other,and(2)the Architect.Architect's consultants,separate contractors described in Article 6, if any,and any of their subcontractors,sub-subcontractors, agents and employees,for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.4 or other property insurance applicable to the Work,except such rights as they have to proceeds of such insurance held by the Owner as fiduciary.The Owner or Contractor,as appropriate,shall require of the Architect,Architect's consultants,separate contractors described in Article 6, if any,and the subcontractors,sub-subcontractors,agents and employees of any of them,by appropriate agreements,written where legally required for validity,similar waivers each in favor of other parties enumerated herein.The policies shall provide such waivers of subrogation by endorsement or otherwise.A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification,contractual or otherwise,did not pay the insurance premium directly or indirectly,and whether or not the person or entity had an insurable interest in the property damaged. §11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds,as their interests may appear,subject to requirements of any applicable mortgagee clause and of Section 1 1.4.10.The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor,and by appropriate agreements,written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. §11.4.9 If required in writing by a party in interest,the Owner as fiduciary shall,upon occurrence of an insured loss, give bond for proper performance of the Owner's duties.The cost of required bonds shall be charged against proceeds received as fiduciary.The Owner shall deposit in a separate account proceeds so received,which the Owner shall distribute in accordance with such agreement as the parties in interest may reach,or in accordance with an arbitration award in which case the procedure shall be as provided in Section 4.6.If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience,replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with Article 7 §11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power;if such objection is made,the dispute shall be resolved as provided in Sections 4.5 and 4.6.The Owner as fiduciary shall, in the case of arbitration,make settlement with insurers in accordance with directions of the arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. §11.5 PERFORMANCE BOND AND PAYMENT BOND §11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. AIA Document A201TM—1997.Copyright ©1911,1915.1918,1925,1937,1951,1958,1961,1963,1966.1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AW Document is protected by U.S.Copyright Law and international Treaties.Unauthorized 34 reproduction or distribution of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/28,12008 under Order No.1000325529_1 which expires on 10126,'2008,and is not for resale. User Notes: (2820102598) §11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract,the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK §12.1 UNCOVERING OF WORK §12.1.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents,it must,if required in writing by the Architect,be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. §12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered,the Architect may request to see such Work and it shall be uncovered by the Contractor.If such Work is in accordance with the Contract Documents,costs of uncovering and replacement shall,by appropriate Change Order,be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. §12.2 CORRECTION OF WORK §12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION §12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated,installed or completed.Costs of correcting such rejected Work,including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby,shall be at the Contractor's expense. §12.2.2 AFTER SUBSTANTIAL COMPLETION §12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if,within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9.9.1,or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents,the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition.The Owner shall give such notice promptly after discovery of the condition.During the one-year period for correction of Work,if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction,the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect,the Owner may correct it in accordance with Section 2.4. §12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. §12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2. §12,2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. §12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction,whether completed or partially completed,of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. §12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work,and has no relationship to the time within which the obligation to comply with the Contract AIA Document A207TM—1997.Copyright OO 1911,1915,1918.1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA Document is protected by U.S.Copyright Law and International Treaties.Unauthorized 35 reproduction or distribution of this AIA'.' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04128/2008 under Order No.1000325529_1 which expires on 1012612008,and is not for resale. User Notes: {2820102598} Documents may be sought to be enforced,nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. §12.3 ACCEPTANCE OF NONCONFORMING WORK §12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents,the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable.Such adjustment shall be effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS §13.1 GOVERNING LAW §13.1.1 The Contract shalt be governed by the law of the place where the Project is located. §13.2 SUCCESSORS AND ASSIGNS §13,2.1 The Owner and Contractor respectively bind themselves,their partners,successors,assigns and legal representatives to the other party hereto and to partners,successors,assigns and legal representatives of such other party in respect to covenants,agreements and obligations contained in the Contract Documents.Except as provided in Section 13.2.2,neither party to the Contract shall assign the Contract as a whole without written consent of the other.If either party attempts to make such an assignment without such consent,that party shall nevertheless remain legally responsible for all obligations under the Contract. §13.2.2 The Owner may, without consent of the Contractor,assign the Contract to an institutional lender providing construction financing for the Project.In such event,the lender shall assume the Owner's rights and obligations under the Contract Documents.The Contractor shall execute all consents reasonably required to facilitate such assignment. §13.3 WRITTEN NOTICE §13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended,or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. §13.4 RIGHTS AND REMEDIES §13,4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties,obligations,rights and remedies otherwise imposed or available by law. §13.4.2 No action or failure to act by the Owner,Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract,nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder,except as may be specifically agreed in writing. §13.5 TESTS AND INSPECTIONS §13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules,regulations or orders of'public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided,the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner,or with the appropriate public authority,and shall bear all related costs of tests,inspections and approvals.The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may be present for such procedures.The Owner shall bear costs of tests,inspections or approvals which do not become requirements until after bids are received or negotiations concluded. §13.5.2 If the Architect.Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1,the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing,inspection or approval by an entity acceptable to the Owner,and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures.Such costs,except as provided in Section 13.5.3,shall be at the Owner's expense. AIA Document A201 TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961.1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved_. WARNING:This AIA' Document is protected by U.S.Copyright Law and International Treaties.Unauthorized �6 reproduction or distribution of this AW Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04,'2812008 under Order No.1000325529 1 which expires on 10,26/2008,and is not for resale. — User Notes: (2820102598) §13.5.3 If such procedures for testing,inspection or approval under Sections 13.5.1 and 13.52 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents,all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. §13.5.4 Required certificates of testing,inspection or approval shall, unless otherwise required by the Contract Documents,be secured by the Contractor and promptly delivered to the Architect. §13.5.5 If the Architect is to observe tests,inspections or approvals required by the Contract Documents, the Architect will do so promptly and,where practicable,at the normal place of testing. §13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. §13.6 INTEREST §13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or,in the absence thereof,at the legal rate prevailing from time to time at the place where the Project is located. §13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD §13.7.1 As between the Owner and Contractor: .1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; .2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act. occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not Iater than the date of issuance of the final Certificate for Payment;and .3 After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Certificate for Payment,any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Section 3.5,the date of any correction of the Work or failure to correct the Work by the Contractor under Section 12.2,or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT §14.1 TERMINATION BY THE CONTRACTOR §14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor.Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: .1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped: .2 an act of government,such as a declaration of national emergency which requires all Work to be stopped; .3 because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9.4.1,or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents;or .4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request,reasonable evidence as required by Section 2.2.1. §14.1.2 The Contractor may terminate the Contract if,through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor,repeated suspensions,delays or interruptions of the entire Work AIA Document A201TM—1997.Copyright©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA`Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AW' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted t 37 maximum extent possible under the law. This document was produced by AIR software at 09:31:06 on 04;2812008 under Order No.t000325529 1 which o the expires on 10/2612008,and is not for resale. — User Notes: (2820102598) by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion,or 120 days in any 365-day period,whichever is less. §14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists,the Contractor may,upon seven days' written notice to the Owner and Architect,terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials,equipment,tools,and construction equipment and machinery, including reasonable overhead,profit and damages. §14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work,the Contractor may,upon seven additional days' written notice to the Owner and the Architect,terminate the Contract and recover from the Owner as provided in Section 14.1.3. §14.2 TERMINATION BY THE OWNER FOR CAUSE §14.2.1 The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 persistently disregards laws,ordinances,or rules,regulations or orders of a public authority having jurisdiction;or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. §14.2.2 When any of the above reasons exist,the Owner, upon certification by the Architect that sufficient cause exists to justify such action,may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety,if any,seven days' written notice,terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials,equipment,tools,and construction equipment and machinery thereon owned by the Contractor; .2 accept assignment of subcontracts pursuant to Section 5.4;and .3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. §14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1,the Contractor shall not be entitled to receive further payment until the Work is finished. §14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work,including compensation for the Architect's services and expenses made necessary thereby,and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor.If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.The amount to be paid to the Contractor or Owner,as the case may be,shall be certified by the Architect,upon application,and this obligation for payment shall survive termination of the Contract. §14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE §14.3.1 The Owner may,without cause,order the Contractor in writing to suspend,delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. §14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension,delay or interruption as described in Section 14.3.1. Adjusti-nent of the Contract Surn shall include profit.No adjustment shall be made to the extent: .1 that performance is,was or would have been so suspended,delayed or interrupted by another cause for which the Contractor is responsible;or .2 that an equitable adjustment is made or denied under another provision of the Contract. AIA Document A201TI'—1997.Copyright©1911,1915,1918,1925,1937, 1951,1958,1961,1963,1966,1970,1976,1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA' Document is protected by U.S.Copyright Law and international Treaties.Unauthorized 3$ reproduction or distribution of this AtA Document,or any portion of it;may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 04/2812008 under Order No.1000325529 1 which expires on 10.2612008,and is not for resale. — User Notes: (2820102598) Additions and Deletions Report for AIA 0 Document A201 TM— 1997 This Additions and Deletions Report,as defined on page 1 of the associated document,reproduces below all text the author has added to the standard form AIA document in order to complete it,as well as any text the author may have added to or deleted from the original AIA text.Added text is shown underlined.Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document.This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 09:31:06 on 04/28/2008. PAGE 1 Town of Westlake Arts and Sciences Center 2600 J.T.OttinQer Road Westlake,Texas 76262 Town of Westlake 3 Village Circle,Suite 202 Westlake.Texas 76262 Gideon Toal 500 West 7th Street Fort Worth.Texas 76102 PAGE 39 Additions and Deletions Report for AIA Document A201TM—1997.Copyright ©1911,1915,1918,1925,1937,1951,1958,1961,1963,1966,1970,1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING:This AIA"' Document is protected by U.S.Copyright Law and 1 International Treaties.Unauthorized reproduction or distribution of this AIA'.' Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:31:06 on 0412812008 under Order No.1000325529_1 which expires on 10?26;2008,and is not for resale. User Notes: (2820102598) Certification of ocu era's Authenticity A/A® Document D401 TM — 2003 I, ,hereby certify,to the best of my knowledge,information and belief,that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 09:31:06 on 04/28/2008 under Order No. 1000325529_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA°Document A201TM—1997-General Conditions of the Contract for Construction,as published by the AIA in its software,other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401 70.1—2 00 3.Copyright©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING:This AIA, Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AiA` Document,or any portion of it 1 may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 09:31:06 on 04,/28.'2008 under Order No.1000325529_1 which expires on 10/26%2008,and is not for resale. User Notes: (2820102598) ITEM 4 MAY 5,2008 Town of Westlake Memo To: Honorable Mayor and Members of the Board of Aldermen From: Troy J. Meyer, Director of Facility & Recreation Subject: Regular meeting of May 5, 2008 Date: April 25, 2008 ITEM Consider a Resolution authorizing an agreement with North Texas Contracting, Inc. for the relocation of approximately 1,400 LF water and 710 LF of sanitary sewer lines as included in the contract. BACKGROUND The proposed project (exhibit A) includes water and sanitary sewer improvements. The new water, sewer and gas line easement is to the south west of the sports court and the new Arts & Sciences Center and will also serve future expansions of the civic campus. The water related items include the removal of 243 LF of 8", installing a new 12" on the south property line and reconnecting to the 8" waterline west of the gym. The sewer related items include the removal of 497LF of 8" sanitary sewer, installing 706 LF to the south west of the Arts & Sciences Center. By relocating the existing utilities to the south west of the Arts & Sciences Center it gives the Town the ability to service them in the future and have access for future services. The 3" gas line will,follow the same relocation area as the water" and sanitary sewer. Atmos will not alloy's he Town to contract the work to relocate the gas line, therefore they will bill the Town for the work to relocate the 3" gas line. FUNDING The funds to facilitate this agreement have been included in the adopted FY 2007-08 budget. The attached contract from North Texas Contracting, Inc. is $134,664.00. TOWN OF WESTLAKE RESOLUTION NO. 08-26 AUTHORIZING AN AGREEMENT WITH NORTH TEXAS CONTRACTING, INC.FOR THE RELOCATION OF APPROXIMATELY 1,400 LF WATER AND 710 LF SANITARY SEWER LINES, ON BEHALF OF THE TOWN OF WESTLAKE, TEXAS. WHEREAS, the Board of Aldermen finds that the relocation of approximately 1,400 LF water and 710 LF of sanitary sewer lines benefits the safety and welfare of the public; and WHEREAS, the Board of Aldermen finds that funding is necessary for said relocation of the utilities; and WHEREAS, the Board of Aldermen finds that the passage of this Resolution is in the best interest of the public., NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. THAT, the above findings are hereby found to be true and correct and are incorporated herein in the entirety. SECTION 2. THAT, the Board of Aldermen of the Town of Westlake, Texas, hereby approves the agreement with North Texas Contracting, Inc. relating to the utility relocation of approximately 1.400 LF water and 710 LF sanitary sewer lines, as attached hereto Exhibit *,A"-, and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake. Texas. PASSED AND APPROVED ON THIS 5"' DAY OF MAY 2008. Scott Bradley, Mayor ATTEST: Kim Sutter, TRMC, Town Secretary Thomas E. Brymer, Town Manager APPROVED AS TO FORM: L. Stanton Lowry. Town Attorney AGREEMENT BETWEEN TOWN AND CONTRACTOR ' I in Ithn year 22-028o by and between dated as of the �1 day of 0 20ub;� al 10�- LL� THIS AGREEMENT is Texas (hereinafter called O#N—E—R) and the Town of Westlake, (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Westlake Civil Campus relocation of approximately 1,100 LF water, 650 LF sanitary sewer and 830 LF gas utilities. The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Along the western portion of Westlake Civil Campus on Ottinger Road Article 2. ENGINEER. The Town Engineer who is hereinafter called E NGINEER and who is to act as OWNER'S as the rights and authority assigned representative, assume all duties and responsibilities and h ith completion of the Work in accordance with the to ENGINEER by the OWNER in connection w Contract Documents. Article 3. CONTRACT TIME. /4 AN d at e o'I w r itt e n �vvitkin ten V1 -Jays after the 3.1. CONTRACTOR agNe'-S "w'rx '"" L notice to commence work, and to complete the work on which he has bid within 45 working days as provided in the General Conditions. Article 4. CONTRACT PRICE. 4.1. OWNER shall pay CONTRACTOR for completion of the Work on a Unit Price Work Basis in accordance with the Contract Documents in current funds based on the measured quantities and the unit prices stated in the Proposal. Article 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment on work completed during the previous month on the first day of the month. CONTRACTOR shall present only one Application for Payment each month. Applications for Payment will be processed by ENGINthe EER and OWNER shall make payment to CONTRACTOR within thirty (30) days of the date of invoice. Article 6. INTEREST, All moneys not paid when due shall bear interest at the maximum rate allowed by law at the place of the Project. A-1 Article 7. CONTRACTOR'S REPRESENTIONS. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations: 7.1. CONTRACTOR has familiarized itself with the nature and exnd tent of the lation Contract that in any Documents, Work, site, locality, and all local conditions and Laws a Regus manner may affect cost, progress, performance or furnishing of the Work. 0 use such materials and so construct the work that it will 7.2. CONTRACTOR binds itself t of two (2)years from the date of remain in good repair and condition for and during the period the repair and to maintain said work in good repair and condition for said term at wo (t)years. CONTRACTOR binds itself to repair or reconstruct the work in whole or in part any me within said period, if in the opinion of the ENGINEER, it be necessary. 7.2. To the fullest extent permitted by laws and Regulations, CONTRn CTOR shall indemnify and hold harmless OWNER and ENGINEER expenses,heir consultants, es and employees from and against all claims, damages, losses and direct, indirect or consequential (,including but not limited to fees and charges of engineers, architects: attorneys and other professionals and court and arbitration costs) arising out of or resulting from the performance of Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property in( whole or in part other than the Work itself) including the loss Of use resulting there from and (b ) is caused by any negligent act or omission of CONTRACTOR, and Subcontractorm moan furnish any of the Work r, any person or organization directly or indirectly employed by any of them to perf or anyone for whose acts any of them may be liable, regardless of whether or n it is of it is caus ons ed in part by a party indemnified hereunder or arises by or is imposed by Laws and Rti regardless of the negligence of any such party. 7�4. In any and all claims against OWNER or ENGINEER or any of their consultants, agents or employees by any employee of CONTRACTOR, any Subcontractor, any person or organization directly or indirectly employed by an of them to perform or furnish any of the Work y acts any of them may be liable, the indemnification obligation under In,= of or anyone for whose paragraph 7.3 snail riot 'in any vvay by any limitation 0 "he its payable by or for CONTRACTOR or any such damages, compensation or benefits I or workmen's compensation acts, organization under workers Subcontractor or other person or employee benefit acts. disability benefit acts or other em Article 8. Contract Documents comprise the entire agreement between OWNER and The Contract Documents which CONTRACTOR concerning the Work consist of the following: 8A Notice to Bidders consisting of one (1) page. 8.2 Instructions to Bidders consisting of three (3) pages 8.3 Proposal consisting of seven (6) pages. 8.4 This Agreement consisting of four (4) pages. 8.5 Performance, Payment and Maintenance Bonds consisting of four(4) pages• 8.6 General Conditions consisting of twenty-six (26) pages. A-2 8.7 General Requirements consisting of fourteen (14) pages. 8.8 Construction Plans consisting of six (9) sheets as prepared by Pate Engineers. Addenda Nos. I . There are no Contract Documents other than those listed above in this Article 8. Article 9. TERMINATION. OWNER may terminate contract if CONTRACTOR persistently fails to perform the work in accordance with the Contract Documents including, but not limited to, failure to supply sufficient skilled workers, or suitable materials or equipment, or otherwise violates in any substantial way any provisions of the Contract Documents. OWNER may, after giving CONTRACTOR seven (7) days written notice and to the extent permitted by Laws and Regulations, terminate the services of CONTRACTOR, exclude CONTRACTOR from the site and take possession of the Work. Article 10. MISCELLANEOUS. 10.1. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound, and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents, OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. A-3 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed five (5) copies of the Agreement. Two counterparts each have been delivered to OWNER and CONTRACTOR, and one counterpart has been delivered to ENGINEER. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR. This agreement will be effective on the 2 A4V- day of yl* 72008, OWNER: CONTRACTOR: Town of Westlake, Texas NOV+kj-27YAS By: By: Scott Bradley, Mayor j*� ATTEST: ATTEST: Kim Sutter, TMRC, Town Secretary NW1AUV ay"'j Address forgiving notices: Address for giving notices: 3 Village Circle, Suite 202 C) Westlake, Texas 76262 (If OWNER is a public body, attach List name of person to whose attention resolution authorizing execution of notices are to be sent: Agreement. j (if CONTRACTOR is a Corporation, attach evidence of authority to sign.) A-4 PROPOSAL Date: � 1 2 7 To: The Honorable Mayor Scott Bradley And Board Of Aldermen Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 Gentlemen: The pursuant to the foregoing notice to bidders, the undersigned bidder hereby proposes to do all the work and furnish all necessary superintendence, labor, materials, and equipment to complete all the work upon which he bids, as provided by the attached specifications and shown on the plans and binds himself on acceptance of his proposal to execute a contract and bonds, according to the accompanying forms, for performing and completing the said work within the time stated, and maintaining same as required by the detailed specifications for the following prices, to-wit: BID ITEMS Prices to be written in words. DEMOLITION ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install,including all appurtenant work,complete in place,the following items) 4— eents 2• Cut and Plug 8"Water Line;Per Each: 2 EA. Dollars And $ $ o0o Cents 3. Excavate and Remove 3"Gas Line;Per Linear Foot: 0 Do� 420 L.F. TWO Dollars And $ T $ 06 Q0 Cents 4. Excavate and Remove 8"Water Line;Per Linear Foot: 243 L.F. D'kk I Dollars And �AD Cents 5. Excavate and Remove 8" Sanitary Sewer Line;Per Linear Foot: 559 L.F. lr I Dollars And 2 2 an go Cents P-1 6. Remove Existing Sanitary Sewer Manholes; 1 Per Each: 2 EA. ti-'J{I n Dollars And $ D D Cents 7. Trench Safety System;Per Linear Foot: 1,222 L.F. oAku I Dollars And $ o Cents TOTAL AMOUNT BED: DEMOLITION $ WATER IMPROVEMENTS 1 ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install, including all appurtenant work,complete in place,the following items) 1. 6-Inch Water Pipe;Per Linear Foot: 18 L.F. t �� _Dollars And $ U30J --- t� Cents 2. 8-Inch Water Pipe;Per Linear Foot: 700 L.F. Dollars And $ $ 2)�000 b Cents i 3. 12-Inch Water Pipe;Per Linear Foot: 466 L.F. Dollars And $ $ p Cents 4. 6-Inch Gate Valve w/Cast Iron Box and Lid; PeT Each: �o 1 EA. U�' U -40A Dollars And $ 11 O L" $ 1, 0C= 0 Cents 5. 8-Inch Gate Valve w/Cast Irop and Lid; ° ,per Each: � 5 EA. �1 1Wr I. Dollars And $ t, $ , �= Cents 6. 12-Inch Gate Valve w/Cast Iron Box and LO;Per Each: 2 EA. ( rtj Aollars And $ �3%°° Cents 7. Ductile Iron Fittings;Per Ton: 1.13 TON Dollars And $ 5, �' Cents P-2 8. Standard Fire Hydrant at 3'-6"Bury Depth; Per Each: 1 EA. ONVIWk Dollars And $ Cents 9. Connect to Existing Water Line;Per Each: 3 EA. Dollars And $ 110000— $ 3 OOH Cents 10. 8-Inch Plug;Per Each: 1 EA. QKV Dollars And $ � $ 1 o Cents 11. 12-Inch Plug;Per Each: I L.F. �ik1Q �; a Dollars And $ $ ND- Cents 12. 15-Inch Steel Encasement;Per Linear Foot: 40 L.F. �1 Dollars And $ $ Cents I 1 13, Testing;Per Linear Foot: Dollars And $ $ , 1,184 L.F. ao t3 Cents 14. Trench Safety System;Per Linear Foot: 1,184 L.F. Dollars And $ $ �, iv-11r Cents TOTAL.AMOUNT BID: WATER TS ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnis d install,including all appurtenant work,complete in place,the following items} I 3- Gas Pipe;Per Linear Foot: 823 L.F. Dollars And $ $ Cents 2. Connect to Exts ' Gas Line;Per Each: 2 EA. Dollars And $ $ Cents P-3 3, <Teinea ® 823 L. llars And $ $ Cents 4. inear Foot: 823 L.F. ll ars And $ $ Cents $ SANITARY SEWER IMTROVEMENTS ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install,including all appurtenant work,complete in place,the following items) I. 8-Inch P.V.C. Sanitary Sewer Pipe, Variable Trench Depth;Per Linear Foot: 655 L.F. f �t�11 _Dollars And a Cents 2, Standard 4-Foot Diameter Manhole, Up to 8'Depths; er Each: 3 EA TWQ Dollars And $ 2,DOD $ � 000 a Cents 3. Additional Manhole Depth>8';Per Vertical Foot: o q 14.15 V.F. _, Dollars And % Cents 4. Adjust Existing Manhole Rim;Per Each: 2 EA. �N 1 4V Dollars And $ ��' $ ��0 0!a' 90 Cents 5. 8"Plug;Per Each: 1 EA DVQJ tr( way-d �',',J ollars And $ $ Cents 6. Connect to Existing Sanitary Sewer Manhole;Per Each: a� 3 EA. Dollars And $ t � $ 0 PTO Cents 7, Concrete Encasement;Per Linear Foot: 60 L.F. -�— - Dollars And $ $ � Cents 8. 15-Inch Steel Encasement;Per Linear Foot: 30 L.F. Dollars And $ $ , Cents P-4 9. Post-Construction Television Inspection of Sanitary Sewer Lines;Per Linear Foot: 655 L.F. Dollars And $ $ ° Cents 10. Testing;;Per Linear Foot: 655 L.F. ' Dollars And $ o Cents 11. Trench Safety System;Per Linear Foot: 655 L.F. Dollars And $ $ 7" D Cents TOTAL AMOUNT : SEVER $ EROSION CONTROL, ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install, including all appurtenant work,complete in place,the following items) 1. Silt Fence;Per Linear Foot: 1027 L.F. lhyuj Dollars And $ ��° $ 2J a Cents 2. Construction Entrance;Per Lump Sum: I L.S. Dollars And $ �-j r DG� $ r Cents 3. Tree Protection;Per Each: .I' 14 EA. Dollars And $ 1 �n $ !? , Cents TOTAL.AMOUNT BID: EROSION CONTROL $ TOTAL AMOUNT BID DEMOLITION $ J 2 TOTAL AMOUNT BID WATER $ _75J 0 f° TOTAL AMOUNT BID SEWER $ 2 J TOTAL AMOUNT BID EROSION CONTROL $ R 91 GRAND TOTAL AMOUNT BID $ 1 , P-5 Receipt is acknowledged of th p g e following addenda: Addendum No. 10� Addendum No. 2 Addendum No. 3 The undersigned bidder agrees to commence work within ten (10) days after the d to of written notice to commence work, and to complete the work on which he has bid within working days as provided in the General Conditions. Enclosed with this proposal is a cashier's or certified check, or a Bid Bond for$ (5% of greatest amount bid), which it is agreed shall be collected and retained by the Owner as liquidated damages in the event this proposal is accepted by the Owner within sixty (60) days after the date advertised for the receipt of bids and the undersigned fails to execute the contract and the required bonds with the Owner, under the conditions hereof, within fifteen (15) days after the said proposal is accepted by the Owner and received by the undersigned; otherwise, said check or bond shall be returned to the undersigned upon demand. The undersigned hereby declares that he has visited the site and has carefully examined the contract documents relative to the work covered by the above bid. Respectfully Submitted, Contract -' By: 2 ax to Named Printed Title: F Address: 4A� 7f Phone: — 0o o SEAL– IF BIDDER A CORPORATION P-6 PROPOSAL Date: 12--72.1 Q ; To: The Honorable Mayor Scott Bradley And Board Of Aldermen Town of Westlake 3 Village Circle, Suite 202 Westlake, Texas 76262 Gentlemen: The pursuant to the foregoing notice to bidders, the undersigned bidder hereby proposes to do all the work and furnish all necessary superintendence, labor, materials, and equipment to complete all the work upon which he bids, as provided by the attached specifications and shown on the plans and binds himself on acceptance of his proposal to execute a contract and bonds, according to the accompanying forms, for performing and completing the said work within the time stated, and maintaining same as required by the detailed specifications for the following prices, to-wit: BID ITEMS Prices to be written in words. DEMOLITION ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install,including all appurtenant work, complete in place,the following items) 4� 2. Cut and Plug 8"Water Line;Per Each: 2 EA. kl ) b,4�krtk_Dollars And $ DOD" KO Cents 3. Excavate and Remove 3"Gas Line;Per Linear Foot: 420 L.F. -1 w o Dollars And $ 200 $ Qj QQo Cents 4• Excavate and Remove 8" Water Line;Per Linear Foot: 243 L.F. 1:Oak Dollars And Cents 5. Excavate and Remove 8" Sanitary Sewer Line;Per Linear Foot: 4r� D 559 L.F. Dollars And 2 2 2.0 Cents P_I 6. Remove Existing Sanitary Sewer Manholes; Per Each: 2 EA. 'R\J�J Dollars And $ D� $ 1t 0005 D Cents _1 7. Trench Safety System;Per Linear Foot: 1,222 L.F. _Dollars And $ y° $ 0 Cents TOTAL AMOUNT B : IDEMOLITION $ J WATER IMTROVEMENTS ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO, QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install including all appurtenant work complete in place,the following items) 1. 6-Inch Water Pipe;Per Linear Foot: 1 18 L.F. ! h4b _Dollars And $ j j°J $ L03 �' u Cents I ! 2. 8-Inch Water Pipe;Per Linear Foot: 700 L.F. Dollars And $ 1 j°—° $ ® °= Rb Cents l ' 3. 12-Inch Water Pipe;Per Linear Foot: 466 L.F. Dollars And 0 Cents 4. 6-Inch Gate Valve w/Cast Iron Box and Lid; Pe Each: 1 EA. 6-A Dollars And $ $ � { Cents 5. 8-Inch Gate Valve w/Cast Irop and Lid; Xer Each: 5 EA. ; Dollars And $ 3DD U $ Cents 6. 12-Inch Gate Valve w/Cast Iron Box and �`` L' ;Per Ea h: 2 EA. om ' r , ollars And $ °° $ KID Cents 7. Ductile Iron Fittings; Per Ton: 1.13 TONG r Dollars And $ 2�D00" $ 2� 8 go Cents P-2 8. Standard Fire Hydrant at 3'-6"Bury Depth; Per Each: 1 EA. Dollars And $ Cents 9. Connect to Existing Water Line;Per Each: 3 EA. QVV 1AWk Dollars And $ NO Cents 000-0 10. 8-Inch Plug;Per Each: 1 EA. Q�V AWJJIV-�- _Dollars And $ Dolu $ MO Cents II. 12-Inch Plug;Per Each: I L.F. TVJQ ftnj\j'4 Dollars And $ � 2 $ t Cents 12. 15-Inch Steel Encasement;Per Linear Foot: 40 L.F. Dollars And $ $ 3 ZOO- \j Cents 1 13. Testing;Per Linear Foot:Dollars And $ $ tz 1,184 L.F. 2� I Cents 14. Trench Safety System;Per Linear Foot: UP 1,184 L.F. Qk� Dollars And $ $ US41-1 Cents TOTAL AMOUNT BED: WATER $ TS ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnis d install, including all appurten work,complete in place,the following items) 1 3- Gas Pipe;Per Linear Foot: 823 L.F. Dollars And Cents 2. Connect to Exi * Gas Line;Per Each: 2 EA. Dollars And $ Cents P-3 3. Testing;P Z oot: ® 823 L. Dollars And $ $ Cents 4. Trench Safe stem;Per Linear Foot: 823 L.F. Dollars And $ $ Cents 3 $ SANITARY SEWER UVIPROVEMENTS ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install,including all appurtenant work,complete in place,the following items) 1. 8-Inch P.V.C. Sanitary Sewer Pipe, Variable Trench Depth;Per Linear Foot: 655 L.F. l Nt) Dollars And $ $ 201 Zrj Cents 2. Standard 4-Foot Diameter Manhole, Up to 8' Depths;Per Each: a 3 EA Q -" (!'A i Dollars And $ DOD $ iP� Do v Cents 3. Additional Manhole Depth>8';Per Vertical Foot: o 14.15 V.F. _ Dollars And $ � } Cents 4. Adjust Existing Manhole Rim;Per Each: 2 EA. �N , < t?, Dollars And $ °v $ ,;Do Cents 5. 8"Plug;Per Each: 1 EA Q /1VtV Y l" �'trP4-Dollars And $ t $ u Cents 6. Connect to Existing Sanitary Sewer Manhole;Per Each: � 3 EA. Dollars And $ �i�}� � $ c Cents 7. Concrete Encasement;Per Linear Foot: 60 L.F. s Dollars And $ $ 3 d � Cents 8. 15-Inch Steel Encasement;Per Linear 30 L.F. Foot: Dollars And $ $ } Cents P-4 9. Post-Construction Television Inspection of Sanitary Sewer Lines;Per Linear Foot: 655 L.F. Dollars And $ 1_60 $ V go Cents 10. Testing;Per Linear Foot: 655 L.F. Dollars And $ 0-0 1 e Cents .1 11. Trench Safety System;Per Linear Foot: 655 L.F. 0XII, _ Dollars And $ $ Q Cents TOTAL,AMOUNT : SEWER $ EROSION CONTROL, ITEM APPROX. DESCRIPTION OF ITEMS WITH UNIT TOTAL NO. QUANTITY BID PRICES WRITTEN IN WORDS PRICE AMOUNT (Furnish and install,including all appurtenant work,complete in place,the following items) 1. Silt Fence;Per Linear Foot: 1027 L.F. ib Dollars And $ $ 7,00,10- Cents 2• Construction Entrance;Per Lump Sum: - �® 1 L.S. -b Dollars And $ �j j Do 0 fr Cents 3. Tree Protection;Per Each: 14 EA. Dollars And $ � $ $= ` Cents TOTAL,AMOUNT ® EROSION CONTROL $ TOTAL AMOUNT BID DEMOLITION TOTAL AMOUNT BID WATER $ -7 r5} 5S°-° �c T d i fl Arf(1T ThTT RTr1 r n ' �--- TOTAL AMOUNT BID SEWER $ 2 '� r TOTAL AMOUNT BID EROSION CONTROL $ 1 , f t GRAND TOTAL AMOUNT BID $ P-5 Receipt is acknowledged of the following addenda: Addendum No. 1 U Addendum No. 2 Addendum No. 3 The undersigned bidder agrees to commence work within ten (10) days after the q9te of written notice to commence work, and to complete the work on which he has bid within i'?, working days as provided in the General Conditions. Enclosed with this proposal is a cashier's or certified check, or a Bid Bond for$ (5% of greatest amount bid), which it is agreed shall be collected and retained by the Owner as liquidated damages in the event this proposal is accepted by the Owner within sixty (60) days after the date advertised for the receipt of bids and the undersigned fails to execute the contract and the required bonds with the Owner, under the conditions hereof, within fifteen (15) days after the said proposal is accepted by the Owner and received by the undersigned; otherwise, said check or bond shall be returned to the undersigned upon demand. The undersigned hereby declares that he has visited the site and has carefully examined the contract documents relative to the work covered by the above bid. Respectfully Submitted, %41,1, TJOW CLoht,Y-�KAI Contract:� i""-/ By: Zak F-[A -t Named Printed Title: W Address: 4m pm 14 WV 4 .�,U/f ktU-,J0 ,T\X- Til,4� Phone: - 2R 4;o. it;VD SEAL— IF BIDDER A CORPORATION P-6 ITEM 5 MAY 5, 2008 Town of Westlake Memo To: Honorable Mayor and Members of the Board of Aldermen From Jarrod Greenwood, Public Works Superintendent Subject: Regular meeting of May 5, 2008 Date: April 24, 2008 ITEM Consider a Resolution authorizing the Town Manager to enter into an Inter-Local Aureement with the City of Fort Worth for the Environmental Collection Center and Household Hazardous Waste Program. BACKGROUND The residential population of Westlake has grown by approximately 500 people within the last eight years. This growth has increased demand of existing services and created the need to implement new ones. One such area is the need for a way Westlake residents can dispose of hazardous household materials. Medications are frequently flushed down the drain in order to dispose of them and unfortunately have accumulated in our drinking water reservoirs. There have been recent news reports regarding the presence of pharmaceuticals in drinking water. It is imperative to protect these finite resources today with community programs that target the causes of contamination. The household hazardous waste program provides Westlake residents the ability to properly dispose of items that may be out of date or inoperable. Potential items include, but are not limited to: paint, pesticides, antifreeze, batteries (all kinds, including car batteries), brake fluid, fluorescent light bulbs, compact fluorescent light bulbs (CFLs), herbicides, and pharmaceuticals. As people begin switching their incandescent light bulbs to compact fluorescents (CFLs) this type of program becomes additionally important as the energy efficient CFls contain mercury. The program will include access to the Fort Worth Mobile Collection Unit (Crud Cruiser). Staff intends to coordinate the Crud Cruiser on the same weekend as the Allied Waste dumpsters in the fall. This will provide residents with the ability to dispose of bulky items as well as hazardous materials and ensure the success of the program. Westlake residents will have the ability to take hazardous materials at any time to the Fort Worth facility. However, residents will need to provide Westlake proof of residency. Some Westlake residents are on Keller water, Southlake water, or well water. Therefore, water bills are not conducive for proof of residency. The Town will provide vouchers to residents desiring to take household hazardous materials to the Fort Worth facility. Staff will be present on the Mobile Collection days and will be able to verify proof of residency in the event that someone does not have a voucher. FUNDIN Fort North charges participating cities $47.00 per household per visit to the Fort Worth facility or per household for participation in a Mobile Collection Event. A budget amendment is not recommended at this time as staff anticipates negligible costs from resident participation during the current FY, which could be reconciled at the end of the FY. TOWN OF WESTLAKE RESOLUTION NO. 08-27 ENTERING INTO AN INTER-LOCAL AGREEMENT WITH THE CITY OF FORT WORTH, TEXAS REGARDING ENVIRONMENTAL COLLECTION CENTER HOUSEHOLD HAZARDOUS WASTE PROGRAM; AND AUTHORIZING THE TOWN MANAGER TO EXECUTE SAID AGREEMENT OF BEHALF OF THE TOWN OF WESTLAKE, TEXAS. WHEREAS. the City of Fort Worth provides the collection and disposal of household hazardous waste for surrounding communities; and, WHEREAS, Westlake desires to utilize the collection and disposal resources of Fort Worth in order to provide residents a safe and environmentally Sound means to dispose of household hazardous materials; and. WHEREAS, Such efforts help protect our landfills and drinking water resources-, and. WHEREAS, the Board of Alderman finds that the City of Fort Worth Inter-Local Agreement benefits the citizens of Westlake, the environment, and general public-, and Z1_ WHEREAS, the Board of Alderman finds that the passage of this Resolution is in the best interest of the citizens of Westlake, the environment, and general public. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN TO THE TOWN OF WESTLAKE, TEXAS: SECTION 1. THAT, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 1. THAT, the Board of Aldermen of the Town of Westlake. Texas, hereby approves the Inter-Local Agreement with the City of Fort Worth relating to the provision of Environmental Collection Center Household Hazardous Waste Program, attached hereto as Exhibit "A'*: and further authorizes the Town Manager to execute said agreement on behalf of the Town of Westlake, Texas. PASSED AND APPROVED ON THIS 5""' DAY OF MAY 2008. Scott Bradley. Mayor ATTEST: Kim Sutter TRMC, Town Secretary Tom Brymer, Town Manager APPROVED AS TO FORM: L. Stanton Lowry. Town Attorney |NTEF<LOCAL AGREEMENT FOR PARTICIPATION |W FORT WORTH'S ENVIRONMENTAL COLLECTION CENTER HOUSEHOLD HAZARDOUS WASTE PROGRAM THIS AGREEMENT h; entered into by and between the City [f Fort Worth, Texas. B home-rule municipal corporation situated in Tarrant, Denton and Wise Counties, Texas, hereinafter called "Fort Worth," acting herein by d through Libby Watson, its duly authorized Assistant City Manager, and City of , a DlUOiCip8|itvSitU@ted OUOtY. Texas, hereinafter called "Participating City," acting herein by and througH 7r its duly authorized WITNESSETH WHEREAS, Texas Government COde, Chapter 791. authorizes the formulation ofiOt8r|ocg| cooperation agreements between and among local gOv8rnrDent8� and WHEREAS, Texas Government Code' §791.011 provides that a iOCa| government may Contract with another tO perform governmental functions and services, and G7S1.003/3\(H) defines waste disposal aSa governmental function and service; and WHEREAS, Texas Government Code, §7S1.O25 provides that a |0Ca/ government may agree with another local government tO purchase services; and WHEREAS, Fort Worth and Participating City desire to enter intO an iOtedOCa| agreement whereby Fort Worth will purchase the S8nviCeS Of @ waste disposal/recycling firm or firms and will administer household hBZ8nd0US Vv@Ste CO||8{tiOO program; and WHEREAS, Fort Worth and Participating City mutually desire to be subject to the provisions of Texas Government C8de, Chapter 791. also known as the |Dterloc@| Cooperation Act, NOW THEREFORE, it is @gn8gd as follows: DEFINITIONS A. Unless a provision in this Agreement explicitly states Othenmise, the following terms and phrases, aS used iO this Agreement, shall have the meanings hereinafter designated. Act of God 08BnS an act occasioned by the direct, immediate, and exclusive operation of the forces of n8tUFe. URcODtno|!ed or uninfluenced by the power of humans and without human intervention. Bill of Lading lists the contents of the mobile cU||eCtiOR uOiL Environmental Collection Center (ECC) nn8BnS the City Of Fort Worth Department of EOvirODO0eOt8| Management facility located at 6400 Bridge StrSet, Fort Worth, T8X8G, which is to be used by Fort Worth for the 8ggF8g8doD Of household hazardous vvGSt8S that have been brought to the facility by participating cities' households for subsequent ( recycling, disposal, and/or reuse. Environmental damages means all claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability), encumbrances, liens, costs, and expenses of investigation and defense of any claim, whether or not such claim is ultimately defeated, and of any good faith settlement or judgment, of whatever kind or nature, contingent or otherwise, matured or un-matured, foreseeable or unforeseeable, including without limitation reasonable attorney's fees and disbursements and consultant's fees, any of which are incurred subsequent to the execution of this Agreement as a result of the handling, collection, transportation, storage, disposal, treatment, recovery, and/or reuse of waste pursuant to this Agreement, or the existence of a violation of environmental requirements pertaining to same, and including without limitation: (a) Damages for personal injury and death, or injury to property or natural resources; (b) Fees incurred for the services of attorneys, consultants, contractors, experts, laboratories and all other costs incurred in connection with the investigation or remediation of such wastes or violation of environmental requirements including, but not limited to, the preparation of any feasibility studies or reports or the performance of any cleanup, remediation, removal, response, abatement, containment, closure, restoration or monitoring work required by any federal, state or local governmental agency or political subdivision, or otherwise expended in connection with the existence of such wastes or violations of environmental requirements, and including without limitation any attorney's fees, costs and expenses incurred in enforcing this Agreement or collecting any sums due hereunder; and (c) Liability to any third person or governmental agency to indemnify such person or agency for costs expended in connection with the items referenced in subparagraph (b) herein. Environmental requirements means all applicable present and future statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, concessions, franchises, and similar items, of all governmental agencies, departments, commissions, boards, bureaus, or instrumentalities of the United States, states, and political subdivisions thereof and all applicable judicial, administrative, and regulatory decrees, judgments, and orders relating to the protection of human health or the environment, including without limitation: (a) All requirements, including but not limited to those pertaining to reporting, licensing, permitting, investigation, and remediation of emissions, discharges, releases, or threatened releases of hazardous materials, pollutants, contaminants, or hazardous or toxic substances, materials, or wastes whether solid, liquid, or gaseous in nature, into the air, surface water, groundwater, storm water, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, or hazardous or toxic substances, materials, or wastes, whether solid, liquid, or gaseous in nature; and (b) All requirements pertaining to the protection of the health and safety of employees or the public. Page 2 ( / Force majeure [DeaDS decrees OfO[ restraints by governmental instrumentality, acts Of God, work stoppages due to |3bO[ disputes or 9trik8S, failure of Fort Worth's COOtr@C1or(S) to perform pursuant to their agreements with Fort Worth for the conduct Of the collection of household hazardous waste, fires, exp|oSioDS, epidemicS, hots, w8r, rebellion, and sabotage. Household hazardous waste (HHW) means any solid waste generated ina household by G consumer which, except for the exclusion provided for in 40 CFR § 261.4/b\(1)` would be classified aea hazardous waste under 4DCFFl Part 2O1. Manifest means the uniform hazardous waste manifest form(s) furnished by the TCEQ to accompany ghiprD8DtS of municipal hazardous vv3Ste Or Class 1 industrial solid waste for waste transported to @ site in Texas, or the coDOp8[@b|8 manifest of the [8CG)viDQ state if the waste ia transported out ofTexas. Mobile collection event means a household hazardous waste oOi|ecdOD event by Participating City utilizing a mobile collection unit. Fort Worth Mobile collection unit (MCU) means anon-se|f-p[Ope||ed vehicle used for the periodic cn||8CbOn of household hBZ8ndOuS VV35te by Participating CitV, Off-Site of the ECC, which is transported t0 the ECC to dispose of the household hazardous vvoSte collected at the mobile collection event. The Fort Worth Mobile CO||eCdoO Unit is designed to hold the hazardous waste of approximately 50 to 75 households. / ) Participating Cities, when used in the plural, nne8DS Fort Worth, Participating City, and all ` other entities which have entered into int8d0ca| agreements with Fort Worth for the E{}C household hazardous waste collection program. Person means an individual, COrpOr@tion. organization, government, Or governmental subdivision o[ agency, business trust, partnership, association, 0r any other legal entity. Waste has the same meaning as "solid waste" as that term is defined in T8X8S Health and Safety Code §3O1.003. and including hazardous substances. B. Unless a provision in this Agreement explicitly states CthenmiGe, the fo||OVviOg abbreviations, as used in this AgreerneRt, shall have the rne8DiOgS hereinafter designated. CERCLA - Comprehensive Environmental Response, Compensation, and Liability Act. CPR - cardiopulmonary resuscitation. DOT - UnitedStatosOepartmentofTraneportaUon. ECC - Environmental Collection Center. EPA - United States Environmental Protection Agency. ( -- Page HAZCAT ' hazardous categorization. HAZWOPER - hazardous waste operations and emergency response, HM - hazardous rn81eha/s. HHVY' household hazardous waste. ' MCU ' Mobile Collection Unit. _ PURPOSE The purpose of this iDt8rOC8| Bg[geOl8Dt r "Anr88rneny1 is the provision Of services by Fort Worth to Participating City whereby, subject b] the terms and conditions specified below, Fort Worth will administer and supervise 8 regional household hazardous waste collection prDgr@rn, which will be available to households within Participating City as described herein, _ TERM This Agreement shall be effective from the date the |uSt party has signed this Agreement through September 3O. 2OO8. 4. / \ SERVICES OF FORT WORTH Fort Worth agrees to perform the following services for Participating City in connection with the ECC household hazardous waste collection program-. A. Fort Worth will administer a regional household hazardous waste collection program. This program will include the operation of the Environmental Collection Center, which will accept for disposal and/or recycling household hazardous waste from households located within Participating Qty. Fort Worth shall not accept compressed flammable gas containers-, radioactive rnoteria|S� explosives or potentially shock sensitive 02t8h8|S� biological, etiologic, and infectious materials; wastes from businesses', and any other wastes that Fort Worth has determined are unacceptable. B� Fort Worth will employ or retain personnel to provide the services necessary Loperform Fort Worth's obligations in this Agreement. C. Fort Worth will enter into a contract(s) with vV8St8 disposal/recycling firm(s) for the hBnd|ing, coUection, tnBnsportaUon, storage, disposal, treatnnant, reoovery, and/or reuse of household hazardous waste, which is collected at the ECC. D Fort Worth vviU, if requested in writing by Participating City. provide Participating City with copies Of waste manifests for shipments Uf waste from the ECC. Page E. Fort Worth will, if requested in writing by Participating City, provide Participating City a monthly report of the Participating City's households who disposed of household hazardous waste at the Environmental Collection Center or a Mobile Collection Event. F. Fort Worth will issue a report and a bill at the end of each quarter detailing the number of Participating City's households that disposed of household hazardous waste at the Environmental Collection Center or at a mobile collection event. G. Fort Worth will act under this Agreement in accordance with all applicable state and federal laws. H. Non-Fort Worth Mobile Collection Unit 1. Fort Worth agrees to accept household hazardous waste from Participating City's MCU in accordance with Section 5, of this Agreement. 2. Fort Worth agrees to restock the items it removes from Participating City's MCU, however, Fort Worth shall only restock items listed in Exhibit "A", attached and incorporated herein as if set forth. I. Mobile Collection Events—Using Fort Worth's Unit 1 If Participating City would like to schedule a mobile collection event with the Fort Worth Mobile Collection Unit, Fort Worth will send Participating City a list of available dates. Participating City will contact Fort Worth as soon as possible to schedule the date, time and location agreeable to both parties. (a) Location If Participating City chooses to hold the Mobile Collection Event on private property, Participating City shall obtain a signed waiver from the owner of the property one (1) week prior to the event. The waiver shall be in the form of Exhibit B or similar form approved by Fort Worth. The signed waiver must be sent to Fort Worth one (1) week before the Mobile Collection Event. If the signed waiver is not sent to Fort Worth one (1) week before the Mobile Collection Event, Fort Worth will not send the Fort Worth Mobile Collection Unit to the event and Participating City will, in no event, be entitled to any damages of recovery of any costs, except as provided herein. (b) Available Dates Participating City acknowledges that Fort Worth contracts with other municipalities and that Fort Worth will be accommodating each Participating City's request on a first come first served basis. Therefore, Participating City acknowledges that its chosen date to schedule a mobile collection event may be reserved by another City and Participating City will have to then choose another date. Participating City will, in no event, be entitled to any damages or recovery of any costs, except as provided herein. Page 5 2. At the Mobile Collection Event` Participating City acknowledges and agrees that Fort Worth shall accept household hazardous waste from the first 5Ohouseholds ` that show proof of residency at the Mobile Collection Event. After the first 50 households, Fort Worth will determine in its sole discretion how much more waste it can accept and store properly. If more households arrive o\ the event than Fort Worth can accept, Participating City will in no event be entitled tuany damage Of recovery 0f any costs, except 8S provided herein. 3. Due 1Dthe lack of storage space at the E[|C. Participating City acknowledges and agrees that if it requests the Fort Worth Mobile Collection Unit at a mobile collection event, a Participating City's Non-Fort Worth Mobile Collection Unit shall not also bea1the event. 4. City, in its Sole diSC[etiOn, will d8t8[[DiDe whether to S8Od the Fort Worth Mobile Collection Unit to Participating City's Collection Event during adverse weather or the threat of adverse weather including but not limited to S|oet. sOovv. (aiA, mist or hail. In the event Fort Worth determines not to send the Fort Worth Mobile Collection Unit, Fort Worth shall notify persons listed in Section 5, Paragraph A and shall send @ Fort Worth Srnp>Oye8 to the Participating City's event to tell any residents that come todispose of household hazardous waste; 1) that the Fort Worth K4Obi|8 CO||ecUOO Unit will not be CO[OiDg to the 8VBOt. and, 2\ that the resident can 0o to the ECC to dispose of the waste and provide e map tothe ECC. J. / \ 1. Participating City may request the loan of Fort Worth's Special Mobile Collection Unit, which is 8 specially deSi ned and equipped thirty-six (36) foot gooseneck box-trailer and one (1) ton pickup, free of charge for use in a Household Hazardous Waste collection event when available. Participating City may use the Special Mobile Collection Unit to transport HHVVhz Fort Worth's ECCor another collection center which may lawfully receive HHVV. Participating City nh8U provide Fort Worth with a written request, facsimile or e-mail at least thirty (30)days prior to the HHVV Collection Event for which the request is made. Fort Worth shall have sole determination whether the Special Mobile C0UeCdOO Unit is available for use by Participating City and shall notify Participating City as soon as is reasonably practicable of such decision. Fort Worth shall not participate nor be responsible for any part of the Participating City's HHVV Collection Event unless and except by written mutual agreement. 2. The Special Mobile Collection Unit shall be in good working condition and Fort Worth Sh8U disclose any kOOvvO problems the Special Mobile Collection Unit may have in performing the tasks necessary for the HHVV Collection Even[ Prior to issuance of the Special Mobile Collection Unit, e pre-trip inspection for potential maintenance problems will be preformed by Fort Worth. A|a0' both parties will complete a pre-aesthetic eSS8SsnnenL Participating City shall be responsible for all CGrtifiCad0OG, and iDSuD]DCe necessary for the proper operation of the Special Mobile Collection Unit. Page 1 Participating City agrees to maintain and return the Special Mobile Collection \ / Unit in as good condition as it was in when Participating City b]Ok pOSSesSiOD for use. Participating City shall return the Special Mobile Collection Unit to Fort Worth in3 timely manner and aS mutually agreed upon. 4� Participating City shall be responsible for all work-related property d8nn8ge, personal injury Or death caused by Participating City's employees or volunteers and arising out of the use of the Special Mobile Collection Unit during the term of this Agreement. 5. It is expressly understood and aQF88d that, in the execution of this Agreement, neither of the parties vv8ive5. nor shall be deemed hereby to xvaive, any i[nnDUOity Or defense that would otherwise be available to it against daiOnS arising in the exercise of governmental powers and functions. By entering into this Agreement the parties do not intend to create any obligations, expressed or implied, other than those set forth herein and this Agreement shall not create any rights in parties not signatories hereto. 5. DUTIES OF PARTICIPATING CITY Participating City 8gFe88 to perform the fO||ovvDg duties in connection with the household hazardous waste collection program: X Participating City will designate one of its employees, and another as an alternate, to act as its household hazardous waste collection coordinator to interact with Fort Worth. Designated person iSJ telephone number: Pager number o[24-hoUr number where he o[she can bereached: Alternate person i3 TY-t�v I' telephone number: Pager number Dr24-hOUr number where he0rshe can bereached: ( B. Participating City will coordinate and hJDd all pnDg[aOl advertising targeted t0 its OvVn citizens, as it deems O8oeSS@ry. Such advertising shall include the type of wastes that will be accepted at the ECC, the requirement of proof Of residency and weather cancellation information. C� Participating City shall notify its residents of the ECC hours of OpenadOD and dates it is C|Oaed as provided in Section 9 "The Environmental Collection Center Hours of Operation." D. Participating City may choose to utilize 8 voucher system for its residents in order for them to bring HH\K/ tO the ECC. If Participating City chooses to use such 8Svst8nn. it eh8i| notify Fort Worth of the decision, and shall provide Fort Worth with a copy of the official v0UCh8[ In addition, if citizen from a Participating City that utilizes @VOUChe[ system comes tOthe ECC or a mobile collection event without 8 voucher, Participating Page 7 ( ` ~' City acknowledges and agrees that Fort Worth will not accept the household hazardous \ / m/aSt8 until Participating City authorizes the aCC8[tanC8 in writing. E. Participating City may submit 8 written request for a monthly report listing the number Cf its city's households that have disposed of household hazardous waste at the ECCOra rnObUe collection event. F. Participating City ShoU provide traffic control and aignoge for the mobile collection events, and shall provide personnel to assist Fort Worth with the survey and screening of persons dropping off household hazardous waste. The parties prior to the event shall agree upon the details ofthe traffic control, SiQnag8, and personnel assistance. G. Participating City's Mobile Collection Units Collecting Household Hazardous Waste 1 Participating City shall advise the ECC program manager at least 72 hours in advance Of its mobile COUeCtiDD events. Participating City shall collect only HMVV during 2 mobile collection evert. \K/GsteS from Corn[nencia}, aghcu|tura|, and industrial sources shall not be accepted. Participating City shall not accept compressed f|arnrnob|e gas containers; radioactive materials; explosives or pOt8nd@||y shock sensitive materials; biO|ogio8|, etio|ogic, and infectious materials; and any Other wastes that Fort Worth has determined are unacceptable. 2. In accordance with the latest DOT requirements, Participating City's MCU operators will properly categorize, package` nna[k. label, and load into the K8[}U. \ / all wastes received at the mobile collection event. Recyclable products (used oi(, used oil filters, latex paint. recyclable anti-freeze, lead-acid batteries. and OUO[8SCeOt lights) will be segregated into containers fO[nBcyC|8b/85. 3 After accepting wastes, Participating City's KXCU operators shall thoroughly check each container for proper labeling and identification. If G container is properly identified, the material will be segregated according to hazard class and prepared for packaging. |fa container does not have adequate labeling topermit identification, the W1CU operators shall then attempt to identify the material from its physical chB[8Ct8[iStiCS using HA7CAT analysis and from information provided by the household presenting the waste. 4 The Participating City's IVICU operators shall package all hazardous materials in accordance with United States Department of Transportation (DOT) requirements, United States Environmental Protection Agency (EPA) nequirennentS, and all other applicable federal and state requirements. After all the wastes have been properly identified and segregated, the yNCU operators will reexamine the wastes for compatibility, list them On the container content Sheeto, and pack them into drums. Oil-based paints and latex paints shall be bulked separately in 55-gallon drurns, or if the paint is left in its Cont8iner, the paint Can be packed in a lined cubic yard box, and packed and labeled according to federal and state regulations. Participating City shall not transport waste that iS not HHVV to the ECC. Participating City agrees to make its own arrangements to dispose of any OoO-HHVV waste collected atthe event. { ) Page 5. Prior to transporting the HHW from the collection event site(s), Participating City's MCU operators shall complete a Bill of Lading, and shall keep the Bill of Lading in the cab of the truck hauling the MCU during transportation of the HHW to the ECC. Participating City shall require that a minimum of one copy of the latest North American Emergency Response Guidebook be kept within the cab of the truck. 6. During transportation, Participating City's MCU operators shall placard the MCU for transportation of hazardous waste in accordance with federal and state law. 7. Upon the return of the MCU to the ECC, Participating City's MCU operators shall follow the instructions of Fort Worth regarding the placement of the MCU for unloading. Fort Worth shall take possession of the MCU from Participating City after the MCU has been properly parked for unloading in accordance with Fort Worth's instructions and all required documents have been delivered to the ECC program manager or his designee at the ECC. Fort Worth shall, within a reasonable amount of time, unload the HHW from the non-Fort Worth MCU and store the HHW at the ECC. 8. If Fort Worth, in its sole discretion, determines that Participating City's MCU operators improperly packaged any of the HHW delivered to the ECC, Fort Worth shall repackage such waste, and Participating City shall reimburse Fort Worth as set forth in Section 10., Paragraph B. 9. If a spill occurs at the ECC while the MCU is still in Participating City's possession, Fort Worth shall take control of the spill response and Participating City will reimburse Fort Worth for its response costs as set forth in Section 10., Paragraph C. 6. USE OF WASTE DISPOSAL/RECYCLING FIRMS FOR HOUSEHOLD HAZARDOUS WASTE A. Fort Worth will enter into a contract(s) with waste disposal/recycling firm(s) for the handling, collection, transportation, storage, disposal, treatment, recovery, and/or reuse of household hazardous waste, which is collected at the ECC. B. Such firm(s) shall be required pursuant to the contract(s) to assume generator status for the waste collected, (excluding used oil, lead-acid batteries and antifreeze) to choose a disposal site for the waste subject to Fort Worth's approval, and to indemnify Fort Worth and participating cities against any and all environmental damages and the violation of any and all environmental requirements resulting from the handling, collection, transportation, storage, disposal, treatment, recovery, and/or recycling of waste collected pursuant to this agreement, when said environmental damages or the violation of said environmental requirements was the result of any act or omission of contractor, its officers, agents, employees, or subcontractors, or the joint act or omission of contractor, its officers, agents, employees, or subcontractors and any other person or entity. C. THE PARTIES RECOGNIZE THAT ALTHOUGH THE FIRM (S) WILL BE REQUIRED TO ASSUME GENERATOR STATUS, THIS ASSUMPTION WILL NOT RELIEVE Page 9 PARTICIPATING CITY OF LIABILITY FOR THE WASTE UNDER FEDERAL LAW AND STATE LAW. Fort Worth will arrange for recycling vendors for used oil, batteries, antifreeze, and other materials, as it deems appropriate. 7. REUSE OF COLLECTED MATERIALS A. From time-to-time Fort Worth will make available to residents and businesses of Fort Worth, as well as, Participating City and residents and businesses of Participating City for their use, collected household hazardous waste materials that are suitable for reuse, such as paint, fertilizer, motor oil, and antifreeze. Fort Worth shall not charge for any materials that are picked up for reuse. B. Some materials made available for reuse may have been consolidated and filtered by Fort Worth prior to being made available. Used antifreeze will have been consolidated in a barrel, filtered, and pH balanced, and new antifreeze may have been added to the barrel. C. In regards to materials accepted by Participating City, FORT WORTH MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES THAT: 1. the container contents are what the label indicates; 2. the container contents are those originally placed into the container by the manufacturer; 3. the product is of the quality intended for its use-, 4. the contents of the container have been stored properly-, 5. the instructions on the container label for use, storage, and first aid are current or correct-, 6. the container is in unimpaired condition,- 7. the product is still approved for use (i.e., it has not been banned or recalled); and 8. the product can be used without risk to persons, property or the environment, FURTHERMORE, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE SPECIFICALLY DENIED. D. Participating City shall contact the ECC program manager to arrange a pickup time to obtain materials. Participating City agrees that it shall not return to Fort Worth, directly or indirectly, any materials it obtains from Fort Worth under this paragraph. E. IN REGARDS TO MATERIALS ACCEPTED BY PARTICIPATING CITY, PARTICIPATING CITY DOES HEREBY WAIVE ALL CLAIMS, INCLUDING PRODUCTS LIABILITY CLAIMS, AND RELEASES, AND HOLDS HARMLESS THE Page 10 CITY OF FORT WORTH, AND ALL OF ITS OFFICIALS, OFFICERS, EMPLOYEES, AGENTS, AND VOLUNTEERS, IN BOTH THEIR PUBLIC AND PRIVATE CAPACITIES, FROM ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, EXPENSES OF LITIGATION, OR CAUSES OF ACTION WHICH MAY ARISE BY REASON OF INJURY TO PERSONS, LOSS OF PROPERTY, DAMAGE TO PROPERTY, OR LOSS OF USE OF ANY PROPERTY , OCCASIONED BY THE TRANSPORTATION, STORAGE, HANDLING, USE, AND DISPOSAL BY PARTICIPATING CITY OF ANY MATERIALS ACCEPTED BY PARTICIPATING CITY UNDER THIS AGREEMENT FROM FORT WORTH. F. In regards to materials accepted by residents or businesses of Participating Cities, FORT WORTH MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES THAT: 1. the container contents are what the label indicates; 2. the container contents are those originally placed into the container by the manufacturer; 3. the product is of the quality intended for its use; 4. the contents of the container have been stored properly; 5. the instructions on the container label for use, storage, and first aid are current or correct; 6. the container is in unimpaired condition; 7. the product is still approved for use (i.e., it has not been banned or recalled); and 8. the product can be used without risk to persons, property or the environment. FURTHERMORE, ALL WARRANTIES, EXPRESS AND IMPLIED, ARE SPECIFICALLY DENIED. G. Participating City shall attempt to inform its residents and businesses that if they go to the Environmental Collection Center to pick up household hazardous waste for reuse, a release of liability must be signed to accept the household hazardous waste for reuse. 8. RIGHT TO REFUSE WASTE Participating City agrees that Fort Worth shall have the right to refuse to accept waste at the ECC from Participating City's resident and to eject such individual from the premises of the ECC, if in the reasonable judgment of Fort Worth: A. The waste is not household hazardous waste; Page 11 B. The waste fails to meet other established criteria established by this Agreement, or that \ / have been established by Fort Worth subsequent to the execution of the Agreement-, C. The individual does not have sufficient identification to establish that he/she is in fact 8 resident Cf Participating City; D. Participating City has implemented a VOudlBr system for its residents to dispose of vvaste, and the individual does not have o va|idvouoher� or E. The waste or the individual presents a hazard to the ECC or t0 persons or property at the ECC. S. ENVIRONMENTAL COLLECTION CENTER HOURS AND DAYS OF OPERATION A. Hours of Operation During the term of the Agreement, the ECC's hours of operation are as follows: Thursday and Friday 11 :OO8m. -7:0] p.rn. Saturday 9.-00 a,[D. -3-00 p0. B. Days the Environmental Collection Center will bSclosed - � During the term of the agreement, the ECC will be closed on the following days: ( � Thanksgiving Holiday, November 22-23, 2007 \ - ' - Christmas Holiday, December 25. 2OO7 New Year's Day, January 1. 2UO8 M.L.K. [)ey. January 21, 2008 Memorial Day, May 26. 2O08 Independence Day, July 4. 2UO8 Labor Day, 88p!ennbe, 1, 2008 C. Notifying Residents Participating City agrees to notify its residents of the ECC'o hours of operation and dates it will be dosed. Participating City may advertise the 24-hour Environmental Collection CCnter telephone number to give its residents the Environmental Collection Center's hours. The number is: /817\ O71-5257. 10. COMPENSATION As fair compensation for the services provided by Fort Worth pursuant to this Agreement: A Participating City agrees to pay Fort Worth the sum of $47'00 per household per visit to the ECC or per household for participation in 8 Mobile CO||8C{iOO Event to dispose Of household hazardous waste. ( / Page 12 B. If Fort Worth determines that Participating City's MCU operators improperly packaged \ / any of the HHVV delivered to the E{|{}. Fort Worth shall repackage such waste, and Participating City shall reimburse Fort Worth for it staff time at $20.00 an hOU[ and the cost ofsupplies. C. If @ spill VoCurS at the ECC while the Non- Fort Worth MCU is EdiU in Participating City's possession, Fort Worth Sh8U take control of the spill F8SpoOSe and Participating City will reimburse Fort Worth for its response costs Of $8O.00 per hour staff time and the cost of supplies. D. The amount due to Fort Worth for services provided under this Section, Paragraphs A' B. and C. shall be billed to Participating City quarterly. Participating City shall pay Fort Worth within 30 days Of receiving a bill from Fort Worth. If Fort Worth does not receive payment within 30 days, Fort Worth shall inform Participating City in writing that it will not accept any household hazardous waste from Participating City's residents and that Fort Worth will not participate in 8 nO0bi|8 CO||eCtiOn event or provide a mobile COU8CtiOO unit uOb| paid. E. At the end of the term of this /\gn8e[nent. Fort Worth Sh8|| provide a final accounting to Participating City, which will include the total number of Participating City's households which participated in the pFog[o[n, repackaging fB8S' if 8ny, and the total cost of spill response charged to Participating City' if any. F. Pursuant to the requirements of Government Code Q791.011 /8\(3), the amount due to Fort Worth under Subparagraph O. above Sh@|| be paid from revenues currently available to Participating City in the present fiSC8! year. 11. ARTWORK, "CAPTAIN CRUD AND THE CRUO0E8."AMO PF{C)MOT|{}WAL MATERIALS LICENSE AGREEMENT Fort Worth is the owner of "Captain Crud" and the CrUddi86 ("Bloomer," "Otto," "Pestle, ,^Scrub.", and "Van Goo") and the recycling buddies ("^ScrappV,', "JuggKes." and "Cana Nana") "Conquer Your Crud',' and ''Crud Cruiser'. and therefore all ownership rights belong to Fort Worth. Fort \8/Odh has registered these nn@rkS as service rDa[hS with the Secretary Of State. A. Fort Worth hereby grants to Participating City a Ron-traOSfe[@b|e. DOO+3xduSive license to use all the artwork and prODlOdOn3| materials that may be provided by Fort Worth to be used solely in the conduct of the business of Participating City's disposal and recycling Of household h8z8[dOU8 vv8st8 programs. If Participating City wishes tV use to Licensed Art and/or Promotional M818h8|S in other limited SitU8hOOS, Participating City must first Obtain express written consent from Fort Worth. B. Fort Worth may provide licensed Artwork and Promotional Materials to Participating City pU[SU8Ot t0 the te[nOS of this Ag[eBDleDL Participating City @CkOOVV|8dg9S that by virtue of this License, Participating City acquires only the right t0 use the original and permitted duplicate COpi8S of the Licensed Artwork and PnO0OdODa| Materials and does not Page 13 acquire any rights Of ownership in the Licensed Artwork and Promotional Materials, which rights shall remain exclusively with Fort Worth. If Participating City wants t0 modify or change the artwork and/or promotional rnoteh8(S in any manner, Participating City hereby agrees to contact Fort Worth in writing to obtain written consent before modifying or changing any artwork and/or promotional materials. C. If Participating City desires an actor to portray "Captain Crud" for aD event. Participating City Sh@U use actors approved by Fort Worth to portray "Captain Crud" since "Captain Crud" is owned by Fort Worth. Participating City shall be solely responsible for compensating actor for the aen/iC8s provided to Participating City. Participating City will contact Fort Worth @s soon aS possible with the date and time Of the event agreeable to both parties to obtain approval for the chosen actor and to request and pickup the "Captain Crud" costume for its events. Fort Worth will provide the "Captain Crud" costume. HOVvev8[, Participating City agrees to be UGb|8 to Fort Worth for any damage to the COBturne or if Participating City toi|S to return the entire costume to FOrtVVorth or if the costume is not returned iOthe same condition @sreceived. 12. |K0K8UN|TY It is expressly understood and agreed that, in the 8X8cUtiOO Of this Agreement, D0D8 of the Participating Cities vvaiveS, nor shall be hereby deemed to waive, any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions, and that the services described in this Agreement are a governmental function. ( | 13. FORCE MAJEURE A delay or failure of Fort Worth to perform services pursuant to this Agreement shall be excused to the extent that the delay or failure to perform n3SU|t8d from a force nn j8une evord' and the delay or failure was beyond the control of Fort Worth and not due to its fault or negligence. Participating City shall not h8ve, and hereby vv@ives, any claim whatever for any damages resulting from delays or failure 10 perform caused by a force rn jeure event. 14. TERMINATION The parties shall each have the right to terminate the Agreement for any reason, with orwithout Cauae, upon thirty /30\ days written notice tothe other party. Upon terminadon, the parties shall be [e|B@S8d from all contractual obligations to the other party excluding "USE OF WASTE D|SP[)8/\L/RECYCL/NB F|RK43 FOR HOUSEHOLD HAZARDOUS WASTE" (Paragraph 6) "REUSE OF COLLECTED MATERIALS" (Paragraph 7) and "ARTWORK, "CAPTAIN CRUD AND THE CRUDD|ES." AND PROMOTIONAL MATERIALS LICENSE AGREEMENT' (Paragraph 11). ( ' Page 14 15. NOTICE Any notices required to be given under this Agreement shall be delivered as follows: If to Fort Worth: Brian B0erOer, CHK4M, Director Department Of Environmental Management City of Fort Worth 1000 Thn]ck0Orton Fort Worth, Texas 7O1O2 If to Participating City: 16. ENTIRETY / \ This Agreement contains all cornnmitnn8DtS and Agreements of the parties hereto, and OO other \ O[8| or written cOnnnlitrnentS shall have any force or effect if not contained herein, except that this Agreement can be amended or modified by the parties if such amendment or modification is in writing and signed by Participating City and Fort Worth. 17. 8EVER4B|UTY In the event anyone or more of the provisions contained in this Agreement shall for any reason be held t0 be invalid, i||egB|. or UO8nfO[Ce@b|e in any respect, such invalidity, illegality, or UnenfOrC8Rbi|ify shall not affect any other provision thereof and this Agreement shall be construed as if such iOV8|id, i||8ga|, or unenforceable provisions had never been contained herein. 18 VENUE Should any @CdOD. real Or asserted, at |8vv Or in eqUity, arise out of the terms and conditions of this Agreement, venue for said action shall bein Tarrant County, Texas. _~ Page 15 19. AUTHORITY This Agreement is made for Fort Worth and Participating City as an |ntedoC@| Aoreenn8nt, pursuant tO Texas Government Code, Chapter 7S1. 20. AUTHORIZATION The undersigned officers and/or agents of the parties hereto are properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions extending such authority have been duly passed and are now in full force and effect. EXECUTED |NTRIPLICATE CITY OF FORT WORTH CITY OF By: By: / \ Libby Watson Printed name: - Assistant City Manager Title: Date- Date- APPROVED AS TO FORM APPROVED AS TO FORM AND LEGALITY.- AND LEGALITY: Assistant City Attorney Assistant City Attorney ATTEST.- ATTEST: Marty Hendrix City Secretary City Secretary ' CODtr8C1 authorization Date < Page 16 Exhibit "A" RESTOCKING I T FOR THE MOBILE COLLECTION I Material Amount Restocked Special Needs Remarks 55 gallon open top Amount taken off the drums (open top for trailer loose packs) 55 gallon drums(closed Amount taken off the top)(oil, antifreeze, trailer bulk flammable materials and one extra) Fiber drums(55 or 30 gallon)Aerosols,acids; Amount taken off the bases and oxidizers) trailer Gaylord box liners (plastic) Amount taken off the trailer 55 gallon drum liners Amount taken off the trailer 5 gallon buckets (filters/haz chemicals) Amount taken off the trailer Survey Forms Amount taken off the trailer Labels/drum placard Amount taken off the trailer Gaylord boxes Amount taken off the trailer Absorbent pads Amount taken off the trailer Venniculite Amount taken off the trailer Oil dry Amount taken off the trailer Promotional Materials & Brochures Amount needed Page 17 Exhibit "B" WAIVER AND RELEASE OF LIABILITY FOR COLLECTION OF HOUSEHOLD HAZARDOUS WASTE I being the owner of property located at have been asked by the City of to allow a mobile collection event on my property to collect household hazardous waste on the , 20_ 1 hereby give my permission to the City of and the City of Fort Worth, to hold a household hazardous waste collection event on my property in which the City of has asked the City of Fort Worth to send its mobile collection unit to collect the household hazardous waste that is brought to the event. Therefore, I hereby RELEASE, DISCHARGE, HOLD HARMLESS, INDEMNIFY the City of Fort Worth or its officers, agents, and employees and the City of and its officers, agents, and/or employees for any and all claims, demands, liability, causes of action, actions or suits of any character that I may have against the City of Fort Worth or its officers, agents, and/or employees and the City of or its officers, agents, and/or employees for any property loss or damage, for any and all personal injury including death or any other damage of any kind or character which may arises or that arises from allowing the City of to hold a household hazardous waste collection event, in which the City of For', Worth sends its mobile collection unit on my property. I have read this Waiver and Release and fully understand its terms and conditions. I have not been influenced in any extent whatsoever by any representation or statements not contained in this Agreement. Signature Date Witness Page 18 ITEM 7 MAY 5, 2008 Town of Westlake Memo To: Honorable Mayor and Members of the Board of Aldermen From: Tom Brymer, Town Manager Subject: Regular Meeting of May 5, 2008 Date: April 25, 2008 ,✓ ITEM Consider a Resolution ratifying the acceptance and execution of an agreement with Akin Gump Strauss Hauer& Feld, LLP for legislative services related to the Academy. RECOMMENDATIONS The former Interim Town Manager accepted and executed an agreement for legislative services with Akin Gump Stauss Hauer & Feld LLP on March 14, 2008, for services as outlined in the attached agreement. At this time, it is necessary that the Board consider ratifying the acceptance of the agreement. Staff is requesting that the Board of Aldermen determine if they wish to utilize other parties (i.e., Walt Roberts) for this service or approve the agreement with Akin Gump Strauss Hauer &Feld, LLP. FUNDING The proposed fee for 2008 is $15,000. TOWN OF WESTLAKE RESOLUTION NO. 08-28 RATIFYING THE ACCEPTANCE AND EXECUTION OF AN AGREEMENT WITH AKIN GUMP STRAUSS HALTER & FELD, LLP FOR LEGISLATIVE SERVICES RELATED TO THE ACADEMY. WHEREAS, Interim Town Manager accepted and executed an agreement with Akin Gump Strauss Hauer and Feld, LLP on March 14, 2008; and WHEREAS, the Board of Aldermen finds that the agreement is acceptable and beneficial to the Town-, NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. The above findings are hereby found to be true and correct and are incorporated herein in its entirety. SECTION 2. The Board of Aldermen of the Town of Westlake, Texas, hereby ratifies the acceptance and execution of the agreement with Akin Gump Strauss Hauer and Feld., LLP for legislative services as outlined in the attached Exhibit "A". PASSED AND APPROVED ON THIS 5th DAY OF MAY 2008. ATTEST: Scott Bradley, Mayor Kim Sutter. TRMC. Town Secretary Thomas E. Brymer, Town Manager APPROVED AS TO FORM: L. Stanton Lowry. Town Attorney T R I N G t N I I JODY RICHARDSON Joe I lennip, Intenni Wwrl Mow wr Tori of Westlake 3 Village. Circic, Suite --200 We"llake'"i-x '702th2 Ri: tim NXW 1 epAwke Wwk n' Chioner School ikaf Joe: PLIr�,LlUllt thi, Met- N our propo al` the'lo',vn k)tAVCs',1,1ku', MWIsdake-) invokoniunt %%it the charter schM cmm t, p 2ol)- lygisimme Sesmon. As we We discuNwl in Te pain diel-usiness arl-it:ixi-nCl"t "vith Wc-'ukdke has he ti that the W Sri char*ges b� the hour in irly %"wk in evtm-nuinbercd 4ears. �'ou an(I I ha4e agi-cod that w-rang enicni can he inipro cd Up011 b� a set fz'c�.)ghat thc year" legal tlees xill be kno", mid colvained. It k our hope that W`estlake cngage Inc in 2( () it has in the past under a sip arats,'retainer Wr the legal gal WKI MAN= "Amk PeriVinned duhng Ole QlAwKe Sensicin"M I "ilh-nAe W a pnyosal latcr in Illc ycar" Accordingly, we prk)posc that W'csthikc pay AU Unip Strauss Hauer & 1 eld UP r-Akin Gump-) legal and legidat"c ties in Vic amount of S 1 Kim kv Me 4car T This We%011 include "M ill .:onn,:kzion v ith, the tu�>k-;: (1) AM#stakeRlders and deren-ninc mio-»t-fft:cti,,e atlianec� i lived in KO W. attached to this Prupo,salL and courdmate "All than: (2) momor acu\by of Scn=c Fci,-cation 'Con-'nli'ua :. '.ti i:h' paj ticul.1, tocki, on it" Char relatLv to 'puhlic -�%:Ilooj 1`acilnle'' [unding, (de !11114 in auached to this propoi :ih: (3) detcrinii'1L: apllvolmatk: EN itlle�sc� to appcar.d scnatc Lducat.'or hearin, on al"d assist ill of tunniony; (4) k2lxted a-', ticccssar4 and effcct:' e; at?d prepare full and co"ploc pcivoov T y, yt; to "cstiak-c or) ,ji%iti t es iel I ed lo char%:-- A K I t I ' M P I. I. J) hic Hennio TWO 13, 2N)4 Page 7 Akm (Omp's paymcm Indicy inchides a pul oTremn mg ImInami Ag ow m mi in Mc vow d1c- lkork j" P''l forined, whi,:h ni-iean, dhai i.N e hia! ;r, ad aric,,:ii{ e.1ch pit cnl 1 hus- this I'mosal is that Ustlake pay Akin Gump quarierl�. in advance, in to amount of YOU In S, nnanner� th�c. Iax". firm� 'a i'll he pwd W AH h Wcs'flake before the CrILI ,or 2()()N mwk, lVdis pa,,,ment stru,:iuie is acccpT;b�!e t,) vow = "imid Ile to hi pio ininMawly Or Q mul "HI Ond, you an mowe at the end of NOTh Air Q2, 1 he hAk"Arm ms inomm be sam to WentAkc in .1unc anid in, Septeinh':-r. It this Proposa: is acccotabIc to Sou. pleasc sign at ind3cated iind 1-Clum 1 5 1no rommmy "m M4 We very nmch WpWate Nk ushakc's t ul 'ine'�s and we ioclk (f'rixarti !o hci�ping 'i:th inip -lant miti:iri\e- Ver\ tru \ yours. �W dim mi Imp i�Wagvr rj Texas ('harter QW.I.C.F: Foun(jed hL-C!"JIleF SCIIOO CdLlCati)!'S. ( 11,11-ter ( +1.( 1.('.E. provides cAuTter sclictol aWitharzotws, 1cahers_ pal-L'111,,. and studcrlt 1 um t-jed %oke, ill so doillg. Charicr (MLOIC.E. serves as a con dud ihiough which individuals n-lay join a i0i c I hen, in Owwbg their unified suppori td-lexas cliancr schwls- Association of(,'hjrTer f.,ducat,)rs of 10m --ACE be,,, -tt 'ar,, an as all .1 o� "mking group that arose artwul the annmon imemns of Wrze arm-nu m,of whool,", AUL incorpOrated in January 2001 a,ti a Q1 1c) (3) wi,ront and no" tqwrawi us Ow wwe"idt,.- illen-lb ership orgainvation serving open-eniolflnern wid college or unit,erw% charter schtuh, AC L serves its menthe r schools through The Wking technical a,:,,jstarjcc by a houNg wo lshons and 1 _ q Rare Cat texas: actin-, as all at and !jaiso)n !or cn�arters 14 '21!', the Texas HimmOri Agavy dumoh is binwridd; mealngN Lt Me C7orniou"Am.oil l'ilL1cIt2i i'•. and ScIlior Maft ofthc 1- X- LduLalion Agcnct: }art vio-hrl'-, sta"ewido: and wgbnA nwoorkin.L, opportunities loo educatorz III Tcxas; and Se fling as the Yoke of0va charters h; pno iding Adbrurntion t i c We Ow, Leghlatui-c, ACE is pnvrned bL a lo,,- rvernhn hood m9h 15 of Arse is n-lbers elected hy ineriber Owl ,,Poll--ing entizzics in cuch rcgion. Tie ranauhn- 4 inenihcr-,areA', iiZ cp� ! , C! 41 vc ii}il are elected by ACE Board Ww". ACIT serws chaws throualout the Vale thwugh rwril1wr-uWal ACF INaM rpr"osmon �1-, nwh of 7 dwrinct. gwTmphic w-eas acnas lexaN. !Inc am 44 A Wor nwinher., ic- A eNjs Ile AHAnm of( harter Schools of lixas -- Thn is a corribinaSm (01mica, CA LOANA" wk! A(T. The AHKPce of'('hartcr Sch(41s of Texas is an allwnce ofchanow"hools On Jac 21 cOn"i"It.)n goal ofscrving and "t-11-10OT-ting the bread di and depth ofeffectiv:2 charter scljot 1, it I s ?I?':!T2: staE42- I'llis inelude!; but is not hnlitai to "o kin toward the E4 ot'Fquiith:; Funding, F(plisole flue Pnwes,and an mcmminthilitv systeri, that accuraiciv sch,iwj's NOW ene>. ill scry iM4 -t2 dents dno], Pleciing it', inission, (1arter School Polkv Insdutne--The pro\idv', a high Wainnat0n, analysis, and opirlion to polielmakowN. O'hought leader,,,. Lnd saaltiejjojdcrs in 1'exas arld across the union. Bv cicvatin,-, pc icL abw,cthe Ot'dat.-to-day. chartcr school operator issuc,. CSPI is a resource fo,, independent jnfi),-rj,,utjoj, at),- ty public:charter schools_ uE qmh The Institute's eft6rls stall Win the helief that the pou.to LadiNvanj lnl;i 1t�n !I t the On& of key influt-mk�o (111-cction of 1 cxos o,:Eanic-, dIno. mcrc,:>c tilt: qua Iitt of publi, :school choke. C SCI mwlkti zo ensure the new gencra Ion ofpuhIic chartCl- scluxAs tuft A tht:ir potmtial to nuns Am pub Amnon. The I nstitutcconcnc,5 auadcinic. businem. schcx? and L:ic£C Icader:>In dtScu-ssit'n forLni�,, faCiittates and prtllnutc-,policy Felhirl, and research on ISSues critical to school Inipri vcrl Cpt. and offe!s analLsiS and opinlon to the media and kev smakelm I;:iels. Ise Institute°is located ill Austin and led h� mas C,harto& Presidem and CEO. Ins:staff includes a Policy and ReseaIchi Director, an Executive .=1SStstanL`Oft1CC ` an iijer, and Resc.'ait'ii f: e,litit+A who a5;ancc the~;rf)rri of Institute. When appropriate, CSPE collF:ahor3tes with uriivcrsities. 'foundations. :-'t vcnillicilt, find other policy centers in the ruliliinlc it of Its mis,,ion, C SPl has nine focus arC$ti during, the launch tat the on-,ani%ation. the InStifUW{ft hVer.s Much of iLi Content VirlUJIly t;12Y?tJ1 OLW lieivitc. C"ShI bill also Bost litic elcntS, 'fie%t W1. -- I't?rmed to CSPI Itire' It}attver Ile \e.Xt Step ilm paign i" aft? e t6rt to Ali a robLISt, highly t:tfhA e mmewite assoc;iattrin for Texas i:'haric;r s€:hool� he charter School i t9 rt,..i iiistl ate is jum icIUng 10 tt rwn and r}I't?ess Or Wiidhig this WIN! CANS NS f?1Y,?a12;:.1Akyl '^C'?ias Charter fi®e14Uhn --This<)Tmizanoii operatcd during tb ut_II? .Iicf 2'005 Icxas I c!?:slmive ``tC.i4lom It ''I p am ntq tit=C idy be it 1'Cr3r1 g, C'autos Ar Ef'fecti`e Charters -- tti'h is man 1 charter schools are e`c lin,;_ soli.c arc I£t)t. Me Coalition Ar hftecnve t harter R K_] tt";:a RM—ri k! to advocate for effecnve public chaser schools as a mcans of prtiAding I£ stI'ong and StIn-hec educatim for 2:f i iAaN cniltlrm of inconle. ('t-:(:' .S comprised of 11i&h-per'ormill ::hartcr ciiool leaders, co nccrned par�,nt�_ hu incss baler , and other Ineii her!l .tiff the c;nmllmQ% who are working 16r lc,_,iStati,C Change in Texas. exas. i}lz Chant es-would provide iacihtles fund, as incentives to high-r?erftirt-ring public charter suppol ior eharicr schtwk and 3 1)i'?)k: 's4 ts) Close>ti pf C}*.F i'? ee'n',Ini?t iP'tef'�, Wit) all Ts.;3a s children rcc(:k c the CiJUCatiltll thC% £Sii'4i tt? >i;Ctc"'Cl i13 I£tC:. ,-Wll -- Formell, 1°t`,' tf e IC\,iti Hairty i tr} ate ,. and Me (Wliwn A Weana Chartem TEACH xill advocate in cor"Juncrion kith hhc CI,arnC 5ellooi pollcv which is a tneltihership or�L:ni,�tuon. The lyesoc�rce U`eatter far Charter 4chook -- i he inksion of'thL: €csour:c t,, ntcr is it) iinpr-tm public education in r'e.xas to supporting di s"c"ja: erafdoIl of high-quaky ky chiancr schth4s. This is throe to j)e`m idin`_ Et~,t wmition, ac;,:e s to £Zr otc_Ssiorr=l 'a::pci-lisc, azld iltl4Ct tcchnlcol support_ The prilii�rti jai t !tai I�estttiice C'ctiter is tt> >et tlltit <i siutitic �:,t naiilhcrtll established charter N httr ds remain StIl « N.,.% Wid In .c i ti ?i to dai lS . ch _,. �._mane, the R( C"Q >ttWr�: con?erenc cc:,r c}i _i . ,:�. ch:ite and nl I„c ,t pis ptiE�lle«tinit. ',<.e emh chamm, The Resource(inter c+,as formed in 1 907 as a 50 IV) ; nttn-ptlt,r C}r`._`a a /_321(m to a gawp of I exas husiness leaders, who understoix! to tiisum of l exaS charter schools ant.f the significant, ripact these schoi%s c.indd have on improving the saw's public c dut'ano y:">t ill. T nt:S— Ie<itlers red11ZCLJ that char"lel_SC110=l> Ii>av heed at' m% iti a arty of reso urces )n or,.Jer at})C etlliec li£ e. F'� F x H 113 F r®B- koviel,k,and make wornrwridaliojls "hat addwv 61C aTat2S «dy 3 vwaaw I-IC,:ds for that tullkling renlain-, :4iable. and cquitabG, F a -x milic jj� - jj�,c�j for fundin,-� a(l t�)r taciliti�� ;uch a,� ia--'t gl-ov,th- Ll�g(:and ,. jusimm: W ibchm, th�a �,Iffect th condmorl of,I'acdlitia, adcxpiacy ofspace, construSon and land cosis and o ens,,ion (it' studems rquAng .,onalicr class mics. Asscss the impau mi propur; taxpajors of"Wing Z7 G ard" the I-xisthig Dcht Alho"ou nwh smAw and le Mm in hic:nnial pm aim Gr liz, Insiructional I-acilinc-, Allotment, ITEM 8 MAY 5, 2008 Town of Westlake Memo 1.. To: Honorable Mayor and Members of the Board of Aldermen From: Tom Brymer, Town Manager Subject: Regular Meeting of May 5, 2008 Date: April 25, 2008 ITEM Consider a Resolution ratifying the acceptance and execution of an agreement with Carolyn M. Marshall, CPA to perform a utility rate study. REC®M111ENDATIONS The former Interim Town Manager accepted and executed an agreement with Carolyn M. Marshall on January 28, 2008, to perform utility rate study. Ms. Marshall has completed the study and has presented the results to the Town. At this time,it is necessary that the Board consider ratifying the acceptance of the agreement. Staff recommends approval of the resolution. FUNDING The fee for this service is $15,000, and has been remitted to Ms. Marshall. TOWN OF WESTLAKE RESOLUTION NO. 08-29 RATIFYING THE ACCEPTANCE AND EXECUTION OF AN AGREEMENT WITH CAROLYN M. MARSHALL, CPA TO PERFORM A UTILITY RATE STUDY. WHEREAS, Interim Town Manager accepted and executed an agreement with Carolyn In M. Marshall, CPA on January 28, 2008; and WHEREAS, the Board of Aldermen finds that the agreement is acceptable and beneficial to the Town; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION I. The above findings are hereby found to be true and correct and are incorporated herein in its entirety. SECTION 2. The Board of Aldermen of the Town of Westlake, Texas', hereby ratifies the acceptance and execution of the agreement with Carolyn M. Marshall, CPA to perform a water rate study in accordance with the terms as set forth in the attached Exhibit "A". PASSED AND APPROVED ON THIS 5th DAY OF MAY 2008. ATTEST: Scott Bradley, Mayor Kim Sutter, TRMC, Town Secretary Thomas E. Brymer, Town Manager APPROVED AS TO FORM: L. Stanton Lowry, Town Attorney IMS {.'O NSL'I._TING Wltil:f_:NIF .L Casit retpuirenients 3. Powera of CiePTCI:iatik In lundc'd through o Xi j-)e rat ns Fhese can h: reined to reflect any Nwitis pKic) dim the lo"n V WITe "j Acs to cuhmte ""thin the MR; fund. stabli'd2 re"enLIC' r,'tjUH'CnICnIS using sewral Worical wars of acwal audded dwa (F Y 16 and FY (A i as M as POVOLN openving tvar I FY hT arY six planning 3vars TY 08.13L kj�pjjjj �:osts an(! (ictj rcjuirenll�'nts ��ijl also ht-, considered in the development of rc%enue reopikemenis. Analysis of these issues %\i!! consider arj% leval lynd cm pins and an em I Wished poljcjo� ',)I' debt co\crage and capacity. Re"enuIC projectitmis !o)r source, wher than utilitl ra,;c'; hijl be rnadc it, cot urrction whh I o"n Nuff'. ('. Revie1\ and update "ster and snwr rmos Or FY 08, 1 his ,\iII sy steni equi t1 issues anti address the Mo"in conqwnents: I 'I"\ l M amkt hY AM MY We costs asawimS v,Ah %wer %wus sc"cr tTervLons, 2, The current and W"we WN chayes "M be segregated h) dw tllit utilities byVed up"!cajital projects as identified by sMand cngh)eers, 3, 1'se Meral 10as (mhdrnum of three) of historical AMNLUnplion LIA0 W develop eshnimed VVIUMeS to he USCd in LQXVAq)in'Z' \\;Jter and ntes viecessarN to Cr reVCnLIe A- ar "" po"Sihle. i1 ti pro\ide hi.stol:icai COTISLII'Alplion uai i by month, by cW by rmige of wasumptioij. D. Revie%l ot' inininiuni bill. This effort "ill idennify the scparation of \ariable costs WNW fixed cown wous aink0whe "sb, and the impact to die mKimurn bill anti % a 'It"JiliCatiOnS to the Minil"Urn b-M Will be consIdered. t:. ReAnv of custorner c1a,R. It& sew•ewmion "ill include tllc z".I\"Mot; of classes (11, CLISIOIIICr1 either K oTe or by mewr sok l'ic :lllt? 1 5i, t\"Il; Iil:-tiqpo4 ate iocal philos'oph� of,'q4uity basis in utili-t\ char�.:cs' 1" evic\1 Of ral", S.'r!k-:tUres- Alterriaihv rme sumures WH he examined Und reported w, the lo"n Qt!2 inipacth wi pr,Qc,:,ctI rc\vnues' anti the :Acts on varkm Uil" "a"" " al"Imbes "iH he c(IMACMd as to dwd Miry to pro%ldc YQqwue roenuz->- =lie' -alhilit,, 1,1 implement whan cs and coni!pjy \\it. e\istiru or kno\k!"' a I I j rez-"Idatio I I s' an J, their biIitl tcl cII,:o uT"I eff-I cic I I'L L Ise o" t-at:r CoT Ise F\at ion i. de'Pentiill�g oll the and jwioridos A the RoarkL 'I lie` comparkons 11 ill tilcltltic iliC c"Iteria uaed to cxahwe the alornwAcK an, anplernentmion cowerns wid any expecle,; cu�konle- impacts, N leet in A h fo\1 Allend tip -,) blur Ward mcetin'-'-. Ltoi4`*::c€1) I Till, -he till, ill�k2 of tile lasks v"ithin each pl121�e Nv-,'11 o%(:!rlap and much of 1111c vwl k Nw.ill 11t pwml le I. Phase 1: Wa W"don, Rev ie\%. and Thi:, Plidsc kwill be in as somi an the agremnsa is Qrled. Ile nxdel "ill he LOSignal and hi�torical Imancial data and COWL111111ti011, data w\ill i e,jtt:rej into 1,11e model. Phase 2: ldvn6fication of the mter ruid L%astt2--,tak,,r revenue VeLipuireincills ow-cr lhe nndlyou pLanning peW. Pha�vc 3: IDe\eioprnenl of'the rate design ahmawk-es Ke AW AnIngs :,in bc prcsC'nttAj io ii'lc ZOfaivl m %xv Ward jurim-, 11le !irst %week of April, 21W8 if, v\rilten atllhorizatioin is c,'eival Ishor h) Whrum i -m-iltell tlWhOritl,i km is recei\ed, ,Ile e31-2d c tilera e,al ``c initialed one tkeeL lat.LiS LAnAn N1 NQUAL (W shAl 1v an mdepQndeni coniracttv an(i ('pA and codSms to Client, i"'s Status as is! of all indepcildent Coll t racl or, Nt)t1im hemin Ell he deemed or commed v, .:tome a john \enture, pulpership. agency or emphqec Anpkoy er reimiowlip hem ell the paniw tor an� puqp,,,�e. includin=,, but not lbuited U) Calves Or 0111004c bellefiK (T \ 1t H he My respalsiNc An papums of my- aEl JnU h WeC, (TA l\ill . Llbniil �0 101\11 U11011 1"ei!UeSz, e\idencC ut, compHmWe "it be pn"i-shms of As paraLlraph in a 1`ornn "Im.1 satistfactor\ to Town- to Wk shall not W,,\e aiiv right, INI"Or or authllrilt io cre,ne an.', mirli,_,atioll, t:xj`ocs� to imphaL g nmke rqvresentaliON on, of 10"n except as CPA may be expenk- audmizal in advance in xuAng hyrn time as time by To\%n m'd onl� to the exien't 'd such I ees CPA 011 Main Ow tmks as mulbred in we SaTe Orlhe enna a Re 0!, S 1 SAMMY Ile I An "HI be hillul as Mom: . S Mw a o! A- ,the roement preen,,oion to upon Jeli\ery of ilinal rk�!)Ort K: rc'porrsible 166 a)! oupoQmmkot expcns,:s. out ofttmn travel (airkues. Owls. rental car. and MCA, "IliCh Vl'ill be at aCIUJI COSIS. 0\ided by receil)".-+ 'lnd 0-her Ovid-W Pn"k0 "I 1_1\ ( 1',-V (_(T-A Shall not III N ,such e'\Pensc'� \\idloul the ex pre,,;, ill 'Id,, o11 8. CPA's (Angnmy, tr"A cmenants o Ci[N Li's (a) CPA "T comay at W! Ornes %xidi all aplHicable W, and NgLOWns (A any judshbon in YOW :II kit kI NOW! 04 acts: (b) ('11A v,ill cornpll "ith all aplOcable Indicies and mmufards and shall cam ota tm he pRV"z in a inmrwr 1:onsi�tQw iith the Whad and prolcs',it,,nal :"tandards l ro" l' (d UPA W! conlpl ", al! tinles \"it'li 'dl sccuri!\ pro\'i:;ion� in ef.�cct from thric to three w To"n's premises, "Ath reopect to acce"�' 1c, P!ern "s. '�lld all 'materials td) CPA shall not use loWs name in mp- promoilmaj inwerials ox odler COY1,111111nicntioris %vidi third parties t.\ithour I o\k o's I'FiOl' cOnsem: LUO (tl CPA is Wgall\ uUthOl-i/ei to engage in business in I mB and "AH pnn R: To"n swishwun evidelve of such authtwAx upon request. IS, Agreement sllfll 'tic ef',Fcctive as of Jmuary 2& _ KM and shaH termblate tlil Septembm W 2008� the lerni i Cat I.LI it pursu'in', TO iiriucil agreement it Me punks or wdes�, pre%iousil wrminatcd as pnn ided in Senion 1 1 beW ta) 10"n nQ. IPWI !_11181!41::1 i141 da< s' "\rnlen Iii tiee idenrityinto! sp-c":ificall", the 11LISis !'or such nolicc. this :\,_irccnrcnt 'o'.- `�'rc'wh' ofa material lCrIl" Or o!' uili" A'-'rec'mew". pro%ide'l ('l)A "d"111 not h'a\c c't'ircd suc,11 F'reach ithi 61C fk'UrlCell t '14) dq pe"S (b) Liter pany may w an, Wou tenuhme this Agrvemcm uptm giving t111rt1 t JJ N' \V1_ittCll i I01 iCC 101 0 IC Other PJH'E I. (cl hi the event this Agreemem is termbiatcd. UPA �±iall he entitled it, '-%A\rllcllt 1}; :111 fee,. as pr,"wed in Soohm () iind -7 respecii\el\_ incurred prior to the C!Tt':Ctix e d"'Ic of st I ch tc n i I ination. (1) Qon wKwAn of this Agreement for an) reasmi CPA "HI cease Ali acti%ity on the project and promplty provide u, 1 o"m. "ith coq w Mown- a1I work product and file s devvATed by CTA under this Agreernent and ill; inatcrials pi-mided it) CIO by"W"n in minectkin with this Q. PASIN of this Agreen-icy I his Agreement sets 16alh the entire intent and trndcrstandin'-� i1$" the parties hereto crn the suQjecAwwr hemok and superscdes an other agreenients o, undc:FslandinL'S, It mav he all mied only hy a witing Lkdy Sil-Ined 1'\ both OCth'c her�tki, (;o ernim-, a�v this Agreeniciu shall be go%enicd t,\ and &WISWUN it! aCC(1,`,-LWCC %%ith Illy, Ia%\S (1i tilt tilt oi'],�.,xa5 and 1-gin hal? lie in, 1 rrant (Amij. Texas, 111-c' parl'ie� h.a%t� 4i Iit executed this offile d,lj and pan firm below NnAwn. I o"m of Mqlake. I oxas ('nolvn 11 MaNKA. CIIA TOWN OF WESTLAKE Invoices Received: 04/21/08 thru 04/271 08 For Review by Board on 05/05/08 L_'c of America Leasing 010317919 257.61 100 44302 11 100%Copier Lease DP3520 Admin Reimbursement for purchase of hospitality items for April 14,2008 Board Kim Sutter CR041408 40.29 100 46106 11 Meeting Reimbursement for purchase of hospitality items for April 28,2008 Board Kim Sutter CR042908 50.45 100 46106 11 Meeting Mileage reimbursement from Kansas to Texas per employment Tom Brymer CR050108 260.08 100 43520 11 agreement Tom Brymer CR050108 360.00 100 43520 11 Flight reimbursement from Kansas to Texas per employment agreement Total Administration 968.43 Tarrant County Elections CR042408 4,300.00 100 46180 13 Deposit to conduct May 10,2008 General&Special Elections Total Town Secretary 4,300.00 Daniel Robertson ER042008 40.00 100 46150 14 lRecertification for: Kirk Grable&Daniel Robertson Home Depot 5021418 29.33 100 46155 14 Paint brushes,paint thinner&crate Home Depot 6591837 22.26 100 44212 14 Pipe insulation,handy hook&jumbo hooks Keller Feed&Lawnmower 103698 69.22 100 46215 14 Repair E481 Honda generator Ken Owens Battery Co. 04252008 309.00 100 46215 14 3/12-volt batteries for Engine 481 MES-Texas 00002937SCN (311.15) 100 47416 14 Credit: 4/Boot,quick chargers MES-Texas 00029424 SNV 110.10 1 100 47416 14 16/Cap,Dust MES-Texas 00029426SNV 22.04 100 47416 14 6/Hex socket screws&1/Display NFPA 04232008 724,45 100 46130 14 National Fire Codes 1 year subscription service CD-ROM NFPA 04232008 150.00 100 46115 14 1 year Membership renewal Nortex Modular Space 21120 618.75 100 45325 14 Building Lease-Fire Station: May 2008 Stericyle 0005381866 12.43 100 46615 14 Hazardous Waste Management Fee Refund request due to overpayment by United Healthcare for: Shelby United Healthcare Insurance 04182008 569.49 100 43334 14 Mahoney I Rack for storage: 4/sets of firefighting gear with shelves,air-dry coat ier Associates,Inc. 593240 1,383.00 100 44213 14 hanger,snap-on hooks&name plate markers Total Fire Dept. 3,748.92 Kwik Kar 00001-01605956 36.71 100 46215 15 Oil Change for Marshal Vehicle Utility Data Systems 00017175 320.25 ibO 46165 15 Star Thermal Receipt Printer Total Court 356.96 Home Depot 3085457 189.00 100 44226 16 Air compressor Home Depot 9020755 39.97 100 44112 16 Misc.PVC fittings and adapters O'Reilly Auto Parts 0880-179860 7.99 , 100 46215 16 Steering wheel cover for the Crown Victoria Total Public Works 236.96 Home Depot 3085457 160.70 100 44212 17 Supplies to install motion detector lights at fire station Old Faithful Fountains, Inc. 5675 1,299.75 100 43340 17 Pumps for Pond Irrigation Premier Nurseries 1558808 178.00 100 43348 17 10/Sweet broom cistus trees, 18/Lantanas&54/Diahthus flowers Total Facilities/Grounds 1,638.45 Scan&scale new Town Manager signatures to replace previous Bruce Winston 04172008 495.00 100 44310 18 signatures on checks: Tom E.Brymer plus shipping TX Society of CPA's 04222008 325.00 100 46115 18 Dues Class AA: Debbie Piper,CPA Total Finance 820,00 Tank: Ice down cold drinks(1/2 to be reimbursed by HOC)Used for Keller Feed&Lawnmower 103843 86.00 100 45912 19 Decoration Day,Arbor Days,Bandana Bonanza,etc. ITotal Parks/Recreation 86.00 Page 1 of 2 5/1/2008 12:52 PM TOWN OF WESTLAKE Invoices Received: 04/21/08 thru 04/271 08 For Review by Board on 05/05/08 Due from Academy: Variety of office supplies such as copy paper,pens, Office Depot 426952214-001, 539.17 199 13020 00 toner&post-it notes Taxi Service in Austin from&to airport for: Scott Bradley&Barbara Scott Bradley ER041808 49.00 199 13020 00 lBrizuela Scott Bradley ER041808 10.00 199 13020 00 IParking Fees at Dallas Love Field Airport for: Scott Bradley Scott Bradley ER041808 17.26 199 13020 00 Meals for: Scott Bradley&Barbara Brizuela Scott Bradley ER041808 425.00 199 13020 00 Airfare for: Scott Bradley&Barbara Brizuela Mileage from One Paigebrooke Lane to Dallas Love Field&Return for: Scott Bradley ER041808 27.78 199 13020 00 Scott Bradley Tri-County Electric 150-505- 04212008 6,987.52 199 13020 0 Academy Electric Total Academy Fund 8,055.73 AlphaGraphics 35282 244.44 220 43505 11 WHPS: Digital prints on 1 side Due from Visitor Fund 244.44 Office Depot 426952214-001 22.99 240 46105 bo Foundation: Package of labels Due from WA Foundation 22.99 Ramaker&Associates C1802-1 310,50 255 43405 11 Mapping 1 Cemetery Ramaker&Associates C1802-2 101.25 255 43405 11 License Ramaker&Associates C1802-3 621.00 255 43405 11 Mapping I Cemetery Due from Cemetery Fund 1,032.75 Star-Telegram 295551761 601.48 410 16600 13 Notice To bidders: Relocation of Utility A&S Buildings: Field exploration services,laboratory testing& Terracon Consultants,Inc. 9472735 3,703.50 410 16600 13 engineering services Due from Capital Projects 4,304.98 s Utility Supply 156042 3,557.00 500 47420 16 New Water Meters/Equipment -,t Worth Water Dept 03312008 19,524.39 500 44105 16 Water Volume Purchases: March 2008 Fort Worth Water Dept 03312008 50.00 500 44106 16 Water Service Charge: March 2008 Fort Worth Water Dept 03312008 17,612.18 1 500 44110 16 Water Peak Payment: March 2008 Hillwood CR033108 1,08825 500 48820 16 Debt Service-Hillwood area: March 2008 Hillwood CR033108 1,431.00 500 48821 16 Debt Service-Town area: March 2008 Keller(City of) 04252008 78.81 500 44312 16 Keller Waste Water: 1730 Offinger Road Keller(City of) 04252008A 28.51 500 44312 16 Keller Waste Water: 1730 Oftinger Road A Reprographics 409691 33.12 500 46125 16 Copies Tri-County Electric 800606413. 04212008 15.45 500 46222 1 16 iOn-Line Meter Electric Service Due from Utl14 43 Grand Total 64Y235.32:11 Page 2 of 2 511/2008 12:52 PM Y: TOWN OF 9 TEXAS BOARD OF ALDERMEN WORKSHOP AGENDA May 5, 2008 WESTLAKE CIVIC CAMPUS—DINING HALL 2600 J. T. OTTINGER ROAD 3:00 P.M. 1. CALL TO ORDER 2. DISCUSS PROPOSED AMENDMENTS TO THE OIL & GAS WELLS ORDINANCE. 3. REVIEW OF REGULAR AGENDA ITEMS. 4. ADJOURNMENT. ANY ITEM ON THIS POSTED AGENDA COULD BE DISCUSSED IN EXECUTIVE SESSION AS LONG AS IT IS WITHIN ONE OF THE PERMITTED CATEGORIES UNDER SECTIONS 551.071 THROUGH 551.076 AND SECTION 551.087 OF THE TEXAS GOVERNMENT COME. CERTIFICATION I certify that the above notice was posted at the Town Hall of the Town of Westlake, 3 Village Circle, Westlake, Texas and the Westlake Civic Campus,2600 J.T. Ottinger Road, Westlake,Texas,by Friday, May 2,2008 by 5:00 p.m. under the Open Meetings Act, Chapter 551 of the Texas Government Code. Kim Sutter, TRMC,Town Secretary If you plan to attend this public meeting and have a disability that requires special needs,please advise the Town Secretary 48 hours in advance at 817-490-5710 and reasonable accommodations will be made to assist you. Town of Westlake Proposed Oil & Gas Drilling/Pipeline ORDINANCE REVIEW POINTS RELATED FEES Policy recommendation — fees should be user based/demand driven. That is, fees for the various permits involved in administering this ordinance should not ne subsidized by any other Town revenue stream. All fees should be non-refundable. Page 8 Sec. 56-36 Seismic Permit Fee $ 250.00 Page 10 Sec. 56-36(b)(35)(3) Well Pen-nit Fee $ 20,000.00 (per application administration and inspection fee) Page 13 Sec. 56-40(a)(5) Insurance Policy Review Fee $ 150.00 Page 15 Sec. 56-262(i)(a) Amended Well Permit Fee $ 55000.00 Page 15 Sec. 56-262(i)(b) Amended Well Permit $ 1,200.00 Re-inspection Fee Page 28 Sec. 56-271 Technical Advisor Cost $ TBD case by case (Town may require operator to pay Town's necessary Technical Advisor Cost) Page XX Sec. xx-xxx Pipeline Permit Fee 6% of contract value (Recommendation to be added) Page 5 of 5 5/05/2008 BOA Workshop Discussion of Policy Options Related to Proposed Oil/Gas Drilling & Pipeline Ordinance Amendment Desired Policy Outcome: Harmonizing oil and gas operations in the Town with existing and future land uses, as well as the comprehensive plan, while preserving the Town's quality of life. What are the options (i.e. — means to achieve desired policy outcome)? • Retain current ordinance (no change) • Retain current ordinance, but adapt more stringent site operation and application technical requirements • 011/gas operations permitted as a use by right in all zoning districts with more stringent site operation and application technical requirements • Oil/gas operations permitted as a use bight in some zoning districts with more stringent site operations and application technical standards • Allow oil/gas operations in all but residential districts by SUP with more stringent site operation and application technical standards • Allow oil/gas operations in all zoning districts by SUP with more stringent site operation and application technical standards that include 1,000 ft spacing from structures, etc. Per 4-28-08 BOA Workshop, the above option (all zoning districts by SUP) was selected by consensus. 4/28/2008 5/05/2008 BOA Workshop Town of Westlake Proposed Oil & Gas Drilling/Pipeline ORDINANCE REVIEW POINTS Pages 4— 7 Sec. 56-32 : Definitions Note definition of"pipeline emergency", especially Sec. 56-32(5) on page 6 Pages 7— 8 Sec. 56-34 • Road.Repair Agreement Do we want to insert actual agreement language as in Bedford ordinance? 1 Per 4-28-08 BOA Workshop, need to add language similar to Bedford Ordinance for-Road Repair Agreement as a separate attachment. Pages 8— 11 Sec. 56-37 • Application and Review of Well Permit Page 9 Note Sec. 56-37b(4) Re: transportation route to service the well. Page 10 • Note Sec. 56-37b(27) Re: screening, fencing and landscape plan. Are these adequate? Per 4-28-08 BOA workshop, need to add strict language for high quality standards • Note Sec. 56-37d Re: applicant shall maintain at all times a $15,000 minimum running balance per approved permit for on-going (i.e. post approval) Town costs associated with the permit. • Note Sec. 56-37e Re: permit is for one year unless extension is granted. Pages 12— 14 Sec. 56-40 : Insurance & Indemnification Page 13 Note Sec. 56-40(6)(b) Re: liability insurance requirements. Per 4-28-08 BOA Workshop, add language for° environmental "tail" (claims paid post closure); $20 mil per occurrence Page 14 Sec. 56-260 : Security ® Note cash bond requirement of$200,000 per pad site to secure well operations, comply with road repairs agreement, insurance provisions and screening. Per 4-28-08 BOA Workshop, need to add/tighten language to narrowly define Westlake's bond requirements; Is $200,000perpad site enough? Page 1 of 5 5/05/2008 BOA Workshop Town of Westlake Proposed Oil & Gas Drilling/Pipeline ORDINANCE REVIEW POINTS Page 15 See. 56-261 : Periodic Reporting Note See. 56-261(4)(c) Re: annual reporting requirements Page 15 Sec. 56-262 Amended Well Permits Page cash bond requirement of$200,000 per pad site to secure well Pages 16—23 Sec. 56-264 On Site Operation Requirements Page 16 Note Sec. 56-264(a)-(f) Covers distances from residences, public buildings, hospitals, ROW, erosion control, floodplain, etc. Should there be a prohibition for siting on parkland? Areas reserved as public or private open spaces per our zoning ordinance? Per 4-28-08 BOA Workshop, need to add languagefor height restriction on equipment. Page 17 0 Masonry wall required. Per 4-28-08 BOA Workshop, need to add strict language forfencing to assure high quality standards; earth berm, screening, Vaquero type fencing. STOPPED HERE AT 4-28-08 BOA WORKSHOP Page 18 • Note Sec. 56-264(s) Re: on-site chemical and hazardous material storage. • Note Sec. 56-265(u) Re: prohibiting salt water or other disposal wells. Page 22 Note Sec. 56-264(w)(i)(a) Re: remotely monitored access control system requirements. Page 22-23 Note Sec. 56-264(yy)(2) Re: requirement for security camera o Page 2 f 5 1 5/05/2008 BOA Workshop Town of Westlake Proposed Oil & Gas Drilling/Pipeline ORDINANCE REVIEW POINTS Panes 23 — 25 Sec. 56-265 : Operations & Equipment Practices & Standards Page 23 • Note Sec. 56-265(a) Re: requirement to prevent &control offensive odor, noise, dust, fumes and vibrations. • Note Sec. 56-265(b) Re: lighting controls and standards. Page 23-24 Note Sec. 56-265(4) Re: noise regulations and noise monitoring within 1,000 feet of a protected uses as well as requirement for a noise management plan. Page 25 Note See. 56-265(5) Re: noise management measures as well as prohibition of compression facilities in the Town. Pages 25 Sec. 56-266 : Reworking of Well ® Note—should we require 30 instead of 20 days notice? Pages 26 Sec. 56-268 • Supplemental Drilling Note—this deals with additional or directionally drilling of a well not abandoned. Is this language adequate? Z' Pages 26—27 Sec. 56-269 : Abandonment of Wells &Pipelines • Note—requirement to plug and clean site within 60 days of abandonment (abandonment is defined) • See Sec. 56-35(a) Re: new permit required to drill abandoned well (page 8) Pages 28—29 Sec. 56-272 : Remedies of Town ® Are these adequate? Pages 29 Sec. 56-275 : Variance Can be granted by BOA. Page 3 of 5 lt5 5/05/2008 BOA Workshop Town of Westlake Proposed Oil & Gas Drilling/Pipeline ORDINANCE REVIEW POINTS Paces 30—42 ARTICLE III: OIL & GAS PIPELINE STANDARDS Page 30-31 Sec. 56-323 : General Requirements & Minimum Design Standards Note Sec. 56-308(a)(i)(5) Re: no pipeline pen-nit without SUE for well(s) in Town. Note Sec. 56-308(a)(i)(5) Re: requirements for such pipelines. Page 32 Note Sec. 56-308(a)(i)(5)(f) Re: in which pipelines impact future land platted for residential use Page 41 Note Sec. 56-323 Re: insurance requirements; are they adequate? Page 4 of 5 5/05/2008 BOA Workshop Gas Drilling is SOMME $XX Amended $10,000 per $500 permit Permit Fee site; $5,000 application $5,000; $2,500 $XXXX? per well fee Pipeline permit- $XX $XX; $2,500 per amended $2,000 Inspection Fee well, $7,500 well Silent annually annually inspection $1,200 Gen.liability, bodily injury $1,000,000 $10,000,000 $10 mil with $1,000,000 $1,000,000 and property $20,000,000 $20 mil damage aggregate Automobile $1 mil per liability occurrence $10,000,000 $10 mil $1,000,000 $1,000,000 insurance Workers compensation $500,000 $1,000,000 $1,000,000 $500,000 $500,000 $1 mil per Environmental loss;$20 $10,000,000 $10,000,000 $1,000,000 $1,000,000 pollution policy mil annual aggregate $5 mil per Control of well occurrence; $10,000,000 $5,000,000 $5,000,000 policy $10 mil $10,000,000 aggregate $10 mil if All Excess Op has liability stand-alone $10,000,000 $10,000,000 $10,000,000 $20,000,000 insurance EPL;$20 mil if not Requires SUP I-2+SUP SUP O/I+SUP SUP separate zoning Page 1 of 2 Last updated April 25, 2008 S Drilling Ordinance Comparison, con't Allows drilling Not in on Public land public park Silent Yes Yes or other public ROW Road repair agreement or Yes Yes Yes Yes Yes contract re 'd Distance(ft) from place of 100 from public 1,000 property 600 assembly, 600 lines school,church, hospital,etc.. Distance (ft) 100 from from residential 600 600 property 600 structure lines Distance(ft) 100 from from public 250 Silent property 250 right-of-way. lines Distance (ft) from fresh 500 Silent Silent 500 water well Distance(ft) 100 from from outer 1,000 property 250 boundary of 75 feet tract or lease. lines Distance (ft) from outer storage tank or 75 feet Silent Silent 25 source of ignition Distance(ft) 600 ft.; 100 from any other ft of bldg Silent Silent 600 building accessory Page 2 of 2 Last updated April 25, 2008 0 CD CD 0 C'4 C� C� C C> C� C� C. C) C� C °o C 0 C4 C> 0 0 0 1= C) CD °o C> 0 0 C� CD 0 o C, C� C� C� C� C) C> C> C� C� VD C> 0 0 C) 0 C�C +� C� 6q 64 64 b4 69 69 i's CD C, C>CD O O O O O p 0 Cl C4 46's C4 .po 64 b4 44 6e 64 6P4 C) C) 64 69 (oq 69 fiR Cl CD 40",C4 64% 6's C> C> 0 C> C> C) C) C> O Q 0 O 0 CD 460% CI O <=) C)C; C� cz v) 6s 64 b4 - Z; CD Cl O C> C) C� C5 C� C) co C� ca u 64 414 64 6R 60S I's Cl C, C> 69 69 C) C� tf) oq tri 04 IS 60.) 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CL cc CHAPER 56 GAS AND OIL WELLS............................................................................... ] ARTICLE 1[ DRILLING& PRODUCTION................................................................ ] ( \ Sec. 56-31 and {otcn� -...-----------.-.--.-------.--,.- 3 Purpose Sec. 56-32 Definitions --......----.-....---..--..._-.-..-.....-..-... 4 Sec. 56-33 Specific Use Pen-nit Required................................................................... 7 Sec. 56-34 Road -----.-._._-.-.---..---.-----'-. 7 Sec 56-35 Well Permit Required. ..-...-..-_-,,...-----..-.--.-.----...-' 8 Sec. 56-36 Seismic PecOz�Required,............................................................. 8 See. 56'37 Application and Review 0fWell PecmiL..~........--_---.-----' 8 Sec. 56-38 Oil and Gas -.-..._..~~.,,,._.,.~..~.....-_.-.-.--., }/ Sec. 56-39 Operator's Agent..................................................................................... I I Sec. 56-40 Insurance and Indemnification................................................................ 17 Sec 56-760 Security ..-......-..-..--.-~~~,-~---.--.-..--..,'.......--_. 14 Sec. 56'761 Periodic Reports.--.--.---,.....,,.......------..-..,^..^,_.--... 14 Sec. 56-767Amended Well Permits......................................................................... 15 Sec. 56-26] Transfer ofWell Permits ----_---,,.,..,~.._...,.---.-.-.---.. ]6 Sec. 56-764 [�I-3�e Operation -----.,~~...~.~...----.-.-.. /6 Sec. 56-266 of Well; Notice. ................................................................ 25 Sec. 56-267 Well ' ....~.~~.-....~.~......---..-----..-----.-.. 25 Sec 56'768 S ~.-...~~......~.~._-----------_'26 Sec. 56-269 Abandonment of Wells and Pipelines................................................... 76 Sec. 56-270 Clean T7n. ..............................................................................................77 Sec. 56'27} Technical Advisor.................................................................................28 � Sec. 56-272 Remedies 0f the Town..........................................................................28 > Sec. 95-273 Enforcement, Right WF Entry'................................................................74 ' Sec. 56~774 Public Information'..............................................................................79 Sec. 56-275 Procedure.................................................................29 ARTICLE III. OIL AND GAS PIPELINE STANDARDS.......................................... 30 Sec. 56-306 Purpose---.-~~_-~~-----.-.-.---------------.-.. �0 Sec. 56'307DefiOitionS. ----...,...._-----...----.---.------- 30 Sec. 56-308 General Reonircnoeot8and ��inicouu� [)csignStandards-------. �0 Sec. 56-309New Pipeline Permit Application. ........................................................37 Sco' 5 6-3lUPermit Approval---,.----.-.-.-----.--.---------.- 34 Sec. 5 6-]11 Pub}icEducatiou..-------.-.-..--..---.--.-----.---' 34 Sec. 56-3)]2 Pipeline Information Reporting Requirements..................................... ]5 Sec. 56-313 Pipeline Markers................................................................................... 37 See. 56~3 14 One Call System -.-.---.---'---------------.-' 37 Sec. 56-3 17 and Maintenance.................................... ................. 3g Sec. 56-323 Bond and Insurance Required...............................................................4] Sec. 56-374 Termination of Permit...........................................................................4? ( / \~ � Puoclof44 Created 0o4/25/08 TOWN OF WESTLAKE ORDINANCE NO. AN ORDINANCE OF THE TOWN OF WESTLAKE, TEXAS ("TOWN"), AMENDING CHAPTER 56 OIL AND GAS WELLS, ARTICLE II DRILLING AND PRODUCTION OF THE WESTLAKE CODE OF ORDINANCES, REGULATINGITHE DRILLING AND PRODUCTION OF GAS AND OIL WELLS _IT 'TOWN, TO PROVIDE REVISED REGULATIONS G ING � T'ANCE4 ' ISE 1 TECHNICAL PROVISIONS; ADOPTING CONIPRF. _... cS IVE "." PIPEIJNE GULATIONS; PROVIDING A PENALTY; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; PROVIDING FOR SE VE ; PROVIDING FOR REPEAL OF CONFLICTING PROVISIONS; PROVIDING A CUMULATIVE CLAUSE; AND ESTABLISBING AN EFFECTIVE DATE. WHEREAS, the Town of Westlake, Texas, is a General Law Municipality located in Tarrant and Denton Counties,Texas,created in accordance with the provisions of the Texas Local Government Code and operating pursuant to the enabling legislation of the State of Texas; and WHEREAS, on May 24, 2004,the Board of Aldermen of the Town of Westlake adopted Ordinance Number 458 enacting permit procedures, fees and regulations regarding the drilling and production of oil or gas wells with the Town limits of Westlake; and WHEREAS, the Board of Aldermen has studied revisions to the gas drilling ordinance that would improve the quality of life for citizens that may work and live near future drill sites; and WHEREAS, the Board of Aldermen recommended for the best interests of the citizens of Westlake,additional noise abatement procedures, site security, signage, and other revisions that will provide additional protections of surface property rights but continue to allow access to the minerals; and NI AS, the Board of Aldermen also recommends the adoption of comprehensive regulations governing the installation and operation of pipelines within the Town of Westlake;and WHEREAS, the Board of Aldermen finds that the additional regulations of the development of gas and other hydrocarbon substances within and under the Town is necessary in order to protect the surface property rights, to protect the owners of mineral rights and to provide for the orderly exploration, development, and production of gas and hydrocarbons; and WHEREAS, the Board of Aldermen deems it advisable to amend the current regulations for the drilling, production and redrilling of gas so that these activities may be conducted in a manner that protects the public health, safety and welfare of the citizens of Westlake, conforms,xith established codes and regulations while Page 2 of 44 Created on 4/25/08 minimizing the potential impact of surface property and mineral rights owners; and WHEREAS, around the nation there have been safety-related incidents involving pipelines and the Board of Aldermen deems it prudent to adopt standards for such pipelines in an effort to protect citizens and property from safety-related incidents; and WHEREAS, the Board of Aldermen deems it advisable to adopt standards governing the installation and maintenance of pipelines and,in accordance with SECTION121.202 of the Texas Utilities Code,to adopt regulations that establish "conditions for mapping, inventorying,or relocating pipelines over, under,along, or across a public street or alley or private residential area in the boundaries of a municipality"; and WHEREAS, the regulations set forth in Chapter 56 of the Westlake Code of Ordinances shall be considered the minimum requirements for the installation and maintenance of pipelines and the development of gas and other hydrocarbon substances within and under the Town and shall not relieve any person from any duty imposed by law to use reasonable care and precautions for the safeguarding of people and the protection of and noninterference of property rights; and WHEREAS,AS, the Board of Aldermen finds and declares that the regulations contained herein are in the best interest of the public health, safety and general welfare. MOW,THEREFORE,BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE,TEXAS: SECTION : THAT,the above findings are hereby found to be true and correct and are incorporated herein in their entirety. SECTION2: THAT, Article II of Chapter 56, of the To«n of Westlake Code of Ordinances is hereby amended to read as follows: CHAPER 56 GAS AND OIL WELLS ARTICLE II. DRILLING & PRODUCTION ec® ® 1 Purpose and Intent. The exploration.,development, and production and transportation of gas and oil in the Town are activities that necessitate reasonable regulation to ensure that all property owners, mineral and surface, have the right to peaceably enjoy their property and its benefits and revenues. It is hereby declared to be the purpose of this Article to establish safeguards and regulations for operations related to the exploring, drilling, producing,transporting and storing of gas and oil and other substances produced in association with gas and oil within the Town to protect the health, safety and general welfare of the public, minimize the potential impact to property and mineral rights owners, protect the quality of the environment, and provide for the orderly development of available mineral resources. Page 3 of 44 Created on 4/25/08 Sec. 56-32 Definitions. All technical industry words or phrases related to the drilling and production of wells not specifically defined shall have the meanings customarily attributable thereto by prudent operators in the gas and oil industry. For the purposes of this Article, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Administrator: The Town Manager or his or her designated representative. Abattdonntent:"Abandonment"as defined by the Railroad Commission and includes the plugging of the well and restoration of the drill site as required by this Article. All-weather surface: A surface that consists of a minimum of b inches of compacted Class II base rock for grades up to and including 5 percent, and oil and screened for grades up to and including 15 percent, and asphalt or concrete pavement with a non-skid finish for grades exceeding 15 percent to a maximum of 20 percent on a fire apparatus access road. Ambient noise level: The all encompassing noise level associated with a given environment,being a composite of sounds from all sources at the location,constituting the normal or existing level of environmental noise at a given location. Applicant: A person to whom a permit or certificate for the drilling,operation and production of a well, or the installation or operation of a pipeline, is issued under this Article, including, but not limited to, his or her heirs, legal representatives,successors or assigns. Blowout preventer: A mechanical, hydraulic,pneumatic,or other device or combination of such devices secured to the top of the well casing,including valves, fittings, and control mechanisms connected therewith,which can be closed around the drill pipe or other tubular goods which completely close the top of the casing and are designed to prevent blow outs. Base flood.• The flood having a one percent(I%)chance of being equaled or exceeded in any given year. Building. Any structure used or intended for supporting or sheltering any use or occupancy, which includes, but is not limited to, all related site work and placement of construction materials on the site. Completion of drilling, re-drilling and re-working: The date the work is completed for drilling, re-drilling, or re-working and the crew is released by completing its work or contracted by its employer. Compression facility:Those facilities that compress natural gas after production-related activities which are conducted and prior to the point where the gas is transferred to a carrier for transport. Construction: Causing or carrying out any building, bulk head, filling, clearing, excavation or substantial improvement to land or to the size of any structure. Town. The Town of Westlake,Texas. Board of Aldermen: The Board of Aldermen of the Town of Westlake. Closed loop mud system: An enclosed suite of solids control equipment used for mud circulation and intended to minimize drilling fluid dilution to provide for handling of the drilling wastes so that reserve pits are not used. Daytime: The period from 7:00 a.m.to 7:00 p.m. Dedication: Includes,but is not limited to, a permanent easement or a fee simple acquisition of land for a specific purpose. Derrick: Any portable framework, tower,mast and/or structure that is required or used in connection with drilling or re-working a well for the production of oil and/or gas. Drilling: Digging or boring a new well for the purpose of exploring for, developing or producing oil and/or gas or other hydrocarbons, or for the purpose of injecting gas, water,or an_v other fluid or substance into the earth. Drilling equipment: Derrick, draw works, power plant, rotary table,pumps, together with all parts of an apparatus to such structure, every piece of apparatus, machinery or equipment used in connection with drilling and operations. Page 4 of 44 Created on 4/25/08 Drill site: Area used during the drilling, re-drilling or re-working of a well or wells prior to the reduction and conversion of the area to an operation site. Environmentally sensitive area: An area under the jurisdiction of the U.S. Army Corps of Engineers where scientific,ecological,cultural or aesthetic features have been identified by the Corps of Engineers. Exploration:Geologic or geophysical activities, including, but not limited to, surveying and seismic exploration, related to the search for gas and oil or other sub-surface hydrocarbons. Excavation: Includes, but is not limited to, scraping or grading a site. Filling: Includes, but is not limited to,disposal of excavated materials. Floodplain: Any land area susceptible to a general and temporary condition of partial or complete base flood inundation of normally dry land areas from overflow of inland waters or from the unusual and rapid accumulation or runoff of surface waters from any source. Frac,fracture or fracturing: The process of fracture stimulation of a rock formation, including, but not limited to,the process of pumping sand laden fluids down a well to stimulate a rock formation. Gas: Any fluid, either combustible or noncombustible,which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature and pressure conditions and/or the gaseous components or vapors occurring in or derived from petroleum or natural gas or as used in the rules, regulations, or forms of the Railroad Commission. Habitable structures: Structures suitable for human habitation or occupation, including, but not Iimited to, single or multifamily residences,hotels,condominium buildings, buildings for commercial purposes and enclosed spaces in which individuals congregate for education, worship, amusement or similar purposes,or in which occupants are engaged at labor, and which is equipped with means of egress, light,and ventilation facilities.Each building of a condominium regime is considered a separate habitable structure, but if a building is divided into apartments, then the entire building,not the individual apartments, is considered a single habitable structure.Additionally,a habitable structure includes porches, gazebos and other attached improvements. Hazardous liquid.- Defined by the Railroad Commission at 16 Texas Administrative Code, SECTION 7.80, Definitions, as amended, shall mean petroleum or any petroleum product,and any substance or material which is in a liquid state, when transported by pipeline facilities and which has determined by the United States Secretary of Transportation to pose an unreasonable risk to life or property when transported by pipeline facilities. The term shall be enlarged to include liquefied natural gas and anhydrous ammonia should such materials at any time be introduced into any pipeline subject to this Article. It shall also include carbon dioxide, defined at 49 CFR 192.2 as a fluid consisting of more than ninety percent(90%) carbon dioxide molecules compressed to a supercritical state. Hazardous materials management plan: The hazardous materials management plan and hazardous materials inventory statements required by the Fire Code. Idled pipeline: A pipeline that has been inactive for at least two(2)years even though there may be no specific plans to reactivate the pipeline. Inactive pipeline: A pipeline that has temporarily been taken out of service for a period of at least six (6) months for hazardous materials or hazardous liquids and one(1)year for natural gas with the expectation that the pipeline may be reactivated within two(2)years even though there may be no specific plans to reactivate the pipeline. Inspector: The oil and gas inspector designated by the Administrator. Line marker. A marker identifying the location of a buried pipeline,as further defined in 49 CFR 192.707. Page 5 of 44 Created on 4/25/08 Neupipelines: Pipelines constructed after the effective date of this Article but shall not include(a) the replacement or repair of any existing pipeline; (b)the realignment of a portion of an existing pipeline to a position that is not greater than fifty(SO) feet from its original position; or(c) surface appurtenances added to existing pipelines. Netiv well: A new well bore or new hole established at the ground surface and shall not include the re-working of an existing well that has not been abandoned unless the re-working involves drilling to a deeper total depth. Nighttime:The period commencing at 7:00 p.m. and ending at 7:00 a.m. Operation site: The area used for development and production of gas and oil and all related operational activities after drilling activities are complete. Operations:Activities leading to and supporting the production of oil, gas and/or other hydrocarbons. Operator: For each well, the person listed on the.Railroad Commission Form W-1 or Form P-4 for a well,that is,or will be, actually in charge and in control of drilling, maintaining,operating, pumping or controlling any well including,without Iimitation,a unit operator.If the Operator,as defined herein, for any well is not the lessee of any premises affected by the provisions of this Article, then such lessee shall also be deemed to be an Operator.In the event there is no gas and oil lease relating to any premises affected by this Article,the owner of the fee mineral estate in the premises shall be deemed the Operator. Padsite:The area around a well that serves as a foundation for the drilling rig. Permittee: Any person authorized to act under a permit or a certificate issued by the Town. Person: An individual, firm,corporation,association,partnership, consortium,joint venture, commercial entity,the United States government,a state, a municipality, commission, political subdivision or any international or interstate body or any other governmental entity. Pipeline: All parts of those physical facilities through which gas, hazardous liquids or chemicals move in transportation, including,but not limited to,pipe,valves and other appurtenance attached to pipe, whether or not laid in public or private easement or public or private right-of-way within the Town. Pipeline or well emergency:A pipeline or well incident in which any of the following has occurred or is occurring: (1) Fire or explosion not initiated by the Owner/Operator as part of its operations(in accordance with accepted safety practices). (2)Release of a gas,hazardous liquid or chemical that could adversely impact the environment or health of individuals,livestock and/or domestic animals, and wildlife, within the Town. (3) Death of any person or individual directly attributable to the operations of the pipeline or well. (4) Bodily harm to any person that results in loss of consciousness,the need to assist a person from the scene of the incident or the necessity of medical treatment in excess of first aid. (S) Damage to private or public property not owned by the pipeline or well Owner or Operator in excess of five thousand dollars($5,000.00) in combined values,as determined by the Administrator. (6)The rerouting of traffic or the evacuation of buildings. Pipeline permit:A permit applied for and issued or denied pursuant to this Article authorizing the movement of gas, oil,water or other products to or from the location of a well. Pipeline Review Committee: A committee, consisting of the Town Engineer, Fire Marshal, Inspector, Town Director of Planning and Development Services and, if necessary, a third-party technical advisor,appointed to seek resolution of any substantive, non-resolvable technical issues related to the issuance of a pipeline permit. Pipeline Owner or Operator: Any person owning, operating or responsible for operating an oil or gas pipeline for the purpose of transporting oil,gas, or other gasses, or liquids related to the production of oil, gas or other hydrocarbons. Practicable: In determining what is practicable, the Pipeline Review Committee shall consider Page 6 of 44 Created on 4/25/08 the effectiveness, scientific feasibility and commercial availability of the technology or technique. The Pipeline Review Committee may also consider the cost of the technology or technique. Protected use: A residence, religious institution, public building, hospital building, day care facility, park or school. Railroad Commission: The Railroad Commission of Texas. Residence: A building used or intended to be used as a place of general abode or dwelling place. Road Repair Agreement:A written agreement obligating the Operator to repair damage, excluding ordinary wear and tear, if any, to public streets, including, but not limited to,bridges, caused by the Operator or its employees, agents, contractors,subcontractors or representatives in the performance of drilling or production of any wells authorized by the Town. Specific Use Permit: A permit recommended by the Planning and Zoning Commission and authorized by the Board of Aldermen for the use of land or structures in accordance to the provisions in SECTION45 of the Zoning Ordinance. Westlake 2025 Plan: The Town of Westlake Comprehensive Master Plan, as amended,consisting of multiple elements, as adopted by the Board of Aldermen. Street: The entire width between the boundary lines of the street right-of-way that is open to the use of the public for purposes of vehicular travel. Street right-of-way: Land dedicated by plat,easement or by fee simple,or qualifies as a prescriptive easement, or prescriptive right-of-way,for the use and construction of a street or roadway. Structure: Without limitation,any building,or combination of related components constructed in an ordered scheme that constitutes a work or improvement constructed on or affixed to land, including, but not limited to,habitable structures, partially enclosed structures, enclosed tanks, etc. Tank battery:point of collection(tanks)and disbursement(tank, meter, lease automated custody transfer unit)of oil or gas from producing wel l(s). Technical advisor: A persons)familiar with and educated in the oil and gas industry or the law as it relates to oil and gas matters who may be retained from time to time by the Town. Unregulated pipeline: Those pipelines within the Town that enjoy exemptions under federal and state rules that exclude such lines from construction standards, safety standards or reporting requirements of either or both federal and state governments. Well: A hole or bore to any horizon,formation, or strata for the purpose of producing gas,oil,or other hydrocarbons. Well permit:A permit applied for and issued or denied pursuant to this Article authorizing the drilling, production,and operation of one or more wells. Workover operations: Work performed in a well after its completion in an effort to secure production where there has been none, restore production that has ceased or increase production. Zoning Ordinance: The Comprehensive Zoning Ordinance of the Town of Westlake,Texas,as it may be amended. Sec. 56-33 Specific Use Permit Required. The drilling and production of gas and/or oil within the Town shall only be permitted by Specific Use Permit in accordance with SECTION45 of the Zoning Ordinance. A site plan is required with the Specific Use Permit application and must include all information required by SECTIONS 40 and 45 of the Zoning Ordinance.—Check for our code numbers. Sec. 56-34 Road Repair Agreement. A road repair agreement shall be submitted in conjunction with the application for Specific Use Page 7 of 44 Created on 4/25/08 Permit. The agreement must be approved by the Board of Aldermen as a condition of the Specific Use Permit and signed by the Operator. The Administrator shall have the authority to execute the road repair agreement. Sec. 56-35 Well Permit Required. (a)No person shall engage in the drilling, production and transport of gas and oil within the Town without first obtaining a well permit. (b)An application for a well permit and a pipeline permit must be filed with the Town concurrently with the application for a Specific Use Permit; provided,however,that the Town shall not be required to consider the application for the well permit and pipeline permit unless and until a Specific Use Permit is approved by the Board of Aldermen and all applicable regulations of this ordinance and all other applicable Town, state or federal regulations are met. (c)When a well permit has been issued,the permit shall constitute authority for the drilling and production of gas and oil in accordance with the limitations set forth in this Article. The laying of pipelines shall require separate permitting in accordance with Division 2 of this Article. (d)An original well permit shall not, however,constitute authority for the re-entering and drilling of an abandoned well. Re-entry and drilling of an abandoned well shall require a new well permit. (e)In addition to obtaining a well permit and before establishing a drill site and access road,the Operator must obtain all the necessary permits,including an earth disturbance permit from the building services department. The applicant shall also be required to demonstrate compliance with the Town's Tree Preservation Ordinance. Sec. 56-36 Seismic Survey Permit Required. (a)A separate seismic survey permit shall be required for all seismic surveys. The Operator conducting the seismic survey shall complete and submit a seismic survey application to the Town containing, at a minimum,the following information: (1)Applicant name,phone number,address, and, if possible,email address; if the Operator is a corporation,the state of incorporation,and if the Operator is a partnership,the names and addresses of the general partners shall be provided. (2)Location of seismic survey. (3)Date and time the seismic survey will be conducted. (4)Detailed explanation of the seismic survey method to be used on site. (5)Date and time the seismic survey will be completed. (6)Identify all staging areas. (7)Demonstrate that the activity will adhere to the requirements of the Town's Tree Preservation as it may be amended. (b) Under no circumstances may explosive charges, including, but not limited to the use of dynamite, be used to conduct a seismic survey. In addition,the seismic survey activity shall be conducted in accordance with all applicable Town ordinances. (c)A fee in the amount of$250.00 must accompany each seismic survey permit application. Sec. 56-37 Application and Review of Well Permit. (a) Every application for a well permit shall be in writing signed by the Operator, or some person duly authorized to sign on his or her behalf,and filed with the Department of Planning and Development Services. A separate application is required for each well bore. Page 8 of 44 Created on 4125/08 (b) Each well permit application shall contain the following information: (1) The date of the application. (2)An accurate legal description of the lease property to be used for the oil and/or gas operation, the parcel, and the production unit and name of the geologic formation as used by the Railroad Commission. Property recorded by the plat should reference subdivision, block, and lot numbers, as applicable. (3) If a Specific Use Permit has been approved for the proposed oil and gas operation, a list of all requirements set forth in the Specific Use Permit ordinance and written summary of how those requirements will be met. (4) A map showing the proposed transportation route identifying all public and private roads/routes intended for use within the territorial limits of the Town.The transportation route L must be consistent with the requirements of the Specific Use Permit. '_---'x (5) The proposed well name(s). y (6) The surface owner name(s),phone number(s),address(es),and, if possible,email address(es). 7 The mineral lessee names hone number(s), address(es),and if possible,email address(es). r" (8) Operator/applicant name, phone number, address,and, if possible,email address; if the Operator is a corporation, the state of incorporation, and if the Operator is a partnership,the names and addresses of the general partners shall be provided. (9)Name, phone number, address,and, if possible,email address of the individual designated to receive notice. (10)Flame of representative with supervisory authority over all oil and/or gas operation site activities and a twenty-four hour phone number. . (11) Owner and address of each parcel of property within one thousand(1,000)feet of the proposed drill site. (12)A site plan of the proposed drill site and operation site depicting the height, size, bulk and location of all structures and equipment, including,but not limited to, all security cameras, lighting,utilities, and the floodplain.The site plan shall also depict the location and description of all improvements and structures one thousand(1000')feet outside of the operation site. (13)The name, address and twenty-four-hour phone number of the person to be notified in case of an emergency. (14)The exact acreage and number of wells included in the permit application. (15) Copies of all reports required by the Railroad Commission specifically, including a copy of the approved Railroad Commission Form W.l and/or P-4. (16)A signed road repair agreement. (17)A description of public utilities needed during drilling and operation. (18)A description of the water source to be used during well fracturing,drilling and/or operations. (19)A copy of the approved Railroad Commission permit to drill together including attachments and survey plats that are applicable to the drill and/or operation sites. (20)A copy of the storm water pollution prevention plan where required by the Texas Commission on Environmental Quality,the United States Environmental Protection Agency,and the Town of Westlake,whichever is more stringent. (2 1)A copy of the tree protection plan. (22)A copy of the erosion control plan. (23)A copy of the hazardous materials management plan. In addition to the hazardous materials management plan, all material safety data sheets(MSDSs)detailing the hazardous materials that will be located, stored, transported,and/or used at the drill site shall be provided to the Inspector and Fire Marshal. (24)A copy of the emergency response plan. (25) A copy of the noise management plan, prepared by a noise control engineer or other qualified person approved by the Inspector, for any equipment used in the drilling, completion, or Page 9 of 44 Created on 4/25/08 production of a well as required in SECTION56-46, hereof. (26)A copy of the signage plan for both the drill site and pipelines.A representative sample of each sign required to be displayed at the operation and drill site shall be provided. (27)A copy of a Screening,Fencing and Landscape Plan detailing compliance with all landscape and screening requirements required by Town ordinance, measures to be taken to adequately irrigate all landscaping, including indicating the water source for irrigation, and the proposed efforts to replace dead or dying screening vegetation. In addition to the Screening, Fencing and Landscape Plan,a fully executed third-party landscape maintenance agreement must be submitted,detailing t`Te frequency aa— d scope ofthe landscapiiig-services to be provided. (28) A copy of the determination by the Texas Commission on Environmental Quality of the depth of useable quality ground water. (29) Evidence of insurance and security meeting the minimum levels established by this Article. (30)All materials required pursuant to Division 2 of this Article governing pipeline installation and safety. (3 1)A copy of all applicable right-of-way encroachment agreements. (32)A dust mitigation plan detailing measures to be implemented to mitigate and suppress dust generated at the drill site and the private vehicle access route.Brine water, sulphur water, or water in mixture with any type of hydrocarbon may not be used for dust suppression. (33) A public education plan addressing the requirements of SECTION 56--55 hereof. (34) A detailed evacuation plan addressing the evacuation strategy for a public or private school, hospital, or daycare facility if any such facility will be located within one thousand(1000')feet of the proposed drill site. (35)A waste management plan that addresses human,solid,and drilling production waste. (c)All applications shall be accompanied by a twenty thousand($20,000.00)dollar administration and inspection fee. (d) If the application for a well permit is approved and a permit is issued,the applicant shall at all times be required to maintain a fund with the Town containing a minimum running balance of fifteen thousand($15,000.0 dollars for each permit application approved-The funds shall be maintained by the Town in a separate interest bearing account from which the Town shall reimburse itself for the adminisftfive expenses, consulting fees, contracting fees or the funding of Inspector position(s). In addition,all interest earned shall be credited to the fund balance or refunded to the Operator if and when the minimum balance is achieved. The Town shall invoice and notify the applicant, in writing,of any deduction from the application fund and within fifteen (15)days of receipt thereof,the applicant shall pay to the Town, for deposit into the application fund,the amount necessary to return the balance to fifteen thousand ($15,000.00)dollars. Upon final inspection and approval by the Town of a restored site the Town shall return the remaining account balance to the applicant or the applicant's approved assign. No well permit shall be issued of the proposed activities are not in conformance with the approved Specific Use Permit and associated site plan, provisions of this Article, the Building Code, Fire Code and all other applicable Town ordinances. (e) Each well permit issued by the Town shall: (1) Identify the name of the well and its Operator. (2) Specify the date on which the Town issued each permit. (3) Specify the date by which drilling must commence on the well covered by the permit otherwise the permit expires(such date shall be one(1)year after the date of issuance). A one(1) year extension of time may be granted Tf existing conditions are-the same and an application for extension is made to the Planning and Development Services Director prior to expiration of initial permit. (4) Specify that if drilling is commenced on the well covered by the permit before the permit expires, the permit shall continue until the well covered by the permit is abandoned and the site restored. Page 10 of 44 Created on 4/25/08 (j) Incorporate, by reference, the indemnity, insurance and security requirements set forth in this Article and specify that no drilling operations(including the construction of internal private access roads)shall commence until the Operator has provided such information. (6) Incorporate, by reference,the requirement for periodic reports. (7) Incorporate, by reference,the conditions of the applicable Development Plan, and/or Specific Use Permit. (8) Incorporate, by reference, the information contained in the permit application. (9) Incorporate,by reference, the applicable rules,and regulations of the Railroad Commission, including the applicable"field rules". (10)Contain the name, address, and phone number of the person designated to receive notices from the Town,which person must be a resident of Texas and available to receive notices by registered or certified mail. (11) Incorporate,by reference, all permits and fees required by the Town. (f)A decision to deny an application for a well permit shall be provided to the Operator in writing, including the reason for the decision. The Operator may appeal any such denial to the Board of Aldermen. (g) If an application for a well permit is denied, nothing herein contained shall prevent a new application from being submitted to the Town for the same well.A new application fee shall accompany each new application. (h) If the application for a well permit is approved and a permit is issued,the applicant shall file notice in the Tarrant County real property records indicating the physical location of the permitted drill site and the well/bore hole. Sec. ® 8 Oil and Gas Inspector. (a)The Administrator shall designate the Inspector(s)who shall enforce the provisions of this Article. The Inspector shall have the authority to issue any orders or directives required to carry out the intent and purpose of this Article and its particular provisions. Failure of any person to comply with any such lawful order or directive shall constitute a violation of this Article. (b)The Inspector and Fire Marshal shall have the authority to enter and inspect any premises covered by the provisions of this Article to determine compliance with the provisions of this Article and all applicable laws, rules,regulations, standards, or directives of the state. Failure of any person to permit lawful access to the Inspector or Fire Marshal shall constitute a violation of this Article. (c)The Inspector shall conduct inspections of all permitted wells in the Town to determine compliance with this Article and all regulations of the Railroad Commission. (d)The Innspector and/or Administrator shall have the authority to request and receive any records,including any records sent to the Railroad Commission, logs, and reports relating to the status or condition of any permitted well related to the health, safety and operations of the well. Failure of any person to provide any such requested material shall be a violation of this Article. Sec. 56-39 Operator's Agent. Every Operator of any well shall designate an agent,who is a resident of the State of Texas,upon whom all orders and notices provided in this Article may be served in person or by registered or certified mail. Every Operator so designating such agent shall within ten(10) business days notify the Town Secretary in writing of any change in such agent or such mailing address unless operations within the Town are discontinued. Page 1 I of 44 Created on 4/25/08 c® 0 Insurance and Indemnification. The Operator shall provide or cause to be provided the insurance described below for each well for which a well permit is issued, such insurance to continue until the well is abandoned and the site restored.The Operator must provide to the Town sufficient documentation that the Operator's insurance complies with the minimum requirements and coverage amounts of this section the well permit may be issued. (a)General Requirements: Indemnification and Express Negligence Provisions (I)Each well permit issued by the Town shall include the following language and regardless of whether such language is actually included in the well permit it shall be deemed to be included therein: OPERATOR DOES HEREBY EXPRESSLY AND IRREVOCABLY RELEASE AND DISCHARGE ALL CLAIMS,DEMANDS, ACTIONS,JUDGMENTS,AND EXECUTIONS OF ANY AND ALL KINDS WHICH IT OR ITS SUCCESSORS OR ASSIGNS EVER HAD,OR NOW HAS OR MAY HAVE, OR CLAIMS TO HAVE, AGAINST THE TOWN OF WESTLAKE,TEXAS, ITS DEPARTMENTS, AGENTS, OFFICERS, SERVANTS, EMPLOYEES, SPONSORS,OR VOLUNTEERS,THE INSPECTOR,AND EACH OF THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES,SUCCESSORS,AND ASSIGNS(THE TOWN OF WESTLAKE, TEXAS AND ALL OTHER FOREGOING PARTIES BEING HEREIN REFERRED TO COLLECTIVELY AS THE "INDEMNIFIED PARTIES")CREATED BY OR ARISING OUT OF PERSONAL INJURIES,KNOWN OR UNKNOWN,OR INJURIES TO PROPERTY,REAL OR PERSONAL,OR IN ANY WAY INCIDENTAL TO OR IN CONNECTION WITH THE PERFORMANCE OF THE WORD PERFORMED BY THE OPERATOR UNDER A WELL PERMIT. OPERATOR AGREES TO FULLY DEFEND, PROTECT, INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST EACH AND EVERY CLAIM, DEMAND,OR CAUSE OF ACTION AND ANY AND ALL LIABILITY,DAMAGES, OBLIGATIONS, JUDGMENTS, LOSSES, FINES, PENALTIES,COSTS,FEES, AND EXPENSES INCURRED BY THE INDEMNIFIED PARTIES CAUSED BY OR ARISING OUT OF, INCIDENTAL TO, OR OTHERWISE IN CONNECTION WITH ANY WORK PERFORMED BY OPERATOR UNDER A WELL PERMIT,INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES AND DEATH.IN CONNECTION THEREWITH WHICH MAY BE MADE OR ASSERTED BY OPERATOR, HIS AGENTS, ASSIGNS, OR ANY THIRD PARTIES.OPERATOR AGREES TO FULLY DEFEND, PROTECT, INDEMNIFY, AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM ANY CLAIMS, LIABILITIES,OR DAMAGES SUFFERED AS A RESULT OF CLAIMS, DEMANDS,COSTS,OR JUDGMENTS AGAINST THE INDEMNIFIED PARTIES, CREATED BY OR ARISING OUT OF THE ACTS OR OMISSIONS OF THE TOWN OF SOUTHEAKE OR ANY OF THE OTHER INDEMNIFIED PARTIES, OCCURRING ON THE DRILL SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS AND OIL WELLS INCLUDING, BUT NOT LIMITED TO,CLAIMS, LIABILITIES,AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, INCLUDING THE SOLE NEGLIGENCE OF ANY INDEMNIFIED PARTY, OCCURRING ON THE DRILL SITE OR OPERATION SITE IN THE COURSE AND SCOPE OF INSPECTING AND PERMITTING THE GAS AND OIL WELLS. IT IS UNDERSTOOD AND AGREED THAT THE INDEMNITY PROVIDED FOR IN THIS SECTIONIS AN INDEMNITY EXTENDED BY THE OPERATOR TO INDEMNIFY AND PROTECT THE TOWN OF WESTLAKE, TEXAS AND THE OTHER INDEMNIFIED PARTIES FROM THE CONSEQUENCES OF THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, WHETHER Page 12 of 44 Created on 4/25/08 THAT NEGLIGENCE IS THE SOLE OR CONTRIBUTING CAUSE OF THE RESULTANT INJURY, DEATH,AND/OR DAMAGE. THE FOREGOING IS NOT INTENDED TO REQU IRE THE OPERATOR TO INDEMNIFY THE INDEMNIFIED PARTIES FROM THE INDEMNIFIED PARTIES' GROSS NEGLIGENCE OR INTENTIONAL HARM, IRRESPECTIVE OF WHETHER THAT GROSS NEGLIGENCE OR INTENTIONAL HARM IS THE SOLE OR CONTRIBUTING CAUSE OF THE RESULTANT INJURY, DEATH,AND/OR DAMAGE. (2)All policies shall be endorsed to read"This policy will not be cancelled or non-renewed without thirty(30)days advanced written notice to the owner and the Town of Westlake, Texas, except when this policy is being cancelled for nonpayment of premium,in which case ten(10) days advance written notice is required". (3) Liability policies shall be written by: (i)carriers licensed to do business in Texas and with companies with A: VIII or better rating in accordance with the current Best Ivey Rating Guide, or (ii) non-admitted carriers that have a financial rating comparable to carriers licensed to do business in Texas and which are approved by the Town. (4)Liability policies shall name as"Additional Insured"the Town and other Indemnified Parties. Waivers of subrogation shall be provided in favor of all Indemnified Parties. (5)Copies of the pertinent portion of the insurance policies evidencing all coverage and endorsements required by this section must be presented to the Town before the issuance of the well permit, and the acceptance of a policy without the required limits and/or coverage shall not be deemed a waiver of these requirements.The Town gray,in its sole discretion,accept a certificate of insurance in lieu of a copy of the pertinent portion of the policy pending receipt of such document by the Town. After the issuance of the well permit,the Town may require the Operator to provide a copy of the most current insurance coverage and endorsements for review at any time. An administration fee of$150.00 will be charged to cover the cost of such review. (6)Claims-made policies shall not be accepted except for excess policies and Environmental Impairment(or Seepage and Pollution)policies. (b) Required Insurance Coverage: (1) Commercial or Comprehensive General Liability Insurance: a. Coverage should be a minimum Combined Single Limit of Ten Million Dollars ($10,000,000.00)per occurrence for Bodily Injury and Property Damage, with a Twenty Million Dollar($20,000,000.00)annual general aggregate. This coverage must include premises, operations, blowout or explosion, products, completed operations, blanket contractual liability, underground property damage,underground reservoir(or resources)damage, broad form property damage, independent contractors' protective liability and personal injury. b.Underground Reservoir(or Resources)Damage shall be on an occurrence basis, shall not be limited to sudden and accidental occurrences,shall not have a discovery or reporting limitation and shall not exclude damage to water tables,formation or strata. c. Environmental Impairment(or Seepage and Pollution) shall be either included in the coverage or written as separate coverage. Such coverage shall not exclude damage to the lease site. If Environmental Impairment(or Seepage and Pollution)Coverage is written on a"claims made" basis, the policy must provide that any retroactive date applicable precedes the effective date of the issuance of the permit. Coverage shall apply to sudden and accidental pollution conditions resulting from the escape or release of smoke, vapors, fumes, acids,alkalis,toxic chemicals, liquids, Gas and oils, waste material, or other irritants,contaminants or pollutants.Coverage shall be a minimum combined single limit of Ten Million Dollars($10,000,000.00), per occurrence. A discovery period for such peril shall not be less than one year after the occurrence. (2) Automobile Liability Insurance: Minimum Combined Single Limit of Ten Million Dollars ($10,000,000.00)per occurrence for Bodily Injury and Property Damage. Such coverage shall include owned, non-owned, and hired vehicles. Page 13 of 44 Created on 4/25/08 (3)Worker's Compensation Insurance: In addition to the minimum statutory requirements, coverage shall include Employer's Liability limits of at least One Million Dollars($1,000,000.00)for each accident. One Million Dollars($1,000,000.00)for each employee,and a One Million Dollars ($1,000,000.00)policy limit for occupational disease,and the insurer agrees to waive rights of subrogation against any of the Indemnified Parties for any work performed for the Town by the Operator. (4)Excess(or Umbrella) Liability Insurance: Minimum limit of Ten Million Dollars ($10,000,000.00)covering in excess of the preceding liability insurance policies. (5)Control of Well Insurance: a.Minimum limit of Ten Million Dollars($10,000,000.00)per occurrence,with a maximum deductible of Two Hundred and Fifty Thousand ($250,000.00)per occurrence. b.Policy shall cover the cost of controlling a well that is out of control, re-drilling or restoration expenses,and seepage and pollution damage. Damage to property in the Operator's care, custody, and control with a sub-limit of Five Hundred Thousand Dollars($500,000.00)may be added. SOUTHLAKE TO WESTLAKE CODE CONVERSION STOPS i r ec. - 6 Security.- (a)Acash b_endjft the amount of Two Hundred Thousand Dollars($200,000.00)covering each pad site must be delivered to the Town before the issuance of the well permit for the well (b)As to each well, the cash bond shall secure the obligations of the Operator to: (1)Comply with the road repair agreement and the iasurance provisions set forth in this Article; and (2)Pay fines and penalties imposed upon the Operator by the Town for any breach of the well permit or Zoning Ordinance. If fines are not paid within thirty(30)days of issuance, the well permit may be suspended or revoked by the Town. (3)Comply with the conditions of the applicable Specific Use Permit. (4)Comply with the performance obligations of this Article, including, but not limited to,the screening requirements. ; r ec® 56-261 Periodic Reports. -- (a)The Operator shall notify the Town of any change to the following information within ne(1) business day after the change occurs. ,_._ _- (1)The name, address,or phone number of the Operator; (2)The name, address,or twenty-four(24)hour phone number of the person(s)with supervisory authority over drilling, production,or operations activities; (3)The name, address, or phone number of the person designated to receive notices from the - Town, which person must be a resident of Texas that can be served in person or by registered or z^y certified mail; or (4)The Operator's Emergency Action Response Plan including"drive-to maps"from public rights-of-way to each area covered by the applicable Specific Use Permit and associated site plan. (b)The Operator shall provide a copy of any"incident reports"or written complaints submitted to the Railroad Commission or any other state or federal agency within fifteen(15)days after the Operator has notice of the existence of such reports or complaints. Page 14 of 44 Created on 4/25/08 (u)Beginning mm December 3lst after each well b completed, and continuing nn each December 3ls1 thereafter uub}-tzc{)perofor-n—otifi-es the Town that thun/c|} has been abandoned and the site / restored, the Operator b 11 prepare a written the information that—was /uc|ugeU fortUoopp|/cuU|c well permit that bavuootbeen mcporteUtotbrTovvu. loudditinu, tbeunuua| rcpoctxha|| includecVpicmofa|lioteroo| reports responses to a pipeline or well emergency,copies of operations and maintenance logs and u copy of the emergency action plan, ifupdated. Sec. 56-262 Amended Well Permits. (a)An Operator must submit au application 1othe Town's Planning and Development Services Department to amend uoexisting well permit, to commence drilling from n new drill site that is not shown on(or incorporated by reference as part of)the existing pen-nit,to relocate a drill site or operation site that is shown on(or incorporated by reference as part of)the existing permit, or to otherwise amend the existing permit in any matiner.The Director of Planning and Development Services shall review the proposed amendment to determine if an amendment to the applicable Specific Use Permit shall bc required. lfao amendment tmtbeupplicah1rSpccificDoe Permit is required the application for ao amended well permit must be processed uou new well permit application and shall include all application materials and the appropriate fee set forth in Section J6-37of this Article. /D Applications for amended well permits shall be in writing on forms provided by the Town and signed by the Operator, and shall include the following: a. An application fee in the amount of five thousand($5,000.00)dollars.The application fee is not refundable regardless of the outcome of the application; ' c. Any changes~ to the ^^'^`^^^'~^~'^~~`^'^^`~~with the.application for ^^'~ ~~'^~'^^well permit(if such information has previously' bceoprovid ' �tb�7�n�o\; - ' ' d. Such additional information as is��� ���� �����A�ioi��� demousto�cmon�pl�nccvvU�the `applicable Specific Use Permit and associated site plan and the provisions 0f this Article; and e. Such additional information as is reasonably required by the Inspector or the Administrator to prevent imminent destruction nf property or injury tnpersons. (h)I[ imthe'udgmentmftbeAdminis{zatoror the Inspector, the activities proposed bvthe amendment require uo inspection,un inspection fee of$l,ZUO.O0 shall bc charged. The Operator must pay the fee before the amended well permit will bc processed further. (c)Incomplete applications shall be returned to the Applicant within 3D business days. The Town shall return any application us incomplete if there isn dispute pending before the Railroad Commission regarding the determination of the Operator orwhere the Operator isin violation of any federal,state,or local regulation with respect to the proposed activities covered by the application. (d)lf the activities proposed hv the amendment are materially different and, inthe 'udQmcoko{ the Town oz the Inspector, might create a risk o[imminent destruction of property orinjury to persons that was not associated with the activities covered by the existing permit or that was not otherwise taken into consideration by the current permit or the applicable Specific Use Permit, the amendment must be processed as a new well permit application and an amendment to the applicable Specific Use Permit shall bcrequired. (c)A decision to deny an amendment to u well permit shall be provided tn the Operator in writing, including an cxp|uuuhon of the basis for the decision. The Operator may appeal any such denial tn the Board ofAldermen. (f)Nn amended well permit shall bc issued if the proposed activities are not in conformance with ` Page 15 nf44 Created on 4/25/08 the approved Specific Use Permit and associated site plan,provisions of this Article, Building Code, Fire Code and all other applicable Town ordinances. Sec. -263 Transfer of elB Permits. (a)A well permit may be transferred upon written request by the Operator with the consent of the Town: (1) If the transferee agrees to be bound by the terms and conditions of the current well permit, road repair agreement and demonstrates compliance with the pipeline regulations set forth in Division 2 of this Article;Check for correct reference. (2) If all information previously provided to the Town as part of the current well permit application is updated to reflect any changes; and (3) If the transferee provides the insurance and security required by this Article. (b)The insurance and security provided by the transferor shall be released if a copy of the written transfer is provided to the Town. The transfer shall not relieve the transferor from any liability to the Town arising out of any activities conducted prior to the trawfer. Sec. - 6 On-site Operation _ li eats. (a) It shall be unlawful to drill, re-drill,deepen,re-enter,activate or convert any well,the center of which, at the surface of the ground, is located: (1) Within feet( `)from any residence or the nearest property line of a residential subdivision or development and within feet from any religious._._. institution, public building, hospital building, day care facility park®r school which has been constructed or is on land that has been zoned or land use planned_before the date the application for a well permit has been filed with the Town. (2) Within feet( `)from any existing storage tank, or source of potential ignition. (3) Within feet( `)of any public street,road, highway,or right- of-way line. (4) Within feet( I)of any building accessory to the operation of the well. (S)Within feet( `}of a railroad right-of-way. (6)Within feet(`)from any fresh water well. (b)All distances in(a)and(b)above, shall be measured from the proposed well bore in a straight line,without regard to intervening structures or objects, to the closest exterior point of any object or structure listed in subparagraphs(1)through(9) above. (c)Erosion control measures shall be installed in compliance with the plan approved by Board of Aldermen as a condition of the Specific Use Permit, all applicable Town ordinances and the Public Works Department. (d) A drill site or operation site may only be allowed in a floodplain with the approval of the Town or, where applicable,the U.S. Army Corps of Engineers. (e) There shall be a locked entrance gate to the drill, production. and operation site. (f) All facilities used for parking, loading, unloading, driveways and all other vehicular access shall be constructed of concrete, unless an alternative material is approved by the Board of Aldermen as a condition of a Specific Use Permit or an approved variance.The surface for such facilities and drive approach must always be maintained in good condition and repair and meet the minimum requirements set forth in the Fire Code approved by the Board of Aldermen,as amended. Ordinance No. 880A 21 Page 16 of 44 Created on 4/25/08 (g) A temporary chain-link fence with all-weather screening fabric at least eight(8') feet in height shall e esta is-ie a—roan-d-t e entire drill site to obscure view of the drilling activities. A secured entrance gate shall be required.All gates are to be kept locked when the Operator or his employees are not within the enclosure. A `Knox Padlock"or a"Knox Box with a key"shall be provided to the Fire Chief to access the drill site to be used only in case of an emergency. In addition to the foregoing,the applicant shall also be required to comply with the screening ll'kp .E,' j.! _ vl�f re gwrements set forth in the Zoning Ordinance. (h)A masonry perimeter wall of a minimum of eight(8') feet in height shall be required to �l y enclose and visually screen the well and all associated equipment during post-drilling operations. `:The masonry perimeter wall shall have an architectural metal gate that shall remain locked when vfir the Operator or his employees are not within the enclosure.A `Knox Padlock"or a"Knox Box with a key" shall be provided to the Fire Chief to access the drill site to be used only in case of an ` emergency. In addition to the foregoing,the applicant shall also be required to comply with the `'.`� `` '� - screening requirements set forth in the Zoning Ordinance. ,a;14 (1)An 8' high foot high chain link fence with barb wire or similar device as approved by Board of -- Aldermen shall be installed around all equipment on the pad side and interior to the masonry screening wall. 0)The Board of Aldermen may modify the screening requirements set forth in paragraphs(h)- 0)as a condition of any Specific Use Permit. (k)No refining process or any process for the extraction of hydrocarbon products shall be performed at a drill site or operation site,except that a separator may be maintained for the separation of liquids from gas and oil.Any such separator may serve more than one well_ All production equipment on an operation site shall be maintained at all times. (I)No person shall place, deposit,or discharge or cause or permit to be placed, deposited, or discharged any oil, naphtha,petroleum,asphalt,tar,hydrocarbon substance, refuse, wastewater, brine or hazardous substance from any production operation or the contents of any container used in connection with any production operation in, into,or upon any public right-ofway, storm drain, ditch or sewer, sanitary drain or sewer,any body of water, or any private property in the Town. (m) All fire suppression and prevention equipment required by any applicable federal, state,or local law, including the requirements of-the Operator's emergency response plan,shall be provided by the Operator, at the Operator's cost, and the maintenance and upkeep of such equipment shall be the responsibility of the Operator.The Operator shall be required to keep adequate foam fire suppressant equipment and supplies at each drill site. (n)No Operator shall excavate or construct any lines for the conveyance of fuel,water,oil,gas and oil or petroleum liquids on,under, or through the streets, alleys or other properties owned by the Town without an easement or right-of-way license from the Town, at a price to be agreed r` upon,and then only in strict compliance with this section, other Town ordinances, and the specifications established by the_Department of Public Works. - ?? NIV Ordirr�n iNo. 880 A 22 (o)The digging up, breaking, excavating,tunneling, undermining, breaking up, or damaging of any public street or leaving upon any public street any earth or other material or obstruction,is prohibited unless the Operator has first obtained written permission from the Town, and then only in compliance with specifications established by the Town. (p)No well permit shall be issued for any well to be drilled within any of the public street or alley rights-of-way of the Town and/or future streets shown on the Master Thoroughfare Plan.No street shall be blocked or encumbered or closed due to any exploration,drilling,or production activities unless prior consent is obtained from the Town,and then only temporarily. (q)Annual Meeting with Town Required. Each Operator shall meet annually with representatives of the Town to review emergency response plans. These reviews shall be in accord with U.S. Department of Transportation and Railroad Commission requirements and the Operator will: Page 17 of 44 Created on 4/25/08 (1) Furnish or update a copy of the Emergency Response Plan; (2)Review the responsibilities of each governmental organization in response to an emergency or incident; (3)Review the capabilities of the Operator to respond to an emergency or incident; (4) IdentifS' the types of emergencies or incidents that will result in or require contacting the Town; and (5) Plan mutual activities that the Town and the Operator can engage in order to minimize the risks associated with well operation. (r)Blowout prevention. In all cases, blowout prevention equipment shall be used on all wells being drilled,worked-over or in which tubing is being changed.Protection shall be provided to prevent blowout during oil and/or gas operations as required by and in conformance with the requirements of the Railroad Commission and the recommendations of the American Petroleum Institute. The Operator must equip all drilling wells with adequate blowout preventors,flow lines and valves commensurate with the working pressures involved as required by the Railroad Commission. (s) Chemical and materials storage. All chemicals and/or hazardous materials shall be stored in such a manner as to prevent, contain,and facilitate rapid remediation and cleanup of any accidental spill, leak,or discharge of a hazardous material. Operator shall have all material safety data sheets(MSDSs)for all hazardous materials on site.All applicable federal and state regulatory requirements for the proper labeling of containers shall be followed.Appropriate pollution prevention actions shall be required and include,but are not limited to, chemical and materials raised from the ground(e.g., wooden pallets),bulk storage, instillation and maintenance of secondary containment systems,and protection from storm water and weather elements. (t)Closed loop mud systems. A closed loop mud system shall be used instead of lined reserve p its. (u)Disposal Well. No saltwater or other type of disposal well shall be permitted in the Town. (v)Drilling. Air,gas, or pneumatic drilling shall not be permitted. (w)Drilling Fluids. Low toxiTown glycols,synthetic hydrocarbons, polymers,and esters shall be substituted for conventional oil-based drilling fluids. (x) Drilling fluid storage pit. No drilling fluid mud, storage or reserve pits shall be located within the Town,except steel containers used in a closed loop mud system. (y)Drill stem testing. All open hole formation or drill stern testing shall be done during daytime hours and in no event may drill stem testing be performed during nighttime hours. Drill stem tests may be conducted only if the well effluent during the test is produced through an adequate oil and/or gas separator to storage tanks and the effluent remaining in the drill pipe at the time the tool is closed is flushed to the surface by circulating drilling fluid down the annulus and up the drill pi (z)Drip pans and other containment devices. Drip pans and other containment devices shall be placed or installed underneath all tanks,containers, pumps, lubricating oil systems, engines,fuel and chemical storage tanks,system valves,connections, and any other areas or structures that could potential leak,discharge,or spill hazardous liquids, semi-liquids,or solid waste materials, including hazardous waste inseparable by simple mechanical removal processes, and is made up primarily of natural material. (aa)Dust, vibrations, odors. All drilling and production operations shall be conducted in such a manner as to minimize, so far as practicable, dust, vibration,or noxious odors, and shall be in accordance with the best accepted practices incident to drilling for the production of oil,gas,and other hydrocarbon substances. All equipment used shall be so constructed and operated so that vibrations, dust, odor, or other harmful or annoying substances or effect will be minimized by the operations carried on at any drill site or from anything incident thereto, to the injury or annoyance of persons living in the vicinity; nor shall the site or structures thereon be permitted to become Page 18 of 44 Created on 4/25/08 dilapidated,unsightly or unsafe. Proven technological improvements in industry standards of drilling and production in this area shall be adopted as they become available if capable of reducing factors of dust,vibration and odor. (bb)Electric motors. Only electric prime movers or motors shall be permitted for the purpose of pumping wells.No electric power shall be generated on location. All electrical installations and equipment shall conform to Town ordinances and applicable national codes. (cc)Emergency response plan. Prior to the commencement of oil and/or gas drilling, or any other hydrocarbons production activities,Operator shall submit to the Inspector and Fire Marshal an emergency response plan as approved by Town. The Emergency Response Plan shall be kept current with any additions,modifications, and/or amendments concerning all construction related activities, oil and/or natural gas operations and production. Updated plans Ordinance No. 880 A 24 shall be submitted to the Inspector and Fire Marshal within two(2)business days after any additions, modifications, and,/or amendments to said plan(s).The Board of Aldermen shall be informed of any changes to the plan.A copy of the emergency response plan shall be kept on site. The emergency response plan shall at a minimum provide for prompt and effective response to emergencies. (dd)Fire prevention, sources of ignition. Firefighting apparatus and supplies as approved by the Fire Chief, or his designee,and required by any applicable federal,state, or local law shall be provided by the Operator, at the Operator's cost, and shall be maintained on the drill site at all times during drilling and production operations.The Operator shall be responsible for the maintenance and upkeep of such equipment. Each well shall be equipped with an automated valve that closes the well in the event of an abnormal change in operating pressure. All well heads shall contain an emergency shut off valve to the well distribution line. (ee)Frac or Surface Ponds. Fracturing ponds or surface fresh water ponds are not permitted within the Town. (ff) Fresh uvater wells. Within one hundred twenty(120)days of its completion date, each well shall be equipped with a cathodic protection system to protect the production casing from extemal corrosion.The Inspector may approve an alternative method of protecting the production casing from extemal corrosion.The Operator of a well shall provide the Inspector with a`°pre-drilling" and"post-drilling"water analysis and flow rate from any existing fresh water well within two thousand feet(2,000')of the well. Such water tests shall conform to the following testing requirements: (1)Water samples must be collected and analyzed utilizing proper sampling and laboratory protocol from a United States Environmental Protection Agency or Texas Commission on Environmental Quality approved laboratory (2) Well samples shall be analyzed prior to any drilling activity to document baseline water quality data of the well.A post-drilling sample shall be analyzed within three(3)months after the drilling begins. (3) Parameters to be tested for include but are not limited to: methane,chloride, sodium, barium, and strontium. If it is found that the fresh water well is no longer in use and without possibility of future use or if the fresh water well owner objects to having the water well tested,the owner of the fresh water well may waive the right to have the applicant test the water. (gg) Gas emission or burning restrictions. No person shall allow,cause or permit gases to be vented into the atmosphere or to be burned by open flame. No open flaring is permitted. (hh) Firefighter training. Each Operator shall be required to provide training and instruction to the Fire Department regarding well safety and emergency management protocol. Fire Department Page 19 of 44 Created on 4/25/08 training must occur prior to conducting drilling operations under each Operator's first well permit. Ordinance No. 880 A 25 (ii) Grass, reeds, trash. All drill and operation sites shall be kept clear of debris, poois of water or other liquids, contaminated soil, brush, high grass,weeds, combustible trash and other waste material within a radius of one hundred (100')feet around a pad site and other drill site or operation site equipment not located on the pad site. 6j) Wells within flight path. All wells intended to be located within the flight path of an airport shall require Federal Aviation Administration approval and each applicant must submit a fully executed and recorded avgation easement as part of the well permit application process. (kk)Hazardous materials plan. A hazardous materials management plan shall be on file with the Inspector and Fire Marshal. The hazardous materials management plan shall be kept current with any additions,modifications, and/or amendments to all construction related activities and oil and natural gas operations and production. Updated plans shall be submitted to the Inspector and Fire Marshal within two(2)business days. The Board of Aldermen will be notified of any such changes. (11) Organic Solvents. Organic solvents, such as trichloroethylene and carbon tetrachioride,shall not be used for cleaning any element, structure,or component of the drilling rig,platform,and/or associated equipment,tools, or pipes. (mm)Pipe Dope. Lead-free, biodegradable pipe dope shall be substituted for American Petroleum Institute(API) specified pipe dope. Sealant shall be used around pipe threads to ensure and maintain the integrity of the seal. (nn)Signs. (1)A sign shall be immediately and prominently displayed at the gate on the temporary and permanent site fencing erected pursuant to the requirements of this section. Such sign shall be of durable material, maintained in good condition and,unless otherwise required by the Railroad Commission, shall have a surface area of not less than two(2)square feet or more than four(4) square feet and shall be lettered with the following: a. Well name and number; b. Name of Operator, c. Address of property; d. The emergency 911 number;and e.Telephone numbers of two(2)persons responsible for the well who may be contacted twenty-four(24)hours a day in case of an emergency. (2)Permanent weatherproof signs reading"DANGER NO SMOKII'JG ALLOWED"shall be posted immediately upon completion of the drill site fencing at the entrance of each drill site or in any other location approved or designated by the Fire Chief of the Town. Sign lettering shall be four(4)inches in height and shall be red on white Ordinance Aro'880 A 26 background or white on a red background. Each sign shall include the emergency notification numbers of the Fire Department and the Operator,well and lease designations required by the Railroad Commission. (3) A"Muster Point"sign shall prominently be posted at the entrance of the drill site and the Town's Fire Marshal shall be notified of its location. The sign shall be metal and mounted on a steel post. The sign shall be white in color with red letters that are a minimum of 8"tall. In the event of a fire or discovery of a fire, smoke,or unauthorized release of flammable or hazardous materials on any property,the Operator shall immediately report such condition to the Fire Department and all capable persons on the drill site shall immediately report to the Muster Point. The Operator shall instruct all persons who go on the drill site of this emergency procedure prior Page 20 of 44 Created on 4/25/08 to their entrance onto the drill site. (oo)Storage of equipment. Onsite storage is prohibited on the operation site. No equipment shall be stored on the drilling or production operation site, unless it is necessary to the everyday operation of the well. Lumber, pipes,tubing and casing shall not be left on the operation site except when drilling or well servicing operations are being conducted on the site. The Fire Marshal shall be the entity that determines whether any and all equipment on the site shall constitute a fire hazard and must be removed. No refinery, processing,treating,dehydrating or absorption plant of any kind shall be constructed, established or maintained on the premises.This shall not be deemed to exclude a conventional horizontal gas separator. (pp)Storage tanks. (1) All tanks and permanent structures shall conform to the A.P.I.specifications unless other specifications are approved by the Fire Marshal.All storage tanks shall be equipped with a secondary containment system including lining with an impervious material.The secondary containment system shall be a minimum of three feet(3')in height and one and one-half(I °/o} times the contents of the largest tank in accordance with the Fire Code of the Town,and buried at least one foot(1 ') below the surface. Drip pots shall be provided at the pump out connection to contain the liquids from the storage tank. (2)All tanks shall be set back pursuant to the standards of the Railroad Commission and the National Fire Protection Association,but in all cases,shall be at least feet ')from any public right-of-way or property line. Each storage tank shall be equipped with a level control device that will automatically activate a valve to close the well in the event of excess liquid accumulation in the tank. (3) Meters, storage tanks, separation facilities, and other aboveground facilities shall not be placed in a floodway or within a one hundred (140)year floodplain. (qq)Surface casing. Surface casing shall be run and set in full compliance with the applicable rules and regulations of the Railroad Commission. Ordinance No. 880A 27 (if) Valves. Each well must have a shutoff valve to terminate the well's production. The Fire Department shall have access to the drill site to enable it to close the shut-off valve in an emergency.These valves shall be painted red and signed to show they are shut off valves. (ss) Waste disposal (1)Drilling mud,cuttings,liquid hydrocarbons and all other field waste derived or resulting from or connected with the drilling,re-working or deepening of any well shall be discharged into an aboveground self-contained tanlL All disposals must be in accordance with the rules of the Railroad Commission and any other applicable local, state or federal agency. Unless otherwise directed by the Railroad Commission, waste materials shall be removed from the site and transported to an off-site disposal facility not less often than one(1)time every thirty(30)days. Water stored in on-site tanks shall be removed as necessary. (2)All waste shall be disposed of in such a manner as to comply with the air and water pollution control regulations of the state,this Article, and any other applicable ordinance of the Town. (tt) l3'atchperson. The Operator must keep a watchman or security personnel on-site during the drilling or re-working of a well when other workmen are not on the premises. (uu)Environmentally Sensitive Areas. The drilling and production of gas and oil and accessing the drill site or operation site shall not occur within environmentally sensitive areas. Wells may have a target location or bottom-hole location that is under an environmentally sensitive area when the well is drilled directionally from a location outside the environmentally sensitive area. (vv)Heavy Vehicles. Access to all operational wells shall be limited to state or federal highways within the Town and to those routes otherwise designated in Article IV,Chapter 118 of the Westlake Town Code,governing the transportation of heavy vehicles on Town streets. (wtiv)Hydrogen Suede. If a gas or oil field in the Town is identified as a Hydrogen Sulfide(H2S) Page 21 of 44 Created on 4/25/08 field or if a well is producing Hydrogen Sulfide(H2S)gas,the Operator shall immediately cease operation of that well or facility. (xu)Bond for Surface Restoration. The surface locations of all dry wells and/or abandoned operations must be restored as nearly as possible to its original condition.The Town shall require the Operator to submit a performance bond to cover the costs of any clean-up necessary.The amount of the performance bond shall be determined by the Administrator, taking into account the scope of the restoration project and the cost of materials. (yy)Security System. (1)Alarm system. Within ten(10) days of completion of the perimeter_fencing, all sites shall have a fully operational security system that meets the following rggt ire!p, Ordinance No. 880 A 28 (a)Remotely Monitored Access Control System. All vehicular gates in the perimeter fencing shall be secured by a permitted,remotely monitored control access system.The system shall meet the following requirements: 1.Monitoring. The system shall be monitored by central monitoring facility capable of monitoring security related alarm systems and meeting all required state and federal guidelines. The central monitoring facility shall be staffed and operational at all times. 2.Access control. Gate access shall be secured by an access control system with an unlocking and re-locking mechanism that requires a card,numeric code,or other identification device for gate operation.The system shall record the identity of the entering party and the date and time of such entry. 3.Intrusion detection system. The system shall include a gate closure contact sensor that will be activated when the gate closure sensor is violated in any manner by non-identified access.The system shall be equipped to signal a control panel which activates an on-site audible signal and registers at the monitoring facility when an access breach is detected. 4. Open gate detection. The security system shall include an open gate detection alarm to notify - the monitoring facility if the gate closure sensors,once accessed,are not closed and thereby reactivated within five (5)minutes of being opened. 5. Exit sensor. Gates shall be equipped with a motion sensor, weight sensor or other device to unarm the gate for vehicles exiting the site. (b) Personnel exit gate. An exit-only gate for personnel shall be provided near the vehicular gate entrance. (c)Response to alarms. The alarm system shall be permitted with the Town of Southake Police Department(SPD) in accordance with the Town's alarm Ordinance. The monitoring facility shall notify the Operator and the SPD in case of security breach at the drill site. The Operator shall respond with an authorized representative on site within forty five (45) minutes of notification of alarm.. Pines for false alarms shall be as follows: plumber per calendar year Fin�,per each 1-3 $500.00 4-9 $1000.00 10-15 $1500.00 16-20 $2000.00 21+ $2000.00 and suspension of Gas Well Permit Ordinance No. 880 A 29 (2) Security Camera(s). At all times after the perimeter fence is in place,a minimum of one(1) security camera shall be mounted inside the perimeter fence. Signs shall be posted on the fencing of the site to indicate that any activity on the site may be recorded by video surveillance.The location of the security camera and picture resolution of the recordings shall be subject to the approval of the Police Chief. Camera systems shall be maintained in proper operating condition Page 22 of 44 Created on 4/25/08 and shall meet the following criteria: (a)capture clear video images of all traffic entering and exiting the gate(s); (b)capture clear video images of all production equipment located on the site; (c)be equipped with motion detection technology; (d)be equipped with panning technology to pan immediately to any motion detected on the site; (e)show the date and time of all activity on the footage; and (f) be capable of being viewed at the monitoring facility. Operator shall maintain video data for a period of 400 hours,At the request of the Town, the Operator shall produce to the Town any recorded views of the fenced area. Data from videos may only be requested by the Administrator or law enforcement officials. (zz) Tank battery equipment. All tank battery facilities shall be equipped with a remote foam line arrestor system. A sign shall be erected to clearly indicate the location of the foam line arrestor system. All connections and the sign for the remote foam line arrestor system shall meet industry specifications and be approved by the Fire Marshal's office. (aaa) Three pipe system. The three pipe system to extract oil and gas(see Illustration_)shall be utilized. Water storage tanks shall not be permitted on the pad site except for oil and gas separators used during drilling and fresh water tanks used during fracturing. (bbb) Utility lines. All utility lines run to the Operation and/or Drill site shall be buried. 56-265 Operations and Equipment Practices and Standards. (a)Adequate nuisance prevention measures shall be taken to prevent or control offensive odor, fumes, dust,noise and vibration. (b)No person shall permit any lights located on any drill site or operation site to be directed in such a manner so that they shine directly on public streets, adjacent property or property in the general vicinity of the drill site or operation site.Site lighting shall be shielded and directed downward and internally so as to avoid glare on public streets and buildings within Ordinance Mo. 880A 30 three hundred(300')feet. In addition, all operations shall meet the Town's Lighting Ordinance 693-13, as amended and Federal Aviation administration approval is required where applicable. (c)The Operator shall at all times comply with the rules and regulations of the Railroad Commission including but not limited to all applicable Field Rules. (d)Noise. (1)No well shall be drilled,redrilled or any equipment operated at any location within the Town in such a manner so as to create any noise which causes the exterior noise level when measured at the nearest protected use receiver's/receptor's property line or one hundred (100) feet from the nearest protected use structure(as measured to the closest exterior point of the building), whichever is closer to the receiver/receptor,that exceeds the ambient noise level: a. by more than ten(10)decibels during fracturing operations; b. by more than five (5) decibels during nighttime hours during backflow operations; and e. by more than five(5)decibels during daytime hours and more than three(3)decibels during nighttime hours for all activities not addressed in paragraphs a.and b., above. (2)The Operator shall be responsible for establishing and reporting to the Town the pre-drilling ambient noise level prior to the issuance of a well permit. Once the drilling is complete, the Operator shall be required to establish a new ambient noise level prior to the installation of any new noise generation equipment. In lieu of the foregoing, the Town may elect to perform the required noise testing and establish the ambient noise level,which must be adhered to. (3)Adjustments to the noise standards as set forth above in subSECTION(1)of this subSECTIONmay be permitted in accordance with the following: Permitted Increase Duration of Increase (dBA) (minutes)* Page 23 of 44 Created on 4/23/08 5 15 105 15 1 20 less than 1 *Cumulative minutes during any one hour (4)All workover operations shall be restricted to daytime hours. (5)The exterior noise level generated by the drilling, redrilling or other operations of all wells located within one thousand(1000')feet of a protected use shall be monitored Ordinance No. 880 A 31 when requested by the Town, to ensure compliance.The cost of such monitoring shall be borne by the Operator. (6)Acoustical blankets, sound walls, mufflers or other alternative methods as approved by the Inspector may be used to ensure compliance. All soundproofing shall comply with accepted industry standards and subject to approval by the Fire Marshal. (7) The sound level meter used in conducting noise evaluations shall meet the American National Standard Jnstitut&s standard for sound meters or an instrument and the associated recording and analyzing equipment which will provide equivalent data. (8)A citation may be issued for the failure to immediately correct the violation upon notice of violation by the Town or the Inspector. (9) During nighttime operations the operation of vehicle audible back-up alarms shall be prohibited or replaced with approved nonauditory signaling systems, such as spotters or flagmen. Deliveries of pipe, casing and heavy loads shall be limited to daytime hours, except for emergency situations.The Derrick Nfan and Driller shall communicate by walkie-talkie or other non disruptive means only when the Derrick Dian is in the derrick. Horns may not be used to signal for connection or to summon crew(except that a horn may be used for emergency purposes only). The Operator shall conduct onsite meetings to inform all personnel of nighttime operations noise control requirements. (10)A noise management plan shall be required and shall detail how the equipment used in the drilling, completion,transportation,or production of a well complies with the maximum permissible ambient noise levels of this Article. The noise management plan must be approved by the Director of Planning and Development Services and must: a. Identify operation noise impacts; b.Provide documentation, if applicable, establishing the ambient noise level prior to and after the installation of the noise-generation equipment verifying compliance with this section; and c.Detail how the impacts will be mitigated. In determining noise mitigation, specific site characteristics shall be considered,including but not limited to the following: 1.Nature and proximity of adjacent development, location, and type; 2. Seasonal and prevailing weather patterns, including wind directions; 3. Vegetative cover on or adjacent to the site; 4. Topography, and Ordinance No 886612 5. Operation and site noise management measures which may include, but not be limited to: use of critical grade mufflers on generators and motors; use of structural noise curtains,walls,or enclosures; and best management practices by limiting or eliminating noisier operations, such as tripping, deliveries of pipe, casing and heavy loads, use of horns for communication, and operation of vehicle audible back-up alarms during nighttime hours. (e) In parallel to gas and oil gathering pipeline, a flow back line may be installed to handle water and gas and oil flow back following well fracture treatment. (f) Except in the case of an emergency, well servicing operations and any deliveries to the site Page 24 of 44 Created on 4/25/08 shall be scheduled to occur during daytime hours. The time limits set forth herein do not apply during the well drilling and well completion process. (g) The Operator shall immediately notify the Town of any substantial accumulations of dirt, dust, mud or other debris deposited on Town thoroughfares by vehicles involved in the well drilling or servicing or pipeline installation process.The Operator shall be responsible for removing accumulations of dirt, dust,mud or other debris from the Town thoroughfares on a daily basis. If for safety or other reasons, the Town�elects to perform the removal,the cost of such removal shall be paid by the Operator. (h)Within 30 days of the completion of the well, within 30 days of re-working a well, or within such timeframe as determined by the Administrator,the area around the well shall be cleaned up and cleared of all material and equipment, holes or excavations filled,and the land graded and returned to its original condition including replanting of vegetation to match the surrounding area. (i)The drilling rig shall be removed from the site within 30 days of the completion of all drilling activities indicated on the applicable well permit. 0)No person shall place, deposit, or discharge or cause or permit to be placed, deposited,or discharged any oil, naphtha, petroleum, asphalt,tar, hydrocarbon substance, refuse,wastewater, brine or hazardous substance from any production operation or the contents of any container used in connection with any production operation in, into,or upon any public right-ofivay, storm drain, ditch or sewer, sanitary drain or sewer, any body of water, or any private property. (k)Compression facilities shalt be prohibited in the Town. (I)Truck shakers shal I be installed along the private access road to remove mud from vehicles prior to entering the public right-of-way. Sec. 56-266 e- or in -', -, ell; tic'c. Any person who intends to re-work a well using a drilling rig or to fracture stimulate a well after initial completion shall give written notice to the Town at least twenty(20) days before the activities begin. The notice shall identify where the activities will be conducted and shall describe the activities in reasonable detail, including but not limited to the duration of the activities and the time of day they will be conducted.The notice must also provide the address and twenty-four(24)hour phone number of the person conducting the activities. The person conducting the activities shall post a sign, in English and Spanish, on the property giving the public notice of the activities, including the name, address, and twenty-four(24) hour phone number of the person conducting the activities. No well shall be re-worked without the approval of the Inspector. If the Inspector determines that an inspection is required, the actual cost of the inspection shall be assessed against the respective Operator's application fund balance required by qE ION56-256 of this {'cI.e.. ec. , ell.) ctions. (a)The following inspections shall be required: (1)Surface Casing. An Operator must set and cement sufficient surface casing to protect all usable-quality water strata, as defined by state law. The Operator shall notify the Inspector in writing at least seventy-two (72)hours prior to setting and cementing surface casing. In addition, the following shall be required: a. Centralizers must be used at an interval of one(1)centralizer per one hundred (100') feet,or ten(10) centralizers per one thousand(1,000') feet. b. New surface casing is required. c. Proper floating equipment shall be used. d. Class "M"or Class"C"cement with accelerators shall be used. Page 25 of 44 Created on 4/25/08 e. The Operator shall circulate cement to surface; if not, the Operator shall cement with one(1) inch tubing and top off. f.The Operator shall wait on cement a minimum of twelve (12) hours prior to commencing further drilling operations. g. The Operator shall test the blowout preventer before drilling out of surface casing to one thousand (1,000)psi. (2) Completion. The Operator shall notify the Inspector in writing at least seventy-two(72)hours prior to starting completion procedures such as fracturing and perforating. The well must be equipped with a blowout preventer or x-mas tree in place before this operation is commenced. If a bridge plug is set over a producing formation prior to additional completion, it must be pressure- tested to a sufficient pressure to ensure that it is not leaking. (3)Pipeline. The Operator shall notify the Inspector in writing at least seventy-two(72)hours prior to the first sale. (4)Final Inspection. After the site has been cleaned up and screened,the Operator shall notify the Inspector for a final inspection. Prior to the final inspection,the Operator must provide the Town with geographic coordinates of the well bore, using the Forth American Datum 1983 (NAD 83), Texas State Plane-North Central Zone(4202), in United States feet. (5)Radiation monitoring and mitigation—to be added by Westlake (b) The Inspector shall conduct periodic inspections at least every six(6) months of all permitted wells in the Town to determine that the wells are operating in accordance with the requirements of this Article and all regulations of the Railroad Commission.The actual cost of each inspection shall be assessed against the respective Operator's application fund balance required by SECTION56-256 of this Article', ec. -26 Supple' � ri 'ti Drilling. (a) Supplemental drilling to deepen or directionally drill a well that has not been abandoned shall be conducted in accordance with the conditions of the applicable Specific Use Permit and associated site plan and the well permit for the well. (b)The Operator shall provide the Town with a copy of additional Railroad Commission permits that allow drilling to a deeper depth. Sec. 66-269 ando . v ' nt € f Wells and Pipelines. (a)Upon abandonment of a well or drill site, within sixty(60)days,the well shall be plugged in accordance with Railroad Commission standards, the site shall be cleaned and cleared of all material and equipment,holes or excavations filled, and the land graded and returned to its original condition including replanting of vegetation to match the surrounding area.All well casings shall be cut and removed to a depth of at least ten (10)feet below the surface. Additionally, the Operator shall mark the exact location of plugged and abandoned wells with a steel marker not less than four inches in diameter set in cement and extending at least four feet above mean ground level. The Operator name, lease name and well number and location, shall be welded, stamped or otherwise permanently engraved into the marker's metal. A plugged and abandonment marker may not be removed without the approval of the Board of Aldermen. (b) Structures may be built no closer to an abandoned well than is permitted pursuant to state law, including, but not limited to, the applicable rules and regulations of the Railroad Commission. (c) Within sixty(60) days after abandonment of a pipeline,the line must be purged and plugged Page 26 of 44 Created on 4/25/08 in accordance with the rules and regulations of each governmental agency with jurisdiction over the activity, including, but not limited to,the Railroad Commission, Environmental Protection Agency, and the Texas Commission on Environmental Quality. The Operator shall also be required to comply with the provisions of Division 2 of this Article, governing pipeline safety and operations. (d)Abandonment of a drill site must be approved by the Inspector and approval requires completion of the following by the Operator: (1)The derrick and all appurtenant equipment thereto shall be removed from the drill site; (2)All equipment, materials,and other surface installations shall be removed from the drill site; (3)All concrete foundations, piping, wood,guy anchors and other foreign materials regardless of depth, except surface casing, shall be removed from the site; (4)All holes and depressions shall be filled with clean,compactable soil; (5) All waste,refuse or waste material shall be removed from the drill site; and (6)All other requirements of this Article have been met,including;but not limited to, restoration of the drill site. (e) In accordance with SECTION56-267 of this Article, the Operator shall request a final inspection of a well intended to be abandoned and furnish the following information to the Inspector: (1)A copy of the W-3A"Notice of Intention to Plug&Abandon"and 'W-3 Plugging Record" forms on the same date these forms are submitted to the Railroad Commission;and (2)A notice of intention to abandon under the provisions of this SECTIONand stating the date such work will be commenced. Abandonment may then be commenced on or subsequent to the date so stated and shall take no longer than forty-five(45)days once commenced. (f)Alt abandoned wells or drill sites shall meet the most current abandonment requirements of the Railroad Commission and this Article prior to the issuance of any building permit for development of the property. (g)The Director of Planning and Development Services shall indicate the location of each plugged and abandoned well on the Town's land use map. Sec. 56-270 Clean.Up,.. (a)Cleanup after tit-ell servicing. After the well has been completed, or plugged and abandoned, the Operator shall clean the drill site or operation site, complete restoration activities and repair all damage to public property caused by such operations within thirty(30)days. (b)Cleary-up after spills, leaks and malfunctions. After any spill, leak or malfunction, the Operator shall remove or cause to be removed to the satisfaction of the Fire Marshal and the Inspector ail waste materials from any public or private property affected by such spill, leak or malfunction.Clean-up operations must begin immediately. The owner shall be subject to criminal citation and a fine of up to two thousand($2000.00)a day per violation for each day the violation is permitted to continue. (e)Painting.All production equipment shall be painted and maintained at all times, including wellheads, pumping units,tanks, and buildings or structures. When requiring painting of such facilities, the Director of Planning and Development Services shall consider the deterioration of the quality of the material of which such facility or structure is constructed,the degree of rust, and its appearance. Paint shall be of a neutral color, compatible with surrounding uses.Neutral colors shall include sand,gray and unobtrusive shades of green, blue and brown, or other neutral colors approved by the Director of Planning and Development Services. Notwithstanding the Page 27 of 44 Created on 4/25/08 foregoing, the Board of Aldermen may require the use of specific paint colors, on a case-by-case basis, as part of the applicable Specific Use Permit. (d)Blowouts. In the event of the loss of control of any well, Operator shall immediately take all reasonable steps to regain control regardless of any other provision of this Ordinance and shall notify the Administrator and Fire Marshal as soon as practicable. If the Administrator or Fire Marshal, in his opinion, believes that danger to persons and property exists because of such loss of well control and that the Operator is not taking or is unable to take all reasonable and necessary steps to regain control of such well,the Administrator or Fire Marshal may then employ any well control expert or experts or other contractors or suppliers of special services, or may incur any other expenses for labor and material which they deem necessary to regain control of such well. The Town shall then have a valid lien against the interest in the well of all working interest owners to secure payment of any expenditure made by the Town pursuant to such action of the Administrator or Fire Marshal in gaining control of said well. Sec. -271 Technical Advisor. The Town may from time to time employ a technical advisor or advisors who are experienced and educated in the oil and gas industry or the law as it pertains to oil and gas matters. The function of such advisor(s)shall be to advise, counsel or represent the Town on such matters relating to oil and gas operations within the Town as the Town may want or require and the effect thereof,both present and future, on the health, welfare,comfort and safety of the citizens of the Town. In the event such technical advisor(s) is employed for the purpose of advising, counseling or representing the Town relative to an Operator's unique and particular set of circumstances,case or request relating to this Article, then the cost for fees or charges assessed pursuant to this Article shall be borne entirely by Operator. Prior to the employment of a technical advisor,the Town shall inform the Operator of the intended scope of work and the estimated costs and expenses. The employment of a technical advisor shall be approved by the Board of Aldermen. eca -2 Remedies f the-Town. (a) If an Operator or his/her officers,employees, agents, contractors, subcontractors or representatives fails to comply with the conditions of the applicable Specific Use Permit and associated site plan or any requirement of a well permit(including any requirement incorporated by reference as part of the permit),or any applicable provisions of this Article or any other Town ordinances, the Town shall endeavor to give written notice to the Operator specifying the nature of the alleged failure and giving the Operator a specified time to cure, taking into consideration the nature and extent of the alleged failure,the extent of the efforts required to cure, and the potential impact on the health,safety, and welfare of the community. If circumstances warrant proceeding without notice,no notice shall be required. In any case, failure to give such notice shall not prohibit the Town from pursuing any available remedy. (b) If the Operator does not cure the alleged failure within the time specified by the Town, the Town may notify the Railroad Commission and request that the Railroad Commission take appropriate action. In addition,the Town may pursue all other remedies allowed by law, including, but not limited to, the following: (1) The Administrator may suspend the well permit until the alleged failure is cured; and (2) The Administrator may revoke the well permit if the Operator fails to initiate and diligently pursue a cure; and (3) The Administrator may seek recourse against the security delivered pursuant to this section; and (4) A criminal citation may be issued for violation of the Specific Use Permit,this Article,or any Page 28 of 44 Created on 4/25/08 other ordinance or order of the Town (c)The Operator may appeal a decision to suspend or revoke the well permit to the Board of Aldermen in accordance with the provisions of SECTION56-275 of this Article. Sec. 95-273 nforce ent, Right of nt . The Administrator, Fire Marshal and the Inspector are authorized and directed to enforce this Article, the terms and conditions of any approved Specific Use Permit,and the provisions of any well permit. Whenever necessary to enforce the foregoing,or whenever there is reasonable cause to believe there has been a violation of any of the foregoing, Administrator, Fire Marshal and/or the Inspector may enter upon any property covered by this Article at any reasonable time to inspect or perform any duty or requirement imposed by this Article. If entry is refused,the Town shall have recourse to pursue every remedy provided by law and equity to gain entry. Sec. 56 -274 Public Information. (a)Public Information regarding well permit activity. (1)After approval of a permit application, the Operator shall submit to the Inspector an accurate written timeline account of all planned operational events associated with the permit. The account must be updated weekly and must thoroughly describe the events that will occur. Events to be documented shall include, but are not limited to, site preparation and grading, site construction of the drilling rig and accessory structures,the expected amount of time spent drilling on site,all casing installation, testing, disassembly of the drilling rig, pipeline installation, fracture stimulation,maintenance, installation of production facilities, site cleanup, and production. (2)The Operator shall submit an educational letter detailing operations within fifteen(15)days of approval of the well permit to all property owners within 2,000 feet of the permitted bore hole(s). If multiple wells are permitted,the Operator may consolidate information regarding each well into a single letter. The letter shall detail typical operations associated with oil and gas drilling activity with an intended audience of the general public. The topics to be detailed shall include, but are not limited to, site preparation,site development and construction, drilling,casing, fracturing,pipeline construction, production,transportation, and general weekly, monthly,and yearly maintenance of the operation site. (3)At least once each calendar year, the Operator shall attend a Town-wide Westlake Program for the Involvement of Neighborhoods("SPIN°)meeting and respond to citizen questions and complaints.The Director of Planning and Development Services shall notify each Operator of the time and date of the annual SPIN meeting that the Operator shall attend. Sec. 56-275 Variance; Appeal Procedure. (a)An Applicant for a permit or other approval required by this Article may apply for a variance from the requirements of this Article by submitting to the Director of Planning and Development Services a written request for variance. The request must include the following: (1) Description of the requested variance and an explanation of why it should be granted; and (2) Description of alternatives considered and why each is not the preferred alternative;and (3) Description of the economic consequences if the variance is not granted; and (4) Description of how the level of health, safety and welfare of the public will be maintained if the variance is granted; and (5) A site plan of the site visually depicting the requested variance if the request for the variance involves the location or orientation of persons or property. (b) The Director of Planning and Development Services shall review the application and may Page 29 of 44 Created on 4/25/08 place the variance request on the Board of Aldermen agenda for consideration. In considering the variance the Board of Aldermen may take into account the following: (1) Whether the operations proposed are safe and reasonable under the circumstances and conditions prevailing in the area, considering the particular location and the character of the improvements located there; (2)How the operations proposed compare to available alternatives; (3)Whether the operations proposed would conflict with the orderly growth and development of the Town; (4) The economic consequence if the variance is not granted; (5) Whether the operations proposed adequately protect the health,safety and welfare of the public; and (6) Whether the operations proposed provide acceptable access for fire personnel and fire fighting equipment. (c)Approval of a variance requires that a minimum of Board of Aldermen members vote in favor of the approval. The details of each action granting or denying the requested variance shall be recorded and entered in the files of the Town Secretary, and the Director of Planning and Development Services shall forward a letter to the Applicant stating whether the Board of Aldermen has approved or denied the variance request and listing any conditions placed upon an approval. (d) If within 45 days of receiving the request for a variance,the Director of Planning and Development Services does not place the variance request on the agenda for Board of Aldermen consideration the variance request shall be considered routine in nature and shalt be deemed approved. ARTICLE I//. OIL AND GAS PIPELINE Sec. 66-306 Purpose. It is hereby declared to be the purpose of this Division to establish reasonable and uniform limitations, safeguards,and regulations for present and future operations related to transporting oil and gas and other substances produced in association with oil and gas, within the corporate limits of the Town to protect the healthy, safety and general welfare of the public; minimize the potential impact to property and persons; protect the quality of the environment; and encourage the safe and orderly transport of oil and gas resources. Sec. 56-307 Definitions. The words and phrases used in this Division are specifically defined in SECTION56-252 of this Article. All technical industry words or phrases related to the transportation of oil, gas, hydrocarbons, and other substances produced in association with oil, gas and other hydrocarbons not specifically defined shall have meanings customarily attributable thereto by prudent Operators in the oil and gas industry. Sec. 56-308 General Requirements and Minimum Design Standards. (a) A pipeline permit is required as follows: Page 30 of 44 Created on 4/25/08 (1) It shall be unlawful for any person, acting either for himself or as an agent, employee, independent contractor or servant of any other person, to commence to construct, install, operate or reconstruct a pipeline or any SECTIONof a pipeline or to operate any pipeline or to assist in the construction, installation, operation or reconstruction of a pipeline if a lawful pipeline permit has not been obtained. (2)Any applications to construct, lay,rework, wrap or otherwise lower or replace existing pipelines or install monitoring or recovery wells shall be submitted to the Town in a form prescribed by the Town. (3)Each application for a pipeline permit shall be accompanied by five(S) paper sets and one(1) electronic set of plans showing the dimensions and locations of the pipelines and related items or facilities within the subject right-of-way or easement,as well as all proposed lift stations,pumps or other service structures related to such pipeline and the location,type and size of all existing utilities, drainage, right-of-way and roadway improvements.The plans must additionally show the elevation and location of all known public utilities within fifteen feet(IS')of the centerline of the proposed pipeline. (4)Within thirty(30)days after the date of filing of said application and plans, the Town shall send notice to the applicant as to whether the application will be accepted for processing and the total charge due. If the application is rejected,reasons for rejection of the application shall be provided in writing. (5)No pipeline permit may be issued unless and until a Specific Use Permit is approved by the Board of Aldermen for the well or wells within the Town, intended to be served by the pipeline. (b)No pipeline for the transportation of gas,oil or hydrocarbons from wells to be drilled shall be constructed or laid except on rights-of-way or easements owned by the owners or Operators of wells or third party pipeline companies,or upon designated drilling tracts and upon rights-of-way or easements necessary to connect future wells to present lines. (c) In order to enable the holder of each pipeline permit to move gas, oil, water or other products to or from the location of a well,the holder of each pipeline permit shall apply to the Town for an easement on,over, under, along or across the Town streets, sidewalks, alleys and other Town property for the purpose of constructing, laying, maintaining, operating, repairing, replacing and removing pipelines so long as production or operations may be continued under any pipeline permit issued pursuant to this Division;provided, however, such permittee shall: (1)Not interfere with or damage existing utilities including but not limited to: water, sewer or gas tines,storm drains,electric Imes or the facilities of public utilities located on,raider or across the course of such right-of- way. (2)Furnish to the Inspector a site plan showing the location of such pipelines for the transport of gas,oil or hydrocarbons. Said site plan shall conform to the Town's standards for site plans, pursuant to SECTION40 of the Zoning Ordinance, as amended. (3)Construct such lines or cause same to be constructed out of new pipe. (4)Grade,level and restore such property to the same surface condition, as nearly practicable, as existed before operations were first commenced. (5) All required agreements pursuant to this division shall be completed, reviewed,and resolved by the Town Engineer,Town Attorney, Administrator, and, by Board of Aldermen, prior to the determination of any pipeline permit as being administratively complete. (d) Pipeline trenches shall be backfilled and compacted to ninety five percent(95%) standard density proctor in eight inch (8") lifts and pipelines shall be constructed so as to maintain a minimum depth of eight feet(8') below the finished grade except in public rights-of-way,where minimum cover to the top of the pipe shall be at least eight feet(8')below the bottom of any adjacent roadside ditch. Public roads shall not be crossed by open cut. During the backfill of any pipeline excavations, 'Buried Pipeline"warning tape shall be buried one foot(1')above any such pipeline to warn future excavators of the presence of a buried pipeline. (e) In all cases in which one or more residential lots in a proposed subdivision are crossed or Page 31 of 44 Created on 4/25/08 come by or come within one hundred feet(100'), of any existing oil or gas pipeline or pipeline easement,the subdivider shall,prior to and as a condition of Town approval of the subdivision, execute the following waiver and hold harmless agreement, which shall be duly acknowledged in the manner provided by law, and which shall thereafter be recorded in the appropriate deed or other permanent county records: "(Subdivider Name), by and through its duly undersigned and authorized officer, does hereby state that it fully realizes that it is applying for a permit from the Town of Westlake to build within one hundred feet(100')of an existing oil or gas pipeline or pipeline easement, and that the Town of Westlake considers building near such pipeline or pipeline easement to have certain inherent dangers, including,but not limited to, explosion and release of noxious, toxic and flammable substances. For the aforementioned reasons(Subdivider Name)hereby RELEASES and agrees to forever HOLD HARMLESS the Town of Westlake,Texas,its officers, officials, employees, successors and assigns from all liability in any way arising from the building,use or habitation of(structure described in the said permit)." (f) In all cases in which one or more residential lots in a proposed subdivision are crossed or come by or come within one hundred feet(100')of any existing oil or gas pipeline or pipeline easement, the subdivision shall provide a note on the face of the development plan and record plat stating that the subdivision is crossed or is located within one hundred feet(100')of an existing oil or gas pipeline. (g)Construction, repair and/or maintenance of all pipelines,gathering lines,and production lines shall meet or exceed the minimum criteria established by the statutory-or regulatory requirements of the state and federal governments for oil and gas pipelines. (h)Transmission pipelines, gathering lines,and production lines within the Town limits shall be constructed in accordance with this Division and shall be designed and constructed to the latest standards mandated by the United States Department of Transportation (DOT)and Railroad Commission for pipelines operating within a Class 3 location in accordance with 49 CFR 192. 111. (i) Pipelines subject to this Division shall be constructed with an automated pressure monitoring system that detects leaks and shuts off any line or any SECTIONof line that develops a leak. In lieu of such system,the pipeline Operator may have 24 hour pressure monitoring of the pipeline system which provides monitoring of the pipeline within the Town limits.Any monitoring system(s)shalt be keyed to or required to notify the Town's emergency response providers in order to provide them with immediate notice of any leak. 0)Construction of the pipeline must commence within six(6)months of approval by the Town or otherwise the pipeline permit expires. A one-year extension of time may be granted if existing conditions are the same, as determined by the Director of Planning and Development Services. Once construction has commenced, the pipeline permit shall continue (i) until the pipeline covered by the pipeline permit is complete and the site restored.. or(ii)one year has elapsed since the approval date of the pipeline permit, whichever occurs first. (k) The Administrator may require that sections of proposed pipeline be constructed at deeper depths based upon future Town infrastructure needs. The Administrator may also require that a pipeline relocated should it conflict with the proposed alignment and depth of a gravity dependent utility. Sec. 5 -309 New Pipeline Permit Application. (a)At least forty-five (45) days prior to the scheduled commencement of the construction of new pipeline,the pipeline Owner or Operator shall submit an application and pay a fee in the amount of , for a pipeline pen-nit to the Town pursuant to its intention to construct the pipeline and shall submit the following information in the application for a pipeline permit: Page 32 of 44 Created on 4/25/08 (1) The name, business addresses and telephone numbers of the pipeline Owner or Operator. (2)The names,titles and telephone numbers of the following: a. The person submitting the application and petition for the pipeline construction; b. The person designated as the principal contact for the submittal; c. The person designated as the twenty-four hour emergency contact; and d. The person or firm that will operate the pipeline. (3) The origin point and the destination of the segment of the pipeline to be constructed. (4) A text description of the general location of the planned pipeline. (S) A description of the substance to be transported through the pipeline. (6) A copy of the substance material safety data sheet(MSDS). (7) The maximum allowable operating pressure on the pipeline,along with the Specified Minimum Yield Strength(SMYS)of the pipe, its pressure class,and design calculations in accordance with 49 CFR 192.105, assuming a Class 3 or better location. (8) The normal operating pressure range of the pipeline,not to exceed the maximum allowable operating pressure as designated above. (9) Engineering plans,drawings and/or maps with summarized specifications showing the horizontal pipeline location, pipeline covering depths,and location of shutoff valves(the location of shutoff valves must be known in order for emergency responders to clear area for access valves.) To the extent that information can be obtained,drawings shall show the location of other pipelines and utilities that will be crossed or paralleled within fifteen(15')feet of the proposed pipeline right-of-way. (10) A description of the consideration given to matters of public safety and the avoidance,as far as practicable, of existing inhabited structures and congregated areas. (11) Detailed cross SECTIONdrawings for all public street right-of-way and easement crossings (12) Methods to be used to prevent both internal and external corrosion. (13) A binder or certificates of all bonds and insurance as required under this Division. (14) All application materials required pursuant to the Town's Tree Preservation Ordinance,as it may be amended, including a tree survey measured from the outer edge of any improvements, construction areas, development, equipment, materials,temporary roads, access easements, and/or built structures, extending twenty-five(25)feet,without regard to intervening structures or objects. (15) A proposed alignment strip map showing name and address of al affected property owners. (b)If the application for a pipeline permit is approved and a permit is issued, the pipeline Owner or Operator shall at all times be required to maintain a fund with the Town containing a minimum running balance of fifteen thousand($15,000.00)dollars for each permit application approved. Tle funds shall be maintained by the Town in a separate non-interest bearing account from which the Town shall reimburse itself for the administrative expenses, consulting fees, contracting fees or the funding of Inspector position(s).The Town shall invoice and notify the pipeline Owner or Operator, in writing, of any deduction from the application fund, and, within fifteen (15) days of receipt thereof,the pipeline Owner or Operator shall pay to the Town, for deposit into the application fund,the amount necessary to return the balance to fifteen thousand ($15,000.00) dollars. The Town shall return the remaining account balance to the applicant or the applicant's approved assign if the pipeline subject to the pipeline permit is disconnected from all sources or supplies of gas, hazardous liquids and chemicals, and capped or sealed at the ends and/or removed in accordance with the provisions of this Division.No pipeline permit shall be issued if the proposed activities are not in conformance with this Article and all other applicable Town ordinances,state and federal law. Page 33 of 44 Created on 4/25/08 Sec. 56-3 10 Permit Approval. (a)The applicant shall submit an application as described in SECTION56-308. Any application submitted that is determined to be administratively incomplete shall be returned to the applicant within ten(10)business days of the submittal date along with a letter documenting the deficiencies of the application, if any. (b) After the submission of an administratively complete application, an administrative conference may be conducted to seek resolution of any substantive, nonresolvable technical issues. The conference shall be conducted with the Pipeline Review Committee, which shall consist of the Town Engineer, Fire Marshal, Inspector, Town Ordinance No. 880 A 45 Director of Planning and Development Services and, if necessary,a third-party technical advisor. The costs associated with the technical advisor shall be borne by the applicant.A quorum of at least three(3)members must be present to conduct a conference with at least one(1)of the members present at the conference having emergency management expertise. Any decision by the Pipeline Review Committee is final. (c) From time to time the Town may need to obtain an independent study or analysis of an application or petition to construct a new pipeline.The Town,upon approval by the Board of Aldermen after recommendation by the Pipeline Review Committee, shall engage duly qualified independent consultant(s)or contractor(s)to conduct such special studies or analyses as required to fully evaluate and act upon an application for a new pipeline.The actual cost for said consultant or contractor, including the cost of any inspections deemed necessary by the Pipeline Review Committee or otherwise required by this Division, shall be billed directly to the pipeline Owner or Operator's fund balance established pursuant to SECTION58-309(h), of this Article. (d) The pipeline Owner or Operator shall give notice forty-eight(48)hours prior to the commencement of pipeline construction to all residents and business establishments that are located within five hundred feet(500')of the proposed centerline of the pipeline. (e) Upon completion of pipeline construction the pipeline Owner or Operator shall provide the Town with as-built or record drawings of the pipelines within sixty(60)calendar days. Accuracy of the record drawings shall meet a survey level of one foot(l')to fifty thousand feet (50,000 j. The scale of the record drawings shall be a minimum of I"=40'.The drawings shall also be supplied in as DFF digital file format with the location tied to one(1) nearby GPS (global positioning system),Town monument. If the new pipeline length exceeds one thousand feet (1,000') within the Town the pipeline shall be tied to at least two(2)GPS Town monuments. (f)Any change in service of a pipeline not previously addressed by this Division to gas, hazardous liquid or chemical service must be reviewed in accordance with the new pipeline review procedure outlined herein, as if it were new pipeline construction. (g)A preconstruction conference with the Pipeline Review Committee shall be required prior to the commencement of pipeline construction. Sec. 56-311 Pu li ducation. (a) In keeping with the Natural Gas Pipeline Safety Act of 1968 and 49 CFR 192.614,"Damage Prevention Program," 49 CFR 192.615, "Emergency Plans,"the Hazardous Liquids Safety Act of 1979, and 49 CFR 195.408,"Communications,"49 CFR 195.440, "Public Awareness,"and the Community Right-to-Know Act, 40 CFR Parts 350-371: (1) Each pipeline Owner or Operator shall maintain a public education program that is communicated to residents and business establishments within one thousand feet(1,000')of the centerline of pipeline. Page 34 of 44 Created on 4/25/08 (2) Pipeline information communicated pursuant to subSECTION(1)shall contain the following subjects: a. Pipeline location; b. Material transported within the pipeline; c. Pipeline markers; d. How to recognize a pipeline; e. How to report a pipeline emergency; f. Contact information regarding underground utility locations; g. Additional requirements for excavations near a home or business;and h. Response needs during a pipeline, emergency, including instructions for sheltering in the event of an emergency. (3) Public education information shall be communicated at least annually in both English and Spanish. (4) The Town shall notify all property owners within one thousand feet(1,000')of the proposed pipeline, in writing, by U.S. regular mail,of the proposed construction date of the pipeline.The actual cost of said notice shall be billed directly to the pipeline Owner or Operator's fund balance established pursuant to SECTION56-309(h), of this Article. Sec. -312 Pipeline Information Rep® ire cguire ents. (a) Each pipeline Owner or Operator shall provide to the Inspector,the Fire Marshal,and the Police Chief the names, mailing addresses and telephone numbers of at least two(2) primary persons, officers or contacts available on a twenty-four hour basis and at least two (2)alternative persons, officers or contacts to be reached in the event that the primary contacts are unavailable who: (1) Can initiate appropriate actions to respond to an emergency; (2) Have access to information on the location of the closest shutoff valve to any specific point in the Town; and(3)Can furnish the common name of the material then being carried by the pipeline. Any change in the above information must be provided to the Town by contacting the Inspector prior to such change. (b) Every Owner or Operator of a pipeline subject to this Division shall be required to present to the Town a safety report and file with the Town an annual verified safety report in letter form on or before June 30 of each year to cover a reporting period of June I through May 31. Said a%ritten safety report shall contain the following information and said information shall be presented to the Inspector by every Owner or Operator of a pipeline subject to this Division: (1)A statement that the pipeline has no outstanding safety violations as determined in an inspection or audit by either the Railroad Commission and/or the U.S. Department of Transportation with regard to any pipeline operating within the Town.Alternatively, if there are any safety violations as determined by the Railroad Commission and/or the U.S. Department of Transportation that have not been corrected, these shall be described to the Town with an action plan to correct the safety violations. Said action plan shall include a timeline for corrective action and the individual or firm responsible for each action. (2) Evidence that the pipeline Owner or Operator has current liability insurance covering each respective pipeline in the minimum amount of five million dollars($5,000,000.00). Insurance carriers must be licensed to conduct business in the state and possess at least an"A"rating by the A.M. Pest Company. (3) A statement that the pipeline information specified in subSECTION(a) is correct. Alternatively, in the event that the required information on file with the Town is no longer correct, updated or corrected information shall be submitted within five (5) calendar days of the Page 35 of 44 Created on 4/25/0$ change and the updated information shall be submitted with the annual safety report. (4)Owners or Operators of any unregulated pipeline who have no reporting responsibility to the Railroad Commission or the U.S. Department of Transportation and who may otherwise operate outside the safety regulations of either of these agencies shall additionally provide the following pertaining to the preceding reporting period of June 1 through May 31: a. Copies of internal reports of responses to pipeline emergencies, as pipeline emergency is defined in this Article; b. Current operations and maintenance logs; and c. Current emergency action plan. (5)A log of all the maintenance and monitoring activities conducted on all lines subject to this Division for the reporting period shall be made available upon request by the Town. (6)The designated Owner or Operator shall submit the annual safety report with respect to all pipelines subject to the ordinances of the Town of Westlake.The safety report and verification shall be executed by an officer or a person who is authorized to sign such safety report letter and make verification. The prescribed form of verification on the safety report letter shall read: Verification I, NAME, TITLE, of ONVNER/OPERATOR, am authorized to hake and have made the foregoing annual safety report letter to the Town for oil and gas pipelines.Any attachments made to this letter are true and correct copies of originals and the information provided in this letter is true and correct to the best of my knowledge and is information based on the standard of inquiry and investigation as would be made by a reasonably prudent pipeline Owner or Operator within the Town of South lake. Signature of Officer or Person Authorized to Sign better STATE OF TEXAS § COUNTY OF [Place Where Safety Letter is Prepared] § The foregoing annual safety report letter was sworn to and subscribed before me by(signatory of letter)on this day of ,20 Signed: Notary Public for the State of Texas Printed Larne: My Commission Expires: Ordinance No. 880 A 49 (7)The actual administrative costs incurred by the Town in reviewing the annual safety letter shall be billed directly to the pipeline Owner or Operator's fund balance established pursuant to SECTItON56-309(b), of this Article. (8)A copy of all initial or follow-up reports provided to the U.S. Department of Transportation or the Railroad Commission on unsafe pipeline conditions, pipeline emergencies or pipeline incidents within the Town must be filed concurrently with the Town. In addition, any initial or follow-up reports filed with state and federal environmental regulatory agencies pertaining to pipeline releases within the Town must be filed concurrently with the Town. (9) Upon written request,the pipeline Owner or Operator shall make available during normal business hours and at the pipeline Owner or Operator's local office,documents for review that are required for submittal to or to be maintained on file for the U.S. Department of Transportation and the Railroad Commission such as: a. Operations and maintenance; b. Employee training; c. Annual inspection; d. Repair records; e. Operating records; and Page 36 of 44 Created on 4/2 /08 f. Insurance. In the case of unregulated pipelines,the Town may request any such additional information that the Town deems necessary, in the best interests of the Town, and necessary to protect the public health, safety and general welfare. Sec. 66-313 Pipeline Markers. (a) In accordance with U.S. Department of Transportation and Railroad Commission requirements,pipeline Owners or Operators shall place and maintain permanent line markers as close as practical over the pipeline(s)at each crossing of a public street,utility easement or railroad. Marker(s) shall also be maintained along each pipeline that is located above ground in an area accessible to the public. The markers shall be of permanent type construction and contain labeling identifying the: (I)Pipeline Owner or Operator; (2) T`venty-four-hour contact telephone number; and (3)A general description of the product transported in the pipeline; i.e., natural gas, oil, petroleum. (b)No person shall tamper with, deface, damage or remove any pipeline marker, except the pipeline Owner or Operator. (c) Upon specific reasonable request of the Owner of a real property on which a residence is located and through which a pipeline traverses,the pipeline Owner or Operator shall install temporary pipeline markers or flagging to reduce the possibility of pipeline damage or interference, in accordance with this Division. (d) The material,design, color, size and content of each Iine marker shall subject to Board of Aldermen approval prior to installation. Sec. -3 14 One Call System. (a)The Owner or Operator of any pipeline that transports gas,oil, liquids or hydrocarbons that is located in the Town shall be a member in good standing with the One Call system or other approved excavation monitoring system as required by state law. The Owner or Operator of any pipeline that transports gas,oil, liquids or hydrocarbons subject to this Division shall contract for service with the selected underground utility coordinating system for a minimum of five (i)years unless there is an agreement to change to an alternate system between the Town and the pipeline Owners or Operators. Said services shall be maintained without interruption for the life of the pipeline permit. The selected underground utility coordinating system may be different that the one used by the Town for other underground utility services. (b)Prior to beginning any excavation,trenching or digging using powered equipment or hand tools that may damage a pipeline, any person within the Town shall be required to contact the One Call System and any other appropriate underground utility coordinating systems and determine if there are any pipelines or public utilities in the vicinity of the proposed activities. (c) If physical contact is made with a pipeline during any excavation, trenching or digging,the pipeline company must be notified by the person or agency making the physical contact with the pipeline for any necessary pipeline inspection or repair. Sec. 56-3 15 Inactive and Idled Pipelines. (a) Inactive Pipelines (1)All reporting records specified in SECTION56-311 shall be maintained and kept current on inactive pipelines. Ordinance No, 880 A 31 Page 37 of 44 Created on 4/2 /08 (2) Inactive pipelines shall be purged of gas, hazardous Iiquids, and chemicals, and physically isolated if such action does not adversely effect the pipeline Owner or Operator's right-of-1vay easement and does not prevent the pipeline Owner or Operator from maintaining the physical integrity of the pipeline. These pipelines shall be maintained to prevent deterioration. (3)The means used to physically isolate, if such action is taken,the inactive pipeline shall be included in the information retained on file with the Town for reporting as specified in SECTION56-311. (b) Idled Pipelines (1)An entry shall be made to the required reporting records as required in SECTION56-311 that the pipeline has been idled. (2) Idled pipelines shall be purged, disconnected from all sources or supplies of gas, hazardous liquids and chemicals, and capped or sealed at the ends. (3) Reactivation of idled pipelines shall require notification of the Town pursuant to the standards and requirements specified in SECTION56- 311. Reactivation shall require pressure testing for integrity and compliance with Railroad Commission and/or United States Department of Transportation regulations. See. 56-316 Fmergency Response Plans and Emergency Incident Reporting. (a) Each pipeline Owner or Operator shall maintain written procedures to minimize the hazards resulting from an emergency. These procedures shalt at a minimum provide for: (1) Prompt and effective response to emergencies: a. Leaks or releases that can impact public health, safety or welfare; b. Fire or explosions at or in the vicinity of a pipeline or pipeline easement; or c. Natural disasters; (2)Effective means to notify and communicate required and pertinent information to local lire, police, and public officials during an emergency; Ordinance No. 880 A 52 (3)The availability of personnel;equipment,tools and materials as necessary at the scene of an emergency; (4)Measures to be taken to reduce public exposure to injury and probability of accidental death or dismemberment; (5) Emergency shut down and pressure reduction of a pipeline; (6)The safe restoration of service following an emergency or incident; (7)A follow-up incident investigation to determine the cause of the incident and require the implementation of corrective measures. (b)Each pipeline Owner or Operator shall meet annually with the Inspector and Fire Marshal to review emergency response plans.These reviews shall be in accord with U.S. Department of Transportation and Railroad Commission requirements and the Owner or Operator will: (1) Furnish or update a copy of the emergency response plan described in subSECTION(a); (2) Review the responsibilities of each governmental organization in response to an emergency or incident; (3) Review the capabilities of the pipeline Owner or Operator to respond to an emergency or incident; (4) Identify the types of emergencies or incidents that will result in or require contacting the Town; and (5) Plan mutual activities that the Town and the pipeline Owner or Operator can engage in to minimize risks associated with pipeline operation. (6)At this meeting, the Town shall provide the pipeline Owner or Operator with a list of additional contacts that shall be made in the event of a pipeline emergency or incident. The Town will inform the pipeline Owner or Operator of the emergency response groups that will be Page 38 of 44 Created on 4/25/08 contacted through 911. (c) Upon discovery of a pipeline emergency or incident, the following communications are to be initiated by the affected pipeline Owners or Operators: (1)A general description of the emergency or incident; Ordinance No. 88011 53 (2)The location of the emergency or incident; (3)The name and telephone number of the person reporting the emergency or incident; (4)The name of the pipeline Owner or Operator; (5) Whether or not any hazardous material is involved and identification of the hazardous material so involved; and (6)Any other information as requested by the emergency dispatcher or other such official at the time of reporting the emergency or incident. (d)The pipeline Owner or Operator shall contact any other emergency response groups that are necessary that may not be activated through the county 911 system. (e)The pipeline Owner or Operator shall contact the Southiake Fire Services immediately after the discovery of any pipeline emergency. (0 Notwithstanding any provision in this Division, each pipeline,containing natural gas which contains hydrogen sulfide in concentrations of more than one hundred(100)parts per million, shall be constructed with an audible alarm system that will provide an alarm to the general public in the event of a leak from any pipeline,gathering or flow line subject to this Division. Said audible alarm system shall be of a type and design approved by the Town. (g) Within mo(2)years of the effective date of the pipeline permit and every two(2)years thereafter,the pipeline Owner or Operator shall conduct an on-site, emergency drill that includes, but shall not be limited to, the personnel operating the pipeline, local law enforcement personnel, and officials of the Town. (h)Notwithstanding the foregoing,all incidents involving well safety or integrity that do not rise to the level of a pipeline emergency shall additionally be reported to the Town by completing an incident report on forms prepared by the Town. Incident reports must be filed by the pipeline Owner or Operator within twenty-four(24)hours of discovering the incident. Sec. -317 Pipeline Repairs and Maintenance. (a)All repairs and maintenance are to be performed in accordance with U.S. Department of Transportation and Railroad Commission mechanical integrity requirements.This requirement applies to all pipelines covered by this Division,unregulated as well as those operating under federal rules. (b) If non-emergency repairs necessitate excavation of the pipeline, prior Ordinance No. 880.A 54 notification is required to occupants of business establishments and residential dwellings located within five hundred feet(500')from the centerline of the pipeline to be excavated. (c) Above-ground non-emergency repairs that are not routine maintenance necessitate prior notification to occupants of businesses and residential dwellings located within five hundred feet (500) from the centerline of the pipeline SECTIONto be repaired. (d) Without limitation of the methods of giving the notice required in subsections(b)and (c), notice shall be by U.S. regular mail,postage prepaid mailed at lease five(5)days prior to commencing any non-emergency repair. (e) Inspection of the interior of all pipelines subject to these standards shall follow United States Department of Transportation and Railroad Commission rules. Page 39 of 44 Created on 4/25/08 See. 56-3 18 No Grant of Town Easement, No Assumption of Responsibility by Town. (a)Nothing in this Division grants permission for the use of any street, way or property of the Town, and any such use shall be subject to the Town at its sole discretion. (b)Nothing in this Division shall be construed as an assumption by the Town of any responsibility of an Owner or Operator of a pipeline not owned by the Town, and no Town officer,employee or agent shall have authority to relieve an Owner or Operator of a pipeline from their responsibility under this Division or by any other law, ordinance or resolution. Sec 56-3 19 Protection and Painting of tructures. All pipeline risers and all appurtenances related to pipeline construction and operations composed of materials generally protected or painted shall be protected and painted and shall be repainted at sufficiently frequent intervals to maintain same in good condition.It shall be a violation of this Division for any pipeline riser and/or appurtenances related to pipeline construction and operations to be in a state of disrepair or to have chipped,peeling or unpainted portions thereof. Sec. 56-320 Waiver/Hold Harmless Agreement Required for Issuance of Building Permit. Any person,firm or corporation wishing to obtain a building permit for the erection,construction, reconstruction or expansion of any structure, of which any portion of such erection,construction, reconstruction or expansion would occur within one hundred feet(100')of an existing oil or gas pipeline or pipeline easement, shall, prior to and as a condition of the issuance of such building permit, execute the following waiver and hold harmless agreement,which shall be duly acknowledged in the manner provided by law,and which shall thereafter be notarized and recorded in the appropriate deed or other permanent county records: flydininz,o JJn RRfI 4 "I, (Applicant's Name), do hereby state,on my oath,that I fully realize I am applying for a permit from the Town of Westlake to build within one hundred feet(100')of an existing oil or gas pipeline easement;that I am fully aware of the dangers inherent in building near such pipeline or easement, including, but not limited to,explosion and release of noxious,toxic and flammable substances; and, further,that I do hereby RELEASE and agree to forever HOLD 14ARMLESS the Town of Southiake, Texas, its officers, officials,employees, successors and assigns from all liability in any way arising from the building, use or habitation of the structure described in the said permit." Sec. -321 Street and Right-of-way Use. (a)In the event an oil or gas pipeline is placed within any public right-of-way under the jurisdiction of the Town,the Owner/Operator shall comply with the right-of-way use regulations as provided in the Town of Westlake Code of Ordinances and obtain an appropriate franchise or license for the use of such right-of-way. (b)To the extent that the provisions of this Division conflict with the Town's right-of-way use ordinance,this Division shall apply. Sec. Violations. (a)Any pipeline Owner or Operator subject to this Division, who shall have failed to comply with this Division,shall be deemed to maintain a nuisance and the Town may take such measures to remedy such nuisance, including, but not limited to, revocation of the pipeline Owner or Operator's pipeline permit. (b) It shall be a violation of this Division for a person to knowingly make a misrepresentation of any information to be reported pursuant to this Division. It shall also be a violation of this Division if the person makes such misrepresentation as a result of failure to exercise such due diligence of investigation or inquiry,as would a reasonably prudent pipeline Owner or Operator conducting business in the jurisdiction of the Town. (c) Each violation of any section, subSECTIONor part of this Division shall be a separate offense. Each day of ongoing violation shall be a separate offense, and shall carry with it a fine of not Iess Page 40 of 44 Created on 4/2 /08 than one thousand dollars($1,000.00) per day nor more than two thousand dollars ($2,000.00)per day. (d) The Town shall be entitled to injunctive relief or any other appropriate relief in a court of appropriate jurisdiction to prevent violation of or to compel compliance with this Division. Ordinance No. 880 A 36 Sec. ®323 Bond and Insurance Required. (a) In the event that a pipeline permit is issued for a pipeline or other operations under this Division, no actual operation shall be commenced until the permittee shall file with the To«n Secretary a bond and a certificate of insurance as follows: (1)No person shall begin the construction or operation of any pipeline until he has filed with the Town Secretary a duly executed bond executed by the applicant as principal with an AM Best "A" rated surety company that is acceptable to the Town and is licensed to conduct business in the state as surety, payable to the Town and the policy shall name the Town as an additional insured and such surety company shall maintain an A.M.Best"A"rating for the policy period. Said bond shall include conditions that the applicant, its heirs,assigns and successors will do the following: a. Comply with the terms and conditions of the application and this Division in the construction,_ operation and maintenance of the pipeline and related structure(s). b. That all streets and sidewalks and all other public places and all public utilities that may be injured or damaged in the operation will be restored to their former condition. c. That all litter, machinery, buildings, trash,and waste used,accumulated or allowed in the construction of any pipeline will be removed within ten(10)days of the completion of said construction. d. That all latter, machinery, buildings,trash,and waste used,accumulated or allowed in the operation of any pipeline will be removed within(10)days of the completion of said operations. e. Such bond shall be in the sum of$1,000,000.00 and before the pipeline permit shall be issued, the bond shall be approved by the Town and filed with the Town Secretary. Such bond shall become effective upon the granting of the pipeline permit and shall remain in full force and effect until all work under the terms of such pipeline permit has been completed. Such bond may later be amended to include other pipelines, under provisions of other applications, or other permits. (2) In addition to the bond required in subSECTION(a)(1)above, each person desiring to construct a pipeline or to conduct any other work Ordinance No. 880,4 57 under the provisions of this Division shall be required to carry public liability insurance with a carrier rated"A"or better by A.M.Best in a minimum amount of$1,000,000.00 for one person and $5,000,000.00 for one accident and property damage insurance in the amount of $10,000,000.00 for one accident, which shall remain in full force and effect and be carried so long as such pipeline is operated. A certificate of insurance shall be furnished annually by the permittee or the subsequent Owner and Operator of such pipeline showing that such insurance is and continues in effect. (3) Permittee shall provide and maintain in full force and effect during the term of its permit insurance with the following minimum limits: a. Worker's compensation at statutory limits; b. Employer's liability, including bodily injury by accident and by disease, for$500,000.00 combined single limit per occurrence and a t-,velve-month (12-montli) aggregate policy limit of $1,000,000.00; c. Commercial general liability coverage, including blanket contractual liability, products and completed operations, personal injury, bodily injury, broad form property damage, operations Page 41 of 44 Created on 4/25/08 hazard, pollution, explosion, collapse and underground hazards for$5,000,000.00 per occurrence and a twelve-month(I2-month), aggregate policy limit of$10,000,000.00; and d. Automobile liability insurance(for automobiles used by the permittee in the course of its performance under the pipeline permit, including employer's non-ownership and hired auto coverage)for$2,000,000.00 combined single limit per occurrence. (b)The Town shall adjust the above minimum liability limits every five (5)years during the term of the pipeline permit, or sooner as determined by Board of Aldermen, to compensate for the effects of inflation and with the objective to reestablish the value of coverage required as of the effective date of this Division. (c) Each policy or an endorsement thereto, except those for worker's compensation and employer's liability, shall name the Town and its officers, officials, employees, successors and assigns as additional insured parties, but limited to risks indemnified pursuant to this Division. If any such policy is written as"claims made"coverage and the Town is required to be carried as an additional insured, then the permittee shall purchase policy period extensions so as to provide coverage to the Town for a period of at least two(2)years after the last date that the pipeline permit is in Ordinance No. 880,4 58 effect. No deductible shall exceed ten percent(100/6)of the minimum limits of liability or one percent(1%)of the consolidated net worth of the permittee and its permitted affiliates, whichever is greater. (d) Permittee shall assume and bear any claims or losses to the extent of deductible amounts and waives any claim it may ever have for the same against the Town and its officers,officials, employees,successors and assigns in respect of any covered event. (e) All such policies and certificates shall contain an agreement that the insurer shall notify the Town in writing not less than thirty(30)days before any material change, reduction in coverage or cancellation of any policy. Permittee shall give written notice to the Town within five (5)days of the date upon which total claims by any party against permittee reduce the aggregate amount of coverage below the amounts required by the pipeline permit. (f) Each policy must contain an endorsement to the effect that the insurer waives any claim or right in the nature of subrogation to recover against the Town, its officers, officials,employees, successors and assigns. (g)Each policy must contain an endorsement that such policy is primary insurance to any,other insurance available to the Town as an additional insured with respect to claims arising thereunder. (h)The Board of Aldermen may modify the requirements of this SECTION56-323, as it deems appropriate, in order to account for the risk and possible threat to the public health, safety and general welfare posed by the operation of pipelines within the Town. Sec. Term Iniiat � in of Permit. Any violation ofthe provisions of any or all sections of this Division shall be grounds for the termination of any pipeline permit. The termination of any oil and gas pipeline permit shall require the immediate cessation of all operations subject to the pipeline permit and shall require the pipeline Owner or Operator to reapply for a new pipeline permit in full accordance with the provisions of this Division. SECTION3: This ordinance shall be cumulative of all provisions of ordinances of the Town of Westlake, Texas,except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. Ordinance No. 880 A 59 Page 42 of 44 Created on 4/25/08 SECTION 4: It is hereby declared to be the intention of the Board of Aldermen that the phrases, clauses, sentences,paragraphs and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or SECTIONof this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases,clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the Board of Aldermen without the incorporation in this ordinance of any such unconstitutional phrase,clause, sentence, paragraph or section. SECTIONS: Any person, firm or corporation who violates,disobeys,omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Two Thousand Dollars($2,000.00)for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SF.CTION6: All rights and remedies of the Town of Westlake are expressly saved as to any and all violations of the provisions of Ordin ance No. 480, as amended and Ordinance 880,as amended, or any other ordinances affecting oil,gas and hydrocarbon drilling,production, development,and transportation which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances,same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. Ordinance No. 880 A 60 SECTION 7: The Town Secretary of the Town of Westlake is hereby directed to publish the proposed ordinance or its caption and penalty together with a notice setting out the time and place for a public hearing thereon at least fifeteen(I5)days before the reading of this ordinance, and if this ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of any of its provisions, then the Town Secretary shall additionally publish this ordinance or its caption and penalty in the official Town newspaper. SECTION 8: This ordinance, shall be in full force and effect from and after its passage and publication as required by law,and it is so ordained. PASSED AND APPROVED ON THIS 19TH DAY OF MAY 2008. Scott Bradley, Mayor ATTEST: Page 43 of 44 Created on 4/25/08 Kim Sutter, TRMC, Town Secretary Thomas E. Brymer, Town Manager APPROVED AS TO FORM: Stan Lowry, Town Attorney Page 44 of 44 Created on 4/25/08