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HomeMy WebLinkAboutEDCRes2017.10.24ANNA ECONOMIC DEVELOPMENT CORPORATION RESOLUTION NO.'.<'-1/ / -u � Y-` i), A RESOLUTION OF THE ANNA ECONOMIC DEVELOPMENT CORPORATION APPROVING AND AUTHORIZING THE EXPENDITURE OF FUNDS FOR MATERIALS AND LABOR TO ERECT A DIVIDING WALL FOR THE PROPERTY AT 312 NORTH POWELL PARKWAY WHEREAS, the Anna Economic Development Corporation (the "EDC") wishes to expend funds for materials and labor to erect a dividing wall for the property at 312 N. Powell Parkway. NOW THEREFORE, BE IT RESOLVED BY THE ANNA ECONOMIC DEVELOPMENT CORPORATION, THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Funding The EDC hereby authorizes the Chief Administrative Officer to charge the EDC's contract services line item in the amount not to exceed $2100.00 for materials and labor to erect a dividing wall for the property located at 312 North Powell Parkway. -1, PASSED ANDaPROVED by the Anna Economic Development Corporation this day of CA- , 2017. APPROVED: Connie Stump EDC President ATTEST: La-uretta Blackete EDC Secretary EDC OF ANNA, TEXAS RESOLUTION NOcf'7 0�.� PAGE 1 OF 1 ARRIS ILDERS New Home Construction & Remodeling P.O. Box 2017 Van Alstyne, TX 75495 Ph: 903-819-3523 Email: rockinhr@gmail.com Estimate Date Estimate # 10/3/2017 100317-01 CONSTRUCTION CONTRACT AGREEMENT THIS Construction Contract Agreement (hereinafter this "Contract Agreement") entered into this 9th dayof October , 2017 by and between the Anna Economic Development p Corporations a Texas Type A development corporation ("AEDC") and HARRIS BUILDERS, located at 13512US Hwy. 75 #143C Van Alstyne, TX 75495 ("Contractor" Y } WITNESSETH: Section 1. RECITALS WHEREAS, the AEDC wishes to contract for the project identified as Dividing Wall for Inc -Cube located at 312 North Powell Parkway (the "Project"); and WHEREAS, the Project shall include all materials, work and activities necessary to ) in accordance complete the scope of work (hereinafter referenced as "Work" p ce with this Contract Agreement as that term is defined herein, and WHEREAS, the Contractor has represented to the AEDC that its personnel are qualified to provide the Work required in this Contract Agreement in a professional, timely manner as time is of the essence; and WHEREAS, the AEDC has relied upon the above representations by the Contractor; and NOW, THEREFORE, for and in consideration of these premises, of the mutual covenants herein set forth, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged the parties hereto hereby agree as follows: Y' Section 2. DOCUMENTS INCORPORATED BY REFERENCE This Contract Agreement includes Exhibit A — Contractor's bid showing price and scope of services which is incorporated herein by reference. Section 3. REPRESENTATIONS OF THE CONTRACTOR To induce the AEDC to execute this Contract Agreement and recognizing that the AEDC is relying Y g thereon, the Contractor, by executing the Contract, makes the following express representations to the AEDC: (1) The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated; (2) The Contractor has received, reviewed and examined all of the documents which make up the Contract, including, but not limited to all plans and specifications, and has found them to the best of its knowledge, to be complete, accurate, adequate, consistent, coordinated and sufficient for construction. Section 4. CONTRACTOR'S PERFORMANCE The Contractor shall perform all of the Work required, implied or reasonably inferable from this Contract Agreement including, but not limited to, the following: Construction Contract Agreement Page 1 of 7 4.01 The Contractor will complete the entire Work described in the Contract Documents except as specifically identified therein as the work of other parties p p or expressly excluded by specific reference, in accordance with the terms herein. 4.02 The provision or furnishing, and prompt payment therefor, of labor, supervision, services materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, disposal as required for construction and all necessary building permits and other permits or Pro ject; oject; licenses required, if any, for the construction of the ' Section 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS 5.01 The Contractor shall commence the performance of the Contract within 14 days of the effective date of this Contract Agreement(the "Comm • • Yg "Commencement Date) and shall diligently continue its performance to and until Completion of the Project. The Contractor shall accomplish Substantial Completion (as defined herein below) of the Project not more than 30 calendar days following the Commencement Date, (sometimes hereinafter referred to as the "Contract Time"). This Contract Time includes inclement weather days. By signing the Contract, the Contractor agrees that the Contract Time is a reasonable time for accomplishing Completion of j the Project and completion of the Project within the Contract p � act Time is of the essence. 5.02 For each and every calendar day of unexcused delav in achievinq Substantial Completion be ond_ the date set forth herein for Substantial Completion, the Contractor shall pay to the Cit 50..- Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate ofsustainedp Y . p g delay damages likely to be by the AFDC, estimated at the time of executing the Contract. When the AEDC reasonablybelieves that Substantial Completion will be inexcusablydelayed, y the AEDC shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed b the AEDC to be adequate to recover liquidated damages applicable to Y q g pp such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the AEDC has withheld payment, the AEDC shall promptly release to the Contractor those funds withheld over and above what ultimately came due as liquidated damages; 5.03 The term "Substantial Completion", as used herein, shall mean the point at which the Project is at a level of completion in strict compliance with the Contract ct such that the AEDC or its designee can enjoy beneficial use or occupancy and can legally occupy, use or operate it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being partial use or occupancy deemed substantially complete, and such p pancy shall not be evidence of Substantial Completion. Section 6. FIXED PRICE AND CONTRACT PAYMENT 6.01 The AEDC shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder the fixed price of $1956.00. The price set forth in this Section 6.01 shall constitute the Contract Price, which shall not be modified except by written amendment to this Contract Agreement duly executed by AEDC and the Contractor. 6.02 The AEDC shall pay the Contract Price to the Contractor when the Contractor has submitted a request for payment in writing (the "Payment Request") and the AEDC has inspected the Project and issued written acceptance of the Project as completed. The submission by the Contractor of the Payment Request also constitutes an affirmative representation and warranty that all Work is free and clear of any lien, claim, or other encumbrance of any person whatsoever (or shall be free and clear of any such lien, claim, or other encumbrance in accordance with Section 6.03, below). As a condition precedent to payment, the Contractor shall, if required by the AEDC, also furnish to the AEDC properly executed waivers of lien or claim, in a form acceptable to the AEDC, from all subcontractors, materialmen, suppliers or others having lien or claim rights, wherein said subcontractors, materialmen, suppliers or others having lien or claim rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, Construction Contract Agreement Page 2 of 7 lien rights or other claims relating to the Project site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the AEDC. 6.03 When payment is received from the AEDC, the Contractor shall within seven calendar days pay any unpaid subcontractors, material men, laborers and suppliers the amounts they are due for the work covered by such payment. In the event the AEDC becomes informed that the Contractor has not paid a subcontractor, material man, laborer, or supplier as provided herein, the AEDC shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, material man, laborer, or supplier as joint payees. The AEDC shall notify the Contractor of its intent to implement such a procedure, and will give the Contractor a reasonable period to cure any such failure prior to implementing the procedure. Such joint -check procedure, if employed by the AEDC, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check as a co -payee and shall not be deemed to commit the AEDC to repeat the procedure in the future. 6.04 Neither payment to the Contractor, written acceptance of the Project, full or partial utilization of the Project for any purpose by the AEDC, nor any other act or omission by the AEDC shall be interpreted or construed as an acceptance of any Work of the Contractor not strictly in compliance with this Contract Agreement. Section 7. INFORMATION AND MATERIAL SUPPLIED BY THE AEDC 7.01 The AEDC has furnished to the Contractor, prior to the execution of this Contract Agreement, all written and tangible material in its possession relevant to the conditions at the site of the Project. Such written and tangible material has been furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the AEDC and for no other purpose. By furnishing such material, the AEDC does not represent, warrant, or guarantee its accuracy either in whole, in part, implicitly or explicitly, or at all. 7.02 Differing site conditions. The Contractor shall promptly, and before such conditions are disturbed, notify the AEDC in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in the contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract. The AEDC shall investigate the conditions, and if it finds that such conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performance of any part of the Work under the Contract, whether or not changed as a result of such conditions, an adjustment shall be made, through negotiation and mutual agreement, and the contract modified in writing accordingly. Section 8. DELETED INTENTIONALLY Section 9. CONTRACTOR'S ADDITIONAL DUTIES, OBLIGATIONS AND RESPONSIBILITIES In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in the Contract Documents, the Contractor shall have and perform the following duties, obligations and responsibilities to the AEDC: 9.01 Protection of persons and property. (1) It shall be the responsibility of the Contractor to initiate, continue and supervise all safety programs and precautions in the performance of the terms of the Contract. The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to its employees, subcontractors' employees, officers and employees of the AEDC and members of the public, the Work Construction Contract Agreement Page 3 of 7 itself and unassembled components thereof, and other property at the site or adjacent thereto. As part of the Contractor's obligations hereunder, eunder, the Contractor shall erect and ma intain all necessary and prudent safeguards, barriers, signs, warnings, etc. (2) With notice to the AEDC, the Contractor shall promptly remedy loss or damage to the Work or any person or property described he g p p y rein caused in whole or in part by the acts of the Contractor or any subcontractor, sub -subcontractor or materialman. This obligation shall be in addition to the requirements of Section 1 g q 0 herein. The AEDC may direct the Contractor to remedy known violations of applicable laws, rules, regulations, and interpretations related to safety when and if observed on the site. However, through exercising this authority the AEDC shall not incur any obligations to monitor, initiate, continue, or supervise safety programs and precautions such to diminish the Contractor's primary role in same. 9.02 The Contractor warrants to the Owner that materials and equipment furnished under the Contract are of good quality and new unless otherwise required or permitted under the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed b the • g y Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 9.03 The Contractor shall, at no cost in time or money to the AEDC, correct work rejected b the AEDC as defective or failingto conform to the Contract. • Y c . the Contractor shall reimburse the AEDC for all testing, review, inspections and other expenses incurred as a result thereof. 9.04 In addition to its warranty obligations set forth elsewhere in this Contract Agreement and any manufacturer's warranties provided on the Project, and in addition to other remedies provided herein or by law to the AEDC, the Contractor shall be specifically obligated to promptly correct any and all defective or nonconforming work, whether obvious or after -discovered, for a period of 12 months following Substantial Completion upon written direction from the AEDC. Section 10. INDEMNITY Except for expenses or liabilities arisina from the ne li ence of the AEDC the Contractor hereby expressly agrees to indemnifv and hold the AEDC harmless against any and all expenses and liabilities arising out of the performance or default of the Contract as follows: 10.01 Contractor shall indemnifv, and hold harmless, to the maximum extent permitted by law, AEDC and its officers, agents, employees, and consultants from and against anv and all liability, damages, losses, (whether in contract or in tort, includinq personal iniury, accidental death or property damage, and regardless, of whether the alienations are false, fraudulent or -groundless), and costs (including reasonable attorney's fees, litigation, arbitration, mediation, appeal expenses incurred in anv matter, includinq a ,proceeding to enforce this Section 10) which in whole or in part are caused by the negligence, recklessness or intentional wrongful misconduct of the Contractor and persons employed by or utilized by the Contractor in Contractor's performance of this Contract Agreement. 10.02 Contractor's obligation to indemnifv, defend and hold harmless shall remain in effect and shall be binding upon Contractor whether such iniury or damage shall accrue, or may be discovered, before or after termination of the Contract. Construction Contract Agreement Page 4 of 7 10.03 Contractor's failure to com I with this section's Provisions shall constitute a material reach upon which AEDC may immediately terminate or suspend this Contract Agreement. Section 11. TERMINATION BY THE AFDC The AEDC may terminate the Contract in accordance with the following terms and conditions: 11.01 Termination for Convenience. The AEDC may, when in the interests of the AFDC, terminate performance under the Contract by the Contractor, in whole or in part, for the convenience of the AEDC. The AEDC shall give written notice of such termination to the Contractor specifying when termination becomes effective. The Contractor shall incur no further obligations in connection with the work so terminated, other than warranties and guarantees for completed work and installed equipment, and the Contractor shall stop work when such termination becomes effective. The Contractor shall also terminate outstanding orders and subcontracts for the affected work. The Contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders. The AEDC may direct the Contractor to assign the Contractor's right, title and interest under termination orders or subcontracts to the AEDC or its designee. The Contractor shall transfer title and deliver to the AEDC such completed or partially completed work and materials, equipment, parts, fixtures, information and Contract rights as the Contractor has in its possession or control. When terminated for convenience, the Contractor shall be compensated as follows: (1) The Contractor shall submit a termination claim to the AEDC specifying the amounts due because of the termination for convenience together with costs, pricing or other data required by the AEDC. If the Contractor fails to file a termination claim within six months from the effective date of termination, the AEDC shall pay the Contractor, an amount derived in accordance with subsection (3) below. (2) The owner and the Contractor may agree to the compensation, if any, due to the Contractor hereunder. (3) Absent agreement to the amount due to the Contractor, the owner shall pay the Contractor the following amounts: (a) Contract costs for labor, materials, equipment and other services accepted under the Contract; and (b) 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 direct job site overhead and earned profit thereon (such profit shall not include anticipated profit or consequential damages); provided however, that if it reasonably 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. The total sum to be paid the Contractor under this Subsection (3) 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. 11.02 Termination for Cause. If the Contractor does not perform the work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to disobey applicable law, or otherwise commits a violation of a material provision of the Contract, then the AEDC, in addition to any other rights it may have against the Contractor or others, may terminate the performance of the Contractor, in whole or in part at the AFDC's sole option, and assume Construction Contract Agreement Page 5 of 7 possession of the Project site and of all materials and equipment at the site and may complete the work. In such case, the Contractor shall not be paid further until the work is complete. After Completion has been achieved, if an portion of the Contract Price, p Y p ce, as it may be modified hereunder, remains after the cost to the AFDC of completing the work, including all costs and expenses of every nature incurred, has been deducted b the AEDC, such remainder shall belong to the Contractor. Otherwise, the Contractor shall pay and make whole the AEDC for such cost. This obligation for payment shall survive the termination of the Contract. In the event the employment of the Contractor is terminated by the AEDC for cause pursuant to this Section 11.02 and it is 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 Section 11.01 and the provisions of Section 11.01 shall apply. 11.03 The AEDC's rights under this section shall be in addition to those contained elsewhere herein or provided by law. Section 12. UNDOCUMENTED WORKERS Undocumented Workers. In accordance with Chapter 2264 of the Texas Government Code, the Contractor certifies that neither it, nor a branch, division, or department of the Contractor, will ever knowingly employ an undocumented worker and that if, after receiving any proceeds under this Agreement, the Contractor, or a branch, division, or department of the Contractor, is convicted of a violation under 8 U.S.C. §1324a(f), as amended or recodified, the Contractor shall repay the total amount of all proceeds theretofore received under this Agreement with interest at 10% per annum or the highest rate allowed by law, whichever is lower, not later than the 120th day after the date the AEDC notifies the Company in writing of the violation. Section 13. PROJECT RECORDS All documents relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Contractor, or any subcontractor of the Contractor, shall be made available to the AEDC and/or its consultants for inspection and copying upon written request by the AEDC. Furthermore, said documents shall be made available, upon request by the AEDC, to any state, federal or other regulatory authority and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all drawings, plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Said records expressly include those documents reflecting the cost of construction to the Contractor. The Contractor shall maintain and protect these documents for not less than three years after completion of the Project, or for any longer period of time as may be required by law or good construction practice. The Contractor further agrees to include these provisions in any subcontracts issued by him in connection with this Contract Agreement. Section 14. APPLICABLE LAW The laws of the State of Texas shall govern this Contract Agreement. In any litigation arising under this Contract Agreement, the parties agree to a waiver of the right to a trial before a jury, and all such litigation shall be litigated only in a non jury hearing in Collin County, Texas. Section 15. SUCCESSORS AND ASSIGNS Each party binds itself, its successors, assigns, executors, administrators or other representatives to the other party hereto and to successors, assigns, executors, administrators or other representatives of such other party in connection with all terms and conditions of this Contract Agreement. The Contractor shall not assign this Contract Agreement without prior written consent of the AEDC. Construction Contract Agreement Page 6 of 7 Section 16. NOTICE Any and all notices required to be sent under the Contract or otherwise shall be sent to the following: If to the AEDC: AEDC of Anna Attn: Chief Administrative Officer 111 North Powell Parkway P.O. Box 776 Anna, Texas 79406 Section 17. ENTIRE AGREEMENT If to the Contractor: Harris Builders Mike Harris 13512 US Hwy. 75 #143C Van Alstyne, TX 75495 Any modification to this Contract Agreement must be supported by an additional, articulated consideration, and must either be in writing, executed by the parties hereto, or, if made orally, should be confirmed in writing, which writing should state the consideration which supports the modification. Failure to confirm an oral modification in writing shall constitute a waiver of any claim for additional compensation with regard to the oral modification. Section 18. SEVERABILITY If any term or condition of the Contract or the application thereof to any person(s) or circumstances is held invalid, this invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition, or application. To this end, the terms and conditions of the Contract are agreed to be severable. Section 19. WAIVER Waiver of any breach of any term or condition of this contract shall not be deemed a waiver of any prior or subsequent breach, and shall not entitle any party hereto to any subsequent waiver of any terms hereunder. No term or condition of this contract shall be held to be waived, modified or deleted except by an instrument, in writing, signed by the parties hereto. IN WITNESS WHEREOF, the Parties have executed this Contract Agreement under their respective seals on the day and year first written above. Anna Economic Develo ent Corporation 1 J ica Perkins, hi f Administrative Officer HarriWMichael—a-rr-lis, Bild BY: Owner Construction Contract Agreement Page 7 of 7