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Home My WebLink About2009-072 - Sprinkler systemBILL N0.2009-72 ORDINANCE N0.2009-72 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH SIMPLY GREEN LAWN SPRINKLERS, INC. FOR INSTALLATION OF SPRINKLER SYSTEMS FOR THE ARGOSY CASINO PARKWAY ROAD PROJECT WHEREAS, the City of Riverside, Missouri ("City's has received a proposal and engaged in negotiations with Simply Green Lawn Sprinklers, Inc. ("SGLS") for installation of sprinkler systems as part of the Argosy Casino Pazkway Project (the "Services"); and WHEREAS, the City and SGLS have reached an agreement concerning the provision of and payment for such Services. NOW, THEREFORE, be it ordained by the Boazd of Aldennen of the City of Riverside, Missouri, as follows: Section 1. This Ordinance is intended and is hereby detennined and declared to be necessary to accomplish and serve the public purpose of constructing and improving public roads within the City. Section 2. The City of Riverside shall enter into an agreement whereby SGLS shall provide the Services as described in Exhibit A attached hereto to the City at a total cost of $181,233.90 (the "Agreement'. Section 3. The execution and delivery of the Agreement, in substantially the form attached hereto as Exhibit B 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 aze 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. Argosy Round About Item A SPRINKLER EQUIPMENT: q'~y Rain Bird 1800 Series 4" Spray Heads 176 Gate valves g Rain Bird Quick Coupler 2 Rain Bird 5004 Rotary Heads 145 Rain Bird PGA Series 1" Valves 0 Rain Bird PGA Series 1.5"Valves 10 PVC Fiftings g 14 ga. UL wire /Grounding 300.0 1.5"Class 200 PVG Per Ft. 0 2.0" Class 200 PVC Per Ft. 600 3.0" Class 200 PVC Per Ft, 2600 4" Sleeves 300 6" Pve 500 Bares 400 Grand Total $63,767.90 Exclusions; electric supply to controller, installation of water meter, erosion. control,core dri0ini of any kind, bonding of any kind, boring under existing or new parking lot, union wages, installation. of backflow preventer, Booster Pumps, Gravel backfill of sleeves Grading, Topsoil, Sad, .Seeding, Rock Removal, damage to private unmarked lines We appreciate the apporfunity to bid this project, thank y©u for your time, Sincerely, Anthony Shores, president Simply Green Lawn Sprinkler Inc. 4301 Gateway Riverside, Missouri 64150 816-748-5817 fax: $164505-3289 Argosy Pkwy Item. B SPRFNKLER EQUIPMENT: qTy Rain Bird 1800 Series 4" Spray Heads 62 Gate valves 10 Rain Bird Quick Coupler 3 Rain Bird 5004 Rotary Heads 470 Rain Bird PGA Series 1"Valves 0 Rain Bird PGA Series 1,5° Valves 22 Zone(s) Xerigation Drip Irrigation 0 Rainbird Controller 0 PVC Fittings 14 14 ga. UL wire! Grounding' 10000 MASTER Valve p BackFlow Preventer 0 1.5" Class 200-PVC Per Ft. 0 2.0" Class 200 PVC Per Ft. 600 3.0" Class 200 PVC Per Ft. 8600 4" Sleeves 300 6" Pvc 100 Bores 200 Grand Total $117,488:00 Exclusions: electric supply to controiier, installation of water meter, erosion control,core drilling of any kind, bonding of any kind, boring under existing or new parking lot, union wages, installation of backflow preventer, Booster Pumps, Gravel backfill of sleeves Grading, Top soil, Sod, Seeding, Rock, Removal, damage to private unmarked lines We appreciate the opportunity to bid this project, thank you for your time, Sincerely, Anthony Shores, president Simply Green Lawn Sprinkler Inc. 4301 Gateway Riverside, Missouri 64750 816-746-6817 fax:816-505-3389 Section 5. This Ordinance shall be in full force and effect from and after its passage and approval. N // Passed this ~ ay of 1,,2-009. ATTE City Clerk `. Mayor Kathleen L. Rose AGREEMENT BETWEEN CITY OF RIVERSIDE AND SIMPLY GREEN LAWN SPRINKLERS. INC. FOR INSTALLATION OF SPRINKLER SYSTEMS FOR THE ARGOSY CASINO PARKWAY ROAD PROJECT CONTRACTOR: SIMPLY GREEN LAWN SPRINKLER. INC. ORDINANCE NO.: 2009-72 CONTRACT PRICE: $181,233.90 Agreement AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR INSTALLATION OF SPRINKLER SYSTEMS FOR THE ARGOSY CASINO PARKWAY ROAD PROJECT THIS AGREEMENT, made and entered into as ofthe ~~ day of , 2009, by and between the City of Riverside, Missouri ("City"), and SIMPLY GREEN AWN SPRINKLERS, INC. ("Contractor"), shall govern all Work to be provided by Contractor for City o e Project. WHEREAS, City, under the provisions of Ordinance No. 2009-72, duly approved JUNE 2, 2009 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, azchitects, 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 mutual covenants and consideration herein contained, IT IS HEREBY 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, and/or 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 Appendix A to this Agreement, subject to Appendix B to Agreement this Agreement (Project Exclusions), and in the other Contract Documents, in full compliance with all requirements set forth in the Contract Documents, subject to additions, deletions, and other changes as provided for in Article VI of this Agreement. The Work may refer to the whole Project, or only a part of the Project if work on the Project also is being performed by City or others. D. Contractor represents that it has evaluated and satisfied itself as to all conditions and limitations under which the Work is to be performed, including, without limitation, (1) the location, condition, 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. ARTICLE II 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 One Hundred Eighty-One Thousand Two Hundred Thirty Three and 90/100 Dollars ($181,233.90). 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. 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 Ordinance No. 2009-72 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 A. Contractor shall commence performance of the Work on the date indicated in a written notice ("Notice to Proceed") that shall be given by City to Contractor: B. Contractor shall achieve Substantial Completion (as defined in Article V, Pazagraph F of this Agreement) of all the Work not later than 140 calendaz days after the date indicated in the Notice to Proceed for commencement of performance of the Work. 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. 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 performance work daily to complete the Work except for Saturdays, Sundays, holidays, and days of inclement weather. This Paragraph C 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. Agreement 3 D. 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 drrected 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 an updated, current schedule. Neither the original schedule nor any update shall exceed time limits current under the Contract Documents. E. 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 fmished 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. F. 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 construction 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 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. 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. City's approval does not relieve Contractor from responsibility for defective work resulting from errors or omissions of any kind on the approved submittals. ARTICLE IV 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 aze the Contract Documents: 1. This AGREEMENT BETWEEN CITY OF RIVERSIDE AND CONTRACTOR. 2. WORK (Appendix A to this Agreement). PROJECT EXCLUSIONS (Appendix B to this Agreement). 4. PRICING (Appendix C to this Agreement). 5. PERFORMANCE BOND (Appendix D to this Agreement). Agreement 6. PAYMENT BOND (Appendix E to this Agreement). 7. PREVAILING WAGE RATES (Appendix F to this 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 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 Payment to the City representative designated in Article XII. In addition to 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 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. 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 are 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. Administrator shall review each application for payment and certify for payment such amounts as Administrator determines are due Contractor. From the total amount certified, Administrator shall withhold five percent as retainage until Substantial Completion of all the Work, as defined in Pazagraph F below. 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 Ordinance No. 2009-72. 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. Agreement 5 D. Neither Administrator's 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. 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 similaz 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. F. Contractor's retainage shall not be released until Contractor notifies City's designated representative in 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 all 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. Retainage 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 value of each item, as determined by Administrator, shall be withheld until such items aze completed. 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 aze 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. 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 aze waived. I. City may withhold final or any other payment to Contractor on any reasonable basis, including but not limited to the following: 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, Damage by Contractor or subcontractors or suppliers to property of City or others, 6. Contractor's breach of this Agreement, or Agreement 7. 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 chazged against the Contract Amount. This provision shall not confer any right upon any subcontractor or supplier to seek payment directly from City. ARTICLE VI 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 addifion, 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: L If the Work is covered by unit prices set forth in Appendix C, 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 Appendix C, 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 Appendix C and agreement to a lump sum is not reached, the change shall be performed on the basis of reasonable expenditures and savings of those perforating the Work attributable to the change, including, in case of a net increase in the cost of Contractor's performance, 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, pertnit fees, and sales, use or similar taxes related to the Work; and additional costs of supervision and field office personnel directly attributable to the change. Agreement 7 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. 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 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. D. 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. E. If Contractor is delayed or interfered with at any time- in the commencement or prosecution of the Work by an act or neglect of City, an employee, officer, or agent of City, or an architect or engineer or separate contractor engaged by or on behalf of City, or by changes ordered in the Work, an act of God, fire, or other cause over which Contractor has no control and that Contractor could not reasonably anticipate, the time for 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 seven calendaz 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 seven-day period, it shall be deemed waived. G. No change or claim, nor any delay or dispute concerning the determination of any increase or decrease in the amount of time and money for the performance of the Work, shall excuse Contractor from proceeding with prosecution of the Work, including any Work as changed. ARTICLE VII 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 have not less than the following limits: Agreement 8 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 • Personalladvertising injury Broad form property damage • Independent contractors • Explosion, Collapse, and Underground Damage 2. 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 $1,000,000.00 for each accident. 3. WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY -This insurance shall protect Contractor against all claims under applicable state workers' compensation laws. Contractor also shall be protected through employer's liability coverage against claims for injury, disease, or death of employees which, for any reason, may not fall within the provisions of a workers' compensation law. The limits shall not be less than the following: a. Workers' Compensation Statutory b. Employer's Liability: • Bodily injury by accident $1,000,000.00 • Bodily injury by disease $500,000.00 each employee B. All insurance shall be written by an insurer or insurers acceptable to City and with a minimum financial rating not lower than "B+XI" 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 hazazd. C. Contractor shall maintain the products and completed operations coverage for not less than ten years after the date of final acceptance by City of all of Contractor's Work. Agreement 9 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, 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 D, except such rights as they may have to the proceeds of the insurance. E. All policies and certificates of insurance shall provide no less than 30 days' prior written 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 ftunish City a certificate or certificates and copies of policies, all satisfactory to City, evidencing that Contractor has all the required insurance and is in compliance with this Article VII. The certificate or certificates and copies of policies shall be delivered to City's designated representative not less than seven days before Contractor first 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 azchitects, 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 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 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, 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 Agreement 10 anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regazdless 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 parry or person described in this Pazagraph A. B. In claims against any person or entity indemnified under the preceding Pazagraph A by an employee of Contractor, a subcontractor or supplier, or anyone directly or indirectly employed by them or for whose acts they may be liable, the indemnification obligation under Paragraph A shall not be limited by a limitation on the 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 them for Contractor's infringement of any Letters Patent in the performance of this Agreement or any breach or violation of trademark or proprietary or trade secret rights of others, as well as against any judgments, decrees, damages, costs and expenses sought, adjudicated, or recovered against any of them, on account of any such actual or alleged infringement. ARTICLE X COVENANT AGAINST UNDUE INFLUENCE 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 awazd 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 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 records as aze necessary to substantiate that all applications for payment hereunder were valid and properly chazgeable to City. For lump sum contract Work, the records shall demonstrate that the City was billed at appropriate times for proper percentages of Agreement I 1 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 XII NOTICES A. The following persons are designated by the respective parties to act on behalf of such party and to receive all written notices and Payment Applications: For Ci David Blackburn City Administrator City of Riverside, MO 2950 NW Vivion Riverside, M064150 For Contractor: 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 given when it is received at the address stated above for the addressee or at such other address as the addressee may furnish the other party. C. Contractor's designated representative shall be available to meet with City at any time during the performance of the Work and shall have full authority to act on Contractor's behalf on any matter related to this Agreement and/or the Work. ARTICLE XIII DEFAULT 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, or (4} abandonment by Contractor of all or any part of the Work, Contractor shall be in default, and if the default is not corrected to City's satisfaction within 72 hours of Contractor's receipt of written notice to correct from City, City may, in addition to any other right or remedy City may have, furnish any necessary Agreement 12 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 Work, through City or others, at Contractor's expense. B. If City exercises its right to take over and complete any part or all of the Work, City and its designees shall have access to and may take possession of Contractor's materials, tools, equipment, and other items at the Project site, en route to the site, or in storage or being manufactured or fabricated away from the site, as may be necessary to prosecute the Work taken over by City, and may employ Contractor's employees or former employees, all without any liability to Contractor. 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 may be deducted by City from the amount, if any, otherwise due Contractor, and Contractor shall pay City the full amount of any excess of such total over the amount 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 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. ARTICLE XIV TERMINATION FOR CITY'S CONVENIENCE City may, at any time, for any reason, and without Contractor's being in default, terminate Contractor's performance of any part or all of the Work for City's own convenience by giving written notice to Contactor. 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 Agreement 13 termination for City's convenience, and City's obligation to Contractor shall be limited to payment to Contractor as provided in this Article XIV. ARTICLE XV COMPLIANCE WITH LAWS A. Contractor shall comply strictly with all federal, state, and local laws, ordinances, rules, regulations, orders, and the like applicable to the Work, including, but not limited to any applicable prevailing wage and prompt payment laws. 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 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 provide that City is an intended third-party beneficiary of the subcontract or purchase order. C. Each subcontract or purchase order issued by Contractor for any of the Work shall provide that it is freely assignable by Contractor to City. Contractor hereby assigns to City all its interest in any present or future subcontract or purchase order issued by Contractor for any or all of the Work. This assignment shall be effective upon acceptance by City in writing and only as to the specific subcontract(s) and/or purchase 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. Agreement 14 ARTICLE XVII ACCESS TO STTE/CLEANING UP A. Contractor shall ensure that the Work, at all times, is performed in a manner that affords reasonable access, both vehiculaz and pedestrian, azound 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 24 hours 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 XVIII COMPETENCE Contractor represents and warrants that it maintains all necessary licenses, registration, competence, and experience to perform all the Work. ARTICLE XIX WARRANTY A. Contractor shall exercise high professional skill, care, and diligence in the performance of the Work, and shall carry out its responsibilities in accordance with customarily accepted good professional practices. If any defects in the Work are discovered within one year from fmal completion of the Work, Contractor shall promptly remedy such defects at its own expense. This obligation shall be in addition to Contractor's obligation to perform its Work properly. Neither fmal payment, Administrator's fmal 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 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. ARTICLE XX STORAGE OF MATERIALS AND EQUIPMENT Only materials and equipment that aze 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 Agreement 15 removed from the Project site. Protection of construction materials and equipment stored at the Project site from weather, theft, and all other casualty or damage is solely the responsibility of Contractor. ARTICLE XXI SAFETY A. Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with performance of 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. C. 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 6me for performance of the Work based on Contractor's compliance with City's reasonable request. ARTICLE XXII INDEPENDENT CONTRACTOR Contractor is an independent contractor, and neither Contractor nor any subcontractors, suppliers, employees, or agents shall be deemed an employee or agent of City for any purpose. ARTICLE XXIII 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 XXIV BONDS Prior to commencing any Work, Contractor shall obtain from a recognized surety acceptable to Administrator, a performance bond and a payment bond, in the forms at Appendixes D 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. Agreement 16 ARTICLE XXV 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 XXVI NO PRESUMPTION AGAINST THE DRAFTER No presumption or inference against City shall be made because of City's prepazation of this Agreement or other Contract Documents. ARTICLE XXVII 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 Mediafion 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 en$tled to recover from the other party its reasonable attorney fees, costs, and expenses azising 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 limitation, 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 their subject matter. Any prior agreements, understandings, or other matters, whether oral or written, aze of no further force or effect. Subject to Article VI of this Agreement, this Agreement and any other Contract Document may be amended, changed, or supplemented only by written agreement executed by both of the parties. THIS AGREEMENT shall be binding on the parties only after it has been duly executed by City and Contractor. Agreement t ~ IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives. ATTES D: C Y CLERK ITY ATTORNEY CITY OF RIVERSIDE By: MAYOR SIMPLY G N LAWN SP ERS, INC. By: (Sign ue (~~ ~, Printed Name: ~ (.IvL~ L°~ Title: ~~j,QJ/ Agreement 18 * * * * Bond # * ~ * PAYMENT BOND * * The American Institute of Architects, AIA Document No. A312 * * (December, 1984 Edition). Any singular reference to Contractor, Surety, * t * Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): Simply Green Lawm Sprinklers, Inc Old Republic Surety Company 4301 NW Gateway Riverside MO 64150 OWNER (Name and Address): City of Riverside 2950 NW Vivion Riverside MO 64150 CONSTRUCTION CONTRACT Date: Amount: 187,233.90 Description (Name and Location): Installation of sprinkler systems for the Argosy Casino Parkway Road project. BOND Date (Not earlier than Construction Contract Date):June 16, 2009 Amount: 181,233.90 Modifcations to this Bond: ® None ^ See Page 2 CONTRACTOR AS PRINCIPAL Company SURETY (Corporate Seap Company: Simply Green Lawn Spri ers, Inc Signature: Name and Title: /yy ~fljppj~t/7 Old Republic Surety Company ,o ( i~ SEAi ~4= t9 Signature:y Name and Title: Bradley C James (Anv additional sionatures appear on bane 2.) (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: 1 The Contractor and the Surety, jointly and severally, bind them- selves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the pertormance of the Construction Contract, which is incor- porated herein by reference. 2 With respell to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construc- tion Contract, provided the Owner has promptly notified the Con- tractor and the Surety (at the address described in Paragraph 12) of any caims; demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 Wth respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): 4.7 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address tlescribetl in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with sub- stantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were fur- nished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Con- tractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. OR~C 22114 (7-93) Page 1 of 2 5 If a notice required by Paragraph 4 is given by the Owner to the Con- tractor or to the Surety, that is sufficient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days aRer receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed . 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construc- tion Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Perfor- mance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obli- gations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, pur- chase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of wmpetent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Con- tract, whichever of (1) or (2) first occurs. If the provisions of this MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Paragraph are void or prohibited by law, the minimum period of limi- tation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statu- tory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limi- tation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdic- tion where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Con- struction Contract or to perform and complete or wmply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: SURETY (Corporate Seal) Company: Signature: - Name and Title: Adtlress: (Corporate Seal) Signature: Name and Title: Address: Page 2 of 2 tl~"*1c* ~* OLD REPIBLIC POWER OF ATTORNEY I III6***** Surety Corr~Y KNOW ALL MEN BY THESE PRESENTS: That OLD REPUBLIC SURETY COMPANY, a Wisconsin sfock insurance corporation, does make, constitute and appoint: KIRK W.:KRUEGER, LADEENA A JAMES, JASON M. FORGE, RAYMON S.'PEARSON, JOSEPH ' i W. HERREN, KRISTIN S,`EB$ERTS, TERESA G. MILLER,: BRADLEY C: JAMES,S,OF NORTH KAN6A5 CITY,"MO its tnte and lawful Attontey(s)-in-Fact, with f~Al power and authority, not excxeding $10,000,000, fa-and on behalf of the company as surely to execute and delr~ and affix the seal;ofthe oornpanythereto (if a seal is required), bonds undertakings, recognizances or other written obligations in the nature thereof;(otherthan bait bonds, bankdepcsitay bonds, mortgage deficiency bonds mortgage guaranty bonds, guarantees of rctstallment paper and note guaranty bards sue-insurance wakens canpensation bor><!s guaranteeing payment of bane€its asbas[os'abaternentcontract borKts, waste mar~agerrient taxis, hazardous waste remediation bonds or black keg bonds), as follows: ALL WRITTEN INSTRUMENTS. IN AN AMOUNT NOT TO EXCEED AN AGGREGATE OF SEVEN i-IUNDRED FIFTX THOUSAND DOLLARS ($750',000}-----------;,FOR ANY SINGLE OBLIGATION, REGARDLESS OF THE NUMBER pF INSTRUMENTS ISSUED FOR THE:: OBLIGATION. and Yo bind OLD REPUBLIC SURETY COMPANY thereby, and at) of the acts of said Attorneys in-Fact, pursuant to these presents, are ratified and confirmed. This d4cumetit is not valid unless. printed on colored background and is multi-colored. This appointment is made under and by authority of the board o€ directors at';a special meeting held on February 18, 1982. This Power of Attorney is signed and sealed ~ byfiacsimile under and by the authority of the'iollowing resolutions adopted by the board of directors of the OLD REPUBLIC SURETY COMPANY on February 18, 1982. "' RESOLVED that, the president, any vice-president, or assistant vice president in conjunction with the secretary or any assistant secretary, may appoint attorneys-in-fact or agents with authority as defined or limited in the instrument evidencing the appdrttment in each case, for and on behalf of the company to execute and deliver and affix the seal of the company to bonds, undertakings, recog- nizances, and suretyship obligations of all kinds; and said officers may remove any such attorney-in-fact or agent and revoke any Power of Attorney previously granted to such person. RESOLVED FURTHER,tktat any boM, undatalgng, recognizance, or surelystup obFgat~rt shafit3evalid and birtdirig upon the Company (i) when signed EA'the IeM, or?Y vice president a assistant vie president, and attested and sealed ('rf a seethe required) by any secretaryorassistarrt secretary; or (li) wtten skjned byfhe president, anyvice president or ass(staM.uice president, secretaryet assistant secretary, and cour#ersignedandeealed (if a. seal - be requif'ed) bqa duly authorizedattorney-In lad or agent; or : (ill) when tluy ezacuted and sealed (if a seal be +equired) by one ocmore attorneys-in--fact oragents pursuant to and wRhin the Itinits of the authority evidenced by the Power d Attorney issued Ely: the company ~ such person ~ persons. RESOLVED RJRII-IEFittratthe signature of arty auttarized officer anr} the sal of the company may be affixed by facsimile to ary Power of Atthnay or ', certification thereof authatdrg the exerx>bort and delivery of any.band, urxiert2larg, recogrtizartca„or other suretyship obligators d the conpary,and silt signature and seal when so used shall have the same force and effect as though manually affixed. IN WITNESS WHEREOF, OLD REPUBLIC SURETY COMPANY has caused these presents to be,signed by its proper officer, and its corporate seal to be afffxetlthts 22ND day of SEPTEMBER2, 2flU8 OLD REPUBLIC SURETY COMPANY y 6EALF Assistant Secretary - . ' ,~ Presitlent STATE OF WISCONSIN, COUNTY OE WAUKESHA - SS ~""'" ^'°'""~ On this 22ND day of SEPTEMBER, 2008 ,personally came before me, GERALD C. LEACH and RICK A. JOHNSON to me known td be the individuals and officers of the OLD REPUBLIC SURELY COMPANY who executed the above instrument, and they each acknowledged the execution of the same, and being by me duly sworn;` did severally depose and say; that they are said officers of the corporation aforesaid, and that the seal affixed to the above instrument is the seal of the corporation, and that said corporate seal and theihsigrr2tures as such officers were duly affixed and subscribed to the said instrument by the authority of the board of directors of said corporatioh. ., //' , i Notary Public ~~~ PIIBL\c ,tat `+Fa>w s~o. °q' My commission expires:01/18/2009: CERTIFICATE I, the undersigned, assistant secretary of the OLD=REPUBLIC SURETY COMPANY,sa, Wisconsin corporation, CERTIFY that the foregoing and attached Power of Attorney remains in full force and has not been revoked; and furthermore, that the Resolutions of the board of directors set forth in the Power of Attorney, are now in force. 40-3878 ~,,,~~w .~} Signed and sealed at the Ctty of Brookfield, WI this ~_day of V R °E w...,,:: ~ BEAL ~ ~ ~,, KRUEG£R & JES,,yddSURANCE -[~iG~- ~m Assistant Semetary ORSC 22262 (2/071 y * * * * Bond # * * PERFORMANCE BOND * ~ * The American Institute of Architects, * * AIA Document No. A312 (December, 1984 Edition) * * * Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): OWNER (Name and Address): Simply Green Lawn Sprinklers, Inc City of Riverside 4301 NW Gateway 2950 NW Vivion Riverside MO 64150 Riverside MO 64150 CONSTRUCTION CONTRACT SURETY (Name and Principal Place of Business): Old Republic Surety Company Date: Amount: 181,233.90 Description (Name and Location): Installation of sprinkler systems for the Argosy Casino Parkway Road project. BOND Date (Not earlier than Construction Contract Date):June 16, 2009 Amount: 181,233.90 Modifications to this Bond: CS None ^ See Page 2 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Simply Green Law pri ers, Inc Signature: r Name and Title: e~'~ {may ~~f~' P/t/7 SURETY ~.~„w""~""; €~ ~ ~_ Company: (Cr '$ ,, ,4.. .F 1 8&,,,,.,.,~a Old Republic Surma Company ~"" Signature: ~ - >=~ Name and Title: Bradley C James (Any additional signatures appear on page 2.) (FOR INFORMATION Only- Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): 1 The Contractor and the Surety, jointly and severally, bind them- selves.. their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to par- ticipate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default! the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is con- sidering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than ffteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Con- tract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price tc the Surety in accordance with the terms of the Construction Contrail or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and com- pletion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contrail, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or ORSC 22119 (10-93) Page 1 of 2 4.4 Waive its right to perform and complete, arrange for completion, Or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond ffteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its Obligations under this Band, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall no[ be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defec- tive work and completion of the Construction Contract; 6.2 Additional legal design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are speci- fied in the Construction Contract. actual damages caused by delayed performance or non-performance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract and the Balance of the Contract Price shall not 6e reduced or set off on account of any such unrelated obligations. No right of action shall MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Con- tractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statu- tory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other Gaims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) SURETY Company: (Corporate Seal) Address: Name and Title: Signature: ORSC 22119 (10-93) Address: Name and Title: Signature: Page 2 of 2 ** ~*' : *~ `' (LLD REP *~*** -KNOW ALL MEN BY T does make, constitute. and KIRK W.;.KRUEGER W HERREN, KRIS NORTH KAATSAS CI ~: itstnre and lawl[fl.Attomey(sJ-in . and sffuc the seat o€the bonds, t~dcdepcailay txxxls, wgt<ers oompensabgn txinds g ': or Mack ttn9 bonds), as follows ' ALL WRI SEVEN'H I nt~r:rnnm COMPANY POWER OF ATTORNEY ESENTS: That OLD REPUBLIC SURETY COMPANY, a Wisconsin stock insurance corporation, LADEENA A. JAMES, JASON M. FORGE, RAYMON S. BEA TIN S. EBBER~'S, TERESA G. MILLER, BRADLEY C. JAMS 2'Y, MO -Fact with tutl:powe' and auttmrtty not.pxoeeding $10,000000, for and on behalf of the eoitipany as. conparry thereto (if a seal is regw~ed), bonds, ui'itlerG'34cugs, re~gnizanoes or outer written obFgations m thex mortgage deficiency lxxxls mcMgage'gi,aranty bonds guarantsei> of installment paper and note g uaraM~ing payment of benefits, asbestos abatement contract bonds; waste management bonds, hazartl TRUMENTS IN AN AMOUNT NOT TO EXCEED AN IFTY THOUSAND DOLLARS($750,000}`-------= ARDLESS OF THE NUMBER OF INSTRUMENTS I IC SUFt(nTY COMPANY thereby, and all of file acts ofi'said Attomr s docurnerit is not valid unless printed on colored background and ~y authority of the bo~rdbf directors at a special meeting held ort'February 18, 1982. under and by the authority of the following resolutions i3ddpted by the board of N, JOSEPH OF deln2r SINGLE OBLIGATION. these presents, are opointmeM is made s signed and sealed IEPUBLIC SURETY AGGREGATE OF --- FOR ANY SUED'. FOR THE vrrmivr on February 18, 1982. RESOLVED that, the president, apy vice-president, or assistant vice president in conjunction with- the secretary or any assistant secretary, may appoint attorneys-ih=factor agents with authority as defined or limited in the Instrument evidencing the appointment in each case, for and on behalf of the company to execute and deliver and affix the seal of the company to bonds, undertakings, recog- nizances, and suretyship obligations of all kinds; and said officers may remove any such attorney-in-fact or agent and revoke any Power of Attomey previously granted to such person. RESOLVED FlN3T1-IER,ttrat ant bond,.undt3taking, recogn¢ar~ce, or staelyship obligation shall bevalid arW lan~ngupon the Cornpeny () whertslgr>edbythepresidetit,anyvbapresidentorassistantvicepresident,arxlattestedandsealed(ifaseall~erequired)byanYsecretaryorassistant secretary; or U7 (llQ RESOLVED RJRiFIER,th~the signature of any:, certlficcafiori tllereof aultidiieng the execution and signatue and seal when soused shall have fN WITNESS WHEREOF, OLD REPUBLIC or assistant vice presi~nt, secretarynr assistarH secretary, and or agent; or sired) by one or more attomeys-in•fac# or agents pursuant io.e company lY3 such person or persons. uetl officer and the seal of the company rfiay be affixed by fa xyof ary bond, tudertal~ig, recognvarice~ ar other suretyship c d eff h corporate seal to be affixed this 13TH day of MAY, ~~ _ Qf a seal flrriits of the authority an act as t ough manually affixed. APANY has caused these presents to tie signed by its proper officer, and its 2009. ~, ~ CtI.D REPUBLIC SURETY COMPANY 3 g ~~ F ~ ~Y ~- /~ ~ President 3TATE OF WISCONSIN, COUNTY OF WAUKESHA - SS ""^,'M On 4his 13TH day of MAY, 2009 ,personally came before me, HERALD C. LEACH artd RICK R. JOHNSON to me known to be the individuals and officers of the OLD REPUBLIC SURETY COMPANY who executed the above instrument, and they each acknowledged the execution of the same, and° being by me duly sworn, ditl severally depose and say; that 3hey are said officers of the ccxporatibn aforesaid, and that the seal affixed to the above instrument is the seal'of the corporation, and that said corporate seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority of the board ~ directors of said corporation. - f~~ gOT~ev~ f '__~`~`.z~ r _ 1 ~ Nptaly PtIbi1C (~ t~+`~'0BL` s' My commission expires: 12 .fiox /022012 CERTIFICATE I, the understgnad, assistant secretary of the OLD REPUBLIC SURETY COMPANY, a Wisconsin corporation, CERTIFY that the ~regoing and attached Power of Attorney remains 1n fuU force and has not been revoked; and furtherrnore, that the Resolutions of the bcar8 of directors set forth rn the Power of Attomey, are now in force. 4D-3878 ,,~ ~l, .err 't"q~ Signed and sealed at the City of Brookfield, WI this ~~ ~' day ofnV~ ~00 ~ 8 AL~S~~~ f . jfR.UEf2"ER & !: J ~,SURANCE assistant Secretary- ~:... ORSC 22262 (9/0a)