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DUD0901-AG090526
AGENDA REQUEST FORM T H E C t T Y O F TT. nT: COPPELL DATE: T o E ~~ ~ q 9 s ' $ ITEM #: Engineering May 26, 2009 WORK SESSION ~ CONSENT ~ REGULAR ITEM TYPE: CONTRACT/BID or PROPOSAL ITEM CAPTION: Consider ratification of an emergency contract in the amount of $171,950.00 to Craig Olden, Inc. for emergency slope stabilization work on Sandy Lake Road between the entrance to St. Joseph Village and 300 LF upstream; using funds from the Municipal Drainage Utility District Fund; and executed by the City Manager on May 18, 2009 according to General Exemption (1) of Section 252 of the Local Government Code. GOAL(S): W EXECUTIVE SUMMARY: This emergency project is being undertaken to prevent failure of the drainage channel along the south side of Sandy Lake Road in the vicinity of St. Joseph's Village. FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Staff recommends ratification of the contract. #Slope Stabilization Contract T H E C 1 T Y O F COPPELL X A 8 ~ 8 MEMORANDUM TO: Mayor and City Council VIA: Kenneth M. Griffin, P.E., Director of Engineering/Public Works FROM: Keith R Marvin, P.E., Project Engineer DATE: May 26, 2009 RE: Consider ratification of an emergency contract in the amount of $171,950.00 to Craig Olden, Inc. for emergency slope stabilization work on Sandy Lake Road between the entrance to St. Joseph Village and 300 LF upstream; using funds from the Municipal Drainage Utility District Fund; and executed by the City Manager on May 18, 2009 according to General Exemption (1) of Section 252 of the Local Government Code. City staff was contacted on April 2, 2009 by the operator of the St. Joseph Village complex located at 1201 E. Sandy Lake Road in reference to a significant erosion problem within the city maintained drainage channel adjacent to their complex. See the attached exhibits for more information on the location of this area. Per Birdsall, who manages the street and drainage division of the Public Works Department contacted me and requested that I look at the issue. After looking at the significant erosion I called Craig Olden, Inc. and requested that they meet Per and I on site. There is significant erosion taking place as you can see from the attached pictures. The engineer from Olden and I discussed the options for stabilizing the slope. We also discussed how long it might take for the erosion to cause damage to the private structures behind the channel, as well as the impact to the channel capacity in the event the bank were to collapse into the channel. It was my determination that this constitutes an emergency situation, based on the wet weather we were experiencing and the potential for damage to private and public infrastructure that would occur if a complete failure were to take place. Acting in compliance with the City Purchasing Manual, I instructed the engineer from Craig Olden, Inc. to provide me an engineering design for stabilization of the bank, and a construction proposal to complete the work on an emergency basis. The engineer provided the design and construction cost proposal attached as part of the contract. I then sent the contract, the emergency authorization memo, and the photographs attached to the City Manager for approval. Craig Olden moved their equipment in on Monday, May 18 with the intention of beginning work on Wednesday, May 20. Upon arrival on site the contractor encountered considerably higher water levels in the channel than existed on the day they inspected the area. These higher water levels are the result of the Army Corps of Engineers releasing water from Lake Lewisville. The difference can be seen between the pictures from April 3, 2009 to May 20, 2009. In order to work around the higher water level, the contractor has proposed to build a cofferdam to protect their work area. We anticipate this additional work resulting in a change order to the contract. The city has authorized them to proceed with this work with a cap of $20,000 in additional costs for their dewatering efforts. The project is expected to take approximately 30 days to complete. Staff recommends approval of this item to ratify the decision of the City Manager to enter into a contract with Craig Olden, Inc. in the amount of $171,950.00. Staff will be available to answer any questions. .6 D D J C N (6 a. U w r ~ ~ ~ I~ I ~ } 1 W ~ G ~9 ~~ / L ~ ~: ' U ~~ i ~ ~ ` ~~ ' ~ Q 1 1 ~ ~`~'llli~~~ `I.lii`, ~~~.~ Z tai ~l~ it i ~ <`.~-t ~ ~~' ~ ! Lr""~~°'; i ~~ ~~ ~~ ~ Q ~~ L7 a nl t~ ,, ~~~ ~ .~;) j i °~~ ~ Z W xl k -~ ~ ~ ~~~ ~xT ~ W Q ~ ~ w $ ~ t~ \ ~ ` =0 ~- W J ~ U1 m Z aQQ ,~ ~U] o ~f ~ ~ O 0 F ~ i x ~ x , ~~~ ~ a r ~r, ~,~ , ~~ `/~ I `t ' t'.. ~, ,~: ~ ~ \ ~ A4l 3 .~ 5 ~~ ( ~~ / ~k~r~ ~ / . ~ F l '."~ Sr ~ }~ r a~ ~ ~~ r~a~~ i ` ~ ~~~ ~;~ ~ _ ~ ~t~ ~. ,., ~ ^ ~ F t ~ LL ~~ a ~~a m o w J 3 w - ~` "^~ .. ~ ~~~ a ,t WZ ~~~'e t ~ i m L~ tt;; / ~, ~_ ~ WW ~~ ~ moi ~~ r .~ ~ ... s £,a ~~~v . ~., i~ i` ~ ,.,~= i z -- - w o "~!' _ U ~ ~ Q J ~-_ ~ ~ p Z v ~ Q m o ,,e ~, A ,~---_ Z p ~ ~ ~ ~' ~-=' f . p (n U .. W Q w ~ ~:'f?` Q ~ LL P C7 o w p ~ w W J _ o ~' W Q J F O ~Z o ~ - ~ o N ~ W ~ a --- _ ~' Z y~ ...._a w° ~ U1mZ as p Q Q o .~`___` ~ ,,,,'~~~'' ~~ ~~ . - - p ~] ~ ,~ ~~rv a a 3 f .: o ~ X _ ,~ ~ ~ o ' ~ ~~R ~~ - ~ ~, ~ '~ s ~~~ '~ r~..~. dr I' ~ ~ _ Z .~ ~ Z O W ~~ r~ e 1[;~ ~ r._~ ~ 7 J F a~ ~ - - ;~r1 / '~' W Z H J "~' p 0 Opp ~, <~ ,~_ ,, ' O ~ M ~~ ~ da dy ,~ a' E~ .~ ~_ Y-~- ,~ f.,. ___ _.;v.~k. O yt ~~~~' ~~ N II (~(,) _ U M Z _ _ p o T H E C 1 T Y O F COPPELL x A s , a MEMORANDUM TO: Clay Phillips, City Manager VIA: Kenneth M. Griffin, P.E., Director of Engineering/Public Works FROM: Keith R Marvin, P.E., Project Engineer DATE: May 15, 2009 RE: Request to enter a contract With Craig Olden, Inc. on an emergency basis, in the amount of $171,950 for slide stabilization and repair in the drainage channel adjacent to St. Joseph's Village. As you are aware the drainage channel adjacent to St. Joseph's Village is experiencing slope failures along the south side of the channel These failures have become apparent over the past few weeks. In this time we have received considerable rainfall, and with each rainfall event the failures and subsequent slides have gotten worse. On April 16> 2009 I met with Joel Clark, P.E. from Craig Olden Inc. at the site of these failures and asked for their recommendation for repairs. Over the past 2 weeks Joel has come up with the attached drawings, and the construction side of Craig Olden, Inc. has furnished the attached proposal to complete the stabilization and repair. The Engineering Department is asking to proceed with this contract for several reasons: 1. This channel is contained within a drainage easement dedicated to the City of Coppell. 2. This channel conveys stormwater directly to Denton Creels from as far away as Mockingbird Elementary, including large portions of Sandy Lake Road and MacArthur Blvd. Obstruction of this channel by debris from this failure could have tremendous impact upstream to both public and private iiifrastnicture. 3. Allowing the slope to continue to slide will begin to cause significant damage to the private screening wall and infrastructure behind it which is owned and maintained by St. Joseph's Village. 4. The potential for this rapidly deteriorating slope to cause additional damage, which the city would be responsible for, prevents us from following the typical process of luring an engineering firm to design the repairs, then going through the bidding process to select a contractor to make the repairs. 5. Local Government Code section 252.022 authorizes us to proceed under emergency conditions where the immediate appropriation of money is necessary to preserve the property of the municipality. Craig Olden, Inc. has the uiuque ability to design and constn~ct this project with in house staff. They employ duly licensed Professional Engineers that have visited the site, and will sign and seal the appropriate engineering documents. They are also very experienced in the construction of stream bai~lc stabilization projects. They have successfully completed several other projects in Coppell and are ready to move in and begin work on this project immediately. Staff recommends approval of this contract on an emergency basis to Craig Olden, Inc. in the amount of $171,950 to be funded from the Municipal Drainage Utility District Fund. I am available to discuss this at your convenience. We intend to bring forward an agenda item to city Council on May 26, 2009 to ratify this expenditure as outlined in the city Purchasing Manual. f ,~c, C ~ ,~~, ,~ ~ F . A~ PY~w ,'C'~}+,~~~ ~ s 3 x~ I~Pj~ f ~, R ~$~ e. , ~1 ... {G~ .. ~¢. V n ,".4k ^+~'.c',fi ~ +~ ~~~ ' `r'11i 4`, f.:"* ~. t,l Yh ~ ~~ 4 fK, t } 'af ? 1 1F ~V ~~ ~~~~NP Y~~''"~~ t 1 ~ ~~ f ~•. ~, k~~P'~.~''~v 11' n~ •; 51 ~ ~ . i ~. ?, '~ a ~`-°'~'. a. 1fT ,"" ~, ~ ,~, '~ ~.+,... ~~ Yak ~" r~ ~a-,; I ~ $ a~ #,p~ ~3. k ~ '~t •,{~ ,~ o ~~ "!Ih ~. ~ ~'*~"~ ~' < Fy gt- ~._~ .~• RYA ~^ s > ; ~i ~ ^~~._ ~»~ * _ ~~~ ;, ~ ~ ~ 1 ~ ~A i ~ , ~~ •~ sr i - a ~ ~ ' ~ ~~~ ~ ~~a ~ ~. 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"~r r I Bak ~ ~ 7 , ~ ~ "k ,3,~ ~0 T H E G 1 T Y O F COPPELL T O F X A ~ , $ 9 CITY OF COPPELL, TEXAS STANDARD FIXED PRICE AGREEMENT FOR THE CONSTRUCTION OF St. Joseph Village -Emergency Slide Stabilization CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS T5019 St. Joseph Village -Emergency Slide Stabilization City of Coppell, Tezas This Agreement is made by and between the City of Coppell, Texas, ahome-rule municipality (hereinafter referred to as the "Owner") and Craig Olden, Inc, (hereinafter referred to as the "Contractor") for construction of St. JOSEPH VILLAGE -EMERGENCY SLIDE STABILIZATION, (hereinafter referred to as the "Project"), the Owner and the Contractor hereby agreeing as follows: ARTICLE I THE CONTRACT AND THE CONTRACT DOCUMENTS 1.1 THE CONTRACT 1.4 NO PRIVTI'Y WITH OTIIERs 1.4.1 Nothing contained in this Contract shall create, or be interpreted to create, privity or any other contractual agreement between the Owner and any person or entity other than the Contractor. 1.1.1 The Contract between the Owner and the Contractor, of which this Agreement is a part, consists of the Contract Documents. It shall be effective on the date this Agreement is executed by the last party to execute it. 1.2. THE CONTRACT DOCUMENTS 1.2.1 The Contract Documents consist of this Agreement, the scope documents produced by Craig Olden, Inc. Dated May ~4, 2009, all Change Orders and Field Orders issued hereafter, any other amendments hereto executed by the parties hereafter, together with the following (if any): Documents not enumerated in this Paragraph 1.2.1 are not Contract Documents and do not form part of this Contract. 1.3 ENTIRE AGREEMENT 1.3.1 This Contract, together with the Contractor's performance and payment bonds for the Project, all General Conditions, Special Conditions, Plans and Specifications, and Addenda attached thereto, constitute the entire and exclusive agreement between the Owner and the Contractor with reference to the Project. Specifically, but without limitation, this Contract supersedes any bid documents and all prior written or oral communications, representations and negotiations, if any, between the Owner and Contractor not expressly made a part hereof. 1.5 INTENT AND INTERPRETATION 1.5.1 The intent of this Contract is to require complete, correct and timely execution of the Work. Any Work that may be required, implied or inferred by the Contract Documents, or any one or more of them, as necessary to produce the intended result shall be provided by the Contractor for the Contract Price. 1.5.2 This Contract is intended to be an integral whole and shall be interpreted as internally consistent. What is required by any one Contract Document shall be considered as required by the Contract. 1.5.3 When a word, term or phrase is used in this Contract, it shall be interpreted or construed, first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage. 1.5.4 The words "include", "includes", or "including", as used in this Contract, shall be deemed to be followed by the phrase, "without limitation". 1.5.5 The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of this Contract shall not imply that any other, non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of this Contract. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Pa`e 2 St. Joseph Village -Emergency Slide Stabilization 1.5.6 Words or terms used as nouns in this Contract shall be inclusive of their singular and plural forms, unless the context of their usage clearly requires a contrary meaning. 1.5.7 The Contractor shall have a continuing duty to read, cazefully study and compare each of the Contract Documents, the Shop Drawings, the Product Data, and any Plans and Specifications, and shall give written notice to the Owner of any inconsistency, ambiguity, error or omission which the Contractor may discover with respect to these documents before proceeding with the affected Work. The issuance, or the express or implied approval by the Owner or the Owner's Representative of the Contract Documents, Shop Drawings or Product Data shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with this Contract. The Owner has prepared documents for the Project, including the Drawings and Specifications for the Project, which are accurate, adequate, consistent, coordinated and sufficient for construction. HOWEVER, THE OWNER MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER TO THE CONTRACTOR CONCERNING SUCH DOCUMENTS. By the execution hereof, the Contractor acknowledges and represents that it has received, reviewed and cazefully examined such documents, has found them to be complete, accurate, adequate, consistent, coordinated and sufficient for construction, and that the Contractor has not, does not, and will not rely upon any representation or warranties by the Owner concerning such documents as no such representation or warranties have been or are hereby made. Further, the Contractor represents and warrants that it has had a sufficient opportunity to inspect the Project site and assumes any and all responsibility for inadequacies or ambiguities in the plans, drawings or specifications as well as for latent conditions of the site where the work is to be performed. 1.5.8 As between numbers and scaled measurements on the Drawings and in the Design, the numbers shall govern, as between lazger scale and smaller scale drawings, the larger scale shall govern. 1.5.9 Neither the organization of any of the Contract Documents into divisions, sections, paragraphs, articles, (or other categories), nor the organization or arrangement of the Design, shall control the Contractor in dividing the Work or in establishing the extent or scope of the Work to be performed by Subcontractors. 1.6 OWNERSHIP OF CONTRACT DOCUMENTS 1.6.1 The Contract Documents, and each of them, shall remain the property of the Owner. The Contractor shall have the right to keep one record set of the Contract Documents upon completion of the Project; provided, however, that in no event shall Contractor use, or permit to be used, any or all of such Contract Documents on other projects without the Owner's prior written authorization. ARTICLE II THE WORK 2.1 The Contractor shall perform all of the Work required, implied or reasonably inferable from, this Contract. 2.2 WORK 2.2.1 The term "Work" shall mean whatever is done by or required of the Contractor to perform and complete its duties under this Contract, including the following: construction of the whole or a designated part of the Project; furnishing of any required surety bonds and insurance, and the provision or furnishing of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, permits and licenses required of the Contractor, fuel, heat, light, cooling and all other utilities as required by this Contract. The Work to be performed by the Contractor is generally described as follows: Restoration and stabilization of drainage channel side slope per the contract proposal dated May`4, 2009, and included as part of this contract. 2.2.2 The Contractor shall be responsible for paying for and procuring all materials and labor and furnishing all services necessary or appropriate for the full performance of the Work and the for the full completion of the Project. All materials shall be new and materials and workmanship shall be of good quality. Upon request, the Contractor shall furnish CITY OF COPPELL PURCHASING DEPARTMENT • 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Pa`e 3 St. Joseph Village -Emergency Slide Stabilization satisfactory proof of the type, kind, and quality of materials. ARTICLE III CONTRACT TIME 3.1 TIME AND LIQUIDATED DAMAGES 3.1.1 The Contractor shall commence the Work within 10 days of receipt of a written Notice to Proceed, and shall achieve Substantial Completion of the Work no later than Jnly 30, 2009. The parties acknowledge that time is of the essence in the performance of the terms of this Contract. The term "calendar days" shall mean any and all days of the week or month, no days being excepted. "Hours worked before 8:00 a.m. after 5:00 p.m., all weekends and holidays are subject to overtime. Overtime request must be made in writing and approved by the City of Coppell. Seventy-two hours notice is required. All overtime incurred by the City for inspection services shall be paid by the Contractor at the rate of $54 per hour. If not paid, such cost may be deducted from partial payments." It is contemplated by the parties that the progress of the Work may be delayed by certain conditions beyond the control of the parties; these delays have been contemplated by the parties and considered in the time allotted for performance specified herein and includes, but is not limited to delays occasioned on account of adverse weather, temporary unavailability of materials, shipment delays, and the presence and potential interference of other contractors who may be performing work at the Project site unrelated to this agreement. The number of calendar days from the date on which the Work is permitted to proceed, through the date set forth for Substantial Completion, shall constitute the "Contract Time". 3.1.2 The Contractor shall pay the Owner the sum of 240 per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the date set forth herein for Substantial Completion of the Work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that Substantial Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages. 3.13 No claim shall be made by the Contractor to the Owner, and no damages, costs or extra compensation shall be allowed or paid by the Owner to the Contractor for any delay or hindrance from any cause in the progress or completion of the Work or this Contract. The Contractor's sole remedy in the event of any delay or hindrance shall be to request time extensions by written change orders as provided for hereinafter. Should the Contractor be delayed by an act of the Owner, or should the Owner order a stoppage of the Work for sufficient cause, an extension of time shall be granted by the Owner by written authorization upon written application, which extension shall not be unreasonably denied, to compensate for the delay. 3.1.4 The Owner shall have the authority to suspend the Work wholly or in part for such period or periods of time as it may deem appropriate due to unsuitable conditions considered unfavorable for the proper prosecution of the Work or for the failure of the Contractor to carry out instructions from the Owner or Owner's Representative. During any period in which the Work is stopped or during which any of the Work is not actively in progress for any reason, Contractor shall properly protect the site and the Work from damage, loss or harm. 3.2 SUBSTANTIAL COMPLETION 3.2.1 "Substantial Completion" shall mean that stage in the progression of the Work when the Work is sufficiently complete in accordance with this Contract that the Owner can enjoy beneficial use or occupancy of the Work and can utilize the Work for its intended purpose, even though minor miscellaneous work and/or adjustment may be required. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 4 St. Joseph Village -Emergency Slide Stabilization 3.3 Tn-u; IS OF THE ESSENCE 3.3.1 All limitations of time set forth in the Contract Documents are of the essence of this Contract. ARTICLE IV CONTRACT PRICE 4.1 THE CONTRACT PRICE 4.1.1 The Owner shall pay, and the Contractor shall accept, as full and complete payment for all of the Work required herein, the Lump sum price of $171,950.00 for this contract. ARTICLE V PAYMENT OF THE CONTRACT PRICE 5.1 SCHEDULE OF VALUES 5.1.1 Within ten (10) calendar days of the effective date hereof, the Contractor shall submit to the Owner and to the Owner's Representative a Schedule of Values allocating the Contract Price to the various portions of the Work. The Contractor's Schedule of Values shall be prepared in such form, with such detail, and supported by such data as the Owner may require to substantiate its accuracy. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of this Contract. The Schedule of Values shall be used only as a basis for the Contractor's Applications for Payment and shall only constitute such basis after it has been acknowledged and accepted in writing by the Owner's Representative and the Owner. 5.2.3 On or before the 10th day of each month after commencement of the Work, the Contractor shall submit an Application for Payment for the period ending the last day of the previous month to the Owner in such form and manner, and with such supporting data and content, as the Owner may require. Therein, the Contractor may request payment for ninety percent (90%) of that portion of the Contract Price properly allocable to Contract requirements properly provided, labor, materials and equipment properly incorporated in the Work, less the total amount of previous payments received from the Owner. Such Application for Payment shall be signed by the Contractor and shall constitute the Contractor's representation that the Work has progressed to the level for which payment is requested in accordance with the Schedule of Values, that the Work has been properly installed or performed in full compliance with this Contract, and that the Contractor knows of no reason why payment should not be made as requested. Thereafter, the Architect will review the Application for Payment and may also review the Work at the Project site or elsewhere to determine whether the quantity and quality of the Work is as represented in the Application for Payment and is as required by this Contract. The Owner shall determine and certify to the amount properly owing to the Contractor. The Owner shall make partial payments on account of the Contract Price to the Contractor within thirty (30) days following the receipt and approval of each Application for Payment. The amount of each partial payment shall be the amount certified for payment less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by this Contract. The certification of the Contractor's Application for Payment shall not preclude the Owner from the exercise of any of its rights as set forth in Paragraph 5.3 herein below. 5.2 PAYMENT PROCEDURE 5.2.1 The Owner shall pay the Contract Price to the Contractor as provided below: 5.2.2 PROGRESS PAYMENTS -Based upon the Contractor's Applications for Payment submitted to the Owner's Representative and upon Certificates for Payment subsequently issued to the Owner, the Owner shall make progress payments to the Contractor on account of the Contract Price. 5.2.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment, all Work for which payments have been received from the Owner shall be free and clear of liens, claims, security interest or other encumbrances in favor of the Contractor or any other person or entity whatsoever. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 5 St. Joseph Village -Emergency Slide Stabilization 5.2.5 The Contractor shall promptly pay each Subcontractor out of the amount paid to the Contractor on account of such Subcontractor's Work, the amount to which such Subcontractor is entitled. In the event the Owner becomes informed that the Contractor has not paid a Subcontractor as herein provided, the Owner shall have the right, but not the duty, to issue future checks in payment to the Contractor of amounts otherwise due hereunder naming the Contractor and such Subcontractor as joint payees. Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedwe in the future. 5.2.6 No progress payment, nor any use or occupancy of the Project by the owner, shall be interpreted to constitute an acceptance of any Work not in strict accordance with this Contract. 5.3 WITHHELD PAYMENT 5.3.1 The Owner may decline to make payment, may withhold funds, and, if necessary, may demand the return of some or all of the amounts previously paid to the Contractor, to protect the Owner from loss because of: (a) defective Work not remedied by the Contractor nor, in the opinion of the Owner, likely to be remedied by the Contractor; (b) claims of third parties against the Owner or the Owner's property; (c) failure by the Contractor to pay Subcontractors or others in a prompt and proper fashion; (d) evidence that the balance of the Work cannot be completed in accordance with the Contract for the unpaid balance of the Contract Price, (e) evidence that the Work will not be completed in the time required for substantial or final completion; (f) persistent failure to carry out the Work in accordance with the Contract; (g) damage to the Owner or a third party to whom the Owner is, or may be, liable. In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in this Subparagraph 5.3.1, the Contractor shall promptly comply with such demand. The Owner shall have no duty to third parties to withhold payment to the Contractor and shall incur no liability for a failure to withhold funds. 5.4 UNEXCUSED FAILURE TO PAY 5.4.1 If within fifteen (15) days after the date established herein for payment to the Contractor by the Owner, the Owner, without cause or basis hereunder, fails to pay the Contractor any amount then due and payable to the Contractor, then the Contractor may after ten (10) additional days' written notice to the Owner, and without prejudice to any other available rights or remedies it may have, stop the Work until payment of those amounts due from the Owner have been received. Late payments shall not accrue interest or other late charges. 5.5 SUBSTANTIAL COMPLETION 5.5.1 When the Contractor believes that the Work is substantially complete, the Contractor shall submit to the Owner or Owner's Representative a list of items to be completed or corrected. When the Owner on the basis of an inspection determines that the Work is in fact substantially complete, it will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall state the responsibilities of the Owner and the Contractor for Project security, maintenance, heat, utilities, damage to the Work, and insurance, and shall fix the time within which the Contractor shall complete the items listed therein. Guarantees required by the Contract shall commence on the date of Substantial Completion of the Work. The Certificate of Substantial Completion shall be submitted to the Owner and the Contractor for their written acceptance of the responsibilities assigned to them in such certificate. Upon Substantial Completion of the Work, and execution by both the Owner and the Contractor of the Certificate of Substantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%) of the Contract Price less CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKR'AY BOULEVARD COPPELL, TEXAS 75019 Page 6 St. Joseph Village -Emergency Slide Stabilization three hundred percent (300%) of the reasonable cost as determined by the Owner for completing all incomplete Work, correcting and bringing into conformance all defective and nonconforming Work, and handling all unsettled claims. 5.6 COMPLETION AND FINAL PAYMENT 5.6.1 When all of the Work is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner thereof in writing. Thereupon, the Owner (or Owner's Representative) will make final inspection of the Work and, if the Work is complete in full accordance with this Contract and this Contract has been fully performed, the Owner will promptly issue a final Certificate for Payment certifying that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Owner is unable to issue its final Certificate for Payment and is required to repeat its final inspection of the Work, the Contractor shall bear the cost of such repeat final inspection(s) which cost may be deducted by the Owner from the Contractor's final payment. 5.6.1.1 If the Contractor fails to achieve final completion within the time fixed therefore by the contract, the Contractor shall pay the Owner the sum set forth hereinabove as liquidated damages per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the Work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages. 5.6.2 The Contractor shall not be entitled to final payment unless and until it submits to the Owner its affidavit that all payrolls, invoices for materials and equipment, and other liabilities connected with the Work for which the Owner, or the Owner's property might be responsible, have been fully paid or otherwise satisfied; releases and waivers of lien from all Subcontractors of the Contractor and of any and all other parties required by the Owner; consent of Surety, if any, to final payment. If any third party fails or refuses to provide a release of claim or waiver of lien as required by the Owner, the Contractor shall furnish a bond satisfactory to the Owner to discharge any such lien or indemnify the Owner from liability. 5.6.3 The Owner shall make final payment of all sums due the Contractor within ten (10) days of the execution of a final Certificate for Payment. 5.6.4 Acceptance of final payment shall constitute a waiver of all claims against the Owner by the Contractor except for those claims previously made in writing against the Owner by the Contractor, pending at the time of final payment, and identified in writing by the Contractor as unsettled at the time of its request for final payment. 5.6.5 Under no circumstance shall Contractor be entitled to receive interest on any payments or monies due Contractor by the Owner, whether the amount on which the interest may accrue is timely, late, wrongfully withheld, or an assessment of damages of any kind. ARTICLE VI THE OWNER 6.1 INFORMATIONS SERVICES AND THINGS REQUIRED FROM OWNER 6.1.1 The Owner shall furnish to the Contractor, at the time of executing this Contract, any and all written and tangible material in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to the Contractor only in order to make complete disclosure of such material and for no other purpose. By furnishing such material, the Owner does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all, and shall have no liability therefore. The Owner shall CITY OF COPPELL PURCHASING DEPARTMENT • 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Pa=e 7 St. Joseph Village -Emergency Slide Stabilization also furnish surveys, legal limitations and utility locations (if known), and a legal description of the Project site. 6.1.2 Excluding permits and fees normally the responsibility of the Contractor, the Owner shall obtain all approvals, easements, and the like required for construction and shall pay for necessary assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. time without adequate Contract Documents or, as appropriate, approved Shop Drawings, Product Data or Samples for such portion of the Work. If the Contractor performs any of the Work knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Owner or Owner's Representative, the Contractor shall bear responsibility for such performance and shall bear the cost of correction. 7.2 The Contractor shall perform the Work strictly in accordance with this Contract. 6.1.3 The Owner shall furnish the Contractor, free of charge, one copy of the Contract Documents for execution of the Work. G.2 RIGHT TO STOP WORK 6.2.1 If the Contractor persistently fails or refuses to perform the Work in accordance with this Contract, or if the best interests of the public health, safety or welfare so require, the Owner may order the Contractor to stop the Work, or any described portion thereof, until the cause for stoppage has been corrected, no longer exists, or the Owner orders that Work be resumed. In such event, the Contractor shall immediately obey such order. 6.3 OWNERS RIGHT TO PERFORM WORK 6.3.1 If the Contractor's Work is stopped by the Owner under Paragraph 6.2, and the Contractor fails within seven (7) days of such stoppage to provide adequate assurance to the Owner that the cause of such stoppage will be eliminated or corrected, then the Owner may, without prejudice to any other rights or remedies the Owner may have against the Contractor, proceed to cant' out the subject Work. In such a situation, an appropriate Change Order shall be issued deducting from the Contract Price the cost of correcting the subject deficiencies, plus services and expenses necessitated thereby, if any. If the unpaid portion of the Contract Price is insufficient to cover the amount due the Owner, the Contractor shall pay the difference to the Owner. ARTICLE VII THE CONTRACTOR 7.1 The Contractor is again reminded of its continuing duty set forth in Subparagraph 1.5.7. The Contractor shall perform no part of the Work at any 73 The Contractor shall supervise and direct the Work using the Contractor's best skill, effort and attention. The Contractor shall be responsible to the Owner for any and all acts or omissions of the Contractor, its employees and others engaged in the Work on behalf of the Contractor. 7.3.1 The Contractor shall give adequate attention to the faithful prosecution of the Work and the timely completion of this Contract, with authority to determine the manner and means of performing such Work, so long as such methods insure timely completion and proper performance. 7.3.2 The Contractor shall exercise all appropriate means and measures to insure a safe and secure jobsite in order to avoid and prevent injury, damage or loss to persons or property. 7.4 WARRANTY 7.4.1 The Contractor warrants to the Owner that all labor furnished to progress the Work under this Contract will be competent to perform the tasks undertaken, that the product of such labor will yield only first-class results, that materials and equipment furnished will be of good quality and new unless otherwise permitted by this Contract, and that the Work will be of good quality, free from faults and defects and in strict conformance with this Contract. All Work not conforming to these requirements may be considered defective. 7.5 The Contractor shall obtain and pay for all permits, fees and licenses necessary and ordinary for the Work. The Contractor shall comply with all lawful requirements applicable to the Work and shall give and maintain any and all notices required by applicable law pertaining to the Work. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 8 St. Joseph Village -Emergency Slide Stabilization 7.6 SUPERVISION 7.6.1 The Contractor shall employ and maintain at the Project site only competent supervisory personnel. Absent written instruction from the Contractor to the contrary, the superintendent shall be deemed the Contractor's authorized representative at the site and shall be authorized to receive and accept any and all communications from the Owner or the Owner's Representative. 7.6.2 Key supervisory personnel assigned by the Contractor to this Project are as follows: NAME FUNCTION So long as the individuals named above remain actively employed or retained by the Contractor, they shall perform the functions indicated next to their names unless the Owner agrees to the contrary in writing. In the event one or more individuals not listed above subsequently assume one or more of those functions listed above, the Contractor shall be bound by the provisions of this Subparagraph 7.6.2 as though such individuals had been listed above. 7.7 The Contractor, within fifteen (15) days of commencing the Work, shall submit to the Owner for their information, the Contractor's schedule for completing the Work. The Contractor's schedule shall be revised no less frequently than monthly (unless the parties otherwise agree in writing) and shall be revised to reflect conditions encountered from time to time and shall be related to the entire Project. Each such revision shall be furnished to the Owner and the Owner's Representative. Failure by the Contractor to strictly comply with the provisions of this Paragraph 7.7 shall constitute a material breach of this Contract. 7.8 The Contractor shall continuously maintain at the site, for the benefit of the owner, one record copy of this Contract marked to record on a current basis changes, selections and modifications made during construction. Additionally, the Contractor shall maintain at the site for the Owner the approved Shop Drawings, Product Data, Samples and other similar required submittals. Upon final completion of the Work, all of these record documents shall be delivered to the Owner. 7.9 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 7.9.1 Shop Drawings, Product Data, Samples and other submittals from the Contractor do not constitute Contract Documents. Their purpose is merely to demonstrate the manner in which the Contractor intends to implement the Work in conformance with information received from the Contract Documents. 7.9.2 The Contractor shall not perform any portion of the Work requiring submittal and review of Shop Drawings, Product Data or Samples unless and until such submittal shall have been approved by the Owner. Approval by the Owner, however, shall not be evidence that Work installed pursuant thereto conforms with the requirements of this Contract. 7.10 CLEANING THE STTE AND THE PROJECT 7.10.1 The Contractor shall keep the site reasonably clean during performance of the Work. Upon final completion of the Work, the Contractor shall clean the site and the Project and remove all waste, rubbish, temporary structures, and other materials together with all of the Contractor's property therefrom. Contractor shall dispose of all refuse at a Texas Commission on Environmental Quality approved landfill. The Contractor shall further restore all property damaged during the prosecution of the Work and shall leave the site in a clean and presentable condition. No additional payment shall be made by the Owner for this work, the compensation having been considered and included in the contract price. 7.11 ACCESS TO WORK AND INSPECTIONS 7.11.1 The Owner and the Owner's Representative shall have access to the Work at all times from commencement of the Work through final completion. The Contractor shall take whatever steps necessary to provide access when requested. When CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Poge 9 St. Joseph Village -Emergency Slide Stabilization reasonably requested by the Owner or the Owner's Representative, the Contractor shall perform or cause to be performed such testing as may be necessary or appropriate to insure suitability of the jobsite or the Work's compliance with the Contract requirements. All overtime incurred by the City for inspection services shall be paid by the Contractor. If not paid, such cost may be deducted from partial payments." 7.12 INDEMNITY AND DISCLAIMER 7.12.1 OWNER SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS AND RELEASED BY CONTRACTOR FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE, OR DESCRIPT[ON, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON, OR INJURY OR LOSS TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS, INCLUDING THE CONTRACTOR, OR PROPERTY, ARISING OUT OF, OR OCCASIONED BY, DIRECTLY OR INDIRECTLY, THE PERFORMANCE OF CONTRACTOR UNDER THIS AGREEMENT, INCLUDING CLAIMS AND DAMAGES ARISING IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER, WITHOUT, HOWEVER, WAIVING ANY GOVERN-MENTAL IMMUNITY AVAILABLE TO THE OWNER UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS LAW. THE PROVISIONS OF THIS INDEMNI-FICATION ARE SOLELY FOR THE BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT THAT THE INDEMNITY PROVIDED FOR IN THIS CONTRACT IS AN INDEMNITY EXTENDED BY CONTRACTOR TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF THE CONTRACTOR'S AS WELL AS THE OWNER'S NEGLIGENCE, WHETHER SUCH NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR DAMAGE. IN ADDITION, CONTRACTOR SHALL OBTAIN AND FILE WITH OWNER CITY OF COPPELL A STANDARD CERTIFICATE OF INSURANCE AND APPLICABLE POLICY ENDORSEMENT EVIDENCING THE REQUIRED COVERAGE AND NAMING THE OWNER "CITY OF COPPELL" AS AN ADDITIONAL INSURED ON THE REQUIRED COVERAGE. 7.12.2 The Contractor will secure and maintain Contractual Liability insurance to cover this indemnification agreement that will be primary and non-contributory as to any insurance maintained by the Owner for its own benefit, including self- insurance. In addition, Contractor shall obtain and file with Owner City of Coppell a Standard Certificate of Insurance and applicable policy endorsement evidencing the required coverage and naming the owner "City of Coppell" as an additional insured on the required coverage. 7.12.3 In claims against any person or entity indemnified under this Paragraph 7.12 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Paragraph 7.12 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable. by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. 7.13 NONDISCRIMINATION 7.13.1 The Contractor shall not discriminate in any way against any person, employee or job applicant on the basis of race, color, creed, national original, religion, age, sex, or disability where reasonable accommodations can be effected to enable the person to perform the essential functions of the job. The Contractor shall further insure that the foregoing nondiscrimination requirement shall be made a part and requirement of each subcontract on this Project. 7.14 PREVAILING WAGE RATES 7.14.1 The Contractor shall comply in all respects with all requirements imposed by any laws, ordinances or resolutions applicable to the Project with regard to the minimum prevailing wage rates for all classes of employees, laborers, subcontractors, mechanics, workmen and persons furnishing labor and services to the Project. The City of Coppell has adopted a Prevailing Wage Rate Schedule, available CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Prge ]0 St. Joseph Village -Emergency Slide Stabilization to the Contractor by request, which specifies the classes and wage rates to be paid to all persons. The Contractor shall pay not less than the minimum wage rates established thereby for each class, craft or type of labor, workman, or mechanic employed in the execution of this Contract. The failure of the Contractor to comply with this requirement shall result in the forfeiture to the City of Coppell of a sum of not less than Sixty Dollars ($60.00) for each person per day, or portion thereof, that such person is paid less than the prevailing rate. Upon request by the Owner, Contractor shall make available for inspection and copying its books and records, including but not limited to its payroll records, account information and other documents as may be required by the Owner to insure compliance with this provision. 7.15 JOB STI'E SAFETY PRECAUTIONS 7.15.1 The Contractor shall at all times exercise reasonable precautions for the safety of its employees, laborers, subcontractors, mechanics, workmen and others on and near the jobsite and shall comply with all laws, ordinances, regulations, and standards of federal, state and local safety laws and regulations. The Contractor shall provide such machinery guards, safe walk-ways, ladders, bridges, and other safety devices as may be necessary or appropriate to insure a safe and secure jobsite and shall require its subcontractors to comply with this requirement. The Contractor shall immediately comply with any and all safety requirements imposed by the Owner or Owner's Representative during the progress of the Work. traffic control devices adopted by the Texas Department of Transportation. 7.17 PROTECTION OF IJTILTI'IES AND OTHER CONTRACTORS 7.17.1 The Contractor shall use best efforts to leave undisturbed and uninterrupted all utilities and utility services provided to the jobsite or which presently exists at, above or beneath the location where the Work is to be performed. In the event that any utility or utility service is disturbed or damaged during the progress of the Work, the Contractor shall forthwith repair, remedy or restore the utility at Contractor's sole expense. 7.17.2 The Contractor understands and acknowledges that other contractors of the Owner or of other entities may be present at the jobsite performing other work unrelated to the Project. The Contractor shall use best efforts to work around other contractors without impeding the work of others while still adhering to the completion date established herein. In the event that the Contractor's work is or may be delayed by any other person, the Contractor shall immediately give notice thereof to the Architect and shall request a written Change Order in accordance with the procedures set forth by this Contract. The Contractor's failure to provide such notice and to request such Change Order shall constitute a waiver of any and all claims associated therewith. ARTICLE VIII 7.16 WARNING DEVICES AND BARRICADES 7.16.1 The Contractor shall furnish and maintain such warning devices, barricades, lights, signs, pavement markings, and other devices as may be necessary or appropriate or required by the Owner's Representative to protect persons or property in, near or adjacent to the jobsite. No separate compensation shall be paid to the Contractor for such measures. Where the Work is being conducted in, upon or near streets, alleys, sidewalks, or other rights-of--way, the Contractor shall insure the placement, maintenance and operation of any and all such warning devices as may be required by the City of Coppell and shall do so until no longer required by the City. Such devices shall be in compliance with and conform to the manual and specifications for the uniform system of CONTRACT ADMINISTRATION 8.1 OWNER'S REPRESENTATIVE 8.1.1 When used in this Contract the term "Owner's Representative" shall be used interchangeably and shall mean a designated Architect, Engineer, or Contract Administrator, or Inspector (who may not be an architect or engineer) for the Owner, said person to be designated or re- designated by the Owner prior to or at any time during the Work hereunder. The Owner's Representative may be an employee of the Owner or may be retained by the Owner as an independent contractor but, in either event, the Owner's Representative's duties and authority shall be as set forth hereinafter. The Contractor understands and agrees that it shall abide by the decisions and CITY OF COPPELL PURCBASING DEPARTMENT 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Pate 11 St. Joseph Village -Emergency Slide Stabilization instructions of the Owner's Representative, notwithstanding the contractual relationship between the Owner and the Owner's Representative. All of the Owner's instructions to the Contractor shall be through the Owner's Representative. In the event the Owner should find it necessary or convenient to replace the Owner's Representative, the Owner shall retain a replacement and the status of the replacement shall be that of the former Owner's Representative. 8.2 ADMINISTRATION 8.2.1 The Owner's Representative, unless otherwise directed by the Owner in writing, will perform those duties and discharge those responsibilities allocated to the Owner's Representative as set forth in this Contract and shall represent the Owner from the effective date of this Contract until final payment has been made. 8.2.2 The Owner and the Contractor shall communicate with each other in the first instance through the Owner's Representative. 8.2.3 The Owner's Representative shall be the initial interpreter of the requirements of the drawings and specifications and the judge of the performance thereunder by the Contractor. The Owner's Representative shall render written or graphic interpretations necessary for the proper execution or progress of the Work with reasonable promptness on request of the Contractor. 8.2.4 The Owner's Representative will review the Contractor's Applications for Payment and will certify to the Owner for payment to the Contractor, those amounts then due the Contractor as provided in this Contract. 8.2.5 The Owner's Representative shall have authority to reject Work which is defective or does not conform to the requirements of this Contract. If the Owner's Representative deems it necessary or advisable, he or she shall have authority to require additional inspection or testing of the Work for compliance with Contract requirements. 8.2.6 The Owner's Representative will review and approve, or take other appropriate action as necessary, concerning the Contractor's submittals including Shop Drawings, Product Data and Samples. Such review, approval or other action shall be for the sole purpose of determining conformance with the design concept and information given through the Contract Documents. 8.2.7 The Owner's Representative will prepare Change Orders and may authorize minor changes in the Work by Field Order as provided elsewhere herein. 8.2.8 The Owner's Representative shall, upon written request from the Contractor, conduct inspections to determine the date of Substantial Completion and the date of final completion, will receive and forward to the Owner for the Owner's review and records, written walTanties and related documents required by this Contract and will issue a final Certificate for Payment upon compliance with the requirements of this Contract. 8.2.9 The Owner's Representative's decisions in matters relating to aesthetic effect shall be final if consistent with the intent of this Contract. 8.3 CLAIMS BY THE CONTRACTOR 8.3.1 The Owner's Representative shall determine all claims and matters in dispute with regard to the execution, progress, or sufficiency of the Work or the interpretation of the Contract Documents, including but not limited to the plans and specifications. Any dispute shall be submitted in writing to the Owner's Representative within seven (7) days of the event or occurrence or the first appearance of the condition giving rise to the claim or dispute that shall render a written decision within a reasonable time thereafter. The Owner's Representative's decisions shall be final and binding on the parties. In the event that the Contractor objects to the determination of any submitted dispute, the Contractor shall submit a written objection to the Owner within ten (10) days of receipt of the Owner's Representative's written determination in order to preserve the objection. Failure to so object shall constitute a waiver of the objection for all purposes. 8.3.2 Pending final resolution of any claim of the Contractor, the Contractor shall diligently proceed with performance of this Contract and the Owner shall continue to make payments to the Contractor in accordance with this Contract. 8.3.3 CLAIMS FOR CONCEALED, LATENT OR UNg1vOwN CONDITIONS -The Contractor expressly represents that it has been provided with an adequate CITY OF COPPELL PURCHASING DEPARTMENT 235 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 12 St. Joseph Village -Emergency Slide Stabilization opportunity to inspect the Project site and thoroughly review the Contract Documents and plans and specifications prior to submission of its bid and the Owner's acceptance of the bid. Subject to the conditions hereof, Contractor assumes full responsibility and risk for any concealed, latent or unknown condition which may affect the Work. No claims for extra work or additional compensation shall be made by Contractor in connection with concealed, latent or unknown conditions except as expressly provided herein. Should concealed, latent or unknown conditions encountered in the performance of the Work (a) below the surface of the ground or (b) in an existing structure be at variance with the conditions indicated by this Contract, or should unknown conditions of an unusual nature differing materially from those ordinarily encountered in the area and generally recognized as inherent in Work of the character provided for in this Contract, be encountered, the Contract Price shall be equitably adjusted by Change Order upon the written notice and claim by either party made within seven (7) days after the first observance of the condition. As a condition precedent to the Owner having any liability to the Contractor for concealed or unknown conditions, the Contractor must give the Owner and the Owner's representative written notice of, and an opportunity to observe, the condition prior to disturbing it. The failure by the Contractor to make the written notice and claim as provided in this Subparagraph shall constitute a waiver by the Contractor of any claim arising out of or relating to such concealed, latent or unknown condition and the Contractor thereby assumes all risks and additional costs associated therewith. 8.3.4 CLAIMS FOR ADDITIONAL COSTS - I f the Contractor wishes to make a claim for an increase in the Contract Price, as a condition precedent to any liability of the Owner therefore, he Contractor shall give the Owner's Representative written notice of such claim within seven (7) days after the occurrence of the event, or the first appearance of the condition, giving rise to such claim. Such notice shall be given by the Contractor before proceeding to execute any additional or changed Work. The failure by the Contractor to give such notice and to give such notice prior to executing the Work shall constitute a waiver of any claim for additional compensation. 8.3.4.1 In connection with any claim by the Contractor against the Owner for compensation in excess of the Contract Price, any liability of the Owner for the Contractor's costs shall be strictly limited to direct costs incurred by the Contractor and shall in no event include indirect costs or consequential damages of the Contractor. The Owner shall not be liable to the Contractor for claims of third parties, including Subcontractors. The Owner shall not be liable to the Contractor for any claims based upon delay to the Contractor for any reason whatsoever including any act or neglect on the part of the Owner. 8.3.5 CLAIMS FOR AIDDITIONAL TIME - If the Contractor is delayed in progressing any task which at the time of the delay is then critical or which during the delay becomes critical, as the sole result of any act or neglect to act by the Owner or someone acting in the Owner's behalf, or by changes ordered in the Work, unusual delay in transportation, unusually adverse weather conditions not reasonably anticipated, fire or any causes beyond the Contractor's control, then the date for achieving Substantial Completion of the Work shall be extended upon the written notice and claim of the Contractor to the Owner and the Owner's Representative, for such reasonable time as the Owner may determine. Any notice and claim for an extension of time by the Contractor shall be made not more than seven (7) days after the occurrence of the event or the first appearance of the condition giving rise to the claim and shall set forth in detail the Contractor's basis for requiring additional time in which to complete the Project. In the event the delay to the Contractor is a continuing one, only one notice and claim for additional time shall be necessary. If the Contractor fails to make such claim as required in this Subparagraph, any claim for an extension of time shall be waived. The procedures and remedies provided by this provision shall be the sole remedy of Contractor and Contractor shall not assert nor be entitled to any additional delays or damages associated therewith. 8.4 F~Ln URDERS 8.4.1 The Owner's Representative shall have authority to order minor changes in the Work not involving a change in the Contract Price or in Contract Time and not inconsistent with the intent of the Contract. Such changes shall be effected by Field Order and shall be binding upon the Contractor. The Contractor shall carry out such Field Orders promptly. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Pete 13 St. Joseph Village -Emergency Slide Stabilization 8.5 MEDIATION 8.5.1 1n the event that a dispute arises under the terms of this Contract, following an adverse determination by the Owner's Representative and proper preservation of the issue as required herein, the parties agree to submit to mediation. In such event, the parties shall agree to a designated person to serve as mediator and each party shall be responsible for payment of one-half of the total mediation fees. The parties shall submit the dispute to mediation as soon as practical and in no event later than one (1) year after the Owner's written decision on the matter. At least one designated representative of each party must attend and participate in good faith in an effort to resolve the matters in dispute. below. All subcontracts shall incorporate by reference the provisions hereof and shall provide that no claims, causes or demands shall be made by any Subcontractor against the Owner. 9.2.3 The Contractor shall indemnify, defend and hold harmless the Owner from and against any and all claims, demands, causes of action, damage, and liability asserted or made against the Owner by or on behalf of any Subcontractor. ARTICLE X CHANGES IN THE WORK 10.1 CHANGES PERMITTED 8.5.2 In no event shall the foregoing provision justify or authorize any delay in the progress of the Work; the parties shall abide by the decision of the Owner's Representative in accomplishing the timely completion of the Project. ARTICLE IX SUBCONTRACTORS 9.1 DEFINTTION 9.1.1 A Subcontractor is an entity which has a direct contract with the Contractor to perform a portion of the Work. No Subcontractor shall be in privity with the Owner. 9.2 AWARD OF SUBCONTRACTS 9.2.1 Upon execution of the Contract, the Contractor shall furnish the Owner, in writing, the names of persons or entities proposed by the Contractor to act as a Subcontractor on the Project. The Owner shall promptly reply to the Contractor, in writing, stating any objections the Owner may have to such proposed Subcontractor. The Contractor shall not enter into a subcontract with a proposed Subcontractor with reference to whom the Owner has made timely objection. The Contractor shall not be required to subcontract with any party to whom the Contractor has objection. 9.2.2 All subcontracts shall afford the Contractor rights against the Subcontractor which correspond to those rights afforded to the Owner against the Contractor herein, including those rights afforded to the Owner by Subparagraph 12.2.1 10.1.1 Changes in the Work within the general scope of this Contract, consisting of additions, deletions, revisions, or any combination thereof, may be ordered without invalidating this Contract, by Change Order or by Field Order. 10.1.2 Changes in the Work shall be performed under applicable provisions of this Contract, and the Contractor shall proceed promptly with such changes. lOZ CHANGE ORDER DEFINED 10.2.1 Change Order shall mean a written order to the Contractor executed by the Owner, issued after execution of this Contract, authorizing and directing a change in the Work or an adjustment in the Contract Price or the Contract Time, or any combination thereof. The Contract Price and the Contract Time may be changed only by written Change Order. 10.3 CHANGES IN THE CONTRACT PRICE 10.3.1 Any change in the Contract Price resulting from a Change Order shall be determined as follows: (a) by mutual agreement between the Owner and the Contractor as evidenced by (1) the change in the Contract Price being set forth in the Change Order, (2) such change in the Contract Price, together with any conditions or requirements related thereto, being initialed by both parties and (3) the Contractor's execution of the Change Order, or (b) if no mutual agreement occurs between the Owner and the Contractor, then, as provided in Subparagraph 10.3.2 below. CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 14 St. Joseph Village -Emergency Slide Stabilization 10.3.2 If no mutual agreement occurs between the Owner and the Contractor as contemplated in Subparagraph 10.3.1 above, the change in the Contract Price, if any, shall then be determined by the Owner's Representative on the basis of the reasonable expenditures or savings of those performing, deleting or revising the Work attributable to the change, including, in the case of an increase or decrease in the Contract Price, a reasonable allowance for direct job site overhead and profit. In such case, the Contractor shall present, in such form and with such content as the Owner may require, an itemized accounting of such expenditures or savings, plus appropriate supporting data for inclusion in a Change Order. Reasonable expenditures or savings shall be limited to the following: reasonable costs of materials, supplies, or equipment including delivery costs, reasonable costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance, reasonable rental costs of machinery and equipment exclusive of hand tools whether rented from the Contractor or others, reasonable costs of premiums for all bonds and insurance, permit fees, and sales, use or other taxes related to the Work, and reasonable cost of direct supervision and jobsite field office overhead directly attributable to the change. In no event shall any expenditure or savings associated with the Contractor's home office or other non-jobsite overhead expense be included in any change in the Contract Price. Pending final determination of reasonable expenditures or savings to the Owner, payments on account shall be made to the Contractor on the Certificate for Payment. Contractor shall promptly carry out such written Field Orders. 10.5 EFFECT OF EXECUTED CHANGE ORDER 10.5.1 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the Work, this Contract as thus amended, the Contract Price and the Contract Time. The Contractor, by executing the Change Order, waives and forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the Work included within or affected by the executed Change Order. 10.6 NOTICE TO SURETY CONSENT 10.6.1 The Contractor shall notify and obtain the consent and approval of the Contractor's surety with reference to all Change Orders if such notice, consent or approval is required by the Contractor's surety or by law. The Contractor's execution of the Change Order shall constitute the Contractor's warranty to the Owner that the surety has been notified of and consents to, such Change Order and the surety shall be conclusively deemed to have been notified of such Change Order and to have expressly consented thereto. ARTICLE XI UNCOVERING AND CORRECTING WORK 10.3.3 If unit prices are provided in the Contract, and if the quantities contemplated are so changed in a proposed Change Order that application of such unit prices to the quantities of Work proposed will cause substantial inequity to the Owner or to the Contractor, the applicable unit prices shall be equitably adjusted. 10.4 MINOR CHANGES 10.4.1 The Owner's Representative shall have authority to order minor changes in the Work not involving a change in the Contract Price or an extension of the Contract Time and not inconsistent with the intent of this Contract. Such minor changes shall be made by written Field Order, and shall be binding upon the owner and the Contractor. The 11.1 UNCOVERING WORK 11.1.1 If any of the Work is covered contrary to the Owner's request or to any provisions of this Contract, it shall, if required by the Owner's Representative or the Owner, be uncovered for inspection and shall be properly replaced at the Contractor's expense without change in the Contract Time. 11.1.2 If any of the Work is covered in a manner not inconsistent with Subparagraph 11.1.1 above, it shall, if required by the Owner's Representative or Owner, be uncovered for inspection. If such Work conforms strictly with this Contract, costs of uncovering and proper replacement shall by Change Order be charged to the Owner. If CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 15 St. Joseph Village -Emergency Slide Stabilization such Work does not strictly conform with this Contract, the Contractor shall pay the costs of uncovering and proper replacement. 11Z CORRECTING WORK 11.2.1 The Contractor shall immediately proceed to correct Work rejected by the Owner's Representative as defective or failing to conform to this Contract. The Contractor shall pay all costs and expenses associated with correcting such rejected Work, including any additional testing and inspections and expenses made necessary thereby. 11.2.2 If within one (1) year after Substantial Completion of the Work any of the Work is found to be defective or not in accordance with this Contract, the Contractor shall correct it promptly upon receipt of written notice from the Owner. This obligation shall survive final payment by the Owner and termination of this Contract. With respect to Work first performed and completed after Substantial Completion, this one year obligation to specifically correct defective and nonconforming Work shall be extended by the period of time which elapses between Substantial Completion and completion of the subject Work. 11.2.3 Nothing contained in this Paragraph 11.2 shall establish any period of limitation with respect to other obligations which the Contractor has under this Contract. Establishment of the one year time period in Subparagraph 11.2.2 relates only to the duty of the Contractor to specifically correct the Work. remaining compensation for accepting defective or nonconforming Work. ARTICLE XII CONTRACT TERMINATION 12.1 TERMINATION BY THE CONTRACTOR 12.1.1 If the Work is stopped for a period of ninety (90) days by an order of any court or other public authority, or as a result of an act of the Government, through no fault of the Contractor or any person or entity working directly or indirectly for the Contractor, the Contractor may, upon ten (10) days' written notice to the Owner, terminate performance under this Contract and recover from the Owner payment for the actual reasonable expenditures of the Contractor (as limited in Subparagraph 10.3.2 above) for all Work executed and for materials, equipment, tools, construction equipment and machinery actually purchased or rented solely for the Work, less any salvage value of any such items. 12.1.2 If the Owner shall persistently or repeatedly fail to perform any material obligation to the Contractor for a period of fifteen (15) days after receiving written notice from the Contractor of its intent to terminate hereunder, the Contractor may terminate performance under this Contract by written notice to the Owner. In such event, the Contractor shall be entitled to recover from the Owner as though the Owner had terminated the Contractor's performance under this Contract for convenience pursuant to Subparagraph 12.2.1 hereunder. 11.3 OWNER MAY ACCEPT DEFECTIVE OR NONCONFORMING WORK 11.3.1 If the Owner chooses to accept defective or nonconforming Work, the Owner may do so. In such event, the Contract Price shall be reduced by the greater of (a) the reasonable cost of removing and correcting the defective or nonconforming Work, and (b) the difference between the fair market value of the Project as constructed and the fair market value of the Project had it not been constructed in such a manner as to include defective or nonconforming Work. If the remaining portion of the unpaid Contract Price, if any, is insufficient to compensate the Owner for its acceptance of defective or nonconforming Work, the Contractor shall, upon written demand from the Owner, pay the Owner such 12.2 TERMINATION BY THE OWNER 12.2.1 FOR COIVVEIVIEIVCE 12.2.1.1 The Owner may for any reason whatsoever terminate performance under this Contract by the Contractor for convenience. The Owner shall give written notice of such termination to the Contractor specifying when termination becomes effective. 12.2.1.2 The Contractor shall incur no further obligations in connection with the Work and the Contractor shall stop Work when such termination becomes effective. The Contractor shall also terminate outstanding orders and subcontracts. The Contractor shall settle the liabilities and claims CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 16 St. Joseph Village -Emergency Slide Stabilization arising out of the termination of subcontracts and orders. The Owner may direct the Contractor to assign the Contractor's right, title and interest under terminated orders or subcontracts to the Owner or its designee. 12.2.1.3 The Contractor shall transfer title and deliver to the Owner such completed or partially completed Work and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has. 12.2.1.4 (a) The Contractor shall submit a termination claim to the Owner specifying the amounts due because of the termination for convenience together with costs, pricing or other data required by the Owner. If the Contractor fails to file a termination claim within one (1) year from the effective date of termination, the Owner shall pay the Contractor, an amount derived in accordance with subparagraph (c) below. (b) The Owner and the Contractor may agree to the compensation, if any, due to the Contractor hereunder. (c) Absent agreement to the amount due to the Contractor, the Owner shall pay the Contractor the following amounts: (c) Contract prices for labor, materials, equipment and other services accepted under this Contract; (d) Reasonable costs incurred in preparing to perform and in performing the terminated portion of the Work, and in terminating the Contractor's performance, plus a fair and reasonable allowance for overhead and profit thereon (such profit shall not include anticipated profit or consequential damages), provided however, that if it appears that the Contractor would have not profited or would have sustained a loss if the entire Contract would have been completed, no profit shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss, if anY (e) Reasonable costs of settling and paying claims arising out of the termination of subcontracts or orders pursuant to Subpazagraph 12.2.1.2 of this Paragraph. These costs shall not include amounts paid in accordance with other provisions hereof. The total sum to be paid the Contractor under this Subpazagraph 12.2.1 shall not exceed the total Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall in no event include duplication of payment. 12.2.2 FOR CAUSE 12.2.2.1 If the Contractor persistently or repeatedly refuses or fails to prosecute the Work in a timely manner, abandons the jobsite and fails to resume work within five (5) days of written notice thereof by the Owner, fails to grant or allow access to the jobsite by the Owner or Owner's Representative, fails to supply enough properly skilled workers, supervisory personnel or proper equipment or materials, fails to make prompt payment to Subcontractors or for materials or labor, persistently disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or otherwise is guilty of a violation of a material provision of this Contract, then the Owner may by written notice to the Contractor, without prejudice to any other right or remedy, terminate the employment of the Contractor and take possession of the site and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Contractor and may finish the Work by whatever methods it may deem expedient. In such case, the Contractor shall not be entitled to receive any further payment until the Work is finished. 12.2.2.2 If the unpaid balance of the Contract Price does not exceed the cost of finishing the work, including compensation for expenses made necessary thereby, such difference shall be paid by the Contractor to the Owner. This obligation for payment shall survive the termination of the Contract. 12.2.2.3 In the event the employment of the Contractor is terminated by the Owner for cause pursuant to Subpazagraph 12.2.2 and it is CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 17 St. Joseph Village -Emergency Slide Stabilization subsequently determined by a Court of competent jurisdiction that such termination was without cause, such termination shall thereupon be deemed a Termination for Convenience under Subpazagraph 12.2.1 and the provisions of Subparagraph 12.2.1 shall apply. ARTICLE XIII Liability (Public) $1,000,000 Aggregate $1,000,000 Products & Completed Operations Aggregate. Owner's Protective $600,000 per occurrence Liability Insurance $1,000,000 aggregate INSURANCE Excess/LJmbrella Liability $1,000,000 per occurrence w/drop down coverage 13.1 CONTRACTOR SHALL MAINTAIN INSURANCE 13.1.1 The Contractor at his own expense shall purchase, maintain and keep in force during the life of this contract, adequate insurance that will protect the Contractor and/or any Additional Insured from claims which may arise out of or result from operations under this contract. The insurance required shall provide adequate protections from all claims, whether such operations be by the Contractor or by any Additional Insured or by any Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone whose acts of any of them may be liable and from any special hazazds, such as blasting, which may be encountered in the performance of this contract in the amounts as shown below in Paragraph ] 3.2.1. 13.1.2 The Contractor shall not commence work on any Contract in the City of Coppell until the Contractor has obtained all the insurance required under this paragraph and such insurance has been approved by the City. 13.2 TYPES AND AMOUNTS OF CONTRACTOR'S INSURANCE Endorsement CG 2503 Amendment Aggregate Limit of Insurance per Project or Owner's and Contractor's Protective Liability Insurance for the Project. Automobile Liability $500,000 Combined single limit per occurrence. 13.3 ADDTI'IONAL INSURED The Owner shall be named as an additional insured on the Commercial General Liability (Public), Owner's Protective Liability, and Excess/Umbrella Liability Insurance Policies furnished by the Contractor. 13.4 WRITTEN NOTIFICATION Each insurance policy shall contain a provision requiring that thirty (30) days prior to expiration, cancellation, non-renewal or any material change in coverage, a notice there of shall be given by certified mail to the Division of Purchasing, City of Coppell, 255 Parkway Blvd., Coppell, Texas, 75019. 13.2.1. The Contractor shall furnish and maintain during the life of the contract adequate Worker's Compensation and Commercial General Liability (Public) Insurance in such amounts as follows: 'IWue of Insarauce Amount Worker's Compensation as set forth in the Worker's Compensation Act. Commercial General $1,000,000 Each A ccident/Occurrence. 13.5 PREMIUMS AND ASSESSMENTS Companies issuing the insurance policies shall have no recourse against the City for payment of any premiums or assessments for any deductibles which are at the sole responsibility and risk of the Contractor. 13.6 CERTIFICATE OF INSURANCE Proof that the insurance is in force shall be furnished to the City on City of Coppell Standard Certificate of Insurance Forms. In the event any insurance policy CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Pate 18 St. Joseph Village -Emergency Slide Stabilization shown on the Certificate of Insurance has an coverage ends during the duration of expiration date that is prior to the completion and the project; final acceptance of the project by the City of Coppell, the contractor shall furnish the City proof of identical (5) retain all required certificates of coverage continued coverage no later than thirty (30) days on file for the duration of the project and prior to the expiration date shown on the Certificate for one year thereafter; of Insurance. (6) notify the governmental entity in writing by certified mail or personal delivery, 13.7 PRIMARY COVERAGE within 10 days after the contractor knew The coverage provided herein shall be primary and or should have known, of any change that noncontributory with any other insurance maintained materially affects the provision of by the City of Coppell, Texas, for its benefit, coverage of any person providing services including self-insurance. on the project; 13.8 WORKER'S COMPENSATION ('7) post a notice on each project site INSURANCE COVERAGE informing all persons providing services on the project that they are required to be 13.8.1 The Contractor shall: covered, and stating how a person may verify current coverage and report failure (1) provide coverage for its employees to provide coverage. This notice does not providing services on a project, for the satisfy other posting requirements duration of the project based on proper imposed by the Act or other commission reporting of classification codes and rules. This notice must be printed with a payroll amounts and filing of any title in at least 30 point bold type and text coverage agreements; in at least 19 point normal type, and shall be in both English and Spanish and any (2) provide a certificate of coverage showing other language common to the worker workers' compensation coverage to the population. The text for the notices shall governmental entity prior to beginning be the following text provided by the work on the project; Texas Department of Insurance Division of Worker's Compensation on the sample (3) provide the governmental entity prior to notice, without any additional words or the end of the coverage period, a new changes: certificate of coverage showing extension of coverage, if the coverage period shown on the contractor's current certificate of REQUIRED WORKERS' COMPENSATION coverage ends during the duration of the COVERAGE project; "The law requires that each person working on this (4) obtain from each person providing site or providing services related to this construction services on a project, and provide to the project must be covered by workers' compensation governmental entity: insurance. This includes persons providing, hauling, or delivering equipment or materials, or providing (A) a certificate of coverage, prior to that labor or transportation or other services related to the person beginning work on the project, project, regardless of the identity of their employer or so the governmental entity will have status as an employee. on file certificates of coverage showing coverage for all persons Call the Division of Workers' Compensation at 512- providing services on the project; and 804-4345 to receive information on the legal (B) no later than seven days after receipt requirement for coverage, to verify whether your by the contractor, a new certificate of employer has provided the required coverage, or to coverage showing extension of report an employer's failure to provide coverage. " coverage, if the coverage period shown on the current certificate of and CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 19 St. Joseph Village -Emergency Slide Stabilization (8) contractually require each person with whom it contracts to provide services on a project, to: (A) provide coverage based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements for all of its employees providing services on the project, for the duration of the project; (B) provide a certificate of coverage to the contractor prior to that person beginning work on the project; (G) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and (H) contractually require each other person with whom it contracts, to perform as required by sub- paragraphs (A) - (H) of this paragraph, with the certificate of coverage to be provided to the person for whom they are providing services. (C) include in all contracts to provide services on the project the language in subsection (e)(3) of this rule; ARTICLE XIV (D) provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (E) obtain from each other person with whom it contracts, and provide to the Contractor: (i) a certificate of coverage, prior to the other person beginning work on the project; and (ii) prior to the end of the coverage period, a new certificate of coverage showing extension of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; (F) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; MISCELLANEOUS 14.1 LAWS AND ORDINANCES 14.1.1 The Contractor shall at all times and in all respects observe and comply with all federal, state and local laws, ordinances, and regulations applicable to the Project and Work. The Contractor shall further insure that all Subcontractors observe and comply with said laws, ordinances and regulations. 14.2 GOVERNING LAw 14.2.1 The Contract shall be governed by the laws of the State of Texas. Venue for any causes of action arising under the terms or provisions of this Contract or the Work to be performed hereunder shall be in the courts of Dallas County, Texas. 143 SUCCESSORS AND ASSIGNS 14.3.1 The Owner and Contractor bind themselves, their successors, assigns and legal representatives to the other party hereto and to successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in this Contract. The Contractor shall not assign this Contract without written consent of the Owner. CITY OF COPPELL PURCIIASING DEPARTMENT 255 PARKWAY TiOULEVARD • COPPELL, TEXAS 75019 Page 20 St. Joseph Village -Emergency Slide Stabilization 14.4 SURETY BONDS 14.4.1 If the Contract Price exceeds the sum of $25,000.00, the Contractor shall furnish separate performance and payment bonds to the Owner, according to the requirements set out in the bid documents and state statutes to guaranty full and faithful performance of the Contract and the full and final payment of all persons supplying labor or materials to the Project. Each bond required by the bid documents or state statute shall set forth a penal sum in an amount not less than the Contract Price. Each bond furnished by the Contractor shall incorporate by reference the terms of this Contract as fully as though they were set forth verbatim in such bonds. In the event the Contract Price is adjusted by Change Order executed by the Contractor, the penal sum of both the performance bond and the payment bond shall be deemed increased by like amount. The performance and payment bonds furnished by the Contractor shall be in form suitable to the Owner and shall be executed by a surety, or sureties, reasonably suitable to the Owner and authorized to do business in the State of Texas by the State Board of Insurance. any nonperformance or nonconforming work or to enforce any provision hereof shall in no event be regarded as or construed to be a waiver, release or modification of any term or provision in this Contract, nor shall such failure to object or enforce estop the Owner from insisting on strict compliance with this Contract or from recovering damages, costs or expenses arising as a result of such nonperformance or nonconforming work. 14.7 No'rICES 14.7.1 All notices required by this Contract shall be presumed received when deposited in the mail properly addressed to the other party at the address set forth herein or set forth in a written designation of change of address delivered to all parties. 14.4.2 If the Contract Price exceeds the sum of $25,000.00, the Contractor, upon execution of the Contract and prior to commencement of the Work, shall furnish to the Owner atwo-year maintenance bond in the amount of one hundred percent (100%) of the Contract Price covering the guaranty and maintenance prescribed herein, written by an approved surety authorized and duly licensed to conduct business in the State of Texas. The cost of said maintenance bond shall be included in the Contractor's unit bid prices and shall be paid by the Contractor. 14.5 $EVERABILITY 14.5.1 The provisions of this Contract are herein declared to be severable; in the event that any term, provision or part hereof is determined to be invalid, void or unenforceable, such determination shall not affect the validity or enforceability of the remaining terms, provisions and parts, and this Contract shall be read as if the invalid, void or unenforceable portion had not be included herein. 14.6 AMENDMENTS 14.6.1 This Contract may be amended by the parties only by a written agreement duly executed by both parties. The failure of the Owner to object to CITY OF COPPELL PURCHASING DEPARTMENT • 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 21 St. Joseph Village -Emergency Slide Stabilization EXECUTED in single or multiple originals, this ~ day of ~ , 2009. CITY OF COPPELL CONTRACTOR: C.,KZ.l41 ~ DC~C~,. -L ~~-' APPROVED: City Manag ATTEST: (Signature) (Type/Print Name and Trtle) (o(Q I `~In~v,~iZr4l~~e. (Street Address) (City/State/Zip) CrfY OF COPPELL • PURCHASING DEPARTMENT • 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Page 22 St. Joseph Village -Emergency Slide Stabilization CORPORATE ACKNOWLEDGMENT THE STATE OF I ~ LL i COUNTY OF ~ v~,~ BEFORE ME, the undersigned authority, a Notary Public in and for ~s/aid County and State, on this day personally appeared: ~2~ l1 t? 12-~u2 V4 ~~ y J [.-~' ~2 ~S ~ u~ C~ (Print Name) (Print Title) of ~ 12 +~ 1 ~, ~~~ ~~t -~' G. ,the Contractor designated hereinabove, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said Contractor, a corporation, that he was duly authorized to perform the same by appropriate resolution of the board of directors of such corporation and that he executed the same as the act and deed of such corporation for the purposes and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ~ day of I ~" , A.D., 2009. Notary Public In and o~ ~~' County, C:~a"~ My Commission expires: N„,~ x,,,,o4,~, MISTI R. HOWELL ,~.:~' ~ Notary Pubfic, State of Texas ~ • - My Commissio 20 2 res ~~~ .. CITY MANAGER'S ACKNOWLEDGMENT THE STATE OF TEXAS COUNTY OF DALLAS BEFORE ME, the undersigned authority, a Notary Public in and for said County and State, on this day personally appeared the undersigned, City Manager of the City of Coppell, Texas, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Coppell, Texas, a municipal corporation, that he/she was duly authorized to perform the same by appropriate resolution of the City Council of the City of Coppell and that he/she executed the same as the act of the said City for purpose and consideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , A.D., 2009. Notary Public in and for the State of Texas My Commission expires: CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Page 23 St. Joseph Village -Emergency Slide Stabilization PERFORMANCE BOND STATE OF TEXAS COUNTY OF DALLAS KNOW ALL MEN BY THESE PRESENTS: That whose address is hereina er called Principal, and a corporation organized and in the State of Texas, as Surety, are held and firmly boun TEXAS a municipal corporation organized and existing unde municipal corporation organized and existing under the laws called "Owner", in the penal sum of fully licensed to transact business d unto the CITY OF COPPELL, r the laws of the State of Texas, a of the State of Texas, hereinafter dollars ( ) in lawful money of the United States, to be paid in Dallas County, Texas, fort e ~iayment o which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement which reduces the Contract price decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract with the City of Coppell, the Owner, dated the day of 2009, which is made a part hereof by reference, for the construction of certain public improvements that are generally described as follows: Construction of the St. Joseph Village -Emergency 51ide Stabilization Bid No. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the plans, specifications and Contract documents during the original term thereof and any extension thereof which may be granted by the Beneficiary, with or without notice to the Surety, and during the life of any guaranty or warranty required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair andlor replace all defects due to faulty materials and workmanship that appear within a period of one (1) year from the date of final completion and final acceptance of the Work by Owner; and, if the Principal shall fully indemnify and save harmless the Beneficiary from all costs and damages which Beneficiary may suffer by reason of failure to so perform herein and shall fully reimburse and repay Beneficiary all outlay and expense which the Beneficiary may incur in making good any default of deficiency, then this obligation shall be void; otherwise, rt shall remain in full force and effect. CITY OF COPPELL • PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Prge 24 St. Joseph Village -Emergency Slide Stabilization PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive Venue shall lie in Dallas County, Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to Contract or to the Work performed thereunder, or the specifications accompanying the same shall in anyway 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 Contract, or to the Work or to the Specifications. This Bond is given pursuant to the provisions of Article 5160 of Vernon's Annotated Civil Statutes, and any other applicable statues of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Tarrant County or Dallas County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in copies, each one of which shall be deemed an original, this, the day of , 2009. PRINCIPAL By: Title ATTEST: SURETY By:_ Title: ATTEST: The Resident Agent of the Surety in Dallas or Denton County, Texas, for delivery of notice and service of the process is: NAME: ADDRESS: NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name. CITY OF COPPELL • PURCHASING DEPARTMENT • 25.5 PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 25 St. Joseph Village -Emergency Slide Stabilization PAYMENT BOND STATE OF TEXAS COUNTY OF DALLAS KNOW ALL MEN BY THESE PRESENTS: That whose address is hereinafter called Principal, and a corporation organized and existing under the laws of the State of and fully licensed to transact business in the State of Texas, as Surety, are held an firmly bound unto the CITY OF COPPELL, TEXAS a municipal corporation organized and existing under the laws of the State of Texas, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called "Owner", in the penal sum of dollars ( ) in lawful money of the United States, to be paid in Dallas County, Texas, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement which reduces the Contract price decrease the penal sum ofthis Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract with the City of Coppell, the Owner, dated the day of 2009, which is made a part hereof by reference, for the construction of certain public improvements that are generally described as follows: Construction of the St. Joseph Village -Emergency Slide Stabilization Bid No. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill its duties and make prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and/or material in the prosecution of the Work provided for in said Contract and any and all duly authorized modifications of said Contract that may hereafter be made. notice of which modification to the Surety is hereby expressly waived; the obltgation shall be void; otherwise it shall remain in full force and effect. PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive Venue shall lie in Dallas County, Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to Contract or to the Work performed thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same, shall to anywise 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 Contract, or to the Work to be performed thereunder. CITY OF COPPELL PURCHASING DEPARTMENT 255 PARKWAY BOULEVARD • COPPELL, TEXAS 75019 Page l6 St. Joseph Village -Emergency Slide Stabilization This Bond is given pursuant to the provisions of Article 5160 of Vernon's Annotated Civil Statutes, and any other applicable statues of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Tarrant County or Dallas County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in copies, each one of which shall be deemed an original, this, the day of , 2009. PRINCIPAL SURETY By: By: Title Title: ATTEST: ATTEST: The Resident Agent of the Surety in Dallas or Denton County, Texas, for delivery of notice and service of the process is: NAME: ADDRESS: NOTE: Date of Payment Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name. CITY OF COPPELL PURCHASING DEPARTMENT 25S PARKWAY BOULEVARD COPPELL, TEXAS 75019 Page 21 OLDEN Crmg Olden, Inc. May 14, 2009 The City of Coppell 255 Parkway Boulevard Coppell, Texas 75019 Phone: 972.304.3681 Fax: 972.304.3570 Cell: 469.579.0664 ~; Email: kmarvin ,~ci.coppell.tx.us Attn: Mr. Keith Marvin, P.E. RE: Revised - St. Joseph's Village -Emergency Slide Stabilization Coppell, Texas Project No. 400101 (Target No. L090230) Mr. Marvin: We appreciate the opportunity to work with you and to provide a proposal, complete and in-place, subject to the Notes listed below, the attached General Conditions, the attached preliminary drawings prepared by Craig Olden, Inc., dated May 4, 2009, and in accordance with the direction of Mr. Keith Marvin, P.E. of The City of Coppell, for the following work at the above referenced site: 1.0 Engineering $ 8,000.00 2.0 Mobilization $ 10,000.00 3.0 Reinforced Gabion Slope Stability Structure $ 150,000.00 Subtotal $ 168,000.00 4.0 Performance, Payment, Maintenance Bonds $ 3,950.00 TOTAL AMOUNT $ 171,950.00 Notes: 1. Engineered plans prepared by Craig Olden, Inc., a Texas Registered Professional Engineering firm, shall be furnished by COINC prior to commencing the work. 2. This proposal based upon the field conditions as of the site visit by Joel Clark, P.E. and Ryan Watson, E.I.T. of Craig Olden, Inc. on April 16, 2009. Any changes in field conditions prior to beginning the work which require alteration to the scope of work and cost shall be cause for equitable adjustment of the contract amount. This provision shall not apply to changes in field conditions and resultant changes in the scope of work caused by COINC's negligence, willful misconduct, or intentional acts. 3. Suitable access and an acceptable staging location for the work shall be provided by others. 4. COINC shall excavate as required to facilitate the work. 5. Replacement or repair of damages to irrigation system due to slide movement shall be by others. 6. Replacement of vegetation, if required, shall by others. 7. This proposal is based on one (1) mobilization. Additional mobilizations are $10,000.00 each. P.O. Box 5000, Little EIm,TX 75068 972.294.5000 1.800.422.4667 Fax 972.294.2664 www.oldeninc.com 8. This proposal contingent upon acceptable contract documents. This proposal including the General Notes shall be attached as a part of the contract documents. In the event of conflict between the contract documents and the proposal, the terms and conditions of the proposal shall have precedence. 9. This proposal is good for thirty (30) days. If you have any questions or need additional information, please contact our office. 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