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HomeMy WebLinkAbout1996-140 - Contract with Pyramid Excavating & ConstructionBILL NO. 96-140 ORDINANCE NO. 96- ~~D AN ORDINANCE AUTHORIZING THE MAYOR TO ENTER INTO A CONTRACT WITH PYRAMID EXCAVATION & CONSTRUCTION TO PROVIDE BANK STABILIZATION AND SOIL EROSION CONTROL AT RENNER-BRENNER PARK. BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: WHEREAS: Sealed bids were appropriately advertised and formally opened at 11:05 a.m. on Monday, December 16, 1996, and WHEREAS: The lowest and best bid has been fully evaluated by Larkin Associates and city staff, therefore SECTION 1. The Mayor is hereby authorized to enter into a contract with Pyramid Excavation & Construction to provide bank stabilization and soil erosion control at Renner-Brenner Park. SECTION 2. The bid price accepted is $47,440.00. SECTION 3. The City Administrator is directed to issue a Notice to Proceed following a Pre-Construction Conference. SECTION 4. This ordinance shall be in full force and effect from and after its passage. PASSED THIS 17TH DAY OF DECEMBER, 1 96. Mayor Ed Rule ATT~ST: ~ < ~.- /;' Grace Keme -ling, City Jerk APPROVED THIS // ~~C~ DAY OF DECEMBER, 1996. ayor E R le r~ ~r . . AGREEMENT BETWEEN CTTY OF RIVERSIDE AND CONTRACTOR FOR Renner-Brenner Park Soil Erosion and Bank Stabilization Project Title CONTRACTOR: Pyramid Excavation CONTRACT NO: 96-OS CONTRACT PRICE: $47,440.00 CONTRACT NO. 96-OS AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR THIS AGREEMENT, made and entered into this 27th day of December, 1996, by and between the City of Riverside, Missouri, ("City"), and Pyramid Excavation ("Contractor"), shall govern all labor, material, equipment, and services to be provided by Contractor for City on the Project described herein. WHEREAS, the City intends to construct or perform the Project described in these Contract Documents; and WHEREAS, the City of Riverside, under the provisions of Ordinance No. 96-140, duly approved December 17, 1996, and by virtue of the authority vested in the City by the general ordinances of the City, intends to enter into one or more contracts for the Project; and WHEREAS, the Mayor is authorized and empowered by the City to execute contracts on behalf of the City, and the City Administrator and his or her designees (collectively, thE; "Administrator") are authorized to perform the contract functions herein; and WHEREAS, the Administrator may designate an engineer, architect, or other person to assist the Administrator in performing his or her functions under this Agreement; and WHEREAS, City desires to enter into an agreement with Contractor to obtain labor, material, equipment and/or services as set forth herein; and WHEREAS, Contractor represents that Contractor is equipped, competent, and able to undertake such an assignment; NOW THEREFORE, in consideration of the mutual covenants and considerations herein contained, IT IS HEREBY AGREED by the parties hereto as follows: ARTICLE I THE PROJECT Contractor shall provide all Work for City's Project Number 96-05. The Project is generally described as follows: Soil erosion and bank stabilization in Renner-Brenner Park. "Work", as used in this Agreement and the other Contract Documents, means all labor, services, materials, supplies, tools, equipment, supervision and management necessary to accomplish the results and objectives described in Exhibit A, Scope of Work, Exhibit C. Specifications and Drawings, and the other Contract Documents, including all duly executed Change Orders. The Contractor and each subcontractor shall evaluate and satisfy themselves as to tl;~e conditions and limitations under which the Work is to be performed, including, without limitation (1) the location, condition, layout and nature of the Project site and surrounding areas, (2) generally prevailing climatic conditions, (3) anticipated labor supply and costs, and (4) availability and cost of materials, tools, and equipment. The City shall not be required to make any adjustment in either the Contract Amount or the Schedule in connection with any failure by the Contractor or any subcontractor to comply with the requirements of this paragraph. ARTICLE II CONTRACT AMOUNT Provided Contractor performs all Work in accordance with the Contract Document:;, City shall pay Contractor the lump sum amount of Forty-seven thousand, four hundred forty dollars ($47,440.00). Such amount shall include all taxes, costs, permit fees, profit, overhead, expenses and compensation of every kind related to the Work, and shall be referred to as the "Contract Amount. " This Agreement is subject to the City Ordinances, and payments hereunder shall be limited to the amount of particular appropriation for the Work hereunder by the Board of Alderman. The total payments under this Agreement shall not exceed the appropriation contained in Ordinance No. 96-140 authorizing the Work, and Contractor shall not seek, nor be entitled to, payments exceeding such amount unless the City directs Contractor in writing to perform additional work pursuant to Article VI of this Agreement, and City enacts another ordinance authorizing such amounts as City agrees to pay under Article VI. ARTICLE III SCHEDULE/EFFECT OF DELAY A. Contractor's obligations to perform Work shall begin upon the Commencement date listed below, unless otherwise directed in writing by the Administrator. Contractor shall comply with all schedules furnished by City, including the following: Activi Date Commencement of Work FEBRUARY 17, 1997 Completion of 60 CALENDAR DAYS Final Completion APRIL 17, 1997 All Schedule dates are of the essence of this Agreement, and may be amended only in writing signed by City. -2- B. If Contractor fails to achieve Final Completion of the Work by the date stated above, the City shall retain $d#®®®~ as liquidated damages and not as a penalty, for each calendar day after the stated Final Completion date that Contractor fails to achieve Final Completion. C. In the event the Administrator reasonably determines that the performance of the Work has not progressed or reached the level of completion required by the Contract Documents or that the Work is being unnecessarily delayed or will not be finished within the prescribed time, the Administrator shall have the right to order the Contractor to take corrective measures necessary to expedite the progress of construction, including, without limitation, (1) working additional shifts or overtime, (2) supplying additional manpower, equipment, and facilities and (3) other similar measures (hereinafter referred to collective)}~ as "Extraordinary Measures"). Such Extraordinary Measures shall continue until the progress of the Work complies with the stage of completion required by the Contract Documents, and clearly indicates that all Schedule dates will be met. The City's right to require Extraordinary Measures is solely for the purpose of ensuring the Contractor's compliance with the construction Schedule. The Contractor shall not be entitled to an adjustment in the Contract Amour.~t as a result of the Extraordinary Measures required by the Administrator pursuant to this paragraph. The City shall not be liable for any costs, either direct or indirect, of Contractor in complying with such Extraordinary Measures. 2. The City may exercise the rights furnished the City pursuant to this paragraph as frequently as the City deems necessary to ensure that the Contractor's performance of the Work will comply with any Schedule date or completion date set forth in the Contract Documents. D. If the Contractor abandons the Work or, in the reasonable determination of the Administrator, fails to take all Extraordinary Measures directed by the Administrator as will insure timely and satisfactory completion of the Work, the Administrator may direct Contractor to discontinue all Work under this Agreement. Contractor shall immediately discontinue all Work upon receipt of such notice. The City may then annul and cancel this Agreement and rebid the Work, or any part thereof, and Contractor shall be liable for all increased costs and expenses of City related to rebidding and completing the Work. The City may take control of and use for completing the Work all equipment or materials at th.e Project site or otherwise identifiable for the Work, and the Contractor shall receive a credit for the value of the materials or equipment used. Upon receipt of notice from the Administrator to discontinue Work, the Contractor shall receive no further payment from the City until the City has such Work completed by its own personnel or others, and then the Contractor shall receive only such amount, if any, that the total cost of the Work was less than it would have been if completed by Contractor. If the cost of completing the Work, including costs from rebidding and related expenses, exceeds the unpaid balance of the Contract Amount, Contractor shall promptly pay City the amount the City pays for proper' completion of the Work in excess of the Contract Amount. -3- E. If the Work is delayed by Act of God, fire, or other cause over which Contractor has no control and could not reasonably anticipate, the Schedule shall be extended as the City and Contractor shall reasonably agree; such extension shall be made only if Contractor notifies City in writing of the reason for the delay, and its expected length, within 7 days from the commencement of the delay. In no event shall the Contract Amount be increased to allow Contractor's recovery of that portion of delay costs caused by the acts or omissions of Contractor, its agents or subcontractors. ARTICLE IV CONTRACT DOCUMENTS The following documents, and any other documents specifically referenced therein, and all Contract Change Orders, form the entire Agreement between City and Contractor, and are the Contract Documents: This AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR 2. EXHIBIT A -SCOPE OF SERVICES, dated December 4, 1996_. 3. EXHIBIT B -SCHEDULE OF RATES FOR EXTRA WORK PERFORMED ON A TIME AND MATERIALS BASIS, dated January 15, 1997. 4. EXHIBIT C -SPECIFICATIONS AND DRAWINGS, dated December 4, 1996. 5. EXHIBIT D -FORM OF BOND (For Performance and Payment), approved In the event of any dispute between this Agreement and any Exhibit, the terms of this Agreement shall prevail. ARTICLE V PAYMENTS Prior to submitting its first Application for Payment, Contractor shall provide City with a Schedule of Values dividing the Work, and the Contract Amount, into workable categories in a form acceptable to City. Each Application for Payment shall be based upon the percentage of actual completion of each category, multiplied by the dollar value of such category. 2. On or about the first day of Contractor's monthly accounting period, Contractor shall submit an Application for Payment to the City representative designated in Article XII. In addition to the amount requested in that Application for Payment, each Application shall list the original Contract -4- Amount, the amount Contractor has invoiced City to date for this Project, the amount Contractor has received to date, total additions to and deletions from the Contract Amount pursuant to approved Change Orders or Addenda, and the amount of any additions to or deletion from the Contract Amount that Contractor seeks in its current Application. Contractor shall also state the amount Contractor intends to pay its suppliers and subcontractors from such payment. Contractor shall include with each Application all supporting documentation as City may require. City shall pay Contractor within 30 days of delivery of Contractor's Application and all supporting documentation to the City's designee, provided all Work and documentation are acceptable to City. Within 15 days of its receipt of payment from the City, Contractor shall pa}~ all subcontractors and suppliers to whom payment is owed from the amount paid to Contractor. 3. All payments under this Agreement shall be made only upon the approval o~~ the Administrator or such licensed Engineer or Architect as the Administrator may designate to review payment applications. The Administrator shall review each Application for Payment, and certify for payment such amounts as the Administrator believes are due Contractor under the Schedule of Values and the documentation submitted by the Contractor. From the total amount certified, the Administrator shall withhold five percent (5%) as retainage until Substantial Completion of the Work, as defined in Paragraph 6 below. The City Treasurer, upon presentation of such certificate, shall prepare a check for the sum certified to be due, payable out of the funds in the City Treasury available for Contractor under Ordinance No. 96-140. Payment shall be made to Contractor after the Board of Alderman review and approve the payment, and authorize the Mayor and City Treasurer to endorse the check for payment. 4. Neither the Administrator's certificate nor payment made thereon to Contractor shall constitute final acceptance of any part of the Work. Contractor shall remain obligated to perform all Work pursuant to the Contract Documents. 5. With each Application, Contractor shall submit a signed waiver of all rights of Contractor to assert any claim under Mo. Rev. Stat. § 107.170 or under Chapter 429 (to the extent applicable) for labor or material provided through the date of the current application. The City may, at its option, require a lien waiver and/or release of claim rights from each subcontractor or materialman performing work on the project prior to making any payment to the Contractor. The subcontractors' lien waivers and releases shall be in a forn- approved by the City and shall indicate that all debts for work performed by each subcontractor included on any previous invoice to City from the Contractor have been satisfied and that the subcontractor waives and releases any lien, claim or right to lien and any right to bring an action against City or any other person or entity pursuant to Missouri Revised Statutes § 107.170, and under Chapter 429 and the other statutes relating to mechanic's liens (to -5- the extent applicable) on account of labor or materials furnished for the Project. 6. The Contractor's retainage shall not be released until the Contractor indicates, and the Administrator certifies, that the Work is Substantially Complete. Tlie Work shall not be deemed Substantially Complete until it is complete in accordance with the Contract Documents, and the Administrator agrees the City can then occupy or use the Work for its intended purpose. Retainage shall be paid to the Contractor within 30 days of the Administrator's certification that the Work is Substantially Complete. If there are any minor items remaining to be completed upon Substantial Completion, an amount equal to two hundred percent (200%) of the value of each item, as determined by the Administrator, shall be withheld until such items are complete. 7. The Contractor shall not be entitled to demand or receive final payment for the Work until all requirements of the Contract Documents are complied with, :ind the Administrator shall have given his or her certificate to that effect; the City, after ten days from the delivery of the Administrator's certificate, shall pay the Contractor all remaining funds which the Contractor is due under this Agreement. Acceptance of the final payment by the Contractor shall release the City from all further obligations to Contractor, except as to such amounts, if any, Contractor has specifically identified in its Final Application for Payment as having been claimed by Contractor. All claims to extra funds not identified in the Final Application for Payment are waived. 8. The City may withhold final or any monthly payment to Contractor on any reasonable basis, including the following: a. Unsatisfactory job progress; b. Defective Work; c. Contractor's failure to make payments to its subcontractors or suppliers; d. Reasonable evidence that all Work cannot be completed for the unpaid balance of the Contract Amount; e. Damage by Contractor or its subcontractor to property of the City or other party; f. Contractor's breach of this Agreement; or g. Contractor's failure to provide requested documentation. -6- ARTICLE VI CHANGES A. The City, without invalidating this Agreement, may order changes in the Scope of Work or any other terms or conditions of this Agreement which may result in an addition to or deduction from the Contract Amount. No change in the Scope of Work shall be effective unless signed by City's authorized representative. B. Extra or additional Work shall be performed for a fixed lump sum as to which Contractor and the City shall mutually agree prior to the commencement of such extra or additional Work; City, at its option, may direct Contractor to perform such extra or additional work pursuant to Exhibit B, Schedule of Rates for Extra Work Performed on a Time and Materials Basis. C. A change in the Contract Amount or the Contract Time shall be accomplishf;d only by Change Order. Accordingly, no course of conduct or dealings between the parties, nor express or implied acceptance of alterations or additions to the Work, and no claim that the City has been unjustly enriched by any alteration or addition to the Work, whether or riot there is, in fact, any enrichment from the Work, shall be the basis of any claim to an increase in any amounts due under the Contract Documents or a change in any time period. provided for in the Contract Documents. D. Agreement on any Change Order shall constitute a final settlement of all matters relating to the change in the Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs associated with such change and any and all adjustments to the Contract Amount and construction schedule. E. The City shall not be liable for any overtime labor charges unless the City accelerates the Schedule and specifically directs Contractor in writing, such as through a Change Order, to perform overtime Work. In such case, Contractor shall provide City, e~ich day, with reports of overtime hours worked the previous day. Contractor shall not receive: an increase in the Contract Amount for overtime worked to maintain or comply with the Schedule, or if such overtime is directed by the City as an Extraordinary Measure pursuant to Article III.C. ARTICLE VII INSURANCE Contractor shall maintain, at Contractor's expense, the following insurance coverage during the period of the contract, and shall provide the City with current Certificates of Insurance naming the City and its employees as additional insureds on all required coverage prior to commencement of Work under this Agreement: -7- 1) COMMERCIAL GENERAL LIABILITY - Contractor shall provide coveral;e for Contractor, the City and its employees against claims arising from damal;es to property and illness, injuries to, or death of any person or persons for occurrences related to or arising out of the Work. Such coverages shall have not less than the following limits: Each occurrence ............................ $1,000,000.00 General Aggregate ........................... $2,000,000.00 Products/Completed Operations Aggregate ............................ $2,000,000.00 Each Policy shall include the following coverages: - Contractual liability - Products/completed operations - Personal/Advertising injury - Independent contractors 2) AUTOMOBILE LIABILITY -Such insurance shall protect the Contractor and the City against claims for bodily injury and/or property damages arising out of the ownership or use of any owned, hired and/or non-owned vehicle, and shall include protection for any auto, or all owned autos, hired autos, and non- owned autos. Limits: Each accident combined single limits, bodily injury and property damage ................. $1,000,00(1.00 3) WORKERS' COMPENSATION -This insurance shall protect the Contractor against all claims under applicable State Workers' Compensation laws. The Contractor and the City shall also be protected through Employers Liability coverage against claims for injury, disease or death of employees which, for any reason, may not fall within the provisions of a Workers' Compensation law. The policy limits shall not be less than the following: Workers' Compensation ............... Statutory Employer's Liability: Bodily injury by accident .............. $1,000,000.00 each accident Bodily injury by disease ............... $500,000.00 each employee All insurance shall be maintained with an insurer acceptable to City and which shall have a minimum financial rating not lower than "XI" in the Best's Insurance Guide, latest edition. All policies and Certificates of Insurance shall expressly provide no less than 30 d~iys prior written notice to City in the event of cancellation, expiration, nonrenewal or material alteration of coverage contained in the policy or evidenced by such Certificate of Insurance. All policies except Worker's Compensation shall contain a waiver of subrogation in favor of the City and its employees. -8- The Contractor's right to receive payment under this Agreement is wholly continge~it upon Contractor's compliance with this Article. ARTICLE VIII INDEMNITY Contractor shall defend, indemnify, and hold harmless the City, its officials, agents and employees from any and all loss, damages, costs, expenses, claims and causes of action (collectively, "Loss") which may be imposed upon or asserted against City, its officials, agents or employees where such Loss is caused or incurred, or alleged to be caused or incurred, in whole or in part as a result of the negligence or other actionable fault of Contractor, its agents, employees, subcontractors or affiliates. This indemnity shall apply notwithstanding the joint, concurrent, contributory or comparative fault or negligence of tl~.e City or any third party. Nothing in this Article shall be deemed to impose liability on Contractor to indemnify City when the City's negligence or other actionable fault is the sole cause of Loss. In the event full indemnity pursuant to this Article is unenforceable under any law, Contractor and City shall bear any Loss in proportion to their respective fault. Contractor further agrees to defend, indemnify and hold harmless the City, its officials, agents and employees against all liens, suits on liens, and other claims, demands or suits which may be asserted by any subcontractor, supplier, agent, or employee of Contractor relating to the Project. ARTICLE IX PATENT LIABILITY Contractor agrees to defend, indemnify and hold harmless the City, its officials, employees and agents from and against any claim, action or suit that may be brought agaitlst them for Contractor's infringement of any Letters Patent in the performance of this Agreement or any breach or violation of trademark or proprietary or trade secret rights of others, as well as against any judgments, decrees, damages, costs and expenses sought, adjudicated, or recovered against any of them, on account of any such actual or alleged infringement. ARTICLE X COVENANT AGAINST UNDUE INFLUENCE The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working for the Contractor, to solicit or secure this contract, and that it has not paid or agreed to pay any company or person, other than bona fide employee, any fee, commission, percentage, brokerage fee, gifts, or any other consideration -9- contingent upon or resulting from the award of making of this contract. For breach or violation of this warranty, the City shall have the right to void this contract without liability and, in its discretion, to deduct from the Contract Amount, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. Contractor hereby represents and warrants that no payments have been or shall be made, directly or indirectly, by or on behalf of Contractor to or for the benefit of any employee or agent of City who may reasonably be expected to influence the decision to requisition, issue or take any action with respect to this Agreement. Contractor shall allow a mutually agreeable nationally recognized certified public accounting firm to examine, at City's expense, such of Contractor's books and records as may be necessary, in the accountant's reasonable opinion, to verify Contractor's compliance with this paragraph. ARTICLE XI RECORDS REGARDING PAYMENT For a period of at least two years after the completion of this Agreement, Contractor shall maintain, in accordance with generally accepted accounting principles, such records as are necessary to substantiate that all Applications for Payment hereunder were valid and properly chargeable to City. For lump sum contract Work, such records shall demonstrate that the City was billed at appropriate times for proper percentages of completion and for payments to subcontractors and suppliers. For any Work, including extra Work, not char€;ed on a lump sum basis, the records to be maintained hereunder include, but are not limited to, all contracts, subcontracts, material bills, correspondence, accounting records, time sheets, cancelled checks, orders and invoices pertaining to City's account. The City or its representatives shall, upon reasonable prior notice to Contractor, be given the opportunity to audit such records at any time during normal business hours to verify the accuracy of Contractor's invoices and charges. ARTICLE XII NOTICES The following persons are designated by the respective parties to act on behalf of such party and to receive all written notices and Payment Applications: For City: Ms. Ann Daniels City Administrator P.O. Box 9135 4500 High Drive Riverside, Missouri 64168 -10- For Contractor: pyramid Excavation & Construction. Inc. 11201A West 59TH Terrace, Suite 4 Shawnee Kansas 66203 PH• (913) 268-4464 Robert Yunger Contractor's designee shall be available to meet with the City at any time during the performance of the Work, and shall have full authority to act on Contractor's behalf on any matter related to this Agreement and/or the Work. ARTICLE XIII TERMINATION OF AGREEMENT City may at any time and for any reason terminate this Agreement (including termination for City's convenience) upon 5-days' written notice to Contractor. Upon receipt of such termination notice, Contractor shall cease performance of all Work, and shall safeguard and protect from weather, theft, and vandals in any Work then in progress. If City terminates this Agreement without breach or default by Contractor, City shall compensate Contractor, in accordance with the Contract Documents, for all Work performed, including pro rata profit actually earned, and for costs and obligations reasonably incurred, up to the date of Contractor's receipt of notice to terminate. In no event shall Contractor have any right or claim for future lost profits. If City terminates due to the breach or def:cult of Contractor, City may withhold all payments and shall have all rights and remedies available at law. ARTICLE XIV COMPLIANCE WITH LAWS Contractor shall comply with all Federal, State, and local laws, ordinances and regulations applicable to the Work, including, but not limited to, the Prevailing Wages on Public Works Act, Mo. Rev. Stat. § 290.210 through § 290.340 (1996), and the Missouri Prompt Payment Act, Mo. Rev. Stat. §§ 34.057 and 34.058 (1993), as applicable. Contractor shall secure all permits from public and private sources necessary for the fulfillment of Contractor's obligations under this Agreement. This Agreement shall be governed by and constructed in accordance with the laws of the State of Missouri. -11- ARTICLE XV SUBCONTRACTS ASSIGNMENT OR TRANSFER Contractor shall not assign or transfer any right, obligation or interest under this Agreement except with the prior written consent of the City. The use of subcontractors shall in no way relieve the Contractor of its primary responsibility for the Work. ARTICLE XVI ACCESS TO SITE Contractor shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehicular and pedestrian, around the site of the Work and :tll adjacent areas. The Work shall be performed, to the fullest extent reasonably possible, in such a manner that public areas adjacent to the site of the Work shall be free from all debris, building materials and equipment creating potentially hazardous conditions. Representatives of the City may inspect or review any Work performed by the Contractor, and consult with Contractor, at any time. The City's inspections or reviews shall not constitute acceptance or approval of Work unless specifically stated in writing. Contractor shall meet with City at the request of the City. ARTICLE XVII COMPETENCE Contractor confirms that it maintains all necessary licenses, registration, competence and experience to perform all of the Work. ARTICLE XVIII WARRANTY The Contractor shall exercise high professional skill, care and diligence in the performance of its Work, and shall carry out its responsibilities in accordance with customarily accepted good professional practices. If any defects in the Work are discovered within one year from the completion of the Work, Contractor shall promptly remedy such defects and provide, at its expense, all labor, material, equipment and services necessary to correct any errors or omissions of Contractor or any of its subcontractors. This obligation shall be in addition to Contractor's obligations to perform its Work properly. Neither final payment, the Administrator's final certificate, nor any other provision in the Contract Documents shall remove the Contractor's obligation to complete the Work free of defects in workmanship and material. -12- Contractor agrees that it shall remain solely responsible for the performance of the Work required by the Contract Documents, notwithstanding any suggestions or observations made by any other person or entity with respect to the Work. This Article does not establish a period of limitations with respect to any obligations of the Contractor under the Contract Documents, and does not limit the time allowed by law for any action for breach of such obligations. ARTICLE XIX STORAGE OF MATERIALS AND EQUIPMENT Only materials and equipment which are to be used directly in the Work shall be brought to and stored on the Project site by the Contractor. After equipment is no longer required for the Work, it shall be promptly removed from the Project site. Protection of construction materials and equipment stored at the Project site from weather, theft, damagc; and all other adversity is solely the responsibility of the Contractor. ARTICLE XX SAFETY Contractor shall be solely responsible for the safety of its workers and others on thc; job site relating to its Work, notwithstanding the presence of City, its employees or agents. The City shall not be liable for the physical condition or safety of the Project site or any improvements thereon. The City may immediately suspend the Work if unsafe conditions or acts are observed, and the Contractor shall not receive an extension of the Schedule resulting from any safety suspension. ARTICLE XXI INDEPENDENT CONTRACTOR Contractor acknowledges it is an independent contractor, and neither Contractor nor any of its subcontractors or employees shall be deemed an employee or agent of the City for any purpose. ARTICLE XXII CONFLICT Contractor shall promptly upon discovery advise the City of any conflict, ambiguity or inconsistency in the Contract Documents, or between any Contract Document and actual -13- field conditions, and the City shall resolve such conflict, ambiguity or inconsistency in its sole discretion. ARTICLE XXIII BONDS Prior to commencing any Work, Contractor shall obtain from a recognized surety acceptable to the Administrator, a payment and performance bond in the form of Exhibit I) or in another form approved by the Administrator. Such bond shall be for the full Contract Amount, and shall guarantee and secure Contractor's proper performance of the Work and the payment of all subcontractors and suppliers for labor, equipment, and/or materials supplied to or for-the benefit of Contractor or the Work. The premium for such bond shall be included in the Contract Amount. ARTICLE XXIV SEVERABILITY Should any specific provisions of this Agreement be found to be unenforceable, the remaining provisions shall remain in full force and effect. ARTICLE XXV NO PRESUMPTION AGAINST THE DRAFTER No assumption or inference against the City shall be made because of the City's preparation of this Agreement. ARTICLE XXVI NO WAIVER BY CITY The failure of City in any one or more instances to insist upon strict performance of any of the terms of this Agreement or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such terms or option on any future occasion. ARTICLE XXVII ATTORNEYS FEES/DISPUTES In the event of litigation between Contractor and the City concerning the Project or this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fee:;, costs, and expenses from the other party arising from such litigation. -14- If any dispute arises between Contractor and the City, and Contractor refuses to pay its subcontractors or suppliers for labor and/or material properly provided, the City may, taut shall not be required to, pay directly such subcontractors and suppliers. Any payments made to such subcontractors and suppliers shall be charged against the Contract Amount. This provision shall not confer any right upon any subcontractor or supplier to seek payment directly from the City. ARTICLE XXVIII ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties with respect to its subject matter and any prior agreements, understandings, or other matters, whether oral or written, are of no further force or effect. Subject to Article VI, this Agreement or any Exhibit hereto may be amended, changed or supplemented only by written agreement executed by both of the parties hereto. THIS AGREEMENT shall be binding on the parties thereto only after it has been duly executed and approved by the City and the Contractor. IN WITNESS HERE ,the parties have caused this Agreement to be executed cm this~~~ day of 19,~ CITY OF RIVERSIDE By: MAYOR AT ESTED: CITY CLERK Pyramid Excavation & Construction (CONTRACTOR) By: ~5....4 ~ _ Printed Name: Rob -ri- C Vungar _ Title President -15- EXHIBIT A SCOPE OF WORK Contractor shall perform the following Work: * Placement of approximately 240 C.Y. of rock riprap and bedding * Construction of a reinforced concrete flume * Construction of a sanitary sewer manhole * Associated grading, seeding, fertilizing, mulching, and erosion protection * Replacement of approximately 80 L.F. of 5 ft. wide asphalt path EXHIBIT B SCHEDULE OF RATES FOR EXTRA WORK PERFORMED ON A TIME AND MATERIALS BASIS For all extra Work City directs in writing that Contractor perform on a time and materials basis, Contractor shall be reimbursed in accordance with the following rates: Job Classification Hourly Rate Foreman $44.00 Operator 41.00 Laborer 40.50 All rates shall include all profit and overhead, as well as all insurance, taxes, and other fringe benefits of every kind, payable to Contractor. Contractor's overhead includes all salary and other costs of Contractor's officers, program or project directors, and all administrative, clerical, secretarial and home office staff, as well as all other home and field office costs and expenses. In addition to Hourly Rates, Contractor shall be reimbursed for its actual expenses paid to third parties, plus 25 % for overhead and profit, if reasonably incurred in connection with the Work and approved in advance by City. Contractor shall provide original receipts for all out-of-pocket expenses for which Contractor seeks reimbursement. Contractor shall obtain City approval before subcontracting any extra Work. Contractor shall be reimbursed for approved subcontracts for extra work at the subcontract amount plus 20 % as its profit and overhead; the subcontractor shall receive its actual costs, plus 10 % as its profit and overhead. Contractor shall be reimbursed for its hourly usage costs of Contractor-owned equipment, including equipment leased or rented from an equipment supplier wholly or partially owned by Contractor, at the rates shown in the latest edition of "Nationally Averaged Rental Rate and Model Reference Data for Construction Equipment prepared by the Associated Equipment Dealers; if such rates exceed the lowest available rental rate for the particular equipment of the same age and type in the Kansas City metropolitan area, such lowest available area rental rate shall be used. EXHIBIT C SPECIFICATIONS AND DRAWINGS The following Specifications govern Contractor's performance of the Work: * Project Manual for Riverside, Missouri, Soil Erosion and Bank Stabilization Renner-Brenner Park The Drawings governing the Work are as follows: Drawing Number 1 - Cover Sheet 2 - Plan/Profile Sheet 3 -4 Cross Section Sheets Date December 4, 1996 December 4, 1996 December 4, 1996 5 - Detail Sheet December 4, 1996 City Contract ~o. EXHIBIT D FOR,~I OF BONS For Payment and Performance 3ond `70. 789628 FOR THE FAITHFUL- PERFOR~bIAl~iCE of each of the terms and stipulations of this AGREF.,~fENT BETWEEN CITY OF RNERSIDE~~ tC0 NTR.4CTOR, dated Construction,inc. as Principal, and December Z7 1996 in every particular, Universal S,n-Pry C--- ~ aS Surety, hereby bind themselves and their respective heirs, executors, administrators, successors, and assigns, unto the City of Riverside, Missouri, in and No/100 * * * * (547,4[,p:00 * *) the penal sum Of Forty seven Thousand Four Hundred Forty lawful money of the United States, conditioned that in the event the Principal shall faithfully and properly complete the Work and perform all of its obligations and duties pursuant to the terms of the foregoing Agreement, including those under which the Principal agrees to pay the prevailing hourly rate of wages for each craft or type of workman required to execute this contract in the locality as determined by the Department of Labor and Industrial Relations of Missouri or by final judicial determination pursuant to the provisions of sections ?90.210 to 290.340, inclusive, of the Revised Statutes of Missouri, 1969, and shall as soon as the Work contemplated by the Agreement is completed, pay to the proper parties all amounts due for material, machinery, equipment and tools, consumed or used in connection with the construction of such work, and all insurance premiums, workers' compensation, and all other kinds of insurance, on this Work, and for all labor performed in such Work whether by subcontractor or otherwise, then this obligation to be void, otherwise to remain in full force and effect, and the same may be sued on at the instance of any material supplier, laborer, mechanic, or other interested parry, in the name of the Ciry of Riverside, to the use of such parties, for any breach of the considerations hereof. And Universal Surety ce~oanv > ~ Surety, hereby stipulates and a~ees that no change, extension of time, alteration or addit'.on to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the Work or to the Specifications. PYRAI~IID EXCAVATION CONSTRUCTION,. INC. PRINCIPAL By: 2ec..,-4- C. Title: ?~.as~nr~,~-r _ Date: 2 ~ ~~9-1 - t1Nlva~seL st~REI^t cor~aNY SURETY ~,~ , Bry • ~A ~~ ~ ~ ~ ~ -~h,~- Janet L. hkop ~ v Titles:-_ _ Arrmmay-i - arr _.__ Date: Eebraury Z 1997 __ The signatory of Surety has attached hereto its proof of authorization to bind Suret}~ to this obligation. , The Agreement and Bond are approved by the City on the~~L! "day of 19~• CITY OF DE By: OR By: CITY CLERK -2- UNIVERSAL SURETY COMPANY LINCOLN, NEBRASKA POWER OF ATTORNEY ~~ ~ ~IElt ~Uy Vl~(PSE ~rE8E2tf8: Thu the Urrtvstss.u. Strrtrn Coaowr+T, a trorporuion of the State of Nebraska having its prinapal offitt in the City o[ Lincoln, Nebraska. Tursuant to Ne (allowing Bylaw, whit![ was adopted by the Board of pvectors of the said Company on July 21, 1981, to wit: ''Article V•Section 6. RESIDENT OFFICERS AND ATTORNEYS•M-FACT. The President or any Vice President, acting with any Secretary or .~sssisant Secretary, stall have the wthority to appoint Resident Vice Presidents and Attorneys-[n-Fact, with the power and wthority to sign. execute. acknowledge and deliver on its behalf, as Surety: Any and all undertakings o[ suretyship and to affix thereto the corporate seal of the corporation. The President or any Vitt President, acting with any Secretary ar Assistant Secrenry, shall aLw have the authority to remove and revoke the wthority of any such appoin[ee u any time... does hereby make, constitute and appoint James C. Pateidl or Patrick T. Pribyl or Janet L. Rehkop or Betty I. McCreight or Kevin B. Alexander or Melissa D. Evans, Prairie Village, Kansas or Katherine D. Morin, Raymore, Missouri Cynthia A. Whitehouse, Greenwood, Missouri its true and lawful Attorneys}(n•Fact, [o make, execute, seal and deliver (or and on its behalf. as Surety: Any and aU undertakings of suretyship And the execution of such bonds or undettaidttgs in pursuance of these presents. shag be as binding upon said Company, as fully and amply, to all intents and purposes, as if they had been duly executed and aclmowledged by the regularly elected officers of the Company ac iu offices in Linrnln, Nebraska, in their own persons. The [oUawing Resoludan was adopted at the Regular Meeting of the Board of Directors of the Urrrvertswt. SLar:-n CoAawNV, held on July , 1 "RESOLVED, That the signatures of officers of the Company and the seal of the Company may be affixed by facsimile co any Power of Attorney ex• ecu[ed in accordance with Article V•Section 6 of the Company Bylaws: and that any such Power o[ Attorney bearing swrthf re~stncceto~any bond! urtdetrtaking facsimile signature of a certifying Assistant Secretary and facsimile seal shall be valid and binding upon the Company pe or contratt of suretyship to which it is attached." All authority hereby conferred shall remain in full force and effect until terminated by the Company. IN Wl'INESS WHEREOF. Urmeaswt S[raerr CgaQwrrr has caused these presents to be signed by iu Vice President and its corporate seal to be hereunto affixed this 5th day of December 19 96 UNIVERSAL SURETY COMPANY t:•--~ _ ~ ~'•1 •l C7R-ORAT[-~ SUl ,t ~i•. Seer ty By Vice President 'a~,y.~~:.~ Stale of Nebraska l ss. County of Lancaster I 5th day of December , is 96 ,before me personauy came Robert L. Privett On this to me known, who being by me duty sworn. did depose and say chat (s)he resides in the County of Seward, State of Nebraska: chat (s)he is the Vice res~ ent o(the Uxrversswt. SuaE'rt CoAtrANY, the corporation described in and which executed the above instrument; that (s)he knows the seal of the said corpora- tion; tha[ the seal affixed [o the said instrument is such corporate seal; that it was so affixed by order of the Board a[ D~~ of ~ ~ ~e t~enceding (s)he signed (his) (her) name by like order, and that Bylaw, Article VSection 6, adopted by the Board at Dtrectors of said Cam P irutrumenc, is now in force. /`~/r ' "` ~ ~Gf]Dtr~LaotAltrmrslrrdt Q. ~~ ot:nAtn o. ztew My Commission Expires 8-22-9 ~ Notary Public 1, Teanne R no -, Assistant Secretan• of Urm'Easwt Strrterr CoMrwrrc• do hereby certify that the above and foregoing is a we and correct copy of a Power of Attorney executed by said ilrtn-Easwt Suaerr Coatrwxrr, which is still in full force and eftett. Signed and sealed ac the City of Lincoln, Nebraska this day of ~~R n ~~ +°°~ • I9-- ' Y SLAL /f~~,l-!J t~ ~~. :~ Assistant Secretary ~ e!~~~'',~,4 .....................::::z:::::::~:;.::.:::.::.: ~.:!:~i: ::..:...::;::':~'::';::::::::.;::.::::;:.::.:.;::::'::'::'~'~.:.:;:':::::::::.:::::'s.;:.':.':::::::::'::.,:::;::.::::::::::::::;;:.;::;:::::: ~::::::::. .. .DATE MM/DD/YY : ~ : : i:.:::: :::::.: i ' ~ `` `~ ' '~ ~ ~ ` ~ ` ~~ ~` ' 111 ~~` ~NSURA N e ~ETIFI'G~ T'E : ' • , :....:::.:. :::: . . . : :::::.:?: isi :?::: : .::i`?:D::?:~:9.i:??:.i: i::.~::::.:i::: .: ::i::: :i #wrt i : : : . ..:.: :.:::..::.:.:::::....:....::::..:.:..:.::..;:.:::.::.::.:..:::::.:.:,:............ 02 06 97 , : :::. :.::... PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFCATE GEORGE J SIEBERS & CO INC HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICES BELOW. BOX 9340 COMPANIES AFFORDING COVERAdE MERRIAM KS 66201 COMPANY A AMERICAN STATES INS CO tlBURED COMPANY PYRAMID EXCAVATION & B CONSTRUCTION, INC. COMPANY P. O. BOX 3844 ~ SHAWNEE KS 66203 COMp,V.ly D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THEE POLICY PERIOD NOTWITHSTANDING ANV REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECY TO WHICH THIS INDICATED , CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, E%CLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAV HAVE BEEN REDUCED BY PAID CLAIMS. CO L711 TypE Of BiSURANCE POLICY NUMBFJI POLICY EFFECTIVE DATE (MMND/YY) POLICY E%PMIATON DATE (MM~DDIYY) L.SAIITI Osu cn~LIMBlTY O1CE0991501 9/10/96 9/10/97 GENERAL AGGREGATE s2 000 000 }( COMMERCUIL GENERAL LIABILITY PRODUCT8-COMP/OP AGd S2 OOO OOO CLAIMS MADE ~ OCCUR PERSONAL 6 ADV MJJURY i 1 O O O O O O OWNER'S 8 CONTRACTORS PROT EACH OCCURRENCE sl OOO OOO FlRE DAMAGE (Mry om Bro) i 5 O O O O MED E%P (Any OM pMl011) i 5 0 0 0 Aur owoeKELUBILm O1CE0992441 9/10/96 9/10/97 MIT 1,000,000 X ANY AUTO COMBINED SINGLE O j ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (PH panonl X HIRED AUTOS BODILY INJURY X NON-0WNED AUTOS (pe, yCCI4Mi) i E i PROPERTY DAMAG GARAGE LUUIBJTY AUTO ONLY - EA ACCIDENT i ANV AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT S AGGREGATE i EXCESS LIABILITY O1SU185377 9/10/96 9/10/97 EACH OCCURRENCE i2 OOO OOO X UMBRELLA FORM AGGREGATE i2 OOO OOO OTHER THAN UMBRELLA FORM S WORKEIIS COMPENSATION AND 01W C 7 8 7 7 4 61 9/ 10 / 9 6 9/ 10 / 9 7 X STATUTORY UMRS EMPLOYERS' LIABNJTY EACH ACCIDENT s 5 0 0 O O O THE PROPRIETOW INCL DISEASE • POLICY OMIT t 5OO OOO PARTNERS/EXECUTIVE OFFICERS ARE: EXCL DISEASE -EACH EMPLOYEE f 5 0 0 0 0 0 OTTIER DESCIIiTON OF OPERATONSILOCATONB/1IEHICLESISPECIAL REMS RE: RENNER-BRENNER PARK SOIL EROS ION AND BANK STABILIZATION PROJECT CONTRACT NO. 96-05 - CITY OF RIVERSIDE MISSOURI AND ITS EMPLOYEES AS ADDITIONAL INSURED AS RESPECT THEIR INTEREST IN THIS PROJECT. ~Ft'FIFCCA'fE:::Ni~1.DER .:.:..:::.:.:::::...........................................::::::.:::::.:::::::::::: ~.......... .. ..~ ::::::::::::::::::::C.:::.:.......................................:.::::::.::::::::::::::::::.:..: ~'~.........~.. L - - SHOULD ANY OF 7IIE ABOVE DESCRIBED pOUC1ES 0E CANCELLED/s~rO11E THE CITY OF RIVERSIDE, MISSOURI EXPNiAT10N DATE THEREOF, THE ISSUBlO COMPANY WS.L 19ibEiB MAL CITY ADMINISTRATOR ~Q_ DAYS WRITTEN NOTCE TO THE cERTTFlCAIE HOLDER NAMED TO TIIE LEFT, P O BOX 9135 ~ RIVERSIDE MO 64168 ~ AUTHOR D PRESENTATIVE e ::::.:~:<::.:::•:;c:.r :::::....:::...:......::k);:iR::::::i:::::i:::::i::%::%:::?;;tL;'.::s::::'::'::':::::'::'::{::i::i::::i;:;::;::3:4::{::;::^::i::;::%::%::;:isi: :. ... .:.;:. :. :::: 2~ ~ .....:...............................:..................... . :::::::i`5;:::::::;:~::i:::::::;::y:::::>:':5~:::::2?::'%::':2Y::%::f:~:::i:::i::;;::;:::;:j;:~::;i:::;:::::::::::::;RC:;£: ..: ~. -~:.... ....: .AC ..~........G ....::::.:..:q.:;.:BA:.::Q...::_:::....: ;