ACCEPTED
03-15-00423-CV
7966631
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/24/2015 10:53:22 AM
JEFFREY D. KYLE
CLERK
IN THE THIRD COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
NO. 03-15-00423-CV AUSTIN, TEXAS
11/24/2015 10:53:22 AM
STAR OPERATIONS, INC. JEFFREY D. KYLE
Clerk
and
GREAT AMERICAN INSURANCE COMPANY OF NEW YORK
Appellants
VS.
DIG TECH, INC.
Appellee
Appealed from the 22nd Judicial District Court
Caldwell County, Texas
BRIEF OF
APPELLANTS STAR OPERATIONS, INC.
AND GREAT AMERICAN INSURANCE
COMPANY OF NEW YORK
James H. Robichaux
SBN 17083000
jrobichaux@branscombpc.com
Clinton W. Twaddell, III
SBN 24071537
ctwaddell@branscombpc.com
BRANSCOMB PC
802 N. Carancahua, Suite 1900
Corpus Christi, TX 78401-0036
Telephone: 361/886-3800
Telecopier: 361/886-3805
ORAL ARGUMENT REQUESTED
{C1208515.DOCX:}
IDENTITY OF PARTIES AND COUNSEL
Appellant: Star Operations, Inc.
Lead Counsel at Trial & on Appeal: James H. Robichaux
BRANSCOMB PC
802 N. Carancahua, Suite 1900
Corpus Christi, TX 78401-0036
Telephone: 361/886-3800
Telecopier: 361/886-3805
Appellant: Great American Insurance
Company of New York
Lead Counsel on Appeal 1: Clinton W. Twaddell, III
BRANSCOMB PC
802 N. Carancahua, Suite 1900
Corpus Christi, TX 78401-0036
Telephone: 361/886-3800
Telecopier: 361/886-3805
Appellee: Dig Tech, Inc.
Lead Counsel at Trial & on Appeal: Brian Melton
Chanler A. Langham
SUSMAN GODFREY, LLP
1000 Louisiana Street, Suite 5100
Houston, TX 77002
Telephone: 713/651-9366
Telecopier: 713/651-6666
1
James H. Robichaux was lead trial counsel for Great American Insurance Company of New
York.
{C1208515.DOCX:} i
RECORD LEGEND
References to the one-volume Clerk’s Record are denoted “CR __.”
References to live testimony in the Reporter’s Record are denoted “RR Vol. __ at
[page]: [line]–[line].” Reporter’s Record Volumes 23-34 containing the trial
exhibits are not internally paginated. Accordingly, references to trial exhibits are
denoted “RR Vol. __: PX/DX __, at__,” with Plaintiff’s exhibits denoted “PX” and
Defendants’ exhibits denoted “DX.”
STATEMENT OF THE CASE
Dig Tech, Inc. (“Dig Tech”) brought this lawsuit against Star Operations,
Inc. (“Star Operations” or “Star”) alleging breach of an oral contract. Dig Tech
claimed to be Star’s subcontractor on a federally funded highway project (the
“Project”). The Project’s purpose was to construct sections of the SH130 toll road
southeast of Austin, Texas. Great American Insurance Company (“GAIC”) was the
payment bond surety for Star on the Project.
Star denied the existence of any enforceable contract between itself and Dig
Tech. Star also asserted that Dig Tech had failed to comply with federally
mandated and applicable statutes, rules, and regulations that were conditions
precedent to (1) the formation and/or enforcement of any purported contract
between Star and Dig Tech; and (2) any obligation of Star to pay Dig Tech on any
purported contract.
{C1208515.DOCX:} x
condition precedent to any payment obligation arising against Star
in favor of Dig Tech on any purported contract between Star and
Dig Tech ...................................................................................................23
C. Issues 5-7: The trial court erred in awarding Dig Tech contract
damages because it was undisputed that Dig Tech failed to: (1)
obtain a written contract with Star; (2) obtain TxDOT approval to
its purported verbal contract with Star; or (3) provide statutorily
compliant “certified payroll” to Star ........................................................25
II. Issues 8-11: The trial court erred in applying the law to Dig Tech’s
claim(s) against the GAIC payment bonds ....................................................26
A. Issue 8: The trial court erred in refusing to dismiss Dig Tech’s
claim(s) against the GAIC payment bonds for lack of jurisdiction
because the federal Miller Act applied to the claim(s).............................26
B. Issue 9: If the Texas McGregor Act applied to Dig Tech’s payment
bond claim(s), the trial court erred in ruling as a matter of law that
Dig Tech perfected any claim against the bonds......................................27
C. Issue 10: If the McGregor Act applied to Dig Tech’s payment
bond claim(s), the trial court erred in denying GAIC’s Motion for
Instructed Verdict and its Motion for Judgment Notwithstanding
the Verdict because Dig Tech failed as a matter of law to perfect
any payment bond claim under the McGregor Act ..................................32
D. Issue 11: Alternatively, if the McGregor Act applied to Dig Tech’s
payment bond claim(s) and a fact issue existed as to whether Dig
Tech perfected any claim against the bonds, the trial court erred in
refusing to submit GAIC’s proposed jury questions on whether Dig
Tech substantially complied with the McGregor Act’s notice
requirements .............................................................................................32
{C1208515.DOCX:} iii
III. Issue 12: The trial court erred in awarding damages to Dig Tech
without any evidence of Dig Tech’s actual damages as net loss
after reduction of income tax payments or unpaid income tax
liability as required by TEX. CIV. PRAC. & REM. CODE § 18.091 ............. 33
IV. Issue 13: The trial court erred in awarding attorney’s fees to Dig
Tech because Dig Tech failed to segregate recoverable attorney’s
fees from unrecoverable attorney’s fees ...................................................35
V. Issue 14: The trial court erred in awarding Dig Tech costs of
deposition transcripts as “taxable costs” when Dig Tech did not
notice or initiate the depositions ...............................................................37
Conclusion ...................................................................................................................39
Prayer ...........................................................................................................................40
Certificate of Compliance ............................................................................................41
Certificate of Service ...................................................................................................41
Index to Appendix ........................................................................................................42
{C1208515.DOCX:} iv
INDEX OF AUTHORITIES
FEDERAL AUTHORITIES
U.S. Supreme Court:
American Tel. and Tel. Co. v. Central Office Telephone, Inc.,
524 U.S. 214 (1998) .................................................................................................16
Federal Crop Ins. Corp. v. Merrill,
332 US 380 (1947) ...................................................................................................22
U.S. Courts of Appeal:
Century Marine, Inc. v. U.S.,
153 F.3d 225 (5th Cir. 1998).....................................................................................22
Clem Perrin Marine Towing, Inc. v. Panama Canal Co.,
730 F.2d 186 (5th Cir. 1984) ...................................................................................14
Continental Cas. Co. v. C.O. Brand, Inc.,
355 F.2d 969 (5th Cir. 1966).....................................................................................26
Gen. Eng’g & Mach. Works v. O’Keefe,
991 F.2d 775 (Fed. Cir. 1993)............................................................................15, 22
U.S. v. New Orleans Pub. Surv., Inc.,
553 F.2d 459 (5th Cir. 1977) (vacated on other grounds,
New Orleans Public Service, Inc. v. U.S., 436 U.S. 942 (1978)) ............................14
Worthen v. Fidelity Nat. Prop. & Cas. Ins. Co.,
463 Fed. Appx. 422 (5th Cir. 2012) ..........................................................................22
U.S. District Courts:
Dingle v. Halliburton Co., Civil Action No. H-05-3719,
2006 WL 2729286 (S.D. Tex. Sept. 25, 2006) (not reported) .................................15
Ex rel. United Rentals, Inc. v. Hartford Fire Ins. Co.,
339 F. Supp.2d 799, 801-02 (W.D. Tex. 2004) .......................................................27
{C1208515.DOCX:} v
UPMC Braddock v. Harris,
934 F. Supp. 2d 238 (D.D.C., 2013)
vacated on other grounds as moot 584 Fed.Appx.1 (D.C. Cir. 2014) ..............15, 22
U.S. Court of Claims:
G.L. Christian and Assocs. v. U.S.,
312 F.2d 418 (Ct. Cl. 1963) ...............................................................................14, 19
U.S.C.:
40 U.S.C. § 3131 ......................................................................................................26
C.F.R.:
23 CFR § 635.102 ....................................................................................................20
23 CFR § 635.103 ....................................................................................................14
23 CFR § 635.116(b) ...............................................................................................20
TEXAS AUTHORITIES
Texas Supreme Court:
Associated Indem. Corp. v. CAT Contracting, Inc.,
964 S.W.2d 276 (Tex. 1998)........................................................................21, 24, 33
Centex Corp. v. Dalton,
840 S.W.2d 952 (Tex. 1992)....................................................................................21
Christus Health Gulf Coast v. Aetna, Inc.,
397 S.W.3d 651 (Tex. 2013)....................................................................................34
Clayton W. Williams, Jr., Inc. v. Olivo,
952 S.W.2nd 523, 529 (Tex. 1997) .........................................................23, 24, 25, 33
Combs v. Healthcare Services, Corp.,
401 S.W.3d 623 (Tex. 2013)....................................................................................34
{C1208515.DOCX:} vi
Hohenberg Bros. Co. v. George E. Gibbons & Co.,
537 S.W.2d 1 (Tex. 1976) ........................................................................................21
In re Bank One, N.A.,
216 S.W.3d 825 (Tex. 2007) ...................................................................................19
In re 24R, Inc.,
324 S.W.3d 564 (Tex. 2010)....................................................................................19
Jones v. Liberty Mutual Ins. Co.,
745 S.W.2d 901 (Tex. 1988)....................................................................................34
McKinley v. Stripling,
763 S.W.2d 407, 410 (Tex. 1989)..........................................................23, 24, 25, 33
NAFTA Traders, Inc. v. Quinn,
339 S.W.3d 84 (Tex. 2011) ......................................................................................16
Nat’l Prop. Holdings, LP v. Westergren,
453 S.W.3d 419 (Tex. 2015) (per curiam) ..............................................................22
Tex. Dep’t. of Parks & Wildlife v. Miranda,
133 S.W.3d 173 (Tex. 2004)....................................................................................27
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299 (Tex. 2006)....................................................................................35
Wallace v. Briggs,
348 S.W.2d 523, 527 (Tex. 1961)............................................................................38
Texas Courts of Appeal:
Big Bird Tree Service v. Gallegos,
365 S.W.3d 173 (Tex. App. – Dallas 2012, pet. denied.) ........................................34
Bundren v. Holly Oaks Townhomes Ass’n, Inc.,
347 S.W.3d 421 (Tex. App.—Dallas 2011, pet. denied) ...................................37, 38
Capital Indemn. Corp. v. Kirby Restaurant Equipment
{C1208515.DOCX:} vii
Dist.] 2007, no pet.); Big Bird Tree Service v. Gallegos, 365 S.W.3d 173, 179
(Tex. App. – Dallas 2012, pet denied).
A court may not judicially amend a statute and add words that are not
explicitly contained in the language of the statute. Jones v. Liberty Mutual Ins.
Co., 745 S.W.2d 901, 902 (Tex. 1988). As the Supreme Court stated recently, “the
bar for reworking the words of our Legislature passed into law is high and should
be.” Combs v. Healthcare Services, Corp., 401 S.W.3d 623, 630 (Tex. 2013).
Stated differently, the Supreme Court has said that in matters of statutory
construction, the Court takes the Legislature “at its word.” Christus Health Gulf
Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013). The Court’s analysis
begins (and often ends) with the Legislature’s chosen language. Id. at 653. This
voted-on language is what constitutes the law; “the Judge’s inquiry is at an end.”
Id. at 653-654.
The language of the statute is clear. As a precondition to recovery of its
damages, Dig Tech was required to present evidence of such lost earnings after
reduction for any income tax payments made or unpaid tax liability that would
have accrued as a result of such recovery. Since the invoices would be ordinary
revenue, they would constitute “earnings” within the meaning of the Internal
Revenue Code and federal income tax would be due and owing. Dig Tech’s failure
to present evidence net of the unpaid tax liability precludes Dig Tech’s recovery.
{C1208515.DOCX:} 34
Appellants objected to the failure of the charge – specifically Jury Questions Nos.
4 and 8 – on the grounds that they failed to comply with § 18.091. (RR Vol. 9 at
144:25–145:15). Accordingly, Appellants are entitled to reversal and rendition of a
take nothing judgment in their favor as to actual damages in light of Dig Tech’s
failure to present the evidence in the statutorily required manner and its failure to
secure a jury finding of damages in compliance with § 18.091.
IV. Issue 13: The trial court erred in awarding attorney’s fees to Dig Tech
because Dig Tech failed to segregate recoverable attorney’s fees from
unrecoverable attorney’s fees
Dig Tech readily admitted that in order to recovery attorney’s fees, it was
required to segregate incurred attorney’s fees relating solely to a claim for which
attorney’s fees are unrecoverable pursuant to the Supreme Court decision of Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). (RR Vol. 5
at 191:21–192:2 (Dig Tech attorney David Pfeuffer)). Simply because the facts are
“intertwined” does not make fees incurred on an unrecoverable claim – such as
Star’s tort counterclaim – recoverable. Failure to segregate such fees precludes
recovery.
In cross-examination Dig Tech’s sole witness on the issue of attorney’s fees
– David Pfeuffer – freely admitted that he made no attempt to look at the discovery
submitted by Star to Dig Tech on its counterclaims. Instead he concluded that the
unrecoverable attorney’s fees Dig Tech incurred in drafting and responding to
{C1208515.DOCX:} 35
RECORD LEGEND
References to the one-volume Clerk’s Record are denoted “CR __.”
References to live testimony in the Reporter’s Record are denoted “RR Vol. __ at
[page]: [line]–[line].” Reporter’s Record Volumes 23-34 containing the trial
exhibits are not internally paginated. Accordingly, references to trial exhibits are
denoted “RR Vol. __: PX/DX __, at__,” with Plaintiff’s exhibits denoted “PX” and
Defendants’ exhibits denoted “DX.”
STATEMENT OF THE CASE
Dig Tech, Inc. (“Dig Tech”) brought this lawsuit against Star Operations,
Inc. (“Star Operations” or “Star”) alleging breach of an oral contract. Dig Tech
claimed to be Star’s subcontractor on a federally funded highway project (the
“Project”). The Project’s purpose was to construct sections of the SH130 toll road
southeast of Austin, Texas. Great American Insurance Company (“GAIC”) was the
payment bond surety for Star on the Project.
Star denied the existence of any enforceable contract between itself and Dig
Tech. Star also asserted that Dig Tech had failed to comply with federally
mandated and applicable statutes, rules, and regulations that were conditions
precedent to (1) the formation and/or enforcement of any purported contract
between Star and Dig Tech; and (2) any obligation of Star to pay Dig Tech on any
purported contract.
{C1208515.DOCX:} x
INDEX TO APPENDIX
• Item 1 .................................................................................................. Final Judgment
• Item 2 ................................................................................... Jury Charge and Verdict
• Item 3 ............................................................................................TEX. R. CIV. P. 140
• Item 4 ............................................................................................TEX. R. CIV. P. 141
• Item 5 .......................................................................................... 23 C.F.R. § 635.102
• Item 6 .......................................................................................... 23 C.F.R. § 635.103
• Item 7 ........................................................................................... 23C.F.R. § 635.116
• Item 8A........................................................ TEX. CIV. PRAC. & REM. CODE § 18.091
• Item 8B ........................................................ TEX. CIV. PRAC. & REM. CODE § 31.007
• Item 9 ............................................................................................... 40 U.S.C. § 3131
• Item 10 ........................................................................ TEX. GOV’T CODE § 2253.001
• Item 11 ........................................................................ TEX. GOV’T CODE § 2253.041
• Item 12 ........................................................................ TEX. GOV’T CODE § 2253.047
• Item 13 ........................................................................ TEX. GOV’T CODE § 2253.048
• Item 14 ............................ DX1: Star/Central Texas Subcontract CSUB116 Excerpts
• Item 15 ................... DX2: Dig Tech/Central Texas Subcontract CSUB122 Excerpts
• Item 16 ............................ DX3: Star/Central Texas Subcontract CSUB140 Excerpts
• Item 17 ........................ DX119: Facility Concession Agreement Excerpt (page 175)
• Item 18A........................ DX119: Facility Concession Agreement Excerpt (page 69)
• Item 18B ........................................... Rule 11 Regarding Supplementation of Record
• Item 19 .....................................................DX9: Dig Tech Certified Payroll Excerpts
• Item 20 ...... PX63: Mike Kiehnau Email Regarding Communication from Dig Tech
• Item 21 ...................................................................PX183: Dig Tech Letter to GAIC
{C1208515.DOCX:} 42
mandated condition precedent to formation and/or enforcement of any purported
contract between Star and Dig Tech.
Issue No. 3
The trial court erred in refusing to submit proposed jury question(s) on Dig
Tech’s failure to obtain TxDOT’s approval to its purported contract with Star,
which was a federally mandated condition precedent to formation and/or
enforcement of any purported contract between Star and Dig Tech.
Issue No. 4
The trial court erred in refusing to submit proposed jury question(s) on Dig
Tech’s failure to provide statutorily compliant “certified payroll” to Star, which
was a federally mandated condition precedent to any payment obligation arising
against Star on any purported contract between Star and Dig Tech.
Issue No. 5
The trial court erred in awarding Dig Tech contract damages because a
writing was a federally mandated condition precedent to contract formation and
enforceability, and it was undisputed that Dig Tech failed to comply with such
condition.
Issue No. 6
The trial court erred in awarding Dig Tech contract damages because
TxDOT approval to any purported contract with Star was a federally mandated
{C1208515.DOCX:} xii
- - - - - - - - - - - - · - · - - - ---·
CAUSE 12·0•337
§
§ IN THE DISTRICT COURT
Plaintiff, §
§
§
§ 22I'Il> JUDICIAL DISTRieT
ST!\.R OPERATIONS, INC. §
GREAT AMERICAN INSURANCE §
'COI\I(P.AN¥ OF NEW YORK §
§ Cb.LDWJ!)J.,;L C"OlJ'NT'i';
§ TEXAS
Defendants. §
FJ~M.. ln'JD:GMENT
On 'February 2:0, :20T5, the Court entered a traditional summary judgment against
DefehdantStat Operations, Inc.'s (''Star Opet;ations") counterclaim for fraud.
On February 23, 201.5, the Court <:ailed fuis l)ase for -tri'al, The Plaintiff Dig Tech, Inc.
("Dig Tech") appeared in person and through its attorneys and. annqJmg~d read.y {or t!ial, The
Defendants Stat Operations, Inc. ("Star Operations") and Great Americanlnsurance Company of
New York ("G.t\!C") appeared in person and through their attorneys and announced ready for
trial. The Court then empanelled and swore in a jury consisting of twelve jurors, and the case
proceeded to trial.
On February 26 and March 4, the Court ruled that Djg Tech sUbstantially complied with
the notice provisions of the McGregor Act and that the Miller Act does not apply to Dig Tech's
claims.
On March 4, 2015, the Court submitted questions, definitions, and instructions to the juryi ·
On March 5, 2015, the jury returned a unanimous Verdict. The jury's unanimous Verdict was
received, filed, and entered of record.
1
-·
Appendix
.. Item 1
---· - - - - - - - - - - - - - - - - -
~
Tech failed as a matter of law to perfect any payment bond claim under the
McGregor Act.
Issue 11
If the McGregor Act applied to Dig Tech’s payment bond claim(s) and a fact
issue existed as to whether Dig Tech perfected any claim against the bonds, the
trial court erred in refusing to submit GAIC’s proposed jury questions on whether
Dig Tech substantially complied with the McGregor Act’s notice requirements.
Issue No. 12
The trial court erred in awarding damages to Dig Tech without any evidence
of Dig Tech’s actual damages as net loss after reduction of income tax payments or
unpaid income tax liability as required by TEX. CIV. PRAC. & REM. CODE § 18.091.
Issue No. 13
The trial court erred in awarding attorney’s fees to Dig Tech because Dig
Tech failed to segregate recoverable attorney’s fees from unrecoverable attorney’s
fees.
Issue No. 14
The trial court erred in awarding costs for copies of deposition transcripts to
Dig Tech as “taxable costs” when Dig Tech did not notice or initiate the
depositions.
{C1208515.DOCX:} xiv
STATEMENT OF FACTS
Background. This case arises out of construction on a federally funded
highway project, specifically construction of SH130 toll road sections southeast of
Austin, Texas. Appellant Star was a subcontractor hired by the design/build
contractor Central Texas Highway Constructors (“Central Texas”) to construct
infrastructure for the illumination, signal, intelligent transportation, and toll
collection systems. Appellee Dig Tech claims it had a verbal agreement with Star
to provide boring (horizontal hole-drilling) work for the installation of electrical
conduit. Dig Tech also had its own written contract with Central Texas which was
not the primary subject of this litigation, but whose terms will be relevant to this
appeal as explained below. The following diagram illustrates the pertinent
contractual relationships (both disputed and agreed):
{C1208515.DOCX:} 1
Dig Tech never formed an enforceable contract with Star. It was
undisputed and uncontroverted that the Project involved the use of federal funds.
(Appx Item 14, RR Vol. 16: DX1at p. 69 (Star Subcontract CSUB116 with Central
Texas); Appx Item 15, RR Vol. 18: DX2 at p. 117 (Dig Tech Subcontract
CSUB122 with Central Texas); Appx Item 16, RR Vol. 19: DX3 at p. 69 (Star
Subcontract CSUB140 with Central Texas); Appx Item 17, RR Vol. 34: DX119 at
p. 175 (Facility Concession Agreement)). Because the Project was federally
funded, both federal law and the prime contract required that any lower-tier
subcontracts be in writing and approved by TxDOT. Further, as a condition of
payment on any lower-tier subcontract, any subcontractor (in this case Dig Tech)
was required to submit statutorily compliant “certified payroll” to the upstream
contractor (in this case, Star), attesting under oath that it had properly categorized
and paid its workers according to federally recognized worker classifications and
federally promulgated prevailing wage rates for the workers’ respective crafts.2
(Appx Item 19, RR Vol. 22: DX9; Appx Item 14, RR Vol. 15: DX1 at pp. 11-12
(art. 9.4 and 9.6.1(a)), and at p. 15 (art. 10; 10.3(d)); RR Vol. 16: DX1 at p. 90 (art.
VII(1)(e)); Appx Item 15, RR Vol. 17: DX2 at pp. 11-12 (art. 9.4 and 9.6.1(a)), and
at p. 15 (art. 10; 10.3(d)); RR Vol. 18: DX2 at p. 139 (Art. VII(1)(e)); Appx Item
2
The specifics of what constitutes “compliant certified payroll” are discussed in detail below.
{C1208515.DOCX:} 2
16, RR Vol. 19: DX3 at 68, 69, 84-88, 94, 95, 98-100; Appx Item 17, RR Vol. 34:
DX119 at p. 175 (art. 23.1); Appx Item 18A (art. 10.2.3)). 3 4
Dig Tech was fully aware of these requirements at all relevant times. As
shown in the diagram above, prior to Dig Tech discussing any alleged oral
agreement with any employee of Star, Dig Tech had its own written subcontract
with Central Texas. (Appx Item 15, RR Vol. 17: DX 2). This written subcontract
with Central Texas contained various provisions—identical to those in the
Star/Central Texas subcontracts—which specifically placed Dig Tech on actual
notice that any agreement it might enter into on the Project: (1) had to be in
writing; (2) had to be approved by Central Texas and TxDOT; and (3) required Dig
Tech to provide statutorily compliant certified payroll as a condition of payment.
(Appx Item 15, RR Vol. 17: DX2 at pp. 11-12 (art. 9.6.1), p. 15 (art. 10.3(d)); RR
Vol. 18: DX2 at pp. 116-117, pp. 135-138 (art. V(1)(d)(iii))).
Dig Tech claims it performed work for Star Operations as a lower-tier
subcontractor on the Project between October, 2011 and April, 2012. (RR Vol. 14:
PX89 (Dig Tech invoices)). However, it is undisputed and uncontroverted that Dig
3
Pages 68 and 69 of DX119 were omitted from RR Vol. 33 by the court reporter. The missing
page 69 is included in the Appendix as Item 18A. Appellee does not oppose this
supplementation, as noted in the Rule 11 Agreement included in the Appendix as Item 18B.
4
For the convenience of the Court excerpts from the three subcontracts and the Facility
Concession Agreement between TxDOT and SH 130 Concession Company are collectively
gathered and attached in the Appendix. The pertinent contract provisions in each of the three
subcontracts are identical; they sometimes simply appear on different pages of the respective
contracts.
{C1208515.DOCX:} 3
Tech had no written agreement with Star Operations for the work Dig Tech claims
it performed for Star. (RR Vol. 4 at 62: 9-14; 64: 8-11, 20-24; 67:10-24; 68: 22-
70:8; 70:19-24; 71:16-22 (Dig Tech corporate representative Bodie Leslie); RR
Vol. 5 at 124:7–125:11; 125: 20-126:3 (Dig Tech owner Mike Furry); RR Vol. 13:
PX71 (Letter from Star’s counsel to Dig Tech’s counsel)). The uncontroverted
testimony established that Dig Tech’s alleged verbal subcontract with Star
Operations was never approved by Central Texas or TxDOT. (RR Vol. 7 at 173:8–
174:7; 189:17-25; 197:8-12; 211:19 –213:9; RR Vol. 8 at 66:9-16 (Central Texas
representative Michael Kiehnau)).
Further, Dig Tech’s own representatives acknowledged that its certified
payroll was noncompliant and that some of its laborers were both misclassified and
paid below the statutorily mandated minimum hourly wage rates. (RR Vol. 6 at
10:19–11:25; 13:13-20; 14:19 –15:19; 16:23–18:5; 18:16 –19:6; 20:1-8; 20:21–
22:4; 23:16–24:4; 24:8–33:16 (Dig Tech office manager Tracy Lambert); RR Vol.
5 at 126:16–127:7 (Dig Tech owner Mike Furry)). This was confirmed by
testimony of Central Texas, Star’s owner, and an unchallenged government
contracts expert witness. (RR Vol. 8 at 20:4–30:12 (Central Texas representative
Mike Kiehnau); RR Vol. 8 at 126:17-20; 136:8– 137:11; 165: 10-21 (Star
{C1208515.DOCX:} 4
Operations’ owner Lana Lewis); RR Vol. 8 at 95:8–108:1; 119:17–122:2
(Government contracts expert, John Dulske)). 5
Dig Tech claims the purported verbal contract with Star was formed between
former Dig Tech employee Bodie Leslie and former Star employees Maury
Milliorn and Anthony Lopez. Dig Tech argues that each of these individuals had
legal authority to contract for their respective employers. However, Mr. Leslie
confirmed that Milliorn and Lopez both had advised him that they lacked authority
to bind Star Operations or enter into any subcontract on behalf of Star Operations.
(RR Vol. 4 at 67:10–68:25; 69:24–71:5; 71:16–72:10; 92:2-24; 115:15-22 (Dig
Tech representative Bodie Leslie); RR Vol. 4 at 210:16-19 (former Star employee
Maury Milliorn)). Dig Tech’s owner (Mike Furry) and its designated corporate
representative (Bodie Leslie) confirmed that Dig Tech made no attempt to contact
Star’s owner Lana Lewis to determine the scope of Lopez’s or Milliorn’s authority,
who had previously advised Dig Tech they lacked authority to contract on behalf
of Star. (RR Vol. 4 at 72:2-24; 115:15-22 (Dig Tech representative Bodie Leslie);
RR Vol. 5 at 110:10-15 (Dig Tech owner Mike Furry)).
Dig Tech sued both Star Operations and its payment bond surety GAIC. (CR
53-57). In their live pleadings, Star Operations and GAIC repeatedly raised the
5
For the convenience of the Court, an exemplary copy of one of Dig Tech’s certified payrolls is
attached in the Appendix as Item 19 (RR Vol. 22: DX9). The four misclassified employees are
highlighted. The two employees who were never paid at least the minimum statutorily mandated
wage rates were Sintico Chaparro and Josue Chaparro. The testimony confirms the
misclassification and underpayment was consistent on all twenty-six certified payrolls.
{C1208515.DOCX:} 5
failure of the condition(s) precedent, specifically that: (1) any agreement between
Star Operations and Dig Tech was required by federal law to be in writing and
approved by TxDOT to be enforceable; and (2) Dig Tech’s failure to provide
compliant certified payroll was a condition precedent to any payment obligation.
(CR 1346-1358 at Pars. 4, 6(e), and 7). Each of the three written subcontracts with
Central Texas (Star’s subcontracts CSUB116 and CSUB140, and Dig Tech’s
subcontract CSUB122) contained an identical Art. 10 which provided:
Payment is subject to complying with items 10.1-10.11 below:
*****
10.3 INVOICE REQUIREMENTS:
(d) Certified payrolls, for the invoice period, if required by the
Agreement Documents.
(Appx Item 14, RR Vol. 15: DX1 at p. 15 (Art. 10); Appx Item 15, RR Vol. 17:
DX2 at p. 15 (Art. 10); Appx Item 16, RR Vol. 18: DX3 at p. 15 (Art. 10)).
This contract provision prohibited Star Operations from seeking or receiving
any payment from Central Texas for work Dig Tech allegedly performed in light of
its admittedly non-compliant certified payroll in violation of both the contract
provisions and federal law. As a condition precedent for Star being paid for work
allegedly performed for Star by Dig Tech, Star had to submit Dig Tech’s certified
{C1208515.DOCX:} 6
If you answered Question 10 "Yes", then answer the following question. Otherwise, do
not answer the following question.
Question 11
Did Dig Tech, Inc. interfere because it had a good-faith belief that it had aright to
threaten garnislunent for the work it performed?
Answer: "Yes" or "No".
Answer:
15
on the federally funded project must be in writing to be enforceable; and/or (2)
mandating accurate certified payroll as a condition precedent of payment.
Dig Tech’s failure to perfect claims against the GAIC payment bonds.
Star and GAIC also alleged that Dig Tech failed to comply with conditions
precedent to perfecting its claims upon the surety GAIC. (CR1350-1352 at Pars. 8-
9). Dig Tech also failed to prove that it complied with these conditions precedent.
This was a “public works” contract on State Highway 130, governed by
either the federal Miller Act or TEX. GOV’T. CODE CH. 2253 (the McGregor Act). If
the Miller Act applied, exclusive jurisdiction was in federal court. If the McGregor
Act applied, in order to perfect any claim against the bonds, Dig Tech was required
to provide multiple specific, statutorily-mandated notices to the “prime” 7 and the
surety. Dig Tech failed to offer evidence of compliance with any of the statutory
notice provisions.
At the close of Dig Tech’s case GAIC moved for a directed verdict on Dig
Tech’s claims for failure to prove compliance with TEX. GOV’T. CODE CH. 2253 as
a condition precedent to GAIC’s liability, which the trial court denied. (RR Vol. 5
at 223:23–227:19; 229:14–230:3; 232:9-15). GAIC submitted proposed jury
questions relating to Dig Tech’s (non)compliance with the McGregor Act. Instead,
7
As discussed below, the “prime” is statutorily defined to be the entity with the direct contract
with the State (i.e., TXDOT). It is undisputed that the only entity with a direct contract with
TxDOT was SH 130 Concession Company, LLC as reflected in the Facility Concession
Agreement (Appx Item 17, RR Vol. 32: DX119).
{C1208515.DOCX:} 8
the trial court ruled as a matter of law that the federal Miller Act did not apply, and
that Dig Tech had “substantially complied” with the McGregor Act, thus
perfecting its bond claim(s). The trial court denied GAIC’s request to submit the
issue of Dig Tech’s compliance with the McGregor Act’s notice requirements to
the jury. (RR Vol. 9 at 136:18–137:7; 141:1–142:18).
Dig Tech failed to submit evidence of damages in compliance with Texas
Civil Practice and Remedies Code § 18.091. TEX. CIV. PRAC. & REM. CODE §
18.091 requires that a claimant present evidence of damages “in the form of a net
loss after reduction for income tax payments or unpaid tax liability pursuant to any
federal income tax law.” When Dig Tech’s representative Mike Furry was
questioned as to whether Dig Tech’s requested damages conformed to this
requirement, Dig Tech objected and the trial court sustained its objection. (RR Vol.
5 at 101:14-103:19 (Dig Tech owner Mike Furry)). By Offer of Proof pursuant to
TEX. R. EVID. 103, Appellants established that Dig Tech did not comply with the
mandatory provisions of § 18.091 which are a precondition to such recovery. (RR
Vol. 5 at 111:19–113:10 (Dig Tech owner Mike Furry)).
Dig Tech failed to segregate recoverable from unrecoverable attorney’s
fees. In addition to the contract and bond claims made the subject of this appeal,
the trial court litigation also involved certain counterclaims by Star against Dig
Tech. Dig Tech’s attorney’s fees incurred in defending these counterclaims were
{C1208515.DOCX:} 9
------······ -···· ·--··
VERDICT CERTIFICATE
Check one:
_X_ Our verdict is unanimous. All twelve of us have agreed to each and every answer. The
presiding juror has signed the certificate for all twelve of us.
Printed arne of Prestdmg Juror
Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the certificate below.
__ Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
SIGNATURE NAME PRINTED
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
22
• 1703
Star Operations and GAIC timely filed a Motion for New Trial on May 11, 2015.
(CR 1862-1868). The Motion for New Trial was overruled by operation of law.
Appellants filed their Notice of Appeal with the trial court on July 9, 2015,
perfecting their appeal to this Court. (CR 1910-1912).
SUMMARY OF ARGUMENT
Because the Project was a federally funded highway project, all contracts on
the Project were governed by federal law. Federal law required as a condition
precedent to forming an enforceable contract that – among other things – any
lower-tier subcontract be in writing and approved by TxDOT. In addition, pursuant
to provisions of the Davis Bacon Act and related applicable federal regulations, as
a condition to the receipt of payment all contractors, subcontractors, and
downstream (lower-tier) subcontractors had to provide statutorily compliant
certified payroll with respect to its hourly employees to their upstream contractor.
The failure of any of these conditions precedent is fatal to the rights of any
subcontractor to seek payment. It is uncontroverted that Dig Tech’s alleged oral
contract with Star Operations and its certified payroll did not comply with these
requirements. As such, no enforceable contract was formed and even if it was, Dig
Tech had no right to payment from Star. The trial court refused to apply federal
law and refused to charge the jury on the existence and/or compliance with these
federally mandated conditions precedent.
{C1208515.DOCX:} 11
Separately, the surety bonds provided by Appellant GAIC were governed by
either the federal Miller Act, in which case the trial court lacked subject matter
jurisdiction, or by provisions of the Texas Government Code Chapter 2253 (the
McGregor Act). The McGregor Act provides strict notice requirements in order to
perfect any bond claim. While it is undisputed that Dig Tech did not comply with
these notice requirements, the trial court nonetheless granted an instructed verdict
in favor of Dig Tech that it had perfected claims against both GAIC bonds, refused
to grant an instructed verdict for GAIC, and refused to submit GAIC’s requested
jury questions regarding compliance with the notice provisions of the Act.
Further, in presenting its evidence to recover attorney’s fees, Dig Tech failed
to segregate attorney’s fees incurred in pursuing those claims for which attorney’s
fees are potentially recoverable from attorney’s fees incurred in defending Star’s
counterclaims, for which recovery is not allowed. Similarly, it failed to present its
damages in compliance with TEX. CIV. PRAC. & REM. CODE § 18.091 - being the
“net loss after reduction of income tax payments or unpaid income tax liability[.]”
Finally, the trial court improperly awarded Dig Tech costs for deposition
transcript photocopies even though Dig Tech neither noticed nor initiated the
depositions. For each of these reasons the judgment entered by the trial court is
flawed. The trial court committed reversible error, requiring reversal and rendition
of a take nothing judgment in favor of Appellants.
{C1208515.DOCX:} 12
ARGUMENT
I. Issue 1: The trial court erred in failing to apply federal law to Dig Tech’s
contract claim because the project was undisputedly a federally funded
highway project, which automatically invoked federal law
The uncontroverted evidence in the case was that the Project was a federally
funded highway project. Dig Tech’s own witnesses confirmed in cross-
examination that they knew or assumed the Project was federally funded. (RR Vol.
4 at 90:23–91:2 (Dig Tech representative Bodie Leslie); RR Vol. 6 at 20:1-8 (Dig
Tech office manager Tracy Lambert)). Dig Tech’s subcontract with Central Texas
was admitted without objection, as were Star’s two subcontracts with Central
Texas. (DX1-3). The three subcontracts contained identical pertinent terms and
conditions, including Attachment 1 to Exhibit 8 (FEDERAL REQUIREMENTS
FOR FEDERAL-AID HIGHWAY PROJECTS), which states:
GENERAL – The work herein proposed will be financed in whole or
in part with Federal funds, and therefore all of the statutes, rules and
regulations promulgated by the Federal Government and applicable to
work financed in whole or in part with Federal funds will apply to
such work.8
8
Appx Item 14, RR Vol. 16: DX1 at p. 69 (Star Subcontract CSUB116 with Central Texas);
Appx Item 15, RR Vol. 18: DX2 at p. 117 (Dig Tech Subcontract CSUB122 with Central
Texas); Appx Item 16, RR Vol. 19: DX3 at p. 69 (Star Subcontract CSUB140 with Central
Texas)
{C1208515.DOCX:} 13
Further, because this project was federally funded, federal contract
regulations applied as a matter of law, irrespective of whether they were expressly
incorporated into the text of the contracts. Specifically, 23 CFR § 635.103 states:
The policies, requirements, and procedures prescribed in this subpart
[entitled “Contract Procedures” and embracing §§ 635.101-127] shall
apply to all Federal aid highway projects.
(See Appx Item 6). In G.L. Christian and Assocs. v. U.S., 312 F.2d 418 (Ct. Cl.
1963), the United States Supreme Court held that when the subject matter of a
contract is governed by valid federal regulations, the regulations are incorporated
into the contract as a matter of law, regardless of whether the parties agree to be
bound by them. The Fifth Circuit has applied Christian to hold:
Government contracts are different from contracts between ordinary
parties. The Government has the unrestricted power to determine
those with whom it will deal, and to fix the terms and conditions upon
which it will make needed purchases. Agreement to such conditions is
unnecessary: where regulations apply and require the inclusion of a
contract clause in every contract, the clause is incorporated into the
contract, even if it has not been expressly included in a written
contract or agreed to by the parties…[W]e would reach [this
conclusion] even in the absence of any oral or written agreements to
particular terms[.]
U.S. v. New Orleans Pub. Surv., Inc., 553 F.2d 459, 469 (5th Cir. 1977)
(emphasis added) (vacated on other grounds, New Orleans Public Service, Inc. v.
U.S., 436 U.S. 942 (1978)); see also Clem Perrin Marine Towing, Inc. v. Panama
Canal Co., 730 F.2d 186, 188 (5th Cir. 1984) (federal form was “part of the
{C1208515.DOCX:} 14
§ 18.091. Proof of Certain Losses; Jury Instruction, TX CIV PRAC & REM§ 18.091
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annas)
Title 2. Trial, Judgment, and Appeal
Subtitle B. Trial Matters
Chapter 18. Evidence
Subchapter D. Certain Losses
V.T.C.A., Ch~l Practice & Remedies Code§ 18.091
§ 18.091. Proof of Certain Losses; Jmy Instruction
Effective: September 1, 2003
Currentness
(a) Notwithstanding any other law, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of
contributions of a pecuniary value, or loss of inheritance, evidence to prove the loss must be presented in the form of a net loss
after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law.
(b) If any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or
loss of inheritance, the court shall instruct the jury as to whether any recovery for compensatory damages sought by the claimant
is subject to federal or state income taxes.
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 13.09, eff. Sept. 1, 2003.
Notes of Decisions (3)
V. T. C. A., Civil Practice & Remedies Code§ 18.091, TX CIV PRAC & REM§ 18.091
Cunent through the end of the 2015 Regular Session of the 84th Legislature
End of Document i'J 20 1511wmson Reuters. No claim to original U.S. Government Works.
V'ip•;!l.•;o,vNext © 2015 Thomson Reuters. ~lo claim to original U.S. Government Works.
Appendix Item 8A
Pursuant to the Supremacy Clause of the United States Constitution, federal
law applicable to the Project governs. NAFTA Traders, Inc. v. Quinn, 339 S.W.3d
84, 97-98 (Tex. 2011). State courts “must follow” applicable federal law. NAFTA
Traders, Inc. v. Quinn, 339 S.W.3d 84, 91 (Tex. 2011). The United States Supreme
Court has made clear that even in state-law breach of contract claims, if federal law
is involved, the federal law requirements are incorporated into the state-law based
breach of contract cause of action. American Tel. and Tel. Co. v. Central Office
Telephone, Inc., 524 U.S. 214, 222 (1998). If the state-law based breach of contract
action cannot be sustained in the event federal law is properly applied, then the
state-law breach of contract claim fails as a matter of law. Id.
In American Tel. and Tel. Co., the plaintiff brought a state-law breach of
contract claim. Defendants argued that because federal law applied, the breach of
contract claim failed. The United States Supreme Court ruled that by applying the
applicable federal law, the state-law breach of contract claim could not be
sustained, since it depended upon facts and circumstances that were precluded by
the applicable federal law. The Supreme Court reached this decision despite the
plaintiff’s contention that it was pursuing claims solely based upon a state-law
breach of contract theory. Just as in American Tel. & Tel. Co., Star Operations
consistently argued that the SH130 Project involved the use of federal funds and
{C1208515.DOCX:} 16
therefore a written subcontract was required by applicable federal law. (CR 1346-
1358 at Pars. 4, 7).
Moreover, in addition to federal requirements being included in the contracts
by operation of law pursuant to the Christian Doctrine, the federal contract
requirements were also expressly incorporated into any and all contracts on the
Project, including any purported subcontract between Dig Tech and Star.
Specifically, the Facility Concession Agreement (“FCA”) between TxDOT and SH
130 Concession Company provides:
Developer shall comply and require its Contractors to comply with all
federal requirements applicable to transportation projects that
receive federal credit or funds, including those set forth in Exhibit 8.
(Appx Item 17, RR Vol. 34: DX119 at p.175) (emphasis added). The FCA also
provides:
[E]ach Contract shall include terms and conditions sufficient to ensure
compliance by that Contractor with the requirements of the FCA
Documents, and shall include those terms that are specifically
required by the FCA Documents to be included therein including, to
the extent applicable, those set forth in Exhibit 8.
(Appx Item 18A: DX119 at p. 69 (Art. 10.2.3); Appx Item 18B, Rule 11
Agreement). Exhibit 8, entitled “FEDERAL REQUIREMENTS FOR FEDERAL-
AID CONSTRUCTION PROJECTS,” was included in each subcontract pursuant
to the “flow-down” provisions of the FCA, discussed infra. (Appx Item 14, RR
Vol. 16: DX1 at pp. 69, 73, 86, 88-90, 98-99, 102-103; Appx Item 15, RR Vol. 18:
{C1208515.DOCX:} 17
§ 2253.001. Definitions, TX GOVT § 2253.001
(C) reasonable rental and actual running repair costs for construction equipment used, or reasonably required and delivered
for use, directly to carry out work at the project site; or
(D) power, water, fuel, and lubricants used, or ordered and delivered for use, directly to cany out a public work.
(7) "Retainage" means the part of the payments under a public work contract that are not required to be paid within the month
after the month in which the public work labor is performed or public work material is delivered under the contract.
(8) "Specially fabricated material" means material ordered by a prime contractor or subcontractor that is:
(A) specially fabricated for use in a public work; and
(B) reasonably unsuitable for another use.
(9) "Subcontractor" means a person, firm, or corporation that provides public work labor or material to fulfill an obligation
to a prime contractor or to a subcontractor for the performance and installation of any of the work required by a public work
contract.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § I, eff. Sept. I, 1993. Amended by Acts 1999, 76th Leg., ch. 62, § 8.20, eff. Sept.
1, 1999.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
(1) The definitions of"governmental entity," "payment bond beneficiary," "public work contract," and "specially
fabricated material" are added to the revised law for drafting convenience and to eliminate frequent, unnecessary
repetitions of the substance of the definitions.
(2) In the definitions of"public work contract," "public work labor," and "public work material," the revised law
substitutes the phrases "carrying out" and "to cany out" for the source law term "prosecution" because the terms
are synonymous and the former is more commonly used.
(3) In the definition of"prime contractor," the revised law substitutes the term "public work contract" for the source
law term "formal contract" because this section defines "public work contract" to mean "a contract for constructing,
altering, or repairing a public building or carrying out or completing any public work" and it is clear from the
context ofthe source law that "formal contract" is intended to refer to a "public work contract."
(4) In the definition of"prime contractor," the revised law substitutes the term ''governmental entity" for the source
law list of governmental entities with whom the prime contractor may contract because the revised law defines
"governmental entity" to mean those entities.
\-'V~e·ill·:r·.vNext © 2015 Thomson Reuters. ~lo claim to original US. Government Works. 2
DX3 at p. 87 (Art. VII(e))). Further, these provisions were incorporated into Dig
Tech’s own written contract with Central Texas (Appx Item 15, RR Vol. 17: DX2
at p. 11), which imputed actual knowledge to Dig Tech of their applicability. In re
Bank One, N.A., 216 S.W.3d 825, 827 (Tex. 2007, orig. proceeding) (holding
arbitration clause in a contract incorporated by reference into a signature card
signed by account holder was binding on account holder). Therefore, Dig Tech is
conclusively presumed to have knowledge that any enforceable contract on a
federally funded highway project must be in writing, as a mandatory provision of
any procurement of Dig Tech’s services. Id.
Pursuant to Christian and its progeny, and in light of the express provisions
of the written contracts applicable to the Project, all actual and potential contracts
for work on the Project incorporated all applicable federal laws, statutes, rules, and
regulations. Therefore, they became part of any purported contract between Star
Operations and Dig Tech on the SH 130 Project. G.L. Christian and Assocs. v.
U.S., 312 F.2d 418, 427 (Ct. Cl. 1963); In re Bank One, N.A., 216 S.W.3d 825, 826
(Tex. 2007); In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010).
Having established that federal contract requirements applied to this Project,
the next inquiry is determining what those requirements were and whether they
were met.
A. Issues 2 and 3: The trial court erred in refusing to submit proposed jury
question(s) on: (1) Dig Tech’s failure to procure a written contract with Star;
{C1208515.DOCX:} 19
§ 2253.001. Definitions, TX GOVT § 2253.001
Notes of Decisions (42)
V. T. C. A., Government Code§ 2253.001, TX GOVT § 2253.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document (!J 20 J 5 Thomson Reuters. No claim to original U.S. Government Works
'NP"·ll·'C'.VNext © 2015 Thomson F\euters. No claim to original lJ S Government Works. 3
such written, TxDOT-approved agreement. In paragraphs 4 and 7 of their live
pleading Appellants specifically denied the performance of all conditions
precedent and specifically raised the applicability of federal law to the Project and
any contract claims of Dig Tech. (CR 1346-1358). Specific denials included the
failure of Dig Tech to comply with the condition precedent of a written contract as
required by applicable federal law. As such, Dig Tech bore, but could not meet, the
burden of proving that it had an enforceable agreement, since its alleged agreement
was admittedly verbal and in violation of applicable federal law.
“A party seeking to recover under a contract bears the burden of proving that
all conditions precedent have been satisfied.” Associated Indem. Corp. v. CAT
Contracting, Inc., 964 S.W.2d 276, 283 (Tex. 1998). A condition precedent may
either be a condition to the formation of a contract or to an obligation to perform
an existing agreement. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537
S.W.2d 1, 3 (Tex. 1976); Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.
1992); Fitzgibbons v. Hughes, Id. A condition precedent will be implied when
there is “obvious necessity” or—as here—there are “public policy reasons” for it.
Snyder v. Eanes ISD, 860 S.W.2d 692, 696 (Tex. App. – Austin 1993, writ
denied.).
Dig Tech will no doubt urge that it was unfamiliar with or unaware of these
legal requirements. This argument fails factually and legally. Dig Tech’s own
{C1208515.DOCX:} 21
written subcontract with Central Texas (Appx Item 15, RR Vol. 17: DX2)
contained these requirements, imputing actual and constructive knowledge of their
applicability. “As a matter of law, it is conclusively presumed parties know the
law and contracted with reference to it.” Snyder, 860 S.W.2d at 697. A party who
signs a contract is charged by law with knowledge of its contents. Nat’l Prop.
Holdings, LP v. Westergren, 453 S.W.3d 419, 425 (Tex. 2015) (per curiam)
(holding that “the law presumes that a party knows and accepts the terms of a
contract the party signs, and it is not the Court’s role to protect the parties from
their own agreements.”). This is particularly true with respect to federal rules,
regulations, and contract requirements. General Engineering & Machine Works v.
O’Keefe, 991 F.2d 775, 780 (Fed. Cir. 1993); Century Marine, Inc. v. United
States, 153 F.3d 225, 228 (5th Cir. 1998); Worthen v. Fidelity Nat. Prop. & Cas.
Ins. Co., 463 Fed.Appx.422 (5th Cir. 2012); UPMC Braddock v. Harris, 934 F.
Supp. 2d 238, 259 (USDC 2013) ) vacated on other grounds as moot 584
Fed.Appx.1 (D.C. Cir. 2014); Federal Crop Ins. Corp. v. Merrill, 332 US 380
(1947).
The trial court must render judgment against the party who had the burden
of proof on a missing element when (1) the opposing party objected to the missing
element, (2) an affirmative finding on the missing element is essential to the claim
or defense, and (3) the missing element is not established as a matter of law in
{C1208515.DOCX:} 22
favor of the party with the burden of proof. McKinley v. Stripling, 763 S.W.2d 407,
410 (Tex. 1989) (rendition by Court of Appeals affirmed where trial court failed to
submit jury issue on proximate cause and defendant objected to absence of such
issue); Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657, 660 (Tex.
App.—Corpus Christi 1988, writ denied) (rendition against plaintiff where trial
court improperly failed to submit questions on essential elements of premises
liability claim and defendant objected and submitted questions on issue). When the
opposing party objects to a missing element, a court cannot deem the missing
element in favor of the party with the burden of proof on that element. See
Physicians & Surgeons, 752 S.W.2d at 660. In such a case, the party with the
burden of proof did not secure a finding on the omitted element, which forecloses
that claim or defense. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529
(Tex. 1997); Dallas Cty. Med. Coc’y v. Ubinas-Brache, 68 S.W.3d 31, 40 (Tex.
App.—Dallas 2001, pet. denied).
Appellants properly preserved error by objecting to the court’s refusal to
submit jury questions on failure of contract formation for lack of compliance with
federal requirements and failure of conditions precedent. The trial court improperly
denied submission of these various jury questions. (RR Vol. 9 at 136:10-17;
142:19–144:24).
B. Issue 4: The trial court erred in refusing to submit proposed jury question(s)
on Dig Tech’s failure to provide statutorily compliant “certified payroll” to
{C1208515.DOCX:} 23
§ 2253.048. Mailing Notice, TX GOVT § 2253.048
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annas)
Title 10. General Government (Refs &Annas)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Perfmmance and Payment Bonds (Refs &Annas)
Subchapter C. Notice Requirements
V.T.C.A., Government Code§ 2253.048
§ 2253.048. Mailing Notice
Effective: September 1, 2001
Currentness
(a) A notice required by this subchapter to be mailed must be sent by certified or registered mail.
(b) A notice required by this subchapter to be mailed to a prime contractor must be addressed to the prime contractor at the
contractor's residence or last known business address.
(c) A person satisfies the requirements of this subchapter relating to providing notice to the surety if the person mails the notice
by certified or registered mail to the surety:
(1) at the address stated on the bond or on an attachment to the bond;
(2) at the address on file with the Texas Deparhnent oflnsurance; or
(3) at any other address allowed by law.
Credits
Added by Acts 1993, 73rdLeg., ch. 268, § l, eff. Sept. 1, 1993. Amended by Acts2001, 77th Leg., ch. 380, § 4, eff. Sept. 1,2001.
V. T. C. A., Government Code§ 2253.048, TX GOVT § 2253.048
Current through the end of the 2015 Regular Session ofthe 84th Legislature
Eud of Document (["'l 20 IS Thomson Reuters_ No claim to original U.S_ Government Works.
W?''li·?;wNext © 20'15 Thomson Reuters. ~lo claim to original U.S. Government Works.
Appendix Item 13
Koblizek,752 S.W.2d 657, 660 (Tex. App. – Corpus Christi 1988, writ denied);
Dallas Cty. Med. Co’y v. Ubinas-Brache, 68 S.W.3d 31, 40 (Tex. App. – Dallas
2001, pet. denied).
C. Issues 5-7: The trial court erred in awarding Dig Tech contract damages
because it was undisputed that Dig Tech failed to: (1) obtain a written
contract with Star; (2) obtain TxDOT approval to its purported verbal
contract with Star; or (3) provide statutorily compliant “certified payroll” to
Star
Since applicable federal law renders the oral agreement Dig Tech sued upon
unenforceable as a matter of law, Appellants are entitled to reversal and rendition
of a take nothing judgment in their favor. McKinley v. Stripling, 763 S.W.2d 407,
410 (Tex. 1989); Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657,
660 (Tex. App. – Corpus Christi 1988, writ denied); Clayton W. Williams, Jr., Inc.
v. Olivo, 952 S.W.2nd 523, 529 (Tex. 1997); Dallas Cty. Med. Co’y v. Ubinas-
Brache, 68 S.W.3d 31, 40 (Tex. App. – Dallas 2001, pet. denied).
The uncontroverted evidence at trial showed that Dig Tech’s purported
contract with Star was verbal and unapproved by TxDOT. The uncontroverted
evidence also showed Dig Tech failed to provide Star statutorily compliant
“certified payroll.” As set out above, as a matter of law, these facts prevented
formation of an enforceable contract upon which Dig Tech could recover payment.
Star raised these issues repeatedly at trial and in its Motion for Judgment
Notwithstanding the Verdict. The trial court erred in overruling such motion and in
{C1208515.DOCX:} 25
ultimately awarding Dig Tech contract damages because the uncontroverted
evidence conclusively negated Dig Tech’s contract cause of action.
II. Issues 8-11: The trial court erred in applying the law to Dig Tech’s claim(s)
against the GAIC payment bonds
Star and GAIC asserted at trial and continue to contend that the federal
Miller Act applies to this federally funded public works project, which places
exclusive subject matter jurisdiction over the bond dispute in federal court.
However, if the Texas McGregor Act applies, the uncontroverted evidence at trial
showed that Dig Tech failed to comply with its notice requirements and therefore
failed to perfect any bond claims as a matter of law.
A. Issue 8: The trial court erred in refusing to dismiss Dig Tech’s claim(s)
against the GAIC payment bonds for lack of jurisdiction because the federal
Miller Act applied to the claim(s)
The federal Miller Act requires contractors on “public work” projects to
provide performance and payment bonds. 40 U.S.C. § 3131. “[A] public work
within the Miller Act is any work in which the United States is interested and
which is done for the public and for which the United States is authorized to
expend funds.” Continental Cas. Co. v. C.O. Brand, Inc., 355 F.2d 969, 974 (5th
Cir. 1966). The Project is admittedly a federally funded project for the purpose of
creating a roadway for public use, triggering the Miller Act analysis.
{C1208515.DOCX:} 26
When the Miller Act applies, the McGregor Act does not. TEX. GOV’T. CODE
§ 2253.001, et seq.; see Ex rel. United Rentals, Inc. v. Hartford Fire Ins. Co., 339
F. Supp.2d 799, 801-02 (W.D. Tex. 2004). Dig Tech had the burden of pleading
facts showing the trial court had subject-matter jurisdiction. Appellants properly
preserved this issue by asserting in their live pleading a Plea to the Jurisdiction
(CR 1352-1353 at Par. 10). See Tex. Dep’t. of Parks & Wildlife v. Miranda, 133
S.W.3d 174, 176 (Tex. 2004).
Exclusive jurisdiction of the Miller Act claims lies in federal court. See Ex
rel. United Rentals, 339 F. Supp. 2d at 803. Accordingly, if the Miller Act applied,
Dig Tech could not meet its burden to properly establish the trial court’s subject-
matter jurisdiction over the bond claims against GAIC.
B. Issue 9: If the Texas McGregor Act applied to Dig Tech’s payment bond
claim(s), the trial court erred in ruling as a matter of law that Dig Tech
perfected any claim against the bonds
Assuming the Miller Act did not apply, as the trial court ruled (RR Vol. 5 at
223:23–227:19; 229:14–230:3; 232: 9-15), the McGregor Act would apply.
Because the evidence showed that Dig Tech failed to perfect any bond claim
against GAIC under the McGregor Act, the trial court erred in holding Dig Tech
perfected any claim.
It is undisputed that there were two separate subcontracts between Star and
Central Texas with two separate surety bonds. Dig Tech claimed it performed work
{C1208515.DOCX:} 27
under each subcontract. In order to perfect a bond claim on each of the bonds (or
either of them) under the McGregor Act, Dig Tech was required to comply with
the terms of the McGregor Act. This included a requirement that Dig Tech:
…mail to the prime contractor written notice of a claim for any
unpaid public work, labor performed, or public work material
delivered … on or before the 15th day of the second month after each
month in which the labor was performed or the material was
delivered.
TEX. GOV’T. CODE § 2253.047(c). Dig Tech was also required to mail to both the
surety (GAIC) and the prime contractor:
…written notice of the claim…on or before the 15th day of the third
month after each month in which any such claimed labor was
performed or any of the claimed material was delivered [and a] sworn
statement of account that states in substance: (1) the amount claimed
is just and correct; [and] (2) all just and lawful offsets, payments, and
credits known to the affiant have been allowed.
TEX. GOV’T. CODE § 2253.041 (emphasis added). All notices to the prime
contractor and the surety were required to be sent by Registered or Certified Mail.
TEX. GOV’T CODE § 2253.048(a). Because Dig Tech claims work under each of
Star’s subcontracts, it was required to provide notice on each bond and produce
evidence on the value of work claimed on each Star subcontract (and GAIC bond).
For purposes of compliance with the McGregor Act, the “prime contractor”
is the “person, firm, or corporation that makes a public work contract with a
government entity.” TEX. GOV’T. CODE § 2253.001(3). As reflected in the FCA
admitted into evidence (Appx Item 17, RR Vol. 32: DX119), SH130 Concession
{C1208515.DOCX:} 28
Company, LLC was the sole entity with a direct contract with TxDOT. Neither
Central Texas, nor Star, nor Dig Tech had a contract with any government entity.
Thus, only SH130 Concession Company qualifies as the “prime contractor” for
purpose of complying with the McGregor Act.
The uncontroverted and undisputed evidence established that Dig Tech
provided no notice to SH130 Concession Company (the prime contractor) at any
time, in any format, on either bond. The evidence also conclusively shows Dig
Tech provided no sworn statement of account to GAIC complying with the
mandatory provisions of TEX. GOV’T. CODE § 2253.041. Instead Dig Tech argued
that it “substantially complied” by sending an email to Central Texas—not the
“prime contractor”—dated March 16, 2012 (Appx Item 20, RR Vol. 12: PX63) and
a single letter to GAIC dated May 1, 2012 that did not contain the statutorily-
mandated sworn statement of account (Appx Item 21, RR Vol. 15: PX 183). As to
the latter notice, it only referenced CSUB-140 (Appx Item 16, RR Vol. 18: DX3).
It did not reference CSUB-116 (Appx Item 14, RR Vol. 15: DX1). It did not meet
the sworn statement requirement. Clearly, Dig Tech did not provide the statutorily-
mandated notices required to perfect a claim for any work in October, 2011
through April, 2012. Accordingly, Dig Tech failed to prove that it perfected its
claims on the GAIC bonds.
{C1208515.DOCX:} 29
At trial, Dig Tech claimed that even though it did not provide timely and
compliant notices properly accompanied by sworn statements of account, it
nevertheless “substantially complied” with the McGregor Act’s notice
requirements. It is true that a claimant may maintain a McGregor Act bond claim
despite semantic variances from the statutory notice language under the doctrine of
“substantial compliance.” See, e.g. Featherlite Bldg. Products Corp. v.
Constructors Unlimited, Inc., 714 S.W.2d 68, 69 (Tex. App.—Houston [14th Dist.]
1986, writ ref’d n.r.e.) (substantial compliance held where sworn statement of
account stated amounts were “due and unpaid” instead of “just and correct.”);
Capitol Indemn. Corp. v. Kirby Restaurant Equipment and Chemical Supply Co.,
Inc., 170 SW.3d 144, 148 (Tex. App.—San Antonio 2005, pet. denied) (substantial
compliance held where sworn statement of account stated the claim was “currently
unpaid and owing,” “now due,” and represented the “current payment due,” instead
of “just and correct.”).
However, Texas courts require strict—not merely “substantial” compliance
with the Act’s notice deadlines. Suretec Ins. Co. v. Myrex Industries, 232 S.W.3d
811, 816 (Tex. App.—Beaumont 2007, pet. denied) (distinguishing failure to
provide timely notice from “substantial compliance” cases involving semantic
variances from statutory language; holding “substantial compliance” will not
satisfy requirement that bond notices be made timely; concluding that untimely
{C1208515.DOCX:} 30
notice barred claim even though it was only one day late and the deadline fell on a
Sunday.); see also Laboratory Design & Equipment, Inc. v. Brooks Development
Authority, No. 04-07-00284-CV, 2008 WL 36614 at *3 (Tex. App.—San Antonio
Jan. 2, 2008, no pet.) (Claimant failed to perfect bond claim under McGregor Act
where notices were untimely). Moreover, when the claimant fails to provide the
required sworn statement of account, the claimant does not substantially comply
with the Act and fails to perfect its bond claim. See Laboratory Design &
Equipment, Inc., 2008 WL at *3 (Claimant failed to perfect bond claim where it
failed to provide any sworn statement of account as required; specifically rejecting
argument that notice efforts constituted “substantial compliance.”).
Dig Tech’s lone notice to GAIC was unaccompanied by any sworn
statement of account, and therefore did not substantially comply with the Act. Id.;
TEX. GOV’T. CODE § 2253.041. Dig Tech offered no evidence that it ever provided
any notice at all to the prime contractor (SH130 Concession Company) as required
by TEX. GOV’T. CODE §§ 2253.001, 2253.041, and 2253.047. Accordingly, Dig
Tech failed to prove it perfected its bond claims.
Despite failing to prove claim perfection and instead of submitting jury
questions on compliance, Dig Tech requested that the Court rule as a matter of law
that it had “substantially complied with the notice provisions such that GAIC has
{C1208515.DOCX:} 31
Agreement #CS UB116
I
I
SH130 Segments 5 and 6
Illumination and Signal
Iii that each laborer or mechanic has been paid not iess that the
applicable wage rate and fringe benefits or r;ash equivalent for the
classifica tion of wo1ked performed, as specified In the applicable
wage determination Incorporated into the contract.
e. The weekly submission of a properly executed certification set forth
on the reverse side of Optional Form WH~347 shall satisfy the
requirement for submission of the 11Statement of Compllance 0
required by paragraph 2d ofthis Section V.
f. The falsification of any of tho above certfficatlons may subject t11e
contractor to clvil or criminal prosecution under 18 U.S.C. 1001 and
31 u.s.c. 231.
g. The contractor or subcontrdctor sl1all make the records required
under paragraph 2b of this Sectlor\ V available for inspection,
copying, or transcription by autllorized representatives of the SHA,
the FHWA, or the DOL, and shall petmlt such representatives to
interview employees during working hours on the job. If the
contractor or subcontractor fails to submit the required records or to
mal JUDICIAL DISTRieT
ST!\.R OPERATIONS, INC. §
GREAT AMERICAN INSURANCE §
'COI\I(P.AN¥ OF NEW YORK §
§ Cb.LDWJ!)J.,;L C"OlJ'NT'i';
§ TEXAS
Defendants. §
FJ~M.. ln'JD:GMENT
On 'February 2:0, :20T5, the Court entered a traditional summary judgment against
DefehdantStat Operations, Inc.'s (''Star Opet;ations") counterclaim for fraud.
On February 23, 201.5, the Court <:ailed fuis l)ase for -tri'al, The Plaintiff Dig Tech, Inc.
("Dig Tech") appeared in person and through its attorneys and. annqJmg~d read.y {or t!ial, The
Defendants Stat Operations, Inc. ("Star Operations") and Great Americanlnsurance Company of
New York ("G.t\!C") appeared in person and through their attorneys and announced ready for
trial. The Court then empanelled and swore in a jury consisting of twelve jurors, and the case
proceeded to trial.
On February 26 and March 4, the Court ruled that Djg Tech sUbstantially complied with
the notice provisions of the McGregor Act and that the Miller Act does not apply to Dig Tech's
claims.
On March 4, 2015, the Court submitted questions, definitions, and instructions to the juryi ·
On March 5, 2015, the jury returned a unanimous Verdict. The jury's unanimous Verdict was
received, filed, and entered of record.
1
-·
Appendix
.. Item 1
---· - - - - - - - - - - - - - - - - -
~
•
The Comt, having considered the pleadings, the evidence, the jury Verdict, and the
applicable law, hereby renders Judgment in favor of Plaintiff Dig Tech and against Star
Operations and GAIC on all claims asserted.
Accordingly, it is ORDERED that Dig Tech have and recover from Star Operations and
GA!C, jointly and severally:
1. Actual damages in t\J.e amount of $728~524.
:;z,. Rea!!onable and necess!U'Y attorneys? fees in the iunount of $330,950 for the
pros~cution of this case thr.ough J)ldgm!lnt,
3. Reasonable and necessary' attorne,ys' fees fn the. amount of $60,030 for
representation through appeal to the court of [\ppeals; ,$8,625 for-representation at the: petition for
review s(ag!l in the Supreme Court of Texas; $~;62~ for representation at the merits briefing
stage in the Supreme Court of Texas; and $34,500 for representation through oral argument and
the complelion ofproceer!i!'lgs in t)le SupKeme Court of Texas.
4. All Cotlrt costs, pursuant to Texas mill oJ ¢.1\rii Procedqre ~31, incl1.1ding the cost
of deposition transcripts and subpoenas necessarily obtained for-use in this. suit, in the amount of
~§,84§.8§. ~ s,ss~a.l>l ~':l rdl,h J !'II. Pl-.,·n~;th' lh.·rJ Jl..,,,.J, d l'!!il\ ofC~r,+-.,.
5. Prejudgment interest, .fJ'IfSiiaffi tQ 'Fex~ Prgp@l't'i Code § 28.003-, on the unpaid
'5% ~ "i11 't~C1.7Lj- Apr."llb ~111
invoice amounts at the rate of 1-8% in the amount of$68,HM' up to Mareh G, 20Hi, flfte aeettting
.,
daily iR tQ.s ame.'Bnt of $11:2...79. ~~il the date q£ thfg; Judgtneilt.
6. Post judgment interest on all of the above amounts at the rate of 5% compounded
annually, from the date of this Judgment is entered until all mounts are paid in full.
It is further ORDERED that Star Operations take nothing on its fraud and tortious
interference counterclaims against Dig Tech.
2
3619506vl/014338
1621
~ ------~------- -------------
It is further ORDERED that Dig Tech substantially complied with the noti~e .Provisions
of the McGregor Act in order to perfect its bond claim against GAIC. Accordingly, GAIC is
obligated under the terms of its bond to make the payments that Star Operations failed to make.
"'-1'Ji1S: (l)riignten€ fimilty; tl"fupn"S\7S rof'',altclallns:;aml ·all p·arlies./anlt IS.,san'-appealablc
<-~· .. ___ ,_,' .,. ___.,~.. _. .•. --··--- . ---~- ._, ---- --.-- ' ,_,_ --·-----------f.
.•· ---- - .. - .•,. -~·-'-· ., . • -·" -- .
_final Jlldgm~nt~,
The Court· ORDERS Execu\ion to issue for this Final Judgmeat.
_ FlLEDtliisLit:df&I~2~/S
TINA MORGAN FREEMAN l
I
CLERKDISTRICTS~T-CALDWELLCO.,TX.
•J'J/a•tiJ. Fu,- i~ ·· . ,,
BY-~- .. ::__._.~~ __ Deputr· i
~
'
GA\ c
3
·:L··
CAUSE 12-0-337
DIG TECH, INC. §
§ IN THE DISTRICT COURT
Plaintiff, §
§
v. §
§ 22ND JUDICIAL DISTRICT
STAR OPERATIONS, INC. §
GREAT AMERICAN INSURANCE §
COMPANY OF NEW YORK §
§ CALDWELL COUNTY,
§ TEXAS
Defendants. §
CORRECTEDCHARGEOFTHECOURT
LADIES AND GENTLEMEN OF TilE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that a1e attached, and. reach a verdict. You may discuss the case with other jurors only
when you a1e all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or
conduct any resea~ch. Do not look up any words in dictiona~ies or on the Internet. Do not post
information about the case on the Internet. Do not share any special knowledge or experiences
with the other jurors. Do not use your phone or any other electronic device during your
dellberations for any reason.
Any notes you have taken a1e for your own personal use. You may take your notes back
into the jury room and consult them during deliberations, but do not show or read your notes to
your fellow jurors during your deliberations. Your notes a1e not evidence. Each of you should
rely on your independent recollection of the evidence and not be influenced by the fact that
another juror has or has not taken notes.
Here ale the instructions for answering the questions.
1. Do not let bias, prejudice, or sympathy play any pait in your decision.
2. Base your answers only on the evidence admitted in court and on the law that is in
these instructions and questions. Do not consider or discuss any evidence that was not admitted
in the courtroom.
2
Appendix Item 2
.. -~ ...
,---·. - --------·-
.'
Agreement #CSUB122
SH130 Sogments 5 and 6
Furnish and Install Electric Distribution Facilities
1. On all Federal·ald contracts on the National Highway System, except
those which provide solely for the Installation of protectJve devices at
railroad grade crossings, those which are constructed on a force account
or direct labor basis, highway beautification contracts, and contracts for
which the total final construction cost for roadway and bridge Is less than
$1,000,000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and supplies
contained ln Form FHWA-47, "Statement of Materials and Labor
Used by Developer of Highway Construction Involving Federal
Funds," prior to the commencement of work under tl1ls contract.
b. Maintain a record of the total cost of all materia-ls and supplies
purchased for and Incorporated in the work, and also of the
quantities of those specific materials and supplies fisted on Form
FHWA-47, and In the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract, to the SHA resident
engineer on Form FHWA47 together with the data required in
paragraph 1b relative to materials and supplies, a final labo•·
summary of all contract work indicating the total hours worked and
the total amount earned.
2. At the prime contractor's option, either a single report covering all contract
work or separate reports for the contractor and for each subcontract shall
be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with Its own organization contract work
amounting to not less than 30 percent (or a greater percentage if specified
elsewhere In the contract) of the total original contract price, excluding any
specialty items designated by the State. Specialty ftems may be
performed by subcontract and the amount of any such specialty Items
performed may be deducted from the total original contract price before
computing the e~mount of work required to be performed by the
contractor's own organization (23 CFR 635),
a. "Its own organization" shalf be construed to· Include only workers
employed and paid directly by the prime contractor and equipment
owned or rented by the prime contractor, with or witbout operators.
Such term does not include employees or equipment of a
subcontractor, assignee, or agent of the prime contractor.
I
J.
II
C0670277..PDF
another trial. If a juror breaks any of these rules, tell that person to stop and report it to me
immediately.
DEFINITIONS AND GENERAL INSTRUCTIONS
You are instructed to use the following definitions when the defined words appear in
specific questions ·
"Dig Tech" shall refer to Plaintiff Dig Tech, Inc.
"Star Operations" shall collectively refer to Defendant Star Operations, Inc.
"Central Texas" shall refer to Central Texas Highway Constructors, LLC.
4
Question 1
Did Dig Tech and Star Operations agree that Dig Tech would conduct boring work for
Star Operations, and that Star Operations would pay Dig Tech for such boring work?
In deciding whether the parties reached an agreement, you may consider what
they said and did in light of the surrounding circumstances, including any earlier
course of dealing. You may not consider the parties' unexpressed thoughts or
intentions.
A party's conduct includes the conduct of another who acts with the party's
authority or apparent authority.
Apparent authority exists if a party (1) knowingly permits another to hold himself
out as having authority or, (2) through lack of ordinary care, bestows on another
such indications of authority that lead a reasonably prudent person to rely on the
apparent existence of authority to his detriment. Only the acts of the party sought
to be charged with responsibility for the conduct of another may be considered in
determining whether apparent authority exists.
A party's conduct includes conduct of others that the party has ratified.
Ratification may be express or implied.
Implied ratification occurs if a party, though he may have been unaware of
Unauthorized conduct taken on his behalf at the time it occurred, retains the
benefits of the transaction involving the unauthorized conduct after he acquired
full knowledge of the unauthorized conduct. Implied ratification results in the
ratification of the entire transaction.
)
Answer: ''Yes" or "No".
Answer: ~es
5
If you answered Question 1 "Yes", then answer the following question. Otherwise, do
not answer the following question.
Question 2
Did Star Operations fail to comply with the agreement?
Answer: ''Yes" or "No.
Answer: \/es
6
If you answered Question 2 "Yes", then answer the following question. Otherwise, do not
answer the following question.
Question 3
Was Star Operations' failure to comply excused?
Failure to comply by Star Operations is excused by Dig Tech's previous failure to
comply with a material obligation of the same agreement.
The circumstances to consider in determining whether a failure to comply is
material include:
1. the extent to which the injured party will be deprived of the benefit which
he reasonably expected;
2. the extent to which the injured party can be adequately compensated for
the part ofthat benefit of which he will be deprived;
3. the extent to which the party failing to perform or to offer to perform will
suffer forfeiture;
4. the likelihood that the party failing to perform or to offer to perform will
cure his failure, taking into account the circumstances including any
reasonable assurances;
5. the extent to which the behavior of the party failing to perform or to offer
to perform comports with standards of good faith and fair dealing.
Failure to comply by Dig Tech is excused if compliance is waived by Star
Operations. Waiver is an intentional surrender of a known right or intentional
conduct inconsistent with claiming the right.
Answer: "Yes" or "No".
Answer:
7
If you answered Question 3 "Yes", do not answer the following question.
Question 4
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Dig Tech for its damages; if any, that resulted from Star Operations' failure to comply?
Consider the following elements of damages, if any, and none other.
The reasonable value of the work performed by Dig Tech at the time and place it was
performed.
Answer in Dollars and Cents, if any.
Answer: tlJ.<).$, s-a4. ~;Q
8
·~·
If you answered Question 1 "Yes", do not answer the fol'Q,wirt!fquestion.
Question 5
Did Dig Tech perform compensable work for Star Operations?
One party performs compensable work if valuable services are rendered or
materials furnished for another party who knowingly accepts and uses them and if
the party accepting them should know that the performing party expects to be paid
for the work.
Answer: ''Yes" or ''No.
Answer:
9
If you answered Question 5 "Yes", then answer the following question. Otherwise, do not
answer the following question.
Question6
Do you find that Star Operations has been unjustly enriched with respect to the work you
have found Dig Tech performed?
Answer: "Yes" or "No.
Answer:
10
If you answered Question 5 "Yes", then answer the following question. Otherwise, do not
answer the following question.
Question 7
Do you find that Dig Tech would be unjustly penalized if Star Operations were pennitted
to retain the benefits of Dig Tech's work without paying anything in return?
Answer: "Yes" or ''No.
Answer:
11
If you answered Questions 5, 6, and 7 "Yes", then answer the following question.
Otherwise, do not answer the following question.
Question 8
What is the reasonable value of such compensable work at the time and place that it was
performed?
Answer in Dollars and Cents, if any.
Answer:
12
If you answered Question 4 or Question 8, then answer the following question.
Otherwise, do not answer the following question.
Question 9
What are the reasonable fees for the necessary services of Dig Tech's attorneys, stated in
dollars and cents?
Answer with an amount for each of the following:
I. For representation in the trial court.
1$. (')0
Answer: 3"301 9SO.
2. For representation through appeal to the court of appeals.
Answer: 1J 60, 0?:.0· tll
3. For representation at the petition for review stage in the Supreme Court of Texas.
Answer: · d/ ?J 1 6a. S ·co
4. For representation at the merits briefing stage in the Supreme Court of Texas.
Answer: .:t[ ~ 1 b a~. <:IO
5. For representation through oral argument and the completion of proceedings in
the Supreme CourtofTexas.
Answer: $ 3'-/,.SCO
13
Question 10
Did Dig Tech, Inc. intentionally interfere with the contract between Star Operations, Inc.
and Central Texas Highway Constructors, LLC?
Interference is intentional if connnitted with the desire to interfere with the
contract or with the belief that interference is substantially certain to result.
Answer: "Yes" or "No".
Answer:
14
If you answered Question 10 "Yes", then answer the following question. Otherwise, do
not answer the following question.
Question 11
Did Dig Tech, Inc. interfere because it had a good-faith belief that it had aright to
threaten garnislunent for the work it performed?
Answer: "Yes" or "No".
Answer:
15
If you answered Question 11 "No", then answer the following question. Otherwise, do
not answer the following question.
Question 12
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Star Operations for its damages, if any, proximately caused by Dig Tech's inte1ference?
"Proximate cause" means a cause that was a substantial factor in bringing about
an event, and without which cause such event would not have occurred. In order
to be a proximate cause, the act or omission complained of must be such that a
person using the degree of care required of him would have foreseen that the
event, or some similar event, might reasonably result therefrom. There may be
more than one proximate cause of an event.
Consider the following elements of damages, if any, and none other.
• the difference, if any, in the reasonable and necessary attorneys' fees
incurred for the "Dig Tech Claim," and the fees awarded by the arbitration
tribunal for the "Dig Tech Claim," if any
Do not add any amount for interest on damages, if any.
Answer in Dollars and Cents, if any:
Answer:
16 .
Answer the following question only if you answered "Yes" to Question 10. Otherwise,
do not answer the following Question.
To answer "Yes" to the following Question, your answer must be unanimous.
Otherwise, you must not answer the Question.
Question 13
Do you find by clear and convincing evidence that the harm to Star Operations resulted
from malice on the part of Dig Tech?
"Clear and convincing evidence" means the measure or degree of proof that produces a
firm belief or conviction of the truth of the allegations sought to be established.
"Millice" means a specific intent by Dig Tech to cause substantial injury or harm to Star
Operations.
Answer: "Yes" or "No".
Answer: No
17
·~· -- - - - - - ······---'
Answer the following question only if you unanimously answered "Yes" to Question 13.
Otherwise, do not answer the following Question.
You must unanimously agree on the amount of any award of exemplary damages.
Question 14
What sum of money, if any, if paid now in cash, should be assessed against Dig Tech and
awarded to Star Operations as exemplary damages, if any, for the conduct of Dig Tech found in
response to Question 13.
"Exemplary damages" means an amount that you may in your discretion award as a
penalty ofby way of punishment.
Factors to consider in awarding exemplary damages, if any, are-
l. The nature of the wrong.
2. The character of the conduct involved.
3. The degree of culpability of Dig Tech.
4. The situation and sensibilities of the parties concerned.
5. The extent to which such conduct offends a public sense of justice and propriety.
6. The net worth of Dig Tech in dollars and cents, if any.
Answer in dollars at1d cents, if any.
Answer:
18
Question 15
Do either of the parties have "unclean hands"?
A party has "unclean hands" if its own conduct in connection with the same
matter or transaction has been unconscientious, unjust, or marked by a want of
good faith, or if it has violated the principles of equity and righteous dealing,
which injured the other party.
Answer "Yes" or "No" for each of the following:
a. DigTech
Answer: ·_NI-'!.lo.oL.._._ __
b. Star Operations
Answer: -~+'e=-'"s'------
19
noo
Presiding Juror:
1. When you go into the jury room to answer the questions, the first thing you will
need to do is choose a presiding juror.
2. The presiding juror has these duties:
a. have the complete charge read aloud if it will be helpful to your
deliberations;
b. preside over your deliberations, meaning manage the discussions, and see
that you follow these instructions;
c. give written questions or comments to the bailiff who will give them to the
judge;
d. write down the answers you agree on;
e. . get the signatures for the verdict certificate; and
f. notifY the bailiff that you have reached a verdict.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
20
1701
Instructions for Signing the Verdict Certificate:
1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must
agree on every answer in the charge. This means you may not have one group of 10 jurors agree
on one answer and a different group of 10 jurors agree on another answer.
2. If 10 jurors agree on every answer, those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If all 12 of you agree on every answer, you are unanimous and only the presiding
juror signs the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of
you agreeing on some answers, while only 10 or .11 of you agree on other answers. But when
you sign the verdict, only those 10 who agree on every answer will sign the verdict.
4. There are some special instructions some Questions explaining how to answer
those questions. Please follow the instructions. If all twelve of you answer those questions, you
will need to complete a second verdict certificate for those questions.
Do you understand these instructions? If you do not, please tell me now.
Aut
JUDGE PRESIDING
J;='.:.Wl {{)11.~1'1\r\ ~
l"ILED thls.i,)_.._da'y'o\~-- 2'20L
~?.-:J,D~ M
TINA MORGAN FRE MAN
CLERK DISTRICT COURT, CALDWELL CO., TX
By ~~ 'Wle.G~ Deputy
21
------······ -···· ·--··
VERDICT CERTIFICATE
Check one:
_X_ Our verdict is unanimous. All twelve of us have agreed to each and every answer. The
presiding juror has signed the certificate for all twelve of us.
Printed arne of Prestdmg Juror
Our verdict is not unanimous. Eleven of us have agreed to each and every answer and
have signed the certificate below.
__ Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
SIGNATURE NAME PRINTED
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
22
• 1703
. ··---------- --- · - - - - -
-<
ADDITIONAL CERTIFICATE
I certify that the jury was unanimous in answering the following questions. All twelve of .
us have agreed to each of the answers. The presiding juror has signed the certificate for all
twelve of us.
Question Nos. 13 and 14.
~·~~
Signatur~Presiding Juror Printed Name of Presiding Juror
23
Rule 140. No Fee for Copy, TX R RCP Rule 140
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 6. Costs and Security Therefor
TX Rules of Civil Procedure, Rule 140
Rule 140. No Fee for Copy
Currentness
No fee for a copy of a paper not required by law or these rules to be copied shall be taxed in the bill of costs.
Credits
Oct. 29, 1940, eff. Sept. I, 1941.
Notes of Decisions (4)
Vernon's Ann. Texas Rules Civ. Proc., Rule 140, TX RRCP Rule 140
Current with amendments received through 611/2015
End of Document 10 20 !5 Thomson Reuters. No claim to original U.S. Government Works_
'"Vc::c.tl.o;\vNeKt © 20'15 Thomson Reuters. No claim to original U.S. Government Works.
Appendix Item 3
Rule 141. Court May Otherwise Adjudge Costs, TX R RCP Rule 141
Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 6. Costs and Security Therefor
TX Rules of Civil Procedure, Rule 141
Rule 141. Court May Otherwise Adjudge Costs
Currentness
The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.
Credits
Oct. 29, 1940, eff. Sept. l, 1941.
Notes of Decisions (211)
Vernon's Ann. Texas Rules Civ. Proc., Rule 141, TX R RCP Rule 141
Current with amendments received through 6/1/2015
End of Document rQJ 2015 Thomson Reuters_ No claim to original U.S. Government Works_
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Appendix Item 4
§ 635.102 Definitions., 23 C.F.R. § 635.102
KeyCite Yellow Flag- Negative Treatment
Proposed Regulation
Code of Federal Regulations
Title 23. Highways
Chapter I. Federal Highway Administration, Department of Transportation
Subchapter G. Engineering and Traffic Operations
Pmt 635. Construction and Maintenance (Refs &Annas)
Subpart A. Contract Procedures (Refs &Annas)
23 C.F.R. § 635.102
§ 635.102 Definitions.
Currentness
As used in this subpart:
Administrator means the Federal Highway Administrator.
Calendar day means each day shown on the calendar but, if another definition is set forth in the State contract specifications,
that definition will apply.
Contract time means the number of workdays or calendar days specified in a contract for completion of the contract work. The
term includes authorized time extensions.
Design-build project means a project to be developed using one or more design-build contracts.
Division Administrator means the chiefFH\VA official assigned to conduct business in a particular State. A State is as defined
in 23 U.S.C. 101.
Force account means a basis of payment for the direct performance of highway construction work with payment based on the
actual cost of labor, equipment, and materials furnished and consideration for overhead and profit.
Formal approval means approval in writing or the electronic transmission of such approval.
Incentive/disincentive for early completion as used in this subpart, describes a contract provision which compensates the
contractor a certain amount of money for each day identified critical work is completed ahead of schedule and assesses a
deduction for each day the contractor overruns the incentive/disincentive time. Its use is primarily intended for those critical
projects where traffic inconvenience and delays are to be held to a minimum. The amounts are based upon estimates of such
items as traffic safety, traffic maintenance, and road user delay costs.
Liquidated damages means the daily amount set forth in the contract to be deducted from the contract price to cover additional
costs incurred by a State transportation department because of the contractor's failure to complete the contract work within the
number of calendar days or workdays specified. The term may also mean the total of all daily amounts deducted under the
tenns of a particular contract.
W''''illa·.vNex! © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Appendix Item 5
.---..
Agreement #CSUB140
SH130 Segments 5 and (i
Intelligent Transportation and Tofl Collection Systems
..·
GENERAL OI~:CISION : TX200?0129 02/09/2007 1'Xl29
Dal:-e: February 9, 2007
General Decision Nwnbec: TX20070129 02/09/2007
Superseded General Decision Number: TX20030l 29
C oPst ~uctio~ Types: Heavy and Highway
Counties; il.ransas , Atascosa, Au stin , Bai~dera , Bastrop, Bee ,
Bl anco, Burnet, Ccrld·.~ell , Calhoun, Colorado, De Witt, Fayette,
F:cio, G"illesp.te, Goliad, Gonzales, Jackson, ,J.im Wells, i\aJ;nes,
K<;;ndall, Kerr, Kle-b-:rg, Lava~;;a, Lee, Live Oak , .Llano, ttagoxda, Medina, Refugio, Wharton and Nllaon Counties in Texas ,
HEAVY CONSTHIJCTlON PROJf~CTS (excluding darn
construction). !HGJllvJ\Y CONt;'l'RUCTIDN l'ROJJ::C'J'S (excluding tunnels,
building
structures in rein: aJ:ea p:~.-ojectu k rail -road consT..ruct.i.on;
bascuJ.e , l:luspension & J>pandrel - an:h b r idges desiqned foJ: .
conmu~.rcia l navigation , bridges i1wolving marine construction;
and other major bridqes) .
t•todificat ion Number Publication Date
0 02/09/2007
SUTX2005-023 09/08/2005
H!!:A'J'( CONS'I'RIJCTION i.>P,OJECTS HIGHI~A.Y COl~STRUC'i'lON PROJECTS
Fringes
Carpenter, ... . .. . . ........ . .. $ 11.70
Mechanic ., . . . . . . . . . . . . . . . . . . .. $ 12.18
A~~\ ,alc Ol~t~ibu~UL o ~~ldLUL •• , $ 12.57
Asphal1: paving machine ope-cator.';l 1 1 .60
Asphalt Rake 1: . . .. . •... , .. . ..... $ l. O, 63
Asphill t: Shoveler •.......... . ... $ 9. 23
Bro<:>m or: S1~eeper Operator ... . , . $ 9, 32
Bulldozt'!-J: operator .. . .. . , .... -~ 11. 69
Concca&e Finiuher, Paving . , . ... $ 11.64
Co ncrete J:i!li::~her, StruccUJ:es .. $ 10 . 23
Concrete Rubber: . . . . . , . . . . . , .. . . $ 9. 00
Crans , Clrunshell , Backhoe,
DGrrick, Dragltne, Shovel
Ope~ator .. ... ... . . . .. , . .. .. . . . . G 12 . 00
I!J.ag9er . . ........ . . . .... , , , . . .. S 8.60
rorm Bui l der/Setter., Structures$ J.O.Sl
li'orm Settur, Pavin g & Curb .... . $ 9.48
1-'o>Jndat ion Dl:i ll Operator., ·
Tr.uck Mounted .................. $ 14.58
f'ront End l.oade:;: OperattJr ...•.. $ 10.62
Laborer, coL'llllon. , •.. . .•.... _..• $ 0.91
Laborer , Utility. , . ...... . ..... $ 9.21
Motor Grader Operator Pine
Grade .. .....• . .. .. . . ... . . . . . .. - ~ 15 . 15
Hotor Grader Ope r ator RQUgh .. . . $ 12 , 95
Pavement 11arking t-1achioe
Opexator .... . ..... . ..... . ... , .. $ 13 . 32
··. Pipelayer . . •.. . , . ..... . , , . . .. . . $ 9.71
\_ Roller Op(~ rul:or, l'ueumatic,
Page 98 of 135 Pagss Excerpt from raclllty Concession Agreement
§ 635.103 Applicability., 23 C.F.R. § 635.103
Code of Federal Regulations
Title 23. Highways
Chapter I. Federal Highway Administration, Depattment ofTranspmtation
Subchapter G. Engineering and Traffic Operations
Part 635. Construction and Maintenance (Refs & Aunos)
Subpart A. Contract Procedures (Refs & Aunos)
23 C.F.R. § 635.103
§ 635.103 Applicability.
Currentness
The policies, requirements, and procedures prescribed in this subpart shall apply to all Federal-aid highway projects.
Credits
[62 FR 6873, Feb. 14, 1997; 69 FR 7118, Feb. 13, 2004]
SOURCE: 51 FR 27534, Aug. I, 1986; 52 FR 36921, Oct. 2, 1987; 53 FR 1922, Jan. 25, 1988; 56 FR 37004, Aug. 2, 1991; 58
FR 38975, July 21, 1993; 60 FR 44273, Aug. 25, 1995; 62 FR 6872, Feb. 14, 1997; 64 FR 71289, Dec. 21, 1999; 67 FR 75924,
Dec. 10, 2002; 71 FR 66454, Nov. 15, 2006; 72 FR 45336, Aug. 14, 2007; 78 FR 5717, Jan. 28,2013, unless otherwise noted.
AUTHORITY: Sec. 1525 ofPub.L. 112-141, Sec. 1503 orPub.L. 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112,
113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334,4601 et seq.; Sec. 1041(a), Pub.L. 102-240, 105 Stat. 1914;
23 CFR 1.32; 49 CFR 1.85(a)(l).
Current through Oct. 15, 2015; 80 FR 62427.
End of Document !l) 2015 Thomson Reuters_ No claim to original U.S. Government Works.
V\t:!;....~!.:.!t~~c:.I.g....:~.l!'~
· ~O.·~Se:J:...,,;___ __ 0 - ~ llillarer cr mec1'1311lc 1is'tecr.iil.lli2·al10<'~ r!lterence~ ~ hal;\~_rr.P:slo:l.
' tNaiim>fsi~hi;!oc>):P<:i'f.Yl (Td!aJ. ilt'I.-Iditallill6n'lhe~. a.'Ta:iio\:nl'nzit m~; 111ah'lhe.tun·bfll!e:api?bei!bi4'.
do fl:::rdw-~t"'~ D'
bll~'l'ioiltlf.Wo!gB ra!s·PlUS':lhe·arnbilnl IAe-retUiriidrffi:fliG' 6i!lle6ts-.b$:)iShla ';!lmva por1od ale: dllli: te§'JS.!eiei' in ':i 156713 lil:e
~~e-,ti.U.':iilf pt~. r&g!s[W.led.SlaWs ~l!Mof L21!or, 6/"lr no.SUCII~~ eJ:Isls.ltrn
~· ~~ (e~d.w'..l{,Uta SUfea/J or.Ap;ite'ntlcasht/l=d Tla~"lg.·UrilCOd Sltlles'Pitpai",.rilentoor Labor.
(~) t~Yw·..r.:P.E FRINGE l'li;N~ AAE I?Altl:To APF\iOilED'Pt:ANs', 'Fl.JNOS,·PR i>!lOOAAMS
·o I!>~ lo :h3. tmsldtp>~.'\'~~ .~es pO:Ito-eaelt ~or m~c i::le.d 1o
the·a'Scl.•" re.'M!tlced p~oif, Pf!Y~!s of;Jr~c ~~ lliO.l(sfaC.ln l!1JI ~c!
f>'8'<0. been cr '"~' = rnalll> to at~pro;>i"~ programs ~ lhe. bet'.&li! of such
amj)!I:>)IU3.=ilir as llo!Ctf iri ~, .4(c) tictcwt. ·
§ 2253.001. Definitions, TX GOVT § 2253.001
Notes of Decisions (42)
V. T. C. A., Government Code§ 2253.001, TX GOVT § 2253.001
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document (!J 20 J 5 Thomson Reuters. No claim to original U.S. Government Works
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§ 2253.041. Notice Required for Claim for Payment for Labor... , TX GOVT § 2253.041
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annas)
Title 10. General Government (Refs & Annas)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Performance and Payment Bonds (Refs &Annas)
Subchapter C. Notice Requirements
V.T.C.A., Government Code§ 2253.041
§ 2253.041. Notice Required for Claim for Payment for Labor or Material
Currentness
(a) To recover in a suit under Section 2253.073 on a payment bond for a claim for payment for public work labor performed
or public work material delivered, a payment bond beneficiary must mail to the prime contractor and the surety written notice
ofthe claim.
(b) The notice must be mailed on or before the 15th day of the third month after each month in which any of the claimed labor
was performed or any of the claimed material was delivered.
(c) The notice must be accompanied by a sworn statement of account that states in substance:
(I) the amount claimed is just and correct; and
(2) all just and lawful offsets, payments, and credits known to the affiant have been allowed.
(d) The statement of account shall include the amount of any retainage applicable to the account that has not become due under
the terms of the public work contract between the payment bond beneficiary and the prime contractor or between the payment
bond beneficiary and a subcontractor.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. I, 1993.
Editors' Notes
REVISOR'S NOTE
2008 Main Volume
(1) The revised law substitutes the term "payment bond beneficiary" for the source law term "claimant" for the
reason stated in Revisor's Note (3) under Section 2253.021 of this chapter.
(2) The revised law substitutes the terms "public work labor" and "public work material" for the source law terms
"labor" and "material" for the reason stated in Revisor's Note (4) under Section 2253.021 of this chapter.
V'o';cc.tl.ci·.vNe~t © 2015 Tllomson Reuters. No claim to original U.S. Government Works. 1
Appendix Item 11
§ 2253.041. Notice Required for Claim for Payment for Labor... , TX GOVT § 2253.041
Notes of Decisions (80)
V. T. C. A., Govennnent Code§ 2253.041, TX GOVT § 2253.041
Current through the end of the 2015 Regular Session of the 84th Legislature
End ofDorument 1{5 20 I 5 Thomson Reuters. No claim to original U.S. Government Works.
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§ 2253.047. Additional Notice Required for Payment Bond ... , TX GOVT § 2253.047
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annos)
Title 10. General Government (Refs & Annas)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public WorkPelformance and Payment Bonds (Refs &Annos)
Subchapter C. Notice Requirements
V.T.C.A., Government Code§ 2253.047
§ 2253.047. Additional Notice Required for Payment Bond Beneficiary
Without Direct Contractual Relationship With Prime Contractor
Currentness
(a) To recover in a suit under Section 2253.073 on a payment bond, a payment bond beneficiary who does not have a direct
contractual relationship with the prime contractor for public work labor or material must mail notice as required by this section.
(b) A payment bond beneficiary who contracts with a subcontractor for retainage must mail, on or before the 15th day of the
second month after the date of the beginning of the delivery of public work material or the perfmmance of public work labor,
written notice to the prime contractor that:
(1) the contract provides for retainage; and
(2) generally indicates the nature of the retainage.
(c) The payment bond beneficiary must mail to the prime contractor written notice of a claim for any unpaid public work labor
performed or public work material delivered. The notice must be mailed on or before the 15th day of the second month after
each month in which the labor was performed or the material was delivered. A copy of the statement sent to a subcontractor
is sufficient as notice under this subsection.
(d) The payment bond beneficiary must mail to the prime contractor, on or before the 15th day of the second month after the
receipt and acceptance of an order for specially fabricated material, written notice that the order has been received and accepted.
(e) This section applies only to a payment bond beneficiary who is not an individual mechanic or laborer and who makes a
claim for wages.
Credits
Added by Acts 1993, 73rd Leg., ch. 268, § I, eff. Sept. 1, 1993.
Editors' Notes
REVISOR'S NOTE
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Appendix Item 12
§ 2253.047. Additional Notice Required for Payment Bond ... , TX GOVT § 2253.047
2008 Main Volume
(1) The revised law substitutes the term "payment bond beneficiary," for the source law term "claimant" for the
reason stated in Revisor's Note (3) under Section 2253.021 of this chapter.
(2) The revised law substitutes the term "retainage" for the source law phrase "agreements ... by which payments
are not to be made in full therefor in the month next following each month in which the labor was performed or the
materials were delivered" because Section 2253.001 of this chapter defines "retainage" to mean "the part of the
payments under a public work contract that are not required to be paid within the month after the month in which
the public work labor is performed or public work material is delivered under the contract."
(3) The revised law substitutes the terms "public work labor," "public work material," and "public work labor or
material" for the source law terms "labor" and "material" for the reason stated in Revisor's Note (4) under Section
2253.021 of this chapter.
( 4) The revised law substitutes the term "specially fabricated material" for the source law phrase ~~specially
fabricated item or items as described in paragraph C(b )(2)"because the description in the referenced paragraph is
codified in Section 2253.00 I (8) ofthis code as the definition of"specially fabricated material."
Notes of Decisions (2)
V. T. C. A., Government Code§ 2253.047, TX GOVT § 2253.047
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document 10 2015 Thomson Reuters. No claim lo original U.S. Govermnenl Works.
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§ 2253.048. Mailing Notice, TX GOVT § 2253.048
Vernon's Texas Statutes and Codes Annotated
Government Code (Refs & Annas)
Title 10. General Government (Refs &Annas)
Subtitle F. State and Local Contracts and Fund Management
Chapter 2253. Public Work Perfmmance and Payment Bonds (Refs &Annas)
Subchapter C. Notice Requirements
V.T.C.A., Government Code§ 2253.048
§ 2253.048. Mailing Notice
Effective: September 1, 2001
Currentness
(a) A notice required by this subchapter to be mailed must be sent by certified or registered mail.
(b) A notice required by this subchapter to be mailed to a prime contractor must be addressed to the prime contractor at the
contractor's residence or last known business address.
(c) A person satisfies the requirements of this subchapter relating to providing notice to the surety if the person mails the notice
by certified or registered mail to the surety:
(1) at the address stated on the bond or on an attachment to the bond;
(2) at the address on file with the Texas Deparhnent oflnsurance; or
(3) at any other address allowed by law.
Credits
Added by Acts 1993, 73rdLeg., ch. 268, § l, eff. Sept. 1, 1993. Amended by Acts2001, 77th Leg., ch. 380, § 4, eff. Sept. 1,2001.
V. T. C. A., Government Code§ 2253.048, TX GOVT § 2253.048
Current through the end of the 2015 Regular Session ofthe 84th Legislature
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Appendix Item 13
92
1
2
3
4
5
6
7
8
9
10
11
DEFENDANT'S EXHIBIT 1
12 SUBCONTRACT AGREEMENT NO . CSUB116
/
13
14
15
16
17
18
19
20
21
22
23
24
25 (Back to index)
Appendix Item 14
!
.....
I
\
Central Texas Highway Constructors LLC
1914 Borchert Drive
Locld1art1 Texas 78644
23 June 2010
Star Operations, Inc.
Attention: Lana Huif
1622 Saratoga BoLJievard
Corpus Christi, Texas 7_8417
Telephone: 361.852.2120
VIA OVERNIGHT MAH.
Reference: Subcontract Agreement No. CSU0'116-IIIumlnation and Signal
SH 130 Segments 5 and 6
Dear Ms. Huff:
Find enclosed one (1) fully exe,iuted Subcontract Agreement (with DVDs) for the
referenced Scope of Work.
1. This letter will serve as a Full Notice to Proceed and commences the
Performance Period as defined In Article l3 of the Agreement.
2.. Promptly provide paylTlent and performance bonds compliant with Artlc;le 7 of
the AgreemeAt.
3. Your repiesentatlve was provided the latest set of Issued for Construction
(iFC) drawings oh 16 June 2010. A courtesy copy ofthat DVD Is enclosed for
your reference and use.
4. Your principal points of contact for this Work are Gary Doty (V.P.
Construction), Bobby Massingill (Segment 5. ·1 Manager), Javier Garcia
(Segment 5.2 Manager), Scott Cromad~ (Segment 6.1 Manager), and Felix
fVh:lfq\.les (Segment 6.2 IV!anager), 612-462· 7500.
5. Please contact Ms. Sonia Malllo, CFO, 512-462~7506, to discuss
administrative Interface., e.g. Invoicing, sales tax, and so forth.
6. Please cont;;-1ct Ms. Evelyn Cu!onge, DBE Coordinator, 5'12-4£52-7517, to
discuss any DBE-related Issues.
7. Please contact Mr. Estebt~n Trlgueros, Quality Manager, 612-462-.7504, to
discuss quality control and quality assurance of the Worl<.
8. Your point of contact for envlro.nmental compliance is Ms. Jennifer Oshel,
C'TxHC Environmental Manager, 512-462-7505.
9. Your point of contact for lleulth and safety compliance Is Mr. Jeny Walley,
Health and Safety Manager, s·J2-80·J-2572.
Contact me If you have any questions, 512-462-7510. Than!< you.
EXHIBIT
SIP C0853864.PDF
J
Agreement #C~UB116
H130 SegrMnts 5 and 6
. Illumination .,nd Signal
days to correct Its failure. If Seller has not corrected Itt; f11iluro or made arrangements acooptoble to D&G Contractor to do
so within such tlme period or if Seller fails to perform in accorda11r.e wnd employees,
D&C Contractor, their subsidiaries and Affiliates and their officers, directors. partners, agents, and employees.
Laws shall mean any taw, code, stEJtute, regulation, rule, ordinance, judgment, Injunction, or other court order, or other
requirement of a governmental authority having jurisdiction over the Work, or the Project or the construction or operation
thereof or party, and wh ich is valid and applicable thereto.
Materials shall mean all materials (direct and Indirect), supplies, goods, and equiprnent, which are necessary for Seller to
accomplish Its Scope of Worl<.
Milestone Dates shall mean those dates stated in the Agreement.
Non-Excusable Delay Events shall mean any act or neglect of Seller or its Subcontractors or any other event or occurrence
that may Interfere with or delay the Work that is not specified as an Excusable Delay Event.
Notice or Notify shall mean a notice in writing given to the Party's designated representative deemed duly given on the date
of receipt.
Party(les) shall mean D&C Contractor and Seller, as defined in paragraph one of this Agreement.
~0
Agreement #CSU13116
SH 130 Segmen1s 6 and G
Illumination and Signal
ATTACHMENLJ:
FEDERAL REQUIREMENTS
Exhibit Des<;riptlon No. of Pages
Attachment 1 -Federal Provisions 2
Attachment 2 - FHWA Form 1273 28
Attachment 3 -Wage Detennlnation of the Secretary of Labor
Altac;hmenl 4 - Equal Employment Opportunity 6
Altachrnonl 5- Afiirmallve Action 5
Altachment6 - Debarment and Suspension Certificallon
Atluchmen\ 7 - Lobbying Certification
Attachment 8 - Compliance with 2:3\J.S.C. §·129{a)(3)
Aliachmcnt 0- Compliance wiU1 Buy Amerlcn Requirements 2
(){)
Agn~ement #CSUB·I16
SH130 Segments 5 and 6
lllumlnaUon and Slgn!.il
A)'TACHMENT 1 TO EXHIJ31T ~
FEDERAL REQUIREMENTS FOR PED~RAL~AJD CONSTRUCTION PROJECTS
CENERAL·-·The wori< horein proposed will be financed in whole or in part with Federal
funds , and thorofare all of the statutes, rules and regulations promulgated by the Federal
Government and appllcabl0 to work financed In whole or In part with Federal funds will apply to
such work. Tht~ "Required Contract Provisions, Federal-Aid Construction Contracts, Form
FHWA 1273," are lnGiuded in this Exhibit 8. Whenever in said required contract provisions
references are made to:
(a) "SHA contracting officer", "SHA resident englneeJJ', or "authorized
representative of Lhe SHA". such referonces shall be construed to ITlean TxDOT or its
Authorizeci Representative;
(b) "contractor'', "prime contractor", "bidder" or "prospective primary
participant", such refere nces shall be construed to mean the Design-Build Contractor or
its authorizet1 representative;
(c) "contract'' or "prime contract", such referenc.es shall be construed io mean
the Design-Build Contract; and
(d) "subcontractor", "supplier", ''vendor", "prospective lower tier participant'' or
"lower tier subcontractor'', such references shall be construed to mean subcontractors,
suppliers and vendors of the Design-Build Contractor, Including lower tier
subcontractors.
PERFORMANCE OF PREVIOUS CONTRACT.-In addition to tl1e provisions In Section
II, "Nondiscrimination," and Sev-tlon VII, ''SublaUing or Assigning the Contract." of the Form 1273
required contract provisions, the Developer shall cause the contractor to comply with the
folfowing:
The bidder shall execute the CERTIFICATION WITH REGARD TO THE
PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTI~ACTS SUBJECT TO
T HE EQUAL OPPORTUNITY CLAUSE AND THE FILING OF REQUIRED REPORTS
located In the proposal. No request for subletting or assigning any portion of tho
contract In excess of $1 0,000 w!ll be considered under th~1 provisions of Section VII of
the required contract provisions unless such request Is aco-ampanled by the
CERTlFICATION referred to above, executed by the proposed subcontractor.
NON-COLLUSION PROVlSION.- The provisions ln this section are applicable to all
contracts except contracts for Federal Ald Secondary Projects. Title 23, United States Code,
Section 112, requires as a condition precedent to approval by the Federal Highway
Administrator of the contract fOI' lhls work that each bidder file a sworn statement executed by,
or on behalf of, the person, finn, association. or corporation to whom such contract is to be
awarded, cetiify!ng that such person, firm , associZttlon, or corporation has not, eithet· directly or
lrtdlrectly, entered into any agreement, participated In any collusion, or otherwise taken any
action ll'l restraint of free competitive bidding it~ connection with the submitted bid. A form to
make the non-collusion affidavit statement requirl3d by Section 11 2 as a certification under
69
Agreement #CSUB116
SH130 Segmenis 5 and (3
Illumination and Signal
GENERAL
1. These contract provisions shall apply to all work pe1iormed on the contract
by the contractor's own organization and with the assistance of worloncod or as:;i:;lod con61ruc!lon contrac!S rc respond 1o the lnl011!\31ion coiJocllon oontalnod In 29 C.F.R. §§ S.3, S.S(o). The Co~elond Ad (40 U.S.C. § 3145)
aonl~:>clors ond subconi<3Ciors perfonning \1/0rk 011 Foder.!Jiy Gnanccd or assiSied conslruclion eonlracts lo "furnish ..eeldy a $lalemeni..Wt res,c:IIC lhe l"i'90S paid e:!Cit l!fllplo)oee during !lt6 ptOCeding weal<.- U.S. Oepatlrnenl oll.llbor (DOL) ragui:Jtlons at29 C.F.R.li 5.5{a)(3)(i) requitu
ccrtlraclors to submilwoekly a copy of aDpayrOlls to the Federal agency conllacllng lor or ranancinglho conalrucllon projec~ acccmponled by a signed •storomenl D( Complloncn• lndlcafing thallhe payrols aro correet and complete and !hoi each labcRr20 C.F.R. § SS(a)(3)(i) roquke arnltaC1otS
Jos.bntl! w•eJ:Iy • copy ol :all P•yrons to lite Fcdero! agency conltaciJnglor or fnanc!ng lito co""lruclion projocl. o~:d'"'g ogencios recalvf1g 1his iniortnliGon rovll~;> lhe inlormallon 10 determlnelhalemployees h""" reccll..,d logoly required~· and fringe bene rots.
Pubfic Burden Statement
We eslirllale tt\31 is \OIIItal5 0.00
Co111:rcte Pnving Curbing
Muchine Opemtor............... s 14.00 0.00
C\'llcretc Paving finishing
Machine Openltor............... $ 12.00 0.00
Concrete Rubber................ $ l0.83 0.00
Ct•au.,, Clnmshell. Bnckhoe,
Denicl<, Dragline, Shovel
Opcru1or....................... :t 13.61\ 0.00
El~ctrician.................... $24.11 0.00
Flogget•........................ $ 9.49 0.00
Form Dullder/Senet-. SU11Ciln·es $ 10.88 0.00
Form Sttter, Paving & Curb..... $ 9.89 0.00
Foundntion Drill Otlr.r.,tor,
.~ .
98 E>avcment.. ........... s i0.24 0.00
. Scraper Opel'l!tor·............... $ 9.93 0.00
Scrviccr.............~........ $ I 1.41 0.00
Sign rnstnlkr (PGM)........... !S 14.R5 0.00
Slip forn) MncJ1illl~ Operator.._. $ 15.17 0.00
Sprcndcr Box operator.......... $ 10.39 0.00
S!ntctural Steel Worker........ $ 13.41 0.00
Tractor operutor. Cruwler Type. $ 11.10 0.00
Traveling Mixer Operatm....... $ 10.04 0.00
Trenching machine operator,
Heavy.......................... $14.22 0.00
Truck Drlw:r Tundem 1\..'Je Semi-
Tmilcr............. w ........ !!i 10.95 0.00
Tmck driver, lowboy-Pioal...... $ 15.30 0.00
Tcuck driver, Single A~:fe,
Hcnvy.......................... 5 ll.li8 0.00
Truck driver, Single Axle,
Light......................... $ 9.98 0.00
Wagon Drill, Boring M8r.hine,
Po~t Hoi.: Driilel' Opcrntor..... $ Jol.65 0.00
\Velder......................... !t 14.26 0.00
------ ..-....--.....- ..........._............................
Wo1·k Zone Darricadc Se1vicer... $ I 1.15 0.00
----· -·-~ ........ ....
~
IJnlistccl clnssifications needed for work not includerl within
the scope of the dnssificatioqs listed mny be udded after
award only n~ provided In the labor standards contract clnuses
(29CFR 5.5 (a) (l) {ii)).
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Exceflll from Faca;ty C~ell, Calh<)un, c.,lore~do, Dt~ t1:i.tt 1 Fayette,
Frio, G1Llespia, Goliad, Gonzales, Jackson, .Tint Walls, .Ka~:nes,
l pertaining to prevailing wages. For the purpose of applying such l aws, the Facility shalt be treated as a
public worl( paid for In whole or In part with public funds (regardless of whether public funds are actually used to pay for the
Facility).
b) It Is Seller's sore rosponsibllity to determine the wage rates required to be paid. In the event rates of wages and
benefits change while this Agreement Is in effect, Sailer shall bear the cost of such changes and shall have no Claim
against D&C Contractor on account of such changes. Without limiting tha foregoing, no Claim will be allowed which Is
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based upon Seller's lack of knowledge or a misunderstanding of any such requirements or Seller's failure to include in the
Base Case Financial Model or Base Case Financial Model Updates adequate increases In such wages over the duration of
this Agreement and the Lease.
c) Any issue between Seller or a subcontractor and any affected worker relating to any alleged violation of Section
2258.023 of the Texas Government Code that Is not resolved before the 15th day after the date TxDOT makes Its initial
determination under Section 2258.052 of the Texas Government Code (as to whether good cause exists to believe that a
violation occurred) shall be submitted to binding arbitration in accordance with the Texas General Arbitration Act, Chapter
171 of the Civil Practice and Remedies Code.
d) Seller shall comply and cause Its subcontractors to comply with all Laws regarding notice and posting of Intent to
pay prevailing wages, and any other notice or posting of prevailing wage requirements and prevailing wage rates.
9.7 HAZARDOUS SUBSTANCES. Seller shall immediately Notify D&C Contractor If Seller encounters pre-existing
Hazardous Substances at the Site. The D&C Contractor has a separate contract with a Hazardous Materials Contractor to
remedlate Hazardous Substances. The Seller shall not remedlate pre-existing Hazardous Substances under this
Agreement. However, Seller is responsible for any of Its releases of Hazardous Substances.
In accordance with the FCA, applicable Laws (including specifically Environmental Laws) and all Environmental Approvals,
the Contractor shall take all reasonable steps to protect the environment on and off the planned Facility Right of Way on
wnfch-·n ·p-eiforms·an·y oftneTi&CWorl&O Contractor and· Seller, as defined in paragr-aph ene ef this· Agr€emeAt.
Person shall mean an Individual, partnership, corporation, limited liability company, company, business trust. joint stock
company, trust, unincorporated association, joint venture, Government Authority or other entity of whatever nature.
Performance Guarantees shall mean those guarantees stated In Section 7 or elsewhere in the Agreement.
Protect shall mean the project described In paragraph A of the Recitals pf this Agreement, which D&C Contractor will
perform for the Developer.
Relief Event means any of the following events, to the extent they result in a material delay or interruption in performance of
any obligation under the Agreement to the extent that TxDOT or Developer grant relief, and provided such events are
beyond Seller's control and are not due to any act, omission, negligence, recklessness, willful misconduct, breach of
contract or Law of any of the Seller, and further provided that such events (or the effects of such events) could not have
been avoided by the exercise of caution, due diligence, or reasonable efforts by Seller:
(a) Force Majeure Event;
{b) Fire, explosion, flood, earthquake, hurricane, tornado, riot, national strike or act of terrorism;
(c) Change in Law;
(d) Discriminatory Action;
(e) TxDOT failure to perform or obseNe any of Its material covenants or obligations under the Agreement or
other FCA Documents, including failure to pay the Termination Compensation In accordance with the
requirements, and within tile time period, set forth in Section E5 of Exhibit 22;
(f) TxDOT Change;
(g) TxDOT-Caused Delay;
(h) Performance of works in the vicinity of the Facility Right of Way carried out by TxDOT or another
Governmental Entity, excluding any Utility Adjustment Work by a Utility Owner, that disrupts Seller's onsite
!' Work;
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ATTACHMENT P
FEDERAL REQUIREMENTS
Exhibit Description No. of Pages
Attachment 1 - Federal Provisions 2
Attachment 2- FHWA Form 1273 28
Attachment 3- Wage Determlna~on of the Secretary of Labor 1
Attachment 4- Equal Employment Opportunity 6
Attachment 5- Affirmative Action 5
Attachment 6 - Debarment and Suspension Certification 1
Attachment 7 - Lobbying Certification
Attachment 8- Compliance with 23 U.S.C. §129(a)(3)
Attachment 9 -Compliance with Buy America Requirements 2
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ATTACHMENT 1 TO EXHIBIT 8
FEDERAL REQUIREMENTS FOR FEDERAL-AID CONSTRUCTION PROJECTS
GENERAL,- The work herein proposed will be financed In whole or in part with Federal
funds, and therefore all of the statutes, rules and regulations promulgated by the Federal
Government and applicable to work financed in whole or in part with Federal funds will apply to
such work. The "Required Contract Provisions, Federal-Aid Construction Contracts, Form
FHWA 1273," are included In this Exhibit 8. Wf:\enever in said required contract provisions
references are made to:
(a) "SHA contracting officer", "SHA resident engineer", or "authorized
representative of the SHA", such references shall be construed to mean TxDOT or its
Authorized Representative;
(b) "contractor", "prime contractor'', "bidder~ .or "prospective primary
participant", such references shall be construed to mean the Design-Build Contractor or
Its authorized representative:
(c) "contract" or "prime contract", such references shall be construed to mean
the Design-Build Contract; and
(d) "subcontractor•, "supplier", "vendor•, "prospective lower tier partlolpant" or
"lower tier subco11tractor", such references shall be construed to mean subco-ntractors,
suppliers and vendors of the Design-Build Contractor, Including lower tier
subcontractors.
PERFORMANCE OF PREVIOUS CONTRACT.-In addition to the provisions In Section
11. "Nondiscrimination," and Section VII, "Subletting or Assigning the Contract," of the Form 1273
• required contract provisions, the Developer shall cause the contractor to comply with the
following:
The bldder shall execute the CERTIFICATION WITH REGARD TO THE
PERFORMANCE OF PREVIOUS CONTRACTS OR SUBCONTRACTS SUBJECT TO
THE; EQUAL OPPORTUNilY CLAUSE AND THE FILING OF REQUIRED REPORTS
located In the proposal. No request for subletting or assigning any portion of the
contract in excess of $10,000 will be considered under the provisions of Section VII of
the required contract provisions unless such request Is accompanied by the
CERTIFICATION referred to above, executed by the proposed subcontmctor.
NON-COLLUSION PROVISION. -The provisions in this section are applicable to all
contracts except contracts for Federal Aid Secondary Projects. Title 23, United States Code,
Section 112, requires as a condition precedent to approval by the Federal Highway
Administrator of the contract for lhis work that each bidder file a swam statement executed by,
or on behalf of, the person, flrm, association, or corporation to whom such contract Is to be
awarded, certifying that such person, firm, association. or corporation has not, either directly or
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any subcontractor ·responsible thereof shall be liable to the affected
employee for his/her unpaid wages. In addition, such contractor and
subcontractor shall be liable to the United States (in the case of work done
under contract for the District of Columbia or a territory, to such District or
to such territory) for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer, mechanic, watchman,
or guard employed in violation of the clause set forth in paragraph 7, In the
sum -of $10 for each calendar day on which such employee was required
or permitted to work in excess of the standard work week of 40 hours
without payment of the overtime wages required by the clause set forth in
paragraph 7. ~
9. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of any
authorized representative of the DOL withhold, or cause to be withheld,
from any monies payable on account of work performed by the contractor
or subcontractor under any such contract or any other Federal contract
with the same prime contractor, or. any other Federally-assisted contract
subject to the Contract Work Hours and Safety Standards Act, which is
held by the same prim~ contractor, such sums as may be determined to
be necessary to satisfy any liabilities of such.. contractor or subcontractor
for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph 8 above.
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal-aid construction contracts exceeding $2,000 and to all
related subcontracts, except for Projects located on roadways classified as local
roads or rural collectors, which are exempt.)
1. Compliance with Copeland Regulations (29 CFR 3)
The contractor shall comply with the Copeland Regulations of the
Secretary of Labor which are herein incorporated by reference.
2. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be maintained by
the contractor and each subcontractor during the course of the
.work and preserved for a period of 3 years from the date of
completion of the contract for all laborers, mechanics, apprentices,
trainees, watchmen, helpers, and guards working at the site of the
work.
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b. The payroll records shall. contain the name, social security number,
and address of each such employee; his or her correct
classification;. hourly rates of wages paid (including rates of
contributions. or costs anticipated for bona fide· fringe benefits or
cash equivalent thereof the types described In Section 1(b)(2)(B) of
the Davis Bacon Act); daily and weekly number of hours worked;
deductions made; and actual wages. paid. In addition, for
Appalachian contracts, the payroll records shall contain a notatron
indicating whether the employee does, or does not, normally reside
lA the labor area as defined in Attachment A, paragraph 1.
Whenever the Secretary of Labor, pursuant to Section IV,
paragraph 3b, has found that the wages of any laborer or mechanic
include the amount of any costs reasonably anticipated in providing
benefits under a plan or program described in Section 1(b)(2)(B) of
the Davis Bacon Act, the contractor and each subcontractor shall
maintain records which show that the commitment to provide such
benefits is enforceable, that the plan or program is financially
responsible, that the plan or program has been communicated in
writing· to the laborers or mechanics affected, and show the cost
anticipated or the actual cost Incurred in providing benefits.
Developers or subcontractors employing apprentices or trainees
under approved programs shall maintain written evidence of the
registration of apprentices and trainees, and ratios and wage rates
prescribed in the applicable programs.
c. Each contractor and subcontractor shalf furnish, each week in
which any contract work Is performed, to the SHA resident engineer
a --payroll - of ·wages patd ·each-·· of---its- employees (Including
apprentices, trainees, and llelpers, described in Section IV,
paragraphs 4 and 5, and watchmen and guards engaged on work
during the preceding weekly payroll period). The payroll submitted
shall set out accurately and completely all of the information
required to be maintained under paragraph 2b of this Section V.
This information may be submitted in any form desired. Optional
Form WH-347 is avail'able for this purpose and may be purchased
from the Superintendent of Documents (Federal stock number 029-
005-0014-1), U.S. Government Printing Office, Washington, D.C.
20402. The- prime contractor is responsible for the submission of
copies of payrolls by all subcontractors.
d. Each payroll submitted shall be a9companled by a "Statement of
Compliance," signed by the contractor or subcontractor or his/her
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agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following:
i. that the payroll for the payroll period contains the information
required to be maintained under paragraph 2b of this Section V
and that such information is correct and complete;
il. that such laborer or mechanic (including each helper, apprentice,
and trainee) employed on the contract during the payroll period
has been paid the full weekly wages earned, without rebate, either
directly or Indirectly, and that no deductions have been made
either directly or Indirectly from the full wages earned, other than
permissible deduc1ions as set forth in the Regulations, 29 CFR 3;
iii that each laborer or mechanic has been paid not Jess that the
applicable wage rate and fringe benefits or cash equivalent for the
classification of worked performed, as specified in the applicable
wage determination Incorporated into the contract.
e. The weeldy submission of a properly executed certification set forth
on the reverse side of Optional Form WH·347 shall satisfy the
requirement for submission of the "Statement of Compliance"
required by paragraph 2d of this Section V.
f. The falsification of any of the above certifications may subject the
contractor to civil or criminal prosecution under 18 U.S.C. 1001 and
31 U.S.C. 231.
. .
g. The contractor or subcontractor shall make the records required
under paragraph 2b of this Section V available for inspection,
copying, or transcription by authorized representatives of the SHA,
the FHWA, or the DOL, and shall permit such representatives to
interview employees during working hours on the job. If the
contractor or subcontractor fails to submit the required records or to
make them available, the SHA, the FHWA, the DOL, or all may,
after written notice to the contractor, sponsor, applicant, or owner,
take such actions as may be necessary to cause the suspension of
any further payment, advance, or guarantee of funds. Furthermore,
failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to
29 CFR 5.12.
VJ. RECORD OF MATERIALS, SUPPLIES, AND LABOR
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1. On all Federal·ald contracts on the National Highway System, except
those which provide solely for the Installation of protectJve devices at
railroad grade crossings, those which are constructed on a force account
or direct labor basis, highway beautification contracts, and contracts for
which the total final construction cost for roadway and bridge Is less than
$1,000,000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and supplies
contained ln Form FHWA-47, "Statement of Materials and Labor
Used by Developer of Highway Construction Involving Federal
Funds," prior to the commencement of work under tl1ls contract.
b. Maintain a record of the total cost of all materia-ls and supplies
purchased for and Incorporated in the work, and also of the
quantities of those specific materials and supplies fisted on Form
FHWA-47, and In the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract, to the SHA resident
engineer on Form FHWA47 together with the data required in
paragraph 1b relative to materials and supplies, a final labo•·
summary of all contract work indicating the total hours worked and
the total amount earned.
2. At the prime contractor's option, either a single report covering all contract
work or separate reports for the contractor and for each subcontract shall
be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with Its own organization contract work
amounting to not less than 30 percent (or a greater percentage if specified
elsewhere In the contract) of the total original contract price, excluding any
specialty items designated by the State. Specialty ftems may be
performed by subcontract and the amount of any such specialty Items
performed may be deducted from the total original contract price before
computing the e~mount of work required to be performed by the
contractor's own organization (23 CFR 635),
a. "Its own organization" shalf be construed to· Include only workers
employed and paid directly by the prime contractor and equipment
owned or rented by the prime contractor, with or witbout operators.
Such term does not include employees or equipment of a
subcontractor, assignee, or agent of the prime contractor.
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b. "Specialty Items" shall be construed to be limited to work that
requires highly specialized know[edge, abilities, or equipment not
ordinarily avalfable In the type of contracting organizations qualifl€d
and expected to bid on the contract as a whole and in general are
to be limited to minor components of the overall contract.
c. The contract amount upon which the requirements set forth In
paragraph 1 of Section VIlis computed includes the cost of material
and manufactured products which are to be purchased or produced
by the contractor under the contract provisions.
d. The contractor shall furnish (a) a competent superintendent or
supervisor who Is employed by the firm, has full authority to direct
performance of the worl< In accordance with the contract
requirements, and is in charge of all construction operations
(regardless of who performs tha work) and (b) such other o'f its own
organizational resources (supervision, management, and
engmeerlng services) as the SHA contracting officer determines Is
necessary to assure the performance of the contt·act.
e. No portion of the contract shall be sublet, assigned or otherwise
disposed of except with the written consent of tile SHA contracting
officer, or authorized representative, and such consent when glven
shall not be construed to relieve the contractor of any responsibility
for the fulfillment of the contracl Wr!Hen consent will be given only
after the SHA has assured that each subcontract is evidenced in
writing and that it contains all pertinent provisions and requirements
of the prime contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this contract the contractor shall comply with all
applicable Federal, State, and local laws governing safety, health, and
sanitation (23 CFR 635). The contractor shall provide all safeguards,
safety devices and protective equipment and take any other needed
actions as it determines, -or as the StiA contracting officer may determine,
to be reasonably necessary to protect the life and health of employees on
the job and the safety of the public ancl to protect property in connection
with the petformance of the work covered by the contract.
2. It is a condition of this contract, and shall be made a condition of each
subcontract, which the contractor enters into pursuant to this contract, that
the contractor and any subcontractor shall not permlt any employee, in
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ATTACHMENT 3 TO EXHIBIT 8
FEDERAL PREVAILING WAGE RATE
GENERAL DECISION: TX20070043 02/09/2007 TX43·
Dale: February 9, 2007
General Decision Number: TX20070043 02/09/2007
Superseded-General Decision Number: TX20030043
State: Texas
Constmction Types: Heavy and Highway
Counties: BeH, Bexar, Brazos, Coma!, Coryell, Guadalupe,
Hays, McLennan, Travis and Williamson Counties in Texas.
Heavy (excluding tunnels and dams) and Highway Conshuction
Projects (does not include building structures in rest area
projects). "'NOTTOBEUSEDFOR WORKONSEWAGEOR WATER
TREATMENT PLANTS ORLIFT/PUMP STATIONSINBELL, CORYELL,
McLENNAN AND WilLIAMSON COUNTIES.
Modification Number Publication Date
0 02/09/2007
SUTX2005-001 01/03/2005
Rates Fringes
Air Tool Operator........... .. $16.00 0.00
Asphalt Distributor Operator... $12.09 0.00
Asphalt paving machine operator $ 11.82 0.00
Asphalt Raker................ .. $ 9.96 0.00
Asphalt Shoveler............. .. $10.56 0.00
Broom or Sweeper Operator...... $ 9.74 0.00
Bulldozer operator .......... . $ 11.04 0.00
Carpenter..................... . $12.25 0.00
Concrete Finisher, Paving...... $10.53 o.oo.
Concrete Finisher, Structures.. $ 10.95 0.00
Concrete Paving Curbing
Machine Operator............. .. $14.00 0.00
Concrete Paving Finishing
Machine Operator.............. . $ 12.00 0.00
Concrete Rubber............... . $ 10.88 0.00
Crane, ClamsheH, Backhoe,
Derrick, Dragline, Shovel
Operator....................... $ 13.66 0.00
Electrician................... . $ 24.11 0.00
Flagger....:.................. . $ 9.49 0.00
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Form Builder/Setter, Structures $ 10.88 0.00
Form Setter, Paving & Curb..... $ 9.89 0.00
Foundation Drill Operator,
Truck Mounted................. . $15.00 0.00
Front End Loader Operator...... $11.36 0.00
Laborer, common................ $ 9.34 0.00
Laborer, Utility............. .. $10.12 0.00
Mechanic...................... . $14.74 0.00
Mixer operator, Concrete Paving $15.25 0.00
Mixer operator................ . $10.83 0.00
Motor Grader Operator, Fine
Grade.......................... $15.26 0.00
Motor Grader Operator, Rough... $12.96 0.00
Oiler......................... . $14.71 0.00
Painter, Structures ........... . $11.00 0.00
Pavement Marking Machine
Operator....................... $ 11.52 0.00
Pipelayer...................... $10.49 0.00
Planer Operator................ $ 17.45 0.00
Reinforcing Steel Setter,
Paving......................... $15.50 0.00
Reinforcing Steel Setter,
Structure.................... .. $14.00 0.00
Roller Operator, Pneumatic,
Self-Propelled................. $ 9.34 0.00
Roller Operator, Steel Wheel,
Flat WheeVTamping............ . $ 9.60 0.00
Roller Operator, Steel Wheel,
Plant Mix Pavel.l1ent............ . $10.24 0.00
Scraper Operator............. .. $ 9.93 0.00
Servicer..................... .. $ 11.41 0.00
Sign Installer (PGM)......... .. $14.85 0.00
Slip Form Machine Operator..... $15.17 0.00
Spreader Box: operator.......... $10.39 0.00
Structural Steel Worker...... .. $ 13.41 0.00
T1·actor operator, Crawler Type. $11.10 0.00
Traveling Mixer Operator....... $10.04 0.00
Trenching machine operator,
Heavy.......................... $14.22 0.00
Truck Driver Tandem Axle Semi-
Trailer....................... . $10.95 0.00
Truck driver, lowboy-Float.. ... $15.30 0.00
Truck driver, Single Axle,
Heavy........................ .. $11.88 0.00
Tmck driver, Single Axle,
Light. ........................ . $ 9.98 0.00
Wagon Drill, Boring Machine,
Post Hole Driller Operator..... $14.65 0.00
Welder........................ . $14.26 0.00
Work Zone Barricade Servicer... $ 11.15 0.00
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Unlisted classifications needed for work not included within
the scope of the classificatious listed may be added after
award only as provided in the labor standards contract clauses
(29CFR 5.5 (a) (1) (ii)).
In the listing above, the "SU" designation means that rates
listed under the identifier do not reflect collectively
bargained wage and fringe benefit rates. Other designations
indicate unions whose rates have been determined to be
prevailing.
WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision in the matter? This can
be:
* an existing published wage detennination
* a survey underlying a wage determination
* a Wage and Hour Division letter setting f01th a position on
a wage determination matter
"' a conformance (additional classification and rate) ruling
On survey related matters, initial contact, including requests
for summaries ofsurveys, should be with the Wage and Hour
Regional Office for-the area in which the suwey was conducted
because those Regional Offices have responsibility for the
Davis-Bacon survey program. If the response from this initial
contact is not satisfactory, then the process described in 2.)
and 3.) should be followed.
With regard to any other matter not yet ripe for the formal
process described here, initial contact should be with the
Branch of Construction Wage Determinations. Write to:
Branch of Construction Wage Detenn.inations
Wage and Hour Division
U.S. Department ofLabor
200. Constitution Avenue, N.W.
Washington, DC 20210
2.) If the answer to the question in 1.) is yes, then an
interested party (those affected by the action) can request
review and reconsideration from the Wage and Hour Administrator
(See 29 CFR Part 1.8 and 29 CFR Patt 7). Write to:
Wage and Hour Administrator
U.S. Depattment of Labor
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Furnish and Install Electric Distribution Facilities
200 Constitution Avenue, N.W.
Washington, DC 20210
The request should be accompanied by a full statement of the
interested party's position and by any inf01mation (wage
payment data, project description, area practice material,
etc.) that the requestor considers relevant to the issue.
3.) If the decision of the Administrator is not favorable, an
interested party may appeal directly to t!1e Administrative
Review Board {formerly the Wage Appeals Board). Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
4.) All decisions by the Administrative Review Board are final.
END OF GENERAL DECISION
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GENERAL DECISION: TX20070129 02/09/2007 TX129
Date: February 9, 2007
General Decision Number : TX20070129 02/09/2007
Superseded General Decision Number: TX20030129
State : Texas
Construction Types: Heavy and High~my ·
Counti es: Aransas , Atascosa, Austin, Bandera, Bastrop, Bee,
Blanco, Burnet, Caldwell, Calhoun, Colorado, De Witt, Fayette,
Frio, Gillespie, Goliad, Gonzales, Jackson, Jim Wells, Karnes,
Kendall, Kerr, Kleberg, Lavaca, Lee , Live Oak, Llano, Mason ,
Matagorda, Medina, Refugio, Wharton and Wilson Counties in Texas.
HEAVY CONSTRUCTION PROJECTS (excluding dam
construction) .HIGHWAY CONSTRUCTION PROJECTS (excluding tunnels,
building
struct ures in rest area projects & railroad construction;
bascule, suspension & spandrel arch bridges designed for
commercial navigation, bridges involving marine construction;
and other major bridges) .
Modification Number Publication Date
0 02/09/2007
SOTX2005-023 09/08/2005
HEAVY CONSTRUCTION PROJECTS HIGmlAY CONSTRUCTION PROJECTS
Rates Fringes
Carpenter. . . . . . . . . . . . . • . . . . . . $ 11 . 70
Hechanic •.. ....• .. • .. • ... . .. .. $ 12.18
Asphalt Distributor Operator ... $ 12.57
Asphalt paving machine operator$ 11. 60
Asphalt Raker • . •.. . . . .. , ... . • . . $ 10.63
Asphalt Shoveler •.. •. . .. . . .. . .. $ 9 . 23
Broom or Sweeper Operator ... .•. $ 9 .32
Bull dozer operator •. • ... . .... $ 11.69
Concrete Finisher, Paving .. .. .. $ 11 .64
Concrete Finisher, Structures . . $ 10 . 23
Concrete Rubber •. . . • . , .. ..•. . • ,.$ 9 . 00
Crane, Clamshell, Backhoe,
Derrick, Dragline, Shovel
Operator ... . ..• . .... .. •• .. . . . . . $ 12 . 00
Flagger . .. ... . .•. ..•. .• . . .. .• •. $ 8 . 60
Form Builder/Setter, Structures$ 10.51
Form Setter, Paving & Curb ..• . . $ 9.48
Foundation Drill Operator,
Truck Mounted .. . .. . • ..• . . . .... . $ 14.58
Front End Loader Ope rator .. . . . . $ 10 . 62
Laborer, common .. . . • •..•.. . . . . . $ 8.91
taborer, Utility . ••• . .. . . . •.. . . $ 9.21
152
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SH130 Segments 5 and 6
Furnish and Install Electric Distribution Facilities
Motor Grader Oper~tor Fine
Grade . . . .. . ..... .•. ,,,,., ••.• .. $ 15.15
Motor Grader Operator Rough .... $ 12.95
Pavement Marking Machine
Operator ..•••. . , •• , ... .... . . • . • $ 13.32
Pipelaye.r . . . • ....... ... ...... . . $ 9.71
Roller Operator, Pneumatic,
Self-Propelled ...•...•••... .... $ 8.90
Roller Operator, Steel Wheel,
Flat Wheel/Tamping .... .. ....... $ 9.30
Roller Operator, Steel Wheel,
Plant Mix Pavement .... • ........ $ 10 .59
Scraper Operator ........ . ...... $ 9.85
Ser·vicer .. .. .. ,, .......... .. . , .$ 11.18
Spreader Box Operator .. . .. . .. . . $ 13.00
Traveling Mixer Operator .. ... . . $ 12.67
Truck Driver Single Axle Heavy .$ 10.87
Truck Driver Single Axle, Light$ 10.85
Truck driver, lowboy-Float ..... $ 13.70
Truck Driver, Tandem Axle,
Semi-Trailer... .... ...... . ...... $ 10.05
Work Zone Barricade Servicer ... $ 9.63
WELDERS - Receive rate prescribed for craft performing
operation to which welding is incidental.
Unlisted classifications needed for work not included within
the scope of the
classifications listed may be added aft er a1-1ard only as
provided in the labor
standards contract clauses (29 CFR 5.5 (a) (1) (ii)) .
In the listing above, the " SU" designation means t hat rates
listed unde r the
identifier do not refl ect collectively bargained wage and
fringe benefit
rates . Other designations indicate unions whose rates have
been determined
to be prevailing.
WAGE DETERMINATION APPEALS PROCESS
1.) Has there bee n an initial decision in the matter? This can
be:
* an existing published wage determination
* a survey underlying a wage determination
* a Wage and Hour Division letter setting forth a pos ition on
a 1-1age
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SH130 Segments 5 and 6
Furnish and Install Electric Distribution Facilities
determination matter
* a conformance (additional classification and rate) ruling
On survey related matters, initial contact, . including requests
for surro:naries
of surveys, should be with the Wage and Hour Regional Office
for the area i n
\'lhich the survey wa.s conducted because those Regional Offices
have
responsibility for the Davis-Bacon survey program. I f the
response from this
initial contact is not satisfactory, then the process described
in 2.) and
3.) should be followed.
With r egard to any other mat.ter not yet ripe for the formal
process
described here, initial contact should be ~lith the Branch of
Construction
Wage Determinations. Write to:
Branch of Construction Wa ge Determinations
Wage and Hour Divi sion
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
2 . ) If the answer to the question in 1.) is yes, then an
interested party
(those affected by the action) can request review and
reconsideration from
t he Wage and Hour Administrator (See 29 CFR Part 1 . 8 and 29 CFR
Part 7).
Write to:
Wage and Hour Administrator
U.S. Department of Labor
ZOO Constitution Avenue, N.W .
Washington, DC 20210
The request should be accompanied by a full stat~ment of the
interested
party' s position and by any information (wage payment data,
project
description, area practice material, et c.) that the requestor
consi ders
relevant to the issue .
3 .) If the decision of the Administrator is not favorable, an
interested
party may appeal directly to the Administrative Revie\'/ Board
(formerly the
Wage Appeals Board). Wri te to :
Administrative Review Board
U.S . Department of Labor
~ 200 Constitution Avenue, N. W.
I
!
'
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96
/
1
2
3
4
5
6
7
8
9 DEFENDANT ' S EXHIBIT 3
SUBCONTRACT AGREEMENT CSUB140
10
11
12
,.
13
14
15
16
17
18
19
20
21
22
23
24
25 (Back to index)
Appendix Item 16
.
Agreement #CSUB140
SH130 Segments 5 and 6
Intelligent Transportation an~_!oil Collection Systems
SUBCONTRACT AGREEMENT
TABLE OF CONTENTS
Recitals
Article 1. Scope of Work
Artlclo 2. Agreement Price
Article 3. Schedule
Article 4. Indemnity
4.1 lt1demnification
4.2 Genarallndemnity
4.3 Patent h1demnlt\!
4.4 Indemnity for Borrowad Construction Equiptnent
4.5 Indemnity for Safety VIolations
Article 5. Insurance
5.1 9eneral lnsuranOG Requirements
5.2 Required Coverage
A1ilcle 6. Agreement Documents
Artlcla 7. Security for Performanca
Article 8. Liquidated Damages
Article 9. Performance of the Work
9.1 Scheduling the Work
9.2 Timeliness
9.3 Progress Reports
9.4 Subcontracts
9.5 Site Conditions
9.6 Compliance with Laws
9.7 Hazardous Substancas
9.8 Cleaning Up
9.9 Lapor, Materials, Hauling
9..10 lnspoctlon of the Work
9:11 Occupancy
9.12 Taxes, Licenses, Permits and Fees
9.13 furnished Material
9.14 Represent!'ltives
9.15 Stop Work Orders
9.16 Quality Control
9.17 Standard of Care
9.18 Ethical Standard§
Article 10. Payment
10.1 · Schedule of Values
10.2 partial Payments
10,3 liwolca Requirements
10.4 Application for payment
10.5 Retainage
10.6 Payment Not Accaptai1CQ
10.7 Payments Withheld
10.8 Payment Offset
10.9 Final Payment
10.10 Seller's Payment Obligations
,--~.
EXt-liBIT
Paga 1 of 135 Pages ~~
------~----------~------~-~ 3
.-· ·
Agreement #ICSUB'140
SH130 Segments 5 and 6
' Intelligent Transportation and Toll Collection Systems
workers, increase working hours or otherwise accelerate Its performance until the Work Is back on Schedule, all without
additional cost to D&C Contractor. D&C Contractor reserves the right to perform some or all of the Worl< with Its own forces
and to contract with others for same, bacl<-charging excess costs to the Seller. Upon reques·t, Seller shall promptly provide
D&C Contractor with adequate assurance salisfactoly to D&C Contractor of Sellar's ability to fully perform its obligations
under the Agreement Documents In the lime and manner provided.
9.3 PROGRESS REPORTS. Seller shall furnlsl1 D&C Contractor weekly progress reports and such other reports as
O&C Contractor may reasonably request to verlfy actual progress and to predict future progress. Work product will be
transmitted as no!ed in Exhibit A-1.
9.4 SUBCONTRACTS. Seiler shall not subcontract any Work, or use a third party or broker to furnish any labor for the
Work, without the prior writien consent of D&C Contractor, which consent shall not be unreasonably withheld or delayed.
Seller shall be solely responsible for the engagement and management of its Subcontractors In the perfom1ance of the
Work, for the performance of Worl< by its Subcontractors and for all acts or omissions of Subcontractors. Seller shall Insure
that all Worl< furnished or perrormed by Subcontractors confonns to the requirements of the Agreement Documents.
Neither the consent by D&C Conb-actor. nor anything contained herein, shall create any contractual relationship between
any lower t ier Subcontractor and D&C Contractor. All lower-tier subcontracts must contain the terms and conditions lhat
are incorporated In this Agreement.
No Subcontractor is intended to be or shall be deemed to be a third party beneficiary of lhe Agreement. Each agreement
t.Jelween Seller and any Subt;ontractor shall be in writing, and shall be assignable to D&C Contractor upon the completion
or termination o f the Work A copy of each such agreement wilh pricing removed shall be provided to D&C Contractor upon
request.
In no event shall the right of the Seller hereunder to subcontract relieve the Seller from any of its obligations and
responsibilities to achieve Substantial Completion and Final Acceptance of the Work, as required under the terms of lhe
D&C Contract, for payment of wages of labore rs and for equipment and meterials furnisl)ed for the D&C Work, as well as
for satisfaction of all indemnities of Seller contained herein. The Seller agrees that it Is fully responsible to the D&C
···.
Contractor for the acts and omissions of its subcontractors and of persons either directly or Indirectly employed by them as
It is for the acts and omissions of persons dlroctly employed by the Seller. The Seller shall obtain all necessary information
from its subcontractors engaged in the D&C Work, in order to ensure that their work conforms with the Seller's work. The
Seller is responsible for and shall checl( the correctness of any poriion of the D&C Work perfom1ed by its subcontractors.
9.5 SITE CONDITIONS. Other !han for a Relief Event Seller shall have the sole responsibility to establish that the
nature and location of the Worl<, the Site, and the general and local conditions are such that the Worl< can be performed on
the Site, including but not limited to, the following:
(a) Transportation, access, disposal. handling and storage of materials;
(b) Availability and quality of labor, water, electric power and road conditions;
(c) Climatic conditions and seasons;
(d) Physical conditions at the Site and the Project as a whole;
(e) Topography, subsutiace and ground surface conditions; and
(r) Construction equlprnent and facilities needed preliminary to and during the performance of Seller's Work.
The failure of Seller to acquaint ilsell' with any applicable conditions will not relieve Seller of the responsibility for properly
estimating the difficulties or for the r..osl of successfully performing Seller's obligations h1 the time and manner provided
under the Agreement Documents.
9.6 COMPLIANCE WITH LA~ Seller shall fully comply with all Laws applicable to Seller and to the Worl<. See
Attachment P for addltlonai project specific requirements.
9.6.1 E.REVAILING WAGES
--~
Page 11 of 135 Pages
- - - - - ·...- -·ob,,........____ _ _ _·~-~---·--------------~---------
......
Agreement #C8UB140
SH1 30 Segments 5 and 6
Intelligent Transportation and Toll Collection Systems
a) Seller shall pay or cause to be paid to all applicable workers employed by it or its Contractors to perform the Worl~
not less than the prevailing rates of wages, as provided in Attachment P, in the statutes and regulations applicable to public
work contracts, including Chapter 2258 of the Texas Government Code. TxDOT, Seller and Its Contractors shall comply
with all Laws pettalnlng to prevailing wages. For the purpose of applying such Laws, the Facility shall be treated as a
public wot1< pald for In whole or In part with public funds (regardless of whether public funds are actually used to pay for the
Facility).
b) It is Seller's sole rf,lspo·nfllblfity to detetmlne the wage rates required to be paid. In the event rates of wages and
benefit~ change while this Agreernent is In effect, Seller shall be~r the cost of such changes and shall have no Claim
against D&C Contractor on account of such changes. Without llmiiing the foregoing, no Claim will be allowed which is
based upon Seller's lack of knowledge or a misunderstanding of any sucll requirements or Seller's failure to Include ln the
Base Case Financial Model or Base Case Financial Model Updates adequate increases in such wages over the duration of
this Agreement and the Lease.
c) Any issue between Seller or a subcontractor and any affected worker relating to any alleged violation of Section
2258.023 of the Texas Government Code that is not resolved before the 15th clay after the date TxDOT makes its Initial
determination under Section 2258.052 of the Texas Govemrnent Code (as to whether good cause exists to believe that a
violation occurred) shall be submitted to binding arbitration in accordance wilh the Texas General Arbitration Act , Chapter
171 of the Civil Practice and Remedies Code.
d) Seller shall comply and cause its subcontractors to comply with aU Laws regarding notice and posting of intent to
pay prevailing wages•.and any othe.r notice or posting of prevailing wage requirements and pr'3vaillng wage rates.
9.7 .t:J.e..z~gDOUS SUBS"[8~1.;§~ Seller shall immediately Notify D&C Conb·actor If Seller encou11ler~ prt~~existing
Hazardous Substances at the Site. The D&C Contractor has a separate contract with a Hazardous Materials Contractor to
renwdiate HazardOlls Substances. The Seller shall not remediate pre-existing Hazardous Substances Linder !his
Agreement. However, Seller is responsible for any o·f Its releases of Hazardous Substances.
In accordance wiih the FCA, applicable Laws (Including spHcifically Environmental Laws) and all Environrnenta l Approvals,
the Contractor shall take all reasonable steps to pro1ecl the environment on and off the p\anned Facility Right of Way on
which it pe1forms any of the D&C Work and to avoid damage or nuisance to persons or to properly of the public or others,
resulting fro m pollution, nolsa o r other causes arising as a consequence of its performance of the D&C Worl<, subject to the
allocation of responsibility therefore as provided in the D&C Agreement.
9.8 CLEANING UP. Seller shall at all times keep' the Site and surrounding area clean and free from rubbish caused by
Seller's operations. Prior to completing its Work In an area, Seller shall remove all accumulated rubbish <...-aused by Seller's
operations and Seller's equipment, tools, machinery and matetials. Seller shall dispose of all rubbish caused by Seller's
operations ~1t a site and by the means designat<~d at the sole discre1ion of Sellar In a manner that Is in compliance wllh all
Laws.
9.9 LABOR. MATERIAL AND HAULING
9.9. 1 LABOR. Seller will provide only skillecl, competent workers and supervision for U1e petiormance of its
Work and will be responsible for assuring harmonious loL1or relationships on the Project among its 1".1orkers at the Site. Ail
lndlvidualo performing the Work shall have the skill and 0xperience and any licen ses or oartifications requited to perform
1he Worl< assigned to i hem. Seller shall immediately remove from the Project, when raque$led to do so by D&C Con\raclo r,
any person to whom D&C Contractor reasonably objects, and such person may not thereafter reenter the Site without D&C
Contractor's prior consent.
Any uniforms wom by personnel of Seller-Related Entitles shall bear colors, lettering, badges or other identifiers to assure
clear differentiation frorn uniforms worn by TxDOT employees.
9.9.2 MAT~ All steel and iron used and all products manufactured from steel and iron must be produced In
the United Sl::1!es and all manufacturing processes, including appllcatron of a coaling, for lhese materials m ust occur In the
~··-
·- Poga 12 of 135 Pages
,.- . Agreement #CSUB140
SH130 Segments 5 and 6
' lntelllgent Transportation and Toll Collection Systems
similar conditions at the same time and locality of \he Project. Seller agrees to Investigate and remedy promptly, and
without cost to D&C Contractor or Developer, any Defective Services of which it receives Notice within the longer of twelve
(12) months from D&C Contractor's Final A.cceptance of the Services or the period during which any Develpper Party or
any third party may make a olalm against D&C Contractor related to the Services or any negligent act or omission of the
Seller Party or a Seller subcontractor (each as defined below). In addition, Seller through the insurance provided for in
Article 5 shall reimburse D&C ·Contractor for all reasonable costs Incurred to accomplish needed mpalrs, additions,
replacements or con·ectlons to Seller's work which result 'from the Seller's Defective Services. For this Article 9.17,
Defective Services are defined as any Worl< that fails to satisfy tho following: (a) In compliance with Laws; (b) In accordance
with all applicable standards and codes; (c) In accordance with the provisions of this Agreement and the Facility ·
Concession Agreement, Technical Requirements, Technical Documents, and Reference Information Documents (all FCA-
related documents are Incorporated by reference); and (d) be performed in accordance with the standard of care, skill and
diligence ordinarily used by members of the design profession performing services of a similar type and nature at the same
time and In the locale of the Project
9.18 ETI-IICAL STANDARDS. Within 30 days after the Effective Date, Seller shall adopt written policies specific to this
project establishing ethical standards of conducl for Seller and all Seller-Related Entities, including Seller's supervisory and
management personnel in dealing with (a) the O&C Contractor, (b) the Developer (c) TxDOT and the Independent Engineer
and (d) employment relations. Such policy shall be subject to review and comment by the D&C Contractor prior to adoption
and shall include the ethical standards listed In Attachment Q.
ARTICLE 10. PAYMENT
Invoices shall ba due and payable compliant with Promp1 Payment criteria (i.e. ·to-days after receipt of payment from
Developer), but not more than NET 60 days after receipt of an undisputed invoice. Payment Is subject to complying with
items 10.1-10.11 below. ·
10.1 PAYMENT. D&C Contractor and Seller have agreed to a payment amount for Seller's Wort< activities to serve as a
basis for compuling partial payments. .
1
10.2 PARTIAL PAYMENTS. On the 2o h calendar day of each month, Seller will furnish D&C Contractor an invoice
meeting the requirements In Item ·1 0.3.
'10.3 INVOICE REQUIREMENTS:
(a) A detailed invoice per Segment (5.1, 5.2, 6. 1, 6,2), In a form and content acceptable to D&C Contractor,
setting out the portion of the Agreement Price allocable to the Work actually performed to date by Seller to
accomplish each of the activities shown in the Scope of Work and Schedule, along with supporting
documentation as D&C Contractor may reasonably require to substantiate Seller's right to payment of the
invoiced amounts, especially sales and use 1ax (see Article 2, re: Texas sales and use lax);
(b) Seller's updated Schedule per Agreement Exhibit A 1;
(c) A progress report of Seller's Work Including the Texas sales and use taxes paid by Seller and Seller's
Subcontractors (see Article 2) and supporting documents;
(d) Seller's Partial Waiver and Release of Liens, Affidavit of Bills Patd end Indemnification, cornpleled and
executed in accordance with the form atlached hereto as Attachment F;
(e) Certified payrolls, for the Invoice period, if required by the Agreement Documents; and
(f) One (1) copy of Seller's invoice
Submit invoice and documents to lhe following a~ dress:
Central Texas Highway Constructors, LLC
Accounts Payable
1914 Borchert Drive
Locltagoxda, Medina, Refugio, Wharton and Nllaon Counties in Texas ,
HEAVY CONSTHIJCTlON PROJf~CTS (excluding darn
construction). !HGJllvJ\Y CONt;'l'RUCTIDN l'ROJJ::C'J'S (excluding tunnels,
building
structures in rein: aJ:ea p:~.-ojectu k rail -road consT..ruct.i.on;
bascuJ.e , l:luspension & J>pandrel - an:h b r idges desiqned foJ: .
conmu~.rcia l navigation , bridges i1wolving marine construction;
and other major bridqes) .
t•todificat ion Number Publication Date
0 02/09/2007
SUTX2005-023 09/08/2005
H!!:A'J'( CONS'I'RIJCTION i.>P,OJECTS HIGHI~A.Y COl~STRUC'i'lON PROJECTS
Fringes
Carpenter, ... . .. . . ........ . .. $ 11.70
Mechanic ., . . . . . . . . . . . . . . . . . . .. $ 12.18
A~~\ ,alc Ol~t~ibu~UL o ~~ldLUL •• , $ 12.57
Asphal1: paving machine ope-cator.';l 1 1 .60
Asphalt Rake 1: . . .. . •... , .. . ..... $ l. O, 63
Asphill t: Shoveler •.......... . ... $ 9. 23
Bro<:>m or: S1~eeper Operator ... . , . $ 9, 32
Bulldozt'!-J: operator .. . .. . , .... -~ 11. 69
Concca&e Finiuher, Paving . , . ... $ 11.64
Co ncrete J:i!li::~her, StruccUJ:es .. $ 10 . 23
Concrete Rubber: . . . . . , . . . . . , .. . . $ 9. 00
Crans , Clrunshell , Backhoe,
DGrrick, Dragltne, Shovel
Ope~ator .. ... ... . . . .. , . .. .. . . . . G 12 . 00
I!J.ag9er . . ........ . . . .... , , , . . .. S 8.60
rorm Bui l der/Setter., Structures$ J.O.Sl
li'orm Settur, Pavin g & Curb .... . $ 9.48
1-'o>Jndat ion Dl:i ll Operator., ·
Tr.uck Mounted .................. $ 14.58
f'ront End l.oade:;: OperattJr ...•.. $ 10.62
Laborer, coL'llllon. , •.. . .•.... _..• $ 0.91
Laborer , Utility. , . ...... . ..... $ 9.21
Motor Grader Operator Pine
Grade .. .....• . .. .. . . ... . . . . . .. - ~ 15 . 15
Hotor Grader Ope r ator RQUgh .. . . $ 12 , 95
Pavement 11arking t-1achioe
Opexator .... . ..... . ..... . ... , .. $ 13 . 32
··. Pipelayer . . •.. . , . ..... . , , . . .. . . $ 9.71
\_ Roller Op(~ rul:or, l'ueumatic,
Page 98 of 135 Pagss Excerpt from raclllty Concession Agreement
Agreement #CSUB140
SH-130 Segmen1s 5 and 6
Intelligent Transportation and Toll Collection Systems
Self-Propelled ........ , ... . . . .. $ 8.90
Roller Operator I Steel vlheel,
Flat l"lheel/Tamping . . .. . .•.. . ... $ 9.30
Roller Operator., S teel Hheel,
Plant Mix Pavemen t .. , . . .. . ..... $ 10.59
Scra pet· Operator. . . . ......... . , $ 9.85
Servicer ........... . ..... . . . ... $ 11.18
Spreader Box Operato1.· ... . ... . .. $ 13.00
•rraveling ["1ixer Operator . .... . . $ 12.67
'.('ruck Driver Singl e .ll.xle Heavy.$ l0.07
Truck Driver Single Ax le, J,ight:;> 10.85
Truck driver, J.owboy-l!'loat .. . .. S 1 3 . '10
Truck Driver, Tandem AY.le ,
Semi-Trailer· ......... . . ..... . .. ~ 10.05
Work Zone Ba rricade Sex:vicer . . . $ 9.63
i4ELDERS -Receive rate prescribed for cl."a f t perfor.ming
operation t o >Jhic h v1e lding i s inc].dental.
Unlisted classifica t ion s needed for work not inc l uded wit hin
t he sc,,pe of the
c:lassiflcations l.tsted may be a dded after a1~ard only as
provided i n the labor
standards contract c lauses (29 CFR 5.5(al (1) (ii) J .
In ;:he listing above , the "SU" des ignat i on means !:hat rates
lis ted under l:he
.identifieJ~ do not ref.lect collecti vely bargained wage and
fringe bene fit:
rates. 0;;-.her des ignations indicate unions 1·1hcse rates h ave
b:!en determined
to be. prevaili11g .
WAGS DETERHINA'riON APPEALS PROC~:ss
1.1 Has t here been an initial decision in the matt er? This can
be:
a n existing published w~g ~ determination
a sur:\fP.y underlyi ng a \iage determ.tnat..i.on
a Nage and Hour Division l etter. aetting forth a position on
a 1·1age
determination matter
* a confo rma nce (additional c lassification and r ate ) ruling
On survey related ma'.:.ters , initial cont.act, including r equests
for. summa rie:;
of surveys, should be 1-1ith t.he h'age and Hou r RtO!g i onal Office
for the a .r ea in
\•;hich t he survey was conducted because those Regional Offices
have
xe.~ponsibil.i.t.y for the Davis-Bacon su1~vey p r ogram . If th(;l
response f.rom t his
initial contac t is not s atisfactory, then the pl.·ocess described
in 2 .) o.nd
3 . ) s h OLtJ.d be f o l l owed.
Page 99 ol 135 Pages E)(Cerpt irom Facilliy ConrJ:ssion Agreement
--....
....
Agreeme nt #CSUa140
SH'I30 Segments 5 and 6
Intelligent Transportation and Toll Collection Systems
l'lith regarcl to any other matter: not yet ripe for the formal
process
d;;,s•:ribed hsr.e, ini\.ial com:act should be with .:he 8ranch of
Construction
~lage Dete:cminat).ons . i'~rite to:
Br-anch of Construction Wage Detenn.i.nations
Wage and Hour Div.i si.on
u.s . Depa rtment of l.abor.
200 Consti~:.ution Avenue, N;W,
i'iash1ngton, DC 20210
2.) If ~he answer t o the question in 1.) is yes, t hen an
1nterested party
( thos~ a f fee ted by thc. act.i.on) can requesT. review and
reconsideration f.xom
the ~la ge and ~l OllT.' .Z;.d;ninistratcc (See 29 CFR Par:t 1 . 8 and 29 CFR
Pa:::t 7 ).
~lrite to:
\\lag a and Hou:r 1\dm.i .nist.J:a t.o1:
u.s . De9a.rtrnent of LabOI"
200 Constitution l\venue, N. vl.
Y.iashington , DC 2 0210
'l'he req•.w~·.:. should be accomp::mied by a full statement of the
intt:!rest:ed
parr.y' s position a nd by any infonnaU.on (1~age paym_______uO:. .!~.L~!.!.·~c ~r%!1qsu..__ 0 - EiKJ1 1ilbOf'or o· m!chOO:c •~ted in lh& al>o'I'O ra:e:ront'!d J):))'l'b'l hoi btGn r•!'ic.J,
uslmlkahtd on\~.,) pc.yroV, lln ilmOunl ~~ kss ltlan ti\s sun1 of lh: £f'lrl.ic:r.t>::
c!O llW~I.iy 610te: be sic hou't \'J•ge rCJic flus ll~ :.mount of the ronu.-ed lrir. o' t:snof1it ilS 5S!I1d
n the cet\tr:ct et.car>' ts no!ed Jn s~clion 4(c) blkv.\'.
-.~ ... (c) C::!~CEPTIO:..S
E:.:CEPfiOH (Cn.AFT)
:U ptrsons l!rnfllotc.d on snitl l"oi~c.J h:lvo b~~n pckllhe fu~ w~~lf.ly w.-pos eurne:d, th:~l no r~bl\lo-s heve
blon ar v.!U ta m•d~ ~!lln:r c.lirec~ ~1i"rtctly lo or on brllall ot said
- - - -- · lY~c;3fc"'- :1::1><:. frO<., lh> tun
(Conti:lc:C>f or SubcoulrtJtlor)
wtel\fy w3!)4::o earnGj by :ny f)GISM r.nd lha' no d~tluttOOJ havo betf'l r.laUC tiHmr ch"cci"J 01 ~coctty
rrom lha lull wr..gn eetned IJ.y any prrson. ~hCU" thon pClfml~s,ibto tlcdutllMs at ~li"C!cJ In Hcgoftlion$, Pelf
~J ~!7t·1~0?~~~~~[~~~~6cJJ:~,~~~~~rc,oL~l~ ~om~~:~~~~:~~~~:,;~· ;u. z:mer.detJ (48 s1~t ~46,
2
11£1/.J/Ul!i:
. (2) ihal c:~"~ lla~ro:Js olh!tv1isc uodcl llli~ ~nrratl re:qvlrt:LI lo lH~ ~Wmi!tct.llor the ~bcve pericld tliQ
"-...._,ufi':C'l ond conlplela: ihnl L'1.) rn~g• r.:.lols fc:rlil\ICIIC!U 01 rntthOJntu cont;:~:ntd lh'-ltll'l DIC: nolle"s thon U'd
O?:llic:aiJia w.'itQ r;lijs cont~nall in nny \'r;)OII lli!l~rtnlr.~llo-1 incOI'p~tcHJ Into ll'le COOit11d: th:>l lho
cl.l~s.ii•t&r.orn 'el f01th 1!\c.rcin for e:~ch llUO!.tt 01 rMc.lu:u!c conlortovb rcirru.c:IJ {>3~1011, poynw.nls of frinl).J bontrilf a~ l_llf~d 5n t:tl c.onttocl
ha..,, IJl~n Ct tJ.\U b! JolDtJ~ lo ~p;lfon:ioto P'"''"ms lot U"lt bmilil oi suc;h
O:Tt(llt-)"~:U. e:-cepl o~ mtetJ ln Uclit.n '-It:) ba'c1:1.
DgTcc/Stnl' 028
EXHIBIT
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S/P C1168698.PDF
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(o) WHEf!c:!;....~!.:.!t~~c:.I.g....:~.l!'~
· ~O.·~Se:J:...,,;___ __ 0 - ~ llillarer cr mec1'1311lc 1is'tecr.iil.lli2·al10<'~ r!lterence~ ~ hal;\~_rr.P:slo:l.
' tNaiim>fsi~hi;!oc>):P<:i'f.Yl (Td!aJ. ilt'I.-Iditallill6n'lhe~. a.'Ta:iio\:nl'nzit m~; 111ah'lhe.tun·bfll!e:api?bei!bi4'.
do fl:::rdw-~t"'~ D'
bll~'l'ioiltlf.Wo!gB ra!s·PlUS':lhe·arnbilnl IAe-retUiriidrffi:fliG' 6i!lle6ts-.b$:)iShla ';!lmva por1od ale: dllli: te§'JS.!eiei' in ':i 156713 lil:e
~~e-,ti.U.':iilf pt~. r&g!s[W.led.SlaWs ~l!Mof L21!or, 6/"lr no.SUCII~~ eJ:Isls.ltrn
~· ~~ (e~d.w'..l{,Uta SUfea/J or.Ap;ite'ntlcasht/l=d Tla~"lg.·UrilCOd Sltlles'Pitpai",.rilentoor Labor.
(~) t~Yw·..r.:P.E FRINGE l'li;N~ AAE I?Altl:To APF\iOilED'Pt:ANs', 'Fl.JNOS,·PR i>!lOOAAMS
·o I!>~ lo :h3. tmsldtp>~.'\'~~ .~es pO:Ito-eaelt ~or m~c i::le.d 1o
the·a'Scl.•" re.'M!tlced p~oif, Pf!Y~!s of;Jr~c ~~ lliO.l(sfaC.ln l!1JI ~c!
f>'8'<0. been cr '"~' = rnalll> to at~pro;>i"~ programs ~ lhe. bet'.&li! of such
amj)!I:>)IU3.=ilir as llo!Ctf iri ~, .4(c) tictcwt. ·
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'Q:S;·Dei>aitmont:-o( J:.a:,or.
empi~Sta:n'deTcl.!iJI·dmBtt.\Uon
W<~!!ir. ··• oarolviSIEn PGtllons:tlti!'nbtrlliCT NO.
P~Y.ROL!oNO. fORWEEK!ENOINCl
c;.J '!"ROJEt;T:<'INDp~~~~·
:.t. .. ft~~· SMt30, 5.2.J~V~,!f.1. .'.. , W.S.t. .
'(11 '(2) '(8) (4!.DXY JI!'IQI>Al& (S} fl.}. (Sl}
.(6} IS.>.
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~.!']· c~sslFiC'A"rto!li
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.Niii.E:;-ADOP.E$~ lllOMO.UAL il:ieiflF{,IN~MEIER
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Me.Pi) i'l,j'g .g'.{;~S 1tt;9S
.$ 11 11 1'f. 7: .<1.0 13.59' ,_.
SAe>.oo
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·J~E·P::M!:NDEZ :XXle~2 B iRUCK~C:R 6 g. 1'-1 *!:25. i!33.51l: .. 752.97
T~AXl.E 9 .. 2~11!1· 11,911, 34~ -zo.sa.
~E&J;-1lIDAU:c:IO s. OSORJO' XXX~-: '2 LAB.Pl:U::"R. : 0 16.00 0.00 ~.00
OOMMO~ rci: ' O,Qq
1¢.00 ~01>
s 0
'PIIllR~ S'l.!rol:n Sta~a~
Wo~4r.lll>>ht,.onU\'t"'~~=~~dol:l~lllorlna~lh•~•~d,.;,d~""""'~{l!:lcOII~~flomocy =nctJ\O-~.;
II\O:Io""'""twuo::yolllOClPOhl2l?OI!cc!!jmi~nw~wrrodbl#tlcm:..
.mrbl.n1JoU,.Aa.~IMW""""1!11Wl>""OMsl~,!O$'-U.S..Oer-aolmonr.a!Ln6or,~S3502,20~_.,..""~vo.N,W,W.<>'I'rGJion,O.C.2D~1~
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cJo hereby s1ae:
- \ e;_
.('Q.~'-\ \_c,IIY\\;,~';'"\-
(Name ol Signatory Part\') (Title)
(ll) WHERE FRIN.GE BENEFITS .O.RE PAID IN CAS:~
0 - Each laborer or mcchanic listed in ~ abo~ r-aferenQld peyroll has b~an paid,
as indicated on the pa)'n:lll, an amount not less ihM the sum of the aj>pli<:abla
basic llourty wage rata plus t11a amount of t.~e required fringe t»..neftts as listad
in ihe contract, excapt as not::d in section ~(c) bslov1.
(1) That I pay or sup~rvise lhe payment o: th<> ~rsons employed by
(c) EXCEPTIONS
----------~--,.,<::::..;\~s~\.l.!: e~e:; .\- . .;:.---\'--='=::"'~c.=..:,..___________ on the-
(Contractor or SUbcont.;-actor) ExCE?TJOi~ (CRAFT) . EXPLANATIOI~
s\\ -\
. ..
'lC S~'{\'\Q~\- .$ .).,
(BUilding or Wor1c)
c.'i'C!. fo •\ ; thst during the payroU period commencing on the
.L
( ->,'- ,.. \, .... , "t"""' ,-
\...._-
.:>__ day of H!: nJ"-<"'l .~ <::>\~ , andenc!ingthe<><_'b
_ _ dayof !'e\.•\>.RI:S:
f..--, (2) That any payrolls oth<:rwise undar U1is conL<~ct required to be submitted for Ills above period ara
1..._.-·rracl and coro1pleta; Gtal lh<: wag:a rat:-s ior laborers or mechanics contained th:?reln ara not less i11an lha
applicable wag;; rates contalnad In any wage datarmlnailon incorporated into H1a contracl; li'lal Ute
da>siTicalions 521 forih lharein for each laborer o~ m::chanlc conform with the wOll< ha psrlormed.
(3) That any apprantic.as empl"'rood in the abo'la P?riod are duly registsred In a bona iide
appr;;nlice5hip program rc;gistrracl wit.'l a State apprenticgshlp ag:ancy recogn~d by the Bureau oi
Appr.onticcshlp and Training, United S lares Dapartment of Labor, or ii no such racognioad agancy e;dsts in a
Stata. are rcglslaroo witl1 !he Bureau or /l.pprsnUc::sship and Training, UnitEd SiatGs Department or Labor.
(4)Thal:
(a) W!-IERE FRii\JGE BENEFITS ARE P.~ID TO APPROV:::D PLAhiS, FUI\JOS, OR PROGR."J-AS
u - rn addition to i.i1;, bosic hourly YSg.:!' mtes paid to eoc:.'l laborer or m=ch~ie listed in
the cobove re!er.:nc:-d payroll, paymants of fringe b::nefils 35 nstad in the contract
ha•1e b3ei1 or "''n be made lo appropriate programs ior the benefit of such
smployess, .e::c~pt ~s no~ in s~clion ~(c) batow.
( DgTec/Star .061
.... __ ___ _
u.s. )Jepartment of labor PAYROLL
Employment Standards Administration (For Con tractor's Opt ional Use; See Instructions at www.doi.gov/esa/Whdlfonns/wh347instr.htm)
wa9eandHour D'IVISIOn
• · p ersons are not requlred to respond to lhe colle cllon o f ·nrormatlon
I unless I"t displays a currenUy valid OMB conlrol number Rev DEc. ~008 -
NAME OF CONTRACTOR OR SUBCONTRACTOR ADDRESS OMB No.: 12'15-oncod or as:;i:;lod con61ruc!lon contrac!S rc respond 1o the lnl011!\31ion coiJocllon oontalnod In 29 C.F.R. §§ S.3, S.S(o). The Co~elond Ad (40 U.S.C. § 3145)
aonl~:>clors ond subconi<3Ciors perfonning \1/0rk 011 Foder.!Jiy Gnanccd or assiSied conslruclion eonlracts lo "furnish ..eeldy a $lalemeni..Wt res,c:IIC lhe l"i'90S paid e:!Cit l!fllplo)oee during !lt6 ptOCeding weal<.- U.S. Oepatlrnenl oll.llbor (DOL) ragui:Jtlons at29 C.F.R.li 5.5{a)(3)(i) requitu
ccrtlraclors to submilwoekly a copy of aDpayrOlls to the Federal agency conllacllng lor or ranancinglho conalrucllon projec~ acccmponled by a signed •storomenl D( Complloncn• lndlcafing thallhe payrols aro correet and complete and !hoi each labcRr20 C.F.R. § SS(a)(3)(i) roquke arnltaC1otS
Jos.bntl! w•eJ:Iy • copy ol :all P•yrons to lite Fcdero! agency conltaciJnglor or fnanc!ng lito co""lruclion projocl. o~:d'"'g ogencios recalvf1g 1his iniortnliGon rovll~;> lhe inlormallon 10 determlnelhalemployees h""" reccll..,d logoly required~· and fringe bene rots.
Pubfic Burden Statement
We eslirllale tt\31 is \OIIItal8, BRYAN, TDXAS 7'/802 Tl:iLEPHONB: {979) 260-9911
FAa>lM!LE:(979) 846-7083
Appendix Item 21
:MAY 1, 2012
PAGE2
cc:
CRRR #7010 3090 0001 3525 5399
Star Operations, Inc.
P.O. Box 4100
Corpus Christi TX 78469
CRRR #7010 3090 0001 3525 5405
Central Texas Highwa~ Constructors, LLC
Attention: Mike Kiehnau
1914 Borchert Drive
Lockhart, TX 78644
.......- 1- - -- .. .. .. - - - -- · ·-·· ·----~- "=~~-··-·-~--
·-.•
-...J 2. Artlcla Number
2.Aructi 2 · '1 7 01 0 3 0 9 D 0 0 01 3 52 5 53 8 2
PS~:~ :s~ ~~_Form 38~ ~,-~~~~roY20~0~4==.=.c.i:..~Oom~es~tl~o~Rs~tu'=rn~R~_ec~e~~~~~-:;:;-;~ .;;!,~~~'*""""'--102119
--s.o2.-M-.1540~
(rrunsfer fiom seiVICfl fabaO
.
·'
TE!-EPHONL!! (979) 260-9911
4444 CARTER CREEK PARKWAY, SUITE 208, BRYAN, TEXAS 77802 FACSIMJLE:(979) 846-7083
-··
. -- l ( .l
GREAT AMERICAN INSUBANCE COMPANY OF NEW YORK
Now York
Administrative Office: 560 WALNUT STAE~T • CINOINNATI, OHIO 45202 • 513-SBD-5000 • FAX 613-723·2740
The number or persons nuthori7JJd by
thle power of attorney Is not more thnn THREE No. 014670
POW!:R OF ATTORNEY
I~ any and all bonds, underta/(fngs and contmcts of surelysfllp, or other wtlllen obligations
In the nnt!Jre tllareot,·to prescribe tllfllr respective dulles nnd ths respoctlvellmlls of their authority; and to revoke any such appolntmonr
at any time. . _
At:SO!.VE:O FURTI·IGR: l"hat 1/Je Company sua/and 1/le sfgnaturo of any of the aforosald ofllcers and any Secretary or Ass/slenl
Secreta1y of lho Company may be offlxod by facsimile to any power of atrornoy or certlfloRto of aftharg/ven lor the exooul/on of any bond,
undartaklng, contract of suratys/1/p, or oi/Jer written obllgalfon In tl1a natura t11areof, suoh signature cmd stlaf wllan so used baing hereby
lldopl8d by the Company as tile original signature of suclt officer and the original sool ol tile Cornpany, lobe valid and binding upon tile
comptm)' wllll the same force and effect as IIJough manually affixed.
CERTIFICATION
I, STEPHEN C. BERAHA, ABslstant Secretary or Great American Insurance Compony of New York, do horal>y oertlfy that
the foragoh'g Power ol Allorno'y and the Resolutions of 1ho Boord of Directors of May 14, 2009 have not been ravokoclrmd are
now In full foroe ond effect.
Signed ancl sealed this 15thday or June , 2011
J .
..·'··.....
, ., •
·.\_l-_.·;; r
0,1 ID5F [l/2010)
(
Great American lnsurc'Ulce Compiltl)' of New York
Great American AIJlance ln.surftru::e Company
Great American Insurance CortlpiWy
IMPORTANT NO'l'ICE:
Th obtnhl lnfoLmndon or tna\:e 11 c:ompWnt:
You rnoy contoot th~ 'Chxlll.Depllltillnut ofinsnrnnco lo obtnln i11formnrioo on compunies,
coverugas, rigbu or complaints nt:
1-800-152-3439
Ydu mtty IVritb the TI!Xf.S .Dcparlluenl of lnrorancc nt:
P.O. Box 149104
Au~tiu, TX 78714~9104
F~lll-512-475·1771
YcnJr notiee of chum ngo.lnst the nttachetl bond may be givou to lhc sm-cty compAny tlu1.t last111d ·
tho !loud by ~r:.odlng It Ul the foUowlorr oddru':
Mnill.ng A\ldreu: GrnntAmodcun lou1.rnnca Compnny Chlm
P.O. Box 2575
Clnchmntl, Ohio 45201
Orent Amnrlcan Iiuurance Corupany CI.AJm
.580WeloutStre~t .
71hPlaor
Cincl.nWiti, Ohlo 45201
Yon m~Y tJso contact tho OCtlllt Alnencll\ lru;umoce Compnny Clnlm offic~ by telephone ot:
Tele~hone Numher; 1-51.3-369·.'!069
l'R.EMIDM Oll CUlM DlSPOTES:
U you hnvc l\ dUpUte COI.lc:erning a prcri:Uum, }10U &boul!\ contn~t the nseot :fint.Jf you !JII.VO U
d~putc conccrnlnn n ollilin, you :rhould cornnot the compno.y fur.t. H tbc: dlcpuru 1~ nol rnsolved,
JDIIlD6.Y contscl tJm'Ib.xll.S Dcpo.rtment ofln~ce •
.ATrACIImiS NOTICE 10 YOtm BOND:
ibJs no!lee ia !or lufonnndou onl)' rwd doer. not become n ptlrl or condlpoo of the ottn.;bcd
d!lcurnent.
/
\
Il\1PORTANT NOTICE
TO OBTAIN INFOHM.A.'l"'ION OR MAKE A COMJ.>LAJNT:
YOU MAY CON1'ACT THE TEXAS DE.PARTIY.I:ENT OF INSURANCE
TO OBTAJNJNFORMATION ON COIY.LPANIES, COVERAGES,
lUGRTS OR COM:PLAJNTS AT~
1~800-252-3439
YOU MAY wruTE TEE TEXAS DEPARTMENT OF JNSlJRANCE:
P. 0. BOX 149104
A1JSTIN, TEXAS 78714~9104
FAX#(51Z) 475-1771
PREMf01V.C OR CLAJM DISPUTES:
SHOULD YOUHAVE A DISI'U'IE CONCERNJNG YOUR PREMIUM
OR ABOUT A CL.AIM, YOU SHOULD CONTACT TIIE A.GENT OR
COlYfPi}.:N"Y FIRST. 1F T'BE DISPUTE IS NOT RESOLVED, YOU MAY
. CONTACT THE TEXAS DEPARTIV.OINT OF INSURANCE.
t-iTTACH T'BIS NOTICE TO YOUR I~OLICY
TBIS NOTICE IS FORINFORMA110N ON~YAND DOES NOT BECOME
APART OR CONDT110N OF THE ATTACHED DOCUMENT.
.. ..
-~
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·--1
Agreement #CSUB140
SH130 Segments 5 end 6
Intelligent Transportation and Toll Collection Systems
Bond No. CA306945B
ATTAGH.M.e.W.l
SUBCONTRAC'f LABOR AND MATERIAL PAYMENT BONO
KNOW ALL MEN BY Tlii:SE PRESENTS~ Thot Sl« Oporollau,rna. aSi principal, haretnaller callea Principal, and
Gr«~1Mlltlconln~"4n~oampon~•IN~,Y~tiNoVJYoa corporation, as suroty, haiillnaflsf cntfad Surely, are held end firmly bound unto
GENT~AL TEXAS HIGHWAY CONSll'\.W::;;]p ~~ h~Ccas Obfioom, hurah,ertar caJiod Obllgao, for thCJ use nod benefit of Claimants os
herein below defined In lha amount of ~11\~ou~OO't
J:f. Ooltars {$3.100.IXXl.oo , ror the payrr,ant whereof P.rlno!pal and Surety
bind themselves, their hetts, oxocutors, J8mfrus?rators, sur.celfsors and assigns, oln y und saverally, firmly by these prosanls.
WHEREAS, Principal has by \Willen agreement dated 1:_11'/ 18, ~01 1 entered Into a subcontract •hffh Obligee for
s1113:1 §ownn\0 ~ ""' o"In aocorrlance with drawings and spaclficattiin~; propar| f DtiY auoh &\Jit.
3. 1-lo suit or Dctlon shall be communced hmroundar by any Clefroent (a) nfler lho explraUon of 26 mMthe following lha date on which
Ptinclpnl con~ad wotl; on e11ld S~rbcontract, It being und~rslootl. however, that If any llmllatlon embodied In thls bond Is prohibited by
~;~ny law contrulllno the oom:lructlon hereof, such llmllatlon shall.be deemod to be nmendecl so us to bO egualto tho IYilnlmum period
of llmllallon permitted by such law, {b) olhE!r than In a state COI!rt of compe\Snl jurtsdlcUon In and for th0 county or othar political
subdivision of lha ntate In which the pro)act, or l'lny part thc;Jreof, Is situated, or In tbe Unltad 6tataa Dlallir.t Court fllr th1:1 dlatrlot In
which tho proJoct, or any part thereof, Is lllluntad, and. not ateewhare. .
4. The amount of thl~> bond shall ba reduced by nnd to lhe extent o1 .any peymanl or payments made I" good faith hacounder.
S. The amount of this bond shall be lncrear.ed by the ampunt of any chango ordort~ Issued 1o \he Subeoniraol betwoen Prlnclpal ahd
Obllooe, nollco to surety or 1110 lasuanoa of ouch chDnge ordors baing ht!roby willvocl,
6. At'iY alterntlona, addltlontl or chonges which may bG mud a In 11\a term a of lha Subcontraot or In the work to be patfarmed under It or
tho glving by the OblfgGo of an~r conoont to at~slgn ur aublellha worl< or MY part lhareof, or tho ohllng 01 ony oxtenolon of time for
I he porformenca of the Subcontract o; any !orb011ranoo on the pnrt of either the Obligea or the Principal to the other, llhBII not In |