HomeMy WebLinkAbout1408 Extend Agreement Houston Excavating & Demolition Fill Dirt BILL NO. 2015-036 ORDINANCE NO. A&V
AN ORDINANCE AUTHORIZING THE CITY TO EXTEND THE AGREEMENT WITH
HOUSTON EXCAVATING & DEMOLITION FOR THE PROVISION OF FILL DIRT TO THE
CITY, AND SERVICES RELATED THERETO ORIGINALLY AUTHORIZED BY ORDINANCE
1294
WHEREAS, the City of Riverside, Missouri (the "City") has been working to
provide for the efficient and orderly development, operation, and management of a
retail/commercial/industrial development of the Riverside Horizons Area ("Area") for the
benefit of the citizens of the City; and
WHEREAS, the City and Heco, Inc., a Missouri corporation doing business as
Houston Excavating & Demolition ("Houston") entered into an Agreement, attached
hereto as Exhibit A and incorporated herein, authorized by and through Ordinance
1294, attached hereto as Exhibit B and incorporated herein, to provide the City fill dirt
which is necessary for the construction of certain infrastructure improvements, building
pads, and other contemplated improvements and developments within the Area and
which may be beneficial for other City purposes; and
WHEREAS, the Agreement is due to expire May 8, 2015, and the staff
recommends extension of the contract for another year with no changes to the
authorized expenditure, for Houston to continue to supply and deliver fill dirt to the City,
and perform actions related thereto, in exchange for the City paying Houston for
Houston's machine run times related to stripping and preparing sites where fill dirt may
be placed and for Houston's machine run times related to compacting the fill dirt, and for
various other related and incidental expenses and reimbursable items associated
therewith, but at no cost to the City for the fill dirt itself; and
WHEREAS, the City has determined that Extension of the Agreement with
Houston, attached hereto as Exhibit C and incorporated herein, fulfills a public purpose
and will further the growth of the City, facilitate the development of the Area, improve
the environment of the City, increase the assessed valuation of the real estate situated
within the City, increase the sales tax revenues realized by the City, foster increased
economic activity within the City, increase employment opportunities within the City,
enable the City to direct the development of the Area, and otherwise be in the best
interests of the City by furthering the health, safety, and welfare of its residents and
taxpayers.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1 — BEST INTEREST OF THE CITY TO EXTEND THE AGREEMENT
WITH HOUSTON. It is in the best interest of the City, in order to further the objectives
of industrial and economic development of the City, to extend the Agreement with
Houston, in substantially the form attached hereto and incorporated herein as Exhibit C,
for the purpose of obtaining fill dirt, and services related thereto as described herein,
necessary for the construction of certain infrastructure improvements, building pads,
WA 6911494.1
and other contemplated improvements and developments within the Area and as may
be beneficial for other City purposes.
SECTION 2 — AUTHORITY GRANTED. The Mayor, City Administrator, City
Attorney, Special Counsel, and other appropriate officials and employees of the City are
hereby authorized to execute the Agreement extension in substantially the same form
as set forth in Exhibit C to this Ordinance, with such changes therein as are approved
by the officials of the City executing the Agreement, and to take such further action as
may be deemed necessary or convenient to carry out the terms and conditions of the
Agreement and to comply with the intent of this Ordinance on behalf of the City,
provided, however, that the extended term of the Agreement shall not extend beyond
May 7, 2016, and the amounts to be paid by the City to Houston pursuant to the
Agreement shall not exceed One Hundred Twenty Thousand and 00/100 Dollars
($120,000.00) less what has been paid to Houston since execution of the original
Agreement, unless authority to extend such timeframe and/or exceed such costs has
been granted by the Board of Aldermen pursuant to further ordinance or resolution.
SECTION 3 — EFFECTIVE DATE. This Ordinance shall be in full force and
effect from and after its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only,
PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by
the Mayor of the City of Riverside, Missouri, this 5th day of May, 2015.
lk' D
a hleen L. Rose, Mayor
ATTEST:
G, A
Robin LittrgJl,,C' y'Clerk
Approved as to form:
S en r Fane Britt & Browne LLP
ecial ounsel to the City
by-36-e Bednar
2 WA 6911494.1
EXHIBIT A
FILL DIRT AGREEMENT
3 WA 6911494.1
ACCESS AND SUPPLY AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND CONTRACTOR
4
THIS AGREEMENT, made and entered into as of the __r day of
2014 (the "Effective Date'), by and between The City of Riverside, Missouri ("City") arfd Heco,
Inc.,a Missouri corporation d/b/a Houston Excavating&Demolition("Contractor").
WHEREAS, Contractor wants locations to dispose of Fill Dirt from surrounding projects;
WHEREAS, City has a need for Fill Dirt on several of its Projects;
WHEREAS, Contractor represents that Contractor is equipped, competent, and able to
supply Fill Dirt, in accordance with this Agreement;and
WHEREAS, it would be mutually beneficial to both Contractor and City to work together
and have Contractor's Fill Dirt supplied to City's Projects.
NOW THEREFORE, in consideration of the mutual covenants and consideration herein
contained, IT IS HEREBY AGREED by City and Contractor as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement and the other Contract Documents, the following words and
phrases shall mean:
A. "City"means the City of Riverside,Missouri.
B. "City Administrator, means that person designated by the City as the City
Administrator.
C. "City Engineer"means: Travis Hoover, City Engineer.
D. "Contractor"means Heco, Inc., a Missouri corporation d/b/a Houston Excavating&
Demolition.
E. "Fill Dirt" means the soil removed by Contractor that it warrants is appropriate for
placement on City's property.
F. "Fill Location" means the location designated by the City for the deposit of the Fill
Dirt.
G. "Project Manager" means the following project manager designated by the City to
manage the project on behalf of the City: Travis Hoover.
WA 4985999.6
It. "Subcontractor" means a person, firm or corporation supplying labor and materials
or only labor for the work at the site of the project for, and under separate contract or agreement
with the Contractor.
1. "Work" or "Work on the Project" means the Work to be performed at the location
of the project as defined herein.
J. "Written Notice" means any notice delivered hereunder and the service thereof
shall be deemed completed when sent by certified or registered mail to the other party at the
address set forth herein, or delivered in person to said party or their authorized representative on
the work.
ARTICLE II
THE PROJECT AND THE WORK
A. The Parties agree that Contractor will be allowed to deposit Fill Dirt at mutually
agreeable locations on City's Projects. The Parties agree that Contractor will strip the ground
prior to depositing Fill Dirt. Contractor will also compact the dirt as set forth herein.
B. The City Engineer shall act as the City's representative during the construction
period and shall decide questions which may arise as the quality and acceptability of materials
furnished and work performed, and shall interpret the intent of the contract documents in a fair
and unbiased manner. The City Engineer may recommend, but cannot approve Change Orders.
C. Contractor will alert City Engineer when it is: (1) stripping the ground; (2)
delivering dirt; and/or (3) compacting the dirt. The purpose of this notification is to allow City
Engineer to be available to review the material and/or methods of work. Contractor's timely
notice to City Engineer is a requirement and condition precedent to payment.
ARTICLE III
CONTRACT AMOUNT AND INITIAL TERM
A. The parties acknowledge that Contractor's only compensation ("Contract Amount")
on this Project will be hourly compensation for the stripping of the ground and compacting of the
dirt. A schedule of values for Contractor's hourly rates is attached hereto as Exhibit A.
B. Contractor shall submit to City Engineer weekly time sheets evidencing the hours
worked and rates claimed. City Engineer will approve these amounts and submit them to the
City for payment.
C. Pursuant to Ordinance 1294, approved and passed by the City's Board of Aldermen
on April 1, 2014, the initial tern of this Agreement shall not extend beyond one (1) year from the
Effective Date, and the Contract Amount to be paid by the City hereunder shall not exceed One
Hundred Twenty Thousand Dollars ($120,000.00) unless authority to extend such timeframe
and/or exceed such costs has been granted by the Board of Aldermen pursuant to further
ordinance or resolution. Contractor acknowledges and accepts these limitations to the initial
2 WA 4985999.6
Contract Amount and term of this Agreement and agrees that it will not be entitled to
compensation for services performed that extend beyond or exceed these parameters unless and
until the City's Board of Aldermen has authorized an extension or expansion of same.
ARTICLE IV
PROGRESS OF WORK/SUBMITTALS
A. COMMENCEMENT OF WORK. Contractor shall commence performance of the
Work on the date indicated in a written notice ("Notice to Proceed") that shall be given by the
City to Contractor.
B. SUSPENSION OR TERMINATION OF WORK. The City may suspend or
terminate the work or any portion thereof by written notice to the Contractor.
C. MATERIALS, SERVICES AND FACILITIES. It is understood that except as
otherwise specifically stated in the Contract Documents, the Contractor shall provide and pay for
all materials, labor, tools, equipment, water, light, power, transportation, supervision, temporary
construction of any nature, and all other services and facilities of any nature whatsoever
necessary to execute, complete,and deliver the Fill Dirt.
D. INSPECTION AND TESTING OF MATERIALS. All Fill Dirt, materials and
equipment used in the construction of the Project shall be subject to adequate inspection and
testing in accordance with generally accepted standards, as required and defined in the Contract
Documents. The City Engineer and the City's representatives will at all times have access to the
work. In addition, authorized representatives and agents of any participating Federal or State
agency shall be permitted to inspect all work, materials, payrolls, records or personnel, invoices
of materials and other relevant data and records.
E. CORRECTION OF WORK. The Contractor shall promptly remove from the
premises all Fill Dirt rejected by the City Engineer. All removal and replacement work shall be
done at the Contractor's expense. If the Contractor does not take action to remove such rejected
work within ten (10) days after receipt of written notice, the City may remove such work and
store the materials at the expense of the Contractor.
F. SUBSURFACE CONDITIONS. The Contractor has the responsibility to become
familiar with the Project site and the conditions under which the Work will be performed during
the construction period prior to entering into this Agreement. The Contractor shall promptly, and
before such conditions are disturbed (excepting an emergency), notify the City by written notice
of subsurface or latent physical conditions at the site differing materially from those indicated in
the Contract Documents. Contractor shall also be required to notify the City of any unknown
physical conditions at the site of unusual nature.
G. SUPERVISION BY CONTRACTOR. The Contractor will supervise and direct the
work. The Contractor will be solely responsible for the means, methods, techniques, sequences
and procedures of construction. The Contractor will employ and maintain on the work a qualified
supervisor or superintendent who shall have been designated in writing by the Contractor or the
3 WA 4985999.6
Contractor's representative at the site. The supervisor shall have full authority to act on behalf of
the Contractor and all communications given to the supervisor shall be a binding as if given to
the Contractor. The supervisor shall be present on the site at all times as required to perform
adequate supervision and coordination of the work.
ARTICLE V
CONTRACT DOCUMENTS
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 the City and Contractor, and are the "Contract Documents":
1. AGREEMENT BETWEEN THE CITY AND CONTRACTOR
2. PREVAILING WAGE RATES - STATE OF MISSOURI DIVISION OF
LABORSTANDARDS
3. RATE SCHEDULE SHEET
B. Contractor represents that it has examined and become familiar with the Contract
Documents in their entirety, that any and all ambiguities, inconsistencies, and conflicts observed
by Contractor have been called to the 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, Contractor shall notify City of
the conflict in writing and then shall comply with such provisions of the Contract Documents as
City directs.
ARTICLE VI
PAYMENTS
A. All payments under this Agreement shall be made only upon the approval of City
Engineer and City Administrator. City Engineer shall review each application for payment and
certify for payment such amounts as Architects determines are due Contractor.
B. The City, upon presentation of such certificate, shall prepare a check for the sum
certified to be due.
C. Neither City Administrator's nor City Engineer's approval certificate nor payment
made to Contractor shall constitute acceptance of any part of the Work. Contractor shall remain
obligated to perform all Work in accordance with the Contract Documents.
D. With each application for payment, Contractor shall submit a signed certificate of
receipt of prior payments and release of claims and rights in connection with prior payments, in a
form approved by the City.
4 WA 4985999.6
E. Acceptance of payment by Contractor shall release the City from all further
obligations to Contractor, except as to such amounts, if any, Contractor has identified in its
application for final payment as claimed by Contractor. All claims not identified in the
application for final payment are waived. Any payment, however final or otherwise, shall not
release the Contractor or its sureties from any obligations under the Contract Documents.
F. The City may withhold final or any other payment to Contractor on any reasonable
basis, including but not limited to the following:
I. Unsatisfactory job progress,
2. Defective Work,
3. Failure to make payments to subcontractors or suppliers,
4. Reasonable evidence that all Work cannot be completed for the unpaid
balance of the Contract Amount,
5. Damage by Contractor or subcontractors or suppliers to property of the City
or others,
6. Contractor's breach of this Agreement, or
7. Contractor's failure to provide requested documentation.
G. The Contractor shall, at the request of the City, furnish satisfactory evidence that all
obligations to subcontractors, laborers, workmen, mechanics, materialmen and furnishers of
machinery and parts thereof, equipment, tools and all supplies incurred in the furtherance of the
performance of the Work have been paid, discharged or waived. If Contractor does not pay
subcontractors or suppliers for labor and/or material properly provided, the City may, but shall
not be required to, pay subcontractors and suppliers directly. Any payments made to
subcontractors and suppliers shall be charged against the Contract Amount. The City shall not be
liable to Contractor for any such payments made in good faith. This provision shall not confer
any right upon any Subcontractor or supplier to seek payment directly from the City.
H. Notwithstanding any other provision for payment contained herein, in the event the
Missouri Department of Labor and Industrial Relations has determined that a violation of Section
292.675 RSMo has occurred and that a penalty shall be assessed, the City shall withhold and
retain all sums and amounts due and owning when making payments to Contractor under this
Agreement.
ARTICLE VII
CHANGES/CLAIMS
A. The City, without invalidating this Agreement, may at any time and without notice
to any surety, order additions to, deletions from, or other changes to the Work. Upon receipt of
such an order, in writing, 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,
5 WA 4985999.6
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 Amount
or the time for performance of the Work, and Contractor shall be solely and completely
responsible for the acceptability to the City of the addition,deletion,or other change.
B. 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 pursuant to Change Order.
C. If a change to the Work causes an increase or decrease in the time required for
Contractor's performance, an equitable adjustment to the time for performance shall be made.
D. A change in the Contract Amount or the time for performance of the Work shall be
accomplished only by written Change Order, which shall state the increase or decrease, if any, in
the Contract 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 has been unjustly 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 under the Contract Documents or a change in the time for performance of the
Work.
E. Agreement on any Change Order shall constitute a final settlement of all matters
relating to the change in the Work that 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 time for performance of the Work.
F. If Contractor is delayed or interfered with at any time in the commencement or
prosecution of the Work by an act or neglect of the City, an employee, officer, or an architect or
engineer or separate contractor engaged by or on behalf of the 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 performance of the Work shall be
equitably extended, provided that Contractor gives notice as provided for in Paragraph G below.
G. Any claim by Contractor for additional time or money for the performance of the
Work, including but not limited to any claim based on or arising out of an addition to, deletion
from, or other change to the Work and/or delay to or interference with commencement or
prosecution of any of the Work, shall be submitted to the City's designated representative within
five (5) 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.
H. 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 VIII
INSURANCE
6 WA 4985999.6
A. Contractor shall, at all times during the performance of any of the Work, maintain
not less than the following insurance coverages and amounts:
1. COMMERCIAL GENERAL LIABILITY - Contractor shall provide coverage
for Contractor, the City, its employees and officers, the Industrial
Development Authority of the City of Riverside, Missouri, its employees and
officers 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 Work. Such
coverage shall name the City of Riverside, its employees and officers, the
Industrial Development Authority of the City of Riverside, Missouri, its
employees and officers as an additional insured and have not less than the
following limits:
a. Each occurrence: Not less $2,000,000.00
b. General aggregate: Not less$2,000,000.00
c. Products/completed operations aggregate$2,000,000.00
d. The following coverage shall be included:
• Blanket contractual liability
• Products/completed operations
• Personal/advertising injury
• Broad form property damage
• Independent contractors
• Explosion,Collapse, and Underground Damage
• Contractor's Pollution Liability
2. OWNERS PROTECTIVE LIABILITY — Contractor shall purchase, maintain
and deliver to the City for operations of the Contractor of any Subcontractor
in connection with execution of the agreement Owner's Protective Liability
insurance in the same minimum amounts as required for Commercial General
Liability Insurance above.
3. AUTOMOBILE LIABILITY - Contractor shall provide coverage for
Contractor, the City, its employees and officers, the Industrial Development
Authority of the City of Riverside, Missouri, its employees and officers
against claims for bodily injury 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, hired autos, and non-
owned autos. The coverage shall have not less than a combined single limit of
$2,000,000.00 for each accident.
7 WA 4985999.6
4. 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 the City and
with a minimum financial rating not lower than "A-" in Best's Insurance 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 or automobile liability
coverage (including any umbrella or excess policy that provides any required general or
automobile 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, in form satisfactory to the City, (1) name
as additional insured the City, its employees, officers, and agents, and any architects, engineers,
or other design professionals engaged by or on behalf of the City, (2) name as additional insured
the Industrial Development Authority of The City of Riverside, Missouri, its employees and
officers, and (3) provide that it is primary to any other insurance maintained by any additional
insureds, 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 one (1) year after the date of final acceptance by the City of all of Contractor's Work.
D. All policies and certificates of insurance shall provide no less than thirty (30) days'
prior written notice to the City in the event of cancellation, expiration,non-renewal, alteration, or
reduction (including but not limited to reduction by paid claims) of coverage or limits contained
in the policy or evidenced by the certificate of insurance. Contractor shall famish the City a
certificate or certificates and copies of policies, all satisfactory to the City, evidencing that
Contractor has all the required insurance and is in compliance with this Article. The certificate or
certificates and copies of policies shall be delivered to the City's designated representative not
less than seven (7) days before Contractor first performs any of the Work. All policies except
Workers' Compensation and Employer's Liability shall contain a waiver of subrogation in favor
of the City, its employees, officers, and agents, and architects, engineers, or other design
professionals engaged by or on behalf of the City and Industrial Development Authority of City
of Riverside, Missouri,
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E. Contractor also shall maintain any additional insurance coverages and any higher
limits provided for elsewhere in the Contract Documents and shall furnish the City any
additional insurance documentation provided for elsewhere in the Contract Documents.
F. 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. Certificates and copies of
policies, satisfactory to the City, evidencing the required insurance and compliance with this
Article shall be delivered to City's designated representative not less than seven (7) days before
the Subcontractor first performs any of the Work.
G. If Contractor is a transient employer as defined in Section 285.230 RSMo,
Contractor must post in a prominent and easily accessible place at the work site a clearly legible
copy of the following: (1) the notice of registration for employer withholding issued to such
transient employer by the Director of Revenue; (2) proof of coverage for workers' compensation
insurance or self-insurance signed by the transient employer and verified by the Department of
Revenue through the records of the Division of Workers' Compensation; and (3) the notice of
registration for unemployment insurance issued to such transient employer by the Division of
Employment Security. Any transient employer failing to comply with these requirements shall,
under Section 285.234 RSMo be liable for a penalty of$500 per day until the notice required by
this Paragraph are posted as required by law.
ARTICLE IX
INDEMNITY
A. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold
harmless the City, its employees, officers, and agents, and any architects, engineers, or other
design professionals engaged by or on behalf of the City and the Industrial Development
Authority of the City of Riverside, Missouri, their officers and employees, 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 caused or allegedly
caused by the negligent or willful 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 indemnity that would otherwise exist as to a party or person
as set forth in this Agreement.
B. In claims against any person or entity indemnified herein by an employee of
Contractor, a Subcontractor or supplier, or anyone directly or indirectly employed by them or for
whose acts they may he liable, the indemnification obligation shall not be limited by a limitation
on the amount or type of damages, compensation, or benefits payable by or for Contractor or a
Subcontractor or supplier under workers' compensation acts, disability benefit acts, or other
employee benefit acts.
9 WA 4985999.6
ARTICLE X
COVENANT AGAINST LOBBYING AND UNDUE INFLUENCE
A. Contractor represents and warrants 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 has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, 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, the City shall have the right to void this Agreement 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.
B. Contractor 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 officer,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 the 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.
C. No official of the City who is authorized in such capacity and on behalf of the City
to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting, or
approving any architectural, engineering, inspection, construction, or material supply contract or
any subcontract in connection with the construction of the project, shall become directly or
indirectly interested personally in this Agreement or in any part hereof. No officer, employee,
architect, attorney, engineer, or inspector of or for the owner who is authorized in such capacity
and on behalf of the City to exercise any legislative, executive, supervisory, or other similar
functions in connection with the construction of the project, shall become directly or indirectly
interested personally in this Agreement or in any part thereof, any material supply contract,
subcontract, insurance contract, or any other contract pertaining to the project.
ARTICLE XI
RECORDS REGARDING PAYMENT
For a period of at least two (2) years after final payment to Contractor, 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 the City. For 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
subcontractors 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, payroll records,
canceled checks, orders, and invoices pertaining to the City's account. The City's representative
shall, upon reasonable prior notice to Contractor, be given the opportunity to audit these records
10 WA 4985999.6
at any time during normal business hours to verify the accuracy of Contractor's invoices and
charges.
ARTICLE XII
NOTICES
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 the City: Travis Hoover,City Engineer
2950 N.W. Vivion Road
Riverside,MO 64150
Telephone (816) 372-9004
For Contractor: TIE GD enc . \
i, 0It-)tL:auKprnls uQ .
B. Any notice required by the Contract Documents to be given in writing or that either
the City or Contractor wishes to give to the other in writing shall be signed by or on behalf of the
party giving notice. The notice shall be deemed to have been completed when sent by certified or
registered mail to the other party at the address set forth herein, or delivered in person to said
party or their authorized representative.
C. Contractor's designated representative 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
DEFAULT AND TERMINATION
A. If Contractor fails to comply, becomes unable to comply, or with reasonable
probability (as determined solely by the City) will become unable to comply with any of
Contractor's obligations under the Contract Documents, including but not limited to (1)failure at
any time to furnish sufficient labor 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 the City or any others on the Project, (4)
abandonment by Contractor of all or any part of the Work, or (5) bankruptcy, insolvency or
general assignment for the benefit of creditors by Contractor, Contractor shall be in default, and
if the default is not corrected to the City's satisfaction within seventy-two (72) hours of delivery
of a written notice to Contractor to correct such default, the City may, in addition to any other
right or remedy the City may have, terminate the services of the Contractor and take possession
of the project and of all materials, equipment, tools, construction equipment and machinery
11 WA 4995999.6
thereon owned by the Contractor and finish the work by whatever method the City may deem
expedient to correct the default, at Contractor's expense. In such case the Contractor shall not be
entitled to receive any further payment until the Work is finished. If such costs exceed the
unpaid balance due to Contractor, the Contractor will pay the difference to the City.
B. If City exercises its right to take over and complete any part or all of the Work, the
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 the City and may employ Contractor's employees or former employees, all without any
liability to Contractor.
C. Contractor shall be liable for and shall pay to the City all costs and expenses of
whatsoever nature incurred by the 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 the City all
charges, liabilities, fines, penalties, losses, damages, and claims sustained by or assessed against
the City as a result of any delay or disruption resulting from any default by Contractor. The total
amount of such costs, expenses, charges, liabilities, fines, penalties, losses, damages, and claims
may be deducted by the City from the amount, if any, otherwise due Contractor, and Contractor
shall pay the City the full amount of any excess of such total over the amount otherwise due
Contractor.
D. No right or remedy conferred upon or reserved to the City by the Contract
Documents is exclusive of any other right or remedy provided or permitted in the Contract
Documents 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 the City of any right or remedy shall relieve Contractor from full and absolute
responsibility for all of Contractor's obligations under the Contract Documents.
E. No failure or delay of the City to give notice to correct any default of Contractor or
to exercise any of the City's rights or remedies shall waive or excuse the default, and the City
shall remain free to pursue all rights and remedies. No failure of the City to insist, in any one or
more 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 the City's right to
insist upon strict performance of the obligation in any future instance.
F. If through no act or fault of the Contractor, the Work is suspended for a period of
more than ninety (90) days by the City or under an order of court or other public authority, or the
City fails to act on any request for payment within thirty (30) days after it is submitted, or the
City fails to pay the Contractor substantially the sum approved by the Engineer and
Administrator, then the Contractor may after ten (10) days from delivery of written notice to the
City to terminate the Agreement and recover from the City payment for all work executed.
G. The City, without terminating the service of the Contractor or written notice to the
Surety, through the Project Manager may withhold, without prejudice to the rights of the City
12 WA 4985999.6
under the terms of the Agreement, or on account of subsequently discovered evidence, nullify the
whole or part of any approved partial payment estimate to such extent as may be necessary to
protect the City from loss on account of(1) defective work not remedied, (2) claims filed or
reasonable evidence indicating probably filing of claims, (3) failure of Contractor to make
payments property to Subcontractors or for material or labor, (4) a reasonable doubt that the
Work can be completed for the balance then unpaid, (5) damages to another contractor, or (6)
performance of work in violation of the terms of the Contract Documents.
ARTICLE XIV
TERMINATION FOR CONVENIENCE
Notwithstanding anything contained herein to the contrary, the 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 the City's own convenience by giving written notice to Contractor.
Upon receipt of notice of termination for City's convenience, Contractor shall, to the extent
directed by the City, stop work and turn over to the City or the City's designee materials and
equipment purchased for the Work. The City shall pay Contractor, in accordance with the
Contract Documents, for only so much of the Work as is actually performed as of the termination
for convenience. The City shall not be obligated to Contractor for any further payment, including
but not limited to prospective overhead or profit on unperformed work. If a termination by the
City of Contractor's right to proceed on the ground of default by Contractor is determined later
to have been improper, the termination automatically shall be converted to a termination for the
City's convenience, and the City's obligation to Contractor shall be limited to payment to
Contractor as provided in this Article.
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 U.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 submitted by Contractor to the City, Contractor
shall include (a) a signed statement, in form acceptable to the 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 hours 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.
13 WA 4985999.6
C. This Agreement shall be governed by and construed in accordance with the laws of
the State of Missouri.
ARTICLE XVI
LABOR STANDARDS PROVISIONS
A. MISSOURI PREVAILING WAGE LAW. Not less than the prevailing hourly rate
of wages established by the Missouri Department of Labor and Industrial Relations Division of
Labor Standards shall be paid to all workers performing work under the Agreement. An
Affidavit of Compliance with the Prevailing Wage Law as set forth in Exhibit B shall be
completed by Contractor and every Subcontractor employed on the Project prior to final
payment. The Contractor will forfeit a penalty to the City of$100 per day (or portion of a day)
for each worker that is paid less than the prevailing rate for any work done under the contract by
the Contractor or by any Subcontractor.
B. EXCESSIVE UNEMPLOYMENT. During periods of excessive unemployment
(any month immediately following two consecutive calendar months during which the level of
unemployment in the state has exceeded five percent (5%) as measured by the United States
Bureau of Labor Statistics) only Missouri labors (persons who have resided in Missouri for at
least thirty days and intend to become or remain Missouri residents) and laborers from non-
restrictive states(persons who are residents of a state which has not enacted state laws restricting
Missouri laborers from working on public works projects in that state, as determined by the
Labor and Industrial Relations Commission), may be employed under the contract, except that
other laborers may be used when Missouri laborers or laborers from nonrestrictive states are not
available, or are incapable of performing the particular type of work involved, if so certified by
the Contractor and approved by the City.
C. UNDERPAYMENT OF WAGES. In case of underpayment of wages by the
Contractor or by any subcontractors to laborers or mechanics employed by the Contractor or
Subcontractor upon the work covered by this Agreement, the City, in addition to such other
rights as may be afforded it under this Agreement shall withhold from the Contractor, out of any
payments due the Contractor, so much thereof as the City may consider necessary to pay such
laborers or mechanics the full amount of wages required by this Agreement. The amount so
withheld may be disbursed by the City, for and on account of the Contractor or the Subcontractor
(as may be appropriate), to the respective laborers or mechanics to whom the same is due or on
their behalf to plans, funds, or programs for any type of fringe benefit prescribed in the
applicable wage determination.
D. LIMITATIONS ON EMPLOYMENT. No person under the age of sixteen (16)
years and no person who, at the time, is serving sentence in a penal or correctional institution
shall be employed on the work covered by this Agreement.
ARTICLE XVII
EQUAL EMPLOYMENT OPPORTUNITY
The Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. The Contractor will take affirmative
14 WA 4985999.6
action to ensure that applicants and employees are treated during employment, without regard to
their race, color, religion, sex, or national origin. Such action shall include, but not be limited to,
employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
ARTICLE XVIII
SUBCONTRACTS,ASSIGNMENT, OR TRANSFER
A. Except with the prior written consent of the 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. The City's consent to any assignment,
subcontract, or purchase order shall not relieve Contractor from any obligation under the
Contract Documents, nor shall it create any obligation from the 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 the City is an intended third-party beneficiary of the
subcontract or purchase order.
C. The Contractor shall be fully responsible to the City for the acts and omissions of its
Subcontractors, and of person either directly or indirectly employed by them, as the Contractor is
for the acts and omissions of person directly employed by it.
D. The Contractor shall cause appropriate provisions to be inserted in all subcontracts
relative to the work to bind Subcontractors to the Contractor by the terms of the Contract
Documents insofar as applicable to the work of Subcontractors and give the Contractor the same
power as regards terminating any Subcontract that the City may exercise over the Contractor
under any provision of the Contract Documents. Nothing contained in this Agreement shall
create any contractual relation between any Subcontractor and the City.
E. Each subcontract or purchase order issued by Contractor for any of the Work shall
provide that it is freely assignable by Contractor to the City. Contractor hereby assigns to the
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 the City in writing
and only as to the specific subcontract(s) and/or purchase order(s) that the City designates in the
writing. This assignment may be accepted by the City at any time, whether before or after final
payment to Contractor, and may not be withdrawn by Contractor without the City's written
consent.
ARTICLE XIX
ACCESS TO SITE/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.
15 WA 4965999.6
B. Representatives of the City may inspect or review any Work performed by
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 the City at its request.
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 equipment, tools,
machinery, waste, and surplus materials. Contractor shall make provisions to minimize and
confine dust and debris resulting from construction activities. If Contractor fails to comply with
cleanup duties within twenty-four (24) hours after written notification from the City of non-
compliance, the City may implement cleanup measures without further notice and deduct the
cost from any amounts due or to become due Contractor.
ARTICLE XX
COMPETENCE
Contractor represents and warrants that it maintains all necessary licenses, registration,
competence, and experience to perform all the Work.
ARTICLE XXI
WARRANTY
A. Contractor shall exercise high professional skill, care, and diligence in the
performance of the Work, and shall carry out its responsibilities in accordance with customarily
accepted good professional practices. The Contractor warrants and guarantees that the Fill Dirt
conforms with the plans and specifications and that it is free from "Hazardous Substance" as that
term is defined herein. "Hazardous Substance" shall mean any substance, chemical, compound,
product, solid, gas, liquid, odor, heat, sound, vibration, radiation, waste, byproduct, pollutant,
contaminant, or material which is (A) regulated, defined or designated as a hazardous substance,
hazardous waste, extremely or imminently hazardous, carcinogenic, toxic, deleterious, caustic, a
pollutant, a contaminant, or a source of contamination pursuant to environmental laws, (B)
subject to investigation, monitoring, reporting or remediation by any government authority
(local, state, municipal, territorial or federal), (C) asbestos, polychlorinated biphenyls and
petroleum and petroleum products (including crude oil or any fraction thereof) or (D) natural
gas, synthetic gas and any mixtures thereof. Contractor shall promptly make such corrections as
may be necessary be reason of such defects including the repair of any other damages that were
caused by defects in the work, at its own expense. The City will give notice of observed defects
with reasonable promptness. In the event that the Contractor fails to make such repairs,
adjustments or other work that may be necessary by such defects, the City may do so and charge
the Contractor the cost thereby incurred. In emergency where, in the judgment of the City delay
would cause serious loss or damage, repairs and replacement of defects in the work and damage
caused by defects may be made without notice being sent to the Contractor, and the Contractor
shall pay the cost thereof. Neither final payment, Engineer's Final Certificate, nor any other
provision in the Contract Documents shall affect Contractor's obligation to complete the Work
free of defects in workmanship and material.
16 WA 49859W6
B. 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.
C. This Article 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, including but not limited to, a breach of warranty
concerning Hazardous Substances.
ARTICLE XXII
STORAGE OF MATERIALS AND EQUIPMENT
Only materials and equipment that are to he 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 XXIII
TAXES
A Missouri Sales Tax Project Exemption Certificate (Missouri Department of Revenue
Form 5060) will be provided by City for the purchase of any materials or personal property
incorporated into or consumed in the construction project, pursuant to RSMo 144.062. The
Contractor will pay all other sales, consumer, use and other similar taxes required by the State of
Missouri or other taxing jurisdiction.
ARTICLE XXIV
SAFETY
A. Contractor shall be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with performance of the 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, shrubs,
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, rules, regulations, orders, and the like bearing on safety of persons or property or
their protection from damage, injury, or loss. The Contractor will erect and maintain,as required
by the conditions and progress of the work, all necessary safeguards for safety and protections.
The Contractor will notify owners of adjacent utilities when prosecution of the Work may affect
them. The Contractor will remedy all damage, injury or loss to any property caused directly or
indirectly, in whole or part, by the Contractor, any Subcontractor or anyone directly or indirectly
employed by any of them or anyone whose acts any of them may be liable.
17 WA 4985999.6
C. The Contractor shall exercise proper precaution at all times for the protection of
persons and property and shall be responsible for all damages to persons or property, either on or
off the site, which occur as a result of his prosecution of the work. The safety provisions of
applicable laws and building and construction codes shall be observed and the Contractor shall
take or cause to be taken, such additional safety and health measures as the City may determine
to be reasonably necessary.
D. Pursuant to Section 292.675 RSMo, Contractor shall provide a ten (10) hour
Occupational Safety and Health Administration (OSHA) construction safety program for all
employees who will be on-site at the Project. The construction safety program shall include a
course in construction safety and health that is approved by OSHA or a similar program
approved by the Missouri Department of Labor and Industrial Relations which is at least as
stringent as an approved OSHA program as required by Section 292.675 RSMo. Contractor
shall require its on-site employees to complete a construction safety program within sixty (60)
days after the date work on the project commences. Contractor acknowledges and agrees that
any of Contractor's employees found on the Project site without documentation of the successful
completion of a construction safety program shall be required to produce such documentation
within twenty (20) days, or will be subject to removal from the Project. Contractor shall require
all of its Subcontractors to comply with the requirements of this Paragraph and Section 292.675
RSMo.
Contractor shall forfeit to the City as a penalty two thousand five hundred dollars
($2,500.00), plus one hundred dollars ($100.00) for each on-site employee employed by
Contractor or its Subcontractor, for each calendar day, or portion thereof, such on-site employee
is employed without the construction safety training required herein. The penalty described in
this Paragraph shall not begin to accrue until the time periods herein have elapsed. Violations of
this requirement and imposition of the penalty described in this Paragraph shall be investigated
and determined by the Missouri Department of Labor and Industrial Relations.
E. If the City deems any part of the Work or the Project site unsafe, the City, without
assuming responsibility for Contractor's safety program, may require Contractor to stop
performance of the Work or take corrective measures satisfactory to the City or both. If
Contractor does not adopt corrective measures, the City may perform them or have them
performed and deduct their cost from the Contract Amount. Contractor shall make no claim for
damages, for an increase in the Contract Amount, or for a change in the time for performance of
the Work based on Contractor's compliance with the City's reasonable request.
ARTICLE XXV
AUTHORIZED EMPLOYEES
Contractor acknowledges that Section 285.530 RSMo prohibits any business entity or
employer from knowingly employing, hiring for employment, or continuing to employ an
unauthorized alien to perform work within the State of Missouri. Contractor therefore covenants
that it is not knowingly in violation of subsection 1 of Section 285.530 RSMo,and that it will not
knowingly employ, hire for employment, or continue to employ any unauthorized aliens to
18 WA 4985999.6
perform work on the Project, and that its employees are lawfully eligible to work in the United
States.
ARTICLE XXVI
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 the City for any
purpose.
ARTICLE XXII
CONFLICT
Contractor shall promptly upon discovery notify the City of any conflict, ambiguity or
inconsistency in the Contract Documents, or between any Contract Document and actual field
conditions, and the City shall resolve such conflict, ambiguity or inconsistency in its sole
discretion.
ARTICLE XXIII
SEVERABILITY
Should any specific provision of this Agreement or other Contract Documents be found
to be unenforceable, the remaining provisions shall remain in full force and effect.
ARTICLE XXIX
NO PRESUMPTION AGAINST THE DRAFTER
No presumption or inference against the City shall be made because of the City's
preparation of this Agreement or other Contract Documents.
ARTICLE XXX
DISPUTES/ATTORNEY FEES
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, the City and
Contractor shall first try 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 XXXI
TITLES
19 WA 4995999.6
The titles given to the Articles in this Agreement are for ease 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 XXXII
PROVISIONS REQUIRED BY LAW DEEMED INSERTED
Each and every provision of law and clause required by law to be inserted in this
Agreement shall be deemed to be inserted herein and the contract shall be read and enforced as
though it were included herein, and if through mistake or otherwise any such provision is not
inserted, or is not correctly inserted, then upon the application of either party the contract shall
forthwith by physically amended to make such insertion or correction. All such laws, orders and
regulations are applicable to this Project and are made a part hereof by reference.
ARTICLE XXXIII
THIRD PARTY BENEFICIARY
Contractor expressly acknowledges The Industrial Development Authority of the City
of Riverside, Missouri is a third party beneficiary under the Agreement and all other Contract
Documents. The Industrial Development Authority of the City of Riverside, Missouri shall have
the right to enforce the provisions of this Agreement or seek any remedies available against the
contractor and any and all subcontractors should any party fail to comply with the terms hereof.
Except as set forth in this Article, this Agreement does not and is not intended to confer any
rights or remedies upon any person other than expressly stated herein. Contractor shall not have
any rights against The Industrial Development Authority of the City of Riverside, Missouri.
ARTICLE XXXIV
ENTIRE 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, whether oral or written, are of no further force or effect. Subject to Article VII 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
by City and Contractor.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20 WA 4985999.6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives.
THE CITY OF RIVERSIDE,MISSOURI
By_ ;
EXHIBIT A
RATE SCHEDULE FOR STRIPPING AND COMPACTING
22 WA 4985999.6
HOUSTON EXCAVATING AND DEMOLITION EQUIPMENT
RENTAL RATES AS OF MARCH 2014
Types of Equipment Per Hour
Caterpillar D&K Dozer $230
Caterpillar 977L Loader $190
Caterpillar 963 Loader $190
Caterpillar 963B Loader $190
Caterpillar 627E Scraper $265
Caterpillar 627B Scraper $255
Caterpillar 613 Paddle Scraper $190
Caterpillar 815 Compactor $190
Caterpillar 320 Track Hoe $210
Caterpillar 330 Track Hoe $235
Hamm Vibratory Compactor $190
Kenworth Tractor w/Low Boy Trailer $165
Peterbuilt Tractor w/41' Push Out Trailer $170
Kenworth Tractor w/Barrel End Dump $135
Air Curtail Tree Burner $110
Komatsu 220 Track Hoe and Breaker $300
Komatsu 220 Track Hoe $240
Cat 320 Track Hoe and Breaker $300
Skid Steer $140
Broom $150
304-Mini Excavator $150
Single Axle Dump $115
Kenworth 17' Tri-Axle Dump $135
Truck & Supervisor $100
Laborer $70
Water Truck $135
(PREVAILING WAGE RATES)
EXHIBIT B
AFFIDAVIT OF COMPLIANCE WITH THE PREVAILING WAGE LAW
1, L A't c e ,upon being duly sworn upon my oath state that:
(1)1amthe of 14 etu c_
(2)all requirements of Section 290.210 to 290.340. RSMo, pertaining to the payment of wages to
workers employed on public works projects have been fully satisfied with regard to this Contractor's
work on t-;+vyeisr�t�L PROJECT;
(3)I have reviewed and am familiar with the labor standards provisions and prevailing wage rules
established by the Missouri Department of Labor and Industrial Relations Division of Labor Standards;
(4) based upon my knowledge of these rules, including all occupational titles set out in the
applicable regulations,I have completed full and accurate records clearly indicating:
(a) the names, occupations, and crafts of every worker employed by this Company in
connection with this Project together with an accurate record of the number of hours worked by
each worker and the actual wages paid for each class or type of work performed,
(b)the payroll deductions that have been made for each worker,and
(c)the amounts paid to provide fringe benefits, if any,for each worker;
(5) the amounts paid to provide fringe benefits, if any, were irrevocable paid to a trustee or to a
third party pursuant to a fund, plan,or program on behalf of the workers;
(6) these payroll records are kept and have been provided for inspection to the authorized
representative of the City and will be available, as often as may be necessary,to such City and such other
regulatory agencies as may be deemed necessary;
(7) such records shall not be destroyed or removed from the State of Missouri for one (1) year
following the completion of Contractor's work on this Project;
(8) when in effect, the requirements of Sections 290.550 through 290.580 RSMo. Pertaining to
excessive unemployment were fully satisfied;and
(9) there has been no exception to the full and complete compliance with the provisions and
requirements of the wage orders applicable to the Agreement and Contract Documents.
The matters stated herein are true to the best of my information, knowledge, and belief. I
acknowledge that the falsification of any information set out herein maysubject me to criminal
prosecution.
Signature Z
L4Ar_.4 1416 f4ti
Printed Name
Subscribed and swom to me thisS=day of Q L 2014.
Notary Public
My Commission expires: 9y015-
ROBIN L LITTRELL f`
Notary.Public-Notary 6" 23 WA 4985999.6
State of NBatoun,CNIy Coultty
Cownlaalon all 1139OUl
My Comadits"E UK B,am$
EXHIBIT B
ORDINANCE 1294
4 WA 6911494.1
BILL NO.2014 -021 ORDINANCE NO. /a 94
AN ORDINANCE AUTHORIZING THE CITY TO ENTER INTO AN AGREEMENT
WITH HOUSTON EXCAVATING & DEMOLITION FOR THE PROVISION OF FILL
DIRT TO THE CITY, AND SERVICES RELATED THERETO
WHEREAS, the City of Riverside, Missouri (the "City") has been working to provide
for the efficient and orderly development, operation, and management of a
retail/commercial/industrial development of the Riverside Horizons Area ("Area") for the benefit
of the citizens of the City; and
WHEREAS, the City is aware of the potential availability of free fill dirt that Heco, Inc.,
a Missouri corporation doing business as Houston Excavating& Demolition("Houston") may be
able to provide to the City, which fill dirt is necessary for the construction of certain
infrastructure improvements, building pads, and other contemplated improvements and
developments within the Area and which may be beneficial for other City purposes; and
WHEREAS, negotiations between the City and Houston have resulted in a proposed
Agreement, attached hereto and incorporated herein as Exhibit A (the "Agreement"), for
Houston to supply and deliver fill dirt to the City, and perforin actions related thereto, in
exchange for the City paying Houston for Houston's machine run times related to stripping and
preparing sites where fill dirt may be placed and for Houston's machine run times related to
compacting the fill dirt, and for various other related and incidental expenses and reimbursable
items associated therewith, but at no cost to the City for the fill dirt itself; and
WHEREAS, based on knowledge and understanding of the regional construction
community and reliable information about the capabilities of firms to meet the project
specifications for contemplated improvements and development in the Area, the City has
determined that entering into the Agreement with Houston in order to obtain required fill dirt at
no cost except for the stripping, preparation, compacting, and related costs detailed above, will
result in a cost outcome determined to be in the best interests of the City; and
WHEREAS, the City has determined that entering into the Agreement with Houston, as
provided above, fulfills a public purpose and will further the growth of the City, facilitate the
development of the Area, improve the environment of the City, increase the assessed valuation of
the real estate situated within the City, increase the sales tax revenues realized by the City, foster
increased economic activity within the City, increase employment opportunities within the City,
enable the City to direct the development of the Area, and otherwise be in the best interests of
the City by furthering the health, safety, and welfare of its residents and taxpayers.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE,MISSOURI,AS FOLLOWS:
SECTION 1 —BEST INTEREST OF THE CITY TO ENTER INTO AGREEMENT WITH
HOUSTON. It is in the best interest of the City, in order to further the objectives of industrial
and economic development of the City, to enter into the Agreement with Houston, in
substantially the form attached hereto and incorporated herein as Exhibit A, for the purpose of
obtaining fill dirt, and services related thereto as described herein, necessary for the construction
WA 4978303.3
of certain infrastructure improvements, building pads, and other contemplated improvements and
developments within the Area and as may be beneficial for other City purposes.
SECTION 2 — AUTHORITY GRANTED. The Mayor, City Administrator, City Attorney,
Special Counsel, and other appropriate officials and employees of the City are hereby authorized
to execute the Agreement in substantially the same form as set forth in Exhibit A to this
Ordinance, with such changes therein as are approved by the officials of the City executing the
Agreement, and to take such further action as may be deemed necessary or convenient to carry
out the terms and conditions of the Agreement and to comply with the intent of this Ordinance
on behalf of the City, provided, however, that the initial tern of the Agreement shall not extend
beyond one year and the amounts to be paid by the City to Houston pursuant to the Agreement
shall not exceed $120,000 unless authority to extend such timeframe and/or exceed such costs
has been granted by the Board of Aldermen pursuant to further ordinance or resolution.
SECTION 3 — EFFECTIVE DATE. This Ordinance shall be in full force and effect from and
after its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, PASSED
AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of
the City of Riverside, Missouri, this 1 st day of April, 2014.
Kathleen L. Rose, Mayor
ATTEST:
N _
RobinLittrell, City Clerk
Approved as to form:
S e Britt& Browne LLP
Specia(fQdnset to the City
by Joe Bednar
2 WA 4476303.3
EXHIBIT A
FILL DIRT AGREEMENT
3
WA 4978303.3
ACCESS AND SUPPLY AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND CONTRACTOR
THIS AGREEMENT, made and entered into as of the day of
2014, by and between The City of Riverside, Missouri ("City") and Heco, Inc., a Missouri
corporation d/b/a Houston Excavating & Demolition("Contractor").
WHEREAS, Contractor wants locations to dispose of Fill Dirt from surrounding projects;
WHEREAS, City has a need for Fill Dirt on several of its Projects;
WHEREAS, Contractor represents that Contractor is equipped, competent, and able to
supply Fill Dirt, in accordance with this Agreement; and
WHEREAS, it would be mutually beneficial to both Contractor and City to work together
and have Contractor's Fill Dirt supplied to City's Projects.
NOW THEREFORE, in consideration of the mutual covenants and consideration herein
contained, IT IS HEREBY AGREED by City and Contractor as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement and the other Contract Documents, the following words and
phrases shall mean:
A. "City"means the City of Riverside, Missouri.
B. "City Administrator" means that person designated by the City as the City
Administrator.
C. "City Engineer" means: "Travis Hoover, City Engineer.
D. "Contractor" means Heco, Inc., a Missouri corporation d/b/a Houston Excavating&
Demolition.
E. "Fill Dirt" means the soil removed by Contractor that it warrants is appropriate for
placement on City's property.
F. "Fill Location" means the location designated by the City for the deposit of the Fill
Dirt.
G. "Project Manager" means the following project manager designated by the City to
manage the project on behalf of the City: Travis Hoover.
WA 4985999.4
H. "Subcontractor" means a person, firm or corporation supplying labor and materials
or only labor for the work at the site of the project for, and under separate contract or agreement
with the Contractor.
I. "Work" or "Work on the Project" means the Work to be performed at the location
of the project as defined herein.
J. "Written Notice" means any notice delivered hereunder and the service thereof
shall be deemed completed when sent by certified or registered mail to the other party at the
address set forth herein, or delivered in person to said party or their authorized representative on
the work.
ARTICLE 11
THE PROJECT AND THE WORK
A. The Parties agree that Contractor will be allowed to deposit Fill Dirt at mutually
agreeable locations on City's Projects. The Parties agree that Contractor will strip the ground
prior to depositing Fill Dirt. Contractor will also compact the dirt as set forth herein.
B. The City Engineer shall act as the City's representative during the construction
period and shall decide questions which may arise as the quality and acceptability of materials
furnished and work performed, and shall interpret the intent of the contract documents in a fair
and unbiased manner. The City Engineer may recommend, but cannot approve Change Orders.
C. Contractor will alert City Engineer when it is: (1) stripping the ground; (2)
delivering dirt; and/or (3) compacting the dirt. The purpose of this notification is to allow City
Engineer to be available to review the material and/or methods of work. Contractor's timely
notice to City Engineer is a requirement and condition precedent to payment.
ARTICLE III
CONTRACT AMOUNT
A. The parties acknowledge that Contractor's only compensation ("Contract Amount")
on this Project will be hourly compensation for the stripping of the ground and compacting of the
dirt. A schedule of values for Contractor's hourly rates is attached hereto as Exhibit A.
B. Contractor shall submit to City Engineer weekly time sheets evidencing the hours
worked and rates claimed. City Engineer will approve these amounts and submit them to the
City for payment.
C. [Not to exceed
2 WA 49x5999.4
ARTICLE IV
PROGRESS OF WORK/SUBMITTALS
A. COMMENCEMENT' OF WORK. Contractor shall commence performance of the
Work on the date indicated in a written notice ("Notice to Proceed") that shall be given by the
City to Contractor.
B. SUSPENSION OR TERMINATION OF WORK. The City may suspend or
terminate the work or any portion thereof by written notice to the Contractor.
C. MATERIALS, SERVICES AND FACILITIES. It is understood that except as
otherwise specifically stated in the Contract Documents,the Contractor shall provide and pay for
all materials, labor, tools, equipment, water, light, power, transportation, supervision, temporary
construction of any nature, and all other services and facilities of any nature whatsoever
necessary to execute,complete, and deliver the Fill Dirt.
D. INSPECTION AND TESTING OF MATERIALS. All Fill Dirt, materials and
equipment used in the construction of the Project shall be subject to adequate inspection and
testing in accordance with generally accepted standards, as required and defined in the Contract
Documents. The City Engineer and the City's representatives will at all times have access to the
work. In addition, authorized representatives and agents of any participating Federal or State
agency shall be permitted to inspect all work, materials, payrolls, records or personnel, invoices
of materials and other relevant data and records.
E. CORRECTION OF WORK. The Contractor shall promptly remove from the
premises all Fill Dirt rejected by the City Engineer. All removal and replacement work shall be
done at the Contractor's expense. If the Contractor does not take action to remove such rejected
work within ten (10) days after receipt of written notice, the City may remove such work and
store the materials at the expense of the Contractor.
F. SUBSURFACE CONDITIONS. The Contractor has the responsibility to become
familiar with the Project site and the conditions under which the Work will be performed during
the construction period prior to entering into this Agreement. The Contractor shall promptly, and
before such conditions are disturbed (excepting an emergency), notify the City by written notice
of subsurface or latent physical conditions at the site differing materially from those indicated in
the Contract Documents. Contractor shall also be required to notify the City of any unknown
physical conditions at the site of unusual nature.
G. SUPERVISION BY CONTRACTOR. The Contractor will supervise and direct the
work. "rhe Contractor will be solely responsible for the means, methods, techniques, sequences
and procedures of construction. The Contractor will employ and maintain on the work a qualified
supervisor or superintendent who shall have been designated in writing by the Contractor or the
Contractor's representative at the site_ The supervisor shall have full authority to act on behalf of
the Contractor and all communications given to the supervisor shall be a binding as if given to
the Contractor. The supervisor shall be present on the site at all times as required to perform
3 WA 4985999a
adequate supervision and coordination of the work.
ARTICLE V
CONTRACT DOCUMENTS
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 the City and Contractor, and are the "Contract Documents":
1. AGREEMENT BETWEEN THE CITY AND CONTRACTOR
2. PREVAILING WAGE RATES - STATE OF MISSOURI DIVISION OF
LABORSTANDARDS
3. RATE SCHEDULE SHEET
B. Contractor represents that it has examined and become familiar with the Contract
Documents in their entirety, that any and all ambiguities, inconsistencies, and conflicts observed
by Contractor have been called to the 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, Contractor shall notify City of
the conflict in writing and then shall comply with such provisions of the Contract Documents as
City directs.
ARTICLE VI
PAYMENTS
A. All payments under this Agreement shall be made only upon the approval of City
Engineer and City Administrator. City Engineer shall review each application for payment and
certify for payment such amounts as Architects determines are due Contractor.
B. The City, upon presentation of such certificate, shall prepare a check for the sum
certified to be due.
C. Neither City Administrator's nor City Engineer's approval certificate nor payment
made to Contractor shall constitute acceptance of any part of the Work. Contractor shall remain
obligated to perform all Work in accordance with the Contract Documents.
D. With each application for payment, Contractor shall submit a signed certificate of
receipt of prior payments and release of claims and rights in connection with prior payments, in a
form approved by the City.
E. Acceptance of payment by Contractor shall release the City from all further
obligations to Contractor, except as to such amounts, if any, Contractor has identified in its
application for final payment as claimed by Contractor. All claims not identified in the
4 WA 4985999.4
application for final payment are waived. Any payment, however final or otherwise, shall not
release the Contractor or its sureties from any obligations under the Contract Documents or the
Performance and Payment Bonds.
F. The City may withhold final or any other payment to Contractor on any reasonable
basis, including but not limited to the following:
1. Unsatisfactory job progress,
2. Defective Work,
3. Failure to make payments to subcontractors or suppliers,
4. Reasonable evidence that all Work cannot be completed for the unpaid
balance of the Contract Amount,
5. Damage by Contractor or subcontractors or suppliers to property of the City
or others,
6. Contractor's breach of this Agreement,or
7. Contractor's failure to provide requested documentation.
G. The Contractor shall, at the request of the City, furnish satisfactory evidence that all
obligations to subcontractors, laborers, workmen, mechanics, materialmen and furnishers of
machinery and parts thereof, equipment, tools and all supplies incurred in the furtherance of the
performance of the Work have been paid, discharged or waived. If Contractor does not pay
subcontractors or suppliers for labor and/or material properly provided, the City may, but shall
not be required to, pay subcontractors and suppliers directly. Any payments made to
subcontractors and suppliers shall be charged against the Contract Amount. The City shall not be
liable to Contractor for any such payments made in good faith. This provision shall not confer
any right upon any Subcontractor or supplier to seek payment directly from the City.
H. Notwithstanding any other provision for payment contained herein, in the event the
Missouri Department of Labor and Industrial Relations has determined that a violation of Section
292.675 RSMo has occurred and that a penalty shall be assessed, the City shall withhold and
retain all sums and amounts due and owning when making payments to Contractor under this
Agreement.
ARTICLE VII
CHANGES/CLAIMS
A. The City, without invalidating this Agreement, may at any time and without notice
to any surety, order additions to, deletions from, or other changes to the Work. Upon receipt of
such an order, in writing, 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 Amount
5 WA 4995999.4
or the time for performance of the Work, and Contractor shall be solely and completely
responsible for the acceptability to the City of the addition, deletion, or other change.
B. 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 pursuant to Change Order.
C. If a change to the Work causes an increase or decrease in the time required for
Contractor's performance, an equitable adjustment to the time for performance shall be made.
D. A change in the Contract Amount or the time for performance of the Work shall be
accomplished only by written Change Order, which shall state the increase or decrease, if any, in
the Contract 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 has been unjustly 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 under the Contract Documents or a change in the time for performance of the
Work.
E. Agreement on any Change Order shall constitute a final settlement of all matters
relating to the change in the Work that 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 time for performance of the Work.
F. If Contractor is delayed or interfered with at any time in the commencement or
prosecution of the Work by an act or neglect of the City, an employee, officer, or an architect or
engineer or separate contractor engaged by or on behalf of the 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 performance of the Work shall be
equitably extended,provided that Contractor gives notice as provided for in Paragraph G below.
G. Any claim by Contractor for additional time or money for the performance of the
Work, including but not limited to any claim based on or arising out of an addition to, deletion
from, or other change to the Work and/or delay to or interference with commencement or
prosecution of any of the Work, shall be submitted to the City's designated representative within
five (5) 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.
H. 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 VIII
INSURANCE
6 WA 4985999.4
A. Contractor shall, at all times during the performance of any of the Work, maintain
not less than the following insurance coverages and amounts:
1. COMMERCIAL GENERAL LIABILITY - Contractor shall provide coverage
for Contractor, the City, its employees and officers, the Industrial
Development Authority of the City of Riverside, Missouri, its employees and
officers 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 Work. Such
coverage shall name the City of Riverside, its employees and officers, the
Industrial Development Authority of the City of Riverside, Missouri, its
employees and officers as an additional insured and have not less than the
following limits:
a. Each occurrence: Not less$2,000,000.00
b. General aggregate: Not less$2,000,000.00
c. Products/completed operations aggregate $2,000,000.00
d. The following coverage shall be included:
• Blanket contractual liability
• Products/completed operations
• Personal/advertising injury
• Broad form property damage
• Independent contractors
• Explosion,Collapse,and Underground Damage
• Contractor's Pollution Liability
2. OWNERS PROTECTIVE LIABILITY — Contractor shall purchase, maintain
and deliver to the City for operations of the Contractor of any Subcontractor
in connection with execution of the agreement Owner's Protective Liability
insurance in the same minimum amounts as required for Commercial General
Liability Insurance above.
3. AUTOMOBILE LIABILITY - Contractor shall provide coverage for
Contractor, the City, its employees and officers, the Industrial Development
Authority of the City of Riverside, Missouri, its employees and officers
against claims for bodily injury 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, hired autos, and non-
owned autos. The coverage shall have not less than a combined single limit of
$2,000,000.00 for each accident.
4. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY - This
insurance shall protect Contractor against all claims under applicable state
7 WA 4985999.4
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 the City and
with a minimum financial rating not lower than "A-" in Best's Insurance 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 or automobile liability
coverage (including any umbrella or excess policy that provides any required general or
automobile 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, in form satisfactory to the City, (1) name
as additional insured the City, its employees, officers, and agents, and any architects, engineers,
or other design professionals engaged by or on behalf of the City, (2) name as additional insured
the Industrial Development Authority of The City of Riverside, Missouri, its employees and
officers, and (3) provide that it is primary to any other insurance maintained by any additional
insureds, 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 (10) years after the date of final acceptance by the City of all of Contractor's Work.
D. All policies and certificates of insurance shall provide no less than thirty (30)days'
prior written notice to the City in the event of cancellation,expiration,non-renewal, alteration,or
reduction (including but not limited to reduction by paid claims) of coverage or limits contained
in the policy or evidenced by the certificate of insurance. Contractor shall furnish the City a
certificate or certificates and copies of policies, all satisfactory to the City, evidencing that
Contractor has all the required insurance and is in compliance with this Article. The certificate or
certificates and copies of policies shall be delivered to the City's designated representative not
less than seven (7) days before Contractor first performs any of the Work. All policies except
Workers' Compensation and Employer's Liability shall contain a waiver of subrogation in favor
of the City, its employees, officers, and agents, and architects, engineers, or other design
professionals engaged by or on behalf of the City and Industrial Development Authority of City
of Riverside,Missouri.
E. Contractor also shall maintain any additional insurance coverages and any higher
limits provided for elsewhere in the Contract Documents and shall furnish the City any
additional insurance documentation provided for elsewhere in the Contract Documents.
8 WA 4985999.4
F. 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. Certificates and copies of
policies, satisfactory to the City, evidencing the required insurance and compliance with this
Article shall be delivered to City's designated representative not less than seven (7) days before
the Subcontractor first performs any of the Work.
G. If Contractor is a transient employer as defined in Section 285.230 RSMo,
Contractor must post in a prominent and easily accessible place at the work site a clearly legible
copy of the following: (1) the notice of registration for employer withholding issued to such
transient employer by the Director of Revenue; (2) proof of coverage for workers' compensation
insurance or self-insurance signed by the transient employer and verified by the Department of
Revenue through the records of the Division of Workers' Compensation; and (3) the notice of
registration for unemployment insurance issued to such transient employer by the Division of
Employment Security. Any transient employer failing to comply with these requirements shall,
under Section 285.234 RSMo be liable for a penalty of$500 per day until the notice required by
this Paragraph are posted as required by law.
ARTICLE IX
INDEMNITY
A. To the fullest extent permitted by law, Contractor shall defend, indemnify,and hold
harmless the City, its employees, officers, and agents, and any architects, engineers, or other
design professionals engaged by or on behalf of the City and the Industrial Development
Authority of the City of Riverside, Missouri, their officers and employees, 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 caused or allegedly
caused by the negligent or willful 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 indemnity that would otherwise exist as to a party or person
as set forth in this Agreement.
B. In claims against any person or entity indemnified herein 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 shall not be limited by a limitation
on the amount or type of damages, compensation, or benefits payable by or for Contractor or a
Subcontractor or supplier under workers' compensation acts, disability benefit acts, or other
employee benefit acts.
9 WA 4985999.4
ARTICLE X
COVENANT AGAINST LOBBYING AND UNDUE INFLUENCE
A. Contractor represents and warrants 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 has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, 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, the City shall have the right to void this Agreement 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.
B. Contractor 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 officer, 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 the 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.
C. No official of the City who is authorized in such capacity and on behalf of the City
to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting, or
approving any architectural, engineering, inspection, construction, or material supply contract or
any subcontract in connection with the construction of the project, shall become directly or
indirectly interested personally in this Agreement or in any part hereof. No officer, employee,
architect, attorney, engineer, or inspector of or for the owner who is authorized in such capacity
and on behalf of the City to exercise any legislative, executive, supervisory, or other similar
functions in connection with the construction of the project, shall become directly or indirectly
interested personally in this Agreement or in any part thereof, any material supply contract,
subcontract, insurance contract,or any other contract pertaining to the project.
10
WA 4985999.4
ARTICLE XI
RECORDS REGARDING PAYMENT
For a period of at least two (2) years after final payment to Contractor, 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 the City. For 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
subcontractors 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, payroll records,
canceled checks, orders, and invoices pertaining to the City's account. The City's 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 XII
NOTICES
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 the City: Travis Hoover,City F,ngineer
2950 N.W. Vivion Road
Riverside, MO 64150
Telephone(816)372-9004
For Contractor:
B. Any notice required by the Contract Documents to be given in writing or that either
the City or Contractor wishes to give to the other in writing shall be signed by or on behalf of the
party giving notice. The notice shall be deemed to have been completed when sent by certified or
registered mail to the other party at the address set forth herein, or delivered in person to said
party or their authorized representative.
C. Contractor's designated representative 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
DEFAULT AND TERMINATION
I I WA 4985999.4
A. If Contractor fails to comply, becomes unable to comply, or with reasonable
probability (as determined solely by the City) will become unable to comply with any of
Contractor's obligations under the Contract Documents, including but not limited to(1)failure at
any time to furnish sufficient labor 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 the City or any others on the Project, (4)
abandonment by Contractor of all or any part of the Work, or (5) bankruptcy, insolvency or
general assignment for the benefit of creditors by Contractor, Contractor shall be in default, and
if the default is not corrected to the City's satisfaction within seventy-two (72) hours of delivery
of a written notice to Contractor to correct such default, the City may, in addition to any other
right or remedy the City may have, terminate the services of the Contractor and take possession
of the project and of all materials, equipment, tools, construction equipment and machinery
thereon owned by the Contractor and finish the work by whatever method the City may deem
expedient to correct the default,at Contractor's expense. In such case the Contractor shall not be
entitled to receive any further payment until the Work is finished. If such costs exceed the
unpaid balance due to Contractor, the Contractor will pay the difference to the City.
B. If City exercises its right to take over and complete any part or all of the Work, the
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 the City and may employ Contractor's employees or former employees, all without any
liability to Contractor.
C. Contractor shall be liable for and shall pay to the City all costs and expenses of
whatsoever nature incurred by the 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 the City all
charges, liabilities, fines, penalties, losses, damages, and claims sustained by or assessed against
the City as a result of any delay or disruption resulting from any default by Contractor. The total
amount of such costs, expenses, charges, liabilities, fines, penalties, losses, damages, and claims
may be deducted by the City from the amount, if any, otherwise due Contractor, and Contractor
shall pay the City the full amount of any excess of such total over the amount otherwise due
Contractor.
D. No right or remedy conferred upon or reserved to the City by the Contract
Documents is exclusive of any other right or remedy provided or permitted in the Contract
Documents 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 the City of any right or remedy shall relieve Contractor from full and absolute
responsibility for all of Contractor's obligations under the Contract Documents.
E. No failure or delay of the City to give notice to correct any default of Contractor or
to exercise any of the City's rights or remedies shall waive or excuse the default, and the City
12 WA 49859994
shall remain free to pursue all rights and remedies. No failure of the City to insist, in any one or
more 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 the City's right to
insist upon strict performance of the obligation in any future instance.
F. If through no act or fault of the Contractor, the Work is suspended for a period of
more than ninety (90)days by the City or under an order of court or other public authority,or the
City fails to act on any request for payment within thirty (30) days after it is submitted, or the
City fails to pay the Contractor substantially the sum approved by the Engineer and
Administrator, then the Contractor may after ten (10)days from delivery of written notice to the
City to terminate the Agreement and recover from the City payment for all work executed.
G. The City, without terminating the service of the Contractor or written notice to the
Surety, through the Project Manager may withhold, without prejudice to the rights of the City
under the terms of the Agreement,or on account of subsequently discovered evidence,nullify the
whole or part of any approved partial payment estimate to such extent as may be necessary to
protect the City from loss on account of(1) defective work not remedied, (2) claims filed or
reasonable evidence indicating probably filing of claims, (3) failure of Contractor to make
payments property to Subcontractors or for material or labor, (4) a reasonable doubt that the
Work can be completed for the balance then unpaid, (5) damages to another contractor, or (6)
performance of work in violation of the terms of the Contract Documents.
ARTICLE XIV
TERMINATION FOR CONVENIENCE
Notwithstanding anything contained herein to the contrary, the 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 the City's own convenience by giving written notice to Contractor.
Upon receipt of notice of termination for City's convenience, Contractor shall, to the extent
directed by the City, stop work and tum over to the City or the City's designee materials and
equipment purchased for the Work. The City shall pay Contractor, in accordance with the
Contract Documents, for only so much of the Work as is actually performed as of the termination
for convenience. The City shall not he obligated to Contractor for any further payment, including
but not limited to prospective overhead or profit on unperformed work. If a termination by the
City of Contractor's right to proceed on the ground of default by Contractor is determined later
to have been improper, the termination automatically shall be converted to a termination for the
City's convenience, and the City's obligation to Contractor shall be limited to payment to
Contractor as provided in this Article.
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 U.S. Army Corps of Engineers
guidelines, rules, regulations, and criteria for work within or adjacent to a flood control project
13 WA 4985999.4
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 submitted by Contractor to the City, Contractor
shall include (a) a signed statement, in form acceptable to the 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 hours 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 construed in accordance with the laws of
the State of Missouri.
ARTICLE XVI
LABOR STANDARDS PROVISIONS
A. MISSOURI PREVAILING WAGE LAW. Not less than the prevailing hourly rate
of wages established by the Missouri Department of Labor and Industrial Relations Division of
Labor Standards shall be paid to all workers performing work under the Agreement. An
Affidavit of Compliance with the Prevailing Wage Law as set forth in Exhibit B shall be
completed by Contractor and every Subcontractor employed on the Project prior to final
payment. The Contractor will forfeit a penalty to the City of$100 per day (or portion of a day)
for each worker that is paid less than the prevailing rate for any work done under the contract by
the Contractor or by any Subcontractor.
B. EXCESSIVE UNEMPLOYMENT. During periods of excessive unemployment
(any month immediately following two consecutive calendar months during which the level of
unemployment in the state has exceeded five percent (5%) as measured by the United States
Bureau of Labor Statistics) only Missouri labors (persons who have resided in Missouri for at
least thirty days and intend to become or remain Missouri residents) and laborers from non-
restrictive states(persons who are residents of a state which has not enacted state laws restricting
Missouri laborers from working on public works projects in that state, as determined by the
Labor and Industrial Relations Commission), may be employed under the contract, except that
other laborers may be used when Missouri laborers or laborers from nonrestrictive states are not
available, or are incapable of performing the particular type of work involved, if so certified by
the Contractor and approved by the City.
C. UNDERPAYMENT OF WAGES. In case of underpayment of wages by the
Contractor or by any subcontractors to laborers or mechanics employed by the Contractor or
Subcontractor upon the work covered by this Agreement, the City, in addition to such other
rights as may be afforded it under this Agreement shall withhold from the Contractor, out of any
payments due the Contractor, so much thereof as the City may consider necessary to pay such
laborers or mechanics the full amount of wages required by this Agreement. The amount so
14 WA 4985999.4
withheld may be disbursed by the City, for and on account of the Contractor or the Subcontractor
(as may be appropriate), to the respective laborers or mechanics to whom the same is due or on
their behalf to plans, funds, or programs for any type of fringe benefit prescribed in the
applicable wage determination.
D. LIMITATIONS ON EMPLOYMENT. No person under the age of sixteen (16)
years and no person who, at the time, is serving sentence in a penal or correctional institution
shall be employed on the work covered by this Agreement.
ARTICLE XVII
EQUAL EMPLOYMENT OPPORTUNITY
The Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. The Contractor will take affirmative
action to ensure that applicants and employees are treated during employment, without regard to
their race, color, religion, sex, or national origin. Such action shall include, but not be limited to,
employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
ARTICLE XVIII
SUBCONTRACTS,ASSIGNMENT,OR TRANSFER
A. Except with the prior written consent of the 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. The City's consent to any assignment,
subcontract, or purchase order shall not relieve Contractor from any obligation under the
Contract Documents, nor shall it create any obligation from the 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 the City is an intended third-party beneficiary of the
subcontract or purchase order.
C. The Contractor shall be fully responsible to the City for the acts and omissions of its
Subcontractors, and of person either directly or indirectly employed by them, as the Contractor is
for the acts and omissions of person directly employed by it.
D. The Contractor shall cause appropriate provisions to be inserted in all subcontracts
relative to the work to bind Subcontractors to the Contractor by the terms of the Contract
Documents insofar as applicable to the work of Subcontractors and give the Contractor the same
power as regards terminating any Subcontract that the City may exercise over the Contractor
under any provision of the Contract Documents. Nothing contained in this Agreement shall
create any contractual relation between any Subcontractor and the City.
E. Each subcontract or purchase order issued by Contractor for any of the Work shall
provide that it is freely assignable by Contractor to the City. Contractor hereby assigns to the
15 WA 4985999.4
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 the City in writing
and only as to the specific subcontract(s) and/or purchase order(s) that the City designates-in the
writing. This assignment may be accepted by the City at any time, whether before or after final
payment to Contractor, and may not he withdrawn by Contractor without the City's written
consent.
ARTICLE XIX
ACCESS TO SITE/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.
B. Representatives of the City may inspect or review any Work performed by
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 the City at its request.
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 equipment, tools,
machinery, waste, and surplus materials. Contractor shall make provisions to minimize and
confine dust and debris resulting from construction activities_ If Contractor fails to comply with
cleanup duties within twenty-four (24) hours after written notification from the City of non-
compliance, the City may implement cleanup measures without further notice and deduct the
cost from any amounts due or to become due Contractor.
ARTICLE XX
COMPETENCE
Contractor represents and warrants that it maintains all necessary licenses, registration,
competence, and experience to perform all the Work.
ARTICLE XXI
WARRANTY
A. Contractor shall exercise high professional skill, care, and diligence in the
performance of the Work, and shall carry out its responsibilities in accordance with customarily
accepted good professional practices. The Contractor warrants and guarantees that the Fill Dirt
conforms with the plans and specifications and that it is free from"Hazardous Substance"as that
term is defined herein. "Hazardous Substance" shall mean any substance, chemical, compound,
product, solid, gas, liquid, odor, heat, sound, vibration, radiation, waste, byproduct, pollutant,
contaminant, or material which is (A) regulated, defined or designated as a hazardous substance,
hazardous waste, extremely or imminently hazardous, carcinogenic, toxic, deleterious, caustic, a
pollutant, a contaminant, or a source of contamination pursuant to environmental laws, (B)
subject to investigation, monitoring, reporting or remediation by any government authority
16 WA 4995999A
(local, state, municipal, territorial or federal), (C) asbestos, polychlorinated biphenyls and
petroleum and petroleum products (including crude oil or any fraction thereof) or (D) natural
gas, synthetic gas and any mixtures thereof. Contractor shall promptly make such corrections as
may be necessary be reason of such defects including the repair of any other damages that were
caused by defects in the work, at its own expense. The City will give notice of observed defects
with reasonable promptness. In the event that the Contractor fails to make such repairs,
adjustments or other work that may be necessary by such defects, the City may do so and charge
the Contractor the cost thereby incurred. In emergency where, in the judgment of the City delay
would cause serious loss or damage, repairs and replacement of defects in the work and damage
caused by defects may be made without notice being sent to the Contractor, and the Contractor
shall pay the cost thereof. The Performance Bond shall remain in full force and effect through
the warranty period of one year after complete. Neither final payment, Engineer's Final
Certificate, nor any other provision in the Contract Documents shall affect Contractor's
obligation to complete the Work free of defects in workmanship and material.
B. 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.
C. This Article 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, including but not limited to, a breach of warranty
concerning Hazardous Substances.
ARTICLE XXII
STORAGE OF 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 XXIII
TAXES
A Missouri Sales Tax Project Exemption Certificate (Missouri Department of Revenue
Form 5060) will be provided by City for the purchase of any materials or personal property
incorporated into or consumed in the construction project, pursuant to RSMo 144.062. The
Contractor will pay all other sales, consumer, use and other similar taxes required by the State of
Missouri or other taxing jurisdiction.
ARTICLE XXIV
SAFETY
A. Contractor shall be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with performance of the Work and shall take reasonable
17 WA 4985999.4
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, shrubs,
lawns, walks, pavements, roadways, structures, and utilities not designated for removal,
relocation,or replacement in the course of construction.
13. Contractor shall give notices required by and comply strictly with applicable laws,
ordinances, rules, regulations, orders, and the like bearing on safety of persons or property or
their protection from damage, injury, or loss. The Contractor will erect and maintain, as required
by the conditions and progress of the work, all necessary safeguards for safety and protections.
The Contractor will notify owners of adjacent utilities when prosecution of the Work may affect
them. The Contractor will remedy all damage, injury or loss to any property caused directly or
indirectly, in whole or part, by the Contractor, any Subcontractor or anyone directly or indirectly
employed by any of them or anyone whose acts any of them may be liable.
C. The Contractor shall exercise proper precaution at all times for the protection of
persons and property and shall be responsible for all damages to persons or property, either on or
off the site, which occur as a result of his prosecution of the work. The safety provisions of
applicable laws and building and construction codes shall be observed and the Contractor shall
take or cause to be taken, such additional safety and health measures as the City may determine
to be reasonably necessary.
D. Pursuant to Section 292.675 RSMo, Contractor shall provide a ten (10) hour
Occupational Safety and Health Administration (OSHA) construction safety program for all
employees who will be on-site at the Project. The construction safety program shall include a
course in construction safety and health that is approved by OSHA or a similar program
approved by the Missouri Department of Labor and Industrial Relations which is at least as
stringent as an approved OSHA program as required by Section 292.675 RSMo. Contractor
shall require its on-site employees to complete a construction safety program within sixty (60)
days after the date work on the project commences. Contractor acknowledges and agrees that
any of Contractor's employees found on the Project site without documentation of the successfitl
completion of a construction safety program shall be required to produce such documentation
within twenty (20) days, or will be subject to removal from the Project_ Contractor shall require
all of its Subcontractors to comply with the requirements of this Paragraph and Section 292.675
RSMo.
Contractor shall forfeit to the City as a penalty two thousand rive hundred dollars
($2,500.00), plus one hundred dollars ($100.00) for each on-site employee employed by
Contractor or its Subcontractor, for each calendar day, or portion thereof, such on-site employee
is employed without the construction safety training required herein. The penalty described in
this Paragraph shall not begin to accrue until the time periods herein have elapsed. Violations of
this requirement and imposition of the penalty described in this Paragraph shall be investigated
and determined by the Missouri Department of Labor and Industrial Relations.
18 WA 4985999.4
E. If the City deems any part of the Work or the Project site unsafe, the City, without
assuming responsibility for Contractor's safety program, may require Contractor to stop
performance of the Work or take corrective measures satisfactory to the City or both. If
Contractor does not adopt corrective measures, the City may perform them or have them
performed and deduct their cost from the Contract Amount. Contractor shall make no claim for
damages, for an increase in the Contract Amount, or for a change in the time for performance of
the Work based on Contractor's compliance with the City's reasonable request.
ARTICLE XXV
AUTHORIZED EMPLOYEES
Contractor acknowledges that Section 285.530 RSMo prohibits any business entity or
employer from knowingly employing, hiring for employment, or continuing to employ an
unauthorized alien to perforin work within the State of Missouri. Contractor therefore covenants
that it is not knowingly in violation of subsection 1 of Section 285.530 RSMo,and that it will not
knowingly employ, hire for employment, or continue to employ any unauthorized aliens to
perform work on the Project, and that its employees are lawfully eligible to work in the United
States.
ARTICLE XXVI
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 the City for any
purpose.
ARTICLE XXII
CONFLICT
Contractor shall promptly upon discovery notify the City of any conflict, ambiguity or
inconsistency in the Contract Documents, or between any Contract Document and actual field
conditions, and the City shall resolve such conflict, ambiguity or inconsistency in its sole
discretion.
ARTICLE XXIII
SEVERABILITY
Should any specific provision of this Agreement or other Contract Documents be found
to be unenforceable, the remaining provisions shall remain in full force and effect.
ARTICLE XXIX
NO PRESUMPTION AGAINST THE DRAFTER
No presumption or inference against the City shall be made because of the City's
preparation of this Agreement or other Contract Documents.
19 WA 4985999A
ARTICLE XXX
DISPUTES/ATTORNEY FEES
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, the City and
Contractor shall first try 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 XXXI
TITLES
The titles given to the Articles in this Agreement are for ease 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 XXXII
PROVISIONS REQUIRED BY LAW DEEMED INSERTED
Each and every provision of law and clause required by law to be inserted in this
Agreement shall be deemed to be inserted herein and the contract shall be read and enforced as
though it were included herein, and if through mistake or otherwise any such provision is not
inserted, or is not correctly inserted, then upon the application of either party the contract shall
forthwith by physically amended to make such insertion or correction. All such laws, orders and
regulations are applicable to this Project and are made a part hereof by reference.
ARTICLE XXXIII
THIRD PARTY BENEFICIARY
Contractor expressly acknowledges The Industrial Development Authority of the City
of Riverside, Missouri is a third party beneficiary under the Agreement and all other Contract
Documents. The Industrial Development Authority of the City of Riverside, Missouri shall have
the right to enforce the provisions of this Agreement or seek any remedies available against the
contractor and any and all subcontractors should any party fail to comply with the terms hereof
Except as set forth in this Article, this Agreement does not and is not intended to confer any
rights or remedies upon any person other than expressly stated herein. Contractor shall not have
any rights against The Industrial Development Authority of the City of Riverside, Missouri.
ARTICLE XXXIV
ENTIRE AGREEMENT
20 WA 49959994
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, whether oral or written, are of no further force or effect. Subject to Article VII 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
by City and Contractor.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
21 WA 4985999.4
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by
their authorized representatives.
THE CITY OF RIVERSIDE, MISSOURI
By:
Name:
Title:
ATTESTED:
City Clerk
CONTRACTOR:
HECO, INC. D/B/A HOUSTON
EXCAVATING & DEMOLITION
By:
Name:
Title:
22 WA 4985999.4
EXHIBIT A
RATE SCHEDULE FOR STRIPPING AND COMPACTING
23 WA 4985999.4
HOUSTON EXCAVATING AND DEMOLITION EQUIPMENT
RENTAL RATES AS OF MARCH 2014
Types of Equipment Per Hour
Caterpillar D&K Dozer $190
Caterpillar 977L Loader $165
Caterpillar 963 Loader $165
Caterpillar 963B Loader $165
Caterpillar 627E Scraper $230
Caterpillar 6278 Scraper $220
Caterpillar 613 Paddle Scraper $165
Caterpillar 815 Compactor $165
Caterpillar 320 Track Hoe $175
Caterpillar 330 Track Hoe $210
Hamm Vibratory Compactor $165
Kenworth Tractor w/Low Boy Trailer $265 per move + $140 hour
Peterbuilt Tractor w/41' Push Out Trailer $145
Kenworth Tractor w/Barrel End Dump $100
Air Curtail Tree Burner $90
Komatsu 220 Track Hoe and Breaker $275
Komatsu 220 Track Hoe $215
Cat 320 Track Hoe and Breaker $275
Skid Steer $115
Broom $125
304-Mini Excavator $125
Single Axle Dump $85
(NON-PREVAILING WAGE RATE)
EXHIBIT B
AFFIDAVIT OF COMPLIANCE WITH THE PREVAILING WAGE LAW
I, upon being duly sworn upon my oath state that:
(1)1 am the of
(2)all requirements of Section 290.210 to 290.340. RSMo, pertaining to the payment of wages to
workers employed on public works projects have been fully satisfied with regard to this Contractor's
work on PROJECT;
(3) 1 have reviewed and am familiar with the labor standards provisions and prevailing wage rules
established by the Missouri Department of Labor and Industrial Relations Division of Labor Standards;
(4) based upon my knowledge of these rules, including all occupational titles set out in the
applicable regulations, I have completed full and accurate records clearly indicating:
(a) the names, occupations, and crafts of every worker employed by this Company in
connection with this Project together with an accurate record of the number of hours worked by
each worker and the actual wages paid for each class or type of work performed,
(b)the payroll deductions that have been made for each worker, and
(c)the amounts paid to provide fringe benefits, if any, for each worker;
(5) the amounts paid to provide fringe benefits, if any, were irrevocable paid to a trustee or to a
third party pursuant to a fund, plan,or program on behalf of the workers;
(6) these payroll records are kept and have been provided for inspection to the authorized
representative of the City and will be available,as often as may he necessary,to such City and such other
regulatory agencies as may be deemed necessary;
(7) such records shall not be destroyed or removed from the State of Missouri for one (1) year
following the completion of Contractor's work on this Project;
(8) when in effect, the requirements of Sections 290.550 through 290.580 RSMo. Pertaining to
excessive unemployment were fully satisfied;and
(9) there has been no exception to the full and complete compliance with the provisions and
requirements of the wage orders applicable to the Agreement and Contract Documents.
The matters stated herein are We to the best of my information, knowledge, and belief. I
acknowledge that the falsification of any information set out herein may subject me to criminal
prosecution.
Signature
Printed Name
Subscribed and swom to me this day of 2014.
Notary Public
My Commission expires:
24 WA 4995999.4
EXHIBIT C
CONTRACT EXTENSION
5 WA 6911494.1
ACCESS AND SUPPLY AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND CONTRACTOR
THIS AGREEMENT, made and entered into as of the day of May, 2015 (the
"Effective Date"), by and between The City of Riverside, Missouri ("City") and Heco, Inc., a
Missouri corporation d/b/a Houston Excavating & Demolition ("Contractor"), (collectively the
"Parties").
WHEREAS, Contractor wants locations to dispose of Fill Dirt from surrounding projects;
WHEREAS, City has a need for Fill Dirt on several of its Projects;
WHEREAS, Contractor represents that Contractor is equipped, competent, and able to
supply Fill Dirt, in accordance with the Agreement; and
WHEREAS, the Parties entered into an Access and Supply Agreement May 8, 2014,
("Agreement") attached hereto as Exhibit A and incorporated herein; and
WHEREAS, the Parties agree it would be mutually beneficial to both Contractor and City
to continue to work together and have Contractor's Fill Dirt supplied to City's Projects.
NOW THEREFORE, in consideration of the mutual covenants and consideration herein
contained, IT IS HEREBY AGREED by City and Contractor as follows:
ARTICLE I
1. The Agreement, is hereby extended by agreement of the Parties and as authorized by
the Board of Aldermen, to May 7, 2015.
2. The amount to be expended shall not exceed One Hundred Twenty Thousand and
00/100 Dollars, less what has been spent since execution of the original Agreement.
ARTICLE 11
ENTIRE 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, whether oral or written, are of no further force or effect. Subject to Article VII of
the original 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
by City and Contractor.
WA 6911478.1
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives.
THE CITY OF RIVERSIDE, MISSOURI
By: OG
Name: A t[72 Sty
Title:
CONTRACTOR:
HECO, INC. D/B/A HOUSTON
EXCAVATING & DEMOLITION
By: L_
J3 4
Name: ,._,
Title: ou,,N�4r-
2 WA 6911478.1
ACCESS AND SUPPLY AGREEMENT
BETWEEN THE CITY OF RIVERSIDE MISSOURI AND CONTRACTOR
101
THIS AGREEMENT, made and entered into as of the r day of
2014 (the "Effective Date"), by and between The City of Riverside, Missouri ("City") arW Heco,
Inc., a Missouri corporation d/b/a Houston Excavating&Demolition("Contractor").
WHEREAS, Contractor wants locations to dispose of Fill Dirt from surrounding projects;
WHEREAS, City has a need for Fill Dirt on several of its Projects;
WHEREAS, Contractor represents that Contractor is equipped, competent, and able to
supply Fill Dirt, in accordance with this Agreement;and
WHEREAS,it would be mutually beneficial to both Contractor and City to work together
and have Contractor's Fill Dirt supplied to City's Projects.
NOW THEREFORE, in consideration of the mutual covenants and consideration herein
contained,IT IS HEREBY AGREED by City and Contractor as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement and the other Contract Documents, the following words and
phrases shall mean:
A. "City"means the City of Riverside,Missouri.
B. "City Administrator" means that person designated by the City as the City
Administrator.
C. "City Engineer"means: Travis Hoover, City Engineer.
D. "Contractor"means Heco, Inc., a Missouri corporation d/b/a Houston Excavating&
Demolition.
E. "Fill Dirt" means the soil removed by Contractor that it warrants is appropriate for
placement on City's property.
F. "Fill Location"means the location designated by the City for the deposit of the Fill
Dirt.
G. "Project Manager" means the following project manager designated by the City to
manage the project on behalf of the City: Travis Hoover.
WA 4985999.6
H. "Subcontractor" means a person, firm or corporation supplying labor and materials
or only labor for the work at the site of the project for, and under separate contract or agreement
with the Contractor.
I. "Work" or "Work on the Project" means the Work to be performed at the location
of the project as defined herein.
J. "Written Notice" means any notice delivered hereunder and the service thereof
shall be deemed completed when sent by certified or registered mail to the other party at the
address set forth herein, or delivered in person to said party or their authorized representative on
the work.
ARTICLE II
THE PROJECT AND THE WORK
A. The Parties agree that Contractor will be allowed to deposit Fill Dirt at mutually
agreeable locations on City's Projects. The Parties agree that Contractor will strip the ground
prior to depositing Fill Dirt. Contractor will also compact the dirt as set forth herein.
B. The City Engineer shall act as the City's representative during the construction
period and shall decide questions which may arise as the quality and acceptability of materials
furnished and work performed, and shall interpret the intent of the contract documents in a fair
and unbiased manner. The City Engineer may recommend, but cannot approve Change Orders.
C. Contractor will alert City Engineer when it is: (1) stripping the ground; (2)
delivering dirt; and/or(3) compacting the dirt. The purpose of this notification is to allow City
Engineer to be available to review the material and/or methods of work. Contractor's timely
notice to City Engineer is a requirement and condition precedent to payment.
ARTICLE III
CONTRACT AMOUNT AND INITIAL TERM
A. The parties acknowledge that Contractor's only compensation("Contract Amount")
on this Project will be hourly compensation for the stripping of the ground and compacting of the
dirt. A schedule of values for Contractor's hourly rates is attached hereto as Exhibit A.
B. Contractor shall submit to City Engineer weekly time sheets evidencing the hours
worked and rates claimed. City Engineer will approve these amounts and submit them to the
City for payment.
C. Pursuant to Ordinance 1294, approved and passed by the City's Board of Aldermen
on April 1, 2014, the initial term of this Agreement shall not extend beyond one (1)year from the
Effective Date, and the Contract Amount to be paid by the City hereunder shall not exceed One
Hundred Twenty Thousand Dollars ($120,000.00) unless authority to extend such timeframe
and/or exceed such costs has been granted by the Board of Aldermen pursuant to further
ordinance or resolution. Contractor acknowledges and accepts these limitations to the initial
2 WA 4985999.6
Contract Amount and term of this Agreement and agrees that it will not be entitled to
compensation for services performed that extend beyond or exceed these parameters unless and
until the City's Board of Aldermen has authorized an extension or expansion of same.
ARTICLE IV
PROGRESS OF WORK/SUBMITTALS
A. COMMENCEMENT OF WORK. Contractor shall commence performance of the
Work on the date indicated in a written notice ("Notice to Proceed") that shall be given by the
City to Contractor.
B. SUSPENSION OR TERMINATION OF WORK. The City may suspend or
terminate the work or any portion thereof by written notice to the Contractor.
C. MATERIALS, SERVICES AND FACILITIES. It is understood that except as
otherwise specifically stated in the Contract Documents, the Contractor shall provide and pay for
all materials, labor, tools, equipment, water, light, power, transportation, supervision, temporary
construction of any nature, and all other services and facilities of any nature whatsoever
necessary to execute, complete, and deliver the Fill Dirt.
D. INSPECTION AND TESTING OF MATERIALS. All Fill Dirt, materials and
equipment used in the construction of the Project shall be subject to adequate inspection and
testing in accordance with generally accepted standards, as required and defined in the Contract
Documents. The City Engineer and the City's representatives will at all times have access to the
work. In addition, authorized representatives and agents of any participating Federal or State
agency shall be permitted to inspect all work, materials, payrolls, records or personnel, invoices
of materials and other relevant data and records.
E. CORRECTION OF WORK. The Contractor shall promptly remove from the
premises all Fill Dirt rejected by the City Engineer. All removal and replacement work shall be
done at the Contractor's expense. If the Contractor does not take action to remove such rejected
work within ten (10) days after receipt of written notice, the City may remove such work and
store the materials at the expense of the Contractor.
F. SUBSURFACE CONDITIONS. The Contractor has the responsibility to become
familiar with the Project site and the conditions under which the Work will be performed during
the construction period prior to entering into this Agreement. The Contractor shall promptly, and
before such conditions are disturbed (excepting an emergency), notify the City by written notice
of subsurface or latent physical conditions at the site differing materially from those indicated in
the Contract Documents. Contractor shall also be required to notify the City of any unknown
physical conditions at the site of unusual nature.
G. SUPERVISION BY CONTRACTOR. The Contractor will supervise and direct the
work. The Contractor will be solely responsible for the means, methods, techniques, sequences
and procedures of construction. The Contractor will employ and maintain on the work a qualified
supervisor or superintendent who shall have been designated in writing by the Contractor or the
3 WA 4985999.6
Contractor's representative at the site. The supervisor shall have full authority to act on behalf of
the Contractor and all communications given to the supervisor shall be a binding as if given to
the Contractor. The supervisor shall be present on the site at all times as required to perform
adequate supervision and coordination of the work.
ARTICLE V
CONTRACT DOCUMENTS
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 the City and Contractor, and are the"Contract Documents":
1. AGREEMENT BETWEEN THE CITY AND CONTRACTOR
2. PREVAILING WAGE RATES - STATE OF MISSOURI DIVISION OF
LABORSTANDARDS
3. RATE SCHEDULE SHEET
B. Contractor represents that it has examined and become familiar with the Contract
Documents in their entirety, that any and all ambiguities, inconsistencies, and conflicts observed
by Contractor have been called to the 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, Contractor shall notify City of
the conflict in writing and then shall comply with such provisions of the Contract Documents as
City directs.
ARTICLE VI
PAYMENTS
A. All payments under this Agreement shall be made only upon the approval of City
Engineer and City Administrator. City Engineer shall review each application for payment and
certify for payment such amounts as Architects determines are due Contractor.
B. The City, upon presentation of such certificate, shall prepare a check for the sum
certified to be due.
C. Neither City Administrator's nor City Engineer's approval certificate nor payment
made to Contractor shall constitute acceptance of any part of the Work. Contractor shall remain
obligated to perform all Work in accordance with the Contract Documents.
D. With each application for payment, Contractor shall submit a signed certificate of
receipt of prior payments and release of claims and rights in connection with prior payments, in a
form approved by the City.
4 WA 4965999.6
E. Acceptance of payment by Contractor shall release the City from all further
obligations to Contractor, except as to such amounts, if any, Contractor has identified in its
application for final payment as claimed by Contractor. All claims not identified in the
application for final payment are waived. Any payment, however final or otherwise, shall not
release the Contractor or its sureties from any obligations under the Contract Documents.
F. The City may withhold final or any other payment to Contractor on any reasonable
basis, including but not limited to the following:
1. Unsatisfactory job progress,
2. Defective Work,
3. Failure to make payments to subcontractors or suppliers,
4. Reasonable evidence that all Work cannot be completed for the unpaid
balance of the Contract Amount,
5. Damage by Contractor or subcontractors or suppliers to property of the City
or others,
6. Contractor's breach of this Agreement, or
7. Contractor's failure to provide requested documentation.
G. The Contractor shall, at the request of the City, furnish satisfactory evidence that all
obligations to subcontractors, laborers, workmen, mechanics, materialmen and furnishers of
machinery and parts thereof, equipment, tools and all supplies incurred in the furtherance of the
performance of the Work have been paid, discharged or waived. If Contractor does not pay
subcontractors or suppliers for labor and/or material properly provided, the City may, but shall
not be required to, pay subcontractors and suppliers directly. Any payments made to
subcontractors and suppliers shall be charged against the Contract Amount. The City shall not be
liable to Contractor for any such payments made in good faith. This provision shall not confer
any right upon any Subcontractor or supplier to seek payment directly from the City.
H. Notwithstanding any other provision for payment contained herein, in the event the
Missouri Department of Labor and Industrial Relations has determined that a violation of Section
292.675 RSMo has occurred and that a penalty shall be assessed, the City shall withhold and
retain all sums and amounts due and owning when making payments to Contractor under this
Agreement.
ARTICLE VII
CHANGES/CLAIMS
A. The City, without invalidating this Agreement, may at any time and without notice
to any surety, order additions to, deletions from, or other changes to the Work. Upon receipt of
such an order, in writing, 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,
5 WA 4985999.6
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 Amount
or the time for performance of the Work, and Contractor shall be solely and completely
responsible for the acceptability to the City of the addition,deletion, or other change.
B. 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 pursuant to Change Order.
C. If a change to the Work causes an increase or decrease in the time required for
Contractor's performance, an equitable adjustment to the time for performance shall be made.
D. A change in the Contract Amount or the time for performance of the Work shall be
accomplished only by written Change Order, which shall state the increase or decrease, if any, in
the Contract 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 has been unjustly 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 under the Contract Documents or a change in the time for performance of the
Work.
E. Agreement on any Change Order shall constitute a final settlement of all matters
relating to the change in the Work that 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 time for performance of the Work.
F. If Contractor is delayed or interfered with at any time in the commencement or
prosecution of the Work by an act or neglect of the City, an employee, officer, or an architect or
engineer or separate contractor engaged by or on behalf of the 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 performance of the Work shall be
equitably extended,provided that Contractor gives notice as provided for in Paragraph G below.
G. Any claim by Contractor for additional time or money for the performance of the
Work, including but not limited to any claim based on or arising out of an addition to, deletion
from, or other change to the Work and/or delay to or interference with commencement or
prosecution of any of the Work, shall be submitted to the City's designated representative within
five (5) 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.
K 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 VIII
INSURANCE
6 WA 4985999.6
A. Contractor shall, at all times during the performance of any of the Work, maintain
not less than the following insurance coverages and amounts:
1. COMMERCIAL GENERAL LIABILITY - Contractor shall provide coverage
for Contractor, the City, its employees and officers, the Industrial
Development Authority of the City of Riverside, Missouri, its employees and
officers 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 Work. Such
coverage shall name the City of Riverside, its employees and officers, the
Industrial Development Authority of the City of Riverside, Missouri, its
employees and officers as an additional insured and have not less than the
following limits:
a. Each occurrence: Not less $2,000,000.00
b. General aggregate: Not less$2,000,000.00
c. Products/completed operations aggregate $2,000,000.00
d. The following coverage shall be included:
• Blanket contractual liability
• Products/completed operations
• Personal/advertising injury
• Broad form property damage
• Independent contractors
• Explosion, Collapse, and Underground Damage
• Contractor's Pollution Liability
2. OWNERS PROTECTIVE LIABILITY — Contractor shall purchase, maintain
and deliver to the City for operations of the Contractor of any Subcontractor
in connection with execution of the agreement Owner's Protective Liability
insurance in the same minimum amounts as required for Commercial General
Liability Insurance above.
3. AUTOMOBILE LIABILITY - Contractor shall provide coverage for
Contractor, the City, its employees and officers, the Industrial Development
Authority of the City of Riverside, Missouri, its employees and officers
against claims for bodily injury 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, hired autos, and non-
owned autos. The coverage shall have not less than a combined single limit of
$2,000,000.00 for each accident.
7 WA 4985999.6
4. 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 the City and
with a minimum financial rating not lower than "A-" in Best's Insurance 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 or automobile liability
coverage (including any umbrella or excess policy that provides any required general or
automobile 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, in form satisfactory to the City, (1)name
as additional insured the City, its employees, officers, and agents, and any architects, engineers,
or other design professionals engaged by or on behalf of the City, (2) name as additional insured
the Industrial Development Authority of The City of Riverside, Missouri, its employees and
officers, and (3) provide that it is primary to any other insurance maintained by any additional
insureds, 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 one(1) year after the date of final acceptance by the City of all of Contractor's Work.
D. All policies and certificates of insurance shall provide no less than thirty (30) days'
prior written notice to the City in the event of cancellation,expiration,non-renewal, alteration, or
reduction (including but not limited to reduction by paid claims) of coverage or limits contained
in the policy or evidenced by the certificate of insurance. Contractor shall furnish the City a
certificate or certificates and copies of policies, all satisfactory to the City, evidencing that
Contractor has all the required insurance and is in compliance with this Article. The certificate or
certificates and copies of policies shall be delivered to the City's designated representative not
less than seven (7) days before Contractor first performs any of the Work. All policies except
Workers' Compensation and Employer's Liability shall contain a waiver of subrogation in favor
of the City, its employees, officers, and agents, and architects, engineers, or other design
professionals engaged by or on behalf of the City and Industrial Development Authority of City
of Riverside, Missouri.
8 WA 4985999 6
E. Contractor also shall maintain any additional insurance coverages and any higher
limits provided for elsewhere in the Contract Documents and shall furnish the City any
additional insurance documentation provided for elsewhere in the Contract Documents.
F. 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. Certificates and copies of
policies, satisfactory to the City, evidencing the required insurance and compliance with this
Article shall be delivered to City's designated representative not less than seven (7) days before
the Subcontractor first performs any of the Work.
G. If Contractor is a transient employer as defined in Section 285.230 RSMo,
Contractor must post in a prominent and easily accessible place at the work site a clearly legible
copy of the following: (1) the notice of registration for employer withholding issued to such
transient employer by the Director of Revenue; (2) proof of coverage for workers' compensation
insurance or self-insurance signed by the transient employer and verified by the Department of
Revenue through the records of the Division of Workers' Compensation; and (3) the notice of
registration for unemployment insurance issued to such transient employer by the Division of
Employment Security. Any transient employer failing to comply with these requirements shall,
under Section 285.234 RSMo be liable for a penalty of$500 per day until the notice required by
this Paragraph are posted as required by law.
ARTICLE IX
INDEMNITY
A. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold
harmless the City, its employees, officers, and agents, and any architects, engineers, or other
design professionals engaged by or on behalf of the City and the Industrial Development
Authority of the City of Riverside, Missouri, their officers and employees, 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 caused or allegedly
caused by the negligent or willful 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 indemnity that would otherwise exist as to a party or person
as set forth in this Agreement.
B. In claims against any person or entity indemnified herein 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 shall not be limited by a limitation
on the amount or type of damages, compensation, or benefits payable by or for Contractor or a
Subcontractor or supplier under workers' compensation acts, disability benefit acts, or other
employee benefit acts.
9 WA 4985999.6
ARTICLE X
COVENANT AGAINST LOBBYING AND UNDUE INFLUENCE
A. Contractor represents and warrants 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 has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, 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, the City shall have the right to void this Agreement 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.
B. Contractor 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 officer,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 the 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.
C. No official of the City who is authorized in such capacity and on behalf of the City
to negotiate, make, accept, or approve, or to take part in negotiating, making, accepting, or
approving any architectural, engineering, inspection, construction, or material supply contract or
any subcontract in connection with the construction of the project, shall become directly or
indirectly interested personally in this Agreement or in any part hereof. No officer, employee,
architect, attorney, engineer, or inspector of or for the owner who is authorized in such capacity
and on behalf of the City to exercise any legislative, executive, supervisory, or other similar
functions in connection with the construction of the project, shall become directly or indirectly
interested personally in this Agreement or in any part thereof, any material supply contract,
subcontract, insurance contract, or any other contract pertaining to the project.
ARTICLE XI
RECORDS REGARDING PAYMENT
For a period of at least two (2) years after final payment to Contractor, 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 the City. For 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
subcontractors 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, payroll records,
canceled checks, orders, and invoices pertaining to the City's account. The City's representative
shall, upon reasonable prior notice to Contractor, be given the opportunity to audit these records
10 WA 4985999.6
at any time during normal business hours to verify the accuracy of Contractor's invoices and
charges.
ARTICLE XII
NOTICES
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 the City: Travis Hoover,City Engineer
2950 N.W. Vivion Road
Riverside, MO 64150
Telephone(816) 372-9004
For Contractor: EGD n . \
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B. Any notice required by the Contract Documents to be given in writing or that either
the City or Contractor wishes to give to the other in writing shall be signed by or on behalf of the
party giving notice. The notice shall be deemed to have been completed when sent by certified or
registered mail to the other party at the address set forth herein, or delivered in person to said
party or their authorized representative.
C. Contractor's designated representative 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
DEFAULT AND TERMINATION
A. If Contractor fails to comply, becomes unable to comply, or with reasonable
probability (as determined solely by the City) will become unable to comply with any of
Contractor's obligations under the Contract Documents, including but not limited to (1) failure at
any time to furnish sufficient labor 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 the City or any others on the Project, (4)
abandonment by Contractor of all or any part of the Work, or (5) bankruptcy, insolvency or
general assignment for the benefit of creditors by Contractor, Contractor shall be in default, and
if the default is not corrected to the City's satisfaction within seventy-two (72) hours of delivery
of a written notice to Contractor to correct such default, the City may, in addition to any other
right or remedy the City may have, terminate the services of the Contractor and take possession
of the project and of all materials, equipment, tools, construction equipment and machinery
11 WA 4985999.6
thereon owned by the Contractor and finish the work by whatever method the City may deem
expedient to correct the default, at Contractor's expense. In such case the Contractor shall not be
entitled to receive any further payment until the Work is finished. If such costs exceed the
unpaid balance due to Contractor, the Contractor will pay the difference to the City.
B. If City exercises its right to take over and complete any part or all of the Work, the
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 the City and may employ Contractor's employees or former employees, all without any
liability to Contractor.
C. Contractor shall be liable for and shall pay to the City all costs and expenses of
whatsoever nature incurred by the 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 the City all
charges, liabilities, tines, penalties, losses, damages, and claims sustained by or assessed against
the City as a result of any delay or disruption resulting from any default by Contractor. The total
amount of such costs, expenses, charges, liabilities, fines, penalties, losses, damages, and claims
may be deducted by the City from the amount, if any, otherwise due Contractor, and Contractor
shall pay the City the full amount of any excess of such total over the amount otherwise due
Contractor.
D. No right or remedy conferred upon or reserved to the City by the Contract
Documents is exclusive of any other right or remedy provided or permitted in the Contract
Documents 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 the City of any right or remedy shall relieve Contractor from full and absolute
responsibility for all of Contractor's obligations under the Contract Documents.
E. No failure or delay of the City to give notice to correct any default of Contractor or
to exercise any of the City's rights or remedies shall waive or excuse the default, and the City
shall remain free to pursue all rights and remedies. No failure of the City to insist, in any one or
more 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 the City's right to
insist upon strict performance of the obligation in any future instance.
F. If through no act or fault of the Contractor, the Work is suspended for a period of
more than ninety (90)days by the City or under an order of court or other public authority, or the
City fails to act on any request for payment within thirty (30) days after it is submitted, or the
City fails to pay the Contractor substantially the sum approved by the Engineer and
Administrator, then the Contractor may after ten (10) days from delivery of written notice to the
City to terminate the Agreement and recover from the City payment for all work executed.
G. The City, without terminating the service of the Contractor or written notice to the
Surety, through the Project Manager may withhold, without prejudice to the rights of the City
12 WA 4985999.6
under the terms of the Agreement, or on account of subsequently discovered evidence,nullify the
whole or part of any approved partial payment estimate to such extent as may be necessary to
protect the City from loss on account of(1) defective work not remedied, (2) claims filed or
reasonable evidence indicating probably filing of claims, (3) failure of Contractor to make
payments property to Subcontractors or for material or labor, (4) a reasonable doubt that the
Work can be completed for the balance then unpaid, (5) damages to another contractor, or (6)
performance of work in violation of the terms of the Contract Documents.
ARTICLE XIV
TERMINATION FOR CONVENIENCE
Notwithstanding anything contained herein to the contrary, the 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 the City's own convenience by giving written notice to Contractor.
Upon receipt of notice of termination for City's convenience, Contractor shall, to the extent
directed by the City, stop work and tum over to the City or the City's designee materials and
equipment purchased for the Work. The City shall pay Contractor, in accordance with the
Contract Documents, for only so much of the Work as is actually performed as of the termination
for convenience. The City shall not be obligated to Contractor for any further payment, including
but not limited to prospective overhead or profit on unperformed work. If a termination by the
City of Contractor's right to proceed on the ground of default by Contractor is determined later
to have been improper, the termination automatically shall be converted to a termination for the
City's convenience, and the City's obligation to Contractor shall be limited to payment to
Contractor as provided in this Article.
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 U.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 submitted by Contractor to the City, Contractor
shall include (a) a signed statement, in form acceptable to the 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 hours 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.
13 WA 4985999.6
C. This Agreement shall be governed by and construed in accordance with the laws of
the State of Missouri.
ARTICLE XVI
LABOR STANDARDS PROVISIONS
A. MISSOURI PREVAILING WAGE LAW. Not less than the prevailing hourly rate
of wages established by the Missouri Department of Labor and Industrial Relations Division of
Labor Standards shall be paid to all workers performing work under the Agreement. An
Affidavit of Compliance with the Prevailing Wage Law as set forth in Exhibit B shall be
completed by Contractor and every Subcontractor employed on the Project prior to final
payment. The Contractor will forfeit a penalty to the City of$100 per day (or portion of a day)
for each worker that is paid less than the prevailing rate for any work done under the contract by
the Contractor or by any Subcontractor.
B. EXCESSIVE UNEMPLOYMENT. During periods of excessive unemployment
(any month immediately following two consecutive calendar months during which the level of
unemployment in the state has exceeded five percent (5%) as measured by the United States
Bureau of Labor Statistics) only Missouri labors (persons who have resided in Missouri for at
least thirty days and intend to become or remain Missouri residents) and laborers from non-
restrictive states (persons who are residents of a state which has not enacted state laws restricting
Missouri laborers from working on public works projects in that state, as determined by the
Labor and Industrial Relations Commission), may be employed under the contract, except that
other laborers may be used when Missouri laborers or laborers from nonrestrictive states are not
available, or are incapable of performing the particular type of work involved, if so certified by
the Contractor and approved by the City.
C. UNDERPAYMENT OF WAGES. In case of underpayment of wages by the
Contractor or by any subcontractors to laborers or mechanics employed by the Contractor or
Subcontractor upon the work covered by this Agreement, the City, in addition to such other
rights as may be afforded it under this Agreement shall withhold from the Contractor, out of any
payments due the Contractor, so much thereof as the City may consider necessary to pay such
laborers or mechanics the full amount of wages required by this Agreement. The amount so
withheld may be disbursed by the City, for and on account of the Contractor or the Subcontractor
(as may be appropriate), to the respective laborers or mechanics to whom the same is due or on
their behalf to plans, funds, or programs for any type of fringe benefit prescribed in the
applicable wage determination.
D. LIMITATIONS ON EMPLOYMENT. No person under the age of sixteen (16)
years and no person who, at the time, is serving sentence in a penal or correctional institution
shall he employed on the work covered by this Agreement.
ARTICLE XVII
EQUAL EMPLOYMENT OPPORTUNITY
The Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, sex, or national origin. The Contractor will take affirmative
14 WA 4985999b
action to ensure that applicants and employees are treated during employment, without regard to
their race, color, religion, sex, or national origin. Such action shall include,but not be limited to,
employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
ARTICLE XVIII
SUBCONTRACTS, ASSIGNMENT, OR TRANSFER
A. Except with the prior written consent of the 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. The City's consent to any assignment,
subcontract, or purchase order shall not relieve Contractor from any obligation under the
Contract Documents, nor shall it create any obligation from the 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 the City is an intended third-party beneficiary of the
subcontract or purchase order.
C. The Contractor shall be fully responsible to the City for the acts and omissions of its
Subcontractors, and of person either directly or indirectly employed by them, as the Contractor is
for the acts and omissions of person directly employed by it.
D. The Contractor shall cause appropriate provisions to be inserted in all subcontracts
relative to the work to bind Subcontractors to the Contractor by the terms of the Contract
Documents insofar as applicable to the work of Subcontractors and give the Contractor the same
power as regards terminating any Subcontract that the City may exercise over the Contractor
under any provision of the Contract Documents. Nothing contained in this Agreement shall
create any contractual relation between any Subcontractor and the City.
E. Each subcontract or purchase order issued by Contractor for any of the Work shall
provide that it is freely assignable by Contractor to the City. Contractor hereby assigns to the
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 the City in writing
and only as to the specific subcontract(s) and/or purchase order(s) that the City designates in the
writing. This assignment may be accepted by the City at any time, whether before or after final
payment to Contractor, and may not be withdrawn by Contractor without the City's written
consent.
ARTICLE XIX
ACCESS TO SITE/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.
15 WA 4965999.6
B. Representatives of the City may inspect or review any Work performed by
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 the City at its request.
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 equipment, tools,
machinery, waste, and surplus materials. Contractor shall make provisions to minimize and
confine dust and debris resulting from construction activities. If Contractor fails to comply with
cleanup duties within twenty-four (24) hours after written notification from the City of non-
compliance, the City may implement cleanup measures without further notice and deduct the
cost from any amounts due or to become due Contractor.
ARTICLE XX
COMPETENCE
Contractor represents and warrants that it maintains all necessary licenses, registration,
competence, and experience to perform all the Work.
ARTICLE XXI
WARRANTY
A. Contractor shall exercise high professional skill, care, and diligence in the
performance of the Work, and shall carry out its responsibilities in accordance with customarily
accepted good professional practices. The Contractor warrants and guarantees that the Fill Dirt
conforms with the plans and specifications and that it is free from "Hazardous Substance" as that
term is defined herein. "Hazardous Substance" shall mean any substance, chemical, compound,
product, solid, gas, liquid, odor, heat, sound, vibration, radiation, waste, byproduct, pollutant,
contaminant, or material which is (A) regulated, defined or designated as a hazardous substance,
hazardous waste, extremely or imminently hazardous, carcinogenic, toxic, deleterious, caustic, a
pollutant, a contaminant, or a source of contamination pursuant to environmental laws, (B)
subject to investigation, monitoring, reporting or remediation by any government authority
(local, state, municipal, territorial or federal), (C) asbestos, polychlorinated biphenyls and
petroleum and petroleum products (including crude oil or any fraction thereof) or (D) natural
gas, synthetic gas and any mixtures thereof Contractor shall promptly make such corrections as
may be necessary be reason of such defects including the repair of any other damages that were
caused by defects in the work, at its own expense. The City will give notice of observed defects
with reasonable promptness. In the event that the Contractor fails to make such repairs,
adjustments or other work that may be necessary by such defects, the City may do so and charge
the Contractor the cost thereby incurred. In emergency where, in the judgment of the City delay
would cause serious loss or damage, repairs and replacement of defects in the work and damage
caused by defects may be made without notice being sent to the Contractor, and the Contractor
shall pay the cost thereof. Neither final payment, Engineer's Final Certificate, nor any other
provision in the Contract Documents shall affect Contractor's obligation to complete the Work
free of defects in workmanship and material.
16 WA 4985999.6
B. 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.
C. This Article 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, including but not limited to, a breach of warranty
concerning Hazardous Substances.
ARTICLE XXII
STORAGE OF 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 XXIII
TAXES
A Missouri Sales Tax Project Exemption Certificate (Missouri Department of Revenue
Form 5060) will be provided by City for the purchase of any materials or personal property
incorporated into or consumed in the construction project, pursuant to RSMo 144.062. The
Contractor will pay all other sales, consumer, use and other similar taxes required by the State of
Missouri or other taxing jurisdiction.
ARTICLE XXIV
SAFETY
A. Contractor shall be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with performance of the 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, shrubs,
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, rules, regulations, orders, and the like bearing on safety of persons or property or
their protection from damage, injury, or loss. The Contractor will erect and maintain, as required
by the conditions and progress of the work, all necessary safeguards for safety and protections.
The Contractor will notify owners of adjacent utilities when prosecution of the Work may affect
them. The Contractor will remedy all damage, injury or loss to any property caused directly or
indirectly, in whole or part, by the Contractor, any Subcontractor or anyone directly or indirectly
employed by any of them or anyone whose acts any of them may be liable.
17 WA 4985999.6
C. The Contractor shall exercise proper precaution at all times for the protection of
persons and property and shall be responsible for all damages to persons or property, either on or
off the site, which occur as a result of his prosecution of the work. The safety provisions of
applicable laws and building and construction codes shall be observed and the Contractor shall
take or cause to be taken, such additional safety and health measures as the City may determine
to be reasonably necessary.
D. Pursuant to Section 292.675 RSMo, Contractor shall provide a ten (10) hour
Occupational Safety and Health Administration (OSHA) construction safety program for all
employees who will be on-site at the Project. The construction safety program shall include a
course in construction safety and health that is approved by OSHA or a similar program
approved by the Missouri Department of Labor and Industrial Relations which is at least as
stringent as an approved OSHA program as required by Section 292.675 RSMo. Contractor
shall require its on-site employees to complete a construction safety program within sixty (60)
days after the date work on the project commences. Contractor acknowledges and agrees that
any of Contractor's employees found on the Project site without documentation of the successful
completion of a construction safety program shall be required to produce such documentation
within twenty (20) days, or will be subject to removal from the Project. Contractor shall require
all of its Subcontractors to comply with the requirements of this Paragraph and Section 292.675
RSMo.
Contractor shall forfeit to the City as a penalty two thousand five hundred dollars
($2,500.00), plus one hundred dollars ($100.00) for each on-site employee employed by
Contractor or its Subcontractor, for each calendar day, or portion thereof, such on-site employee
is employed without the construction safety training required herein. The penalty described in
this Paragraph shall not begin to accrue until the time periods herein have elapsed. Violations of
this requirement and imposition of the penalty described in this Paragraph shall be investigated
and determined by the Missouri Department of Labor and Industrial Relations.
E. If the City deems any part of the Work or the Project site unsafe, the City, without
assuming responsibility for Contractor's safety program, may require Contractor to stop
performance of the Work or take corrective measures satisfactory to the City or both. If
Contractor does not adopt corrective measures, the City may perform them or have them
performed and deduct their cost from the Contract Amount. Contractor shall make no claim for
damages, for an increase in the Contract Amount, or for a change in the time for performance of
the Work based on Contractor's compliance with the City's reasonable request.
ARTICLE XXV
AUTHORIZED EMPLOYEES
Contractor acknowledges that Section 285.530 RSMo prohibits any business entity or
employer from knowingly employing, hiring for employment, or continuing to employ an
unauthorized alien to perform work within the State of Missouri. Contractor therefore covenants
that it is not knowingly in violation of subsection 1 of Section 285.530 RSMo, and that it will not
knowingly employ, hire for employment, or continue to employ any unauthorized aliens to
18 WA 4965999.6
perform work on the Project, and that its employees are lawfully eligible to work in the United
States.
ARTICLE XXVI
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 the City for any
purpose.
ARTICLE XXH
CONFLICT
Contractor shall promptly upon discovery notify the City of any conflict, ambiguity or
inconsistency in the Contract Documents, or between any Contract Document and actual field
conditions, and the City shall resolve such conflict, ambiguity or inconsistency in its sole
discretion.
ARTICLE XXIII
SEVERABILITY
Should any specific provision of this Agreement or other Contract Documents be found
to be unenforceable, the remaining provisions shall remain in full force and effect.
ARTICLE XXIX
NO PRESUMPTION AGAINST THE DRAFTER
No presumption or inference against the City shall be made because of the City's
preparation of this Agreement or other Contract Documents.
ARTICLE XXX
DISPUTES/ATTORNEY FEES
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, the City and
Contractor shall fust try 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 XXXI
TITLES
19 WA 4985999.6
The titles given to the Articles in this Agreement are for ease 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 XXXII
PROVISIONS REQUIRED BY LAW DEEMED INSERTED
Each and every provision of law and clause required by law to be inserted in this
Agreement shall be deemed to be inserted herein and the contract shall be read and enforced as
though it were included herein, and if through mistake or otherwise any such provision is not
inserted, or is not correctly inserted, then upon the application of either party the contract shall
forthwith by physically amended to make such insertion or correction. All such laws, orders and
regulations are applicable to this Project and are made a part hereof by reference.
ARTICLE XXXIII
THIRD PARTY BENEFICIARY
Contractor expressly acknowledges The Industrial Development Authority of the City
of Riverside, Missouri is a third party beneficiary under the Agreement and all other Contract
Documents. The Industrial Development Authority of the City of Riverside, Missouri shall have
the right to enforce the provisions of this Agreement or seek any remedies available against the
contractor and any and all subcontractors should any party fail to comply with the terms hereof.
Except as set forth in this Article, this Agreement does not and is not intended to confer any
rights or remedies upon any person other than expressly stated herein. Contractor shall not have
any rights against The Industrial Development Authority of the City of Riverside, Missouri.
ARTICLE XXXIV
ENTIRE 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, whether oral or written, are of no further force or effect. Subject to Article VII 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
by City and Contractor.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20 WA 4985999.6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representatives.
THE CITY OF RIVERSIDE, MISSOURI
0
By: '- Lt�
Name: e.
Title:
CONTRACTOR:
HECO, INC. D/B/A HOUSTON
EXCAVATING&DEMOLITION
By: III
Name:
Title: 1�t!
21 WA 4985999.6
EXHIBIT A
RATE SCHEDULE FOR STRIPPING AND COMPACTING
22 WA 4985999.6
HOUSTON EXCAVATING AND DEMOLITION EQUIPMENT
RENTAL RATES AS OF MARCH 2014
Types of Equipment Per Hour
Caterpillar D&K Dozer $230
Caterpillar 977L Loader $190
Caterpillar 963 Loader $190
Caterpillar 963B Loader $190
Caterpillar 627E Scraper $265
Caterpillar 627B Scraper $255
Caterpillar 613 Paddle Scraper $190
Caterpillar 815 Compactor $190
Caterpillar 320 Track Hoe $210
Caterpillar 330 Track Hoe $235
Hamm Vibratory Compactor $190
Kenworth Tractor w/Low Boy Trailer $165
Peterbuilt Tractor w/41' Push Out Trailer $170
Kenworth Tractor w/Barrel End Dump $135
Air Curtail Tree Burner $110
Komatsu 220 Track Hoe and Breaker $300
Komatsu 220 Track Hoe $240
Cat 320 Track Hoe and Breaker $300
Skid Steer $140
Broom $150
304-Mini Excavator $150
Single Axle Dump $115
Kenworth 17' Tri-Axle Dump $135
Truck & Supervisor $100
Laborer $70
Water Truck $135
(PREVAILING WAGE RATES)
EXHIBIT B
AFFIDAVIT OF COMPLIANCE WITH THE PREVAILING WAGE LAW
I, L At c a /hvt upon being duly sworn upon my oath state that:
(1)1amthe ou ..+. of 14 eGo T.`L
(2)all requirements of Section 290.210 to 290.340. RSMo, pertaining to the payment of wages to
workers employed on public works projects,✓have been fully satisfied with regard to this Contractor's
work on C - 0-( 4er St a PROJECT;
(3)l have reviewed and am familiar with the labor standards provisions and prevailing wage rules
established by the Missouri Department of Labor and Industrial Relations Division of Labor Standards;
(4) based upon my knowledge of these rules, including all occupational titles set out in the
applicable regulations,I have completed full and accurate records clearly indicating:
(a) the names, occupations, and crafts of every worker employed by this Company in
connection with this Project together with an accurate record of the number of hours worked by
each worker and the actual wages paid for each class or type of work performed,
(b)the payroll deductions that have been made for each worker,and
(c)the amounts paid to provide fringe benefits, if any,for each worker;
(5) the amounts paid to provide fringe benefits, if any, were irrevocable paid to a trustee or to a
third party pursuant to a fund, plan,or program on behalf of the workers;
(6) these payroll records are kept and have been provided for inspection to the authorized
representative of the City and will be available,as often as may be necessary, to such City and such other
regulatory agencies as may be deemed necessary;
(7) such records shall not be destroyed or removed from the State of Missouri for one (1) year
following the completion of Contractor's work on this Project;
(8) when in effect, the requirements of Sections 290.550 through 290.580 RSMo. Pertaining to
excessive unemployment were fully satisfied;and
(9) there has been no exception to the full and complete compliance with the provisions and
requirements of the wage orders applicable to the Agreement and Contract Documents.
The matters stated herein are true to the best of my information,knowledge,and belief- I
acknowledge that the falsification of any information set out herein may subject me to criminal
prosecution,
Signature
Printed Name
Subscribed and sworn to me thisg day of—I
Q L 2014.
Notary Public
My Commission expires: �yC�s
ROBIN L UTTRELL
Notary.Pu0I1a-Notary SM 23 WA 4985999.6
gtata of witioun,may CottYpy
Cownbsm a t 139MI
My CwtoMsslat E 91[r 9,9018
EXHIBIT A
RATE SCHEDULE FOR STRIPPING AND COMPACTING
3 WA 6911478.1
EXHIBIT B
AFFIDAVIT OF COMPLIANCE WITH THE PREVAILING WAGE LAW
I, upon being duly sworn upon my oath state that:
(1)I am the of
(2)all requirements of Section 290.210 to 290.340. RSMo, pertaining to the payment of wages to
workers employed on public works projects have been fully satisfied with regard to this Contractor's
work on PROJECT;
(3)I have reviewed and am familiar with the labor standards provisions and prevailing wage rules
established by the Missouri Department of Labor and Industrial Relations Division of Labor Standards;
(4) based upon my knowledge of these rules, including all occupational titles set out in the
applicable regulations, I have completed full and accurate records clearly indicating:
(a) the names, occupations, and crafts of every worker employed by this Company in
connection with this Project together with an accurate record of the number of hours worked by
each worker and the actual wages paid for each class or type of work performed,
(b)the payroll deductions that have been made for each worker, and
(c)the amounts paid to provide fringe benefits, if any, for each worker;
(5) the amounts paid to provide fringe benefits, if any, were irrevocable paid to a trustee or to a
third party pursuant to a fund, plan, or program on behalf of the workers;
(6) these payroll records are kept and have been provided for inspection to the authorized
representative of the City and will be available, as often as may be necessary, to such City and such other
regulatory agencies as may be deemed necessary;
(7) such records shall not be destroyed or removed from the State of Missouri for one (1) year
following the completion of Contractor's work on this Project;
(8) when in effect, the requirements of Sections 290.550 through 290.580 RSMo. Pertaining to
excessive unemployment were fully satisfied; and
(9) there has been no exception to the full and complete compliance with the provisions and
requirements of the wage orders applicable to the Agreement and Contract Documents.
The matters stated herein are true to the best of my information, knowledge, and belief. I
acknowledge that the falsification of any information set out herein may subject me to criminal
prosecution.
Signature
Printed Name
Subscribed and sworn to me this_day of 12014.
Notary Public
My Commission expires:
4 WA 6911478.1