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HomeMy WebLinkAbout2008-047 - RA Knapp ConstructionBILL NO. 2008-47 ORDINANCE NO. 2008-47 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR CONSTRUCTION SERVICES WITH R.A. KNAPP CONSTRUCTION, INC. FOR THE CLIFFVIEW DRIVE BRIDGE PROJECT WHEREAS, the City of Riverside, Missouri ("City") has received competitive bids and engaged in negotiations with R.A. Knapp Conshuction, Inc. ("R.A. Knapp") for provision of construction services related to the Cliffview Drive Bridge project under consideration by the City (the "Services"). WHEREAS, the City and R.A. Knapp have reached an agreement concerning the provision of and payment for such Services. NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri, as follows: Section 1. This Ordinance is intended and is hereby determined and declared to be necessary to accomplish and serve the public purpose of constructing the Cliffview Drive Bridge project. Section 2. The City of Riverside shall enter into an agreement whereby R.A. Knapp shall provide construction services, related to the Cliffview Drive Bridge project, to the Ciry at a total cost of $3,048,000.50 (the "Agreement"). Section 3. The execution and delivery of the Agreement, in substantially the form attached hereto as Exhibit A, is approved, and the Mayor is authorized to execute the Agreement and to take such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the City, the execution of the Agreement being conclusive evidence of such approval. Section 4. The Mayor, the City Administrator, the City Attorney and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as maybe necessary or convenient to perform all matters herein authorized. Section 5. This Ordinance shall be in full force and effect from and after its passage and approval. Passed this ~ day of ~~ 2008. ' ~G~~'e, vt ~~,~~~~.-~~ Mayor Kathleen L. Rose ATTE u~) Cit Clerk AGREEMENT BETWEEN. CITY OF RIVERSIDE AND CONTRACTOR: ORDINANCE NO.: CONTRACT PRICE: RA. KNAPP CONSTRUCTION. INC. FOR COMPLETION OF CLIFFVLEW DRIVE .IMPROVEMENTS OVER LINE CREEK R.A. KNAPP CONSTRUCTION. INC. o20t~ 8= ~7 $3.048L546.20 Agreement AGRE~IlZENT BETWEEN CITY' Ok' RIVERSIDE AND CONTRACTOR CI.IFFVIEW DRIVE IH'IPROVEMENTS OVER LINE CREEK THIS AGREEMENT, made and entered into as of the __L__^,, day of 2008, by and between the Gity of Riverside, Missouri ("City"), and R.A. T{na Construction c. ("Conttactor'~, shall govern all Work to be provided by Contractor for City on the Project. REA City, y~derJ, e previsions of Ordinance No. ~(/(~~~ ~7 ,duly approved ~~ ./2.d (" ~Lsf~///?fiarD~ Lit/~ and by virtue of the authority vested in City by the general oidinan es City, intends to onter~i to 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 ("Admhustrator") is authorized to perform Administrator's fiutctions sat forth in this Agreement; and WHEREAS, Administrator may designate one or more engineers, architects, or other persons to assist Administrator in performing Administrator'sfunctionsunder this Agreement; and WHEREAS, City desires to enter into an agreement with Gontractor 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 mutual covenants and consideration herein contained, IT IS HEREBX AGREED by City and Contractor as follows: ARTICLE I THE PROJECT AND THE WORK A. Contractor shall provide and pay for all Work for the Project. B, "Project," as used in this Agreement and the other Contract Documents, means the building, facility, andlor other improvements for which Contractor is to provide Work under this Agreement, It may also include construction by City or others, C. "Work," as used in this Agreement and the other Contract Documents, means all labor, services, materials, supplies, tools, equipment, supervision, management, and anything else necessary to accomplish the results and objectives described in Exhbit A (Scope of Work) and Exhibit E Agreement 2 (Specifications and Drawings), to this Agreement and the other Contract Documents, in full compliance with all requirements set .forth in the Contract Documents, subject to additions, deletions, and other changes as provided for ut Article VI of this Agreement, The Work may refer to the whole Project, or only a part of the Project ifwork on the Project also is being performed by City or others. D. Contractor represents that it has evaluated and satisfied itself a5 to all conditions and limitations under which the Work is to be perfoaned, including, without limitation, {I) the location, condition, layouk, 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. Ciry shall not be required to make any adjustment in eithez the Contract Amount or the time for perforrnance of the Work because of Contractor's failure to do so. ARTICLE II CONTRACT AMOUNT A. Provided Contractor performs all Work in accozdance 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 Three Million Forty-Ei~,ht Thousand Five Hundred Fort~,Six and 20/100 Dollars ($3.048.546.20). 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 Exhibit Cr to this Agreement. The quantities of items of unit price Work set forth in Exhibit G are estimates only, are not guaranteed, and are solely for the purpose of comparing bids and determirring an initial Contract Amount. Determination of the actual quantities and classifications of unit price Work performed by Contractor will be made by City. Final payment for all unit price items set forth in Exhibit G will be based on actual quantities, determined by City. C. Payment at the respective lump sums and unit prices set forth in Exhibit G 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 lump sums and unit prices set forth in Exhibit G. 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 lump sums and unit prices set forth in Exhibit G. All Work not specifically set forth in Exhibit G 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 prices set forth in Exhibit G. D. If estimated quantities set forth in Exhibit G are materially changed so that application of unit prices set forth in Exhibit G will cause substantial inequity to City or Contractor, the applicable unit prices shall be equitably adjusted. E. This Agreement is subject to the City Ordinances, and payment shall be limited to the amount of particular apprppriation for the Work by the Board of Aldermen. The total payment under this Agreement shall nok exceed the appropriation contained in Ordinance No. ~~~~ ~~_ Agreement authorizing the Work, and Contractor shall not seek, nor be entitled to, payment exceeding this amount unless City directs Contractor to perform additional work in accordance with Article VI of this Agreement, and City enacts another ordinance authorizing the amount City agrees to pay under Article vI. ~ ARTICLE III PROGRESS OF WORK /SUBMITTALS I A. Contactor 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. Contactor shall achieve Substantial Completion (as defined in Article V, Paragraph F of this Agreement) of all the Work not later than 320 calendar days after the date indicated in the Notice to Proceed for bommencement of performance of the Work. If Contractor fails to achieve Substantial Completion of'all the Work by this date, Contractor shall pay City $1,500 as liquidated damages and not as a penalty, for each calendar day after this date until Substantial Completion of all the Work is achieved. 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. 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 its rights under Paragraph F below and Article XTTI of this Agreement under all circumstances described in Paragraph F and Article 3~III, including but not limited to Contractor's failure to achieve Substantial Completion in accordance with Paragraph B above. D. 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 D does not preclude Contractor from working Saturdays, Sundays, 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. 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 V of this Agreement, Contractor shall submit au updated, current schedule. Neither the original schedule nor any update shall exceed time limits current under the Contract Documents, F. Contractor shall notify City, at least eight working days in advance, of any closures on Vivion, Gateway, and West Platt Roads, including any traffic pattern changes. Agreement G. In the event Administrator 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, Administrator may, in Administrator'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. Contractor shall submit to City for review and approval all shop drawings, samples, product data, and similar submittals required by the Contract Documents. Contractor shall be responsible to City for the accuracy and conformity of its submittals to the Contract Documents, Contractor shall prepare and deliver its submittals to City in a manner consistent with the construcflon schedule and in such time and sequence so as not to delay performance of the Work. Review and approval of any Contractor submittal shall not be deemed to authotize 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, 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 and approval by City 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. Ciry's approval dons not relieve Contractor from responsibility for defective work resulting from errors or omissions of any kind on the approved submittals. ARTICLE IV CONTRACT DOCTIMENTS 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. This AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR. 2. SCOPE OF WORK (Exhibit A to this Agreement). 3. The SPECIFICATIONS and DRAWINGS referred to or included in Exhibit B to this .4~greement. 4. SUPP~~I,$MENTAL CONDITIONS (Exhibit C to this Agreement), 5. PERFORMANCE BOND (Exhibit D to this Agreement). 6. PAXMENT BOND (Exhibit E to this Agreement). MAINTENANCE BOND (Exhibit F to this Agreement). 8. BID FORM (Exhibit G to this Agreement). 9. PREVAILING WAGE RATES (Exhibit H to this Agreement). Agreement 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. ARTICLE V 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 comple$on 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 Applicatio>~ for Payment to the City representative designated in Article XII, Itt addition tc the amount of payment requested in the Application for 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 shah not include a request for payment for any portion of the Work that was performed or famished b~ a subcontractor or supplier if Contractor does not intend to pay such subcontractor or supplier ;from such payment. Contractor shall include with each Application all supporting documentation as City may require. City shall pay Contractor within 30 days of delivery of Contractor's Application and all supporting documentation to City's designated representative, provided all Work and documentation aze acceptable to City, Within 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 Administrator. Administra or shall review each application for payment and certify for payment such amounts as Administrator ~etermittes are due Contractor. Prom the total amount certified, Administrator shall withhold five percent as retainage until Substantial Completion of all the Work, as defined in Paragraph P below. The Cit~ Treasurer, upon presentation of such certificate, shall prepare a check for the sum certified to be due (exclusive of retainage), ayable out of the funds ux the City Treasury available for Contractor under Ordinance No. o~'~ - Payment shall be made to Contractor after the Boazd of Aldermen. review and approve the payment and authorize the Mayor and City Treasurer to sign and deliver the check. Agreement D. I~leither Administrator's cerkificate nor payment made to Contractor shaA constitute acceptance of any part of the Work. Contractor shall remain obligated to perform all Work in accordance with the Contract Documents. E. 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 perfornned 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. F. Contiractor's retainage shall not be released until Contractor notifies City's. designated representative kn writing, and Administrator certifies, that all the Work is Substantially Complete. The Work shall not be deemed Substantially Complete until all specific requirements stated in the Contract Documents for achievement of substantial completion of aA the Work have been satisfied and the Administrator determines that all the Work is sufficiently complete in accordance with the Contract Documents so that City can occupy or utilize all the Work for its intended use. i2etainage shall be paid to Contractor within 30 days of Administrator's certification that all the Work is Substantially Complete. If there are minor items remaining to be completed after Substantial Completion, an amount equal to 200% of the valut; of each item, as determined by Administrator, shall be withheld until such items are completed. G. Contractor shall not be entitled to fnal payment for the Work until Contractor submits an application for ,final payment, all requirements of the Contract Documents are complied with, and Administrator issues his or her certificate to that effect. City, within 30 days after the delivery of Administrator's certificate,-shall pay Contractor all remaining funds which Contractor is due under this Agreement, II. 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 bq Contractor. All claims not identified in the application for final payment are waived, 1. 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. FailuXe to make payments to subcontractors or suppliers, 4. 1Zeascinable evidence that all Work cannot be completed for the unpaid balance of the Contract Amount, 5. Damage by Contractor or subcontractors ox suppliers to property of City or others, Agreement 6. Contractor's breach of this Agreement, or Contractor's failure to provide requested documentation. J. 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, This provision shall nat confer any right upon any subcontractor or supplier to seek payment directly from City. ARTICLE VI j CHANGES/CLAIMS i A. City without invalidating this Agreement, may at any time end without notice to any surety, order addition to, deletions from, or other changes to the Work. Upon receipt of such as order, in writing, Contractor shall proceed as and when directed in the order. Contractor shall not proceed with any addition, deletiop, 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: If the Work involved is covered by unit prices set forth in Exhibit G, 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 Exhibit G, by a lump sum as to which Contractor and City mutually agree prior to the commencement of performance of the change; or 3. If the Work involved is not covered by unit prices set forth in Exhibit G and agreement to a lump sum is not reached, the change shall be performed on the basis of reasonable expenditures and savings of those performing the Work attributable to thb change, including, in case of a net increase in the cost of Contractor's performanee, a reasonable allowance on the net increase for overhead and profit, subject to the following: Contractor shall keep and present, in such form as City may prescribe, an itemized accounting of expenditures and savings together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs shall be limited to the following: costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; costs of materials, supplies, and equipment, including cost of transportation; rental costs of machinery and equipment, exclusive of hand tools, whether rented from Contractor or others; costs of premiums for all bonds and insurance, permit fees, and Agreement sales, use or similar taxes related to the Work; and additional costs of supervision and field office personnel directly attributable to the change. If a change to the; Work causes an increase or decrease in the time required for Contractor's performance, an egjritable adjustment to the time for performance shall be made. C. 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 tinge for performance. No course of conduct or dealings between the parties, nor express or implied accept~ttce of alterations or additions to the Work, and no claim that City has been ugjustly 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. D. Agreernent 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. E. If Cgntractor 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 ox engineer or separate contractor engaged by or on behalf of City, or by changes ordered in the Work, an act of God, tire, 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 F below. F. 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 working days of the beginning of the event for which the cla{m is made or on which it is based. If any claim is not submitted within the five-day period, it shall be deemed waived. G. No change or claim, nor any delay or dispute concerning the determination of any increase or decrease in the amount of time and money for the performance of the Work, shall excuse Contractor from pzoceeding with prosecution of the Work, including any Work as changed. ARTICI,E'4rII INSURANCE A. Contractor shall, at all fnnes 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 Agreement related to or arising out of the Work. Such coverage shall have not less than the following limits: a. Each occurrence $1,000;000.00 b. General aggregate . $2,000,000.00 c. Products/completed operations aggregate $2,000,000.00 d. The following coverage shall be included: • Blanket contractual liability • Products/completed operations • PersonaUadvertising injury • Broad form property damage • Independent contractors • Explosion, Collapse, and Underground Damage 2. ACITOMOBILE 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 $1,000,000.00 for each accident. 3. WOP,KERS' COMPENSATION AND EMPLOXER'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 reasop, 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 E. All insurance shall be written by an insurer or insurers acceptable to City and with a minimum financial rating not lower than "B+7{I" 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 shall provide contractual liability coverage for all indemnity obligations of Contractor under the Contract Documents. Each policy providing general liability or automobile liability coverage shall, in form satisfactory to City, (I) name as additiona[ 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. C. Contractor shall maintain the products and completed operations coverage for not less than five years after the date of final acceptance by City of all of Contractor's Work, Agreement 10 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, subwntractors, and suppliers. This insurance shall be written as a Builder's ltisk/lnstallation Floater "all risk" oz 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, collapse, and damage resulting from defective design, workmanship, or material. This insurance shall, without limitation, insure portions of the Work stored on or off the Projec site or in transit, when at the risk of City, Contractor, or a subcontractor or supplier. Contractor shall b solely responsible for any deductible amounts. This insurance shall remain in effect until final payment 'been made to Contractor or until no person or entity other than City has an insurable interest in the property to be covered by this insurance, whichever is sooner. City and Contractor waive all rights against each other and their respective employees, agents, contractors, subcontractors, and suppliers for damages caused by risks covered by the property insurance provided for in this Paragraph D, except such rights as they triay have to the proceeds of the insurance. E, All policies and certificates of insurance shall provide no less than 30 days' prior written notice to City in the event of cancellation, expiration, non-renewal, alteration, or induction (including but not limited to reduction by paid claims} of coverage or limits contained in the policy or evidenced by the certificat~!of insurance. Contractor shall famish City a certificate or certificates and espies o£policies, all satisfactory to City, evidencing that Contractor has all the required insurance and is in compliance with this Article VII. The certificate or certificates and copies of policies shall be delivered to Ciry's designated representative not less than seven days before Contractor fixst performs any of the Work. Ail policies except Workers' Compensation and Employer's Liability shall contain a waiver of subrogation in favor of City and its employees, officers, and agents, F. Contractor also shall maintain any additional insurance coverages and any higher limits provided for elsewhere in the Contract Documents and shall famish 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 ofthis Article VII. Certificates and copies of policies, satisfactory to City, evidencing the required insurance and compliance with this Article VII shall be delivered to City's designated representative not less than seven days before the subcontractor first performs any:of the Work. ARTICLE VIII 11VDEiVIlVTTY 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, 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 acts or omissions of Contractor; a subcontractor or supplier, or anyone dtrectly or indirectly employed by them or anyone for whose acts they may be liable, regardless Agreement 11 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 described in this Paragraph A, B. In claims against any person o;entity indemnified under the preceding Paragraph A by an employee of Contra tor, a subcontractor or supplier, or anyone directly or indirectly employed by them or for whose acts the may be liable, the indemnification obligation under Paragraph A shall not be limited by a ]imitation 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 IX 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 thew for Contractor's infringement of any Letters Patent in the performance of this Agreement or any breach or violation of trademark or proprietary or trade secret rights of others, as well as against any judgments, decrees, damages, costs and expenses sought, adjudicated, or recovered against any of them, on account of any such actual or alleged infringement. ARTICLE X COVENANT AGAINST UNDUE INFLUENCE 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 wntingent upon or resulting fram the ward or making of this Agreement. For breach or violation of this warranty, City shall have the right to ~oid this Agreemont without liability and, in its discretion, to deduct from the Contract Amount, ar otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or contingent fee. i 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 reasonabl}~ 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 recogni2ed certified public acwunting fir'ttt to examine, at City's expense, such of Contractor's books and records as may be necessary, in the accountant's reasonable opinion, to verify Contractor's compliance with this Article X. ARTICLE XI RECORDS REGARDING PAYMENT For a period of at least two yeazs after final payment to Contractor, Contractor shall maintain, in accordance with generally accepted accounting principles, such reeoeds as are necessary to substantiate that all applications for payment hereunder were valid and properly chazgeable to City. For lump sum contract Work, the rewrds shall demonstrate that the City was billed at appropriate times foz proper Agreement 12 percentages of completion and fox payments to subcontractors and suppliers. For any Work, including extra Work, not charged do a lump sum basis, the records to be maintained hereunder include but are not limited to all contracts, Subcontracts, material bills, wrrespondence, accounting records, lima sheets, payroll records, canceled checks, orders, and invoices pertaining to City's account. City or its representative sha]L 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. ARTTCLE X1I NOTICES A. The'following parsons are designated by the respective parties to act on behalf of such party and to receive all written notices and Payment Applications: or i David Blackburn City Admirlisttatox ___._ City of itiversida,MO 2950 NW'Vivion - Riverside M 64150 Po Co ha o i k n R,A, Knapp Construction. Inc. 6501 Miami Ave. Kansas City, KS 66111 913-287-8700 B. Any noilce required by rho Contract Docwnents to ba given in writing or tbat either City or Contraotor wishes #c give to the other is writing shall be signed by or on behalf of the party giving notice. The notice shall bQ~ deemed to have been given when it is received at the address stated above for the addressee or at such other address as the addressee may famish the other party. C. Contractor's designated representative shall ba available to meet with City at any time during the performance of the Work and sha11 have full authority to act on Contractor's behalf on any matter related to this Agreement andlor the Work, ARTICLE XIII ALFAULT A. Tf Contractor fails to comply, becomes unable to comply, or wi0t reasonable probability (as detemrined solely by City) will become unable to comply with any of Contractor's obligations under the Contract Documents, including but not limited to (I) failure at any time to :famish sufficient labor or supervision; sufficient materials or soxvicas (including but not limited to insurance and bonds} complying with thB Contract Documents, ar suiBctent or properly operating tools, equipment, or other items necessary for the perfomrance of the Work, (2) failure in~any respect to prosecute the Work with promptness and di]igence, (3) causing any stoppage of, delay +a, or interference with any work of City or any others on the Protect, or (4) abandonment by Contractor of all or any part of tfie Work, Contractor shalt be in def9ult, and if rho default is not corrected to City's satisfaction within 72 hours of Contractor's receipt of w;iitten notice to correct from City, City may, in addition W any other righf or Agreement 13 remedy City may have, famish any necessary labor, supervision, materials, tools, equipment, services, or other items through City or others, to correct the default, at Contractor's expense, or terminate Contractor's right to proceed with performance of any part or all of the Work and take over and complete the performance of such Wprk, through City or others, at Contractor's expanse. 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 employee Contractor's employees or former employees, all without any liability to Contractor. C. Contractor shall be liable for and shall pay to Ciry 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, chazges, liabilities, fines, penalties, losses, damages, and claims may be deducted by Ciry from the amount, if any, othenvtse due Contractor, and Contractor shall pay 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 City by the Contract Documents is exclusive of any other right or remedy provided or pemvtted in the Contract Documents or by ]aw or equity, but each right or retttedy is cumulative of every other right or remedy, and every right or remedy may be enforced concutrettly or from time to tixne. 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. 1?. No fa4ilure or delay of City to give notice to correct any default of Contractor or to exercise any of City's rights ar 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 obligafions under the' Contract Documents shall be deemed or construed as a waiver or relinquishment of City's right to insist upon strict performance of the obligation in any future instance. ARTICLE XIV 't}ERMINATION FOR CITX"S CONVENIENCE City may, at any time, for any reason, and without Contractor's being in default, terminate Contractor's performance o~ any put or all of the Work for City's own convenience by giving written notice to Contractor. Upon ~ ceipt of notice of termination for City's convenience, Contractor shall, to the extent directed by City, step work and rum 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 temunation for convenience, Ciry 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 Agreement 14 converted to a termination for City's convenience, and City's obligation to Contractor shall be limited to payment to Contractor as provided in this Article XIV. ARTICLE XV COMPLIANCE V4R'I'II 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 prorrtpt payment laws and all U.S. Atrny Corps of Engineers guidelines, rules, regulations, and criteria fo'r work within or adjacent to a flood control project area. Contractor shall secure all permits from pubic and private sources necessazy for the fulfillment of Contractor's obligations under the Contract Docum Ints. 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, rho 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 (bj a corresponding statement frpm each subcontractor of any tier that employed any workers in connection with the Work during the pOriod covered by the Application for Payment. C. This 4greement shall be governed by and construed in accordance with the laws of the State of Missouri. ARTICLE XVI 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 pr~vide that City is an intended third-party beneficiary of the subcontract -or purchase order. C. Each subcontract or purchase order issued by Contractor far 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. Tbis assignment shall be effective upon acceptance by City in writing and only as to the specific subcontract(s) and/oz purchase order(s) that City designates in the writing. This assignment may be accepted by City at any tine, whether before or after final payment to Contractor, and may not be withdrawn by Contractor without City's written consent. Agreemont I S ARTICLE XVI! ACCESS TO SITElCLEANING 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 ali adjacent areas. B. Representatives of City may inspect or review any Work performed by Contractor, and consult with Contractor, at any time. Gity's inspections or reviews shall not constitute acceptance or approval of Work unless specifically stated in writing. Contractoz shall meet with City at the request of City. C. Contractor shall at all limos during performance of the Work keep the Project Bite 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 24 hours after written notification from City of non-compliance, City may implement cleanup measures wiWout further notice and deduct the cost from any amounts due or to become due Contractor. ARTICLE XVIII COMPETENCE Contractor represedts and warrants that it maintains all necessary licenses, registration, competence, and experienci; to perform all the Work. ARTICLE XIX WARRANTX 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. If any defects In the Work are discovered within one year from final completion of the Work, Contractor shall promptly remedy such defects at its awn expense. This obligation shall be in addition to Contractor's obligation to perform its Work properly. Neither final payment, Administrator's fnal certificate, nor any other provision in the Contract Documents shall affect Contractor's obligation to cpraplete 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 XIX does not establish a period of limitation with respect to any obligation of Contractor under the Contract Documents, and does not limit the time allowed by law for any action for breach of such obligation. Agreement 16 ARTICLE XX S~'ORAGE 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 XXI SAFETX 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 ai 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 consWction. B. Contractor shall give notices required by and comply strictly with applicable laws, ordinances, rules, regulations, orders, and the Gke bearing on safety of persons or property or their protection from damage, injury, or loss. C. 1£ City deems any part of the Work or the Project sits 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 shake no claim for damages, for an increase in the Contract Amount, or for a change in the time for performance of rho Work based on Contractor's compliance with City's reasonable request. ARTICLE XXII INDEPENbENT CONTRACTOR Contractor is an independent contractor, and neither Contractor nor any subwntractors, suppliers, employees, or agents shall be deemed an employee or agent of City for any purpose. ARTICLE XXIII CONFLICT Contractor shall promptly upon discovery advise City of any conflict, ambiguity or inconsistency in the Contract Documents, or between any Contract Document and actual field conditions, and City shall resolve such conflict, ambiguity or inconsistency in its sole discretion. Agreement 17 ARTICLE XXIV BONDS Prior to commencing any Work, Contractor shall obtain from a recognized surety acceptable to Administrator, a performance bond, a payment bond, and a maintenance bond, in the forms Exhibits D, E, and E to this Agreement. Each such bond shall be for the full Contract Amount. The premium for these bonds is included in the Contract Amount. ~ ARTICLE XXV 5EVERABII,ITX Should any specifi provision of this Agreement or other Contract Documents be found to unenforceable, the remaini~g provisionsshall remain in full force and effect. ARTICLE XXVI NO PRESUMPTION AGAINST THE DRAFTER No presumption or inference against City shall be made because of City's preparation of this Agreement or other Contract Documents. ARTICLE XXVII DISPUTES/ATTORNEY FEES A. Tf 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 th eventof litigation between Contractor and City concerning the Projector this Agreement or other Contra t Documents, the prevailing party shall be entitled to recover from the other party its reasonable attorney fees, costs, and expenses arising from such litigation. ARTICLE XXVIII TITLES The titles given to the Articles in this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. Specifically, but without limitaflon, the titles shall not define or limit any of the provisions of any of the Articles. ARTICLE XXIX ENTIRE AGREEMENT This Agreement and:the other Contract Documents constitute the entire agreement between the parties with respect to them subject matter. Any prior agreements, understandings, or other matters, Agreement ig whether oral or written, ate of no further force or effect. Subject to Article VI of tkts Agreement, this Agreoment and any other t:oniract Document may be amended, changed, or supplemented only by written agreement executed by both of the parties. THIS At3REEMENT shah be binding on the parties only after ii has been duly executed and approved by City and Contractor, IN WITNESS SVHEl2BOF, the parties have caused this Agreement to be executed by their authorized representatives; CITY OF,,RTVE?RSID}; By: G~~-LL~•CCilit-/~ MAXOR ATTES D: O >r CLERIC ~A P.23APP CONSTRUC~OT}. INC By:~. (Signet ~- Printedtdatne: R.A. Knapp Title: President Agreement 19