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HomeMy WebLinkAbout2008-073 - Community Center Floor/Volleyball systemBILL N0.2008-73 ORDINANCE N0.2008-73 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR CONSTRUCTION SERVICES WITH FDC CONTRACT FOR THE COMMUNITY CENTER FLOORING AND VOLLEYBALL SYSTEM PROJECT WHEREAS, the City of Riverside, Missouri ("City") has received competitive bids and engaged in negotiations with FDC Contract a John A. Marshall Company ("FDC") for the provision of materials and construction services related to the Riverside Community Center flooring replacement and volleyball system project under consideration by the City (the "Services"); and WI~REAS, the City and FDC have reached an agreement concerning the provision of and payment for such Services. NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri, as follows: Section 1. This Ordinance is intended and is hereby determined and declared to be necessary to accomplish and serve the public purpose of enhancing and improving the Riverside Community Center by the replacement of flooring and the installation of a volleyball system. Section 2. The City of Riverside shall enter into an agreement whereby FDC shall provide the Services related to the Community Center project to the City at a total cost of $83,800.00 (the "Agreement"). Section 3. The execution and delivery of the Agreement, in substantially the form attached hereto as Exhibit is approved, and the Mayor is authorized to execute the Agreement and to take such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the City, the execution of the Agreement being conclusive evidence of such approval. Section 4. The Mayor, the City Administrator, the City Attorney and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as may be necessary or convenient to perform all matters herein authorized. Section 5. Passed this ~ day o 2008. This Ordinance shallbe in full force and effect from and after itspassage and approval. Ma r Kathleen L. Rose AGREEM>1NT BETWGIN CITY OF RIVERSIDE AND CONTRACTOR: ORDINANCE NO.: CONTRACT PRICE: FOR COMPLCTIOIV OF INDOOR RESILIENT ATFILETIC SURFACING AND VOLLEYBALL N>T SYSTEM ~-L,t ADC (_~ ri~2ic~ ~ ~a~ h ~-_ ~~ka1~ ~ ~ wy o2DD~ ~3 ~' Agreement AGREEMI:;NT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR INDOOR RESILIENT ATHLETIC SURFACING AND VOLLEYBALL NET SYSTEM THIS AGREEMENT, made and entered into as of the ~~day of 2008, by and between the City of Riverside, Missouri ("City"), and L ~ h t~l- arS~a'(1 ("Contractor"), shall govern all Work to be provided by Contractor for City on he Project. ~"t°a`r`y WHEREAS, City, under the provisions of Ordinance No. ~®~ ~ ~ ;duly approved and by virtue of the authority vested in City by the general ordinances of City, intends to enter into one or more contracts for the Project; and WHEREAS, the Mayor is authorized and empowered by City to execute contracts on behalf of City, and the City Administrator ("Administrator") is authorized to perform Administrator's fitnctions set forth in this Agreement; and WHEREAS, Administrator may designate one or more engineers, architects, or other persons to assist Adnvnistratot• in perfot7ning Admittisttator's functions under this Agreement; and WHEREAS, City desires to enter into an agreement with Contractor to obtain labor, setvices, materials, supplies, tools, equipment, supervision, management, and other items as set forth in this Agreement; and + WHEREAS, Contractor represents that Contractor is equipped, competent, and able to provide all the Work, in accordance with this Agreement; NOW THEREFORE, in consideration of the ., mutual+, covenants and consideration herein contained, IT IS HEREBY AGREED by City and Contractor as follows: Q~RTICLE I THE PROJECT AND THE WORK A. Contractor shall provide and pay for all Work for the Project. B. "Project," as used in this Agreement and the other Corittact Documents, means the building, facility, and/or other improvements for which Contractor is to provide Work under this Agreement. It may also include construction by City or others. G "Work," as used in this Agreement and the other Contract Documents, means all labor, services, materials, supplies, tools, equipment, supervision, management, and anything else Agreement 2 necessary to accomplish the results and objectives described in Exhibit A (Scope of Work) and Exhibit B (Specifications and Drawings) to this. Agreement and the other Contract Documents, in full compliance with all requirements set forth in the Contract Documents, subject to additions, deletions, and other changes as provided for in Article VI of this Agreement. The Work may refer to the whole Project, or only a part of the Project if work on the Project also is being performed by City or others. D. Contractor represents that it has evaluated and satisfied itself as to all conditions and limitations under which the Work is to be performed, including, without limitation, (1) the location, condition, Iayout, and nahue of the Project.site and surrounding areas, (2) generally prevailing climatic conditions, (3) labor supply and costs, and (4) availability and cost of materials, tools, and equipment. City shall not be required to make any adjustment in either the .Contract Amount or the time for performance of the Work because of Contractor's failure to do so. AI2TICL1; II CONTRACT AMOUNT A. Provided Contractor performs all Work in accordance with the Contract Documents and complhes~fully with each and every obligation of Conhactor under the Contract Documents, City shall pay Contractor the swn of ~lA~ --~-h /~~~ 5d ~ 2 tGF~-k- ~,I,t 1~) Vim) ~''O`~` -W -- Dollars ($~~~~j- This amount shall include all costs, permit ees, profit, overhead, expenses, taxes, and compensation of every kind related to the Work, and shall be referred to as the "Contract Atnomtt." Payment shall be made upon completion of all the Work. B. This Agreement is subject to the City Ordinances, and payment shall be limited to the amount of particular appropriation for the Work by the Board of Aldermen. Th~~~ ,pay~p~,nt under this Agreement shall not exceed the appropriation contained in Ordinance No. of d ICJ authorizing the Work, and Contractor shall not seek, nor be entitled to, payment exceeding this amount unless City directs Contractor to perform additional work in accordance with Article VI of this Agreement, and'City enacts another ordinance authorizing the amount City agrees to pay under Article VI. ARTICL>; III PROGR);S5 OI' WORK /SUBMITTALS A. Contractor shall commence performance of.~the Work on the date indicated in a written notice ("Notice to Proceed") that shall be given-by-City to Contractor. B. Contractor shall complete all the Work not later than l after the date indicated in the Notice to Proceed for commencement of performance of the Work. C. In the event Admi~utstrator deternines that performance of the Work is not progressing as required by the Contract.l7ocuments or that the Work is being unnecessarily delayed or whll not be finished withn the prescribed time, Administrator may, in Administrator's sole discretion and in addition to any other tight ot• remedy City may have, require Conhactor, at Contractor's sole cost, to acceletate Contractor's progress. Sucli acceleration shall continue until the progress of the Work complies with the Contract Documents and clearly indicates that all Work will be completed within the prescribed time. Agreement 3 D. Contractor shall submit to City for review and approval all shop drawings, samples, product data, and similar submittals required by the Conhact Documents. Contractor shall be responsible to City for the accuracy and confotYnity of its submittals to the Contract Documents. Contractor shall prepare and deliver its submittals to City in such time and sequence so as not to delay performance of the Work. Review attd approval of any Contractor submittal shall not be deemed to authorize deviations, substitutions, or changes in the requirements of the Contract Documents tmless express written approval is obtained from City specifically authorizing such deviation, substitution, or change. If the Conhact Documents do not contain submittal requirements pertaining to the Work, Contractor agrees upon request to submit in a timely fashion to City for review and approval by City any shop drawings, samples, product data, matxufacturers' literature, or similar submittals as may reasonably be required by City. Contractor shall perform all Work strictly in accordance with approved submittals. City's approval does not relieve Contractor fiom responsibility for defective work resulting from errors or omissions of any kind on the approved submittals. ARTICL); IV CONTRACT DOCUM>;NTS A. The following documents, and any other documents that are attached to, incorporated by reference into, or otherwise included in them, and all Change Orders, form the entire agreement between City and Contractor, and are the Contract Documents: This AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR. 2. SCOPE OP WQRK (Exhbit A to this Agreement). 3. The SPECIFICATIONS and DRAWINGS referred to in Exhibit B to this Agreement. 4. PERFORMANCE BOND (Exhibit C to this Agreement). 5. PAYMENT BOND (Exhibit D to this Agreement). 6. FLOORING COURT LINES AND SLEVE Exhibit E to this Agreement). 7. PREVAILING WAGE RATES (Exhibit F to this Agreement). B. Contractor represents that it has examined and become familiar with the Contract Documents in thehr entirety, that any and all ambiguities, inconsistencies, and conflicts observed by Contractor have been called to City's attention in writing and have been resolved in writing to Contractor's ,satisfaction. Except for actual conflict between provisions in the Contract Documents, making it impossible for Contractor to comply with all provisions of the Contract Documents, the Contract Documents shall be cumulative, and Contractor shall comply with all provisions of all Contract Documents. In case of actual conflict, Conhactot• shall notify City of the conflict in writing and then shall comply with such provisions of the Contract Documents as City directs. Agreement 4 ARTICLE V PAYMENTS A. Contractor shall be entitled to payment for the Work when Contractor submits an application for payment, all requirements of the Contract Documents are complied with, and Administrator issues his or her certificate to that effect. City; within 30 days after the delivery of Administrator's certificate, shall pay Contractor all funds which Contractor is due under this Agreement. B. Acceptance of payment by Contractor shall release City from all further obligations to Contractor, except as to such amounts, if any, Contractor has identified in its application for payment as claimed by Contractor. All claims not identified in the application for payment ace waived. ARTICLE VI CHANGES/CLAIMS A. City, without invalidating this Agreement, may at any time and without notice to any surety, ordet• additions to, deletions from, or other changes to the Work. Upon receipt of such an order, in writuig, Contractor shall proceed as and when directed in the order. Contractor shall not proceed with any addition, deletion, or other change without a written order. No oral direction or order shall constitute authority for Contractor to proceed with any addition; deletion, or other change. If Contractor undertakes any addition, deletion, or other change without a written order from City, Contractor shall not be entitled to any increase in the Contract Amo-mt or the time for performance of the Work, and Contractor shall be solely and completely responsible for the acceptability to City of the addition, deletion, or other change. Bs If a change to the Work causes a net increase or decrease in the cost of Contractor's performance, the Contract Amount shall be increased or decreased as follows: I: By a lump sum as to which Contractor and City mutually agree prior to the commencement of performance of the change; or 2. If agreement to a lump sum is not reached, the change shall be performed on the basis of reasonable expenditures and savhgs of those pet~orming the Work attributable to the change, including, in case of a net increase in the cost of Contractor's perfom~ance, a reasonable allowance on the net increase for overhead and profit, subject to the following; ContrRctor shall keep and present, in such forte as City may prescribe, an itemized accounting of expenditures and savings together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs shall be limited to the following: costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; costs of materials, supplies, and equipment, including cost of transportation; rental costs of machinery and equipment, exclusive of hand tools, whether rented from Contractor or others; costs of premiums for all bonds and insurance, permit fees, and sales, t,se. or similar taxes related to t'r~ Work; anal additional ~ostQ of stopetvisiott and feld o!;!:r° Yt'.i`rilli'Srt.E'1 a~e~~ily &itr~:rilr&I)F'+:0 tl'.E i:~ittCi~;:. Agreement 5 If a change to the Wotk causes an increase or decrease in the time requhed for Contractor's performance, an equitable adjustment to the time for performance shall be made. C. A change in the Conhact Amount or the time for performance of the Work shall be accomplished only by written Change Order, which shall state the increase ot• decrease, if any, in the Conhact Amount or the time for performance. 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 City Itas been un~ttstly enriched by any alteration or addition to the Work, whether or not there is, in fact, any such enrichment, shall be the basis of any claim to an increase in any amounts due undet• the Contract Documents or a change in the time for performance of the Work. D. Agreement on any Change Order shall constitute a final settlement of all mattets relating to the change in the Work that is the subject of the ChangcyOrder; including but not limited to all direct and indirect costs associated with such change anti any and all adjustments to the Contract Amount and time for performance of the Work. E. If Contractor is delayed or: interfered with at any time in the commencement or prosecution of the Work by an act or neglect 'of City, an employee, officer, or agent of City, or an architect or engineer or separate contractot• eri~gaged by or on behalf of City, or by changes ordered in the Work, an act of God, fire, or other cause .over which Contractor has no control and that Contractor could not reasonably anticipate, the time for perforntance of the Work shall be equitably extended, provided that Contractor gives notice as provided for in Paragraph P below. F. Any claim by Contractor for additional time or money for the performance of the Work, including but not linuted to any claitir based on or arising out of an addition to, deletion from, oi• other change to the Work and/ot• delay to or interference with conunencetnent or prosecution of any of the Work, shall be submitted to City's designated representative within five working days of the beginning of the event for which the claim is made or on which it is based. If any claim is not submitted within the five-day period, it shall be deemed waived. G. No change or claim, nor any delay or dispute concerning the determination of any increase or decrease in the amount of time and money for the performance of the Work, shall excuse Contractor from proceeding with prosecution of the Work, including any Work as changed. ARTICLE VII INSURANCI•; A. Contractot• shall, at all thnes during the performance of any of the Work, maintain not less than the following insurance coverages and amounts: COMMERCIAL GENERAL LIABILITY - Conhactor shall provide coverage for Contractor, City, its employees, officers, and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City against claims for damage to property and/or illness of, injury to, or death of any person or persons related to or arising out of the Wotk. Such covet•age shall have not less than the following limits: Agreement 6 a, Each occturence $1,000,000.00 b. General aggregate $2,000,000.00 c. Products/completed operations aggregate $2,000,000.00 d. The following coverage shall be included: • Blanket'contractualliability • Products/completed operations • PersonaVadvertising injury • Broad form property damage • Independent contractors • Explosion, Collapse, and Underground Damage 2. AUTOMOBILE LIABILITY -Contractor ~~11 provide coverage for Contractor, City, its employees, officers, and. agents, an any cuchitects, engineers, or other design professionals engaged .by or on behalf of City against claims for bodily injtuy and/or property damage 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, hued autos,, end non-owned autos. The coverage shall have not less than a combined singlealmit of $1,000,000.00 for each accident. 3. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY - This insurance shall protect Contractor against all claims under applicable state workers' compensation laws. Contractor also shall be protected through employer's 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 limits shall not be less than the following: + a. Workers' Compensation Statutory b. Employer's Liability: • Bodily injury by accident $1,000,000.00 • Bodily injury by disease $500,000.00 each employee B. All insurance shall be written by an insurer or insurers acceptable to City and with a nunimum fmaucial rating not lower than "B+XI" in Best's Inst-rance Guide, latest edition. All insurance shall be written on an occurrence basis, and all aggregate limits shall apply in total to the Work only. Each policy providing general liability coverage (including any umbrella or excess policy that provides any required general liability coverage) shall provide contractual liability coverage for all indemnity obligations of Contractor under the Contract Documents: Each policy providing general liability or automobile liability coverage (including any umbrella or excess policy that provides any required general or automobile liability coverage) shall, inform satisfactory to City, (1) name as additional insureds City, its employees, officers, and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City, and (2) provide that it is primary to any other insurance maintained by any additional insured, which other insurance shall be excess or contingent. The insurance provided to the additional insureds shall apply, without limitation, to injury or damage caused by work included in the products/completed operations hazard. C. Contractor shall maintain the products and completed operations coverage for not less than ten years after the date of final acceptance by City of all of Contractor's Work. Agreement '7 D. Contractor shall obtain property insurance upon the entire Work for the full cost of replacement at the tune of loss. This insurance shall list as named insw'eds City, Contractor, subcontractors; and suppliers. This insurance shall be written as a Builder's Risk/Installation Floater "all risk" or equivalent form to cover all risks of physical loss except those specifically excluded by the policy and shall insure at least against the perils of fire, lightning, explosion, wind storm, hail, smoke, aircraft and vehicles, riot and civil conunotion, theft, vandalism; malicious mischief; debris removal, flood, earfhquake, earth movement, water damage, wind, testing, and collapse. This insurance shall, without limitation, insure portions of the Work stored on or off the Project site or in transit, when at the r7sk of City, Contractor, or a subcontractor or supplier. Contractor shall be solely responsible for any deductible amounts. This insurance shall remain in effect until final payment has been made to Contractor or until no person or entity other than City has an insurable interest in the property to be covered by this insurance, whichever is sooner. City and Contractor waive all rights against each other and their respective employees, agents, contractors,'subcontractors, and suppliers for damages caused by risks covered by the property insurance provided for in this Paragraph D, except such rights as they may have to the proceeds of the insurance. E. All policies and certificates of insurance shall provide no less than 30 days' prior written noticg to City in the event of cancellation, expiration, non-renewal, alteration, or reduction (including but not 1united to reduction by paid claims) of coverage or liurits contained in the policy or evidenced by the certificate of insurance. Contractor shall furnish City a certificate or certificates and copies of policies, all satisfactory to City, evidencing that Contractor has all the required insurance and is in compliance with this Article VII. The certificate or certificates and copies of policies shall be delivered to City's designated representative not less than seven days before Contractor first perforns any of the Work. All policies except Workers' Compensation and Employer's Liability shall contain a waiver of subrogation in favor of City, its employees, officers, and agents, and architects, engineers, or other design professionals engaged by or• on behalf of City. F. Contractor also shall maintain arty additional insurance coverages and any higher limits provided fot• elsewhere in ttre Contract Documents and shall furnish City any additional insurance documentation provided for elsewhere irr the Contract Documents. G. If any part of the Work is subcontracted, each subcontractor', or Contractor on behalf of the subcontractor, shall maintain liability and worker's compensation insurance coverages and amounts satisfying all the requirements of this Article VII. Certificates and copies of policies, satisfactory to City, evidencing the required insurance and compliance wit}~.t this Article VII shall be delivered to City's designated representative not less than seven days before the subcontractor first performs any of the Work. ARTICLl+; VIII INbEMIVITY A. To the firllest extent'permitted by law, Contractor shall defend, indemnify, and hold harmless City, its employees, officers, and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City, from and against claims, damages, losses, and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Work, provided that such claim, damage; loss, or expenses is attributable to bodily injury, sickness, disease, or death or to injury to or destruction of tangible property (other than the Work itself), but only to the extent Agreement 8 caused or allegedly caused by the negligent acts or omissions of Contractor, a subcontractor or supplier, or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. This obligation is not intended to, and shall not, negate, abridge, or reduce other rights or obligations of indeinnity that would otherwise exist as to a party or person described in this Paragraph A. B. In claims against any person or entity indemnified under the preceding Paragraph A by an employee of Contractor, a subcontractor or supplier, or anyone directly or indirectly employed by them or for whose acts they may be liable, the indemnification obligation under Paragraph A shall not be limited by a limitation on the amotmt or type of damages, compensation, or benefits payable by or for Contractot• 01• a subcontractor or supplier under workers' compensation acts, disability benefit acts, or other employee benefit acts. ARTICL>; IX PATENT LIABILITY Contractor agrees to defend, indemnify, and hold harmless City, its officers, employees and agents fi•om and against any claim, action or suit that may be brought against 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 INI~'LUENCE A. Contractor represents and wan`ants that it has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that it hits not paid or agreed to pay any company or person, other than a bona fide employee, any fee, conunission, percentage, brokerage fee, gift, or any other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to void this Agreement without liability and, in its discretion, to deduct from the Contract Amount, oi• otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. B. Contractor represents and warrants that no ayments have been or shall be made, directly or indirectly, by or oit behalf of Contractor to or for the b~fil of any officer, employee, or agent of City who may reasonably be expected to influence tlie'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 Article X. ._ ' ARTICLE XI RECORDS REGARDING PAYMENT For a period of at least two years after final payment to Contractor, Contractor shall maintain, in accordance with generally accepted accounting principles, such records as are necessary to substantiate Agreement 9 that all applications for payment hereunder were valid and properly chargeable to City. Fot• lump sum contract Work, the records shall demonstrate that the City was billed at appropriate times for proper percentages of completion and for payments to subconhactors and suppliers. For any Work, including extra Work, not charged 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, payrollrecotds, canceled checks, orders, and invoices pertaining to pity's account. City or its representative shall, upon reasonable prior notice to Contractor, be given the opportunity to audit these records at any time during normal business hours to verify the accuracy of Contractor's invoices and charges. ARTICLE X1I NOTICl5 A. 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 Ci David Blackburn City Admitristrator For Contractor: ~' he I1X Fox- ~DC C~,yt~tZtc~ 7.~ Tc~hnl~- ~~'17 t-sh~ 1~ 'C.a -~ w~ ~I T 1~ l~'1 ~. p~ rkyi'11.P 1M~ b`I ~ S 2 City of Riverside, MO 2950 NW Vivion Riverside, MO 64150 B.' Any notice required by the Contract Documents to be given in writing or that either City or Contractor wishes to give to the other in writing shall be sighed by or on behalf of the party giving notice. The notice shall be deemed to have been given when it is received at the address stated above for the addressee or at such other address as the addressee may fiunish the other party. C. Contractor's designated representative shall be available to meet with City at any time during the performance of the Work and shall have Rill authority to act on Contractor's behalf on any matter related to this Agreement and/or the Work. ARTICLE XIII DETAULT A. If Contractor fails to comply; becomes unable to comply, or with reasonable probability (as determined solely by City) will become unable to comply with any of Contractor's obligations ur[der the Contract Documents, including but not limited to (1) failure at any time to furnish Sufficient tabor or supervision, sufficient materials or services (including but not limited to insurance and bonds) complying with the Contract Documents, or sufficient or properly operating tools, equipment, or other items necessary for the performance of the Work, (2) failure in any respect to prosecute the Work with promptness and diligence; (3) causing any stoppage of; delay in, or interference with any work of City or any others on the Project, or (4) abandonment by Contractor of all or any part of the Work, Agreement 10 Contractor sliall be in default, and if the default is not corrected to City's satisfaction withui 72 hours of Contractor's receipt of written notice to conect from City, City may, in addition to any other right or remedy City may have, furnish any necessary labor, supervision, materials, tools, equipment, services, or other items through City or others, to correct the default, at Contractor's expense, or terminate Conhactor's right to proceed with performance of any part or all of the Work and take over and complete the performance of such Work, through City or others, at Contractor's expense. B. If City exercises its right to take over and complete any part or all of the Work, City and its designees shall have access to and may take possession of Contractor's materials, tools, equipment, and other items at the Project site, en route to the site, or in storage or being manufactured or fabricated away from the site, as may be necessary to prosecute the Work taken over by City, and may employ Contractor's employees or former employees, all without any liability to Contractor. G. Contractor shall be liable for and shall pay to City all costs and expenses of whatsoever nature incurred by City as a result of any default by Contractor, including but not limited to the cost of labor, supervision, materials, tools, equipment, services, overhead, travel; and legal and accounting fees. Contractor also shall be liable for and shall pay to City all charges, liabilities, fines, penalties, losses, damages, and claims sustained by or assessed against City as a result of any delay or disruption resulting from any default by Contractor. The total amount of such costs, expenses, charges, liabilities, tines, penalties, losses, damages, and claims may be deducted by City from the amount, if any, otherwise due Contractor, and Contractor shall pay City the full amount of any excess of such total over the amount athe-wvise due Contractor. D. No right or remedy conferred upon or reserved to City by the Contract Documents is exclusive of any other right or remedy provided or permitted in the Conhact Doctuents or by law or equity, but each right or remedy is cumulative of every other right or remedy, and every right or remedy may be enforced concurrently or from time to time. No exercise by City of any right or remedy shall relieve Contractor fi•om fi-11 and absolute responsibility for all of Contractor's obligations under the Conhact Documents. E. No failure or delay of City to give notice to correct any default of Contractor or to exercise any of City's rights or remedies shall waive or excuse the default, and City shall remain free to pursue all rights and remedies. No failure of City to insist, in any o-ie or mare instances, upon the performance of any of Contractor's obligations under the Contract Documents shall be deemed or construed as a waiver or relinquishment of City's right to insist upon strict performance of the obligation in any future instance. ARTICLE XIV TERMINATION TOR CITY'S CONVENIENCE City may; at any time, for any reason, and without Contractor's being in default, terminate Contractor's performance of any part or all of the Work for City's own convenience by giving written notice to Contractor, Upon receipt of notice of teriniriatian for City's convenience, Contractor shall, to the extent directed by City, stop work and turn over to City or City's designee materials and equipment purchased for the Work. City shall pay Contractor, in accordance with the Contract Documents, for only so mach of the Work as is actually performed as of the termination for convenience. City shall not be obligated to Contractor for any fi-rther payment, including buf not limited to prospective overhead or profit on unperformed work. If a termination by City of Contractor's right to proceed on the ground of Agreement 11 default by Contractor is determined later to have been improper, the termination automatically shall be converted to a termination for City's convenience, and City's obligation to Contractor shall be limited to payment to Contractor as provided in this Article XIV. ARTICLE XV COMPLIANCE WITH LAWS A. Contractor shall comply strictly with all federal, state, and local laws, ordinances, rules, regulations, orders, and the like applicable to the Work, including, but not limited to any applicable prevailing wage and prompt payment laws and.all LI.S: Army Corps of Engineers guidelines, rules, regulations, and criteria for work within or adjacent to a flood control project area. Contractor shall secure all permits from public and private sources necessary for the fulfillment of Contractor's obligations under the Contract Documents. B; With each Application for Payment submit4etf by Contractor to City, Contractor shall include (a) a signed statement, in form acceptable°'to~City, showing, for each weekly payroll period that ended during the period covered by the Application for Payment, the name, address, social security number, occupation, and craft of each worker employed by Contractor in connection with the Work and, for each such worker, the number of hours worked each day, the total hoots worked during the payroll period, the gross amount earned, an itemization of all deductions, and the net wages paid and (b) a corresponding statement from each subcontractor of any tier that employed any workers in connection with the Work during the period covered by the Application for Payment. C. This Agreement shall be governed by and constt•ued in accordance with the laws of the State of Missout•i. ARTICLE XVI SUBCONTRACTS, ASSIGNMENT, OR TRANSrER A. Except with the prior written consent of City, Contractor shall not assign this Agreement or any money due or to become due Contractor or issue a subcontract or purchase order to any person or entity for any or all of the Work: City's consent to any assignment, subcontract, or purchase order stall not relieve Contractor ftom any obligation under the Contract Documents, nor shall it create any obligation from City to any assignee, subcontractor, or vendor. B. Each subcontract or purchase order issued by Contractor for any of the Work shall be in writing and shall provide that City is an intended third-party beneficiary of the subcontract or puurchase order. C. Each subcontract or purchase order issued by Contractor for any of the Work shall provide that it is freely assignable by Contractor to City. Contractor hereby assigns to City all its interest in any present or future subcontract or purchase order issued by Contractor for any or all of the.Work. This assignment shall be effective upon acceptance by City in writing and only as to the specific subcontract(s) and/or purchase ordtr(s) that City designates in the writing. This assignment may be accepted by City at any time, whether before or after final payment to Contractor, and may not be withdrawn by Contractor without City's written consent. Agreement 12 ARTICLE XVII ACCESS TO STTE/CLEANING UP A. 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 all adjacent areas. 13. Representatives of City may inspect or review any Work performed by Contractor, and consult with Contractor, at any time. 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 City. C. Contractor shall at all times during performance of the Work keep the Project site clean and free from debris resulting from the Work. Prior to discontinuing Work in an area, Contractor shall clean the area and remove all rubbish and its construction ec~~ipment; tools, machinery, waste, and surplus materials. Contractor shall make provisions to mnlmtze and confine dust and debris resulting from construction activities. If Contractor fails to .,comply with cleanup duties within 24 hours after written notification from City of non-compliance,~City may implement cleanup measures without fiuther notice and deduct the cost fiom any amounts due or to become due Contractor. AlEt'I`ICLE XVIII ~COMP)JTENCE Contractor represents and warrants that it maintains all necessary licenses, registration, competence, and experience to perform all the Work. ARTICLE XIX WARRANTY A. Contractor shall exercise high professional skill, care, and diligence in the performance of the Work, and shall caiyy out its responsibilities in accordance with customarily accepted good professional practices: If any defects in the ,Work are discovered within one year from final completion of the -Work, Contractor shall promptly remedy such defects at its own expense. This obligation shall be in addition to Contractor's obligation to perform its Work properly. Neither final payment, Administrator's final certificate, nor any other provision in the Contract Documents shall afI`ect Contractor's obligation to complete the Work free of defects in woiknianship and material. 13. Contractor shall remain solely responsible for the performance of the Work as required by the Contract Documents, notwithstanding any suggestions or observations made by another person or entity with respect to the Work. G. This Article XIX does not establish a period of limitation with respect to any obligation of Contractor under the Contract Documents, and does not limit the time allowed by law for any action for breach of such obligation. Agreement 13 ARTICLE XX STORAGE O1N' MATERIALS AND EQUIPMENT Only materials and equipment that are to be used directly in the Work shall be brought to and stored at the Project site by 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, and all other casualty or damage is solely the responsibility of Contractor. ARTICLE XXI SAFETY A. Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with performance of tite Work and shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury, or loss to (1) employees and other persons at the Project site or who may be affected by the Work; (2) materials and equipment stored at on-site or off-site locations for use in performance of the Work, and (3) other property at the Project site or in its vicinity, such as trees, shnibs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall give notices required by and comply strictly with applicable laws, ordinances, ryles, regulations, orders, and the like bearing on safely of persons or property or their protection from damage, injury, or loss. G If City deems any part of the Work or the Project site unsafe, City; without assuming responsibility for Contractor's safety program, may require Contractor to stop performance of the Woik or take corrective measures satisfactory to City, or both. If Contractor does not adopt corrective measures, City fliay perform them or have them perforitted and deduct their cost from the Contract Amount: Contractor shall make no Claim for damages, for an increase in the Conhact Amount, or for a change in the time for performance of the Work based on Contractor's compliance with City's reasonable request. ARTICLE XXII INDEPENDENT CONTRACTOR Contractor is an independent contractor, and neither Contractor nor any subcontractors, suppliers, employees, or agents shall be deemed an employee or agent of City for any purpose. ARTICLE XXIII ~-1.~ CONFLICT Contractor shall promptly upon discovery notify City of any conflict, ambiguity or inconsistency in the Contract Documents, or between any Contract Document and actual field conditions, and City shall resolve such conflict, ambiguity or inconsistency in its sole discretion. Agreement 14 ARTICLE XXIV BONDS Prior to commencing any Work, Contractor shall obtain from a recognized surety acceptable to Administrator, a performance bond and a payment bond, in the foams at Exhibits C and D to this Agreement. Each such bond shall be for the full Contract Amount. The premium for these bonds is included in the Contract Amount. ARTICLE XXV SEVERABILITY Should any specific provision of this Agreement or other Contract Documents be found to 6e unenforceable, the remaining provisions shall remain in fill force and effect. ARTICLE XXVI NO PRESUMPTION AGAINST THE DRAFTER No presumption or inference against City shall be made because of City's preparation of this Agreement or other Contract Documents. ARTICLE XXVII DISPUTlS/ATTORNEY TEES A. If a dispute arises out of or relates to this Agreement or other Contract Documents, or the breach thereof, and if the dispute cannot be resolved through negotiation, City and Contractor shall first by in good faith to resolve the dispute by mediation before resorting to litigation. Unless City and Contractor agree otherwise, the mediation shall be administered by the American Arbitration Association under its Construction Industry Mediation Rules. B. In the event of litigation between Contractor and City concerning the Project or this Agreement or other Contract Documents, the prevailing party shall be entitled to recover from the other party its reasonable attorney fees, costs, and expenses arising from such litigation. ARTICLE XXVIII TITLES The titles given to the Articles in this Agreement are for,.~se of reference only and shall not be relied upon or cited for any other purpose. Specifically, but without limitation, the titles shall not define or limit any of the provisions of any of.the Articles. ARTICLE XXIX EN`T'IRE AGREEMENT This Agreement and the other Contract Documents constitute the entire agreement between the parties with respect to their subject matter. Any prior agreements, understandings, or other matters, Agreement I S whether oral or written, are of no further force or effect. Subject to Article VI of this Agreement, this Agreement and any other Contract Document may be amended, changed, or supplemented only by written agreement executed by both of the parties. THIS AGREEMENT shall be binding on the parties only after it has been duly executed and approved by City and Contractor. Printed Name: ~T~d ~U ~''~'~ 1'S Title: C~Q-(ll1~ClI YKa~aae~ IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives. ATTEST Y CLERK CITY OF RIVERSIDE /~ BY~ ` /'~-6'~ MAYOR F C ~ ' • ~• ~ ~hh ~. YNaI~,a~l ~~aKy By (Signature) Agteement 1 F; EXHIBIT A -SCOPE OF WORK Contractor shall perform the following Work: All Work necessary for the Indoor Resilient Athletic Surfacing and Installation of Volleyball Net System in accordance with the Conditions and Specifications and Drawings referred to in Exhibit B to the Agreement. The Work shall include removal and disposal of existing flooring and all other items contained in the Specifications and Drawings.