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HomeMy WebLinkAbout205-05 RESOLUTION• 1 RESOLUTION NO. 205-05 A RESOLUTION APPROVING A CONTRACT WITH MIDLAND CONSTRUCTION, INC. IN THE AMOUNT OF $64,026.00 FOR THE CONSTRUCTION OF THE WALKER PARK ENTRY; AND APPROVING A 10% PROJECT CONTINGENCY IN THE AMOUNT OF $6,402.60. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas, hereby approves a contract with Midland Construction, Inc. in the amount of 564,026.00 for the construction of the Walker Park Entry. A copy of the contract marked Exhibit "A" is attached hereto and made a part hereof. Section 2: That the City Council of the City of Fayetteville, Arkansas, hereby approves a 10% project contingency in the amount of $6,402.60. PASSED and APPROVED this 18th day of October, 2005. a.G "c,“ Y 0;•••.GA rte• •<^� V• •�: :FAYETTEVILLE: sir "• P : ATTEST: ,9a'y9 !f S e?'62, %By: 09.4.4.41/ SONDRA SMITH, City Clerk APPROVED: By DAN COODY, Mayo • • Section 00500 AGREEMENT BETWEEN CITY OF FAYETTEVILLE AND MIDLAND CONSTRUCTION, INC. THIS AGREEMENT is dated as of the /S 7 day of 0ekF1PY in the year 2005 by and between the City of Fayetteville, Arkansas (hereinafter called CITY OF FAYETTEVILLE) and Midland Construction, Inc. (herein after called CONTRACTOR). CITY OF FAYETTEVILLE and MIDLAND CONSTRUCTION, INC., in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. MIDLAND CONSTRUCTION, INC. shall complete all Work as specified or indicated in the Contract Documents. The work generally consists of the construction of a stone wall, site preparation, planting berm and lighting. Article 2. ENGINEER. The Project has been designed by City of Fayetteville Parks and Recreation Division 1455 South Happy Hollow Road Fayetteville, Arkansas 72701 will he hereinafter called PARKS AND RECREATION DIVISION PROJECT MANAGER and who is to act as CITY OF FAYETTEVILLE's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract documents. Article 3. CONTRACT TIME. 3.1. The Work for Walker Park Entry shall be substantially completed within 45 consecutive calendar days after the date when the Contract Time commences to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraphs 14.07.B & C of the General Conditions within 60 consecutive calendar days after the date when the Contract Time commences to run. City of Fayetteville Page 00500-1 10/14/2005 3.2. Liquidated Damages. CITY OF FAYETTEVILLE and MIDLAND CONSTRUCTION, INC. recognize that time is of the essence of the Agreement and that CITY OF FAYETTEVILLE will suffer financial loss if the Work is not completed within the times specified in paragraph 3.1 above, plus and extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense and difficulties involved in proving the actual loss suffered by CITY OF FAYETTEVILLE if the Work is not completed on time. Accordingly, instead of requiring any such proof, City of Fayetteville and MIDLAND CONSTRUCTION, INC. agree that as liquidated damages for delay (but not as a penalty) MIDLAND CONSTRUCTION, INC. shall pay CITY OF FAYETTEVILLE One hundred and fifty dollars ($150.00) for each day that expires after the time specified in paragraph 3.1 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if MIDLAND CONSTRUCTION, INC. shall neglect, refuse or fail to complete the remaining Work within the time specified in paragraph 3.1 for completion and readiness for final payment or any proper extension thereof granted by CITY OF FAYETTEVILLE, MIDLAND CONSTRUCTION, INC. shall pay CITY OF FAYETTEVILLE Two hundred and fifty dollars ($250.00) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. CITY OF FAYETTEVILLE shall pay MIDLAND CONSTRUCTION, INC. for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined from the following Schedule of Values pursuant to paragraphs 4.1 and 4.2 below: 4.1. For all Work other than Unit Price Work, an amount equal to the sum of the established lump sums for each separately identified item of Lump Sum Work; and 4.2. For all Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of that item as indicated in this paragraph 4.2. City of Fayetteville Page 00500-2 10/14/2005 PAYMENT ITEMS Bid Item # Description Unit QTY. vlidland Constructio unit price total 1 MOBILIZATION (1) L.S. 1 3.000.00 3,000.00 2 CONSTRUCTION STAKING L.S. 1 750.00 75000 3 MAINTENANCE OF TRAFFIC L.S. 1 1,000.00 1,000.00 4 TEMPORARY SILT FENCE (3)(5) L.F. 100 10.00 1,000.00 5 SEED AND STRAW (4) AC 0.06 17,000.00 1,020.00 6 10" PVC PIPE (6) L.F. 58 44.00 2,552.00 7 12" ADS NYLOPLAST INLET W/ATRIUM GRATE EACH 1 1,200.00 1,200.00 8 SELECT FILL C.Y. 112 50.00 5,600.00 9 UNCLASSIFIED EXCAVATION (2) C.Y. 50 100.00 5,000.00 10 4- CONCRETE CAP L.F. 70 75.00 5,250.00 11 LABOR - WALL INSTALLATION L.F. 70 275.00 19,250.00 12 FOOTING FOR STONE WALL (10) L.F. 70 100.00 7,000.00 13 STEEL LETTERS, COMPLETE IN PLACE (8) L.S. 1 5,200.00 5,200.00 14 LIGHTING SYSTEM, COMPLETE IN PLACE L.S. 1 1,200.00 1.200.00 15 ELECTRIC SERVICE COMPLETE IN PLACE (7) EACH 1 3,600.00 3,600.00 16 LANDSCAPE EDGING L.F. 57 12.00 684.00 17 CONCRETE PADS FOR BENCHES S.F. 80 9.00 720.00 $64.026 As provided in paragraph 11.03 of the General Conditions estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to he made by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragraph 11.03.B of the General Conditions. Article 5. PAYMENT PROCEDURES MIDLAND CONSTRUCTION, INC. shall submit Applications for Payment in accordance with Article 14 of the General Conditions or as modified in the Supplementary Conditions. Applications for Payment will be processed by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in the General Conditions. 5.1. Progress Payments. CITY OF FAYETTEVILLE shall make progress payments on account of the Contract Price on the basis of MIDLAND CONSTRUCTION, INC.'s Applications for Payment as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER, on or about the 1st day of each month during construction as provided in paragraphs 5.1.1 and 5.1.2 below and SC -14.02 . All such payments will be measured by the schedule of values established in paragraph 2.07 of the General Conditions and based on the number of units completed in the case of Unit Price Work or, in the event there is no schedule of values, as provided in the General Requirements. 5.1.1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below, but, in case, less the aggregate of payments previously made and less such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may withhold, in accordance with paragraphs 14.02.13.5 & 14.02.D of the General Conditions. City of Fayetteville Page 00500-3 10/14/2005 • • 90 percent of Work completed (with the balance of 10 percent being retainage), If Work has been 50 percent completed as determined by the PARKS AND RECREATION DIVISION PROJECT MANAGER, and if the character and progress of the Work have been satisfactory to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, CITY OF FAYETTEVILLE, on recommendation of PARKS AND RECREATION DIVISION PROJECT MANAGER, may determine that as long as the character and progress of'the Work remain satisfactory to them, there will he no additional retainage on account of work completed, in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100 percent of the Work completed. 100 percent of materials and equipment not incorporated in the Work but delivered, suitably stored, and accompanied by documentation satisfactory to CITY OF FAYETTEVILLE as provided in paragraphs I4.02.B.5 & 14.02.D of the General Conditions. That is, if any such items are setup for that type payment in the Specifications. 5.1.2. Upon Substantial Completion, in an amount sufficient to increase total payments to MIDLAND CONSTRUCTION, INC. to 98 percent of the Contract Price (with the balance of 2 percent being retainage), Tess such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may withhold, in accordance with paragraphs 14.02.8.5 & 14.02.D of the General Conditions. 5.3 Final Payment. Upon final completion and acceptance of the Work in accordance with paragraphs I4.07.B & C of the General Conditions, CITY OF FAYETTEVILLE shall pay the remainder of the Contract Price as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in said paragraphs 14.07.B & C. Article 6. MIDLAND CONSTRUCTION, INC.'S REPRESENTATIONS. In order to induce CITY OF FAYETTEVILLE to enter into this Agreement MIDLAND CONSTRUCTION, INC. makes the following representations: 6.1. MIDLAND CONSTRUCTION, INC. has examined and carefully studied the Contract Documents (including the Addenda listed in Article 7) and the other related data identified in the Bidding Documents including "technical data." 6.2. MIDLAND CONSTRUCTION, INC. has visited the site and become familiar with and is satisfied as to the general, local, and site conditions that may affect cost, progress, performance, or furnishing of the Work. 6.3. MIDLAND CONSTRUCTION, INC. is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, performance, and furnishing of the Work. City of Fayetteville Page 00500-4 10/14/2005 • • 6.4. MIDLAND CONSTRUCTION, INC. has carefully studied all reports of explorations and tests of subsurface conditions at or contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site which have been identified in the Supplementary Conditions as provided in paragraph 4.02.A of the General Conditions. MIDLAND CONSTRUCTION, INC. accepts the determination set forth in paragraph SC -4.02 of the Supplementary Conditions of the extent of the "technical data" contained in such reports and drawings upon which MIDLAND CONSTRUCTION, INC. is entitled to rely as provided in paragraph 4.02 of the General Conditions. MIDLAND CONSTRUCTION, INC. acknowledges that such reports and drawings are not Contract Documents and may not be complete for MIDLAND CONSTRUCTION, INC.'s purposes. MIDLAND CONSTRUCTION, INC. acknowledges that CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site. MIDLAND CONSTRUCTION, INC. has obtained and carefully studied (or assumes responsibility for having done so) all such additional supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the site or otherwise which may affect cost, progress, performance, or fumishing of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to the employed by MIDLAND CONSTRUCTION, INC. and safety precautions and programs incident thereto. MIDLAND CONSTRUCTION, INC. does not consider that any additional examinations, investigations, explorations, tests, studies, or data are necessary for the performance and furnishing of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. 6.5. MIDLAND CONSTRUCTION, INC. is aware of the general nature of work to be performed by CITY OF FAYETTEVILLE and others at the site that relates to the Work as indicated in the Contract Documents. 6.6. MIDLAND CONSTRUCTION, INC. has correlated the information known to MIDLAND CONSTRUCTION, INC., information and observations obtained from visits to the site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. 6.7. MIDLAND CONSTRUCTION, INC. has given PARKS AND RECREATION DIVISION PROJECT MANAGER written notice of all conflicts, errors, ambiguities, or discrepancies that MIDLAND CONSTRUCTION, INC. has discovered in the Contract Documents and the written resolution thereof by PARKS AND RECREATION DIVISION PROJECT MANAGER is acceptable to MIDLAND CONSTRUCTION, INC. and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and fumishing of the Work. Article 7. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between CITY OF FAYETTEVILLE City of Fayetteville Page 00500-5 10/14/2005 • • and MIDLAND CONSTRUCTION, INC. concerning the Work consist of the following: 7.1. This Agreement (pages 1 to 7, inclusive). 7.2. Performance and Payment Bonds, (Exhibits A and B respectively). 7.3. Certificates of Insurance, (Exhibit C). 7.4. Documentation submitted by MIDLAND CONSTRUCTION, INC. prior to Notice of Selection (Exhibit D). 7.5. General Conditions (pages I to 42, inclusive). 7.6. Supplementary Conditions (pages 1 to 13 inclusive). 7.7. Specifications consisting of Divisions 1 through 16 as listed in table of contents thereof. 7.8. Addenda numbers one through two, inclusive. 7.9. One set of drawings (not attached hereto) consisting of: a cover sheet and additional sheets numbered two through five with each sheet hearing the following general title: Walker Park Entry. 7.10. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: 7.10.1. Notice to Proceed 7.10.2 All Written Amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to paragraph 3.04 of the General Conditions. The documents listed in paragraphs 7.2 et seq. above are attached to this Agreement (except as expressly noted otherwise above). There are no Contract Documents other than those listed above in this Article 7. The Contract Documents may only be amended, modified or supplemented as provided in paragraph 3.04 of the General Conditions. Article 8. MISCELLANEOUS. 8.1. Terms used in the Agreement which are defined in Article I of the General Conditions will have the meanings indicated in the General Conditions. 8.2. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that arc due may not be assigned without such consent (except to the extent that the effect of this restriction may be City of Fayetteville Page 00500-6 10/14/2005 • • limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 8.3. CITY OF FAYETTEVILLE and MIDLAND CONSTRUCTION, INC. each binds itself, it partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 8.4. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon stricken provision or part thereof with a valid and enforceable provision that comes as close as possible expressing the intention of the stricken provision. 8.5. Changes, modifications, or amendments in scope, price or fees to this contract shall not be allowed without a prior formal contract amendment approved by the Mayor and the City Council in advance of the change in scope, cost or fees. 8.6. Freedom of Information Act. City contract and documents prepared while performing city contractual work are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville, MIDLAND CONSTRUCTION, INC. will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et. seq.) Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. City of Fayetteville Page 00500-7 10/14/2005 • • IN WITNESS WHEREOF, CITY OF FAYETTEVILLE and MIDLAND CONSTRUCTION, INC. have signed this Agreement in quadruplicate. One counterpart each has been delivered to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, and two counterparts have been delivered to MIDLAND CONSTRUCTION, INC.. All portions of the Contract Documents have been signed, initialed, or identified by CITY OF FAYETTEVILLE and MIDLAND CONSTRUCTION, INC. or identified by PARKS AND RECREATION DIVISION PROJECT MANAGER on their behalf. _ L / This Agreement will be effective on i da- /2 2005 (which is the Effective Date of the Agreement). CITY OF FAYETTEVILLE: City of Fayetteville MIDLAND CO TRUCTION, INC.: By [CORPORATE SEAL] Address for giving notices By: Title s' [CORPORATE SEAL] est • If a Corporation, attest by the Secretary. Address for giving notices (If CITY OF FAYETTEVILLE is a public body, attach License No. evidence of authority to sign and resolution or other documents Agent for service of process: authorizing execution of Agreement.) (If MIDLAND CONSTRUCTION, INC. is a corporation, attach evidence of authority to sign) City of Fayetteville Page 00500-8 10/14/2005 • THE Al':RICAN INSTITUTE OF ARCIICTS Premium Amount Based on Final Contract Amount Bond No. 3834587 AIA Document A312 Performance Bond Ary .+'Mr n'ererc. to Cr:nCar. &%ry. O..rw v 0 !W Ferry 'S W fatl4n.0 ring leer. .mfcale CONTRACTOR (Name and Address): MIDLAND CONSTRUCTION, INC. 14571 ZIMMERMAN LANE ROGERS, AR 72756 OWNER (Name and Address): CITY OF FAYETTEVILLE 113 WEST MOUNTAIN, ROOM 372 FAYETTEVILLE, AR 72701 CONSTRUCTION CONTRACT Date: Amount: $ 64,026.00 Description (Name and Location): WALKER PARK ENTRY BOND Data (Not earlier than Construction Contract Date): Amount: S 64,026.00 Modifications to the Bond: CONTRACTOR AS PRIN ;PAL COM Y. - (Corporate Seal) MI r LAND CONST '=0N, INC. _1 Signature: moi/re - Name and Ti e: / (Any additional signatures appear on page 3) SURETY (Name and Principle Place of Business): OHIO CASUALTY INSURANCE COMPANY 136 NORTH THIRD STREET HAMILTON, OH 45025 [X] None SURETY COMPANY: 01110 CASUALTY 'S NCE COMP U See Page 3 (Corporate Seal) Signa Nam :nd T KIMBERLY L. BABB , Attorney -in -Fact FOR INFORMATION ONLY -Name, Address and Telephone AGENT OR BROKER: Babb Bonding, Inc P.O. Box 6255 Sherwood, AR 72124 OWNER'S REPRESENTATIVE (Architect. or Engineer or other party): City of Fayetteville Parks S Recreation Div. 1455 South Happy Hollow Road Fayetteville, AR 72701, 7?, 77 AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BONO DECEMBER 1984 ED., AA o THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVE., N.W., WASHINGTON D . 20094 THIRD PRINTING • MARCH 1987 A 312-1984 1 1.. the Contractor and the Surely, jointly and severally, bind themselves, their heirs, executors, ait strators, successors, and assigns to the Owner fort erformance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3. If there is no Owner Default, the Surety's obligation under this Bond shall arise after 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construc- tion Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason- able time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be de- clared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accor- dance with the terms of the contract with the Owner. 4. When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construc- tion Contract itself, through its agents or through inde- pendent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre- pared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in ex- cess of the Balance of the Contract Price incurred by the Owner resulting from the Contractors default; or reasonable promptness under the circumstances .1 After investigatietermine the amount for which it may be liable to the Allier and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding That the Surety perform -its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6. After the Owner has terminated the Contractor's right to complete the Construction Contract, and If the Surety elects to act under Subparagraph 4.1, 4 2, or 4 3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond. but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual dam- ages caused by delayed performance or non-perfor- mance of the Contractor 7. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Con- struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, or successors. 8. The Surety hereby waives notice of any change, includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years aftter the Surety refuses or fails to perform its obligations under this Bond, whichever oc- 4.4 Waive its rights to perform and complete, arrange curs first. If the provisions of this Paragraph are void or for completion, or obtain a new contractor and with prohibited by law. the minimum period of limitation avail - NA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND DECEMBER 1984 ED.. AW o A 312-1984 2 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W, WASHINGTON D.C. 20006 THIRD PRINTING - MARCH 1987 axle to sureties as a defense in the lunsaiction or the suit shall be applicable. • 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the sig- nature page. 11. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed. any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Con - MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor or any amounts recetvea or to oe receives Dy the Owner in settlemen_nsurance or other claims for damages to which t ontractor is entitled, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract. The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived. to per- form or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default. Failure of the Owner, which has neither been remedied nor waived to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRIN IPAL Compan !s, Signature: ,���� Name and Ti Address: SURETY (Corporate Seal) Company: Signature Address: (Corporat- :eal) KIM . ERLY L. B Attorney -in -Fact m and Title: AIA OOCUME NI A312 PERFORMANE BOND AN PAYMENT BOND DECEMBER 1964 3D . AIA O THE AMERICAN INSTITUTE OF ARCHITECTS. 1 Ab NEW YORK AVE.. N. W , WASHINGTON. O.C. 20005 THIRD PRINTING MARCH 1957 A312-1984 3 • • • THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 3834587 AIA Document A312 Payment Bond Any f.npl.r ,.I.m,u to Coctnttor. surly. Owner or other potty 4uII po on.Cn d Muni when .pppc.G.. CONTRACTOR (Name and Address): MIDLAND CONSTRUCTION, INC. 14571 ZIMMERMAN LANE ROGERS, AR 72756 OWNER (Name and Address): CITY OF FAYETTEVILLE 113 WEST MOUNTAIN, ROOM 372 FAYETTEVILLE, AR 72701 CONSTRUCTION CONTRACT Date: Amount: $ 64,026.00 Descnption (Name and Location). WALKER PARK ENTRY BOND Date (Not earlier than Construction Contract Date): Amount: E 64,026.00 Modifications to this Bond: x None SURETY (Name and Principle Place of Business)' OHIO CASUALTY INSURANCE COMPANY 136 NORTH THIRD STREET HAMILTON, OH 45025 CONTRACTOR AS PRINCIPAL SURETY COMPANY: MIDLAND Signature: Name and Title: (Corporate Seal) ' (Any additional signatures appear on page 6) See Page 6 COMPANY: Corporate Seal) OHIO CASUALTY I: SU:. NCE CON1PAyY Signature:�J` L//�(L'•t/�JY, Name and Title KIMBERLY L. BABB, Attomey-in-Fact FOR INFORMATION ONLY -Name. Address and Telephone AGENT OR BROKER: Babb Bonding, Inc P.O. Box 6255 Sherwood, AR 72124 OWNERS REPRESENTATIVE (Architect, Engineer or other party): City of Fayetteville Parks & Recreation Div. 1455 South Happy Hollow Road Fayetteville, AR 72701, ??, ?? AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND DECEMBER 194 ED., MAO THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20004 THIRD PRINTING - MARCH 1957 A312-1984 4 1. The Contractor and the Surety, joint) severally, • bind themselves, their heirs, executors, inistrators, successors, and assigns to the Owner to pay for labor, materials and equipment fumished for use in the perfor- mance of the Construction Contract, which is incorpo- rated herein by reference. 2. With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly. or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim demand, lien or suit is for the payment for labor, materials, or equipment fur- nished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens, or suits and tendered defense of such claims demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3. With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the addres described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Con- tractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above no- tice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 6. When the Claiman- satisfied the conditions of Paragraph 4, the Sure all promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the perfor- mance of the Construction Contract and to satisfy claims, if any. under any Construction Performance Bond. By the Contractor fumishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owners phor- ity to use the funds for the completion of the work. 9. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- ant under this Bond, and shall have under this Bond no obli- gations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent juris- diction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last mate- rials or equipment were furnished by anyone under the Con- struction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this 5. If a notice required by Paragraph 4 is gven by the Owner to the Contractor or to the Surety, that is sufficient compliance. AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND DECEMBER 1984 ED, AIAO THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., H.W., WASHINGTON, D.C. 20004 THIRD PRINTING - MARCH 1917 A312-1984 5 Bond shall be construed as a statutory bonand not as a • common law bond.ii 14. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly fumish a copy of this Bond or shall permit a copy to be made. 15. DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor. materials or equip- ment for use in the performance of the Contract. The intent of this Bond shall be to include without limita- tion in the terms "labor, materials or equipment" that part of water. gas. power, light, heat, oil, gasoline, telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Construction Contract, hitectural and engineering services required for p mance of the work of the Contractor and the Co tors subcontractors, and all other items for which a mechanic's lien may be asserted in the Jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof, (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRNCIPAL Company: MIDLAN' ' Up' .INC. Signature: /raw.; Name and Ti 4. Address: 14571 Zd• • 'MAN LANE ROGER , • R 72756 SURETY (Corporate Seal) Company: (Corporate Seal) 01110 CASUALTY INSURANC COMPANY • Signature: Name and Tit Address: •• BERLY L. BA::, Attorney -in -Fact NORTH THI D STREET HAMILTON, OH 45025 Aa DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND DECEMBER 1954 ED. ANO THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W., WASHINGTON. D.C. 20005 THIRD PRINTING . MARCH 1987 A312-1984 6 •ERTIFIED COPY OF POWER OF ATTORNEYI TIIE OHIO CASUALTY INSURANCE COMPA:N WEST AMERICAN INSURANCE COMPANY No. 36-699 Know All Men by These Presents: That THE OHIO CASUALTY INSURANCE COMPANY, an Ohio Corporation. and WEST AMER1CAN INSURANCE COMPANY, an Indiana Corporation, in pursuance of authority granted by Article VI. Section 7 of the By -Laws of The Ohio Casualty Insurance Company and Article VI, Section I of West American Insurance Company. do hereby nominate. constitute and appointDaniel Michael Babb, Kimberly L. Babb, James Alan Rogers or Miki Jean Rogers of Sherwood, Arkansas its true and lawful agent (s) and attorney (s) -in -fact. to nuke, execu:e, seal and delis cr for and on is behalf as surety, and as its act and deed any and all BONDS, UNDERTAKINGS, and RECOGNIZANCES, not exceeding in any single instance SIX MILLION (56,000,000.00) DOLLARS. excluding, however, any bond(s) or undertaking(s) guaranteeing the payment of notes and interest thereon And the execution of such bonds cr undertakings in pursuance of these presents. shall be as binding upon said Companies. as fully and amply, to al! intents and purposes. as if they had been duly executed and acknowledged by the regularly elected officers of the Companies at their administrative offices in Hamilton, Ohm, m their own proper persons. The authority granter hereunder supersedes any previous authority heretofore granted the above named at:omey(s)-in-fact. In WITNESS WHEREOF. the undersigned officer of the said The Ohio Casualty Insurance Company and West American Insurance Company has hereunto subscribed his name and affixed :he Corporate Seal of each Company this 29th day of January, 2003. t I jr_ L Sam Lawrence, Assistant Secretary STATE OF OHIO, COUNTY OF BUTLER On this 291h day of January, 2003 before the subscriber, a Notary Public of the State of Ohio, in and for the County of Butler, duly commissioned and qualified, came Sam Lawrence, Assistant Secretary of THE OHIO CASUALTY INSURANCE COMPANY and WEST AMERICAN INSURANCE COMPANY, to me personally known to be the individual and officer described in, and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn deposeth and saith, that he is the officer of the Companies aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and the said Corporate Seals and his signature as officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TF—S1 IMONY WHEREOF, I have hereunto sct my hand and affixed my Official Seal at the City of Hamilton, State of Ohio. the day and year first above stainers. L.4.Sit .�k Notary Pub in and for County df u0er,"State of Ohio My Commission expires August 6 2007. This power of anorney is granted under and by authority of Article VI, Section 7 of the By -Laws of The Ohio Casualty Insurance Company and Article VI, Section 1 of West American Insurance Company, extracts from which read. Article VI, Section 7. APPOINTMENT OF ATTORNEYS -IN -FACT, ETC. 'The chairman of the board, the president, any vice-president, the secretary or any assistant secretary of each of these Companies shall bc and is hereby vested with full power and authority to appoint anomeys-in-fact for the purpose of signing the name of the Companies as surety to. and to execute, attach the corporate seal. acknowledge and deliver any and all bonds, recognisances, stipulations, undertakings or other instruments of suretyship and policies of insurance to be given in favor of any individual, firm, corporation, or the official representative thereof, or to any county or state, or any official board or boards of county or state, or the United States of America, or to any other political subdivision." Article VI, Section I. APPOINTMENT OF RESIDENT OFFICERS. The Chairman of the Board, the President, any Vice President, a Secretary or any Assistant Secretary shall bc and is hereby vested with full power and authority to appoint attorneys in fact for the purpose of signing the name of the corporation as surety or guarantor, and to execute, attach the corporate seal, acknowledge and deliver any and all bonds, recognizance, stipulations, undertakings or other instruments of surety -ship or guarantee, and policies of insurance to bc given in favor of an individual, firm, corporation, or the official representative thereof, or to any county or state, or any official board or boards of any county or state, or the United States of America, or to any other political subdivision." This instrument is signed and sealed by facsimile as authorized by the following Resolution adoptcd by the respective directors of the Companies (adopted May 27, 1970 -The Ohio Casualty Insurance Company; adopted April 24, 1980 -West American Insurance Company): "RESOLVED that the signature of any officer of the Company authorized by the By-Lawto appoint attorneys in fact, the signature of the Secretary or any Assistant Secretary certifying to the correctness of any copy of a power of attorney and the seal of the Company may be affixed by facsimile to any power of attorney or copy thereof issued on behalf of the Company. Such signatures and seal arc hereby adopted by the Company as original signatures and seal, to bc valid and binding upon the Company with the same force and effect as though manually affixed." CERTIFICATE I, the undersigned Assistant Secretary of The Ohio Casualty Insurance Company and West American Insurance Company, do hereby certify that the foregoing power of attorney, the referenced By -Laws of the Companies and the above Resolution of their Boards of Directors are nd correct copies aart,are in 11 forceean effect on this date IN WITNESS WHEREOF, I have hereunto set my hand and the seals of the Companies this day of (�( fl Cil (Iss t 2 d a S-4300 Mark E. Schmidt, Assistant Secretary • • OHIO C*SGUIT/ aaaa/ BOND NUMBER: • • The Te:ibcrcompanies of Ohio Casualty Group 9450 Seward Riad. Fairficld, Chi 45014 PAW/ 0cas.com DISCLOSURE NOTICE OF TERRORISM INSURANCE COVERAGE Ager the September 11, 2001 collapse of the World Trade Center, some insurance and reinsurance companies excluded coverage for terrorist events from their policies. The economy was affected, to the extent that $15 billion dollars of new construction was cancelled or delayed. As an economic aid, the Federal Government has enacted the Terrorism Risk Insurance Act of 2002. As part of the act, we are required to notify you that subject to the terms and conditions as stated in your applicable bond forms, coverage for losses sustained by acts of terrorism is already included in your current bond. Effective November 26, 2002, under your existing bond, losses caused by certified acts of terrorism as defined in the Terrorism Risk Insurance Act of 2002 would be partially reimbursed by the Federal Government under a formula established by federal law. Under this formula, the Federal Government pay 90% of covered terrorism losses exceeding the statutorily established deductible paid by the insurance company providing the coverage. Under the current bond, that portion of your premium that is attributable to coverage for acts of terrorism is £4� We strongly urge you to contact your independent insurance agent if you have any questions regarding this matter. NP 72 64 01 03 Page I OF I • • NOTICE TO PROCEED TO: DATE: PROJECT: Walker Park Entry You are hereby notified to commence WOR K in accordance with the Contract dated on or before ,and you are to substantially complete the WORK within ninety consecutive calendar days thereafter and have the Work complete and ready for final payment within thirty consecutive calendar days thereafter. The date for Substantial completion is therefore . The date for final completion is therefore CITY OF FAYETTEVILLE, ARKANSAS City of Fayetteville By Park Planner ACCEPTANCE OF NOTICE Receipt of the above OTICE TO PROCEED is hereby acknowledged by this the day of By Title City of Fayetteville torelev , 2005. Page 00500-12 10/14/2005 Connie Edmonston C Submitted By • City of Fayetteville Staff Review Form City Council Agenda Items or Contracts 18 -Oct -05 City Council Meeting Date Parks and Recreation Division Action Required: • Operations /1065 yopg/4` o2o5 eencdraati0 Wad Per aftK Department Approval of a contract to construct Walker Park Entry with Midland Construction, Inc. in the amount of $64,026 with a 10% project contingency of $6,402.60 for a total cost of $70,428.60. $ 70,428.60 Cost of this request 2250.9255.5806.00 Acc unt Number 2003.1 Project Number Budgeted Item x $ 134,062.00 Category/Project Budget 5,374.00 Funds Used to Date $ 128,688.00 $ Remaining Balance Budget Adjustment Attached Park Beautifications Program Category / Project Name Park Development Program / Project Category Name Park Improvements Fund Name Department rector City or Finance and Internal Service Director Mayor Date 940 Ids 1- 3b -4i Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: Received in Mayor's Office ENTERED 9qn.c Comments: FAY E'I'I'EV I L.LE PARES • RECREATION • • MEMORANDUM Date: 9/29/05 To: Mayor Dan Coody and City Council Members Thru Gary Dumas, Director of Operations Connie Edmonston, Parks and Recreation Director From: Alison Jumper, Park Planner ,) Reference: Walker Park Entry Subject: Bid Award Background: Walker Park, one of the City's largest parks, was established in 1949 and has been the recreational center of many activities for south Fayetteville and the entire community. Recent completion of projects such as the Senior Citizen Community Center, Grinders Skate Park and the addition of trails have brought more attention to Walker Park. In effort to create a landmark for south Fayetteville and anchor the edge of the park a new park entry was proposed. Parks and Recreation contracted with EB Landworks, Inc. of Fayetteville in May, 2003. The budget for the project was 570,000. Funds were designated for the entry design and construction through the Park Beautification project. The project was originally bid as designed by the consultant and resulted in a total project cost of approximately S 140,000, which was not within the project budget. In effort to reduce the cost of the project, Park Staff re-evaluated the design and sought alternatives and donations for materials. Results included a donation of stone for the seat wall by Tom and Margaret Lewis, and Parks staff installation of plantings. The project was re -bid in October 2004. Due to an invalid bid, thc second bid was not acceptable and a third bid was necessary. After additional value engineering and meeting with the neighbors of Walker Park, thc project was re -bid in September 20005. Current Status: The project bids were opened on September 28, 2005. There were three responsive bidders and the low bid was from Midland Construction, Inc. in the amount of 564,880. The bid excluded irrigation installation and planting. Irrigation will be installed undcr a separate contract. Landscaping will be installed by Parks and Recreation Staff. Recommendation: Parks and Recreation staff recommends awarding the construction contract to Midland Construction, Inc. in the amount of 564,026 with a 10% project contingency of 56,402.60 for a total project cost of 570,428.60. Attachments: Construction Contract Bid Tabulation Photo cc: files • Telephone: 479.444.3469 1 City of Fayetteville Parks and Recreation Division 113 W. Mountain Street, Fayetteville, Arkansas 72701 E-mail: ajumper(a`ci.fayetteville.ar.us • • RESOLUTION NO. A RESOLUTION APPROVING A CONTRACT WITH MIDLAND CONSTRUCTION, INC. IN THE AMOUNT OF 564,026.00 FOR THE CONSTRUCTION OF THE WALKER PARK ENTRY; AND APPROVING A 10% PROJECT CONTINGENCY IN THE AMOUNT OF $6,402.60. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas, hereby approves a contract with Midland Construction, Inc. in the amount of $64,026.00 for the construction of the Walker Park Entry. A copy of the contract marked Exhibit "A" is attached hereto and made a part hereof. 4 • Section 2: That the City Council of the City of FavetteverAr cansas, hereby approves a 10% project contingency in the amorur f�6,A02.60. r PASSED and APPROVED this 18th day of Octobei, 2005 �:-)APPROVE If -o.-, J ii i/ A aj $ ATPFST: By: SOND TA SMITH, City Clerk COODY, Mayor FAYE' TEVI I..L F PARKS • RECREATION • • MEMORANDUM Date: October 20, 2005 To: Mayor Coody Thru: Gary Dumas, Director of Operations Connie Edmonston, Parks and Recreation Director From: Alison Jumper, Park Planner Subject: Braden Park Please find the attached contracts for the construction of the Walker Park Entry. This consent agenda item was approved at the October 18`" City Council meeting. The contracts have been signed by the contractor, Midland Construction, Inc. and are ready for your signature. City of Fayetteville PARKS AND RECREATION DIVISION 113 W. Mountain Street Fayetteville, Arkansas 72701 Telephone: 479-444-3469 E-mail: ajumper@ci.fayctteville.ar.us • • Section 00500 AGREEMENT BETWEEN CITY OF FAYETTEVILLE AND CONTRACTOR THIS AGREEMENT is dated as of the day of in the year 2005 by and between the City of Fayetteville, Arkansas (hereinafter called CITY OF FAYETTEVILLE) and (herein after called CONTRACTOR). CITY OF FAYETTEVILLE and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The work generally consists of the construction of a stone wall, site preparation, planting berm and lighting. Article 2. ENGINEER. The Project has been designed by City of Fayetteville Parks and Recreation Division 1455 South Happy Hollow Road Fayetteville, Arkansas 72701 will be hereinafter called PARKS AND RECREATION DIVISION PROJECT MANAGER and who is to act as CITY OF FAYETTEVILLE's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract documents. Article 3. CONTRACT TIME. 3.1. The Work for Walker Park Entry shall be substantially completed within 45 consecutive calendar days after the date when the Contract Time commences to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraphs 14.07.8 & C of the General Conditions within 60 consecutive calendar days after the date when the Contract Time commences to run. City of Fayetteville Page 00500-1 9/29/2005 • • 3.2. Liquidated Damages. CfrY OF FAYETTEVILLE and CONTRACTOR recognize that time is of the essence of the Agreement and that CITY OF FAYETTEVILLE will suffer financial loss if the Work is not completed within the times specified in paragraph 3.1 above, plus and extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense and difficulties involved in proving the actual loss suffered by CITY OF FAYETTEVILLE if the Work is not completed on time. Accordingly, instead of requiring any such proof, City of Fayetteville and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay CITY OF FAYETTEVILLE One hundred and fifty dollars ($150.00) for each day that expires after the time specified in paragraph 3.1 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse or fail to complete the remaining Work within the time specified in paragraph 3.1 for completion and readiness for final payment or any proper extension thereof granted by CITY OF FAYETTEVILLE, CONTRACTOR shall pay CITY OF FAYETTEVILLE Two hundred and fifty dollars (S250.00) for each day that expires atter the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. CITY OF FAYETTEVILLE shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined from the following Schedule of Values pursuant to paragraphs 4.1 and 4.2 below: 4.1. For all Work other than Unit Price Work, an amount equal to the sum of the established lump sums for each separately identified item of Lump Sum Work; and 4.2. For all Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of that item as indicated in this paragraph 4.2. City of Fayetteville Page 00500-2 9/29/2005 • PAYMENT ITEMS • 1 MOBILIZATION (1) L.S. 1 2 CONSTRUCTION STAKING L.S. 1 3 MAINTENANCE OF TRAFFIC L.S. 1 4 TEMPORARY SILT FENCE (3)(5) L.F. 55 5 SEED AND STRAW (4) AC 0.06 6 10" PVC PIPE (6) L.F. 58 7 12 ADS NYLOPLAST INLET W/ATRIUM GRATE EACH 1 8 SELECT FILL C.Y. 112 9 UNCLASSIFIED EXCAVATION (2) C.Y. 50 10 4' CONCRETE CAP L.F. 70 11 LABOR - WALL INSTALLATION L.F. 70 12 FOOTING FOR STONE WALL (10) L.F. 70 13 STEEL LETTERS, COMPLETE IN PLACE (8) L.S. 1 14 LIGHTING SYSTEM, COMPLETE IN PLACE L.S 1 15 ELECTRIC SERVICE COMPLETE IN PLACE (7) EACH 1 16 LANDSCAPE EDGING L.F 57 17 CONCRETE PADS FOR BENCHES S.F. 80 As provided in paragraph 11.03 of the General Conditions estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragaph 11.03.B of the General Conditions. Article 5. PAYMENT PROCEDURES CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions or as modified in the Supplementary Conditions. Applications for Payment will be processed by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in the General Conditions. 5.1. Progress Payments. CITY OF FAYETTEVILLE shall make progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER, on or about the 1st day of each month during construction as provided in paragraphs 5.1.1 and 5.1.2 below and SC -14.02 . All such payments will be measured by the schedule of values established in paragaph 2.07 of the General Conditions and based on the number of units completed in the case of Unit Price Work or, in the event there is no schedule of values, as provided in the General Requirements. 5.1.1. Prior to Substantial Completion, progress payments will he made in an amount equal to the percentage indicated below, but, in case, less the aggregate of payments previously made and less such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may withhold, in accordance with paragraphs 14.02.6.5 & 14.02.D of the General Conditions. City of Fayetteville Page 00500-3 9/29/2005 • • 90 percent of Work completed (with the balance of 10 percent being retainage), If Work has been 50 percent completed as determined by the PARKS AND RECREATION DIVISION PROJECT MANAGER, and if the character and progress of the Work have been satisfactory to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, CITY OF FAYETTEVILLE, on recommendation of PARKS AND RECREATION DIVISION PROJECT MANAGER, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage on account of work completed, in which case the remaining progress payments prior to Substantial Completion will he in an amount equal to 100 percent of the Work completed. 100 percent of materials and equipment not incorporated in the Work but delivered, suitably stored, and accompanied by documentation satisfactory to CITY OF FAYETTEVILLE as provided in paragraphs 14.02.1.5 & 14.02.D of the General Conditions. That is, if any such items are setup for that type payment in the Specifications. 5.1.2. Upon Substantial Completion, in an amount sufficient to increase total payments to CONTRACTOR to 98 percent of the Contract Price (with the balance of 2 percent being retainage), Tess such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may Withhold, in accordance with paragraphs 14.02.8.5 & 14.02.D of the General Conditions. 5.3 Final Payment. Upon final completion and acceptance of the Work in accordance with paragraphs 14.07.8 & C of the General Conditions, CITY OF FAYETTEVILLE shall pay the remainder of the Contract Price as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in said paragraphs 14.07.6 & C. Article 6. CONTRACTOR'S REPRESENTA DONS. In order to induce CITY OF FAYETTEVILLE to enter into this Agreement CONTRACTOR makes the following representations: 6.1. CONTRACTOR has examined and carefully studied the Contract Documents (including the Addenda listed in Article 7) and the other related data identified in the Bidding Documents including "technical data." 6.2. CONTRACTOR has visited the site and become familiar with and is satisfied as to the general, local, and site conditions that may affect cost, progress, performance, or furnishing of the Work. 6.3. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, perthrmance, and fumishing of the Work. 6.4. CONTRACTOR has carefully studied all reports of explorations and tests of subsurface City of Fayetteville Page 00500-4 9/29/2005 • • conditions at or contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site which have been identified in the Supplementary Conditions as provided in paragraph 4.02.A of the General Conditions. CONTRACTOR accepts the determination set forth in paragraph SC -4.02 of the Supplementary Conditions of the extent of the "technical data" contained in such reports and drawings upon which CONTRACTOR is entitled to rely as provided in paragraph 4.02 of the General Conditions. CONTRACTOR acknowledges that such reports and drawings are not Contract Documents and may not be complete for CONTRACTOR's purposes. CONTRACTOR acknowledges that CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all such additional supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the site or otherwise which may affect cost, progress, performance, or furnishing of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to the employed by CONTRACTOR and safety precautions and programs incident thereto. CONTRACTOR does not consider that any additional examinations, investigations, explorations, tests, studies, or data are necessary for the performance and furnishing of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. 6.5. CONTRACTOR is aware of the general nature of work to be performed by CITY OF FAYETTEVILLE and others at the site that relates to the Work as indicated in the Contract Documents. 6.6. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. 6.7. CONTRACTOR has given PARKS AND RECREATION DIVISION PROJECT MANAGER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents and the written resolution thereof by PARKS AND RECREATION DIVISION PROJECT MANAGER is acceptable to CONTRACTOR and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. Article 7. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between CITY OF FAYETTEVILLE and CONTRACTOR concerning the Work consist of the following: 7.1. This Agreement (pages 1 to 7, inclusive). City of Fayetteville Page 00500-5 9/29/2005 • • 7.2. Performance and Payment Bonds, (Exhibits A and B respectively). 7.3. Certificates of Insurance, (Exhibit C). 7.4. Documentation submitted by CONTRACTOR prior to Notice of Selection (Exhibit D). 7.5. General Conditions (pages 1 to 42, inclusive). 7.6. Supplementary Conditions (pages 1 to 13 inclusive). 7.7. Specifications consisting of Divisions 1 through 16 as listed in table of contents thereof. 7.8. Addenda numbers one through two, inclusive. 7.9. One set of drawings (not attached hereto) consisting of: a cover sheet and additional sheets numbered two through eleven with each sheet bearing the following general title: Walker Park Entry. 7.10. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: 7.10.1. Notice to Proceed 7.10.2 All Written Amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to paragraph 3.04 of the General Conditions. The documents listed in paragraphs 7.2 et seq above are attached to this Agreement (except as expressly noted otherwise above). There are no Contract Documents other than those listed above in this Article 7. The Contract Documents may only be amended, modified or supplemented as provided in paragraph 3.04 of the General Conditions. Article 8. MISCELLANEOUS. 8.1. Terms used in the Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 8.2. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not he assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 8.3. CITY OF FAYETTEVILLE and CONTRACTOR each binds itself, it partners, successors, City of Fayetteville Page 00500-6 9/29/2005 • • assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 8.4. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon stricken provision or part thereof with a valid and enforceable provision that comes as close as possible expressing the intention of the stricken provision. 8.5. Changes, modifications, or amendments in scope, price or fees to this contract shall not be allowed without a prior formal contract amendment approved by the Mayor and the City Council in advance of the change in scope, cost or fees. 8.6. Freedom of Information Act. City contract and documents prepared while performing city contractual work are subject to the Arkansas Freedom of information Act. If a Freedom of Information Act request is presented to the City of Fayetteville, CONTRACTOR will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25-19-101 et. seq.) Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. City of Fayetteville Page 00500-7 9/29/2005 • 1 IN WITNESS WHEREOF, CITY OF FAYETTEVILLE and CONTRACTOR have signed this Agreement in quadruplicate. One counterpart each has been delivered to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, and two counterparts have been delivered to CONTRACTOR. All portions of the Contract Documents have been signed, initialed, or identified by CITY OF FAYETTEVILLE and CONTRACTOR or identified by PARKS AND RECREATION DIVISION PROJECT MANAGER on their behalf. This Agrcement will be effective on , 2004 (which is the Effective Date of the Agreement). CITY OF FAYETTEVILLE: City of Fayetteville CONTRACTOR: By: By: Mayor Title [CORPORATE SEAL] [CORPORATE SEAL] Attest * Attest If a Corporation. attest by the Secretary. Address for giving notices Address for giving notices (If CITY OF FAYETTEVILLE is a public body, attach License No. evidence of authority to sign and resolution or other documents Agent for service of process: authorizing execution of Agreement.) (If CONTRACTOR is a corporation, attach evidence of authority to sign) City of Fayetteville Page 00500-8 9/29/2005