HomeMy WebLinkAbout2004-100 - Construction Contract with D. H. Restoration, IncBILL NO. 2004-100
ORDINANCE NO. 2004-100
AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF A
CONSTRUCTION CONTRACT WITH D H RESTORATION, INC.
TO APPLY SEALANT ON THE RIVERWAY WALK AT THE E.H. YOUNG
RIVERFRONT PARK IN THE CITY OF RIVERSIDE
WHEREAS, the City of Riverside, Missouri ("City") desires to engage the services of a
contractor to perform construction services in connection with sealant application on the
Riverway walk at the E.H. Young Riverfront Park, and
WHEREAS, the City advertised and received multiple bids for sealant application on the
Riverway walk at the E.H. Young Riverfront Park, and
WHEREAS, at its November 2nd, 2004, meeting the City's Board of Aldermen did
approve the bid of $14,935.00 for construction services; and
WHEREAS, DH RESTORATION, INC. has provided the City with a contract detailing
the costs and services approved by the City.
NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside,
Missouri as follows:
Section 1. The City of Riverside shall employ DII RESTORATION, INC.
to perform the construction services, and shall pay to DH RESTORA"PION, INC.
an amount not to exceed $14,935.00 for such construction services which are described in the bid
form attached hereto as Exhibit A (the Bid Form").
Section 2. The contract, in substantially the form attached hereto as Exhibit A, and payment
by the City for the construction services described therein, is approved, and the Mayor is
authorized to take such actions reasonably necessary to carry out the intent of this Ordinance on
behalf of the City.
Section 3. This Ordinance shall be in full force and effect from and after its passage and
approval.
Passed this 2nd day of November, 2004.
ATTES'T': ;
i
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r
/ ', ~ , ~,
Mayor ,
City Clerk
Citv c~fi'
IVERSIDE
' -- ~ 2950 NW Vivion Road
,x Riverside, Missouri 64150
` ~ 816-741-3993 or FAX 816-'46-8349
_ www.riversidemo.com
~y~
Missouri
November 15, 2004
Daniel Hertzog
DH Restoratiou, Inc.
17607 191` Street
Pleasant Hill, Mo 64080
llear Mr. Hertzog:
F,nclosed you will find an original signed contract between DH Restoration, Inc. and the
City of Riverside for your company to perform the exterior pavement caulking at the
Riverwalk in the E.H. Young Riverfront Park in Riverside, Mo.
If you should have any questions, please contact John Jackson at 816-741-3993.
Since -y, `'~~~~;~%~ijC-i
~'~~~~
Louse Rus~ck,
City Clerk
encs
AGREEMENT BETWEEN CITY OF RIVERSIDE AND CON~iTRACTOR
THIS AGREEMENT, made and entered into this O ~ day of
November 2004, and between the City of Riverside,
Missouri("City"),and DH Restoration, Inc. Contractor"), shall
govern all labor, material, equipment, and services to be provided
by Contractor for City on the Project described herein.
WHEREAS, the City of Riverside, under the provisions of
Ordinance No.2004-100 duly approved November 2,2004 by virtue of
the authority vested in the City by the general ordinances of the
City, intends to enter into one or more contracts for completion of
the Project; and
WHEREAS, the Mayor is authorized and empowered by the City to
execute contracts on behalf of the City, and the City Administrator
and his or her designees (collectively, the "Administrator") are
authorized to perform the contract functions herein; and
WHEREAS, the Administrator may designate an engineer,
architect, or other person to assist the Administrator in
performing his or her functions under this Agreement; and
WHEREAS, City desires to enter into an agreement with
Contractor to obtain labor, material, equipment and/or services as
set forth herein; and
WHEREAS, Contractor represents that Contractor is equipped,
competent, and able to undertake such an assignment;
NOW THEREFORE, in consideration of the mutual covenants and
considerations herein contained, IT IS HEREBY AGREED by the parties
hereto as follows:
ARTICLE I
THE PROJECT
Contractor shall provide all remaining Work for completion of
the Project.
"Work", as used in this Agreement and the other Contract
Documents, means all remaining labor, services, materials,
supplies, tools, equipment, supervision and management necessary to
accomplish the results and objectives described in Exhibit A, Scope
of Work, Exhibit C, Specifications and Drawings, and the other
Contract Documents, including all duly executed Change Orders.
The Contractor and each subcontractor shall evaluate and
satisfy themselves as to the conditions and limitations under which
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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) anticipated labor supply and costs, and (4) availability and
cost of materials, tools, and equipment. The City shall not be
required to make any adjustment in either the Contract Amount or
the Schedule in connection with any failure by the Contractor or
any subcontractor to comply with the requirements of this
paragraph.
ARTICLE II
CONTRACT AMOUNT
Provided Contractor performs all Work in accordance with the
Contract Documents, City shall pay Contractor the Lump Sum Amount
as listed in the Itemized Proposal. Such amount shall include all
taxes (except sales and compensating tax), costs, permit fees,
profit, overhead, expenses and compensation of every kind related
to the Work, and shall be referred to as the "Contract Amount."
This Agreement is subject to the City Ordinances, and payments
hereunder shall be limited to the amount of particular
appropriation for the Work hereunder by the Board of Aldermen. The
total payments under this Agreement shall not exceed the
appropriation contained in Ordinance No.2004-100 authorizing the
Work, and Contractor shall not seek, nor be entitled to, payments
exceeding such amount unless the City directs Contractor in writing
to perform additional work pursuant to Article vI of this
Agreement, and City enacts another ordinance authorizing such
amounts as City agrees to pay under Article VI.
ARTICLE III
SCHEDULE/EFFECT OF DELAY
A. Contractor's obligations to perform the Work shall begin
on November 15, 2004, unless otherwise directed in writing by the
Administrator.
Following Substantial Completion Contractor shall proceed as
promptly as weather conditions permit to complete all uncompleted
Work items.
The Contractor shall upon commencement of construction,
work daily to complete the project except for holidays and days of
inclement weather.
In the event the Administrator reasonably determines that
the performance of the Work has not progressed or reached the level
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of completion required by the Contract Documents or that the Work
is being unnecessarily delayed or will not be finished within the
prescribed time, the Administrator shall have the right to order
the Contractor to take corrective measures necessary to expedite
the progress of construction, including, without limitation, (1)
working additional shifts or overtime, (2) supplying additional
manpower, equipment, and facilities and (3) other similar measures
(hereinafter referred to collectively as Extraordinary Measures").
Such Extraordinary Measures shall continue until the progress of
the Work complies with the stage of completion required by the
Contract Documents, and clearly indicates that all Schedule dates
will be met. The City's right to require Extraordinary Measures is
solely for the purpose of ensuring the Contractor's compliance with
the construction Schedule.
1, The Contractor shall not be entitled to an
adjustment in the Contract Amount as a result of the
Extraordinary Measures required by the Administrator pursuant
to this paragraph. The City shall not be liable for any
costs, either direct or indirect, of Contractor in complying
with such Extraordinary Measures.
2. The City may exercise the rights furnished
the City pursuant to this paragraph as frequently as the City
deems necessary to ensure that the Contractor's performance of
the Work will comply with any schedule date or completion date
set forth in the Contract Documents.
C. If the Contractor abandons the Work or, in the
reasonable determination of the Administrator, fails to take
all Extraordinary Measures directed by the Administrator as
will insure timely and satisfactory completion of the work,
the Administrator may direct Contractor to discontinue all
Work under this Agreement. Contractor shall immediately
discontinue all Work upon receipt of such notice. The City
may then annul and cancel this Agreement and rebid the Work,
or any part thereof, and Contractor shall be liable for all
increased costs and expenses of City related to rebidding and
completing the Work. The City may take control of and use for
completing the Work all equipment or materials at the Project
site or otherwise identifiable for the Work, and the
Contractor shall receive a credit for the value of the
materials or equipment used. Upon receipt of notice from the
Administrator to discontinue Work, the Contractor shall
receive no further payment from the City until the City has
such Work completed by its own personnel or others, and then
the Contractor shall receive only such amount, if any, that
the total cost of the Work was less than it would have been if
completed by Contractor. If the cost of completing the work,
including costs from rebidding and related expenses, exceeds
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the unpaid balance of the Contract Amount, Contractor shall
promptly pay City the amount the City pays for proper
completion of the work in excess of the Contract Amount.
D. If the Work is delayed by Act of God, fire, or other
cause over which Contractor has no control and could not
reasonably anticipate, the Schedule shall be extended as the
City and Contractor shall reasonably agree; such extension
shall be made only if Contractor notifies City in writing of
the reason for the delay, and its expected length, within 7
seven days from the commencement of the delay. In no event
shall the Contract Amount be increased to allow Contractor's
recovery of that portion of delay costs caused by the acts or
omissions of Contractor, its agents or subcontractors.
ARTICLE IV
CONTRACT DOCUMENTS
The following documents, and any other documents
specifically referenced therein, and all Contract Change
Orders, form the entire Agreement between City and Contractor,
and are the Contract Documents:
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2
3
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This AGREEMENT BETWEEN CITY OF RIVERSIDE AND
CONTRACTOR
EXHIBIT A - SCOPE OF WORK
EXHIBIT B- FORM OF
Payment), approved
EXHIBIT C - ITEMINZED PROPOSAL
EXHIBIT D - PREVAILING WAGES FOR PLATTE COUNTY
In the event of any dispute between this Agreement and
any Exhibit, the terms of this Agreement shall prevail.
ARTICLE V
PAYMENTS
1. 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
BOND (For Performance and
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percentage of actual completion of each category,
multiplied by the dollar value of such category.
2. 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 requested in that
Application for Payment, each Application shall list the
original Contract Amount, the amount Contractor has
invoiced City to date for this Project, the amount
Contractor has received to date, total additions to and
deletions from the Contract Amount pursuant to approved
Change Orders or Addenda, and the amount of any additions
to or deletion from the Contract Amount that Contractor
seeks in its current Application. Contractor shall also
state the amount Contractor intends to pay its suppliers
and subcontractors 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 the
City's designed, provided all work and documentation are
acceptable to City. Within 15 days of its receipt of
payment from the City, Contractor shall pay all
subcontractors and suppliers to whom payment is owed from
the amount paid to Contractor.
3. All payments under this Agreement shall be made only
upon the approval of the Administrator or such licensed
Engineer or Architect as the Administrator may designate
to review payment applications. The Administrator shall
review each Application for Payment, and certify for
payment such amounts as the Administrator believes are
due Contractor under the Schedule of values and the
documentation submitted by the Contractor. From the
total amount certified, the Administrator shall withhold
five percent (5) as retainage until Substantial
Completion of the Work, as defined in the Contract
Documents. The City Treasurer, upon presentation of such
certificate, shall prepare a check for the sum certified
to be due, payable out of the funds in the City Treasury
available for Contractor under Ordinance No.2004-100.
Payment shall be made to Contractor after the Board of
Aldermen review and approve the payment, and authorize
the Mayor and City Treasurer to endorse the check for
payment.
4. Neither the Administrator's certificate nor payment
made thereon to Contractor shall constitute final
acceptance of any part of the work. Contractor shall
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remain obligated to perform all Work pursuant to the
Contract Documents.
5. With each Application, Contractor shall submit a
signed waiver of all rights of Contractor to assert any
claim under RSMo. 107.170 or under Chapter 429 (to the
extent applicable) for labor or material provided through
the date of the current application. The City may, at
its option, require a lien waiver and/or release of claim
rights from each subcontractor or material man performing
work on the project prior to making any payment to the
Contractor. The subcontractors' lien waivers and
releases shall be in a form approved by the City and
shall indicate that all debts for work performed by each
subcontractor included on any previous invoice to City
from the Contractor have been satisfied and that the
subcontractor waives and releases any lien, claim or
right to lien and any right to bring an action against
City or any other person or entity pursuant to RSMo
107.170, and under Chapter 429 and the other statutes
relating to mechanic's liens (to the extent applicable)
on account of labor or materials furnished for the
Project.
6. The Contractor's retainage shall not be released
until the Contractor indicates, and the Administrator
certifies, that the Work is Substantially Complete.
Retainage shall be paid to the Contractor within 30 days
of the Administrator's certification that the Work is
Substantially Complete. If there are any minor items
remaining to be completed upon Substantial Completion, an
amount equal to two hundred percent (2000) of the value
of each item, as determined by the Administrator, shall
be withheld until such items are completed.
7. The Contractor shall not be entitled to demand or
receive final payment for the Work until all requirements
of the Contract Documents are complied with, and the
Administrator shall have given his or her certificate to
that effect; the City, after ten days from the delivery
of the Administrator's certificate, shall pay the
Contractor all remaining funds which the Contractor is
due under this Agreement. Acceptance of the final payment
by the Contractor shall release the City from all further
obligations to having been claimed by Contractor, except
as to such amounts, if any, Contractor has specifically
identified in its Final Application for Payment as having
been claimed by Contractor. All claims to extra funds
not identified in the Final Application for Payment are
waived.
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8. The City may withhold final or any monthly payment
to Contractor on any reasonable basis, including the
following:
a. Unsatisfactory job progress;
b. Defective Work;
c. Contractor's failure to make payments to its
subcontractors or suppliers;
d. Reasonable evidence that all work cannot be
completed for the unpaid balance of the
Contract Amount;
e. Damage by Contractor or its subcontractor to
property of the City or other party;
f. Contractor's breach of this Agreement; or
f. Contractor's failure to provide requested
documentation.
ARTICLE VI
CHANGES
A. The City, without invalidating this Agreement, may
order changes in the Scope of Work or any other terms or
conditions of this Agreement which may result in an addition
to or deduction from the Contract Amount. No change in the
Scope of Work shall be effective unless signed by City's
authorized representative.
B. Extra or additional Work shall be performed for the
unit prices as listed in the Itemized Proposal or for a lump
sum as to which Contractor and the City shall mutually agree
prior to the commencement of such extra or additional Work;
City, at its option, may direct Contractor to perform such
extra or additional work pursuant to Exhibit B, Schedule of
Rates for Extra Work performed on a Time and Materials Basis.
C. A change in the Contract Amount or the Contract Time
shall be accomplished only by Change Order. Accordingly, 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 the City has been unjustly enriched by any
alteration or addition to the Work, whether or not there is,
in fact, any enrichment from the Work, shall be the basis of
any claim to an increase in any amounts due under the Contract
Documents or a change in any time period provided for in the
Contract Documents.
D. Agreement on any Change Order shall constitute a
final settlement of all matters relating to the change in the
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work which 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 construction schedule.
E. The City shall not be liable for any overtime labor
charges unless the City accelerates the Schedule and
specifically directs Contractor in writing, such as through a
Change Order, to perform overtime Work. In such case,
Contractor shall provide City, each day, with reports of
overtime hours worked the previous day. Contractor shall not
receive an increase in the Contract Amount for overtime worked
in maintain or comply with the Schedule, or if such overtime
is directed by the City as an Extraordinary Measure pursuant
to Article III.C.
ARTICLE VII
INSURANCE
Contractor shall maintain, at Contractor's expense, the
following insurance coverage during the period of the
contract, and shall provide the City with current Certificates
of Insurance naming the City and its employees as additional
insured's on all required coverage prior to commencement of
work under this Agreement:
1) COMMERCIAL GENERAL LIABILITY - Contractor shall
provide for Contractor, the City and its employees
against claims arising from damages to property and
illness, injuries to, or death of any person or
persons for occurrences related to or arising out of
the Work. Such coverage' s shall have not less than
the following limits:
Each occurrence ......................$1,000,000.00
General Aggregate .....................$2,000,0OO.OC
Products/Completed Operations
Aggregate ............................................................................. $2, 000, 000.00
Each Policy shall include the following coverage's:
- Contractual liability
- Products/completed operations
- Personal/Advertising injury
- Independent Contractors
2) AUTOMOBILE LIABILITY - Such insurance shall protect
the Contractor and the City against claims for
bodily injury and/or property damages arising out
of the ownership or use of any owned, hired and/ or
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non-owned vehicle, and shall include protection for
any auto, or all owned autos, hired autos, and non-
owned autos.
Limits:
Each accident combined single limits, bodily injury
and property damage........ $1,000,000.00
3) WORKERS' COMPENSATION - This insurance shall protect
the Contractor against all claims under applicable
Workers' Compensation laws. The Contractor and the
City shall also be protected through Employers
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 policy limits shall not be
less than the following:
Workers' Compensation .................Statutory
Employer's Liability:
Bodily injury by accident........... $1,000,000.00
Bodily injury by disease.......... $500,000.00
each employee. All insurance shall e maintained with an
insurer acceptable to City and which shall have a minimum
financial rating not lower than "XI" in the Best's Insurance
Guide, latest edition.
All policies and Certificates of Insurance shall
expressly provide no less than 30 days prior written notice to
City in the event of cancellation, expiration, non-renewal or
material alteration of coverage contained in the policy or
evidenced by such Certificate of Insurance. All policies
except Worker's Compensation shall contain a waiver of
subrogation in favor of the City and its employees.
The Contractor's right to receive payment under this
Agreement is wholly contingent upon Contractor's compliance
with this Article.
ARTICLE VIII
INDEMNITY
Contractor shall defend, indemnify, and hold harmless the
City, its officials, agents and employees from any and all
loss, damages, costs, expenses, claims and causes of action
("collectively, "Loss") which may be imposed upon or asserted
against City, its officials, agents or employees where such
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Loss is caused or incurred, or alleged to be caused or
incurred, in whole or in part as a result of the negligence or
other actionable fault of Contractor, its agents, employees,
subcontractors or affiliates. This indemnity shall apply
notwithstanding the joint, concurrent, contributory or
comparative fault or negligence of the City or any third
party. Nothing in this Article shall be deemed to impose
liability on Contractor to indemnify City when the City's
negligence or other actionable fault is the sole cause of
Loss.
In the event full indemnity pursuant to this Article is
unenforceable under any law, Contractor and City shall bear
any Loss in proportion to their respective fault.
Contractor further agrees to defend, indemnify and hold
harmless the City, its officials, agents and employees against
all liens, suits on liens and other claims, demands or suits
which may be asserted by any subcontractor, supplier, agent,
or employee of Contractor relating to the Project.
ARTICLE IX
PATENT LIABILITY
Contractor agrees to defend, indemnify and hold harmless
the City, its officials, 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
The Contractor warrants that it has not employed or
retained any company or person, other than a bona fide
employee working for the Contractor, to solicit or secure this
contract, and that it has not paid or agreed to pay any
company or person, other than bona fide employee, any fee,
commission, percentage, brokerage fee, gifts, or any other
consideration contingent upon or resulting from the award of
making of this contract. For breach of violation of this
warranty, the City shall have the right to void this contract
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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.
Contractor hereby 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
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 paragraph.
ARTICLE XI
RECORDS REGARDING PAYMENT
For a period of at least two years after the completion
of this Agreement, Contractor shall maintain, in accordance
with generally accepted accounting principles, such records as
are necessary to substantiate that all Applications for
Payment hereunder were valid and properly chargeable to City.
For lump sum contract Work, such records shall demonstrate
that the City was billed at appropriate times for proper
percentages of completion and for payments to subcontractors
and suppliers. For any Work, including extra work, not
charged on a lump sum basis, the records to be maintained
hereunder include, but are not limited to all contracts,
subcontracts, material bills, correspondence, accounting
records, time sheets, canceled checks, orders and invoices
pertaining to City's account. The City or its representative
shall, upon reasonable prior notice to Contractor, be given
the opportunity to audit such records at any time during
normal business hours to verify the accuracy of Contractor's
invoices and charges.
ARTICLE XII
NOTICES
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:
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For City:
Mr. David Blackburn
City Administrator
2950 NW Vivion Road
Riverside, MO 64150
For Contractor:
Daniel L. Hertzog
DH Restoration, Inc.
17607 191st Street
Pleasant Hill, Mo 64080
Contractor's designee shall be available to meet with the
City at any time during the performance of the Work, and shall
have full authority to act on Contractor's behalf on any
matter related to this Agreement and/or the Work.
ARTICLE XIII
TERMINATION OF AGREEMENT
City may at any time and for any reason terminate this
Agreement (including termination for City's convenience upon
5-days' written notice to Contractor. Upon receipt of such
termination notice, Contractor shall cease performance of all
work, and shall safeguard and protect from weather, theft, and
vandals in any Work then in progress. If City terminates this
Agreement without breach or default by Contractor, City shall
compensate Contractor, in accordance with the Contract
Documents, for all Work performed, including pro rata profit
actually earned, and for costs an obligations reasonably
incurred, up to the date of Contractor's receipt of notice to
terminate. In no even shall Contractor have any right or
claim for future lost profits. If City terminates due to the
breach or default of Contractor, City may withhold all
payments and shall have all rights and remedies available at
law.
ARTICLE XIV
COMPLIANCE WITH LAWS
Contractor shall comply with all Federal, State, and
local laws, ordinance and regulations applicable to the Work,
including, but not limited to, the Prevailing Wages on Public
Works Act, RSMO, 290-210 through 290.340 (1996), and the
Missouri Prompt Payment Act, RSMO 34.057 and 34.058 (1992), as
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applicable. Contractor shall secure all permits from public
and private sources necessary for the fulfillment of
Contractor's obligations under this Agreement.
With each Application for Payment submitted by Contractor
to the City, the Contractor shall include (a) a signed
statement, in a form acceptable to the City, showing, for each
weekly payroll period that ended during the period covered by
the Application for Payment, the name, address, social
security number, occupation, and craft of each worker employed
by Contractor in connection with the Project 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 employ any workers in connection with the
Project during the period covered by the Application for
Payment.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri.
ARTICLE XVI
ACCESS TO SITE
Contractor shall ensure that the Work, at all times, is
performed in a manner that affords reasonable access, both
vehicular and pedestrian, around the site of the Work and all
adjacent areas. The Work shall be performed, to the fullest
extent reasonably possible, in such a manner that public areas
adjacent to the site of the Work shall be free from all
debris, building materials and equipment creating potentially
hazardous conditions.
Representatives of the City may inspect or review any
Work performed by the Contractor, and consult with Contractor,
at any time. The City's inspections or reviews shall not
constitute acceptance or approval of Work unless specifically
stated in writing. Contractor shall meet with City at the
request of the City.
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ARTICLE XVII
COMPETENCE
Contractor confirms that it maintains all necessary
licenses, registration, competence and experience to perform
all of the Work.
ARTICLE XVIII
WARRANTY
The Contractor shall exercise high professional skill,
care and diligence in the performance of its 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 and
provide, at its expense, all labor, material, equipment and
service necessary to correct any errors or omissions of
Contractor or any of its subcontractors. This obligation
shall be in addition to Contractor's obligations to perform
its Work properly. Neither final payment, the Administrator's
final certificate, nor another provision in the Contract
Documents shall remove the Contractor's obligation to complete
the Work free of defects in workmanship and material.
Contractor agrees that it shall remain solely responsible
for the performance the Work required by the Contract
Documents, notwithstanding any suggestions or observations
made by any other person or entity with respect to the Work.
This Article does not establish a period of limitations
with respect to any obligation of the Contractor under the
Contract Documents, and does not limit the time allowed by law
for any action for breach of such obligations.
ARTICLE XIX
STORAGE OF MATERIALS AND EQUIPMENT
Only materials and equipment which are to be used
directly in the Work shall be brought to and stored on the
Project site by the 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,
damage and all other adversity is solely the responsibility of
the Contractor.
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ARTICLE XX
SAFETY
Contractor shall be solely responsible for the safety of
its workers and others on the job site relating to its work,
notwithstanding the presence of the City, its employees or
agents. The City shall not be liable for the physical
condition or safety of the Project site or any improvements
thereon.
The City may immediately suspend the Work if unsafe
conditions or acts are observed, and the Contractor shall not
receive an extension of the Schedule resulting from any safety
suspension.
ARTICLE XXI
INDEPENDENT CONTRACTOR
Contractor acknowledges it is an independent contractor,
and neither Contractor nor any of its subcontractors or
employees shall be deemed an employee or agent of the City for
any purpose.
ARTICLE XXII
CONFLICT
Contractor shall promptly upon discovery advise the City
of any conflict, ambiguity or inconsistency in the Contract
Documents, or between any Contract Document and actual field
conditions, and the City shall solve such conflict, ambiguity
or inconsistency in its sole discretion.
ARTICLE XXIII
BONDS
Prior to commencing any Work, Contractor shall obtain
from a recognized surety acceptable to the Administrator, a
payment and performance bond in the form of Exhibit D or in
another form approved by the Administrator. Such bond shall
be for the full Contract Amount, and shall guarantee and
secure Contractor's proper performance of the Work and the
payment of all subcontractors and suppliers for labor,
equipment, and/or materials supplied to or for the benefit of
Contractor or the Work. The premium for such bond shall be
included in the Contract Amount.
15
ARTICLE XXIV
SEVERABILITY
Should any specific provisions of this Agreement be found
to be unenforceable, the remaining provisions shall remain in
full force and effect.
ARTICLE XXV
NO PRESUMPTION AGAINST THE DRAFTER
No assumption or inference against the City shall be made
because of the City's preparation of this Agreement.
ARTICLE XXVI
NO WAIVER BY CITY
The failure of City in any one or more instances to
insist upon strict performance of any of the terms of this
Agreement or to exercise any option herein conferred, shall
not be construed as a waiver or relinquishment to any extent
of the right to assert or rely upon any such terms or option
on any future occasion.
ARTICLE XXVII
ATTORNEYS FEES/DISPUTES
In the event of litigation between Contractor and the
City concerning the Project or this Agreement, the prevailing
party shall be entitled to recover its reasonable attorney
fees, costs, and expenses from the other party arising from
such litigation.
If any dispute arises between Contractor and the City,
and Contractor refuses to pay its subcontractors or suppliers
for labor and/or material properly provided, the City may, but
shall not be required to, pay directly such subcontractors and
suppliers. Any payments made to such subcontractors and
suppliers shall be charged against the Contract Amount. This
provision shall not confer any right upon any subcontractor
supplier to seek payment directly from the City.
ARTICLE XXVIII
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between
the parties with respect to its subject matter and any prior
agreements, understandings, or other matters, whether oral or
written, are of no further force or effect. Subject to
16
Article VI, this Agreement or any Exhibit hereto may be
amended, changed, or supplemented only by written agreement
executed by both of the parties hereto.
THIS AGREEMENT shall be binding on the parties thereto
only after it has been duly executed and approved by the City
and the Contractor.
IN WITNESS WHEREOF, the parties ave caused this
Agreement to be executed on this ~ day of
2004.
CITY OF RIVERSIDE
AT ES
City Clerk
By : ~.~,~ ,~~ ~~zct~~
Mayor
Printed Name : ~~ 7r~ Pu~c h
CONTRACTOR
By : ~ ~ ~ ~~s~ ~
Title:pl~= ~
Printed Name: ~N~r~ ~~:'f~-y~~r~s
17
EXHIBIT A
SCOPE OF WORK
Contractor shall perform the following Work:
Exterior pavement caulking at the Riverwalk in the E.H. Young
Riverfront Park, Riverside, Missouri
18
EXHIBIT E
ITEMIZED PROPOSAL
IMPROVEMENT PROJECT
CONTRACT NO.
TO: CITY OF RIVERSIDE, MO
1. The undersigned bidder hereby proposes to furnish all
materials, supplies, transportation, tools, equipment and
plant, perform all necessary labor and construct, install and
complete all work stipulated in, required by, and in
conformity with the proposed Contract Documents (including all
documents referred to therein) and any and all addenda
thereto, for and in consideration of the lump sum price of
Fourteen Thousand Nine Hundred Thirty-Five
Dollars ($14,935.00).
The purpose of receiving unit costs for the following
approximate quantities is to allocate costs to various funding
sources. These approximate quantities were prepared solely
for the Bidder's convenience. It is not guaranteed that this
list of quantities constitutes all items for the completion of
the work. The contract amount for the Street Improvement
shall be the either the above stated lump sum.
The undersigned further agrees to begin upon the date
stated in the Notice to Proceed, if this bid is accepted, and
to complete all work as provided in Article III of Agreement
between City of Riverside, MO and Contractor.
The undersigned also declares that it understands that if
not preset by the City, the time to begin construction and to
complete the work will be one factor considered in determining
the lowest and best responsible bidder.
2. In submitting this bid, the undersigned declares that it is
of lawful age and executed the accompanying bid on behalf of
the bidder therein named, and that it had lawful authority so
to do. The undersigned further declares that it has not
directly or indirectly entered into any agreement, expressed or
implied with any bidder or bidders, having for its object the
controlling of the price or amount of such bid or any bids, the
limiting of the bid or bidders, the parceling or farming out to
any bidder or bidders, or other persons, of any part of the
Contract or any part of the subject matter of the bid or bids
or of the profits thereof, and that it has not and will not
divulge the sealed bid to any person whomsoever, except those
21
having a partnership or other financial interest with bidder in
said bid or bids, until after sealed bid or bids are opened.
3. The undersigned further declares that it has carefully
examined the Notice to Bidders, and other Contract Documents,
and that it has inspected the actual location of the work,
together with the local sources of supply, and has satisfied
itself as to all conditions and quantities, and understands
that in signing this Bid it waives all right to plead any
misunderstanding regarding the same.
4. The undersigned hereby agrees to furnish the required bonds
and insurance certificates and execute an Agreement within
fifteen (15) calendar days from and after notice of the award
of the Contract, and failure of the bidder to do so shall
constitute a default, and the City may thereafter take such
steps to protect its legal rights as it deems in its best
interest, including, but not limited to, enforcement of its
rights as to bid security.
5. It is understood that the City will pay in a prompt and
timely manner pay estimates when submitted and approved by the
Engineer and further approved by the City Engineer all as
provided in the Contract Documents.
6. Undersigned acknowledge receipt of the Plans and
Specifications for the project including the following addenda
(complete)
Enclosed is a certified check, cashier's check or bid bond in the amount
of (50 of the bid)
which the undersigned agrees is subject to being forfeited to and
becoming the property of the City as liquidated damages and not as a
penalty, together with other legal remedies the City may choose to
invoke, should this Bid be accepted and the Contract be awarded to this
bidder and it should fail to enter into an Agreement in the form
prescribed and to furnish the required insurance, bonds and other
required documents within fifteen (15)) calendar days as above
stipulated, otherwise the bid security shall be returned to the
undersigned upon signing of the Agreement and delivery of the approved
bonds and other required documents to the City of Riverside, Missouri.
22
DATED in il,`Uf -~ -
2004.
(SEAL)
this ~ day of
Contractor
Title
Address
Telephone Number
23
All rates shall include all profit and overhead, as we~1 as all
insurance, taxes, and other fringe benefits of every kind, payable to
Contractor. Contractor's overhead includes all salary and ocher costs cf
Contrac~or's officers, program or project directors, and all
administrative, clerical, secretarial and home office staff, as well as
all other home and field office costs and expenses.
In addition to Hour'_y rates, Contractor shall be reimbursed for its
actual expenses paid to third parties, plus 15o for overhead and profit,
if reasonably incurred in connection with the Work and approved in
advance by City. Contractor shall provide original receipts for all out-
of-pocket expenses for which Contractor seeks reimbursement.
Contractor shall obtain City approval before subcontracting any extra
Work. Contractor shall be reimbursed for approved subcontracts for extra
work at the subcontract amount plus 15o as it's profit and overhead.
Contractor shall be reimbursed for its hourly usage costs of Contractor-
owned equipment, including equipment leased or rented from an equipment
supplier wholly or partially owned by Contractor, at the rates shown in
the latest edition of `Nationally Averaged Rental Rate and Model
Reference Data for Construction Equipment" prepared by Associated
Equipment Dealers; if such rates exceed the lowest available rental rate
for the particular equipment of the same age and type in the Kansas City
metropolitan area, such lowest available area rental rate shall be used.
\\Op-proj\projecls\1031311Project Management\Riverside Docs 1-i6-02\Contract.wpd
24
EXHIBIT F
PREVAILING WAGE RATES
Prevailing hourly rates of wages follow, as determined by the Division
of Labor Standards, Jefferson City, Missouri, and by the Federal Labor
Standards Administration, Washington, D.C.
\\Op-proj\projects\103131\Project Management\Riverside Docs 1-i6-02\ContracLwpd
25
Bond # 058626234
EXHIBIT D
FORM OF BOND
For Payment and Performance
FOR THE FAITHFUL PERFORMANCE of each of the terms and
stipulations of this AGREEMENT BETWEEN CITY OF RIVERSIDE AND
CONTRACTOR, dated November 2 2004, in every
Particular, as DH Restoration, Inc. Principal, and
western surety Company as Surety, here by bind themselves their
respective heirs, executors, administrators, successors, and
assigns, unto the City of Riverside, Missouri, in the penal sum
Of Fourteen Thousand Nine Hundred Thirty Five Dollars and No Cents
( 14,935.00) lawful money of the United
States, conditioned that in the event the Principal shall
faithfully and properly complete the Work and perform all of
its obligations and duties pursuant to the terms of the
foregoing Agreement, including those under which the Principal
agrees to pay the prevailing hourly rate of wages for each
craft or type of workman required to execute this contract in
the locality as determined by the Department of Labor and
Industrial Relations of Missouri or by final judicial
determination pursuant to the provisions of sections 290.210
to 290.340, including of the Revised Statutes of Missouri,
1969, and shall as soon as the Work contemplated by the
Agreement is completed, pay to the proper parties all amounts
due for material, machinery, equipment and tools, consumed or
used in connection with the construction of such work, and all
insurance premiums, workers' compensation, and all other kinds
of insurance, on this Work, and for all labor performed in
such Work whether by subcontractor or otherwise, then this
obligation to be void, otherwise to remain in full force and
effect, and the same may be sued on at the instance of any
material supplier, laborer, mechanic, or other interested
party, in the name of the City of Riverside, to the use of
such parties, for any breach of the considerations hereof.
And western surety company , as Surety, hereby stipulates and
agrees that no change, extension of time, alteration or
addition to the terms of the Agreement or to the work to be
performed thereunder or the specifications accompanying the
same shall in any wise affect its obligation on this Bond, and
it does hereby waive notice of any such change, extension of
time, alteration or addition to the terms of the Agreement or
to the Work or to the Specifications.
19
PRINCIPAL DH Restoration, Inc.
By: ti~E--~~ 1~~ ~
Title: ~"~C5 -
Date: November 10, 2004
SURETY Western Surety Company
~~ ~~
BY~
George R. Do . elly
Title: Attorney-In-Fact
Date: November 10,2004
The Signatory of Surety has attached hereto its proof of
authorization to bind Surety to this obligation.
21
Western Surety Company
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT
Know All Men By These Presents, That WGSTBRN SURI~TY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Palls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
Mark S Nauser, George R Donnelly, Kelly R Watson, Steven L Nicholson, Individually
of Kansas City, MO, its true and lawful Attorney(s)-in-Fact with full power and authority hereby confen~cd to sign, seal and execute for and on its behalf
bonds,undenakingsand other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized ofrcer of the corporation and all the acts of said
Attomey, pursuant to the authority hereby given, arc hereby ratified and confirmed.
phis Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTEIU! SURETY COMPANY has caused these presents [o be signed by its Senior Vice President and its corporate seal to
be hereto aff fixed on this 3rd day of June, 2004.
WESTERN SURETY COMPANY
"SWIETr~
a~jopPDg41:: u=_
?Wi4 ~^-
Zi
2 J,i `rE AV %+~=
s`~iN DPN~1pd - L9
~""~+~,.,.~+^"~ Paul " . Bmflat, Senior Vice President
State of South Dakota 1
County of Minnehaha
155
On this 3rd day of June, 2004, before me personally came Paul T. Brutlat, to me known, who, being by me duly sworn, did depose and say: that he
resides in the City oC Sioux Palls, State of South Dakota; that he is the Senior Vicc President of WHS7ERN SURETY COMPANY described in and which
executed the above instrument; that he knows the seal of said corporation; that [he seal affixed to the said instrument is such corporate seal; that it yeas so
affixed pursuant to authority given by the Board of Directors of said corporation and [hat he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed ofsaid corporation.
My COmmISS10rl e%pll'eS 455ar~.~.55rsrs5w~,y.,....a~,yy., 4
f D. KRELL r
November 3Q 2006 r sEA~ NOTARY PUBLIC SSE i
i SOUTH DAKOTA i
4h4ti~nS44~sY594 b~S4titi4SSYb4 4
D. Krell, No ry Public
CERTI FI ('ATE
I, L. Nelson, Assistant Secretary of WLSTERN SURETY COMPANY do hereby certify that the Power of Attomey hercinabove set forth is still in
force, and further certify that the 6y-Law of [he corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
my name and affixed [he seal of the said corporation this 10th day of NOVeI[lbe Y' 2004
+`"~uRE""r""'W WESTERN SURETY COMPANY
c ~,: POR ~;;i
=„4aP qri^ n
t a........ . - 1p... {L~i/-~--~
q~~il1 DA~+
L. Nelson, Assistant Secretary
Foml P4280-01-02
NOTICE
In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this
disclosure notice for bonds and certain insurance policies on which one or more of the
Writing Companies identified below is the surety or insurer.
To principals on bonds and insureds on certain insurance policies written by any one or
more of the following companies (collectively the "Writing Companies") as surety or
insurer: Western Surety Company, Universal Surety of America, Surety Bonding
Company of America, Continental Casualty Company, National Fire Insurance Company
of Hartford, American Casualty Company of Reading, PA, The Firemen's Insurance
Company of Newark, NJ, and The Continental Insurance Company.
DISCLOSURE OF PREMIUM
The premium attributable to coverage for terrorist acts certified under the Act was Zero
Dollars ($0.00).
DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM
LO SES
The United States will pay ninety percent (90%) of covered terrorism losses exceeding the
applicable surety/insurer deductible.
Foam r-~a~o