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Ordinance No. 11,804 ORDINANCIE NO. 11,804 AN ORDINANCE' OF T111" CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORISING 11 1131 PAYMENT OF ONE 11UNDRED'I'l 1IRTY-SEVENTI-IOUSAND NINE FIUNDRED SIXTY-FIVE AND 501100 DOLLARS($137,965.50)TO KRAFTSMAN, L-P,, FOR THE PURCHASE AND INSTALLATION OF SPLASH PAD ATI1ELI..,Y PARK THROUGH 'ri-IE TEXAS LOCAL GOVERNME'NT PURCHASING COOPERATIVF' (BuY BOARD); MAKING arl-11 R. PROVISIONS RELATED THERI".TO; AND PROVIDING FOR THE EFFECTIVE DATE "I'l IERF',01". WHEREAS, the City of Baytown is as member of the cooperative purchasing program established under Sections 271.082 and 271,083 of the'l"exas Local Govermnent Code; and WHEREAS,the Texas Local(Jovernumit Purchasing Cooperative's Buy Board Program is such a program, allowing municipalities to purchase products and/or services iu an efficient, cast effective, and competitive procurement method; and WHEREAS, the City of Baytown in making as purchase under a state contract through such cooperative purchasing program satisfies state laNv requiring alunicipalities to seek conilictilive bids for tile purchase of the iteni; NOWTI If: REFOR17 1311-1' IT ORDAINED 13Y THE' CITY COUNCIL OFTI-11",CITY OF BAY1'OWN, TF1XAS. Section I: That the City Council of the City of Baytown hereby authorizes the paynicrit of ONE HUNDRED THIRJ'Y-SEVEN 'I I 110USAND NINE HUNDRED SIXTY-FIVE AND 501100 DOLLARS ($137,965.5(l)to Kraftsman, L.P., for the purchase and installation of a splash pad at Pelly Park through the Texas Local Government Purchasing Cooperative (Buy Board) subjccl to terms and conditions acceptable to the City Manager and City Attorney. Section 2: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY']'[IOUSAND AND NO/100 DOLLARS($5(I,000.00)or less, provided that the original contract price may not be increased by more than twenty-five percent(25%)or decreased by more than twenty-five percent (25%),without the consent of the contractor to such decrease. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED,Rl'.-"AD an(] PASSED by the affirm ative vote ofth "'i yCouncil of(lie City of Baytown this the 2 1 (lay of November, 2011 -7 I. DONCi 7RI-07�', Iayor 4 0. A'I- LE erk APPROVED AS TO FORM: D-4- i6WA—C 10 RA M I—RE Z--,—SR'.',-­City th rney f1 • 0 0 AGREEMENT BETWEEN CITY AND CONTRACTOR FOR BUYBOARD PURCHASE STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT is entered into by and between the City of Baytown(the"City")and Kraftsman, L.P. (the "Contractor")for the Pelly Park Splash Park Project. 1. SCOPE OF WORK: This scope of work shall entail the complete turnkey construction of a splash park and picnic table area at Pelly Park. The turnkey job will consist of all necessary parts, materials, equipment, freight, delivery, installation, labor, travel time, mileage, cleanup, and any other related costs to complete the project(the"Work"). The work shall include,but not be limited to the following: 1 Qty PrOdUCt Description Size,, Weight Color Unit Price Ext.Pr ice 1 W010 Mushroom Maze (no Activator). 30 $4,500.00 $ 4,500.00 By:Water Odyssey. 1 W012C Water CagJm,Water Conserving. 21 8,880.00 8,880.00 By:Water Odyssey. 2 W071 Water Flower M.By:Water Odyssey. 20 1,600.00 3,200.00 2 W085 Splash-O-LatorTM.By:Water 14 1,580.00 3,160.00 Odyssey. 2 W093 Water WeavJm.By:Water Odyssey 28 3,690.00 7,380.00 1 W097C-5 Over N'UnderTM,Water Conserving 10 6,400.00 6,400.00 (5 nozzles).By:Water Odyssey. 2 W218 Bug Buggle water feature,4'to 10' 16 1.790.00 3,580.00 throw,By:Water Odyssey. 11 features with 2 Splash O Lators paired,2 Water Flowers paired,2 Bug Buggles paired,2 Water Weaves paired,Water Cages on 2 Valves. 8 Valves required. Total Estimated Design Flow Rate: 139 GPM Water distribution Manifold, wall mounted 4" Stainless Steel header with pressure gauge, drain valve, 2" water hammer arrestor, (2) 4" FPT 1 WM-08-P connections, (1) 4" NTT plug, (8) 13,939.00 13,939.00 discharge assemblies each with (1) true union ball valve and(1)24 VAC solenoid valve with 15' pre-wired cord.By:Water Odyssey. 1 W009-W Wireless Touch&Go TM Vibration 3,400.00 3,400.00 Bollard.By:Water Odyssey Dynamic Sequence Controller,with I DSC-0-8-W 32 wireless inputs and 8 outputs 7,700.00 7,700.00 mounted in a NEMA4x housing. By: Water Odyssey. Custom Aluminum above-ground enclosure for manifold,valves, controller,and Pressure Regulator. Does not include concrete foundation 60H72W24D- 60Hx72 Mill 1 ALUM or drain pit for feature drain valves Wx24D Finish 3,950.00 3,950.00 (by others).Enclosure is constructed of.125"thick 5052-H32 Aluminum with a Mill Finish,with lockable door and ventilation louvers.Capable City of Baytown,Texas Pelly Park Splash Park Project Product of containing 10 valve manifold& pressure regulator,by Kraftsman. 2"Cast Bronze Pressure Reducing 1 PRV2 Valve,25—75 psi,to 160 GPM, 2" 30lbs Bronze 3,325.00 3,325.00 female iron pipe threaded ends Trench Drain,20 Linear Feet,per 2D 1 TRENCH DRAIN 4,500.00 4,500.00 plan Provide and install appropriate 2" 1 Back Flow line Backflow prevention Equipment 2„ 3,600.00 $3,600.00 (similar to Bergeron Park installation) One day of technical support 1 TRAIN 1 Personnel on site to assist with 0.00 0.00 balancing features,system start up, and four hours of staff training. Spray Play Pad,5"thick concrete pad with slope to drains,rebar 914 SPLASHDECK reinforced,light broom finished to 1 sq ft 10.25 9,368.50 help prevent the possibility of slippage(no coloring or top coat) 5"thick concrete pad for one 32'x26' adjoining Picnic Pavilion,rebar 832 CONCSRB reinforced,light broom finished to 10.25 8,528.00 help prevent the possibility of slippage.(no coloring or top coat) I PERMIT Processing Building Permits 450.00 450.00 PROCESSING Soil borings,test report and all I CONSTRUCTION related Construction Documentation 12,000.00 12,000.00 DOCUMENTS together with Engineered stamped plans 1 INSURANCE 500.00 500.00 I MA BONNnANCE 1,200,00 1,200.00 PERFORMANCE 1 AND PAYMENT 4,139.00 4,139.00 BONDS Subtotal 113.699.50 Shipping&Handling 3,600.00 Discount -18,641.00 Equipment Subtotal 98,658.50 Tax 0 Install 39,307.00 Total 137,965.50 a) Site Work: Site preparation, grading and fill materials are not included. Site is to be within 1" of final grade by others. Proper drainage of the area is to be included prior to the start of construction by Contractor. b) Utilities: Except as otherwise provided herein, City shall provide connections for utilities as follows: 2 t City of Baytown,Texas Pelly Park Splash Park Project 1. Electrical service panel and connection of 120v, 20 amp electrical service to Spray Pad Dynamic Sequence Controller. 2. City water meter (Backflow device provided and installed by Contractor) and water line connection to Spray Pad water distribution valve manifold. A 2" water line is to be provided (the minimum water supply to manifold is to be 162 GPM,with a minimum of 35 PSI). 3. Drain line to within 5' of edge of Spray Pad. Minimum of 8"size is to be provided. Contractor will connect drainage boxes from pad to drainage line at edge of pad. c) Installation: 1. Installation of Spray Pad feature foundations, setting features, water supply piping to features from manifold (manifold is to be located within 30' of Spray Pad), low voltage wiring between activator bollard and controller, drain lines to edge of pad,per standard Kraftsman construction techniques. 2. Installation fee noted hereinabove does not include concrete SplashDeck or Kraftkoat surfacing. d) Start-up Training: 1. Service includes one day of technical support personnel on site to assist with balancing of features,system start up,and 4 hours of staff operations training. 2. CONTRACT DOCUMENTS: The contract documents shall consist of the following documents, which are listed in the order of priority of interpretation should there be a conflict: a) Addenda to this Agreement, b) Agreement, c) Plans,if any, d) Technical Specifications,and e) Performance,Payment and Maintenance Bonds. No amendments to this Agreement shall be effective and binding until it is reduced to writing and signed by the duly authorized representatives of both parties. Contract Documents shall be distributed by the Contractor to its subcontractors as necessary and must be kept and be accessible at the work site. The plans and specifications must be returned to the City on request at the completion of the work. 3. CITY'S REPRESENTATIVE: The project shall be administered by the City's Representative, whose duties shall include,but not be limited to,the following: a) periodically review and inspect the Contractor's work; b) issue instructions and directives to the Contractor, with which Contractor is obligated to comply, provided such directions and instructions are consistent with the obligations of this Agreement; c) make visits to the site at intervals appropriate to the various stages of construction, appropriate to observe as an experienced and qualified design professional the progress and quality of the Work; and d) keep City informed of the progress of the Work. 4. COMMUNICATIONS: The Contractor shall forward all communications, written or oral, to the City through the City's Representative. Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended,or if delivered at or sent by telecopier,overnight or facsimile transmission or if delivered or sent by certified or registered mail to the last business address as indicated herein. Each party will have the right to change its business address by giving at least thirty (30) calendar days' written notice to the other party of such change.Notice given by mail shall be deemed given three(3)calendar days after the date of the mailing thereof. 3 ti City of Baytown,Texas Pelly Park Splash Park Project 5. COMMENCEMENT AND COMPLETION OF WORK: Once the bond and the certificate of insurance have been submitted to and approved by the City, the Contractor shall perform the work in the most expedient manner possible. The work shall commence as soon as possible,but no later than ten(10)calendar days of the date specified in the notice to proceed. Completion of this contract shall be within one hundred twenty (120) calendar days of the date specified in the notice to proceed. Time is of the essence in this Agreement and the date of beginning and the date for final completion of work as specified in this Agreement are essential conditions of this Agreement. Contractor has submitted its quote in full recognition of the time required for the completion of this Work taking into consideration all factors, including, but not limited to, the average climatic range, industry conditions, and liquidated damages. At final completion of the Work, a certificate of final completion shall be issued by the Director of Parks and Recreation. 6. WORK. The Contractor shall complete the work described in the contract documents in strict conformity therewith. The Contractor shall: a) provide and pay for all materials, supplies, machinery, equipment, tools, superintendents, laborers, insurance, fuel, transportation, and all other facilities and utilities necessary for the execution and completion of the Work; b) secure and pay all permits, fees, licenses, and inspections necessary for the proper execution and completion of the work; c) give all notices required by law and comply with all laws, ordinances, regulations, codes, rules and lawful orders of all public authorities bearing on the performance of the work; d) pay sales,consumer,use and similar taxes as legally required;and e) provide shop drawings and schedules to the City's Representative and secure the City's Representative's approval of the same, which approval shall not relieve Contractor from responsibility for errors. 7. EXTENSIONS AND DELAYS: a) EXTENSIONS. Within seven (7) calendar days of any act or incident that the Contractor reasonably believes may justify an extension of time for final completion, the Contractor may apply in writing for an extension of such time, submitting therewith all written justification as may be required by City. Thereafter, the City's Representative, within seven (7) calendar days after receipt of a written request for an extension of time from the Contractor, which is supported by all requested documentation, shall then grant or deny such written request; provided that the request for an extension is not based upon weather conditions. Should an extension be requested within the seven (7) calendar-day period based upon weather conditions, the CITY'S REPRESENTATIVE shall grant or deny such a written request upon Final Completion of the Work based upon any variation from the average climatic range. b) DELAYS. The Contractor, in undertaking to complete the work within the time herein fixed, has taken into consideration and made allowance for all hindrances and delays incident to such work, whether growing out of delays in securing material or workmen or weather or otherwise. No charge whatsoever shall be made for hindrances or delays from any cause whatever, except where the work is stopped by order of the City or by extraordinary causes. Any extension shall not exceed the time actually lost by Contractor. 8. PAYMENT: The Contractor agrees to perform the Work for the unit prices specified in the Invitation to Bid, which the City shall pay upon final completion and acceptance of the Work, subject to any adjustment allowed herein. The Contractor shall never be entitled to anticipated or lost profits on the deleted or reduced portion of a job whether bid on a unit price or lump sum basis. The Contractor shall not have the right to obligate the City to make any payments to another party. 4 City of Baytown,Texas Pelly Park Splash Park Project If the actual amount of the work to be done and the materials to be furnished differ from the estimate, then payment shall be for the actual amount of accepted work done and materials incorporated into the project. Reduction in the scope or quantity of work on unit price items shall merely reduce the number of units. No changes shall be made and no bills for changes, alterations,modifications, deviations, and extra orders shall be recognized or paid for except upon a written change order signed by the Contractor and the City. Any change shall not affect the validity of any bonds. Any requests by the Contractor for a change in original Payment Amount shall be made prior to the beginning of the work covered by the proposed change or the right to payment for Extra Work shall be waived. 9. INDEPENDENT CONTRACTOR: In all activities or services performed hereunder, the Contractor is and at all times shall remain an independent contractor, not an agent or employee of the City. The Contractor, as an independent contractor, shall be solely responsible for the final product contemplated under this Agreement. It shall be the responsibility of the Contractor to furnish a completed work product that meets the requirements of the City. Any additional work, material, or equipment needed to meet the intent of this specification shall be supplied by the Contractor without claim for additional payment,even though not specifically mentioned herein. 10. DISORDERLY EMPLOYEES: The Contractor agrees to employ only orderly and competent persons, skillful in the performance of the type of work required under this contract, to do the Work. The Contractor shall retain personal control and shall give its personal attention to the faithful prosecution and completion of the work and fulfillment of this Agreement. The Contractor shall appoint and keep on the project during the progress of the Work a competent Project Superintendent-Manager and any necessary assistants, all satisfactory to City to supervise its employees and subcontractors. Adequate supervision by Contractor is essential to the proper performance of the Work, and lack of such supervision shall be grounds for suspending the operations of the Contractor and declaring Contractor in breach of this Agreement. Whenever the City or the City's Representative shall inform the Contractor in writing that any person or persons performing any of the requisite work are, in the opinion of the City or the City's Representative, incompetent, unfaithful or disorderly, such person or persons shall be discharged and shall not again be employed to perform any work on the project without prior written consent of the City or the City's Representative. 11. NATURE OF THE WORK: It is understood and agreed that the Contractor has, by careful examination, satisfied itself as to the nature and location of the work, the confirmation of the ground and soil, the nature of any structures, including surface and subsurface utilities,the character,quality and quantity of the material to be utilized, the character of equipment and facilities needed for and during the prosecution of the work, the time needed to complete the work, Contractor's ability to meet all deadlines and schedules required by this Agreement, the general and local conditions, and all other matters that in any way affect the work under this Agreement. 12. PROGRESS OF WORK: The Contractor may prosecute its work at such time and sessions, in such order of precedence, and in such manner as shall be most conducive to the economy of the project; provided; however, that the order and time of prosecution shall be such that the work shall be finally completed as a whole, in accordance with this Agreement. Further,the parties shall be subject to the following: a) The City reserves the right to enter the property by such employee(s) or agent(s) as it may elect for the purpose of inspecting the work; b) The Project Superintendent/Manager shall coordinate its activities and work with the City. If required by the City, the Contractor shall provide a weekly schedule of planned activities, which may be reviewed on a daily basis. In the case of any completed work or material that is to be covered over by other material,the Project Superintendent/Manager shall provide notice to the City no later than twenty- 5 City of Baytown,Texas Pel ly Park Splash Park Project four (24) hours before the anticipated cover-up of the previously completed work or material. In the event, however, that such notice is provided on a Friday the City will have until the following Monday afternoon to approve the previously completed work and its cover-up and the Contractor shall take no action until such approval is given by City; c) The Contractor shall submit, at such time as may reasonably be requested by City,further schedules that shall list the order in which the Contractor proposes to carry on the work with dates at which the Contractor will start the several parts of the work and the estimated dates of completion of the several parts;and d) The Contractor shall attend additional meetings called by the City or the City's Representative upon twenty-four(24)hours'notice unless otherwise agreed by the parties. 13. SITE CONDITIONS AND MANAGEMENT: Throughout the progress of the work,the Contractor shall keep the working area free from debris of all types, and remove from premises all rubbish, resulting from any work being done by it. At the completion of the work, the Contractor shall leave the premises in a clean and finished condition. Any failure to do so may be remedied by the City or its designee and charged back to the Contractor. Where the Contractor is working around or in existing structures, it shall verify conditions at the site, including, but not limited to, roads, easements, door openings, passages, and other existing site conditions. Any items constructed or manufactured off-site or outside of buildings shall be done so that they are not too bulky for existing facilities. The Contractor shall provide special apparatus as required to handle any such items. All special handling equipment charges shall be at the Contractor's sole cost and expense. Where gas,water,and sewer lines exist in the vicinity,the Contractor shall assume that service connections exist to each building and exercise appropriate caution during excavation. It is the Contractor's responsibility to notify various owners in advance when excavation is to be done in the vicinity of their underground lines and structures. Damage to such underground lines and structures, whether or not shown on the plans, shall be the responsibility of the Contractor and it shall bear the cost of necessary repair or replacement of damaged parts. The Contractor shall be responsible for verifying all conditions at the site prior to performing the Work. As such, the Contractor understands and agrees that it shall be responsible for conditions encountered at the site, including, but not limited to, (i) subsurface or otherwise concealed physical conditions which differ from those indicated in the Contract Documents, and (ii) unknown physical conditions, which differ from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents. No additional compensation shall be afforded to the Contractor for differing site conditions. Any information provided by the City, including, but not limited to geotechnical information, shall be for the Contractor's convenience only and the City does not guarantee the accuracy or correctness of any information so provided. 14. LAYOUT OF WORK: The Contractor shall lay out all work in a manner acceptable to the City in accordance with applicable codes and ordinances of the city, county and state. The City's Representative will review the Contractor's layout of all structures and any other layout work done by the Contractor, but this review does not relieve the Contractor of the responsibility of accurately locating all work in accordance with the specifications and Contract Documents. 15. CONTRACTOR'S STRUCTURES: Whenever the Contractor erects, installs,or uses additional structures on the property for the storage, maintenance of materials or use of employees and subcontractors, such structure shall not damage the property and the Contractor shall maintain sanitary conditions in and about such structures at all times in a manner satisfactory to the City. The Contractor shall provide and maintain necessary sanitary conveniences for the use of laborers on the work. Such conveniences shall be properly secluded from public observation and shall be in a location approved by the City's Representative. The City may charge the 6 City of Baytown,Texas Pelly Park Splash Park Project Contractor for any damage or injury to the City, its property or third persons as a result of the location or use of any of Contractor's structures. 16. MATERIALS: a) Materials or work described in words which when so applied have well-known technical or trade meaning shall be held to refer to such recognized standards. All work shall be done and all materials furnished in strict conformity with the Contract Documents and recognized industry standards. b) Materials and supplies utilized in the final product that will be turned over to the City shall be new and of good quality. Upon request,the Contractor shall supply proof of quality and manufacturer. c) No refurbished, reconditioned or other previously utilized materials or supplies will be used without the signed authorization of the City. d) Where the product is to be turned over to the City, the Contractor may utilize substitutes of equal quality and function as provided for in the specifications. e) The City shall have full and final decision over the use of substitute materials and supplies. f) The Contractor shall certify to the City that all materials installed are free from asbestos containing material. 17. OBSERVATION,INSPECTIONS,TESTS: a) The City and the City's Representative reserve the right to enter the property by such employee(s) or agent(s) as he may elect for the purpose of inspecting the work. In accordance therewith, the Contractor shall supply the City or the City's Representative,upon request,with any keys or information necessary for the City or the City's Representative to have access to the property. The City and the City's Representative shall have the right to enter the property or location of the work for the purpose of performing such collateral work as the City or the City's Representative deems necessary or appropriate. b) The City and the City's Representative shall have the right, at any reasonable time, to observe and test the work. The Contractor shall make necessary arrangements and provide proper facilities and access for such observation and testing at any location wherever the work or any part thereof is in preparation or progress. The Contractor shall ascertain the scope of any observation that may be contemplated by the City or the City's Representative and shall give ample notice as to the time each part of the work will be ready for such observation. c) The City or the City's Representative may reject any work found to be defective or not in accordance with the Contract Documents, regardless of the state of its completion or the time or place of its discovery regardless of whether the City or the City's Representative has previously accepted the work through oversight or otherwise. Neither observations by the City or the City's Representative nor inspections, tests, or approvals made by the City or the City's Representative, or persons authorized under this Agreement to make such inspections, tests, or approvals, shall relieve the Contractor from its obligation to perform the work in accordance with the requirements of the Contract Documents. d) The City or the City's Representative upon approval of the City may require the Contractor to remove, dismantle or uncover work completed. In the event that the Contractor has failed to perform the work as required by the specifications,or drawings,or other Contract Documents,Contractor shall assume and pay the costs of repair and restoration of the work required to be removed,dismantled,or uncovered. In the event that the Contractor has performed the work correctly to specifications, City shall assume and pay the cost of restoration of the construction to the point that the City has required the work to be uncovered or dismantled. 18. WORK STOPPAGE: The City or the City's Representative shall have the right to order the work of the Contractor or any subcontractor wholly or partially stopped immediately under any one or more of the following conditions: a) the work maybe ordered stopped immediately if in the judgment of the City or the City's Representative, any of the materials furnished or the work being done is not in strict accordance with this Agreement; b) the work may be ordered stopped immediately until any objectionable person or material is removed from the premises;or 7 1 City of Baytown,Texas Pelly Park Splash Park Project c) the work may be ordered stopped immediately if any portion of the work is being performed so as to create a hazardous condition. Such stoppage or suspension shall neither invalidate any of the Contractor's performance obligations under this Agreement, including time of performance and deadlines therefor,nor will extra charge be allowed the Contractor by reason of such stoppage or suspension. 19. REJECTED WORK: The City or the City's Representative, in its discretion,may reject any and all work that is found to be defective or deemed not in conformity with this Agreement. The City or the City's Representative may reject said work or any portion thereof regardless of the stage of its completion or time or place of discovery of such errors. Further, the City or the City's Representative may reject said work regardless of whether the City or the City's Representative has previously accepted the work through oversight or otherwise. Neither observations by the City or the City's Representative nor inspections, tests, certificates or approvals made by the City or the City's Representative, or persons authorized under this Agreement to make such inspections, tests, certificates or approvals, shall relieve the Contractor from its obligation to perform the work in accordance with the requirements of this Agreement and the other Contract Documents. In the event that any work or any part thereof is rejected by the City or the City's Representative, the Contractor shall, at its sole expense and after receipt of written notice thereof from the City or the City's Representative remove such material and rebuild or otherwise remedy such work so that it shall be in full compliance with this Agreement and the other Contract Documents,as follows: a) At the option of the City, the Contractor may be required to remedy such work so that it shall be in full compliance with this Agreement. As soon as possible but not later than seven (7) calendar days after receipt of notice from the City or the City's Representative or such other period of time specified by the City's Representative in writing, the Contractor shall, at its sole expense, replace or repair all rejected work or materials so as to conform with this Agreement. b) If the City or the City's Representative in its discretion deems it inexpedient to correct work damaged or not done in accordance with this Agreement,an equitable deduction for the Payment Amount may be made by the City. c) If the Contractor does not remove or replace any rejected work within the time specified in Section in subsection (a) hereof, then the City or the City's Representative may have the work removed, replaced or repaired at the Contractor's expense. 20. SUBCONTRACTORS: The Contractor shall retain personal control and give its personal, utmost attention to the faithful prosecution and completion of the work and fulfillment of this Agreement. The subletting of any portion or feature of the work or materials required in the performance of this Agreement shall not relieve the Contractor from its obligations to the City under this Agreement. All subcontractors must be approved by the City's Representative prior to performing any work on the Project. If the City's Representative judges any subcontractor to be failing to perform the work in strict accordance with the drawings and specifications, the Contractor shall discharge the same, but this shall in no way release the Contractor from its obligations and responsibility under this Agreement. Every subcontractor shall be bound by the terms and provisions of this Agreement as far as applicable to its work. The Contractor shall be fully responsible to the City and the City's Representative for the acts and omissions of its subcontractors. The Contractor shall be solely and exclusively responsible for compensating any of the Contractor's employees, subcontractors, materialmen and/or suppliers of any type or nature whatsoever. The Contractor shall further be exclusively responsible for ensuring that no claims or liens of any type are filed against any property owned by the City arising out of or incidental to the performance of any services performed pursuant to this Agreement. In the event a statutory lien notice is sent to the City or the City's Representative, the Contractor shall, where no payment bond covers the work, upon written notice from the City or the City's Representative, immediately obtain bond at the Contractor's sole expense and hold the City harmless from any losses that may result from the filing or enforcement of any said lien notice. In the event that the Contractor defaults in the provision of the bond, the City may withhold such funds as are necessary to ensure the payment of such claim until litigation determines to whom payment shall be made. 8 City of Baytown,Texas Pelly Park Splash Park Project 21. POSSESSION AND USE OF COMPLETED PORTIONS: The City shall have the right to take possession of and use any completed or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions may not have expired, but such taking possession and use shall not be deemed an acceptance of any work not completed in accordance with the Contract Documents. 22. PERMITS AND CERTIFICATES: The Contractor shall secure and pay for all necessary permits, licenses and/or certificates issued by the state, municipality or other authorities and submit the same to the City's Representative. The City may withhold any payments due under this Agreement or that may become due under this Agreement until the necessary permits, licenses and/or certificates are procured and delivered. The Contractor will not, however, be required to pay for any permit fees for permits to be issued by the City, which will be waived in conjunction with this Agreement. 23. FAULTY WORKMANSHIP: Neither the final payment nor any acceptance nor certificate nor any provision of this Agreement shall relieve the Contractor of any responsibility for faulty workmanship or materials. At the option of the City, as provided in this Agreement, the Contractor shall remedy any defects thereto and pay for any damage to other work resulting therefrom,which may appear after final acceptance of the work. 24. WARRANTY: Upon acceptance of the work by the City, the Contractor warrants for a period of one (1) calendar year from the date thereof that all materials provided to the City under this Agreement shall be new unless otherwise approved in writing by the City's Representative and that all materials and work will be of good quality,free from faults and defects, and in conformance with this Agreement. All work not conforming to these requirements, including,but not limited to,substitutions not properly approved and authorized,may be considered defective. This warranty is in addition to any rights or warranties expressed or implied by law and consumer protection claims arising from misrepresentations by the Contractor. Where more than a one (1)year warranty is specified for individual products, work or materials, the longer warranty shall govern. This warranty obligation shall be covered by any performance or payment bonds tendered in compliance with this Agreement. 25. DEFECTIVE WORK DISCOVERED DURING WARRANTY PERIOD: If within one (1) calendar year after the date of acceptance by the City of designated equipment or within such longer period of time as may be prescribed by law or by the terms of any applicable special warranty required by this Agreement,any of the work is found or determined to be defective, including obvious defects, or otherwise not in accordance with this Agreement,the Contractor shall correct it PROMPTLY. a) After receipt of written notice from the City to begin corrective work,the Contractor shall promptly begin the corrective work. This obligation shall survive the termination of this Agreement. The guarantee shall not constitute the exclusive remedy of the City,nor shall other remedies be limited to either warranty or guarantee period. b) If within seven (7) calendar days after the City has notified the Contractor of a defect, failure or abnormality in the work, the Contractor has not started to make the necessary corrections or adjustments, the City is hereby authorized to make the corrections or adjustments, or to order the work to be done by a third party. The cost of the work shall be paid by the Contractor. c) The cost of all materials, parts, labor, transportation, supervision, special instruments, and supplies required for replacement or repair of parts and for correction of defects, shall be paid by the Contractor or by the surety. d) The one (1)calendar year warranty shall cover all work, equipment,and materials that are part of this project, whether or not a warranty is specified in the individual section prescribing that particular aspect of the work. 26. LIQUIDATED DAMAGES: It is expressly understood and agreed by the parties that time is of the essence to this Agreement and that the date set for the final completion of the work described herein is an essential condition of this Agreement. It is further understood and agreed that the date for final completion of the work is reasonable dates for the completion of the project, taking into consideration all conditions, including, but not limited to, the average climatic change and conditions and usual industrial conditions prevailing in this locality. If the 9 City of Baytown,Texas Pelly Park Splash Park Project Contractor should neglect, fail, or refuse to complete the work required for final completion within the date specified in this Agreement, or any proper extension that is granted in writing by the City, then the Contractor hereby agrees, as a part of the consideration for the awarding of this Agreement, that the City may withhold permanently from the Contractor's total Payment Amount the sum of FIVE HUNDRED AND NO/100 DOLLARS ($500.00) for each and every calendar day that the Contractor is in default after the date stipulated for final completion,not as a penalty,but as liquidated damages for the breach of the Agreement. The amount of liquidated damages for the Contractor's failure to meet the deadline for final completion is fixed and agreed on by the Contractor because of the impracticability and extreme difficulty in fixing and ascertaining actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be the damages that the City would sustain and may, at the option of the City,be retained from final payment or any other payment made hereunder. 27. WITHHOLD PAYMENT AND CONTRACTOR'S PAYMENT: Regardless of any bond, the City may, on account of subsequently discovered evidence, withhold payment or nullify the whole or part of any acceptance or certificate to such extent as may be necessary to protect the City from loss on account of: a) Defective work or work that is not in strict accordance with the terms of this Agreement, the Specifications, or the other Contract Documents; b) Claims filed or reasonable evidence indicating probable filing of claims, as determined at the sole discretion of the City; c) Failure of the Contractor to make prompt payments to subcontractors or for material or labor or materialmen; d) Claims filed or reasonable evidence, as determined at the sole discretion of the City, of damage to another Contractor or a third party,including adjacent property owners; e) Reasonable doubt, as determined at the sole discretion of the City, that the work can be completed for the unpaid balance of the contract amount; f) Reasonable indication, as determined at the sole discretion of the City, that the work will not be completed within the contract time; g) Liquidated damages and administrative charges,as determined by the City at its sole discretion; h) Charges made for repairs to the Contractor's defective work or repairs made by the City to correct damage to other property; i) Claims filed or reasonable evidence as determined at the sole discretion of the City indicating unremedied damage to property owned by the City; or j) Other amounts authorized under this Agreement. Whenever the Contractor and/or its surety is required to make a payment under this Agreement, it is expressly understood and agreed that such payment shall be due within 15 days after receipt of an invoice therefore unless expressly stated otherwise. Payments required by Contractor and/or its surety, which are not timely made, shall accrue interest at a rate of one percent per month. 28. CHARGES FOR INJURY OR REPAIRS: a) REPAIRS. The Contractor shall be liable and responsible for any damages incurred or repairs made necessary by reason of its work and/or caused by it. Repairs of any kind required by the City or the City's Representative will be made and charged to the Contractor by the City. The Contractor shall take the necessary precautions to protect any areas adjacent to its work. The work specified consists of all work, materials and labor required by the City or the City's Representative to repair any damage to the property of the City,including,but not limited to,structures,roadways,curbs,parking areas and sidewalks,to an equal or better condition than before such property was damaged. b) INJURY. The Contractor shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in Construction" of the Associated General Contractors of America except where incompatible with Federal, State, or Municipal laws or 10 City of Baytown,Texas Pelly Park Splash Park Project regulations. The Contractor shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety devices. The safety precautions actually taken and their adequacy shall be the sole responsibility of the Contractor,acting at his discretion as an independent Contractor. 29. PAYMENT OF EMPLOYEES AND FOR MATERIALS: Wage rates paid on this project shall not be less than specified in the schedule of general prevailing rates of per diem rates attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Should the Contractor or any of its subcontractors fail to pay the general prevailing rate to a worker performing work on the project, the Contractor shall pay to the City SIXTY AND NO/100 DOLLARS ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the wage rates stipulated in this Contract. The Contractor and each of the subcontractors shall pay each of its employees engaged in work on the project under this Agreement in full(less mandatory legal deductions), in cash or by check readily cashable, without discount, no less than once every two (2) weeks. The City or City's Representative may, prior to final acceptance of the project, require the Contractor to execute an affidavit in legal form stating that all bills for labor,materials, and incidentals incurred have been paid in full and that there are no claims pending of which the Contractor has been notified. 30. INSURANCE REQUIREMENTS: Contractor shall procure and maintain at its sole cost and expense for the duration of the Agreement, insurance against claims for injuries to person or damages to property which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, volunteers,employees or subconsultants. a. Contractor's insurance coverage shall be primary insurance with respect to the City, its officials, employees and agents. Any insurance or self-insurance maintained by the City, its officials, employees or agents shall be considered in excess of Contractor's insurance and shall not contribute to it. Further, Contractor shall include all subconsultants, agents and assigns as additional insured under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverage's for subconsultants and assigns shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: 1. Commercial General Liability ■ General Aggregate: $1,000,000 ■ Products&Completed Operations Aggregate: $1,000,000 ■ Personal&Advertising Injury: $1,000,000 ■ Per Occurrence: $500,000 ■ Fire Damage: $50,000 ■ Coverage shall be at least as broad as ISO CG 00 01 10 93 ■ No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. 2. Business Automobile Policy ■ Combined Single Limits: $500,000 ■ Coverage for"Any Auto" 3. Workers' Compensation ■ Statutory Limits ■ Employer's Liability: $500,000 ■ Waiver of Subrogation required. 11 City of Baytown,Texas Pelly Park Splash Park Project b. The following shall be applicable to all policies of insurance required herein. l. Insurance carrier must have an A.M. Best Rating of B+: VIII or better. 2. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Liability policies must be on occurrence form. 4. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty(30)days' prior written notice by certified mail,return receipt requested,has been given to the City. 5. The City, its officers, agents and employees are to be added as Additional Insured to all liability policies. 6. Upon request and without cost to the City, a certified copy of all insurance polices and/or certificates of insurance shall be furnished to the City. 7. Upon request and without cost to the City, loss runs (claims listing) of any and/or all insurance coverage's shall be furnished to the City. 8. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the City,and shall be carried in the name of Contractor. 9. The Contractor shall comply with Section 110.110 of Title 28 of the Texas Administrative Code,which is incorporated herein by this reference for all intents and purposes. However,it is expressly understood and agreed that in the event of a conflict between the provisions of this section and the provision contained in Section 110.110 of Title 28 of the Texas Administrative Code,the more stringent shall control 31. BONDING: Both the Contractor and the City agree that the Contractor will execute performance, payment and maintenance bonds, each in the sum of one hundred percent (100%) of the total contract price, in standard forms for this purpose, guaranteeing faithful performance of the contract, faithful performance of work during the warranty period and faithful payment to all persons supplying labor and materials or furnishing any equipment in the execution of the Agreement. It is agreed that this Contract shall not be in effect until such bonds are furnished and approved by the City. The cost of the premium for the bonds have been included in the Contractor's quote. The bonds shall be executed by the Contractor and by a corporate surety, the qualifications of which shall be as required below. The bond required herein shall remain in effect throughout the term of this Agreement and for a period of one (1) year after the completion of the work and shall be extended for any warranty work to cover the warranty period. If at any time during the execution of this Agreement or in the required period thereafter,the bond becomes invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond, which bond shall assure payment as required. Such replacement bond(s) shall be issued by a surety acceptable to the City. Changes and alterations in the work herein contemplated, or any part thereof, does not affecting the validity of this Agreement and any accompanying bond. 32. PROJECT UNDER CONTRACTOR'S CONTROL: Any injury or damage caused to the Contractor or the project prior to and including the date of final completion caused by an act of God,natural cause, a party or entity not privy to this Agreement,or other force maj eure shall be assumed and borne by the Contractor. 33. COMPLIANCE WITH LAWS: Contractor shall comply with all Federal and State laws and City Ordinances and Codes applicable to the Contractor's operation under this contract. Violations will be corrected at Contractor's expense. The Contractor will pay for all applicable royalties, permits, and license fees and defend all suits and claims of infringements of any rights. 12 i City of Baytown,Texas Pelly Park Splash Park Project 34. SAFETY PRECAUTIONS: Safety precautions at the site are a part of the construction techniques and processes for which the Contractor shall be solely responsible. The Contractor is solely responsible for handling and use of hazardous materials or waste, and informing employees of any such hazardous materials or waste. The Contractor has the sole obligation to protect or warn any individual of potential hazards created by the performance of the work set forth herein. The Contractor shall, at its on expense, take such precautionary measures for the protection of persons,property and the work as may be necessary. The safety of the public and convenience of traffic shall be regarded as prime importance during construction. a) During normal construction, the Contractor shall not hinder or inconvenience travel of streets or intersecting alleys for more than two blocks at any one time. The Contractor shall use warning signs as necessary to adequately protect the traffic. If the City or other appropriate entity approves a street closure, the Contractor shall furnish and maintain at each end of the closed section,at all intersecting streets within the section,and in all intersecting streets at a distance of one block on each side of the work, properly worded signs and barricades announcing the closure to the public. The Contractor shall not be allowed to start any operation that will close a street or streets until the required barricades are in place. Barricades and warning signs shall meet the specifications as shown in the plans and/or specifications. Warning lights shall be kept burning from sunset to sunrise. When a street is to be closed,the Contractor must notify the City's Engineering and Public Works Departments 48 hours in advance of the closure. b) The Contractor shall remove, as soon as practicable, accumulated rubbish, surplus dirt, etc., from the construction site,thereby opening each block for public use. Use by the public,however,of any portion of a street where work has been done, shall not constitute in itself acceptance of the work done therein. The Contractor shall backfill and shape trenches across street intersections or driveways to permit safe usage at night. If trenches must be left open for any length of time, the Contractor shall span with wooden mats or bridges to permit traffic flow and prevent injury to the public. When driveways are cut, the City may direct the immediate placement of mats for ingress and egress of vehicles if, in the City's Representative or City's opinion,undue hardship to property owners would otherwise result. c) The Contractor shall not block ditches, inlets, fire hydrants, etc. The Contractor shall provide temporary drainage where necessary or as directed by the City's Representative or the City. d) When persons or equipment are working in streets open to moving traffic, or if otherwise ordered by the City's Representative, the Contractor shall furnish flagmen for direction of traffic to protect both the moving traffic and the Contractor's operations. The flagmen shall wear an orange fluorescent vest over their normal work clothes. The Contractor shall be held responsible for all damages to property,personal injuries and/or death due to failure to use safety devices of any type or nature that may be required to protect or warn any individual of potential hazards created by the performance of the work;and when any property damage is incurred,the damaged portion shall immediately be replaced or compensated for by the Contractor at its own cost and expense. 35. RELEASE: By this Agreement, the City does not consent to litigation and expressly revokes any consent to litigation that it may have granted by the terms of this Agreement, any charter, or applicable state law. The Contractor assumes full responsibility for the work to be performed and releases,relinquishes, and discharges the City,its officers,agents and employees from all claims,demands and causes of action of every kind and character for any injury to, including, but not limited to, death of any person (whether third persons, the Contractor, or employees of either of the parties). This release includes the cost of defense of any claim and any loss of or damage to property (whether property of the parties or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's work to be performed under this Agreement whether or not said claims,demands,and causes of action are covered in whole or in part by insurance. 36. INDEMNITY AGREEMENT: THE CONTRACTOR HEREBY AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY 13 .t City of Baytown,Texas Pelly Park Splash Park Project KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS' FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR LOSS OF USE OR REVENUE, OR FOR DAMAGE TO ANY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE ACTUAL OR ALLEGED MALFUNCTION, DESIGN OR WORKMANSHIP IN THE MANUFACTURE OF EQUIPMENT, THE FULFILLMENT OF CONTRACT, OR THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES UNDER THIS CONTRACT, SUCH INDEMNITY SHALL APPLY WHERE THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE IN PART FROM (I) THE JOINT NEGLIGENCE OF THE CITY AND THE CONTRACTOR, AND/OR THEIR RESPECTIVE OFFICERS, AGENTS AND/OR EMPLOYEES OR (II) THE SOLE NEGLIGENCE OF THE CONTRACTOR, ITS OFFICERS, AGENTS AND EMPLOYEES. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONTRACTOR AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONTRACTOR TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCE OF (I) THE CITY'S OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE WITH THAT OF THE CONTRACTOR OF THE INJURY, DEATH OR DAMAGE AND/OR (II) THE CONTRACTOR'S OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS THE SOLE CAUSE OF THE INJURY, DEATH, OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE IN INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. IN THE EVENT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE CONTRACTOR AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY COUNSEL ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED FOR HEREIN SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT, 37. ABANDONMENT: In case the Contractor should abandon, fail or refuse to resume work within ten (10) days after written notification from the City or the City's Representative, or if the Contractor fails to comply with the orders of the City or the City's Representative, when such orders are consistent with the Contract Documents, then,and in that case,where performance and payment bonds exist,the sureties on these bonds shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the Contractor. After receiving said notice of abandonment, the Contractor shall not remove from the work any machinery, equipment, tools, materials, or supplies then on the job, but the same, together with any materials and equipment under contract for the work, may be held for use on the work by the City or the surety on the performance bond, or another Contractor in completion of the work; and the Contractor shall not receive any rental or credit therefor, it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. 38. BREACH OF CONTRACT: The City shall have the right to declare the Contractor in breach of this Agreement for cause when the City determines that this Agreement is not being performed according to its understanding of the intent and meaning of this Agreement. Such breach shall not in any way invalidate,abrogate or terminate the Contractor's obligation under this Agreement. 14 I I"M City of Baytown,Texas Pelly Park Splash Park Project 39. TERMINATION: If this Agreement is terminated for cause, the City shall have the right but shall not be obligated to complete the work either itself or by others; and to this end, the City shall be entitled to take possession of and use such equipment and materials as may be on the job site and to exercise all rights, options and privileges of the Contractor under its subcontracts, purchase orders or otherwise; and the Contractor shall promptly assign such rights,options,and privileges to the City. If the City elects to complete the work itself or by others, pursuant to the foregoing, then the Contractor will reimburse the City for all costs incurred by the City's Representative, (including, without limitation, applicable, general and administrative expenses, and field overhead, and the cost of necessary equipment, materials and field labor) in correcting work by the Contractor that fails to meet the requirements of the Contact Documents. After receipt of a notice of termination, whether with or without cause, the Contractor shall, in good faith and to the best of its ability, do all things necessary in light of such notice to assure the efficient and proper close-out of the terminated work (including, but not limited to,the protection of the City's property). Among other things the Contractor shall,except as otherwise directed or approved by the City,do the following: a) Stop the work on the date and to the extent specified in the notice of termination; b) Place no further orders or subcontracts for services, equipment, or material, except as may be necessary for completion of such portion of the work as is not terminated; c) Immediately terminate all orders and subcontracts to the extent that they relate to the performance of the work terminated by the notice of termination; d) Assign to the City, in the manner and to the extent directed by it, all of the right, title and interest of the Contractor under the orders or subcontracts so terminated in which case,the City shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; e) With the approval of the City, settle all outstanding liabilities and all claims arising out of such termination, orders and subcontracts; f) Deliver to the City, when directed by the City, all documents and all property, which if the work had been completed, the Contractor would have been required to account for or deliver to the City, and transfer title to such property to the City to the extent not already transferred; and/or g) Take actions necessary or as otherwise directed by the City's Representative or the City for the protection and preservation of the work. In the event of such termination, there shall be an equitable reduction of the Payment Amount to reflect the reduction in the work. Costs incurred after the effective date of the notice of termination shall not be treated as reimbursable costs unless they relate to carrying out the unterminated portion or taking close-out measures. 40. TERMINATION FOR CAUSE: Without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City,upon giving the Contractor five (5) days' prior written notice,shall be entitled to terminate this Agreement in its entirety at any time for the following: a) If the Contractor becomes insolvent, commits any act of bankruptcy, makes a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors; b) If a receiver,trustee or liquidator of any of the property or income of the Contractor shall be appointed; c) If the Contractor shall fail to prosecute the work or any part thereof with diligence necessary to ensure its progress and completion as prescribed by the time schedules; d) If within five (5) calendar days after written notice thereof from the City or the City's Representative, the Contractor shall fail to remedy any defective work or work that does not conform to the requirements of this Agreement, specifications, and other Contract Documents, or any other default under any of the terms, provisions, conditions, or covenants contained in this Agreement or any other current agreement between the Contractor and another City for similar construction work on other property; or e) If the Contractor shall fail for any reason other than the failure by the City to make payment called upon when due. In the event of such termination for cause, the Contractor shall only be paid its reimbursable costs incurred prior to the effective date of the termination and shall not be entitled to receive any further payment hereunder and shall 15 (Opp" ..... City of Baytown,Texas Pelly Park Splash Park Project be further subject to any claim that the City's Representative or the City may have against the Contractor under the provisions of this Agreement or as a matter of law, including the refund of any overpayments of reimbursable costs or other payments. 41. TERMINATION FOR CONVENIENCE: The performance of the work may be terminated at any time in whole or in part, by the City's Representative for its convenience. Any such termination shall be effected by delivery to the Contractor of a written notice (notice of termination) specifying the extent to which performance of the work is terminated and the date upon which termination becomes effective. If, for whatever reason, this contract is terminated for cause, which is later determined not to exist, the parties agree that the contract will be deemed to be terminated for convenience. In the event of termination for convenience, the Contractor shall only be paid its reimbursable costs incurred prior to the effective date of the termination notice and shall not be entitled to receive any further payment hereunder and shall be further subject to any claim the City may have against the Contractor under other provisions of this Agreement or as a matter of law, including the refund of any overpayment of reimbursable costs and/or other payment. 42. COMPLETION AFTER ABANDONMENT OR TERMINATION: In the event that the Contractor has abandoned the project or the City has terminated the contract for cause and where there is no performance bond provided or where there is a surety but such surety, within seven (7) calendar days after the notice demanding completion is sent,fails to commence the completion and diligent prosecution of the work in compliance with this Agreement, then the City may AT ITS OPTION provide for completion of the work in either of the following elective manners: a) The City may employ such force of men and use such machinery,equipment,tools,materials,and supplies as said City may deem necessary to complete the work and charge the expense of such labor, machinery, equipment, tools, materials, and supplies to said Contractor, and expense so charged shall be deducted and paid by the City out of such monies as may be due, or that may thereafter at any time become due to the Contractor under and by virtue of this Agreement. In case such expense is less than the sum which would have been payable under this contract,if the same had been completed by the Contractor,then said Contractor and/or its surety hereby waives any and all privileges, rights, and claims to receive the difference. In case such expense is greater than the sum which would have been payable under this contract, if the same had been completed by said Contractor, then the Contractor and/or its surety shall,within seven (7)calendar days, pay the amount of such excess to the City. b) The City, under sealed bids, after notice published as required by law at least twice in a newspaper having general circulation in the city, may let the contract for the completion of the work under substantially the same terms and conditions which are provided in this contract. In case any increase in cost to the City under the new contract as compared to what would have been the cost under this contract, such increase shall be charged to the Contractor and the surety shall be and remain bound therefor. However, should the cost to complete any such new contract prove to be less than what would have been the cost to complete under this contract, the Contractor and/or its surety hereby waives any and all privileges, rights and claims to such excess. In the event of abandonment by the Contractor, the Contractor shall assign to the City, in the manner and to the extent directed by the City, all of the right, title, and interest of the Contractor in and to any and all materials located on the property and any subcontracts for work to be performed on the property; in which case the City shall have the right to settle or pay all claims arising out of the termination of such orders and subcontracts. 43. DAMAGES: Without prejudice to any other legal or equitable right or remedy that the City would otherwise possess hereunder or as a matter of law, the City upon giving the Contractor five (5) days' prior written notice shall be entitled to damages for breach of contract,upon but not limited to the following occurrences: a) If the Contractor shall fail to remedy any default after written notice thereof from the City or the City's Representative; or b) If the Contractor shall fail for any reason other than the failure by the City to make payments called upon when due; or 16 City of Baytown,Texas Pelly Park Splash Park Project c) If the Contractor commits a substantial default under any of the terms, provisions, conditions or covenants contained in this Agreement. 44. INVALIDITY: If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court or other tribunal of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace the respective provisions or provisions of this Agreement with the legal terms and conditions approximating the original intent of the parties. 45. ENTIRE AGREEMENT: It is understood that this Agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrangements or understandings between the parties relating to the subject matter. There are no oral understandings, statements, promises or inducements contrary to the terms of this Agreement. This Agreement cannot be changed or terminated orally. No verbal agreement or conversation with any officer, agent, representative or employee of the City, either before or after the execution of this Agreement, shall affect or modify any of the terms or obligations hereunder. 46. AMENDMENT: No amendments to this Agreement shall be effective and binding until they are reduced to writing and signed by duly authorized representatives of both parties. 47. TEXAS LAW: This Agreement has been made under and shall be governed by the laws of the State of Texas. 48. PLACE OF PERFORMANCE: The place of making and the place of performance for all purposes shall be Baytown,Harris County,Texas. 49. NON-WAIVER: Failure of any party, at any time, to enforce a provision of this Agreement shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement or part hereof or the right of the City or the City's Representative thereafter to enforce each and every provision hereof. No term of this Agreement shall be deemed waived or breach excused unless the waiver shall be in writing and signed by the party claimed to have waived the same. Furthermore, any consent to or waiver of a breach will not constitute consent to or waiver of or excuse of any other different or subsequent breach. Nothing contained in this Agreement or any of the Contract Documents shall be deemed to limit or waive the sovereign immunity of the City 50. HEADINGS: The article headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. 51. GENDER AND NUMBER: Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless context requires otherwise. 52. CONSTRUCTION OF AGREEMENT: The parties agree that this Agreement shall not be construed in favor of or against any party on the basis that the party did or did not author this Agreement. 53. AUTHORITY TO ENTER CONTRACT: Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations and/or business entities. 54. AGREEMENT READ: The parties acknowledge that they have read,understand and intend to be bound by the terms and conditions of this Agreement. 17 City of Baytown,Texas Pelly Park Splash Park Project 55. ASSIGNMENT: Contractor may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of the City. 56. SUCCESSORS AND ASSIGNS: This Agreement shall inure to the benefit of and be binding upon the Contractor and its successors and assigns. 57. MULTIPLE ORIGINALS: It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. 58. SEVERABILITY: If any section, subsection,paragraph, sentence, clause,phrase or word of these requirements or specifications shall be held invalid, such holding shall not affect the remaining portions of these requirements and the specifications and it is hereby declared that such remaining portions would have been included in these requirements and the specifications as though the invalid portion had been omitted. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on thay of No(Jewt buL— ,2011,the date of execution by the City Manager of the City of Bayto KRA Signature) M,a-r�-- (Printed Name) (Titl CITY OF BAY TOWN ATT lks �r S,b OBERT D. LEIPE ,City Man ger ETI Y H, C* V P APPR6D ORM: AC O RAMIREZ, SR.,City Atto y 18 ell City of Baytown,Texas Pelly Park Splash Park Project STATE OF TEXAS § COUNTY OF HARRIS § Bef re me on this day personally appeared Ma& ,) �PQI?J� in his/her capacity as L.IZ of Kraftsman,L.P.,on behalf of such business entity, known to me; proved to me on the oath of ;or proved to me through his/her current {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument,and acknowledged to me that he/she executed that instrument for the purposes and consideration therein expressed. I Given under my hand and seal of office this Lky of /W yb t b-�—fi ,2011. Notary Public in and for the State of Texas �P� TONIA D.BENNETT !CQ /� Nary PubNc My commission expires: STATE OF TEXAS LiV corm a 16,Pot5 19