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HomeMy WebLinkAboutR-2019-053 Awarding Bid for Construction 2019 EH Young Riverfront Park Improvements Gunter Construction Company RESOLUTION NO. R-2019-053 A RESOLUTION AWARDING THE BID FOR CONSTRUCTION OF THE 2019 E.H. YOUNG RIVERFRONT PARK IMPROVEMENTS AND APPROVING THE AGREEMENT BETWEEN THE CITY AND GUNTER CONSTRUCTION COMPANY FOR CONSTRUCTION OF SUCH PROJECT WHEREAS, the City issued a request for bids for the construction of the 2019 E.H. Young Riverfront Park Improvements (Project No. 219-019) ("Project"); and WHEREAS, the City received four (4) responses to its request for bids and the base bid submitted by Gunter Construction Company. ("Gunter Construction") in the amount of$2,797,962.00 has been evaluated by the City and recommended as lowest responsible bidder. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE MISSOURI AS FOLLOWS: THAT the base bid of Gunter Construction for the construction of the 2019 E.H. Young Riverfront Park Improvements in the amount of$2,797,962.00 is hereby accepted and approved; and FURTHER THAT an agreement by and between the City and Gunter Construction, in substantially the same form as contained in the Project Manual for the 2019 E.H. Young Riverfront Park Improvements and incorporated herein by this reference, is hereby approved and the Mayor is authorized to sign the agreement on behalf of the City; and FURTHER THAT the project is subject to the requirements of Section 292.675 RSMo, which requires all contractors or subcontractors doing work on the project to provide, and require its on-site employees to complete, a ten(10)hour course in construction safety and health approved by the Occupational Safety and Health Administration (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. Such training must be completed within sixty (60) days of the date work on the Project commences. On-site employees found on the worksite without documentation of the required training shall have twenty(20) days to produce such documentation; and FURTHER THAT the Mayor, City Administrator, and other appropriate City officials are hereby authorized to execute all documents and agreements necessary or incidental to carry out the terms and conditions of such bid award and the City Clerk is authorized to attest thereto. PASSED AND ADOPTED by the Board of Aldermen of the City of Riverside Missouri the 4th'day of June, 2019. 2 a leen L. Rose, Mayor ` G� AET;§ , sr, Robin Ki&ai4^,-..tv-Clerk 1 AGREEMENT BETWEEN CITY OF RIVERSIDE, MISSOURI AND Contractor: Gunter Construction Company FOR COMPLETION OF 2019 E.H. YOUNG RIVERFRONT PARK IMPROVEMENTS Project No. 219-019 ORDINANCE /RESOLUTION NO.: CONTRACT PRICE: $2,797,962.00 29 r AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR 2019 E.H.YOUNG RIVERFRONT PARK IMPROVEMENTS Proj ect.No: 219-019 THIS AGREEMENT, made and entered into as of the 4th day of June,2019,by and between the City of Riverside,Missouri("City"),and Gunter Construction Company("Contractor"), shall govern all Work to be provided by Contractor for City on the Project. WHEREAS,City,under the provisions of Ordinance/Resolution No. ,duly approved on the 4th day of June, 2019 and by virtue of the authority vested in City by the general ordinances of City, intends to enter into one or more contracts for the Project; and WHEREAS, the Mayor is authorized and empowered by City to execute contracts on behalf of City, and the City Administrator ("Administrator") is authorized to perform Administrator's functions set forth in this Agreement; and WHEREAS,Administrator may designate one or more engineers, architects, or other persons to assist Administrator in performing Administrator's functions under this Agreement; and WHEREAS, City desires to enter into an agreement with Contractor to obtain labor, services, materials, supplies, tools, equipment, supervision, management, and other items as set forth in this Agreement; and WHEREAS, Contractor represents that Contractor is equipped, competent, and able to provide all the Work, in accordance with this Agreement; NOW THEREFORE, in consideration of the mutualcovenants 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. "Contractor"A person, firm, or corporation with whom the contract is made by the City. B. "City"The City of Riverside, Missouri. C. "City Administrator"That person designated by the City as the City Administrator. D. "Project" The building, facility, and/or other improvements for which Contractor is to provide Work under this Agreement. It may also include construction by City or others. E. "Resident Project Representative" employed by the City of Riverside to manage the Project on behalf of the City: Noel Challis (nchallis@liversidemo.com) 816-372-9028. 30 l F. "Subcontractor"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. G. "Substantial Completion" The stage in the progress of the Work where the Work or designated portion is sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work for its intended use. H. "Work" or "Work on the Project" Work to be performed at the location of the Project, including the transportation of materials and supplies to or from the location of the Project by employees of the Contractor and any Subcontractor. Work shall include all labor, services, materials, supplies, tools, equipment, supervision, management, and anything else necessary to accomplish the results and objectives described in Exhibit E (Scope of Work) and Exhibit F (Technical Specifications) to this Agreement and the other Contract Documents, in full compliance with all requirements set forth in the Contract Documents, subject to additions, deletions, and other changes as provided for in this Agreement. The Work may refer to the whole Project,or only a part of the Project if Work on the Project also is being performed by City or others. I. "Written Notice" 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. Contractor shall provide and pay for all Work for the Project. B. Contractor represents that it has evaluated and satisfied itself as to all conditions and limitations under which the Work is to be performed, including, without limitation, (1) the location, condition, layout, and nature of the Project site and surrounding areas, (2) generally prevailing climatic conditions, (3) labor supply and costs, and (4) availability and cost of materials,tools, and equipment. City shall not be required to make any adjustment in either the Contract Amount or the time for performance of the Work because of Contractor's failure to do so. C. The Resident Project Representative shall act as the City's representative during the construction period, 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 Resident Project Representative may recommend, but cannot approve Change Orders resulting in an increase in time of performance or payments due to Contractor. The Resident Project Representative will make visits to the site and detennine if the Work is proceeding in accordance with the Contract Documents. The Contractor will be held strictly to the intent of the Contract Documents in regard to the quality of materials,workmanship, and execution of the Work. Inspections may be at the factory or fabrication plant of the source of the material supply. The Resident Project Representative will not be responsible for the construction means, controls, techniques, sequences, procedures or construction safety. 31 t D. Contractor may be furnished additional instructions and detail drawings by the Resident Project Representative, as necessary to carry out the Work required by the Contract Documents. The additional drawings and instructions thus supplied will become a part of the contract drawings, the Contractor shall carry out the Work in accordance with the additional detail drawings and instructions. ARTICLE III CONTRACT AMOUNT A. Provided Contractor performs all Work in accordance with the Contract Documents and complies fully with each and every obligation of Contractor under the Contract Documents, City shall pay Contractor the sum of Two million seven hundred ninety-seven thousand nine hundred and sixty- two dollars($2,797,962.00). This amount shall include all costs,permit fees,profit,overhead,expenses, taxes, and compensation of every kind related to the Work, and shall be referred to as the "Contract Amount." B. The Contract Amount is subject to final determination of Work performed at unit prices set forth in the Bid for Unit Price Contracts completed by Contractor. The quantities of unit price Work set forth in Contractor's Bid for Unit Price Contracts are estimates only, are not guaranteed, and are solely for the purpose of comparing bids and determining an initial Contract Amount. Unless otherwise stated elsewhere in the Contract Documents, (1) determination of the actual quantities and classifications of unit price.Work performed will be made by City and (2) final payment for all unit price items set forth in Contractor's Bid for Unit Price Contracts will be based on actual quantities as determined by City. The Contractor is responsible for verifying the unit quantities before excavation and/or installation at the Project site. Contractor shall identify and notify the City of any variance in unit quantities in excess of ten percent (10%) of the amount set forth in Contractor's(Bid for Unit Price Contracts IN ADVANCE of perforining the Work. Any increase in quantities of materials or Work performed as a result of over- excavation by Contractor will not be compensated. C. Payment of the Contract Amount shall be full compensation for all labor, services, materials,supplies,tools,equipment,supervision,management,and anything else necessary to complete the respective items in place, in full compliance with all requirements set forth in the Contract Documents. All costs, permit fees, profit, overhead, expenses, taxes, and compensation of every kind related to the Work are included in the Contract Amount. No labor, services, materials, supplies,tools, equipment, supervision, management, or anything else required by the Contract Documents for the proper and successful completion of the Work shall be paid for outside of or in addition to the Contract Amount. The Work set forth in the Contract Amount shall be itemized in Contractor's Bid for Unit Price Contracts. All Work not specifically set forth in Contractor's Bid for Unit Price Contracts as a separate pay item is a subsidiary obligation of Contractor, and all costs, permit fees, profit, overhead, expenses, taxes and compensation of every kind in connection therewith are included in the Contract Amount set forth in Contractor's Bid for Unit Price Contracts. D. THIS AGREEMENT IS SUBJECT TO THE CITY ORDINANCES, AND PAYMENT SHALL BE LIMITED TO THE AMOUNT OF PARTICULAR APPROPRIATION FOR THE WORK BY THE BOARD OF ALDERMEN. THE TOTAL PAYMENT UNDER THIS AGREEMENT SHALL NOT EXCEED THE APPROPRIATION CONTAINED IN THE APPLICABLE RESOLUTIONS OR ORDINANCES ADOPTED BY THE BOARD OF ALDERMEN AUTHORIZING THE WORK AND CONTRACTOR SHALL NOT SEEK,NOR BE ENTITLED TO, 32 PAYMENT EXCEEDING THIS AMOUNT UNLESS CITY DIRECTS CONTRACTOR TO PERFORM ADDITIONAL WORK IN ACCORDANCE WITH THIS AGREEMENT, AND CITY ENACTS ANOTHER RESOLUTION OR ORDINANCE AUTHORIZING THE AMOUNT CITY AGREES TO PAY UNDER THIS AGREEMENT. ARTICLE IV PROGRESS OF WORK/SUBMITTALS A. COMMENCEMENT OF WORK. The date of beginning and the time for completion of the Work are essential conditions of the Contract Documents. Contractor shall commence performance of the Work on the date indicated in a written notice ("Notice to Proceed") that shall be given by City to Contractor. B. TIME FOR COMPLETION. Contractor shall achieve Substantial Completion, as defined in Article I hereof,no later than 11/15/2019. The Contractor will proceed with the Work at such rate of progress to ensure Substantial completion within the contract time. It is expressly understood and agreed, by and between the Contractor and the City, that the contract time to achieve Substantial Completion of the Work described herein is a reasonable time, taking into consideration the average climatic and economic conditions and other factors prevailing in the locality of the Work.No extensions will be granted, except in case of unusual (unseasonable) weather conditions or additional Work requested by the City under Change Order.Following Substantial Completion, Contractor shall proceed to complete all uncompleted Work items as promptly as permitted by weather conditions or any other conditions affecting completion of the Work. 'C. LIQUIDATED DAMAGES. If Contractor fails to achieve Substantial Completion of all the Work as set forth in the Contract Documents,Contractor shall pay City$500.00 per day,as liquidated damages and not as a penalty, for each calendar day after such date, until Substantial Completion of all the Work is achieved. Contractor agrees that the sum of $500.00 per day is a fair and reasonable approximation of the actual damages incurred by the City for the Contractor's failure to complete the Project within the time outlined above and that such liquidated damages in this section are not penal in nature but rather the parties' attempt to fairly quantify the actual damages incurred by or the City for such delays. Recovery of liquidated damages is not City's exclusive remedy for Contractor's failure to achieve Substantial Completion in accordance with this Agreement. Specifically,but without limitation, City may exercise any of its default or termination rights under this Agreement under all circumstances described herein, including but not limited to Contractor's failure to achieve Substantial Completion in accordance with Paragraph B above. Contractor shall not be charged with liquidated damages or any excess cost when the delay in completion of the Work is due to unforeseen causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, or the public enemy, acts of the City, acts of another Contractor in the performance of a contract with the City, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and abnormal and unforeseeable weather provide the Contractor has given written notice of such delay to the City within five(5) days of the event causing such delay. D. TIME OF THE ESSENCE. Time is of the essence in the performance of the Work and any other Contractor obligations under the Contract Documents. Contractor shall upon commencement of construction work daily to complete the Work except for Saturdays, Sundays, holidays, and days of inclement weather. This Paragraph does not preclude Contractor from working Saturdays, Sundays, 33 holidays,or days of inclement weather. Contractor shall give the City at least 48 hours notice if intending to work on Saturday, Sunday,holidays or days of impending inclement weather. E. CONSTRUCTION SCHEDULE. Promptly after the execution of this Agreement, and in any event before commencing performance of the Work, Contractor shall submit to City for approval a construction schedule that specifies the dates on which Contractor plans to begin and complete various parts of the Work, including dates on which information and approvals are required from City. Upon City's written approval of the schedule, Contractor shall comply with it unless directed by City to do otherwise. Contractor shall update the schedule on a monthly basis or at more frequent appropriate intervals if required by the conditions of the Work and the Project. With each Application for Payment under Article VI of this Agreement, Contractor shall submit an updated, current schedule. Neither the original schedule nor any update shall exceed time limits for the entire Project under the Contract Documents. F. PHOTOGRAPHS OF PROJECT. The Contractor shall furnish photographs of the Project site in the number, type, and stage as enumerated below: 1.Pre-Constructionhp otos-minimum of 15 ground level digital shots 2. Construction photos of significant changes-minimum of 15 ground level digital shots 3. Post Construction photos-minimum of 15 ground level digital shots G. DELAY IN PERFORMANCE. In the event the City determines that performance of the Work is not progressing as required by the Contract Documents or that the Work is being unnecessarily delayed or will not be finished within the prescribed time,the City may,in the City's sole discretion and in addition to any other right or remedy City may have, require Contractor, at Contractor's sole cost, to accelerate Contractor's progress. Such acceleration shall continue until the progress of the Work complies with the Contract Documents and clearly indicates that all Work will be completed within the prescribed time. H. SUSPENSION OF WORK. The City, may suspend the Work or any portion thereof for a period of not more than ninety(90)days or such further time as agreed upon by the Contractor,by written notice to the Contractor which shall fix the date on which Work shall be resumed. The Contractor will resume that Work on the date so fixed. The Contractor will be allowed an increase in the contract price or an extension of the contract time, or both, directly attributable to any suspension 1. DRAWINGS AND SPECIFICATIONS. The intent of the drawings and specifications is that the Contractor shall furnish all labor, materials, tools, equipment and transportation necessary for the proper execution of the Work in accordance with the Contract Documents and all incidental Work necessary to complete the Project in an acceptable manner,ready for use, occupancy or operation by the City. In case of conflict between the drawings and specification, the specifications shall govern. Figure dimensions on drawings shall govern over general drawings. Any discrepancies found between the drawings and specifications and site conditions or any inconsistencies or ambiguities in the drawings or specifications shall be immediately reported to the Resident Project Representative in writing,who shall promptly correct such inconsistencies or ambiguities in writing. Work done by the Contractor after discovery of such discrepancies, inconsistencies or ambiguities shall be done at the Contractor's risk. J. SHOP DRAWINGS. Contractor shall submit to Resident Project Representative for review all shop drawings, samples, product data, and similar submittals required by the Contract Documents. 34 Contractor shall be responsible to City for the accuracy and conformity of its submittals to the Contract Documents. Shop drawings shall bear the Contractor's certification that it has reviewed, checked and approved the shop drawings and that they are in conformance with the requirements of the Contract Documents. Contractor shall prepare and deliver its submittals to City in a manner consistent with the construction schedule and in such time and sequence so as not to delay performance of the Work. Portions of the Work requiring a shop drawing or sample submission shall not begin until the shop drawing or submission has been reviewed by the Resident Project Representative. Review of any Contractor submittal shall not be deemed to authorize deviations, substitutions, or changes in the requirements of the Contract Documents unless express written approval is obtained from City specifically authorizing such deviation,substitution,or change.When submitted for the Resident Project Representative's review, any shop drawing which substantially deviates from the requirement of the Contract Documents shall be evidenced by a Change Order. If the Contract Documents do not contain submittal requirements pertaining to the Work, Contractor agrees upon request to submit in a timely fashion to City for review by Resident Project Representative any shop drawings, samples,product data, manufacturers' literature, or similar submittals as may reasonably be required by City. Contractor shall perform all Work strictly in accordance with approved submittals. Resident Project Representative's review does not relieve Contractor from responsibility for defective Work resulting from errors or omissions of any kind on the reviewed submittals. A copy of each shop drawing and each sample shall be kept in good order by the Contractor at the site and shall be available to the Resident Project Representative. K. 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, to 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 Work within the specified time. Materials and equipment shall be so stored as to insure the preservation of their quality and fitness for the Work. Stored materials and equipment to be incorporated in the Work shall be located so as to facilitate prompt inspection. Manufactured articles,materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned as directed by the manufacturer. Material, supplies and equipment shall be in accordance with samples submitted by the Contractor and approved by the Resident Project Representative. Materials, supplies or equipment to be incorporated into the Work shall not be purchased by the Contractor or by any Subcontractor subject to a chattel mortgage or under a conditional sale contract or other agreement by which an interest is retained by the seller. L. INSPECTION AND TESTING OF MATERIALS. All 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 Contractor shall provide at the Contractor's expense the testing and inspection services required by the Contract Documents. The City shall provide all inspection and testing services not required by the Contract Documents. If the Contract Documents, laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Work to specifically be inspected, tested or approved by someone other than the Contractor, the Contractor will give the Resident Project Representative timely notice of readiness. The Contractor will then furnish the Resident Project Representative the required certificates of inspection, testing approval. Inspections, tests or ,approvals by the Resident Project Representative or others shall not relieve the Contractor from the obligation to perform the Work in accordance with the requirements of the Contract Documents. The Resident Project Representative and 35 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. The Contractor will provide proper facilities for such access and observation of the Work and also for any inspection or testing thereof. If any Work is covered prior to inspection by the Resident Project Representative it must, if requested by the Resident Project Representative, be uncovered for the Resident Project Representative's observation and replaced at the Contractor's expense. If the Resident Project Representative considers it necessary or advisable that covered Work be inspected or tested by others, the Contractor,at the Resident Project Representative's request,will uncover,expose or otherwise make available for observation, inspection or testing as the Resident Project Representative may require, that portion of the Work in question, furnishing all necessary labor, materials,tools and equipment. M. CORRECTION OF WORK. The Contractor shall promptly remove from the Project site all Work rejected by the Resident Project Representative for failure to comply with the Contract Documents, whether incorporated in the construction or not, and the Contractor shall promptly replace and re-execute the Work in accordance with the contract documents and without expense to the owner and shall bear the expense of making good all Work of other Contractors destroyed or damaged by such removal or replacement. 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. N. SUBSTITUTIONS. Whenever a material, article, or piece of equipment is identified on the drawings and specifications by referenced to brand name or catalog numbers, it shall be understood that this is referenced for the purpose of defining the performance or other salient requirements and that other products of equal capacitates, quality and function shall be considered. The Contractor may recommend the substitution of material, article or piece of equipment of equal substance and function for those referred to in the Contract Documents by referenced to brand name or catalog number, if, in the opinion of the City, such material,article or piece of equipment is of equal substance function to that specified, the City may approve, in writing, its substitution and use by the Contractor. Any cost differential shall be deductible from the contract price,and in such event the Contract Documents shall be modified by Change Order.The Contractor warrants that if substitutes are approved,no major changes in the function or general design of the Project will result. Incidental changes or extra component parts required to accommodate the substitute will be made by the Contractor without a change in the contract price or contract time. O. LANDS &RIGHT OF WAY. Prior to issuance of Notice to Proceed,the City shall obtain all lands and rights-of-way necessary for the carrying out and completion of Work to be performed pursuant to the Contract Documents, unless otherwise mutually agreed by the Contractor and City, in writing. The City shall provide to Contractor information which delineates and describes the lands owned and right of way acquired. The Contractor shall provide at its own expense and without liability to the Owner any additional land and access thereto that the Contractor may desire for temporary construction facilities, or for storage of materials. P. SURVEYS, PERMITS AND REGULATIONS. The City shall furnish all boundary surveys and establish all base lines for locating the principal component parts of the Work together with 36 a suitable number of bench marks adjacent to the Work as shown in the Contract Documents. From the information provided by the City,unless otherwise specified in the Contract Documents, the Contractor shall develop and make all detail surveys needed for construction such as slope stakes, batter boards, stakes for pipe locations and other working points, lines, elevations and cut sheets. The Contractor shall carefully preserve bench marks, reference points and stakes and, in case of willful or careless destruction, shall be charged with the resulting expense and shall be responsible for any mistake that may be caused by their unnecessary loss or disturbance. Permits and licenses of temporary nature necessary for the prosecution of the Work shall be secured and paid for by the Contractor unless otherwise stated in the supplemental general conditions. Permits,licenses and easements for permanent structures or permanent changes in existing facilities shall be secured and paid for by the City,unless otherwise specified. The Contractor shall give all notices and comply with all laws, ordinances, rules and regulations bearing on the conduct of the Work as drawn and specified. If the Contractor observes that the Contract Documents are at variance therewith; the Contractor shall promptly notify the City'in writing, and any necessary changes shall be adjusted as provided in Article VII changes in the Work. Q. SUBSURFACE CONDITIONS. The Contractor, before bidding the Project, has the responsibility to become familiar with the Project site and the conditions under which Work will have to be performed during the construction period. Excavating for foundations of surface structure: buildings, bridges, tanks, towers, retaining walls and other types of surface structures. 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 City of any unknown physical conditions at the site of unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents at the location of the Project. The City shall investigate the conditions,and if it is found that such conditions do so materially differ and cause an increase or decrease in the cost of, or in the time required for, performance of the Work, the Contract Documents may be modified by Change Order as provided in Article VII. Any claim of the Contractor for adjustment hereinafter shall not be allowed unless the required written notice has been given; provided that the City may, if the City determines the facts so justify consider and adjust any such claims asserted before the date of the final payment. Excavating for below-surface structures: water mains, sewers, power and telephone cables and other types of below surface structures. No extra compensation will be paid for rock excavation or varying geologic features encountered on the Project, unless so shown as a bid item in the Bid for Unit Price Contracts. If man- made hazards are encountered by the Contractor, excluding,utilities, which are not visible from the surface, such as buried concrete foundations, buried garbage dumps .that cannot be by-passed and requires additional Work consult the Resident Project Representative. R. 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 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 37 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 City and Contractor, and are the Contract Documents: 1. INFORMATION FOR BIDDERS 2. BID FOR UNIT PRICE CONTRACTS 3. BID FORM 4. BID BOND 5. EXPERIENCE QUESTIONNAIRE 6. AFFIDAVIT OF WORK AUTHORIZATION 7. This AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR 8. PERFORMANCE BOND 9. PAYMENT BOND 10. PREVAILING WAGE RATES - STATE.OF MISSOURI DIVISION OF LABOR STANDARDS 11. TIME FOR COMPLETION 12. SCOPE OF WORK 13. TECHNICAL SPECIFICATIONS 14. NOTICE TO PROCEED 15. APPLICATION FOR PAYMENT FORM 16. CHANGE ORDER FORM 17. CERTIFICATE FOR SUBSTANTIAL COMPLETION 18. AFFIDAVIT OF COMPLIANCE WITH THE PREVAILING WAGE LAW 19. CONTRACTOR AFFIDAVIT FOR FINAL PAYMENT 20. SUBCONTRACTOR AFFIDAVIT FOR FINAL PAYMENT 21. ENGINEER/CONSULTANT CERTIFICATE for Acceptance &Final Payment 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 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. 38 ARTICLE VI PAYMENTS A. Prior to submitting its first application for payment, Contractor shall provide City with a schedule of values dividing the Work, and the Contract Amount, into workable categories in a form acceptable to City.Each application for payment shall be based upon the percentage of actual completion of each category,multiplied by the dollar value of such category. B. On or about the first day of Contractor's monthly accounting period, Contractor shall submit an Application for, Partial Payment to the Resident Project Representative. In addition to the amount of payment requested in the Application for Partial Payment, each application shall list the original Contract Amount, the amount Contractor has invoiced City to date, the amount Contractor has received to date,total additions to and deletions from the Contract Amount pursuant to approved Change Orders, and an itemization of any further additions to or deletions from the Contract Amount that Contractor claims. Contractor shall identify each Subcontractor and supplier whom Contractor intends to pay from the requested payment and shall state the amount Contractor intends to pay each such Subcontractor and supplier: An Application shall not include a request for payment for any portion of the Work that was performed or furnished by a Subcontractor or supplier if Contractor does not intend to pay such Subcontractor or supplier from such payment,nor shall the Application include a request for payment for any Work performed deemed unsatisfactory by City. Contractor shall include with each Application all supporting documentation as City may require. The City shall, within fifteen (15) days, review and approve such Application, or return the Application to the Contractor indicating in writing the reasons for refusing to approve payment. In the latter-case, the Contractor may make the necessary corrections and resubmit the Application. Within fifteen(15) days of its receipt of payment from City, Contractor shall pay all subcontractors and suppliers to whom payment is owed from the amount paid to Contractor. C. All payments under this Agreement shall be made only upon the approval of Resident Project Representative and Administrator. Resident Project Representative shall review each application for payment and certify for payment such amounts as Resident Project Representative determines are due Contractor. From the total amount certified, City shall withhold five percent(5%) as retainage until final completion and acceptance of the Work.The five percent(5%)retainage may be reduced by Change Order if final completion and acceptance of the Work is delayed due to unforeseen circumstances and the Work is usable for its intended purpose by the City. If reduction in the retainage is approved, the remaining retainage shall be an amount equal to or greater than 200%of the estimated amount necessary to complete the Work. D. The City Treasurer,upon presentation of such certificate, shall prepare a check for the sum certified to be due (exclusive of retainage), payable out of the funds in the City Treasury available for Contractor under the authorizing Resolution or Ordinance approved by the Board of Aldermen. Payment shall be made to Contractor after the Board of Aldermen review and approve the payment and authorize the Mayor and City Treasurer to sign and deliver the check. E. Neither Administrator or Resident Project Representative'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. 39 F. With each Application, 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 City. City may, at its option, also require a similar receipt and release of claims and rights from each Subcontractor or supplier performing any Work, prior to making any payment to Contractor. The subcontractors' and suppliers'receipts and releases shall be in a form approved by City and shall indicate that(except for retainage) all debts for Work performed or materials supplied included on any previous payment application to City from Contractor have been satisfied and that the Subcontractor or supplier waives and releases any and all claims or rights in connection therewith. G. Contractor shall not be entitled to final payment for the Work until Contractor submits an application for final payment, all requirements of the Contract Documents are complied with, and Engineer issues his or her certificate to that effect. The Engineer's Certificate of Acceptance will be on the form attached hereto as Exhibit N. City, within thirty (30) days after the delivery of Engineer's certificate, shall pay Contractor all remaining funds which Contractor is due under this Agreement. H. Acceptance of final payment by Contractor shall release City from all further obligations to Contractor, except as to such amounts, if any, Contractor has identified in its application for 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 or the Performance and Payment Bonds. I. 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 City or others, 6. Contractor's breach of this Agreement, or 7. Contractor's failure to provide requested documentation. J. The Contractor shall,at the request of 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 firrtherance 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, 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. 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 City. 40 K. 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 Contract. ARTICLE VII CHANGES/CLAIMS A. 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 or the time for performance of the Work, and Contractor shall be solely and completely responsible for the acceptability to City of the addition, deletion, or other change. 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 as follows: 1. If the Work is covered by unit prices set forth in Contractor's Bid for Unit Price Contracts, by application of such unit prices to the quantities of the items involved; or 2.. If the Work involved is not covered by unit prices set forth in Contractor's Bid for Unit Price Contracts,by a lump sum as to which Contractor and City mutually agree prior to the commencement of performance of the change. 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 City,an employee,officer,or agent of City,or an architect or engineer or separate contractor engaged by or on behalf of City, or by changes ordered in the Work, an act of 41 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 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 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,City,its employees,officers,and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City against claims for damage to property and/or illness of, injury to, or death of any person or persons related to or arising out of the Work. Such coverage shall name the City, together with its employees and officers, as an additional insured and have not less than the following limits: a. Each occurrence $3,000,000.00 b. General aggregate $3,000,000.00 c. Products/completed operations aggregate $3,000,000.00 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 2. OWNERS PROTECTIVE LIABILITY — Contractor shall purchase, maintain and deliver to the City for operations of the Contractor of any Subcontractor in connection 42 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, City,its employees,officers,and agents,and any architects,engineers,or other design professionals engaged by or on behalf of City 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$3,000,000.00 for each accident. 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 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 City, (1) name as additional insureds City, its employees, officers, and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City, and(2)provide that it is primary to any other insurance maintained by any additional insured, which other insurance shall be excess or contingent. The insurance provided to the additional insureds shall apply, without limitation,to injury or damage caused by Work included in the products/completed operations hazard. C. Contractor shall maintain the products and completed operations coverage for not less than one (1)year after the date of final acceptance by City of all of Contractor's Work. D. Contractor shall obtain property insurance upon the entire Work for the full cost of replacement at the time of loss. This insurance shall list as named insureds City, Contractor, subcontractors,and suppliers.This insurance shall be written as a Builder's Risk/Installation Floater"all risk" or equivalent form to cover all risks of physical loss except those specifically excluded by the policy and shall insure at least against the perils of fire, lightning, explosion, wind storm, hail, smoke, aircraft and vehicles, riot and civil commotion, theft, vandalism, malicious mischief, debris removal, flood, earthquake, earth movement, water damage, wind, testing, and collapse. This insurance shall, 43 without limitation, insure portions of the Work stored on or off the Project site or in transit,when at the risk of City, Contractor, or a Subcontractor or supplier. Contractor shall be solely responsible for any deductible amounts. This insurance shall remain in effect until final payment has been made to Contractor or until no person or entity other than City has an insurable interest in the property to be covered by this insurance, whichever is sooner. City and Contractor waive all rights against each other and their respective employees, agents, contractors, subcontractors, and suppliers for damages caused by risks covered by the property insurance provided for in this Paragraph, except such rights as they may have to the proceeds of the insurance. E. All policies and certificates of insurance shall provide no less than thirty (30) days' prior written notice to 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 City a certificate or certificates and copies of policies, all satisfactory to City, evidencing that Contractor has all the required insurance and is in compliance with this Article. The certificate or certificates and copies of policies shall be delivered to 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 City, its employees, officers, and agents, and architects, engineers, or other design professionals engaged by or on behalf of City. F. Contractor also shall maintain any additional insurance coverages and any higher limits provided for elsewhere in the Contract Documents and shall furnish City any additional insurance documentation provided for elsewhere in the Contract Documents. G. If any part of the Work is subcontracted,each Subcontractor, or Contractor on behalf of the Subcontractor, shall maintain liability and worker's compensation insurance coverages and amounts satisfying all the requirements of this Article. Certificates and copies of policies, satisfactory to 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. H. 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 City, its employees, officers, and agents, and any architects, engineers, or other design professionals engaged by or on behalf of City, from and against claims, damages, losses, and expenses, 44 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. ARTICLE X PATENT LIABILITY Contractor agrees to defend, indemnify, and hold harmless City, its officers, employees and agents from and against any claim, action or suit that may be brought against them for Contractor's infringement of any Letters Patent in the performance of this Agreement or any breach or violation of trademark or proprietary or trade secret rights of others, as well as against any judgments, decrees, damages, costs and expenses sought, adjudicated, or recovered against any of them, on account of any such actual or alleged infringement. ARTICLE XI 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, 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 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 45 connection with the construction of the Project, shall become directly or indirectly interested personally in this contract 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 contract or in any part thereof, any material supply contract, subcontract, insurance contract, or any other contract pertaining to the Project. ARTICLE XII 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 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 City's account. City or its representative shall,upon reasonable prior notice to Contractor, be given the opportunity to audit these records at any time during normal business hours to verify the accuracy of Contractor's invoices and charges. ARTICLE XIII 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 Ci1y: For Contractor: Noel Challis Name: Capital Projects.&Parks Manager Title: 2950 NW Vivion Rd. Street Address: Riverside,MO 64150 City, State Zip: nchallis(a),riversidemo.com Email: With Copy to: Jason Bril Landscape Architect 417 Delaware Street Kansas City, MO 64105 jbrilna,thinkconfluence.com 46 B. Any notice required by the Contract Documents to be given in writing or that either City or Contractor wishes to give to the other in writing shall be 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 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 XIV DEFAULT AND TERMINATION A. If Contractor fails to comply,becomes unable to comply, or with reasonable probability(as determined solely by City)will become unable to comply with any of Contractor's obligations 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 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 City's satisfaction within seventy-two (72) hours of delivery of a written notice to Contractor to correct such default, City may,in addition to any other right or remedy 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, City and its designees shall have access to and may take possession of Contractor's materials,tools, equipment, and other items at the Project site, en route to the site,or in storage or being manufactured or fabricated away from the site, as may be necessary to prosecute the Work taken over by City, and may employ Contractor's employees or former employees, all without any liability to Contractor. C. Contractor shall be liable for and shall pay to City all costs and expenses of whatsoever nature incurred by City as a result of any default by Contractor, including but not limited to the cost of labor, supervision,materials,tools, equipment, services,overhead,travel, and legal and accounting fees. Contractor also shall be liable for and shall pay to City all charges, liabilities, fines, penalties, losses, damages, and claims sustained by or assessed against City as a result of any delay or disruption resulting from any default by Contractor. The total amount of such costs, expenses, charges, liabilities, fines, penalties, losses, damages, and claims maybe deducted by City from the amount, if any, otherwise due Contractor, and Contractor shall pay City the full amount of any excess of such total over the amount otherwise due Contractor. 47 D. No right or remedy conferred upon or reserved to City by the Contract Documents is exclusive of any other right or remedy provided or-permitted in the 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 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 City to give notice to correct any default of Contractor or to exercise any of City's rights or remedies shall waive or excuse the default, and City shall remain free to pursue all rights and remedies. No failure of City to insist, in any 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 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 Resident Project Representative and Administrator, then the Contractor may after ten (10) days from delivery of written notice to the City 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 Administrator 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 XV TERMINATION FOR CONVENIENCE Notwithstanding anything contained herein to the contrary,City may,at any time,for any reason, and without Contractor's being in default, terminate Contractor's performance of any part or all of the Work for City's own convenience by giving written notice to Contractor. Upon receipt of notice of termination for City's convenience, Contractor shall, to the extent directed by City, stop Work and turn over to City or -City's designee materials and equipment purchased for the Work. City shall pay Contractor, in accordance with the Contract Documents, for only so much of the Work as is actually performed as of the termination for convenience. 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 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 City's convenience, and City's obligation to Contractor shall be limited to payment to Contractor as provided in this Article. 48 ARTICLE XVI 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 City, Contractor shall include (a) a signed statement, in form acceptable to City, showing, for each weekly payroll period that ended during the period covered by the Application for Payment, the name, address, social security number, occupation, and craft of each worker employed by Contractor in connection with the Work and, for each such worker, the number of hours worked each day, the total 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 XVII 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,as set out in the wage order set forth in Exhibit C attached to and made a part of, 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 K 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 Agreement 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 deterinined 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 49 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 XVIII 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 XIX SUBCONTRACTS,ASSIGNMENT, OR TRANSFER A. Except with the prior written consent of City, Contractor shall not assign this Agreement or any money due or to become due Contractor or issue a subcontract or purchase order to any person or entity for any or all of the Work. City's consent to any assignment, subcontract, or purchase order shall not relieve Contractor from any obligation under the Contract Documents, nor shall it create any obligation from City to any assignee, subcontractor, or vendor. B. Each subcontract or purchase order issued by Contractor for any of the Work shall be in writing and shall provide that City is an intended third-party beneficiary of the subcontract or 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 contract shall create any, contractual relation between any Subcontractor and the City. 50 E. Each subcontract or purchase order issued by Contractor for any of the Work shall provide that it is freely assignable by Contractor to City. Contractor hereby assigns to City all its interest in any present_or future subcontract or purchase order issued by Contractor for any or all of the Work. This assignment shall be effective upon acceptance by City in writing and only as to the specific subcontract(s) and/or purchase order(s) that City designates in the writing. This assignment may be accepted by City at any time, whether before or after final payment to Contractor, and may not be withdrawn by Contractor without City's written consent. ARTICLE XX SEPARATE CONTRACTS A. The City reserves the right to enter into other contracts in connection with the Project. The Contractor shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work, and shall properly connect and coordinate the Work with theirs. If the proper execution or results of any part of the Contractor's Work depends upon the work of any other contractor, the Contractor shall inspect and promptly report to the Administrator any defects in such work that render it unsuitable for such proper execution and results. B. The City may perform additional work related.to the Project or the City may let other contracts containing provisions similar to these. The Contractor will afford the other contractors who are parties to such contracts.(or the City, if the City is performing the additional work) reasonable opportunity for the introduction and storage of materials and equipment and the execution of Work, and shall properly connect and coordinate the Work with theirs. C. If the performance of additional work by other contractors or the City is not noted in the Contract Documents prior to the execution of the contract, written notice thereof shall be given to the Contractor prior to starting any such addition work. If the Contractor believes that the performance of such additional work by the City or others involves it in additional expense or entitles it to any extension of the contract time the Contractor may make a claim thereof as provided in Article VII. ARTICLE XXI 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 City may inspect or review any Work performed by Contractor, and consult with Contractor,.at any time. City's inspections or reviews shall not constitute acceptance or approval of Work unless specifically stated in writing. Contractor shall meet with City at the request of City. C. Contractor shall at all times, during performance of the Work,keep the Project site clean and free from debris resulting from the Work. Prior to discontinuing Work in an area, Contractor shall clean the area and remove all rubbish and its construction 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 51 after written notification from City of non-compliance, City may implement cleanup measures without further notice and deduct the cost from any amounts due or to become due Contractor. ARTICLE XXH COMPETENCE Contractor represents and warrants that it maintains all necessary licenses, registration, competence, and experience to perform all the Work. ARTICLE XXIII 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 shall guarantee all materials and equipment furnished and Work performed for a period of one (1) year from the date of completion and acceptance of the Work. The Contractor warrants and guarantees for one (1) year from the date of completion and acceptance of the Work that the completed Work is free from all defects due to faulty materials or workmanship. The date of completion for all scopes of Work shall be the last date of acceptance of all Work in this contract. 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 observeddefects 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. 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. ARTICLE XXIV STORAGE OF MATERIALS AND EQUIPMENT The Contractor shall provide at its own expense and without liability to the City any additional land and access thereto that the Contractor may desire for temporary construction facilities,or for storage of materials. 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. 52 ARTICLE XXV TAXES A Missouri Sales Tax Project Exemption Certificate (Missouri Department of Revenue Form 5060) will be provided by the 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 XXVI 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. 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. 53 E. 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. F. If-City deems any part of the Work or the Project site unsafe, City, without assuming responsibility for Contractor's safety program,may require Contractor to stop performance of the Work or take corrective measures satisfactory to City, or both. If Contractor does not adopt corrective measures, 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 City's reasonable request. ARTICLE XXVH 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 perform work on the Project, and that its employees are lawfully eligible to work in the United States. ARTICLE XXVIII INDEPENDENT CONTRACTOR Contractor is an independent contractor, and neither Contractor or any Subcontractors, suppliers, employees, or agents shall be deemed an employee or agent of City for any purpose. ARTICLE XXIX CONFLICT Contractor shall promptly upon discovery notify City of any conflict, ambiguity or inconsistency in the Contract Documents, or between any Contract Document and actual field conditions, and City shall resolve such conflict, ambiguity or inconsistency in its sole discretion. ARTICLE XXX PERFORMANCE AND PAYMENT BONDS The Contractor shall within ten (10) days after the receipt of the Notice of Award furnish the City with a Performance Bond and Payment Bond in forms set forth in Exhibits A and B in an amount at least equal to one hundred percent(100%) of the contract price, conditioned upon the performance by the Contractor all undertakings,covenants,terms,conditions and agreements of the Contract Documents, and upon the prompt payment by the Contractor to all persons supplying labor and materials in the 54 prosecution of the Work provided by the Contract Documents. Such bonds shall be executed by the Contractor and a corporate bonding company licensed to transact such business in the state in which the Work is to be performed and named on the current list of"Surety Companies Acceptable on Federal Bonds"as published in the Treasury Department Circular Number 570 and shall have a rating of at least "A-" from Best's. The expense of these bonds shall be borne by the Contractor. If at any time a surety on any such bond is declared a bankrupt or loses its right to do business the state in which the Work is to be performed or is removed from the list of Surety Companies accepted on Federal Bonds,Contractor shall within ten(10) days after notice from the City to do so, substitute an acceptable bond(or bonds)in such form and sum and signed by such other surety or sureties as may be satisfactory to the City. The premiums on such bond shall be paid by the Contractor. No further payment shall be deemed due nor shall payment be made to Contractor until the new surety or sureties shall have furnished an acceptable bond to the City. ARTICLE XXXI 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 XXXII 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 XXXIII 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, 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 XXXIV 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. 55 ARTICLE XXXV PROVISIONS REQUIRED BY LAW DEEMED INSERTED Each and every provision of law and clause required by law to be inserted in this Contract 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 XXXVI 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, of 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] 56 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives. APPROVED AS TO FORM: ATTORNEY.- D B 1 Y• Attorney, COUNTERSIGNED BY: CITY PURCH GENT.- By: ENT.By: Br' n E. C Administra CITY OF RIVERSIDE: - By: Kath en L. Rose, Mayor ATTEST-: t Robirili c fid;City,Clefk,.. CONTRACTOR: l Quniey Conciayucti On Com pan U B. (Signature) Printed Name:-Ny i s d n a q u n fif-r Title: QK-e sl Jen f ATTEST: SECRETARY, Slf,bhanit Alun+Ley (Name Printed) e 57 -