HomeMy WebLinkAboutRes 2014-10-06 Gazebo t Natural Springs Park.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2014-10-06
A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING A CONTRACT FOR
THE PURCHASE AND INSTALLATION OF A GAZEBO AT NATURAL SPRINGS
PARK
WHEREAS, the City has budgeted monies using Park Trust Funds to replace a gazebo
in Natural Springs Park; and,
WHEREAS, Staff has evaluated gazebo manufactures in order to identify a vendor who
can provide the type of facility contemplated in Natural Springs Park; and,
WHEREAS, based on its evaluation, Staff is recommending that the City contract with
Insite Amenities LP for construction of the gazebo; and,
WHEREAS, Insite Amenities LP will construct and install the proposed gazebo for
$54,879 through the Texas Local Government Purchasing Cooperative (commonly
referred to as the "BuyBoard"); and,
WHEREAS, the City's financial policy requires that all purchases above $50,000 be
purchased under formal competitive sealed bidding rules or as otherwise permitted by
the Texas Local Government Code under Chapters 252 and 271; and
WHEREAS, Chapter 271 Subchapter F of the Texas Local Government Code permits a
local government to participate in a cooperative purchasing program with another local
government or a local cooperative organization;
WHEREAS, goods or services purchased through a cooperative purchasing program
satisfy the State law requirement to seek competitive bids; and,
WHEREAS, The Texas Local Government Purchasing Cooperative is an administrative
agency created in accordance with Section 791.001 of the Texas Government Code,
whose purpose is to obtain the benefits and efficiencies that can accrue to members of
a cooperative, to comply with state bidding requirements, and to identify qualified
vendors of commodities, goods, and services;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS THAT:
Section 1. Recitals Incorporated
The recitals set forth above are incorporated herein for all purposes as if set forth in full.
RES. 2014-10-06 Gazebo at Natural Spgs Park PAGE 1 OF 2 10-14-14
Section 2. Approval of Gazebo Purchase and Construction Agreement
The City Council hereby authorizes the City Manager to execute on its behalf an
Agreement with Insite Amenities LP (the "Agreement"), attached hereto as Exhibit 1, for
the purchase and installation of a gazebo at Natural Springs Park, and authorizes,
ratifies and approves the City Manager's execution of same. The City Manager is
hereby authorized to execute all documents and to take all other actions necessary to
finalize, act under, and enforce the Agreement.
PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 14th
day of October, 2014.
ATTEST:
fi
Nath Wilkison, City Secretary
RES. 2014-10-06 Gazebo at Natural Spgs Park PAGE 2 OF 2 10-14-14
CITY OF ANNA, TEXAS
NATURAL SPRINGS PARK GAZEBO
•
AGREEMENT
BETWEEN
CITY OF ANNA, TEXAS
AND
INSITE AMENITIES
TABLE OF CONTENTS
NATURAL SPRINGS PARK GAZEBO
ARTICLE 1. DOCUMENTS INCORPORATED BY REFERENCE......................................................... 1
ARTICLE 2. REPRESENTATIONS OF THE CONTRACTOR...............................................................
1
ARTICLE 3. INTENT AND INTERPRETATION.....................................................................................
2
ARTICLE 4. CONTRACTOR'S PERFORMANCE.................................................................................
3
ARTICLE 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS ...............................................
3
ARTICLE 6. FIXED PRICE AND CONTRACT PAYMENTS..................................................................
5
ARTICLE 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY ............................................
8
ARTICLE 8. CEASE AND DESIST ORDER/CITY'S RIGHT TO PERFORM WORK .............................
9
ARTICLE 9. CONTRACTOR'S DUTIES, OBLIGATIONS AND RESPONSIBILITIES ...........................
9
ARTICLE10. INDEMNITY...................................................................................................................
12
ARTICLE 11. CLAIMS BY THE CONTRACTOR................................................................................
13
ARTICLE 12. SUBCONTRACTORS...................................................................................................
13
ARTICLE 13. CHANGE ORDERS.......................................................................................................
14
ARTICLE 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK .............
17
ARTICLE 15. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE .............................
18
ARTICLE 16. TERMINATION BY THE CITY.......................................................................................
18
ARTICLE17. INSURANCE.:...............................................................................................................
20
ARTICLE 18. RESERVED AND INTENTIONALLY LEFT BLANK ......................................................
21
ARTICLE 19. PROJECT RECORDS...................................................................................................
22
ARTICLE 20. APPLICABLE LAW......................................................................................................
22
ARTICLE 21. SUCCESSORS AND ASSIGNS....................................................................................
22
ARTICLE 22. MISCELLANEOUS PROVISIONS................................................................................
22
ARTICLE 23. ENTIRE AGREEMENT.................................................................................................
23
ARTICLE 24. SEVERABILITY............................................................................................................
23
ARTICLE25. WAIVER........................................................................................................................
23
AGREEMENT
THIS CUSTOMER SERVICE FACILITY (REMODEL) AGREEMENT (hereinafter this
"Agreement") entered into this day of 1 2014 by and between the CITY OF
ANNA, TEXAS, a Texas municipal corporation, located at 111 N. Powell Parkway, Anna, Texas 75409
("City") and INSITE AMENITIES LP, a Texas limited partnership, located 9176 Hyde Road, Ft. Worth
TX 76179 ("Contractor").
WITNESSETH:
WHEREAS, the City wishes to contract for the project identified as Natural Springs Park
Gazebo (the "Project"); and
WHEREAS, the Project generally consists of the construction of a Poligon 32' (roof diagonal)
two tier hexagonal shelter with tongue & groove roof deck and standing seam metal roof in standard
color, standard eave height, 4 sides Carmel style handrails, internal electrical access, Poli -5000 factory
epoly prime/powdercoat frame and ornamentation finish in standard color on a 34' hexagonal stiffened
slab, including sealed engineering plans (collectively, the "Work"); and
WHEREAS, the Contractor has represented to the City that it is qualified to provide the Work
required in this Agreement in a professional, timely manner where time is of the essence; and
WHEREAS, the City has relied upon the above representations by the Contractor;
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:
ARTICLE 1. DOCUMENTS INCORPORATED BY REFERENCE
This Agreement incorporates and includes the recitals set forth above and the construction plans and
related proposals/specifications for the Work attached as Exhibit A to this Agreement.
Said Exhibit A, all of which are hereby incorporated herein by referenceis made a part hereof and
hereinafter along with this Agreement, is referenced collectively as the "Contract" or "Contract
Documents"). Change Orders issued hereafter, Construction Change Directives, a Direction for a Minor
Modification in the Work issued by the City, and any other amendments executed by the City and the
Contractor, shall become and be a part of the Contract. Documents not included or expressly
contemplated in this Article 1 do not, and shall not, form any part of the Contract. The Contract
Documents are intended to be complementary, and a requirement in one document shall be deemed to
be required in all documents. However, in the event of any conflict between any of the above -listed
documents and this Agreement, this Agreement shall control.
ARTICLE 2. REPRESENTATIONS OF THE CONTRACTOR
In order to induce the City to execute the Contract and recognizing that the City is relying thereon, the
Contractor, by executing the Contract, makes the following express representations to the City:
2.01 The Contractor is fully qualified to act as the general contractor for the Project and has, and
shall maintain, any and all licenses, permits or other authorizations necessary to act as the
general contractor for, and to construct the Project;
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 1 of 24
2.02 The Contractor has become familiar with the Project site and the local conditions under which
the Project is to be constructed and operated;
2.03 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.
ARTICLE 3. INTENT AND INTERPRETATION
With respect to the intent and interpretation of the Contract, the City and the Contractor agree as
follows:
3.01 The Contract Documents constitute the entire and exclusive agreements between the parties
with reference to the Project, and said Contract supersedes any and all prior discussions,
communications, representations, understandings, negotiations, or agreements.
3.02 Anything that may be required, implied or reasonably inferred by the documents which make up
the Contract, or any one or more of them, shall be provided by the Contractor for the Contract
Price;
3.03 Nothing contained in the Contract shall create, nor be interpreted to create, privity or any other
relationship whatsoever between the City and any person except the Contractor;
3.04 When a word, term, or phrase is used in the 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;
3.05 Wherever the Contract calls for "strict" compliance or conformance with the Contract Documents
as to matters other than compliance with time limits, providing an updated schedule, and claim
and change order procedures, the term shall mean within tolerances as described specifically in
the Contract Documents, or if not specifically described, within industry standards and
tolerances for deviation for the specific item or procedure in question;
3.06 The words "include", "includes", or "including", as used in the Contract, shall be deemed to be
followed by the phrase, "without limitation";
3.07 The listing herein of any items as constituting a material breach of the Contract shall not imply
that any other, non listed item will not constitute a material breach of the Contract;
3.08 The Contractor shall have a continuing duty to read, examine, review, compare and contrast
each of the documents which make up the Contract, shop drawings, and other submittals and
shall give written notice to the City of any conflict, ambiguity, error or omission which the
Contractor may find with respect to these documents, before proceeding with the associated
part of the Work. The express or implied approval by the City or its designee of any shop
drawings or other submittals shall not relieve the Contractor of the continuing duties imposed
hereby, nor shall any such approval be evidence of the Contractor's compliance with the
Contract. The Contractor represents that it has prepared documents for the Project, including
the plans and specifications for the Project, which are accurate, adequate, consistent,
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 2 of 24
coordinated and sufficient for construction. If the Contractor performs any activity knowing it
involves an error, inconsistency or omission which was recognized, obvious, or reasonably
should have been recognized, without first providing notice to the City, the Contractor shall
assume responsibility for such performance and shall bear the costs for correction;
3.09 In the event of any conflict, discrepancy, or inconsistency among any of the documents which
make up the Contract, the following shall control:
(1) As between this Agreement and any other document, this document shall govern.
(2) In the case of any conflict, discrepancy or inconsistency among any of the other Contract
Documents, the Contractor shall notify the City immediately upon discovery of same for
resolution.
ARTICLE 4. CONTRACTOR'S PERFORMANCE
The Contractor shall perform all of the Work required, implied or reasonably inferable from the Contract
including, but not limited to, the following:
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, in accordance with the terms of the
Contract as may be amended from time to time;
4.02 The furnishing of any and all required surety bonds and insurance certificate(s) and
endorsement(s);
4.03 The provision or furnishing, and prompt payment therefor, of labor, supervision, services,
materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage,
disposal, power, fuel, heat, light, cooling, or other utilities, required for construction and all
necessary building permits and other permits or licenses required for the construction of the
Project;
4.04 The creation and maintenance of a detailed and comprehensive copy of the drawings,
specifications, addenda, change orders and other modifications depicting all as -built
construction. Said items shall be submitted to the City, along with other required submittals
upon Completion of the Project, and receipt of same by the City shall be a condition precedent
to final payment to the Contractor. The Contractor shall prepare and submit final as -built
drawings to the City.
ARTICLE 5. TIME FOR CONTRACTOR'S PERFORMANCE; DELAYS
5.01 The Contractor shall commence the performance of the Contract on the date set forth in the
Notice to Proceed issued by the City Manager or the City Manager's designee 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 84 calendar days following the issuance of the Notice to Proceed (sometimes
hereinafter referred to as the "Contract Time"). By signing the Contract, the Contractor agrees
that the Contract Time is a reasonable time for accomplishing Completion of the Project and
completion of the Project within the Contract Time is of the essence.
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 3 of 24
5.02 The Contractor shall pay the City the sum of $500 per day for each and every calendar day of
unexcused delay in achieving Substantial Completion beyond the date set forth herein for
Substantial Completion. 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 City, estimated at the time of executing the Contract.
When the City reasonably believes that Substantial Completion will be inexcusably delayed, the
City shall be entitled, but not required, to withhold from any amounts otherwise due the
Contractor an amount then believed by the City 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 City has withheld payment, the City
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, as certified in
writing by the City's consulting architect and approved by the City, the Project is at a level of
completion in strict compliance with the Contract such that the City 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
deemed substantially complete, and such partial use or occupancy shall not be evidence of
Substantial Completion.
5.04 All limitations of time set forth herein are material and are of the essence of the Contract.
5.05 Contractor agrees to punctually and diligently perform all parts of the Work at the time
scheduled in this Agreement. In this connection, Contractor agrees that it will keep itself
continually informed of the progress of the job and will, upon its own initiative, confer with the
City so as to plan its Work in coordinated sequence with the work of the City, if any, and of
others and so as to be able to expeditiously undertake and perform its Work at the time most
beneficial to the entire Project. The Contractor will be liable for any loss, costs, or damages
sustained by the City for delays in performing the Work hereunder, other than for excusable
delays, as set forth in 5.06 below, for which Contractor may be granted a reasonable extension
of time.
5.06 If the Contractor is delayed at any time in the progress of the Work by any separate contractor
employed by the City, or by changes in the Work, or by labor disputes, fire, unusual delay in
transportation, unusually severe weather conditions, unavoidable casualties, delays specifically
authorized by the City, or by causes beyond the Contractor's control, avoidance, or mitigation,
and without the fault or negligence of the Contractor and/or subcontractor or supplier at any tier,
then the contract time shall be extended by Change Order for such reasonable time, if any, as
the City may determine that such event has delayed the progress of the Work, or overall
completion of the Work if the Contractor complies with the notice and documentation
requirements set forth below.
(1) If the Contractor is delayed, obstructed, hindered or interrupted for a period of time
exceeding seven calendar days by any act or neglect of the City, an adjustment shall be
made for any increase in the direct cost of performance of this contract (excluding profit,
extended home office overhead, incidental or consequential damages or disruption
damages) and the Contract modified in writing accordingly. The Contractor must assert
its right under this article by giving written notice to the City Manager within five calendar
days of the beginning of a delay, obstruction, hindrance or interruption by the City. No
adjustment shall be made for any delay, obstruction, hindrance or interruption after final
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 4 of 24
payment under this contract or to the extent that performance would have been so
delayed, obstructed, hindered or interrupted by any other cause, including, but not
limited to concurrent cause or fault or negligence of the Contractor, or for which an
equitable adjustment is provided for or excluded under any other term or condition of this
contract. The direct costs described above shall be limited to those direct costs
attributable solely to this Project, and shall be subject to documentation and verification
of costs as required by the City. If unit prices are established in the Contract Documents
or subsequently agreed upon, they shall form the basis for cost calculations under any
claims for delay.
(2) Any claim for extension of time shall be made in writing to the City, not more than five
calendar days from the beginning of the delay. The notice shall indicate the cause of
delay upon the progress of Work. If the cause of the delay is continuing, the Contractor
must give such written notice every five calendar days. Within five calendar days after
the elimination of any such delay, the Contractor shall submit further documentation of
the delay and a formal Change Order request for an extension of time for such delay.
(3) The written request for a time extension shall state the cause of the delay, the number of
calendar days extension requested, and such analysis and other documentation as is
reasonably requested by the City to demonstrate a delay in the progress of the Work or
the overall Project completion. If the Contractor does not comply with the above notice
and documentation requirements, the claim for the delay shall be waived by the
Contractor. The above notice and documentation requirements shall also be a condition
precedent to the Contractor's entitlement to any extension of time.
(4) Extensions of time will be the contractor's primary remedy for any and all delays,
obstructions, hindrances, or interference. Payment or compensation, for direct costs only
(as set forth above), may be made to the Contractor for hindrances or delays solely
caused by the City if such delays or hindrances are within the City's ability to control and
are not partially caused by the Contractor or any of its agents, subcontractors or others
for whom it is responsible. No payment or compensation will be made for interference,
obstructions, hindrances or delays which are not solely caused by the City and which the
City fails to cure after a reasonable period after written notice.
(5) Without limitation, the City's exercise of its rights under provisions related to changes to
the Work, regardless of the extent or number of such changes, or the City's exercise of
any of its remedies or any requirement to correct or re -execute defective Work, shall not
under any circumstances be construed as delays, hindrances or interference
compensable further than as described herein.
ARTICLE 6. FIXED PRICE AND CONTRACT PAYMENTS
6.01 The City 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
$54,879.00. The price set forth in this Section 6.01 shall constitute the Contract Price, which
shall not be modified except by Change Order or adjustment pursuant to approved unit prices, if
any, as provided in the Contract.
6.02 The City shall pay the Contract Price to the Contractor in accordance with the procedures set
forth in this Article 6 and as set forth here:
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 5 of 24
(1) On or before the 10th calendar day of each month after commencement of performance,
but no more frequently than once monthly, the Contractor may submit a payment
request for the period ending the last calendar day of the previous month (the "Payment
Request"). Said Payment Request shall be in such format and include whatever
supporting information as may be required by the City. Therein, the Contractor may
request payment for 90% of that part of the Contract Price allocable to Contract
requirements properly provided, labor, materials and equipment properly incorporated in
the Project, and materials or equipment necessary for the Project and properly stored at
the Project site (or elsewhere if offsite storage is approved in writing by the City), less
the total amount of previous payments received from the City. Payment for materials
stored offsite shall be at the discretion of the City and if approved, the Contractor shall
provide appropriate documentation to substantiate materials are stored in a bonded
warehouse or facility, title or other proof of ownership has been transferred to the City,
and that materials have been purchased and paid for by the Contractor (copies of paid
invoices must be submitted to the City with payment request). Risk of loss shall be borne
by, and insurance must be provided by the Contractor while in storage, transit and use
during construction.
(2) Amounts reflected in Change Orders may be included in Payment Requests to the
extent they are not in dispute and subject to final approval of cost to the City for such
changes in the Work.
(3) Each Payment Request shall be signed by the Contractor and shall constitute the
Contractor's representation that the quantity of Work has reached the level for which
payment is requested, that the Work has been properly installed or performed in strict
compliance with the Contract, and that the Contractor knows of no reason why payment
should not be made as requested.
(4) Thereafter, the City shall review the Payment Request 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 Payment Request and is as required by the Contract. The amount
of each such payment shall be the amount approved for payment by the City less such
amounts, if any, otherwise owing by the Contractor to the City or which the City shall
have the right to withhold as authorized by the Contract, subject to approval by the City.
Approval of the Contractor's Payment Requests shall not preclude the City from the
exercise of any of its rights as set forth in 6.06 herein below. With the exception of the
final payment referenced in Paragraph 6.08 of this Agreement, the City will make
progress payments to the Contractor as follows. Provided that a Payment Request is
received by the City not later than the fifth day of a month, the City shall make the
approved payment to the Contractor not later than the 20th day of the month. If a
Payment Request is received by the City later than the fifth day of a month, payment
shall be made by the City not later than 20 days after the City receives the Payment
Request.
(5) The submission by the Contractor of a Payment Request also constitutes an affirmative
representation and warranty that all Work for which the City has previously paid is free
and clear of any lien, claim, or other encumbrance of any person whatsoever. As a
condition precedent to payment, the Contractor shall, if required by the City, also furnish
to the City properly executed waivers of lien or claim, in a form acceptable to the City,
from all subcontractors, materialmen, suppliers or others having lien or claim rights,
wherein said subcontractors, materialmen, suppliers or others having lien or claim rights,
NATURAL SPRINGS PARK GAZEBO AGREEMENT Page 6 of 24
shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and
waive and relinquish any liens, 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 City.
6.03 When payment is received from the City, the Contractor shall within seven calendar days pay all
subcontractors, material men, laborers and suppliers the amounts they are due for the Work
covered by such payment. In the event the City becomes informed that the Contractor has not
paid a subcontractor, material man, laborer, or supplier as provided herein, the City 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 City 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 City, 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 City to repeat the procedure in
the future.
6.04 Neither payment to the Contractor, full or partial utilization of the Project for any purpose by the
City, nor any other act or omission by the City shall be interpreted or construed as an
acceptance of any Work of the Contractor not strictly in compliance with the Contract;
6.05 After written notice to the Contractor and a reasonable opportunity to cure, the City shall have
the right to refuse to make payment, in whole or in part, and, if necessary, may demand the
return of a portion or all of the amount previously paid to the Contractor due to:
(1) The quality of a portion, or all, of the Contractor's Work not being in accordance with the
requirements of the Contract;
(2) The quantity of the Contractor's Work not being as represented in the Contractor's
Payment Request, or otherwise;
(3) The Contractor's rate of progress being such that, in the opinion of the City, Substantial
Completion may be inexcusably delayed;
(4) The Contractor's failure to use Contract funds, previously paid the Contractor by the City,
to pay Contractor's Project -related obligations including, but not limited to,
subcontractors, laborers and material and equipment suppliers;
(5) Claims made, or likely to be made, against the City or its property for which the
Contractor or its agents or subcontractors or others for whom it is responsible are, or
reasonably appear to be at fault;
(6) Loss caused by the Contractor; or
(7) The Contractor's failure or refusal to perform any of its obligations to the City, after
written notice and a reasonable opportunity to cure as set forth above.
In the event that the City makes written demand upon the Contractor for amounts previously
paid by the City as contemplated in this Section 6.05, the Contractor shall promptly comply with
NATURAL SPRINGS PARK GAZEBO Page 7 of 24
such demand. The City's rights hereunder survive the term of this Agreement, are not waived by
final payment and/or acceptance, and are in addition to Contractor's obligations elsewhere
herein.
6.06 When the Contractor believes that Substantial Completion has been achieved, the Contractor
shall notify the City in writing and shall furnish a listing of those matters, if any, yet to be
finished. The City will thereupon conduct a site review to confirm that the Project is in fact
substantially complete. If the City, through its review, finds that the Contractor's Work is not
substantially complete, and is required to repeat all, or any portion, of such review, the
Contractor shall bear the cost of such repeat site review(s), which cost may be deducted by the
City from any payment then or thereafter due to the Contractor. Guarantees and equipment
warranties required by the Contract shall commence on the date of Substantial Completion.
Upon Substantial Completion, the City shall pay the Contractor an amount sufficient to increase
total payments to the Contractor to 100% of the Contract Price less any amounts attributable to
damages, and less 150% of the costs, as reasonably determined by the City, incurred for the
City to complete any incomplete Work, correcting and bringing into conformance all defective
and nonconforming Work, and handling any outstanding or threatened claims. Such a
calculation by the City of costs for completing all incomplete Work, correcting and bringing into
conformance all defective and nonconforming Work, and handling any outstanding or
threatened claims shall not bar the City from exercising its stated rights elsewhere in the
Contract, or otherwise as provided by law for any incomplete, defective or nonconforming Work
or claims that are discovered by the City after the date of making such calculation or after the
date of any partial or final payment, whether or not such incomplete, defective or nonconforming
Work or claims were obvious or should have been discovered earlier.
6.07 When the Project is finally complete and the Contractor is ready for a final review, it shall notify
the City thereof in writing. Thereupon, the City will perform a final site review of the Project. If
the City concurs that the Project is complete in full accordance with the Contract and that the
Contractor has performed all of its obligations to the City hereunder, the Contractor will furnish a
final Approval for Payment to the City certifying to the City that the Project is complete and the
Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld
pursuant to the Contract. If the City is unable to issue its final Approval for Payment and is
required to repeat its final review of the Project, the Contractor shall bear the cost of such repeat
review(s), which costs may be deducted by the City from the Contractor's final payment;
6.08 The City shall, subject to its rights set forth in Section 6.06 above and elsewhere in the
Contract, endeavor to make final payment of all sums due the Contractor within 30 calendar
days of the final Approval for Payment, with the exception of items in dispute or concerning
which the City has exercised any of its rights to investigate or remove.
ARTICLE 7. INFORMATION AND MATERIAL SUPPLIED BY THE CITY
7.01 The City has furnished to the Contractor, prior to the execution of this 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 City and for no other
purpose. By furnishing such material, the City 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 City in writing of: (1) subsurface or latent physical conditions at the site
NATURAL SPRINGS PARK GAZEBO Page 8 of 24
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 inhering in Work of the character provided for in this contract. The City
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.
ARTICLE 8. CEASE AND DESIST ORDER/CITY'S RIGHT TO PERFORM WORK
8.01 In the event the Contractor fails or refuses to perform the Work, or any separable part thereof,
as required herein, or with the diligence that will ensure its proper, timely completion in
accordance with the contract documents, the City may instruct the Contractor, by written notice,
to cease and desist further Work, in whole or in part, or to correct deficient Work. Upon receipt
of such instruction, the Contractor shall immediately cease and desist, or proceed, as instructed
by the City. In the event the City issues such instructions to cease and desist, the Contractor
must, within seven calendar days of receipt of the City's instructions, provide a written, verified
plan to eliminate or correct the cause of the City's order, which plan appears to the City to be
reasonable, actually attainable and in good faith. In the event that the Contractor fails and/or
refuses to provide such a plan or diligently execute an approved plan, then the City shall have
the right, but not the obligation, to carry out the Work, or any portion thereof, with its own forces,
or with the forces of another contractor, and the Contractor shall be fully responsible and liable
for the costs of the City performing such Work, which costs may be withheld from amounts due
to the Contractor from the City. The rights set forth herein are in addition to, and without
prejudice to, any other rights or remedies the City may have against the Contractor.
If Work completed by the City or other contractor affects, relates to, is to be attached onto or
extended by later Work of the Contractor, the Contractor shall, prior to proceeding with the later
Work, and to the extent visible, report any apparent defects or variance from the Contract
requirements which would render the Contractor's later Work not in compliance with the
Contract requirements or defective or not in compliance with warranties or other obligations of
the Contractor hereunder.
8.02 The provisions of this article shall be in addition to the City's ability to remove portions of the
Work from the Contract and complete it separately.
ARTICLE 9. CONTRACTOR'S 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 City:
9.01 Reference is hereby made to the continuing duties set forth in Section 3.08 above, which are
by reference hereby incorporated in this Section 9.01. The Contractor shall not perform Work
without adequate plans and specifications, or without, as appropriate, approved shop drawings,
or other submittals. If the Contractor performs Work knowing or believing, or if through exercise
of reasonable diligence it should have known that such Work involves an error, inconsistency or
omission in the Contract without first providing written notice to the City, the Contractor shall be
responsible for such Work and shall correct same bearing the costs set forth in Section 3.08
above.
NATURAL SPRINGS PARK GAZEBO Page 9 of 24
9.02 All Work shall strictly conform to the requirements of the Contract. To that end, the Contractor
shall be solely responsible for and have control over construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the Work, unless otherwise
specified in the Contract Documents.
9.03 The Work shall be strictly supervised, the Contractor bearing full responsibility for any and all
acts, errors or omissions of those engaged in the Work on behalf of the Contractor, including,
but not limited to, all subcontractors and their employees. The Contractor shall maintain an on-
site superintendent while any portion of the Work is being performed. The Contractor shall
operate exclusively in the capacity of the City's independent contractor as to all Work it performs
under the Contract, and not as an agent, employee, or representative of the City.
9.04 The Contractor hereby warrants that all laborers furnished under the Contract shall be qualified
and competent to perform the tasks undertaken, that the product of such labor shall yield only
first-class results, that all materials and equipment provided shall be new (unless otherwise
specified) and of high quality, that the completed Work will be complete, of high quality, without
defects, and that all Work strictly complies with the requirements of the Contract. Any Work not
strictly complying with the requirements of this the Contract shall constitute a breach of the
Contractor's warranty.
9.05 The Contractor will be responsible for acquiring all required permit(s)—except as specifically
stated in Section 22.01 below—and calling for all required or routine inspections. The
Contractor will cooperate with and abide by the decision of inspectors having jurisdiction.
Should the Contractor have a dispute with any inspector or entity having jurisdiction, the
Contractor shall promptly notify the City Manager or the City Manager's designee. The
Contractor shall comply with all legal requirements applicable to the Work
9.06 The Contractor shall employ and maintain at the Project site only competent, qualified full time
supervisory personnel. Key supervisory personnel assigned by the Contractor to this Project are
as follows:
NAME
_Greg Woolsey
_Craig Hawk
FUNCTION
Project Manager (Phone: 817-999-6025)
Project Superintendent (Phone: 817-965-1833)
If at any time the City reasonably determines that any employee of the Contractor
is not properly performing the Work in the best interest of the City or the Project,
or is hindering the progress of the Work, or is otherwise objectionable, the City
shall so notify the Contractor, which shall replace the employee as soon as
possible, at no increased cost to the City.
9.07 The Contractor must submit to the City the Contractor's schedule for completing the Work prior
to the City issuing the Notice to Proceed. The City will not review any payment request until
such schedule has been submitted and approved. Such schedule shall be in a form as specified
in the Contract or which shall have been approved by the City Manager or the City Manager's
designee, and which shall provide for expeditious and practicable construction of the Project.
The Contractor's schedule shall be updated no less frequently than monthly (unless the parties
NATURAL SPRINGS PARK GAZEBO Page 10 of 24
otherwise agree in writing) and shall be updated to reflect conditions encountered from time to
time and shall apply to the total Project. Each such revision shall be furnished to the City. Strict
compliance with the requirements of this Section 9.07 shall be a condition precedent to
payment to the Contractor, and failure by the Contractor to strictly comply with said
requirements shall constitute a material breach of the Contract.
9.08 The Contractor shall keep an updated copy of the Contract Documents at the site. Additionally,
the Contractor shall keep a copy of approved shop drawings and other submittals. All of these
items shall be available to the City during all regular business hours.
9.09 Shop drawings and other such submittals from the Contractor do not constitute a part of the
Contract. The Contractor shall not do any Work requiring shop drawings or other submittals
unless such shall have been approved in writing by the City or as required by the Contract
Documents. All Work requiring approved shop drawings or other submittals shall be done in
strict compliance with such approved documents or Contract requirements. However, approval
by the City shall not be evidence that Work installed pursuant thereto conforms with the
requirements of the Contract, and shall not relieve the Contractor of responsibility for deviations
from the Contract unless the City has been specifically informed of the deviation by a writing
incorporated in the submittals and has approved the deviation in writing.
The delivery of submittals shall constitute a representation by the Contractor that it has verified
that the submittals meets the requirements of the Contract, or will do so, including field
measurements, materials and field construction criteria related thereto.
The City shall have no duty to review partial submittals or incomplete submittals. The Contractor
shall have the duty to carefully review, inspect, examine and physically stamp and sign any and
all submittals before submission of same to the City.
9.10 The Contractor shall maintain the Project site and adjacent areas affected by its Work and/or
the acts of its employees, materialmen and subcontractors in a reasonably clean condition
during performance of the Work. Upon substantial completion, the Contractor shall thoroughly
clean the Project site of all debris, trash and excess materials or equipment. If the Contractor
fails to do so, the City may complete the cleanup, by its own forces or by separate contract, and
shall be entitled to charge the Contractor for same through the collection or withholding of funds
through the mechanisms provided elsewhere in this Agreement;
9.11 At all times relevant to the Contract, the Contractor shall permit the City and its consultants to
enter upon the Project site and any offsite lay down areas, safety permitting, and to review or
inspect the Work and any materials on any such site, without formality or other procedure.
9.12 The Contractor recognizes that the City may enter into other contracts to perform Work relating
to the Project, or to complete portions of the Work itself. The Contractor shall ensure that its
forces reasonably accommodate the forces of the City and other contractors hired by the City.
The Contractor shall coordinate its schedule with the work of other contractors. If the Contractor
claims that delay or damage results from these actions of the City, it shall promptly submit a
claim as provided herein.
9.13 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
NATURAL SPRINGS PARK GAZEBO Page 11 of 24
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, employees of the City and members of the public, the Work itself and
unassembled components thereof, and other property at the site or adjacent thereto. As
part of the Contractor's obligations hereunder, the Contractor shall erect and maintain all
necessary and prudent safeguards, barriers, signs, warnings, etc.
(2) With notice to the City, the Contractor shall promptly remedy loss or damage to the Work
or any person or property described herein 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 Article 10 herein. The City 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 City 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. The City shall have the right to report suspected safety violations to the
Occupational Safety and Health Administration (OSHA) or other appropriate authorities.
(3) The Contractor shall promptly notify the City upon discovery of any unidentified material
which Contractor reasonably believes to be asbestos, lead, PCB, or other hazardous
material, and shall immediately stop work in the affected area of the Project. The
Contractor shall not be responsible for removal or other work with regard to such
hazardous material unless otherwise agreed between the City and the Contractor. In the
case of work stopped due to the discovery of hazardous materials, Article 6 shall apply
to claims for delay, hindrance or interference. Work will resume in the affected area of
the Project immediately after such time as the hazardous material has been removed or
rendered harmless, as certified by an industrial hygienist to be engaged by the City.
9.14 The Contractor warrants to the City 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 by the Contractor, improper or
insufficient maintenance, improper operation, or normal wear and tear and normal usage. If
required by the City, the Contractor shall furnish satisfactory evidence as to the kind and quality
of materials and equipment.
ARTICLE 10. INDEMNITY
Except for expenses or liabilities arising from the negligence of the City, the Contractor hereby
expressly agrees to indemnify and hold the City harmless against any and all expenses and liabilities
arising out of the performance or default of the Contract as follows:
10.01 Contractor shall indemnify, and hold harmless, to the maximum extent permitted by law, City
and its officers, agents, employees, and consultants from and against any and all liability,
damages, losses, (whether in contract or in tort, including personal injury, accidental death or
property damage, and regardless, of whether the allegations are false, fraudulent or
groundless), and costs (including reasonable attorney's fees and related expenses, litigation,
arbitration, mediation, appeal expenses incurred in any matter, including a proceeding to
NATURAL SPRINGS PARK GAZEBO Page 12 of 24
enforce this Article 10) which in whole or in part are caused by the negligence, recklessness or
other wrongful conduct of the Contractor and persons employed by or utilized by the Contractor
in Contractor's performance of this Agreement.
10.02 Contractor's obligation to indemnify, defend and hold harmless shall remain in effect and shall
be binding upon Contractor whether such injury or damage shall accrue, or may be discovered,
before or after termination of the Contract.
10.03 Contractor's failure to comply with this section's provisions shall constitute a material breach
upon which City may immediately terminate or suspend this Agreement.
ARTICLE 11. CLAIMS BY THE CONTRACTOR
Claims by the Contractor against the City, other than for time extensions covered by Article 6
hereof, are subject to the following terms and conditions:
11.01 All Contractor claims against the City shall be initiated by a written claim submitted to the City.
Notice of such claim shall be received by the City no later than either 10 calendar days after the
event, or 10 calendar days after the first appearance of the circumstances causing the claim,
whichever is sooner, and same shall set forth in detail all known facts and circumstances
supporting the claim. Final costs associated with any claim upon which notice has been filed
must be submitted in writing to the City within 30 calendar days after notice has been received;
11.02 The Contractor and the City shall continue their performance hereunder regardless of the
existence of any claims submitted by the Contractor including claims set forth in Article 6 hereof;
11.03 In the event the Contractor discovers previously concealed and unknown site conditions which
are materially at variance from those typically and ordinarily encountered in the general
geographical location of the Project, the Contract Price may, with the approval of the City, be
modified, either upward or downward, upon the written notice of claim made by either party
within 10 calendar days after the first appearance to such party of the circumstances. Final
costs must be submitted within 30 calendar days after such notice is received by the City,
unless extended by written agreement of the parties. As a condition precedent to the City having
any liability to the Contractor due to concealed and unknown conditions, the Contractor must
give the City written notice of, and an opportunity to observe, such condition prior to disturbing
it. The failure by the Contractor to give the written notice and make the claim as provided by this
Section 11.03 and as required elsewhere under the Contract shall constitute a waiver by the
Contractor of any rights arising out of or relating to such concealed and unknown condition;
11.04 In the event the Contractor seeks to make a claim for an increase in the Contract Price, as a
condition precedent to any liability of the City therefor, unless emergency conditions exist, the
Contractor shall strictly comply with the requirements of Section 11.01 above and such claim
shall be made by the Contractor before proceeding to execute any Work for which a claim is
made. Failure to comply with this condition precedent shall constitute a waiver by the Contractor
of any claim for additional compensation;
11.05 In connection with any claim by the Contractor against the City that would result in
compensation in excess of the Contract Price, any liability of the City for the Contractor's cost in
this regard shall be limited to those cost categories set forth in Section 13.07 below.
ARTICLE 12. SUBCONTRACTORS
NATURAL SPRINGS PARK GAZEBO Page 13 of 24
12.01 Prior to execution of the Contract, the Contractor shall have identified to the City in writing,
those parties required to be listed on the proposal form as subcontractors on the Project. Any
changes to this list at any time shall be subject to the prior approval of the City. The City shall, in
writing, state any objections the City may have to one or more of such subcontractors. The
Contractor shall not enter into a subcontract with an intended subcontractor to whom the City
objects. If at any time the City objects to a subcontractor, the Contractor shall solicit proposals
from potential replacements and shall submit the three lowest proposals to the City, along with
the Contractor's proposed choice as replacement. If the approved replacement subcontractor's
cost is verified to be higher than the removed subcontractor, the excess shall be added to the
Contract Price, unless the subcontractor in question has to be removed due to a default, or
deficient performance.
If the approved replacement subcontractor's cost is lower than the removed subcontractor, the
difference shall be deducted from the Contract Price. Subcontractor markups shall be limited to
those listed in Section 13.07 below.
All subcontracts shall afford the Contractor rights against the subcontractor which correspond to
those rights afforded to the City against the Contractor herein, including those rights of Contract
termination as set forth herein below.
12.02 Each and every subcontract related to the Project is hereby assigned by the Contractor to the
City, contingent upon the termination of the Contract for default or convenience as provided
herein, and only as to those subcontracts which the City accepts in writing directed to the
Contractor. This contingent assignment is subject to the prior rights of any surety obligated
under a bond related to the Contract. This contingent assignment will operate prospectively from
the effective date of assignment, and will not obligate the City to any liabilities existing on the
effective date of the assignment, or arising from events, acts, failures to act, facts or
circumstances existing prior to the effective date of the assignment. The contracts subject to this
contingent assignment shall also be further assignable by the City, at the City's sole option. The
Contractor shall bear the responsibility of notifying subcontractors of this contingent assignment
and including it in all subcontracts in connection with the Project.
ARTICLE 13. CHANGE ORDERS
13.01 The City Manager or the City Manager's express designee shall be the sole authorized
representative of the City. Other than in matters of public safety or in time of emergency
management, the Contractor shall not take direction or act upon information from any City
personnel other than the City Manager's expressly authorized designee(s).
13.02 One or more changes to the Work within the general scope of the Contract, may be ordered by
Change Order. The City may also issue written directions for minor changes in the Work and
may issue Construction Change Directives, as set forth below. The Contractor shall proceed
with any such changes or Construction Change Directives without delay and in a diligent
manner, and same shall be accomplished in strict accordance with the following terms and
conditions:
13.03 Change Order shall mean a written order directed to the Contractor executed by the City after
execution of the Contract, directing a change in the Work. A Change Order may include a
change in the Contract Price, (other than a change attributable to damages for delay as
provided in Article 6 hereof), or the time for the Contractor's performance, or any combination
NATURAL SPRINGS PARK GAZEBO Page 14 of 24
thereof. Where there is a lack of total agreement on the terms of a Change Order or insufficient
time to execute a bilateral change, the City may also direct a change in the Work in the form of
a Construction Change Directive, which will set forth the change in the Work and the change, if
any, in the Contract Price or time for performance, for subsequent inclusion in a Change Order;
Construction Change Directives shall include a not -to -exceed preliminary price, against which
the Contractor may begin billing (subject to the requirements for pay applications elsewhere
herein) as the Work is performed.
(1) The Contractor shall furnish a price breakdown, itemized as required and within the time
specified by the City, with any proposal for a contract modification.
(2) The price breakdown
(a) must include sufficient detail to permit an analysis of all costs for material, labor,
equipment and subcontracts, and
(b) must cover all Work involved in the modification, whether the Work was deleted,
added or changed.
(3) The Contractor shall provide similar price breakdowns to support any amounts claimed
for subcontracts.
(4) The Contractor's proposal shall include a complete justification for any time extension
proposed.
13.04 Any change in the Contract Price resulting from a Change Order shall be determined as follows:
(1) By mutual agreement between the City and the Contractor as evidenced by (a) the
change in the Contract Price being set forth in the Change Order, (b) such change in the
Contract Price, together with any conditions or requirements relating thereto, being
initialed by both parties and (c) the Contractor's execution of the Change Order; or,
(2) If no mutual agreement occurs between the City and the Contractor, the change in the
Contract Price, if any, shall be derived by determining the reasonable actual costs
incurred or savings achieved, resulting from revisions in the Work. Such reasonable
actual costs or savings shall include a component for direct job site overhead and profit
but shall not include home -office overhead or other indirect costs or components. The
calculation of actual costs shall conform to the markup schedule in Section 13.07 below.
Any such costs or savings shall be documented in the format, and with such content and
detail as the City requires.
The Contractor shall promptly submit such documentation and other backup as the City may
require in evaluating the actual costs incurred or to be incurred.
13.05 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, the Contract as thus amended, the
Contract Price and the time for performance by the Contractor, regardless of the nature, amount
or extent of the changes. The Contractor, by executing the Change Order, waives and forever
releases any claim against the City for additional time or compensation for matters relating to,
arising out of or resulting from the Work included within or affected by the executed Change
Order of which the Contractor knew or should have known;
NATURAL SPRINGS PARK GAZEBO Page 15 of 24
13.06 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 are required by the City, the
Contractor's surety or by law. The Contractor's execution of the Change order shall constitute
the Contractor's warranty to the City 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.
13.07 For the purpose of Change Orders, the following definitions of terms and other restrictions
apply:
Contractor's or Subcontractor's Materials shall include the cost of materials, sales tax,
and the cost of all transport. The cost of items listed shall be directly related to the
Change Order. Indirect costs not specifically related to the Change Order shall not be
considered.
Contractor's or Subcontractor's Direct Labor Cost shall be limited to the hourly rate of
directly involved workmen, employer contributions towards company standard benefits,
pensions, unemployment or social security (if any), and employer costs for paid sick and
annual leave.
Contractor's or Subcontractor's Overhead shall include license fees, bond premiums,
supervision, wages of timekeepers and clerks, incidentals, home and field office
expense, and vehicle expense directly related to the Project, and all other direct Project
expenses not included in the Contractor's materials, direct labor, and equipment costs.
The allowance for Overhead and Profit shall be limited to the following schedule:
For the Contractor, for any Work performed by the Contractor's own forces, 10%
of the Subtotal of Costs to the Contractor.
2. For the Contractor, for any Work performed by his Subcontractor, 5% of the
amount due the Subcontractor.
3. For each Subcontractor or Sub -subcontractor involved, for any Work performed
by their own forces, 10% of their materials and direct labor costs.
4. For each Subcontractor, for Work performed by his Sub-subcontractor(s), 5% of
the amount due the Sub -subcontractor.
For Change Orders, the total cost or credit to the City shall be based on the following
schedule:
NATURAL SPRINGS PARK GAZEBO Page 16 of 24
Contractor's Materials Cost
+ Contractor's Direct Labor Costs
+ Contractor's Equipment Costs (includes owned/rental equipment)'
+ Applicable Subcontractor Costs
=Subtotal of Costs to the Contractor
+ Contractor's Overhead and Profit
=Total Cost or Credit to the City
13.08 Nothing Contained in this Article shall be deemed to contradict or limit the terms of Section 6.05
above.
ARTICLE 14. DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK
14.01 In the event that the Contractor covers, conceals or obscures its Work in violation of the
Contract or in violation of an instruction from the City, such Work shall be uncovered and
displayed for review by the City and/or its consultants upon request, and shall be reworked at no
cost in time or money to the City.
14.02 If any of the Work is covered, concealed or obscured in a manner not covered by Section 14.01
above, it shall, if directed by the City, be uncovered and displayed for the City and/or its
consultants. If the uncovered Work conforms strictly with the Contract, the costs incurred by the
Contractor to uncover and subsequently, replace such Work shall be borne by the City.
Otherwise, such costs shall be borne by the Contractor.
14.03 The Contractor shall, at no cost in time or money to the City, correct Work rejected by the City
as defective or failing to conform to the Contract. Additionally, the Contractor shall reimburse the
City for all testing, review, inspections and other expenses incurred as a result thereof.
14.04 In addition to its warranty obligations set forth elsewhere in this Agreement and any
manufacturer's warranties provided on the Project, and in addition to other remedies provided
herein or by law to the City, 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 City.
14.05 The City may, but shall in no event be required to, choose to accept defective or nonconforming
Work. In such event, the Contract Price shall be reduced by the greater of (1) the reasonable
costs of removing and correcting the defective or nonconforming Work, or (2) 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
Owned Equipment For equipment owned by the Contractor, actually used in Change Order Work including sales tax, or any
related business entity, regardless of whether Contractor leases such equipment from the related business entity, the cost
shall be the lesser of (i) the Contractor's actual ownership cost, or (ii) 85% of the applicable ownership cost listed in the most
recent edition of the Contractor's Equipment Cost Guide, published by Dataquest.
Third Party Rental Equipment For equipment actually rented by the Contractor, actually used in Change Order Work
including sales tax, from an unrelated third party, the cost shall be the lesser of (i) the Contractor's actual rental cost, or (ii)
85% of the applicable equipment rates based on the most recent edition of the Rental Rate Bluebook for Construction
published by Dataquest. A reasonable rental cost shall be allowed as determined by the City Manager or the City Manager's
designee when machinery and construction equipment not so listed is required.
NATURAL SPRINGS PARK GAZEBO Page 17 of 24
the City for the acceptance of defective or nonconforming Work, the Contractor shall, upon
written demand from the City, pay the City such remaining compensation for accepting defective
or nonconforming Work. The Contractor shall have an opportunity to correct any defect or non-
conformance prior to the City taking the above actions. The contractor, upon written notice of
any defect or non-conformance, shall have 10 calendar days to make corrections, unless the
City agrees that the correction will require more than 10 calendar days to correct.
ARTICLE 15. CITY'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE
15.01 In addition to the City's rights under Article 8 and elsewhere in this Agreement, the City shall
have the right at any time to direct the Contractor to suspend its performance, or any designated
part thereof when in the interests of the City. If any such suspension is directed by the City, the
Contractor shall immediately comply with same.
15.02 In the event the City directs a suspension of performance under this Article, through no fault of
the Contractor, if the suspension is lifted other than by Termination, the City shall pay the
Contractor as full compensation for such suspension the Contractor's ordinary and reasonable
costs, actually incurred and paid, of:
(1) demobilization and remobilization, including such justifiable costs paid to subcontractors
(cost categories and markups limited to those set forth in Section 13.07 above);
(2) preserving and protecting Work in place;
(3) approved storage of materials or equipment purchased for the Project, including
insurance thereon; and
(4) substantiated extended field office overhead (but no home -office overhead).
15.03 The City may order suspension of the Work in whole or in part for such time as deemed
necessary because of the failure of the Contractor to comply with any of the requirements of this
Agreement, and the Agreement's completion date shall not be extended on account of any such
suspension of Work.
When the City orders any suspension of the Work under this Section 15.03, the
Contractor shall not be entitled to any payment for Work which the Contractor performs
after notice of suspension and/or during the suspension period and shall not be entitled
to any costs or damages resulting from such suspension.
15.04 The City's rights under this Article shall be in addition to those contained elsewhere in the
Contract or provided by law.
ARTICLE 16. TERMINATION BY THE CITY
The City may terminate the Contract in accordance with the following terms and conditions:
16.01 Termination for Convenience. The City may, when in the interests of the City, terminate
performance under the Contract by the Contractor, in whole or in part, for the convenience of
the City. The City 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
NATURAL SPRINGS PARK GAZEBO Page 18 of 24
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 City may direct the Contractor to assign the Contractor's right,
title and interest under termination orders or subcontracts to the City or its designee. The
Contractor shall transfer title and deliver to the City 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 City specifying the amounts due
because of the termination for convenience together with costs, pricing or other data
required by the City. If the Contractor fails to file a termination claim within six months
from the effective date of termination, the City shall pay the Contractor, an amount
derived in accordance with subsection (3) below.
(2) The City 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 City shall pay the Contractor
the following amounts:
(a) Contract costs for labor, materials, equipment and other services accepted under
the Contract;
(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;
(c) Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Subsection (3)(a) above—if contingent
assignment of such contracts has not been elected as provided herein—shall not
include amounts paid in accordance with other provisions of the Contractor. This
clause is subject to and the Contractor shall be limited by the City's rights to
direct the replacement of subcontractors under Section 12.01.
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.
16.02 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 City, in addition to any other rights it may have against the Contractor or others, may
NATURAL SPRINGS PARK GAZEBO Page 19 of 24
terminate the performance of the Contractor, in whole or in part at the City's sole option, and
assume 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 any portion of the Contract Price, as it may be modified
hereunder, remains after the cost to the City of completing the Work, including all costs and
expenses of every nature incurred, has been deducted by the City, such remainder shall belong
to the Contractor. Otherwise, the Contractor shall pay and make whole the City 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 City for cause pursuant to
this Section 16.02 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 16.01 and the provisions of Section 16.01 shall apply.
16.03 Termination for Non -Appropriation. The City may also terminate the Contract, in whole or in
part, for non -appropriation of sufficient funds to complete or partially complete the Project,
regardless of the source of such funds, and such termination shall be on the terms of Section
16.01.
16.04 The City's rights under this Article shall be in addition to those contained elsewhere herein or
provided by law.
ARTICLE 17. INSURANCE
17.01 Contractor shall be responsible for all damage to person and or property resulting from its
negligent acts, reckless or intentional misconduct, errors or omissions or those of their
subcontractors, agents or employees in connection with such services and shall be responsible
for all parts of its Work, both temporary and permanent.
17.02 Contractor shall, at its own expense, procure and maintain throughout the term of this
Agreement, with insurers acceptable to City, the types and amounts of insurance conforming to
the minimum requirements set forth in this Agreement. Contractor shall not commence Work
until the required insurance is in force and evidence of insurance acceptable to City has been
provided to, and approved by, City. An appropriate Certificate of Insurance shall be satisfactory
evidence of insurance. Until such insurance is no longer required by the Contract, Contractor
shall provide City with renewal or replacement evidence of insurance at least 30 days prior to
the expiration or termination of such insurance. Insurance certificates shall be for Contractor's
installer: L.J. Design & Construction.
17.03 Workers' Compensation/Employer's Liability Insurance
Worker's Compensation Insurance in accordance with statutory requirements, and Employers'
Liability Insurance with limits of not less than $1,000,000 for each accident.
General Liability Insurance
Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000
for each occurrence and not less than $1,000,000 in the aggregate, and with property damage
NATURAL SPRINGS PARK GAZEBO Page 20 of 24
limits of not less than $1,000,000 for each occurrence and not less than $1,000,000 in the
aggregate.
Automobile Liability Insurance
Automobile Liability Insurance with bodily injury limits of not less than $1,00,000 for each person
and not less than $1,000,000 for each accident, and with property damage limits of not less than
$1,000,000 for each accident.
17.04 Contractor shall furnish insurance certificates or insurance policies at the City's request to
evidence such coverages. Except for workers compensation, the insurance policies shall name
the City as an additional insured, and shall contain a provision that such insurance shall not be
canceled or reduced with respect to by coverages or endorsements without 30 days' prior
written notice to City and Contractor. In such event, Contractor shall, prior to the effective date
of the change or cancellation, serve substitute policies furnishing the same coverage.
17.05 Compliance with these insurance requirements shall not limit the liability of Contractor. Any
remedy provided to the City by any insurance maintained by the Contractor shall be in addition
to and not in lieu of any other remedy (including, but not limited to, as an indemnitee of
Contractor) available to the City under the Contract or otherwise.
17.06 Neither approval nor failure to disapprove insurance furnished by Contractor shall relieve
Contractor from responsibility to provide insurance as required by this Agreement.
17.07 Contractor shall deliver to City the required certificate(s) of insurance and endorsement(s)
before City signs this Agreement.
17.08 Contractor's failure to obtain, pay for, or maintain any required insurance shall constitute a
material breach upon which City may immediately terminate or suspend this Agreement. In the
event of any termination or suspension, City may use the services of another consultant or
consultants, without City's incurring any liability to Contractor.
17.09 At its sole discretion, City may obtain or renew Contractor insurance, and City may pay all or
part of the premiums. Upon demand, Contractor shall repay CITY all monies paid to obtain or
renew the insurance. City may offset the cost of the premium against any monies due
Contractor from City.
17.10 The Contractor shall furnish to the City Certificates of Insurance allowing thirty (30) days notice
for any change, cancellation, or non -renewal. Such Certificates shall contain the following
wording:
"SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED BEFORE
THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS
PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN."
If the insurance policies expire during the terms of the Contract, a renewal certificate or binder
shall be filed with the City at least 15 days prior to the renewal date.
ARTICLE 18. RESERVED AND INTENTIONALLY LEFT BLANK
NATURAL SPRINGS PARK GAZEBO Page 21 of 24
ARTICLE 19. 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 City and/or its consultants for inspection and copying upon written request by the City.
Furthermore, said documents shall be made available, upon request by the City, 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 Agreement.
ARTICLE 20. APPLICABLE LAW
The laws of the State of Texas shall govern this Agreement. In any litigation arising under this
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.
ARTICLE 21. 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 the Contract. The Contractor shall not
assign the Contract without prior written consent of the City.
ARTICLE 22. MISCELLANEOUS PROVISIONS
22.01 Construction Permits. The City hereby agrees to waive the charge for a City -issued building
permit for this Project. However, the Contractor is responsible for obtaining all permits or fees
otherwise required of the Contractor by the Contract Documents, or permits and fees
customarily the responsibility of the Contractor.
22.02 Compliance By Contractor: Nondiscrimination. Contractor shall comply with all Federal, State
and local laws, ordinances, rules and regulations of any authorities throughout the duration of
the Contract. The Contractor shall be responsible for compliance with any such law, ordinance,
rule or regulation and shall hold City harmless and indemnify same in the event of non-
compliance. Contractor further agrees to abide by the requirements under Federal Executive
Order Number 11246, as amended, including specifically the provisions of the equal opportunity
clause.
22.03 State and Local Taxes. Except as otherwise provided, contract prices shall include all applicable
state and local taxes. Contractor shall indemnify and hold harmless the City for any loss, cost or
expense incurred by, levied upon or billed to the City as a result of Contractor's failure to pay
any tax of any type due in connection with this Agreement. Contractor shall ensure that the
above sections are included in all subcontracts and sub -subcontracts, and shall ensure
withholding on out of state sub and sub -subcontractors to which withholding is applicable.
22.04 Any and all notices required to be sent under the Contract or otherwise shall be sent to the
following:
NATURAL SPRINGS PARK GAZEBO Page 22 of 24
If to the City:
City of Anna
Attn: City Manager
111 North Powell Parkway
P.O. Box 776
Anna, Texas 75409
If to the Contractor:
Insite Amenities
Lisa Woolsey
9176 Hyde Road
Ft. Worth, Tx 76179
ARTICLE 23. ENTIRE AGREEMENT
Any modification to this 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. Nothing in this Article shall be construed to limit the City's authority to
issue changes set forth in Article 14 herein.
ARTICLE 24. 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.
ARTICLE 25. 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.
"REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY"
NATURAL SPRINGS PARK GAZEBO Page 23 of 24
IN WITNESS WHEREOF, the Parties have executed this Agreement under their
respective seals on the day and year first written above.
CITY OF ANNA, TEXAS
M
Philip Sanders, City Manager
ATTEST:
Natha Wilkison, City Secretary
(SEAL)
INSITE AMENITIES
Lisa Woolsey, Partner
ATTEST:
Amy Mooney, Partner
NATURAL SPRINGS PARK GAZEBO Page 24 of 24
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Ft. Worth, TX 76179 fax 817-236-8350
Quotation
Original Quote Date Quotation #
9/10/2014 704
Name / Address
Customer Contact
Customer Phone
City of Anna
111 N. Powell Parkway
Anna, TX 75409-0776
Maurice Schwanke
972-924-3325
Poligon 32' (roof diagonal) two-tiered hexagonal shelter with tongue & groove roof deck and standing seam
Customer Fax
972-924-2620
Quote Revised Terms FOB Project Name
n/a Net 30 Factory Natural SDrinos Park
Item
Description
Qty
Rate
Total
GX02-32TGSS
Poligon 32' (roof diagonal) two-tiered hexagonal shelter with tongue & groove roof deck and standing seam
1
30,820.00
30,820.00
metal roof in Hartford Green, standard eave height, 4 sides Carmel style handrails, internal electrical access,
Poli -5000 factory epoxy prime/powdercoat frame and ornamentation finish in Hunter Green
DISCOUNT
5% BuyBoard discount off of shelter
-1,541.00
-1,541.00
ENGINEERING
Sealed engineered drawings for shelter and footings
250.00
250.00
SHIPPING & HANDLING
Shipping and handling charge to Anna, TX
1,700.00
1,700.00
INSTALL
Install GX02-32TGSS, including receive/unload shipment, mount columns and erect frame, pull fishline for
21,800.00
21,800.00
future electrical, seal underside of T&G deck prior to installing, install sealed T&G deck, install standing seam
roofing and trim, touch up any scratches to finish with matching paint supplied by manufacturer. Provide 34'
hexagonal stiffened slab, including sealed engineering plan.
BOND FEES
Payment Bond and 1 Year Maintenance Bond by InSite Amenities to City of Anna
1,850.00
1,850.00
BBCOMGROUP
BuyBoard Commodity Group # 423-13, Parks & Recreation & Field Lighting Products & Installation
Subtotal $54,879.00
Sales Tax (6.25%) $0.00
This quote is valid for 30 days.
Total
$54,879.00
Signature
By signing you agree to our terms.
Date