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Form No. OGC-S-2010-06Owner-Contractor Construction AgreementThis agreement is entered into as of (“Effective Date”) between Lone Star College(the "College"), a public junior college pursuant to Section 130.004 of the Texas Education Code, and( “Contractor”).WITNESSETH, that for and in consideration of the promises of the parties herein and the mutualcovenants set forth in this contract, the College and the Contractor agree to be legally bound asfollows:1. SCOPE OF WORK. Contractor agrees to commence and complete all services set forth in orreasonable inferred fromattached hereto as Exhibit A. All work shall be completed in accordance with the constructiondocuments or guidelines provided by the College, if any.2. TERM. This contract shall become effective on the issuance of a College Purchase Order andshall continue in effect until. Contractor shall achieveSubstantial Completion no later than. Substantial completion is thestage in the project where the work is sufficiently complete in accordance with theconstruction documents so the College can utilize the work for its intended use.3. TERMINATION. The College reserves and has the right and privilege of canceling,suspending, or abandoning the execution of all or any service in connection with thisAgreement at any time upon three (3) days written notice to the Contractor. The Contractormay terminate this Agreement upon thirty (30) days written notice to the College should theCollege substantially fail to perform their obligations under the terms of this Agreement. TheCollege's liability in case of early termination will be limited to paying for the work alreadyperformed and the expenses already incurred as of the date of the termination, less any andall foreseen or unforeseen damages sustained by the College as a result of any default orconsequence of termination.4. COMPENSATION. For the services to be provided hereunder the College shall pay Contractora fee not to exceeddollars( ). This amount includes an owner’s allowance of .This allowance is for the College to cover unexpected expenses incurred during the project.Any cost associated with a change proposal request will be paid out of the owner’s allowance.Payments will be made progressively within forty-five (45) days of receipt of proper invoices.5. INSURANCE. Contractor shall secure and maintain in force, until final acceptance for theproject and through any warranty period, the following types and amounts of insurance. Theinsurance shall be evidenced by delivery to the College of certificates of insurance executedby the insurer or its authorized agent stating coverages, limits, expiration dates andcompliance with all applicable required provisions. The Contractor shall update all expiredpolicies prior to submission for monthly payment. Failure to update policies shall be reasonfor withholding of payment until renewal is provided to the College.Send the insurance certificate to the Lone Star College, c/o Purchasing Department, 5000Research Forest Drive, The Woodlands, Texas 77381.OGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 1 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-06Policies must include the following clauses:1) Endorsement to provide a minimum of thirty (30) days advance notice of cancellation,non-renewal, or material change of policies. Reference to the Cancellation endorsementto the policy shall be specified in the Certificate of Insurance and a copy attached to theCertificate of Insurance.2) This insurance shall apply as primary insurance/non-contributory with respect to anyother insurance or self-insurance programs available to the College. Reference to the asprimary/non-contributory endorsement to the policy shall be specified in the Certificateof Insurance and a copy attached to the Certificate of Insurance.3) The College shall be named as an Additional Insured on a Primary and Non-Contributorybasis for ongoing and completed operations on all policies except workers compensationand to the full extent allowable by law. Reference to the Additional Insured endorsementto the policy shall be specified in the Certificate of Insurance and a copy attached to theCertificate of Insurance.4) The workers’ compensation and employers’ liability policy will provide a waiver ofsubrogation in favor of the College.5) Without limiting any of the other obligations or liabilities of the Contractor, theContractor shall require each subcontractor performing work under the Contract, at thesubcontractor's own expense, to maintain during the term of the Contract, the samestipulated minimum insurance including the required provisions and additional policyconditions as shown below. As an alternative, the Contractor may include itssubcontractors as additional insureds on its own coverage as prescribed under theserequirements. The Contractor's certificate of insurance shall note in such event that thesubcontractors are included as additional insureds and that Contractor agrees to provideWorkers’ Compensation for the subcontractors and their employees. The Contractor shallobtain and monitor the certificates of insurance from each subcontractor in order toassure compliance with the insurance requirements. The Contractor must retain thecertificates of insurance for the duration of the Contract plus 5 years and shall have theresponsibility of enforcing these insurance requirements among its subcontractors. TheCollege shall be entitled, upon request and without expense, to receive copies of thesecertificates.Coverage shall be written on an occurrence basis by companies authorized and admitted todo business in the State of Texas and rated A- VII or better by A.M. Best Company or otherwiseacceptable to the College as follows:1. Commercial General Liability Insurance. Shall be in place through any warranty periodand will include Independent Contractor's liability, Elevators, Products and CompletedOperations, Explosion, Collapse, Underground Hazards and Contractual Liability,covering, but not limited to, the liability assumed under the indemnification provisions ofthis contract, fully insuring Contractor's (or Subcontractors) liability for bodily injury andproperty damage with a combined bodily injury (including death) and property damageminimum limit of: 1,000,000 per occurrence 2,000,000 general aggregateOGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 2 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-06 2,000,000 products and completed operations aggregate2. Workers' Compensation. Insurance with limits as required by the Texas Workers’Compensation Act, with the policy endorsed to provide a waiver of subrogation as to theCollege, Employer's Liability insurance of not less then: 1,000,000 each accident 1,000,000 disease each employee 1,000,000 disease policy limitA Waiver of Subrogation in favor of Lone Star College with respect to injuries/illness tocontractor's employees is required. A copy of the endorsement to policy must besubmitted to the College ORM prior to commencement of any work or service pursuantto any contract. Non-subscribers may be required to provide proof of financial strengthby providing a letter of credit from a financial institution or other such proof of financialassurance. Self-Insured entities will be required to provide a copy of their Certificate ofAuthority to Self-Insure as provided by the Texas Department of Insurance, Division ofWorkers' Compensation.3. Comprehensive Automobile Liability. Insurance covering owned, hired, and non-ownedvehicles, with a combined bodily injury (including death) and property damage minimumlimit of 1,000,000 per occurrence. No aggregate shall be permitted for this type ofcoverage. Such insurance is to include coverage for loading and unloading hazards.4. Excess (Umbrella) Liability Insurance. The Contractor shall obtain, pay for and maintainexcess/umbrella liability insurance during the contract term, insuring the Contractor (orsubcontractor) for an amount of not less 2,000,000 and that provides coverage at leastas broad as and applies in excess and follows form of the primary liability coveragesrequired hereinabove. The policy shall provide "drop down" coverage where underlyingprimary insurance coverage limits are insufficient or exhausted. The requiredCommercial General Liability, Commercial Automobile and Employers Liability limitsmay be accomplished through a combination of primary and excess/umbrella liabilitypolicies written on a follow-form basis.5. Professional Liability Insurance (if required): The Contractor shall provide and maintain,and shall require all subcontractors to provide and maintain, insurance to cover claimsfor negligent acts and/or errors and/or omissions that may arise from the workperformed by the Design Professional, subcontractors, or anyone directly or indirectlyemployed by them. Professional Liability Insurance (Occurrence Form) or if theinsurance is written on a claims-made form, shall continue for ten (10) years followingthe completion of the performance or the attempted performance of the provisions of thisagreement. The insurance shall have a retroactive date of placement prior to or coincidingwith the effective date of this agreement. If the coverage is canceled or non-renewed andnot replaced with another claims-made policy form with a retroactive date prior to theeffective date or coinciding with the effective date of this agreement the Contractor mustpurchase Extended Reporting (“Tail”) coverage for a minimum of ten (10) years followingthe completion of the performance or the attempted performance of the provisions of thisagreement, providing coverage in the amount of a) For a major project or continuingservices projects where the aggregate project limit is greater than 2,000,000: 5,000,000 per claim and aggregate liability limit is required; b) For a major project orOGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 3 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-06continuing services projects where the aggregate project limit is 2,000,000 or less: 2,000,000 per claim and aggregate liability limit is required.6. CHANGE ORDERS. If there is a change in the project scope, a change order or change proposalrequest must be approved by the College Project Director and engineer before Contractorproceeds with the changes. The change order or change proposal request must state thechange in the project scope, the amount of the adjustment in the contract sum, if any, and theextent of the adjustment in the contract time, if any.7. DISPUTE RESOLUTION PROCESS. The dispute resolution process provided for inChapter 2260 of the Texas Government Code shall be used, as further described herein, bythe College and Contractor to attempt to resolve any claim for breach of contract made byContractor:a. Contractor's claims for breach of this contract that the Parties cannot resolve in theordinary course of business shall be submitted to the negotiation process provided inChapter 2260, subchapter B, of the Government Code. To initiate the process, Contractorshall submit written notice, as required by subchapter B, to [for the College, theChancellor; for component institutions, the President] or his/her designee. Said noticeshall specifically state that the provisions of Chapter 2260, subchapter B, are beinginvoked. A copy of the notice shall also be given to all other representatives of the Collegeand Contractor otherwise entitled to notice under the Parties' contract. Compliance byContractor with subchapter B is a condition precedent to the filing of a contested caseproceeding under Chapter 2260, subchapter C, of the Government Code.b. The contested case process provided in Chapter 2260, subchapter C, of the GovernmentCode is Contractor's sole and exclusive process for seeking a remedy for any and allalleged breaches of contract by the College if the Parties are unable to resolve theirdisputes under subparagraph (a) of this paragraph.c. Compliance with the contested case process provided in subchapter C is a conditionprecedent to seeking consent to sue from the Legislature under Chapter 107 of the CivilPractices and Remedies Code. Neither the execution of this contract by the College norany other conduct of any representative of the College relating to the contract shall beconsidered a waiver of sovereign immunity to suit.d. The submission, processing and resolution of Contractor's claim is governed by thepublished rules adopted by the Attorney General of the State of Texas pursuant to Chapter2260, as currently effective, hereafter enacted or subsequently amended. These rules arefound at 1 T.A.C. Part 3 Chapter 68.e. Neither the occurrence of an event nor the pendency of a claim constitutes grounds forthe suspension of performance by the Contractor, in whole or in part.8. DEFAULT AND LIQUIDATED DAMAGES. IF THE CONTRACTOR FAILS TO PROSECUTETHE WORK WITH DILIGENCE AND FAILS TO COMPLETE THE WORK WITHIN THESPECIFIED TIME OF THIS CONTRACT, OR ANY EXTENSION THEREOF, INCLUDING THECORRECTION OF DEFICIENCIES FOUND DURING THE FINAL INSPECTION, CONTRACTORSHALL PAY TO THE COLLEGE AS LIQUIDATED DAMAGES, AND NOT AS A PENALTY, THESUM OF PER DAY FOR EACH CALENDAR DAY BEYOND THECOMPLETION DATES SET FORTH HEREIN.OGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 4 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-069. DELAY. Should the Contractor be delayed in the prosecution or completionof the WORK by other contractors employed by the College, or by any damage caused by fire,weather conditions or casualty for which the Contractor is not responsible, or by generalstrikes or lockouts caused by reason of any or all of the causes aforesaid, an extended periodshall be determined and fixed at the sole discretion of the College; but no such allowance shallbe made unless a claim therefore is presented in writing to the College within ten (10) daysof the occurrence of such delay. Contract time may be extended only through a written changeorder.10. NOTICES. All notices, requests, demands and other communications required hereundershall be written and shall be deemed to have been personally delivered or when deposited ina regularly maintained receptacle of the United States Postal Service, postage prepaid,registered or certified, return receipt requested, properly addressed to:College:Contractor:11. INDEMNIFICATION. To the fullest extent permitted by law, the Contractor shall indemnifyand hold harmless the College, its Board of Trustees, its member colleges, agents, employees,officers, directors, volunteers, administrators, successors and assigns from and against allclaims, injuries, damages, losses, costs, liens, expenses fees, fines, penalties, proceedings,actions, demands, causes of action, liability and suits of any kind and nature, including butnot limited to reasonable attorneys' fees, whether arising before, during or after completionof the Contractor's work, caused by or arising out of or resulting from performance of work,of whatever nature, provided that any such claim, damage, loss or expense (l) is attributableto bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property(other than the work itself) including the loss of use resulting therefrom, and (2) is caused inwhole or in part by any act or omission by the Contractor, and subcontractor, or anyonedirectly or indirectly employed by any of them or anyone for whose acts any of them may beliable, but only to that extent, proportion or degree that the claims, damages, losses andexpenses are attributable to the act or omission of the Contractor or its subcontractors. INTHE EVENT Contractor AND OWNER ARE FOUND JOINTLY LIABLE BY A COURT OFCOMPETENT JURISDICTION, LIABILITY WILL BE APPORTIONED COMPARATIVELY INACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT WAIVING ANYGOVERNMENTAL IMMUNITY AVAILABLE TO THE STATE UNDER TEXAS LAW ANDWITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW.12. CORPORATE FRANCHISE TAX. Contractor (or “Seller” or other designation of contractingparty) certifies that, upon the effective date of this agreement, either (1) it is not delinquentin payment of State of Texas corporate franchise taxes, or (2) it is not subject to the paymentof such taxes. Contractor (or other designation of contracting party) agrees that any falsestatement with respect to franchise tax status shall be a material breach hereof, and theCollege shall be entitled to terminate this Agreement upon written notice thereof toContractor (or other designation).OGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 5 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-0613. COMPLIANCE. Contractor agrees to abide by and perform the work under this Contract incompliance with all applicable City, State of Texas and Federal laws, rules, regulations andpolicies. While on the premises of the College or its components, Contractor agrees to abideby the policies and procedures of the College and its components relative to conduct on itspremises.14. PROJECT CLOSE OUT. If applicable, before the final payment is processed, Contractor shalldevelop a punch list with the College and the College’s engineer, if any. Contractor shallcomplete all punch list items withindays from the date of the punchwalk. After punch list items are confirmed to be complete by the College and the College’sengineer, if any. Contractor shall supply the College with an affidavit from each subcontractorstating that all invoices incurred as a result of this project have been paid in full. Contractorshall provide the College with a notarized affidavit stating that all materials used on thisproject do not contain asbestos, lead, and PCB.15. WARRANTIES. Contractor warrants to the College that all materials and equipmentfurnished and installed under this contract will be new and of good quality unless otherwisepermitted by the construction documents. The work shall be free from defects and the workshall conform with the requirements of the construction documents. Work not conforming tothese requirements shall be considered defective and shall be replaced by the Contractor atthe Contractor’s expense promptly upon receiving notice by the College. Before final paymentis released, Contractor shall provide all written warranties as required in the specifications.16. RETAINAGE. If applicable, the Contractor shall receive payment lesspercent (%) retainage. The retained payment shall be released by the College uponcompletion of all work, acceptance, issuance of full certificate of occupancy and receipt by theCollege of all certified close out documents as provided in the Contract Documents. Theretainage amount will be deposited in an interest bearing account in accordance withapplicable law.17. MISCELLANEOUS.a. It is Contractor’s responsibility to notify the College in writing two days prior to using anymaterials producing toxic odors or fumes which could affect users in the project area orareas connected through a common HVAC system. If Contractor does not notify theCollege in accordance with this agreement, Contractor will be solely responsible for anydamages or claims that result from the release of the toxic odors or fumes.b. Contractor shall supply Material Safety Data Sheets (MSDS) to the College on all materialsused on this project prior to the arrival of the materials on the job site.c. Contractor shall procure all necessary building permits required for performance underthis agreement and shall post permits at project site as required by law. Contractor shallobtain all required inspections.d. Contractor hereby certifies that if any of its principals or owners is a child support obligor,he/she is no more than 30 days delinquent in paying child support.e. Nothing in this Agreement shall create a contractual relationship with or a cause of actionin favor of a third party against the College. It is agreed by the College and the Contractorthat this Agreement is intended for the benefit of the College and Contractor only and notOGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 6 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
Form No. OGC-S-2010-06f.for the benefit of architects, engineers, contractors, subcontractors, including suppliersor any of their employees or agents, or any other person.This Agreement shall be governed by the laws of the State of Texas. Its validity and theinterpretation of its terms shall be governed by the laws of the State of Texas. If anyprovisions of this contract are determined to be invalid or unenforceable by a court ofcompetent jurisdiction, the remaining terms and conditions hereof shall remain in fullforce and effect. It is mutually agreed by the parties that if litigation should ariseconcerning all or any part of this contract, venue shall lie in Harris County, Texas.g. Contractor agrees that all work on the project pursuant to this contract shall be at theContractor’s exclusive risk until final and complete acceptance thereof by the College, andin case of any loss or damage thereto, in whole or in part, prior to such acceptance, exceptfor that caused by the negligence of the College, such loss and/or damage shall be borneby the Contractor.h. Contractor agrees to secure a payment and/or a performance bond in accordance withTexas Government Code §2253.021 upon execution of this contract. The Payment &Performance Bonds must be delivered to the College within 10 days after Contractorreceives the purchase order for the services from the College. The services cannot bemanned until the Payment & Performance Bonds have been received by the College. Thebonding company must be acceptable to the College.i.This instrument, Exhibit A, and the College’s Uniform General and Supplementary GeneralConditions (if applicable) which is attached hereto and incorporated herein as if copiedverbatim contains the entire Agreement between the College and the Contractor and canbe modified only by written instrument signed by authorized representatives of theCollege and the Contractor. In the case of any conflict between these documents, thisinstrument will govern.Executed in the year and day referenced above.CONTRACTORSignatureSignatureLONE STAR COLLEGEDatePrinted NamePrinted NameTitleTitleDateNote: Modification of this Form requires approval of OGC.OGC-S-2010-06 – Owner-Contractor Construction AgreementApproved 1.07.2010 – Revised 4.21.2017Page 7 of 7Standard Form Approvedby Lone Star CollegeOffice of the General Counsel
OGC-S-2010-06 - Owner-Contractor Construction Agreement Standard Form Approved Approved 1.07.2010 - Revised 4.21.2017 by Lone Star College Page 1 of 7 Office of the General Counsel . Commercial General Liability Insurance Shall be in place through any warranty period . and will include Independent Contractor's liability, Elevators .
