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HomeMy WebLinkAboutRes 2010-02-01 Contract Landscapes Unlimited Natural Spgs Park Phase II.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2010-02-01 RESOLUTION APPROVING A CONTRACT AND AU·rHORIZING EXECUTION OF SAME BETWEEN THE CITY OF ANNA AND LANDSCAPES UNLIMITED LLC., FOR CONSTRUCTION OF NATURAL SPRINGS PARK PHASE II WHEREAS, on November 10, 2009, the City Council of the City of Anna, Texas (City Council) approved an Interlocal Agreement with Collin County accepting a $282,500 grant from Collin County to pay for the construction of additional trails and bridges in Natural Springs Park; and, WHEREAS, the City Staff has solicited a proposal from Landscapes Unlimited LLC., through The Interlocal Purchasing System (TIPSfTAPS) purchasing cooperative for the construction work covered by the grant; and, WHEREAS, TIPSfTAPS Awarded Vendors have submitted proposals under the Competitively Bid Process and received a Contract of Award through TIPSfTAPS, and these Awarded Vendors have agreed to provide the best pricing, terms and conditions available to TIPSfTAPS Members; and, WHEREAS, The City Council has previously awarded contracts to Landscapes Unlimited for the construction of Slayter Creek Park Phase I and Natural Springs Park Phase I; and, WHEREAS, Landscapes Unlimited is now very familiar with the City's project expectations and City Staff has been satisfied with their previous work; 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. Section 2. The City Council hereby approves a contract attached as Exhibit 1, and authorizes the City Manager to execute the same between the City of Anna and Landscapes Unlimited LLC., for the Construction of Natural Springs Park Phase II. PASSED by the City Council of the City of Anna, Texas, on this 9th day of February, 2010. ATTEST: 02-09-10 CONTRACT FOR CONSTRUCTION OF NATURAL SPRINGS PARK, PHASE n This CONTRACT FOR CONSTRUCTION OF Natural Springs Park, Phase II (hereinafter referred to as the "Contract") is made and entered into by the CITY OF ANNA, TEXAS, a home-rule municipal corporation under the laws of the State of Texas, (hereinafter referred to as the "Owner") and Landscapes Unlimited, L.L.C. located at 1201 Aries Drive, Lincoln, NE 68512 (hereinafter referred to as "Contractor"). This Contract is executed under seal and shall be effective on the date executed by the last party to execute it. The Contractor services required by this Contract are to be rendered for the following construction project: Natural Springs Park, Phase II (hereinafter referred to as the "Project") which is more fully described in the attached Exhibit "B" which is incorporated into the Contract. Texas Education Code §8.002 permits regional education service centers, at the direction of the Commissioner of Education, to provide services to assist local governmental entities, including municipalities, in improving performance and increasing the efficiency and effectiveness of operations. Authority for such services is granted under Texas Government Code §§ 791.001 et seq., as amended. Under a separate agreement entered into by the Owner and authorized under the above-referenced statutes and by Sections 271.081-271.083 of the Texas Local Government Code, Owner and Contractor intend that all costs included within the description of the Guaranteed Maximum Price under this Contract be incurred by the Owner under procurement procedures administered by The Interlocal Purchasing System ("TIPS"). NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Owner and the Contractor agree: 1. REPRESENTATIONS AND WARRANTIES By executing this Contract, the Contractor makes the following express representations and warranties to the Owner: A. Contractor acknowledges receipt from the Owner of the Natural Springs Park, Phase II Project Development Program (attached hereto as Exhibit B) and understands that time is of the essence, and has agreed to undertake all efforts to expedite the performance of the Project, as defined and set out herein. The construction of the Project will commence within 10 days of the Owner providing Contractor with written notice to proceed with the Work and Substantial Completion must occur no later than 75 days after the Work begins. B. The Guaranteed Maximum Price ("GMP") for the Project, based on the Scope of Work set forth in Exhibit B, shall be $247,500 which said Fixed Limit amount represents the not-to-exceed sum of the costs for the Construction of the Project, the "Work," and Other Services of the Contractor as prescribed which includes those costs for (1) Construction Costs of the Project; (2) Contractor's Fee; and (3) Contractor's Overhead, any General Conditions and all other costs associated with the Work other than costs agreed upon in a written change order in accordance Page 1 of23 with this Contract; and constitutes the Owner's limit of liability to Contractor for the completion of the Project, except as the GMP may be modified in accordance with this Contract. C. Contractor has received and reviewed the Project, as amended and approved by the Owner and agrees to abide by the program. D. The Contractor assumes full responsibility to the Owner for the improper acts and omissions of its consultants or others employed or retained by the Contractor in connection with the Project. E. The Contractor further understands that the Owner may appoint a designated Project Manager. If Owner fails to take such action, Contractor understands and agrees that the Owner's Director of Public Works, is deemed to act as the Project Manager. The Contractor shall coordinate with the appointed Project Manager and communicate with the Owner's Director of Public Works. F. The Contractor accepts the relationship of trust and confidence established between it and the Owner by this Contract. It covenants with the Owner to furnish the necessary skill and judgment and to cooperate with the Owner and the Owner's consultants on the Project furthering products and equipment in the interest of the Owner in the Project. The Contractor agrees to furnish to the Owner all services required of it herein. The Contractor shall endeavor to promote furtherance of the Project in an expeditious and economical manner consistent with the interests of the Owner in the Project, and the requirements of the Contract Documents. G. The Contractor agrees to work with the Owner and Owner's consultants from design through Final Completion of the Project including the final warranty inspection and resolution of all outstanding Project related claims or disputes. The Contractor shall provide its expertise and services in all matters relating to the Project, and in all matters relating to Project construction; provided however, that the Parties acknowledge and agree that the Contractor is not acting in the capacity of a designer, architect or engineer and the Contractor shall not be responsible for the adequacy of the performance of design criteria prepared by an engineer. H. The Contractor understands that Owner intends to have the Project fully completed within the time and budget limits prescribed for the Project. Contractor agrees to perform its Services hereunder consistent with that intention. I. Contractor shall not be considered an employee of the Owner, but shall occupy the status of Independent Contractor with the Owner. The Contractor shall perform its tasks and duties consistent with such status, and will make no claim or demand for any right or privilege applicable to an officer or employee of the Owner, including, but not limited to, worker's compensation, disability benefits, accident or health insurance, unemployment insurance social security or retirement membership. J. All references to days mean calendar days. 2. GENERAL SERVICES It is understood that time is of the essence, and Contractor agrees to undertake all necessary efforts to expedite the performance of services required herein, so that on-site construction of the Project can commence and be substantially completed within the time period set forth herein above. Page 2 of23 A. Contractor shall immediately commence design review, value engineering, scheduling and budget related services in connection with the Work, and will continue same. Contractor shall proceed with sufficient qualified personnel necessary to expedite and fully complete all services required under this Contract in the highest professional manner consistent with the requirements of the Contract Documents. Contractor's personnel assigned to the Project shall be subject to the Owner's approval and no change in key personnel set out in the organization chart shall be made unless approved by Owner. Owner retains the right to request replacement of any employee assigned by Contractor to the Project. Owner's decisions in this regard shall not be the basis for any claim for additional compensation by Contractor. B. A Schedule of Performance of services hereunder shall be mutually agreed upon between Contractor, the Engineer, and the Project Manager, which shall enable the Project to proceed continuously to Substantial Completion. Continued inexcusable failure of Contractor to maintain progress in accordance with the agreed Schedule shall be grounds for declaring Contractor in default. C. Within fifteen (15) days following completion of the Schedule of Performance, Contractor shall develop and provide to Owner a Project Schedule consisting of a coordinated and integrated Project Design Schedule and Project Construction Schedule. Contractor shall update the project scheduling, incorporating a detailed schedule for the construction operations of the Project, including activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples, and delivery of products and equipment requiring long lead time procurement. The schedule shall be in GANNT or CPM form as approved by Owner and shall be updated monthly. D. Contractor shall provide regular monitoring of the all inclusive project time schedule as the Project progresses and identifY potential variances between schedule and probable completion dates. Further, Contractor shall review Project Schedule for construction not started or incomplete and recommend to the Owner and Trade Contractors adjustments in the Project Time Schedule to meet the completion date. Contractor shall provide summary reports of each monitoring, and document all changes in the Project Time Schedule. E. Owner will produce, assemble and deliver to Contractor Working Plans and Specifications. Contractor will review the work Plans and Specifications, as received, and shall advise Owner as to their acceptability, suitability, need for revisions and any areas in which the working Plans and Specifications increase the Scope and cost of the Project, or extend the Completion Dates, without assuming any of the responsibilities or liability of any engineer. 3. DESIGN PHASE SERVICES The Contractor understands that the Owner shall prepare or shall have prepared Schematic Designs, Preliminary Designs, and Designs for Construction. The description of Services is necessarily general rather than specific in detail, and shall not be construed so as to exclude any Services customarily provided by experienced and competent contractors incident to construction projects of the nature and scope of the Project. The following divisions and descriptions of Services are intended only to add clarity and not in contemplation of fixed events whereupon the Page30f23 character of Contractor Services will change from one type to another with respect to the Project. The Contractor shall if necessary: A. Attend regularly scheduled meetings with the Owner and the Owner's consultants during the development of Schematic Designs, Preliminary Designs, and Designs for Construction and advise on site use, foundations and improvements, selection of materials, building systems and equipment, provide recommendations on construction efficiency and feasibility, availability of materials and labor time requirements for installation and construction, and factors related to cost, including costs of alternative designs, equipment or materials, preliminary projects, and possible economies, without, however, assuming the responsibilities or liability of any engineer. B. Monitor the Construction Budget to maintain the budget within the GMP. Contractor shall prepare an estimate based on quantity surveys ofthe Plans and Specifications for approval by the Owner as the Construction Budget; update and refme this estimate for Owner's approval as the development of the Plans and Specifications proceeds, and advise the Owner if it appears that the Construction Budget will not be met and make recommendations for alternate action. If requested by Owner, Contractor shall also track and monitor the Project Budget and shall provide periodic reports to Owner as to the status of the Project Budget. For the purposes of this Contract, the Construction Budget shall consist of all items contained in the GMP. The Project Budget shall be the total ofthe Construction Budget and all other Project costs. C. Review the Plans and Specifications as they are being prepared, on the basis of value engineering, recommending alternative solutions whenever design decisions, plans and details adversely affect construction efficiency and feasibility, budgeted costs or schedules. D. Recommend the purchase or release and procurement of long lead items to endeavor to assure delivery by the required dates. Contractor understands that if such items are to be purchased by the Owner, they shall be purchased or otherwise acquired in accordance with all the applicable laws of the State of Texas, including but not limited to TIPS. This requirement, which mayor may not include the need to competitively bid certain items, shall not relieve the Contractor of its duties in performance of this Contract with regards to the GMP. E. Make recommendations to Owner regarding the division of Construction Work in the Plans and Specifications allowing for phase construction if necessary, taking into consideration such factors as time of performance, minimization of work site interference, on time material and equipment procurement, availability of labor, overlap in trade jurisdictions, provisions of temporary facilities, coordination and sequencing of the Project, and minimization of overall Project costs, and availability of the work site. F. Review Plans and Specifications with Owner to assure: (I) efficiency in the use of materials and methods of construction; (2) coordination among the plan sheets and among the various bid packages; and (3) elimination of areas of conflict and overlapping in phase construction if same is necessary. G. Indicate by written memorandum to the Project Manager, with qualifications where necessary, review and approval as to construction feasibility of the Owner's final Plans and Specifications for every part of the Project, prior to final approval by the Project Manager. Such review and approval as to construction feasibility, however, shall not be deemed an assumption by Page 4 of23 Contractor of any engineer's responsibilities or liability, including errors and omissions in design. H. If required, assist in the production of each set of final bid documents for the Project by combining the Owner's standard bid documents and forms with the Owner's fmal Plans and Specifications, with such special provisions as the Owner or Owner's consultants may deem necessary, if applicable. 4. CONSTRUCTION SERVICES Contractor shall immediately commence and complete all Construction Services to the extent necessary to achieve completion of the Project within the time and budget limits stated in this Contract. A. The Contractor shall supervise, administer, coordinate, and direct the entire Project using its best skill and attention. Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract. The Contractor assumes full responsibility for the successful completion of the Project within the time limits established in this Contract, as said time periods may be adjusted pursuant to the terms of this Contract. B. Provide the usual and necessary Construction Services, including, but not limited to, the following: 1. Maintain a competent, qualified, full-time staff as provided in Exhibit "A" hereto attached to coordinate and provide general direction of the Work and progress of the Work, so as to complete same in accordance with the Contract Documents. 2. Establish procedures for communication and coordination with the Owner pertaining to the Project, and implement such procedures. Establish emergency procedures and provide protection for the Project, equipment, machinery, tools and materials. Contractor shall be responsible for the establishment, coordination and implementation of safety programs for the Project. 3. Schedule and conduct progress meetings at which Owner and design consultants (as necessary), and Contractor may discuss such matters as procedures, progress, problems and scheduling. 4. Develop and monitor a system of cost control. Revise and refine the initially approved Project Construction Budget; incorporate approved changes as they occur, and develop cash flow reports and forecasts as needed. Identify variances between actual and budgeted or estimated costs, and advise Owner and Owner's consultants whenever projected cost exceeds budgets or estimates. 5. Develop and implement a system for review and processing of Change Orders. Recommend necessary or desirable changes to the Owner and Owner's consultants, review requests for changes, submit recommendations to the Owner and Owner's consultants, and assist in negotiating Change Orders. For each Proposal Request issued by the Owner or Owner's consultants, the Contractor shall prepare a detailed Estimate of Cost derived, if possible, from Page50f23 processing such costs through TIPS. This Estimate of Cost shall be available to the Owner and Owner may approve or reject any such costs before such costs are incurred. 6. Owner shall assist Contractor in obtaining all building permits and permits for inspection or temporary facilities required to be obtained directly. Obtain approvals related to actual construction from all the authorities having jurisdiction. Costs for permits, if any, shall be reimbursed to Contractor by Owner. 7. Refer all questions relative to design to the Owner or Owner's consultants as appropriate. 8. In collaboration with the Owner or Owner's consultants as appropriate, establish and implement procedures for expediting the processing and approval of shop drawings and samples. Contractor understands that the Owner or Owner's consultants as appropriate are responsible for approving shop drawings and samples. 9. Monitor factory inspection and testing of items fabricated outside the Project area. 10. Record and submit to the Owner or Owner's consultants as appropriate progress reports of the Work in the form of written progress reports and videotapes, including the Work and the percentage of completion, and maintain a detailed daily log of jobsite events, which shall be provided to Owner. 11. Maintain at the Project site, on a current basis, records of all Plans and Specifications received from the Owner or Owner's consultants as appropriate, standards, shop drawings, samples, purchases, materials, equipment, maintenance and operation manuals and instructions, and any other documents and revisions thereto which arise out of the Work. Maintain a current set of Record Drawings, Plans and Specifications received from the Owner or Owner's consultants. At the completion of the Work, deliver all such records, including a full set of As-Built Drawings, operating manuals and warranties to the Owner. 12. Obtain the required Certificates of Insurance and/or certified copies of policies evidencing proper insurance coverage to be in force. Maintain these Certificates and policies among the jobsite records and provide copies of same to Owner for its records. 13. Consult with the Owner's maintenance personnel, as necessary, and coordinate the checkout of utilities, operational systems and equipment. 14. Conduct with the Owner or Owner's consultants as appropriate post-completion inspections during the one-year warranty period to ascertain the existence of defects in material and workmanship and determine the necessity for correction of same, and recommend reasonable corrective action. Aid the Owner in obtaining such corrective action and in filing insurance and bond claims where coverage is available. Ultimate responsibility for correcting defects in material and workmanship shall rest with the Contractor at no increase to the GMP. 15. Conduct with the Owner or Owner's consultants as appropriate a Final Warranty Inspection within 30 days of the end of the one-year warranty period. Page 6 of23 5. OWNER'S REPRESENTATIONS AND RESPONSIBILITIES A. To the best of its ability, Owner shall provide full information regarding its requirements for the Project. Owner represents to the Contractor the sufficiency of funds available to Owner to meet its obligations up to the GMP as established above. B. The Owner shall designate herein a Representative who shall be fully acquainted with the Project and with authority to approve the Project Budget, render decisions promptly and furnish information expeditiously. 6. SUBSTANTIAL COMPLETION, FINAL COMPLETION, AND DELAY DAMAGES A. The term "Substantial Completion," as used herein, shall mean that point at which, as certified in writing by the Owner or Owner's consultants as appropriate, the Project is at a level of completion in strict compliance with the Project Program such that the Owner or its designee can enjoy beneficial use or occupancy and can 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. B. The term "Final Completion," as used herein, shall mean that point at which, as certified in writing by the Owner or Owner's consultants as appropriate, it is determined that all deficiencies found have been corrected and that it is appropriate to release retainage andlor make final payment. C. The Contractor shall pay the Owner the sum of $650 for each and every calendar day of delay in achieving Substantial Completion, unless and only to the extent such delay is: (l) by mutual assent or extension under Section 16.J. of the Contract; or, (2) due to circumstances beyond the Contractor's control as that phrase is defined in Section 16.F. of the Contract. Liquidated damages as set forth in this Section 6 shall be Owner's sole remedy for late completion of the Project. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that Substantial Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays, but such withheld amount shall not limit the full amount of liquidated damages that may ultimately become due. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld as liquidated damages to the extent that such withheld funds exceed the amount of liquidated damages actually accrued. D. If the Contractor fails to achieve Final Completion within sixty (60) days of the deadline for Substantial Completion, the Contractor shall pay the Owner the sum of $450 per day for each and every calendar day of delay in achieving Final Completion beyond the expiration of said sixty-day period, unless and only to the extent such delay is: (l) by mutual assent or extension under Section 16.J. of the Contract; or, (2) due to circumstances beyond the Contractor's control Page 70123 as that phrase is defined in Section 16.F. of the Contract. Liquidated damages as set forth in this Section 6 shall be Owner's sole remedy for late completion of the Project. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this contract. When the Owner reasonably believes that Final Completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays, but such withheld amount shall not limit the full amount of liquidated damages that may ultimately become due. If and when the Contractor overcomes the delay in achieving Final Completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld as liquidated damages to the extent that such withheld funds exceed the amount ofliquidated damages actually accrued. E. This Section 6 is not intended to waive and does not waive any remedies or options that Owner may pursue to the extent such remedies or options are expressly set forth elsewhere in the Contract to include without limitation suspension of the Work. termination of the Contract, and remedies provided for in Section 22 associated with performance and maintenance bonds; provided, however, that in no event shall owner be entitled to recover consequential damages for breach of contract. 7. GUARANTEED MAXIMUM PRICE A. The Guaranteed Maximum Price for the Project, based on the Scope of Work set forth in Exhibit B, shall be $247,500, which said Fixed Limit amount represents the not-to-exceed sum of the costs for the Construction of the Project, the "Work," and Other Services of the Contractor as prescribed which includes those costs for 1) Construction Costs of the Project; 2) Contractor's Fee; and 3) Contractor's Overhead, any General Conditions; and constitutes the Owner's limit of liability for the completion of the Project, except as the GMP may be modified in accordance with this Contract. B. The GMP shall not be changed except by Change Order to this Contract. C. The foregoing GMP, unless changed by supplemental Agreement for Change Orders, represents the limit of obligation that Owner may have insofar as the cost for Final Completion of the Project. Should additional amounts be expended over and above the GMP (as may be amended) to achieve completion of the Work. including payment to Contractor, in accordance with this Contract, liability for and payment of such additional amounts shall be the responsibility of the Contractor. THE PARTIES HEREBY AGREE AND UNDERSTAND THAT OWNER SHALL NOT BE LIABLE OR HAVE ANY OBLIGATION FOR ANY SUMS OVER AND ABOVE THE GMP, AS IT MAY BE AMENDED. 8. CONTRACTOR'S COMPENSATION The Contractor accepts and agrees that the Owner's limits of liability for the total Project cost shall not exceed the GMP as may be amended and Contractor shall be compensated as follows. For the not-to-exceed limits of the Project, which is based on the Scope of Work as set forth in Page 8 of23 Exhibit B~ including Contractor~s Fee, the Work and Contractor's Overhead~ any General Conditions, and all other costs associated with the Work other than costs agreed upon in a written change order in accordance with this Contract, the Contractor shall be paid amounts not to exceed the limits established by Exhibit B in total. If a particular line item has a surplus, that surplus may be used by the Contractor to offset overages in other line items. Upon Final Completion, the Owner shall be entitled to any surplus. 9. PROJECT RECORDS All of the Contractor's documentary work product under this Contract shall be the property of the Owner, without restriction on its future use. Any necessary work product lost or destroyed by the Contractor shall be replaced or reproduced at the Contractor's sole cost. All records relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the Contractor or the Contractor's consultants, shall be made available to the Owner for inspection and copying upon written request of the Owner. Additionally, said records shall be made available, upon request by the Owner, to any state, federal or other regulatory authorities and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all plans, specifications, submittal, 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 time expended by the Contractor and its personnel in performing the obligations of this Contract and the records of expenses incurred by the Contractor in its performance under said Contract. The Contractor shall maintain and protect these records for no less than seven years after Final Completion of the Project. Thereafter, the Contractor shall forward to Owner, upon written request, all plans, specifications, submittal, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the Project, its design, and its construction. Additionally, the Contractor shall forward any time or expense records. Nothing herein shall deny Contractor the right to retain duplicates. 10. CHANGES A. The Owner, without invalidating the Contract, may order Changes in the Work consisting of additions, deletions or other revisions. Such changes, if required by competent authority having jurisdiction over the Work, which do not alter the scope of the Work, and are not required due to the enactment or revision of codes, laws, or regulations subsequent to the preparation of bidding documents, shall be included in calculating the actual cost of construction and shall not result in an increase in the GMP or the Project Time Schedule. All Changes in the Work shall be authorized by a fully executed written Change Order. B. All Change Orders to this Contract shall be specific and final as to prices and extensions of time, with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the Change Order. No action, or omission to act, by Owner, or acceptance and approval of a Change Order, shall be deemed a waiver, release, revision, modification or deletion of this absolute condition; and any reservations or other provisions in a Change Order allowing for future additional money or time, over and above the specific prices and extensions granted therein, shall be deemed null and void or otherwise unenforceable and withdrawn. Page90f23 C. The Owner or Owner's consultants as appropriate shall have authority to order minor Changes in the Work and to issue clarifications to the plans and specifications, within the Scope of Work not involving additional Cost of the Work or an extension of the Project Time Schedule and not inconsistent with the Contract Documents. Such Changes may be effected by Field Order. Such Changes shall be binding on the Owner and the Contractor, provided written notice and reasonable opportunity to object have been given. D. Contractor understands that proper review and authorization of Change Orders by the Owner's Governing Body will require an average of 30 days. No claims for delay or additional Cost of the Work shall be recognizable based upon this minimum processing requirement. E. If the Contractor wishes to make a claim for Additional Fee or an increase in the General Conditions, necessitating an increase in the GMP, it shall give the Owner written notice thereof prior to the occurrence of the event giving rise to such action, where practical. No such notification shall be valid unless so made and no increase shall be valid unless agreed to by Change Order prior to executing the Work except in an emergency endangering life or property in which case the Change Order shall be negotiated and processed after the fact. 11. EMERGENCIES In any emergency affecting the safety of persons or property, the Contractor shall act, at its discretion, to prevent threatened physical damage, injury or loss. The Contractor shall immediately notify the Project Manager when emergency situations arise that either result in the stoppage of work, injury of persons, loss of equipment, or damage to the "Work" itself. It is understood and agreed that one of Contractor's primary duties is the anticipation and avoidance of potential claim situations. If the Contractor's actions in an emergency situation result in an increase in Project Schedule Time or cost, the Contractor may make a claim for additional compensation under the Changes Clause of this contract. 12. DISCOUNTS, REFUNDS, SALES OF SURPLUS MATERIALS, ETC. A. All discounts, if realized, for prompt payment shall belong to the Owner and shall be accounted for in the applicable line item. All discounts, rebates and refunds, and all returns from sale of surplus materials and equipment, shall likewise accrue to the Cost of the Work, and the Contractor and Owner shall make provisions so that they can be secured, the amounts thereof to be accounted for in the applicable line item. B. The Owner qualifies for exemption from the state and local sales and use taxes, pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise and Use Tax Act. Therefore, the Contractor shall not pay such taxes which would otherwise by payable in connection with the performance of this Contract as hereafter noted. C. The Contractor, on behalf of the Owner, shall issue an exemption certificate in lieu of the tax on the purchase, rental or lease of all materials, supplies, equipment and other tangible personal property incorporated into the real property being performed pursuant to the Contract with the Owner. Page 100123 D. Materials and supplies "used in the performance of a contract" include only those materials actually incorporated into the property being improved and those supplies directly used to incorporate such materials into the property being improved. Overhead supplies and supplies used indirectly or only incidental to the performance of the Contract with the Owner are not included in the exemption. Under "reasons said purchaser is claiming this exemption" in the exemption certificate, the Contractor must name the Owner and the project for which the equipment, material and supplies are being purchased, leased or rented. 13. APPLICATIONS FOR PAYMENT Payments to Contractor shall be made in accordance with this Paragraph. A. The Contractor shall prepare and furnish to the Owner a monthly statement of the Work performed during the preceding month for which it claims it is entitled to be paid less retainage of 10%. Such statement may include the reasonable value of materials or equipment not yet incorporated in the Project but delivered, inspected and suitably stored at the site, or, with Owner's consent and subject to compliance with any conditions thereof, at some other location agreed upon. Reimbursable costs of the Contractor shall be substantiated by payroll records, invoices, etc., in order to provide proper back-up information to Owner for payment. B. The Owner or Owner's consultants as appropriate will review the Contractor's statement of monies due to the Contractor. The Owner shall promptly make payment (but in no event longer than 30 days after certification by Owner or Owner's consultants as appropriate) in the full amount to the Contractor. C. Final Payment, constituting the unpaid balance of the Cost of the Work, retainage, and the balance of the Contractor's Fee (including retainage and excluding any delay damages), shall be paid by the Owner to the Contractor 30 days after Final Completion of the Project and acceptance by Owner. 14. INSURANCE A. Without limiting any of the other obligations or liabilities of the Contractor during the term of this Contract, the Contractor shall purchase and maintain the herein stipulated minimum insurance with companies duly approved to do business in the State of Texas and reasonably satisfactory to the Owner. Certificates of each policy shall be delivered to the Owner before any work is started; along with a written endorsement stating that said policy shall not be cancelled, non-renewed or materially changed without 30 days advance written notice. Prior to the effective date of cancellation, the Contractor must deliver to the Owner a replacement certificate of insurance or proof of reinstatement. Coverage shall be of the following types and not less than the specified amounts: 1. Worker's Compensation as required by Texas law, with the policy endorsed to provide a waiver of subrogation as to the Owner; Employer's liability insurance of not less than Page 11 of23 $1,000,000 for each accident, $1,000,000 disease for each employee, $1,000,000 disease policy limit; 2. Commercial General Liability insurance, including independent contractor's liability, completed operations and contractual liability, covering, but not limited to, the liability assumed under the indemnification provisions of this Contract, fully insuring Contractor's liability for insurance to or death of Owner's employees and third parties, extended to include personal injury liability coverage with damage to property of third parties, within minimum limits as set forth below: a. General aggregate $ 1,000,000 b. Products-components/operations aggregate $ 1,000,000 c. Personal and advertising injury $ 600,000 d. Each occurrence $ 600,000 e. Fire damage (anyone fire) $ 50,000 f. Medical expense (anyone person) $ 5,000 The policy shall include coverage extended to apply to completed operations and XCV (explosion, collapse and underground) hazards. The completed operations coverage must be maintained for a minimum of one year after final completion and acceptance ofthe Work, with evidence of same filed with Owner. 3. Comprehensive Automobile and Truck Liability Insurance, covering owned, hired and non-owned vehicles, with a combined bodily injury and property damage minimum limit of $1,000,000.00 per occurrence; or separate limits of $500,000.00 for bodily injury (per person); $500,000.00 for bodily injury (per accident) and $100,000.00 for property damage. Such insurance shall include coverage for loading and unloading hazards. B. Contractor shall obtain, pay for and maintain umbrella liability insurance during the Contract term, insuring Contractor for an amount of not less than $1,000,000 per each occurrence combined limit for bodily injury and property damage that follows from and applies in excess of the primary liability coverage required herein above. The policy shall provide "drop-down" coverage where underlying primary insurance coverage limits are insufficient or exhausted. Owner shall be named as additional insured. C. Builder's Risk Insurance shall be purchased and maintained by the Contractor, until the date of final acceptance of the Work by the Owner, and for so long thereafter as Contractor shall be performing, or supervising, construction work at the jobsite, Builder's Risk Insurance covering the Work at the site in an amount equal to 100% of the completed value. This insurance shall include the interest of the Owner and the Contractor and the Work shall insure against the perils of fire, extended coverage, vandalism, and malicious mischief, and shall be extended to provide all "risk" protection, including freeze damage, as available, and for a coverage and wit deductibles not to exceed $5,000.00. Flood and earthquake deductible shall not exceed $5,000.00. 1. Each insurance policy to be furnished by Contractor shall include the following conditions by endorsement to the policy: a. Each policy shall name the Owner as an additional insured as to all applicable coverage: Page 12 of23 b. The Tenn "Owner" shall include all authorities, boards, bureaus, commissions, divisions, departments, and offices of the Owner and individual members, employees and agents thereof, in their official capacity and/or acting on behalf of the Owner; c. The policy phrase "other insurance" shall not apply to the Owner where the Owner is an additional insured on the policy; and d. All provisions of the Contract concerning liability, duty, and standard of care, together with the Indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policy limits. 2. Insurance furnished by the Contractor shall be in accordance with the following requirements: a. Any policy submitted shall not be subject to limitations, conditions, or restrictions deemed inconsistent with the intent of the insurance requirements to the fulfilled by the Contractor. The Owner's decision thereon shall be final; b. All policies are to be written through companies duly licensed to transact that class of insurance in the State of Texas; and c. All liability policies required herein shall be written "occurrence" basis coverage trigger. 3. Contractor agrees to the following: a. Contractor and Owner hereby waive subrogation rights against each other for loss or damage to the extent same are covered by insurance. Insurers shall have no right of recovery or subrogation against the Owner or Contractor, it being the intention that the insurance policies shall protect all parties to the Contract and be primary coverage for all losses covered by the policies; b. Companies issuing the insurance policies and the Contractor shall have no recourse against the Owner for payment of any premiums or assessments for any deductibles, as all such premiums and deductibles are the sole responsibility and risk of the Contractor; c. Approval, disapproval, or failure to act by the Owner regarding any insurance supplied by the Contractor shall not relieve the Contractor of full responsibility or liability for damages and accidents as set forth in the Contract Documents. Neither shall the bankruptcy, insolvency, or denial of liability by the insurance company exonerate the Contractor from liability; and Page 13 of23 d. No special payment shall be made for any insurance that the Contractor is required to carry; all are included in the Contract Price and the Contract Unit Prices. D. Any of such insurance policy required under this section may be written in combination with any of the others, where legally permitted, but none of the specified limits may be lowered thereby. 15. OWNER'S RIGHT TO TEMPORARILY SUSPEND WORK A. The Owner shall have the right by written order to temporarily suspend the Work, in whole or in part, when ever; in the judgment of the Owner such temporary suspension is required: 1. In the interest of the Owner generally; 2. Due to government or judicial controls or orders which make performance of this Contract temporarily impossible or illegal; 3. To expedite the completion of a separate contract even though the completion of this particular Contract may be thereby delaying; 4. Because of weather conditions unsuitable for performance of the Work; or 5. Because the Contractor is proceeding contrary to Contract provisions or has failed to correct conditions considered unsafe for workmen. B. The written order of the Owner to the Contractor shall state the reason for suspending the Work and the anticipated periods for such suspension. Upon receipt of the Owner's written order, the Contractor shall suspend to work covered by the order and shall take such means and precautions as may be necessary to properly protect the fmished and partially-fmished work, the unused materials and uninstalled equipment, including the providing of suitable drainage about the Work and erection of temporary structures where necessary. The Contractor shall not suspend the Work without written direction from the Owner and shall proceed with new work promptly when notified by the Owner to resume operations. C. No additional compensation shall be paid to the Contractor for suspension or otherwise to the extent suspension is caused by default of the Contractor. To the extent such temporary suspension is not due to the fault of the Contractor, he shall be entitled to: 1. An equitable extension of working time for the completion of the Work, not to exceed the delay caused by such temporary suspension; 2. The actual and necessary cost of properly protecting the finished and partially-finished work, unused materials and uninstalled equipment during the period of the ordered suspension such costs, if any, to be determined on a basis set forth in this Contract; and 3. Where the Contractor elects to remove equipment from the jobsite and then return it to the site when the Work is ordered resumed, the actual and necessary costs of these moves. Page 14 of23 4. Any and all General Condition expenses incurred. 16. OWNER'S RIGHT TO TERMINATE; REMEDIES AND DELAYS A. The right to terminate this Contract, in whole or in part, with or without cause, and for the convenience of the Owner is expressly reserved by Owner. In such event, Notice to Terminate, for all or any portion of the Work, shall be delivered to Contractor at least 14 business days prior to any such termination, who shall then be reimbursed by Owner in accordance with the terms and provisions of this Contract, for all services satisfactorily completed and costs incurred by reason of such termination, but not to exceed actual commitments and expenditures made and Fees carried in connection with the Work to the Date of Termination. No amount shall be due for lost or anticipated profits. All Work-related documents and records shall become the property of Owner, and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use. Should Owner subsequently contract with a new Contractor for continuation of services on the Project, which right Owner specifically retains, Contractor shall cooperate in providing information. B. Nothing contained elsewhere in this Contract shall require Owner to pay for services not in compliance with the provisions of this Contract. The Owner may withhold payments to Contractor when Contractor is in default under this Contract without waiving any other remedy or right available at law or in equity, including the right to bring legal action for damages or to force specific performance of this Contract. C. All disputes arising out of performance of work, or other matters in question between Owner and Contractor shall be referred initially to the Owner's designated representative for decision, which shall be rendered within 14 business days of the date of receipt. The authority of the Owner's designated representative contained herein shall be deemed to be an independent covenant of the contract documents: 1. The decision of Owner's designated representative is a final decision. Decisions by the Owner's representative shall be final if not appealed within 21 days of the issuance thereof. 2. In the event that any decision of the Owner's designated representative is inconsistent with the contract documents, or is not rendered within ten business days, Contractor may appeal the decision to the Owner's City Manager. D. Contractor understands that time is of the essence, and Contractor shall be fully responsible for its delays or for its failure to use its best efforts to accomplish the purposes of this Contract. However, neither Owner nor Contractor shall be deemed in violation of this Contract for delays caused by circumstances beyond their respective control. E. If the Contractor wishes to make a claim for delay due to circumstances beyond their control, then the Contractor shall give notice to the Owner within seven business days after commencement of the event(s) for which the Contractor wishes to make a claim for an extension of time. Such notice shall include the probable duration and a reasonable explanation and justification of the delay. The Contractor shall also provide within business days of the . conclusion of any such delays. For delays caused by circumstances beyond the Contractor's control the completion date shall be extended for causes which affect the critical path of Page 150123 performance and would logically require an extension of time necessary to complete the Work, provided, however, in the event that such causes occur concurrently, the actual time of the delay shall be the time elapsed while such causes exist. The extension of any applicable completion date pursuant to the provisions of this section shall in no way relieve the Contractor of an obligation to make every reasonable effort (without incurring additional cost to Contractor) to reduce, or if possible, eliminate any delay to the Substantial or Final Completion. F. The following are considered circumstances which are beyond the control of the Contractor or Owner: 1. Acts of God (excepting normal climatic conditions as established by the National Weather Bureau's five-year (5-year) average for Anna, Texas); 2. Fire or other casualty not the result of negligence; 3. Unavoidable casualties, labor disputes, stoppage of the Work by order of any court or other public authority through no act or fault of Contractor, anyone employed by Contractor; 4. Acts or omissions of Owner or Owner's designated representative beyond the Contractor's control. G. Any portion of the Work under this Contract shall be suspended immediately subject to seven days advanced written notice to the Contractor by the Owner declaring the Contractor to be in default and a reasonable opportunity to cure by Contractor. A copy of such notice shall be served on the Contractor's surety. The Contract may be terminated by the Owner for any good cause or causes, among others of which special reference is made to the following: 1. Failure of the Contractor to start the Work within ten days from date specified and the written work order issued by the Owner to begin work; 2. Substantial evidence that the progress of the Work being made by the Contractor is insufficient to complete the Work within the specified working time; 3. Failure of the Contractor to provide sufficient and proper equipment, materials, or construction forces for properly executing the Work; 4. Substantial evidence that the Contractor has abandoned the Work or discontinuance of the performance of the Work or any part thereof and failure to resume performance within a reasonable time after notice to do so; 5. Substantial evidence that the Contractor has become insolvent, bankrupt, or otherwise financially unable to carry on the Work; 6. Deliberate failure on the part of the Contractor to observe any requirements of the Contract specifications or to comply with any orders given by the Owner or Owner's consultants as appropriate as provided for in the Contract Specifications; Page 16 of23 7. Failure of the Contractor to promptly make good any defects in materials or workmanship, or any defects of any nature with respect to Contractor's work, the correction of which has been directed in writing by the Owner; 8. Substantial evidence of collusion for the purpose of illegally procuring a contract or perpetuating fraud on the Owner and the construction work under a contract; and 9. Repeated and flagrant violations of safe working procedures which are not cured within a reasonable period of time. H. After seven days advanced written notice of Contractor by Owner and a reasonable opportunity to cure, if the Work is suspended for any of the causes itemized above, or any other just and reasonable cause or causes, the Contractor shall discontinue the Work or such part thereof as the Owner shall designate, whereupon the surety may either at its option assume the Contract or that portion which the Owner has ordered the Contractor to discontinue and perform the same or, with the written consent of the Owner, sublet the same, provided, however, that the surety shall exercise its option within four weeks after written notice to discontinue the Work has been served upon the Contractor and upon the surety or its authorized agents. The surety in such event shall assume the Contractor's place in all respects and shall be paid by the Owner for all work performed by it in accordance with the terms of the Contract, but in no event shall such payment exceed the GMP, regardless of the cost to the surety to complete the Work. I. All monies remaining due the Contractor at the time of his default shall thereupon become due and payable to the surety and the Contractor as the Work progresses, subject to all terms of the Contract. In case the surety does not, within the herein above specified time, exercise its obligation to assume the Contract or that portion thereof which the Owner has ordered the Contractor to discontinue, then the Owner shall have the power to complete, by contract or otherwise as it may determine, the Work herein described or any such part thereof as it may deem necessary. J. The Contractor shall be entitled to an extension of working time under this Contract only when claim for such extension is submitted to the Owner in writing by the Contractor within 14 days from and after the time when any alleged causes of delay are reasonably ascertained by the Contractor, and then only when such time is approved by the Owner. In adjusting the Contract working time for the completion of the Contract, unforeseeable causes beyond the control and without the fault or negligence of the Contractor, if the progress of the Work is delayed at any time by any act or neglect attributable to Owner or Owner's consultants, or of any employee of any of them, or of a separate contractor employed by any of them, or of any other person or entity for whom any of them may be legally liable, or by changes ordered in the Work, or by the action or inaction of any governmental agency or regulatory body (unless due to the fault or neglect of Contractor), or by labor disputes, fire, lightning, explosion, flood, earthquake, hurricane, unusually severe weather, unusual delay in deliveries, unavoidable casualties or other causes beyond Contractor's control and fault, or by delay authorized by Owner pending a dispute resolution, or by any other cause which Owner determines may justify delay, then, to the extent the critical path of the Construction Schedule is impacted, the dates established above for Substantial Completion and Final Completion shall be equitably extended, and an equitable adjustment shall be made to the Initial Guaranteed Maximum Price or the GMP (as the case may be), including an equitable adjustment to the Contractor's Fee. Page 17 of2J K. If the satisfactory execution and completion of the Contract should require work and materials in greater amounts or quantities than those set forth in the Contract, requiring more time for completion than the anticipated time, then the Contract working time should be equitably increased. No allowances shall be made for delays or suspension of performances of the Work due to the fault of the Contractor. L. No adjustment to work time should be made if, concurrently with the equitable cause for delay, there existed a cause for delay due to the fault or negligence of the Contractor, his agents, employees, or subcontractors; and no adjustment shall be made to the Contract price and the Contractor shall not be entitled to claim or receive any additional compensation as a result of or arising out of any delay resulting in adjustment to the Working time hereunder, including delays caused by the acts or negligence of the Owner, but this shall only apply if the delay was concurrently caused by the fault or negligence of the Contractor. 17. TERMINATION BY CONTRACTOR A. In the event the Contractor's Work is suspended or stopped in its entirety from no fault of the Contractor for a period of 20 days (continuously), the Contractor may terminate this Contract and shall be compensated in such event as if termination by the Owner, pursuant to Paragraph 16.A. hereof. Notwithstanding the foregoing, the Contractor may not terminate the Contract under this Article even if the Work is suspended or stopped in its entirety through no fault of the Contractor unless and until the Contractor has exercised reasonable diligence to cure the cause of such Work suspension or stoppage. B. If Owner fails to pay to Contractor any amount due it under this Contract within 30 days from the date such payment is due, Contractor may terminate this Contract and Contractor shall be compensated as provided in Paragraph 16.A. hereof. In the event of such nonpayment by Owner for a period of 30 days, Contractor shall given written notice to Owner at least 14 business days prior to any such termination. If Owner cures such default within 14 days from the date of notice, Contractor shall not have the right to terminate this Contract pursuant to this provision. This Article shall not be construed to allow the Contractor to terminate the Contract where the Owner has failed to pay the Contractor pursuant to the Owner's right to refuse or withhold payment as established in this contract. 18. ASSIGNMENT, GOVERNING LAW, VENUE AND NOTICES A. This Contract shall be binding on the parties hereto, their successors, assigns and representatives. Neither Party shall assign any interest in this Contract without the written consent of the other. B. This Contract shall be governed by and construed solely in decision of the State of Texas. C. This Contract shall be construed according to the laws of Texas; and Collin County, Texas, shall be the exclusive venue for any litigation involving this Contract; D. All written notices to Owner by Contractor shall be addressed to: Page 18 of23 City Manager City of Anna 111 N. Powell Parkway Anna, Texas 75409 Notice permitted or required by this Contract, shall be in writing and shall be deemed received when received in person or when placed, postage prepaid, in the United States mail, certified return receipt requested, and addressed to the part at the address set forth opposite their signature below. Either party may designate from time to time another and different address for receipt of notice by giving notice of such change of address. All written notices from Owner to Contractor shall be addressed as follows: leffCordes Contractor Landscapes Unlimited, L.L.C. 1201 Aries Drive Lincoln, NE 68512 F. In the performance of this Contract, Contractor shall occupy the status of an Independent Contractor, performing all Work without immediate direction or supervision by Owner. No provision of this Contract shall be construed as making Contractor as agent of Owner. G. Paragraph headings are for convenience only and are not intended to expend or restrict the scope or substance ofthe provisions of this Contract. H. Should any term, covenant, condition, sentence, or paragraph of this Contract be found illegal, invalid, or unenforceable for any reason, such illegal, invalid, or unenforceable provision shall be severed from the remainder of this Contract and shall not affect the legality, validity, or enforceability of the remaining terms, covenants, conditions, sentences, or paragraphs of this Contract. I. This Contract and the Exhibits attached hereto represent the entire agreement between the parties hereto; superseding all oral or written previous and contemporaneous agreements between the parties and relating to the matters in this Contract, and except as provided herein cannot be modified without written agreement of the parties to be attached to and made a part of this Contract. Exhibits forming part ofthe Contract are as follows: Exhibit A Project Staff ExhibitB Project Development Program ExhibitC Payment, Performance and Maintenance Bonds ExhibitD Other Terms and Conditions Exhibit E Indemnification Provision Exhibit F Certificate of Insurance 1. All parties represent that they have full capacity and authority to grant all rights and assume all obligations that they have granted and assumed under this Contract. Page 19 of23 19. COMPLIANCE WITH LAWS, NONDISCRIMINATION AND FEDERAL FUNDS A. The Contractor, its officers, consultants, agents, and employees shall comply with all applicable federal and state laws, and Ordinances of the City of Anna, Texas, as amended, and with all applicable rules and regulations promulgated by all local, state and national boards, bureaus and agencies. B. As a condition of this Contract, Contractor hereby covenants that it will take all necessary action to ensure that, in connection with any Work under this Contract, it will not discriminate in the treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or handicap unrelated to job performance, either directly or indirectly or through contractual or other arrangements. In this regard, Contractor shall keep, retain and safeguard all records relating to this Contract or Work performed hereunder for a minimum period of three years from final Contract completion, full access allowed to authorized representatives of the City upon request of purpose of evaluating compliance with this and other provisions of the Contract. C. In the event Owner receives funds from any federal agency to be utilized in construction of the Project, Owner shall notifY Contractor of any terms, requirements, conditions or restrictions attached to the use of said funds. Thereafter, Contractor shall assist Owner in notifYing all affected bidders and/or contractors! Trade Contractors, and will include, to the extent necessary, all federal requirements as a part of each and every bid package on the federally funded portion of the Project. Contractor shall also comply with any applicable requirement and assist Owner with assembling the documents necessary to evidence compliance by each affected bidder or contractorlTrade Contractor. 20. RESPONSmILITY FOR WORK; INDEMNIFICATION A. Approval by the Owner shall not constitute nor be deemed a release of the responsibility and liability of Contractor, its employees, any other contractors, agents or consultants, for the accuracy and competency of their services; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect, error or omission in the Work product prepared by Contractor, its employees, other contractors, agents or consultants. B. See Exhibit E, incorporated herein as if set forth in full. C. It is expressly agreed and understood by Owner and Contractor that any and all costs associated with the Owner's efforts in litigation or otherwise resisting claims or liabilities as identified in (B) above shall be borne, from the inception, by Contractor. It is further expressly agreed and understood by Owner and Contractor that city shall have the right to select its counsel and request reimbursement from Contractor for said costs. The parties hereto agree and understand that the intent of the parties is that the City shall not incur costs or expenses in litigating or resisting claims as identified in (B) above. D. In addition to those matters elsewhere made the responsibility of the Contractor, the Contractor shall have the full and direct responsibility for the performance and completion of the Work Page 20 of23 under this Contract and for any act or negligence of the Contractor, his agents, employees or subcontractors. 21. FINANCIAL INTEREST PROIDBITED. CONFIDENTIALITY A. Contractor covenants and represents that Contractor, its officers, employees, agents, and consultants will have no fmancial interest, direct or indirect, in product materials or equipment that will be specified for the construction of the Project. B. Contractor understands that the Charter of the City of Anna, Texas, provides that no officer or employee of the City shall have any financial interest, direct or indirect, in any contract with the City, or be fmancially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or services, except on behalf of the City as an officer or employee. Any violation of this prohibition shall constitute malfeasance in office, and any officer or employee guilty thereof shall thereby forfeit his office or position with the City. Any violations of this prohibition, with knowledge, express or implied, of the person or corporation contracting with the City shall render the contract involved voidable by the City. The Contractor represents that no employee or officer of the City has an interest in the Contractor. 22. PERFORMANCE AND PAYMENT BONDS A. With the execution and delivery of the Contract, the Contractor shall furnish and file with the Owner in the amounts herein required, the surety bonds specified hereunder. Without exception, the Owner's bond forms, copies of which are attached hereto as Exhibit "C" and incorporated into the Contract, must be used, and exclusive venue for any lawsuit in connection with such bonds shall be in Collin County, Texas. Such surety bonds shall be in accordance with the provisions of the TEXAS GoVERNMENT CODE § 2253.0001 et seq, Art. 7.19-1 of the TEXAS INSURANCE CODE and § 53.201 et seq. Of the TEXAS PROPERTY CODE and shall be issued by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on the Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. These bonds shall automatically be increased by the amount of any change order or supplemental agreement which increases the Contract amount with or without notice to the surety, but in no event shall a change which reduces the Contract amount reduce the penal amount of such bonds. If the surety on any Bond furnished by the Contractor is declared bankrupt or becomes insolvent or its right to do business is terminated or ceases to meet the requirement as set forth above, Contractor shall within 20 days thereafter substitute another Bond or surety which complies with the requirement hereto. B. Performance Bond. A good and sufficient bond in an amount not less than the contract sum, 100% of the GMP guaranteeing and as security for the full and faithful execution of the Work and performance of the Contract in accordance with the plans, specifications, and Contract documents, including any extensions thereof, for the protection of the Owner. This bond shall also provide for the repair and/or replacement of all defects due to faulty materials and workmanship that appear or become known within a period of one year from the date of completion and acceptance of the improvement by the Owner or such lesser or greater period as may be designated in the Contract Documents. Page 21 of23 C. Payment Bond. A good and sufficient bond in an amount not less than 100% of the approximate total amount of the Contract, as evidenced by the proposed tabulation guaranteeing and as security for the full and proper protection of all claimants supplying labor and materials in the prosecution of the Work provided for in said Contract and for use of such claimant. This bond shall remain in effect at lease until one year after the date when final payment becomes due for all materials and labor supplied in the prosecution of the Work provided in said Contract. D. Maintenance Bond. Contractor shall furnish Owner a maintenance bond to guarantee against defects in the construction or equipment furnished under the project for one year following acceptance. The bond shall be executed by a surety company holding a license to do business in the State of Texas and acceptable to the Owner, in an amount equal to 100 percent of the contract. E. Sureties. No sureties shall be accepted by the Owner who is now in default or delinquent on any bonds or who has interest in any litigation against the Owner. All bonds shall be made on forms furnished by the Owner and shall be executed by not less than one corporate surety authorized to do business in the State of Texas and acceptable to the Owner. The sureties shall be listed in the most current federal register treasury list. Each bond shall be executed by the Contractor and surety. Each surety shall designate an agent resident in the Owner's jurisdiction reasonably acceptable to the Owner to whom any requisite to whom any requisite notices may be delivered and on whom service ofprocess may be had in matters arising out of such suretyship. F. Additional or Substitute Bonds. If at any time the Owner is or becomes reasonably dissatisfied with any surety of a performance or payment bond, the Contractor shall, within 15 days after notice from the Owner to do so, substitute an acceptable bond or bonds, or provide any additional bond, and such form and sum and signed by such other surety or sureties as may be reasonably satisfactory to the Owner. The premiums on such bond shall be paid by the Contractor without recourse to the Owner. 23. HAZARDOUS MATERIALS It is understood and agreed that the general conditions do not contemplate the handling of, responsibility for the discovery of, or the performance of services by the Contractor related to the abatement, replacement or removal of products or processes involving asbestos or hazardous waste in any of its forms as defined by the EPA. If such products or wastes are present, the Owner shall retain and pay for specialists required to perform services to specify and supervise abatement, replacement or removal procedures. The Contractor shall carry on the Work and maintenance progress where not hampered by the abatement process as agreed by the Owner while the specialists are performing such abatement, replacement, or removal procedures, unless otherwise prohibited by law. Subject to this obligation, the Owner agrees to be responsible to the Contractor for all claims, lawsuits, expenses or damages arising from or related to the exposure, handling, use, treatment, purchase, sale, storage or disposal of asbestos, asbestos products or any hazardous waste, in any of its various forms as defmed by the EPA provided that such waste is not generated by the Contractor during the construction of the Project. This responsibility to the Contractor shall survive the completion of the Project, the Work administered under these general conditions and the general conditions themselves unless claims or lawsuits are caused solely by the negligent act of the Contractor in providing the contracting services. Contractor agrees not to knowingly recommend any products containing asbestos for inclusion in this Page22of23 Project. If Contractor shall be delayed by the supervision, abatement, removal of any hazardous wastes or materials not supplied or caused by Contractor, Owner agrees that the time of the completion of the Work shall be extended for a period equal to the reasonably estimated period of delay, as determined by agreement between the Contractor and the Owner. IN WITNESS WHEREOF, Owner has caused this Contract to be signed in its corporate name by the duly authorized to execute the same in its behalf by the Owner, and Contractor has signed by and through its duly authorized representative, thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions hereto. EXECUTED this --=t-day of ¥r4rv.c.r1 ,2010. LANDSCAPES UNLIMITED, L.L.C. BY:_""7"":~---:--=---O---:--'---""7"":--- Michael Surls, Assistant Manager STATE OF NEBRASKA § § COUNTY OF LANCASTER § Subscribed and sworn to before me this __• day of ,2010, by Michael Surls, in his capacity as Assistant Manager of Landscapes Unlimited, L.L.C. on behalf of said limited liability company. Notary Public in and for the State of Nebraska Page 23 of23 Exhibit A LANDSCAPES UNUMITED;llC CONTRACT MANAGER: Jeff Cordes 1201 Aries Drive Lincoln, NE 68512 Office: (402) 423-6653 Mobile: (402) 416-7117 Fax: (402) 423-4487 PROJECT MANAGER: Bill Roberts 1201 Aries Drive Lincoln, NE 68512 Mobile: (402) 416-7037 SUPERINTENDENT: Eric Alvarez (Pending completion and timing of other project) 1201 Aries Drive Lincoln, NE 68512 Mobile: (402) 416-6871 Exhibit B PROJECT DEVELOPMENT PROGRAM For: Natural Springs Park Phase II City of Anna Collin County, Texas January 22, 2010 Presented to: City of Anna 101 North Powell Parkway Anna, Texas 75409 (972) 924-3325 Prepared by: .111 lANDSCAPES . . .•. UNLIMITEI:¥'LLC 1201 Aries Drive Lincoln, Nebraska 68512 www.landscapesunlimited.com -1­ Project Development Program Natural Springs Park -Phase II City of Anna, Texas It Is understood by all parties that all information contained herein is confidential information and is Intended only for the use of the Individual or entity named herein. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this information is as permitted by law. Quality Standard The City ofAnna, Texas and Landscapes Unlimited, LLC (LU) agree that the fmal product ofthis project will be characterized as Phase Two ofNaturaI Springs public park, with individual characteristics as described below. This park is a project of significant scope and expectations. Construction practices and elements as described below will be intended to provide for public use that is to be expected within a typical facility. Phase Two of the park will consist ofa trail system, to include one bridge. Budgetary Statement This park site will be delivered to the Owner on a mutually agreed basis. In the program elements below, it is anticipated that the units and quantities specified will differ from those actually installed and produced on site. In a cooperative spirit and teamwork attitude, the project team of Owner and Contractor shall work closely together to implement a scope that delivers to the quality and budget expectations ofthe Owner. In the event that the scope is reduced throughout the course of construction, or the cost of the work is less than estimated, or both, and cost savings will accrue, then the Owner shall have the option of 1) installing additional components or adding quality upgrades, or 2) take a credit to the Contract for this cost savings. In the event that the scope of the work increases, Owner shall either 1) work with Contractor to value engineer the remaining items of work to absorb any cost over-runs, or 2) the Owner may elect to authorize a change to Contract for this additional scope. -2­ Project Development Program Natural Springs Park -Phase II City of Anna, Texas Professional Services • Service items to be provided by the City: o Master planning o Civil Engineering o Erosion Control Plan o Site grading plan o Storm drainage plan o Portland Concrete Cement design plan and specifications o A.D.A. plan and Considerations o Site description and survey control points for property boundaries • No Allowance for Professional Services has been included. • A rigorous and continuous quality control testing process of all applicable processes is included through accredited testing agencies. • Any other consultancies or services that may become necessary under this project may be incorporated into this program. • TIPS fee has been included Construction of Concrete Trails Contractor will provide all materials and labor necessary to construct 2.900 linear feet of of 8' wide concrete trail. • The trail will be marked in the field and approved by the city for location. It is understood that the layout plan provided by the City is conceptual per Attachment 1. • 4" 3600 PSI concrete with #3 rebar 12" on center on top of2" of cushion sand is the profile included. • Any part of the trail with a slope greater than I :20 (5%) shall be considered a ramp and contractor shall comply with the ADA standards (Le. construct rails and landing zones where necessary). Any part ofthe trail shall not have a side slope greater than 1:50 (2%) • Other than compaction of the existing soils. there will not be any "supplementary" stabilization methods for the tail subgrades. • No permits and/or fees have been included • Bond costs are included in this Program • No taxes have been included • All. insurance. general conditions. site facilities, office expense. overhead and other project administration costs are included. Owner will be named as an additional insured under LV's General Liability policy during this project. • All on site supervision has been included. • Owner to provide site description; to include but not limited to the property lines. boundaries and mitigation areas. • Contractors work shall include all engineered staking and all secondary staking to meet earthwork requirements and final field elevations. • Contractor will provide a SWPPP plan and implementation including silt fence installation, maintenance and removal. • An allowance has been established to perform all clearing and site preparations for the installation ofthe trail as highlighted on the master plan. • Contractor will mulch all brush & timber for on-site distribution as directed by the City. • Any grassland clearing will be incorporated within the mass excavation phase and incorporated in non critical fill areas. • Earthwork is included for site development per the site plan developed by the City ofAnna Planning and Development Department and is per Attachment 1. • Topsoil management ofall on-site material. It is assumed that all topsoil needed will be fulfilled with on-site material. 3 Project Development Program Natural Springs Park -Phase II City of Anna, Texas • All sub-grades will be compacted and proof rolled for proper compaction. • Any water needed for construction will be provided by the city. • Hard rip and rock material is not included. This is assumed to be anything that can not be excavated with a ill 200 excavator or equivalent • Wet or unsuitable material is not included. • Anything unforeseen such as old buries, trash, hazardous materials or debris is not included. • No storm drainage other than grading adjacent to the trail system has been included. • No pipe crossings have been included. If needed the City will provide the pipe. • No Irrigation is included in the pricing. • Contractor will hydro-seed all disturbed previously grassed areas adjacent to the trail to common Bermuda turf type. Steel bridge Installation/Construction • An allowance for one (1) pedestrian bridge (80' long by 8' wide) has been included at this time. The design and fabrication ofthe bridge shall be identical to the existing bridge that spans a drainage creek between the Brookshires parking lot and Natural Springs Park, and shall span the entire width of the crossing between the Park to the Anna ISD property as shown on the site plan provided by the City. • The bridge abutments shall be constructed in accordance with the engineered design provide by the City as shown in Attachment 2. • It is assumed that we will utilize the existing bridge crossing at the east side of the property to complete the eastern most loop ofthe trail. Duration &Schedule • The projects shall be complete no later than 75 days after a notice to proceed is issued by the City. )0> It is proposed to use the The Interlocal Purchasing System (TIPS) for the delivery of this project. The administrative costs have been included. Program costing for all elements under the responsibilities listed under the Natural Springs Park Project Development Program above will be defined and designed to meet the Owner's budget, schedule and quality objectives for this project. All priCing for this project is based upon current commodity pricing. Any commodity pricing increase/decrease will be accommodated within the current GMP. The Guaranteed Maximum Price (GMP) for the scope as discussed above is: $ 247,500.00 -4­ Project Development Program 1""'15­ "-0" ~ l-,.. I~ - •~ 17-;. \, + lIs'" D.5. c 1/1'. DA ! : ......,'-. I ~'-6' l -I· ! \·1·/ JIIau ttAotJlt'.t< ,'-ol' "-4' .'-8" 1'-0" f-- /'" ~~ \.1./ tls"'D,s, _"I,: ,.."'0'11 )I e:-8"'_0'.(£0. Fo"l r-2" WJNGWAlI pi ANS (£0. r-> -vr,"" WJNGWALL ru;VAIION "'I~.t'< ell' 'U' 4' • 12" • if-o" ~.6' pltcl1, _ flot tum top .. bottom Et gVADOtI ,I BAAS "IJ" 2 -~. 10'-+- 4 -.. )( 11'-"" ~~~6¥ll1 BAAS "I.' BARS'S' BARS V se:c:nw _vr,r~ {! 1. }1 I sl£m ~I ~!,., J J KM:I~.H I "1~~I ABUTMINTSI Q I IWf t$ 0Nl1WOt art ~IIi -.:.... __..ON~~CHE,* ---_......... _ .._.........,a .. -..... .... __tftifoft .... -;;:::-- 5 -~.. -~... ­I --.....--.. ,,--. -­Project Development Program ..... _ "-f! ..... _ Il\~ ..... ll'fI ..... ~H:..,.._1_........... -.,­ 1 I \.<:;. '~ & , ~'.····1·'····.··.·. . '-_~ ....'· 'co'.'···',_ ~ .~ ~•. City of Anna Natural Springs Park, Phase II Exhibit D Other Terms and Conditions 1. In the event of a conflict between the Contract, Specifications and/or other Contract Documents and this Exhibit D, the Terms and Conditions in this Exhibit D will govern. 2. This project has been estimated using non-union forces. If it becomes necessary to employ union labor for this project, due to Owner directive or in order to continue with the work to avoid strikes, additional costs associated with this shall be reimbursed to the Contractor. 3. Contractor will assist Owner with obtaining all necessary construction and/or governmental permits. 4. Owner will supply all engineered controls for tills project. This includes, but is not limited to, critical benchmarks, property lines, lake edges, if any, existing utilities (depth and locations) and/or other infrastructures as required for construction. Contractor's work shall consist of all necessary plan staking, limits of disturbance and other features shown on the grading plans or directed in the field by the owner. 5. It should be noted that stress cracks will occur in concrete surfacing and such cracks shall not be a cause for replacement unless they prevent the use of paved areas for their intended purpose. No weed barrier or sealers are included in the installation of the walk paths. 6. Contractor does not accept any responsibility for schedule shortcomings related to the actions or inaction of the Owner or others with whom the Owner contracts directly. In the event the actions or omissions of Owner or others for whom Owner is responsible delay performance or completion of the Work, Contractor shall be given an equitable adjustment to the Contract Time and Contract Sum limited to actual costs incurred. Should the Owner request acceleration of the Project, through no fault of Contractor, the Parties shall agree in writing that a separate lump sum payment will be paid to the Contractor for all increased costs Contractor will incur during the accelerated work period including, but not limited to, increased site supervision, equipment overhead, premium time and lost productivity. 7. Unsuitable Materials -The removal of unsuitable materials for the stabilization of the subgrade for paved areas, drainage lines or other infrastructure will be considered a change to this Contract and the Contractor will be compensated by an increase in the Contract Sum: To the extent Contractor deems such change necessary, Contractor will consult with Owner prior to the installation thereof as to the most suitable alternatives taking into consideration the cost thereof. 8. Consequential Damages -Contractor and Owner waive any claims against each other for consequential damages arising out of or relating to this Contract. This waiver shall not be deemed to preclude recovery by Owner of liquidated damages for late completion by Contractor. Liquidated damages as set forth in the Contract shall be Owner's sole and exclusive remedy for untimely completion of the Work, unless other remedies are specifically set forth in the Agreement as described in Section 6.E. thereof. -------------------------------Pagel City of Anna Natural Springs Park, Phase II 9. The time period set forth in the Project Schedule for completion of planting is contingent upon Contractor's access to adequate amounts of water for this purpose. If sufficient water is not available, due to mandatory restrictions on water usage, by the time all other Work is substantially complete, Owner will be responsible for planting or Owner will compensate the Contractor to come back to the Project to complete the planting process after the water restrictions are lifted. In the event that Owner chooses to plant the materials after the water restrictions are lifted, Owner shall be entitled to a credit for turf planting. 10. Contractor warrants that it is properly licensed in the State of Texas. 11. Contractor may bill for all purchased materials and for any deposit necessary to hold or fabricate materials for delivery at a later date. Retainage shall not apply to purchased materials and deposits. -------------------------------Page 2 Exhibit E INDEMNIFICATION PROVISION INDEMNIFICATION A. Damage to Property The CONTRACTOR shall indemnify and save the OWNER harmless from and against all liability and claims for loss of or damage to tangible property to the extent such loss or damage results from the fault or negligent acts or omissions of the CONTRACTOR arising out of or in connection with or by reason of Work done by the CONTRACTOR or its subcontractors, agents, representatives, or employees under this Contract, provided however, that the CONTRACTOR's liability hereunder shall not extend to loss or damage caused by the OWNER's fault or negligence. B. Injuries to Persons The CONTRACTOR shall indemnify and save harmless the OWNER from and against all liability and claims for injuries to or death of any and all persons, including, without limitation, employees, agents, and representatives of the CONTRACTOR or its subcontractors, to the extent such loss or damage results from the fault or negligent acts or omissions of the CONTRACTOR in connection with or by reason of Work done by the CONTRACTOR, provided however, that the CONTRACTOR's liability hereunder shall not extend to loss or damage caused by the OWNER's fault or negligence. C. Costs to be Reimbursed With respect to any action or proceeding brought against the OWNER for which the CONTRACTOR is required to indemnify the OWNER under Paragraphs A and B hereof, the CONTRACTOR agrees to defend the same and to be responsible for and to pay all deductible amounts, damages, costs, and expenses of whatever nature, in connection therewith or resulting therefrom except as limited herein. D. Indemnification Period Notwithstanding any other prOVISIon of this Contract to the contrary, CONTRACTOR shall have no responsibility to indemnify or save the Owner harmless from any claims to which this indemnification obligation applies which are brought more than one year from the date of Final Acceptance of the Work.