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Item 4F
CITY OF SOUTH LAKE MEMORANDUM September 28, 2009 To: Shana Yelverton, City Manager From: Chris Tribble, Director of Community Services Subject: Approve a Tender Agreement with Great American Insurance Company for the Completion of Liberty Park at Sheltonwood and Royal & Annie Smith Park in the Amount of $55,090.30. Action Requested: Approve a Tender Agreement with Great American Insurance Company for the Completion of Liberty Park at Sheltonwood and Royal & Annie Smith Park in the Amount of $55, 090.30. Background Information: On June 3, 2008, the City received bids for the construction of Liberty Park and Royal & Annie Smith Park. On August 5, 2008, a construction contract was awarded to the lowest bidder, Robinson Landscape & Construction. Robinson began having difficulty hiring contractors and purchasing material due to financial obligations on other projects. Robinson Landscape & Construction did not complete the parks before the agreed deadlines. The City was informed of non-payment by subcontractors and subsequently informed the bonding company, Great American Insurance Company (GAIC). Staff recommended termination to City Council and the contract with Robinson Landscape & Construction was terminated on August 4, 2009. GAIC negotiated a completion contract with Dean Construction and GAIC has agreed to compensate the City for the additional cost to complete the parks as well as the associated liquidated damages. Financial Consideration: Dean Construction anticipates completion of both parks by January 2010. 1. Original Contract Amount with Robinson Construction = $1, 021, 343 2. Amount paid to Robinson Construction = $740,523 4F-i Shana Yelverton, City Manager Meeting Date — October 6, 2009 Page 2 of 2 3. Net amount of change orders and liquidated damages = ($50,816) 4. Remaining Balance = $230,004 5. Proposed cost to complete work from Dean Construction = $285, 094 6. Amount of GAIC liability to be paid to the City including liquidated damages and change orders = $55,090.30 7. GAIC will continue to be responsible for work completed by Robinson Construction 8. Remaining work will be the responsibility of the City and the Completion Contractor Strategic Link: This item is linked to the City's Strategy Map related to the focus area of Quality Development and meets the corporate objectives to Invest to Provide and Maintain High Quality Public Assets and to Provide Attractive and Unique Spaces for Enjoyment of Personal Interests. Citizen Input/ Board Review: Not applicable at this time. Legal Review: The attached agreement has been reviewed and approved by the City Attorney. Alternatives: Alternatives may include: ■ Approve tender agreement with GAIC as presented. ■ Approve agreement with GAIC with input as desired. ■ Not approve agreement. Supporting Documents: ■ Tender Agreement with Great American Insurance Company ■ Completion Construction Contract with Dean Construction Staff Recommendation: Approve a Tender Agreement with Great American Insurance Company for the Completion of Liberty Park at Sheltonwood and Royal & Annie Smith Park in the Amount of $55, 090.30. 4F - 2 Tender Agreement This Tender Agreement ("Agreement") is made and entered into by and between the City of Southlake, Texas ("Obligee") and Great American Insurance Company ("Surety") and is made effective as of the day of September, 2009. Recitals: WHEREAS, Robinson Landscape & Construction, L.L.C. ("Principal") entered into a written construction contract with Obligee dated August 4, 2008, in the original amount of $1,021,343.00 ("Original Contract"), to perform certain construction work on the project known as the Royal and Annie Smith Park and Liberty Park located in Southlake, Tarrant County, Texas ("Project"); and WHEREAS, Principal and Surety issued a Performance Bond No. 4076972 ("Performance Bond") and a Payment Bond No. 4076972 ("Payment Bond"), both in the penal sum of $1,021,343.00, in connection with the Original Contract and Project; and WHEREAS, by letter to Principal dated August 14, 2009, Obligee formally declared Principal in default under the Original Contract and terminated Principal's right to complete the Original Contract, and has thereafter called upon Surety to fulfill its obligations to Obligee as surety under the terms of the Performance Bond; and WHEREAS, Obligee and Surety desire to arrange for completion of the work on the Project under the terms and conditions of said Original Contract and this Agreement; and WHEREAS, Surety has obtained a proposal from Dean Construction Inc. d/b/a Dean Construction ("Completion Contractor"), which can conform with the terms of said Original Contract, said proposal being in the amount of $285,094.00 for the completion of the work under the Original Contract; and WHEREAS, Surety, in accordance with the terms of the Performance Bond and Texas law, has tendered Completion Contractor and its proposal for the completion of work under the Original Contract to Obligee and has requested that the Obligee enter into a contract with Completion Contractor, on Obligee's standard contract form, whereby said Completion Contractor will agree to complete all of the work to be performed under the Original Contract in return for the payment of the amount of $285,094.00 ("Completion Contract"), and will furnish to Obligee a statutory performance bond and a statutory payment bond, each on forms acceptable to Obligee and each in the amount of $285,094.00; and WHEREAS, Obligee represents and warrants to Surety and Completion Contractor that the Original Contract balance as of the date of this Agreement is $230,003.70 ("Original Contract Balance"), and that the Original Contract Balance will be committed and applied to pay Completion Contractor for the work performed under the Completion Contract without any set -offs, offsets, back charges or deductions arising prior to the date of this Agreement, provided that the Payment Bond shall remain in effect as provided in Section 6 hereof; and WHEREAS, Surety has agreed to make payment to Obligee in the amount of $55,090.30, representing the difference in the amount of the Original Contract Balance and the Completion Tender Agreement - Page I of 5 Contract price, as a cash settlement of Obligee's claims and demands asserted against the Performance Bond, which amount shall be paid to Obligee within ten (10) days of Obligee's execution of this Agreement and delivery of same to Surety; and WHEREAS, the tender proposal and cash settlement offer is acceptable to Obligee, and the parties desire to document the terms of such Agreement as set forth herein below. Agreement: NOW, THEREFORE, for and in consideration of the mutual covenants, promises, releases, assignments and payments recited herein, the parties hereto have agreed and do hereby agree as follows: 1. The above Recitals are considered substantive terms and conditions of this Agreement, not mere recitals in the interpretation of this Agreement, and are incorporated into the body of this Agreement as if set forth at length herein. 2. Obligee shall enter into a Completion Contract with Completion Contractor on Obligee's standard contract form to fully perform all work remaining in the Original Contract in accordance with the Original Contract documents. The amount of the Completion Contract shall be $285,094.00. The Completion Contract shall require Completion Contractor to provide to Obligee a performance bond and a payment bond, each on forms acceptable to Obligee and each in the amount of $285,094.00. Obligee represents and warrants to Surety and Completion Contractor that the Original Contract Balance will be committed and applied to pay Completion Contractor for the work performed under the Completion Contract without any set -offs, offsets, back charges or deductions arising prior to the date of this Agreement. 3. Surety shall pay to Obligee the amount of $55,090.30, representing the difference in the amount of the Original Contract Balance and the Completion Contract price, as a cash settlement of Obligee's claims and demands asserted against the Performance Bond, which amount shall be paid to Obligee within ten (10) days of Obligee's execution of this Agreement and delivery of same to Surety. 4. In the event of any default by Completion Contractor and/or termination under the terms of the Completion Contract, Obligee agrees to make demand upon and look solely to Completion Contractor and its surety for performance of their obligations, and Obligee shall make no further demands and assert no further liability against Surety for completion or correction of Completion Contractor's work. Obligee agrees that Surety shall have no responsibility or obligation for the completion or correction of the work to be performed under the Completion Contract. Obligee does hereby expressly release, acquit and forever discharge Surety and its agents, attorneys, consultants, successors, and assigns of and from any and all claims, rights, demands and causes of action of any kind or nature whatsoever which Obligee has or may ever claim to have, past, present or future, against Surety under and/or by reason of the Original Contract and its Performance Bond, save and except any defects in the work previously performed by Principal as of the date Obligee terminated Principal's right to complete the Original Contract on the Project, for which Surety agrees to remain responsible to repair only through the one year warranty period provided in the Original Contract subject to the terms of the Performance Bond. The parties agree that Surety's liability is limited to the penal sum of the Performance Bond ($1,021,343.00) less the amount of Tender Agreement - Page 2 of 5 Surety's payment to Obligee of $55,090.30 in Paragraph 3 above (the "Revised Penal Sum"). Under no circumstances shall Surety's liability exceed the Revised Penal Sum. Nothing in this Agreement shall alter or increase Surety's liability beyond the Revised Penal Suns.. 5. Obligee hereby expressly subrogates Surety to, and assigns, conveys, sets over and transfers to Surety, to the extent of Surety's loss, any and all rights, interests, causes of action, demands and/or claims which Obligee has, had or may ever be entitled to assert against Principal in connection with the Original Contract and expressly agrees that Surety may pursue such rights, interests, causes of action, demands and/or claims in Obligee's name or otherwise, and may prosecute and pursue such rights, interests, causes of action, demands and/or claims to the extent that Surety, in its sole discretion, deems advisable, including, but not limited to, the signing and filing of a proof of claim in any bankruptcy proceeding involving Principal. When Obligee has complied with the provisions of this Tender Agreement, Surety agrees that Surety will release Obligee from any and all causes of action, demands and/or claims which Surety has against Obligee in connection with the Original Contract as of the date of this Tender Agreement, save and except any defenses of Surety to any claims which may be asserted by Obligee. 6. Surety agrees that its Payment Bond shall continue to remain in full force and effect in accordance with its original tenor, except that it is expressly agreed by and between Surety and Obligee that the scope and coverage of said Payment Bond shall not apply to or cover the Completion Contractor and/or any of its subcontractors, sub -subcontractors or materialmen for any work performed and/or materials delivered after the date Obligee terminated Principal's right to complete the Original Contract on the Project. 7. It is understood and agreed that the payments and promises mentioned herein are not to be construed as an admission of liability on the part of Surety, all such liability being expressly denied. S. This Agreement constitutes the entire agreement between the parties hereto and supersedes any and all prior discussions, agreements, arrangements and/or understandings by and between them, all of which are merged into this Agreement. This Agreement shall not be changed, amended or altered in any way except in writing and signed by both Obligee and Surety. Obligee and Surety acknowledge that there have been no oral, written or other agreements of any kind as a condition precedent to or to induce the execution and delivery of this Agreement. Any written or oral discussions conducted prior to the effective date of this Agreement shall not in any way vary or alter the terms of this Agreement. 9. This Agreement is solely for the benefit of Obligee and Surety, with the exception of Obligee's commitments to Completion Contractor set forth herein. Obligee and Surety do not intend by any provision of this Agreement to create any rights in any third -party beneficiaries nor to confer any benefit upon or enforceable rights under this Agreement or otherwise in any party other than Obligee and Surety, with the exception of Obligee's commitments to Completion Contractor set forth herein. Specifically, Obligee and Surety acknowledge that nothing in this Agreement shall create or increase the rights of any third -party claimants under the Payment Bond or the liabilities or obligations of Surety thereunder. 10. This Agreement shall be governed by the laws of the State of Texas. Venue for any disputes arising under or related to this Agreement shall be in Tarrant County, Texas. Tender Agreement - Page 3 of 5 11. The parties and their signatories hereto warrant that each has the power and authority to execute this Agreement. The parties hereto have voluntarily executed this Agreement based upon their independent investigation. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties, but if for any reason any provision is unenforceable or invalid, such provision shall be deemed severed from this Agreement and the remaining provisions shall be carried out with the same force and effect as if the severed portion had not been a part of this Agreement. 12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. OBLIGEE: CITY OF SOUTHLAKE, TEXAS Its: Mayor Date Signed: STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on this day of , 20_, by , Mayor of the City of South take, Texas, a Texas municipal corporation, on behalf of said municipal corporation. Notary Public, State of Texas Tender Agreement - Page 4 of 5 SURETY: GREAT AMERICAN INSURANCE COMPANY Its: Div 1,5 t vt-44, Vie-e fvs s a Date Signed: q U1, to STATE OF M A WL.gAl�) § COUNTY OF V PFQ- Rb § This instrument was acknowledged before me on this 9Z day of iP 7 , 20 by bQUGL45__k `t3c7�c icgtON4 L V iP of Great American Insurance Company, an Ohio corporation, on behalf of said corporation. Notary P bIz e of MAi YL4 l!CLCCN?SlGreaiAmerican}173.13iTeiiderAgreemenl LibertyPark Snrilh Park Robinson (W).doc HAWM COUNTY HARE OF MAXftI� 4WyCOmmIssion Eg ires. 0e Tender Agreement - Page 5 of 5 Law Offices of Robert M. Fitzgerald ATTORNEYS AND COUNSELORS 1219 FM 314 Van, Texas 75790 (903)963-7550 FAX (903) 963-7551 Robert M. Fitzgerald Via Overnight Mail Mr. Wade Adkins Taylor, Olson, Adkins, Sralla, Elam 6000 Western Place, Suite 200 Fort Worth, TX 76107 Re: Principal Surety Obligee Project Bond No. Claim No RMF No. Dear Mr. Adkins: Email: roblitzoafo.net September 23, 2009 Robinson Landscape & Construction., L.L.C. Great American Insurance Company City of Southlake, Texas Royal and Annie Smith Park and Liberty Park 407 69 72 940 506257-01- 173.13 We enclose duplicate originals of the proposed Tender Agreement ("Agreement") executed by the Surety in the above -referenced matter. We also enclose duplicate originals of Dean Construction's proposal to complete the work under the contract in the amount of $285,094.00, which Dean Construction indicates should be incorporated into the completion contract with the City. Please present this proposed Agreement to the City Council for consideration and approval and advise me as soon as the Council has acted. We also enclose a self addressed, stamped envelope for your use in returning to us a fully -executed duplicate original of the Agreement. If you have any questions, please call me. Very truly yours, r� Robert M. Fitzgerald RMF/jm cc: Mr. Gary Ballinger (Via Fax @a 888-290-3706 - w/o enclosures) CI SHAREDMCLIENTS1Crear American ll73,13L40im.l¢r. I. doc SECTION 005213 EJCDC STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE WHEREAS, Robinson Landscape & Construction, LLC ("Robinson") entered into a written construction contract with the City of Southlake (the "City") dated August 4, 2008, in the original amount of $1,021,343.00 ("Original Contract") to perform certain construction work on the project known as the Royal and Annie Smith Park and Liberty Park, located in Southlake, Tarrant County, Texas; and WHEREAS, by letter to Robinson dated August 14, 2009, the City of Southlake formally declared Robinson in default under the Original Contract and terminated Robinson's right to complete the Original Contract; and WHEREAS, the City desires to arrange for completion of the work on the project under the construction specifications of the Original Contract and this Agreement; and WHEREAS, the City has obtained a proposal from the Dean Electric, Inc, d/b/a Dean Construction ("Completion Contractor"), who can conform with the construction specifications of said Original Contract, said proposal being for completion of the work under the Original Contract; and WHEREAS, the City and the Completion Contractor desire to enter this Standard Form of Agreement on the Basis of a Stipulated Price for the Contractor to complete the Project under the terms and conditions stated therein; NOW THEREFORE: THIS AGREEMENT is dated as of the day of in the year 2009 by and between the City of Southlake (hereinafter called OWNER) and Dean Electric, Inc., d/b/a Dean Construction hereinafter called CONTRACTOR. OWNER AND CONTRACTOR, inconsideration 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 is generally described as Liberty Park and Royal & Annie Smith Park and shall include: pavements, structures, drainage, earthwork, landscaping, playground, and other improvements. Article 2. ARCHITECT. The Project has been designed by Halff and Associates, Inc., who is hereinafter called ARCHITECT and who is to act as OWNER's representative, assume all duties and responsibilities and have the rights and authority assigned to ARCHITECT in the Contract Documents in connection with completion of the work in accordance with the Contract Documents. In the General Conditions and other Contract Documents, the Architect is sometimes referred to as the "Engineer." Article 3. CONTRACT TIME. 3.1 The Improvements shall be substantially completed by 90 calendar days from the notice to proceed. 3.2 Liquidated Damages. OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in Paragraph 3.1 above, plus any extensions thereof allowed in accordance with Article 12 of the General 4779 005213-1 Conditions. They also recognize the delays, expense and difficulties involved in proving in a legal or -mediation proceeding the actual loss suffered by OWNER if the Work, is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER One Hundred Sixty ($160.00) dollars for each day that expires following the date specified in Paragraph 3.1 for Substantial Completion until the Work is substantially complete. Article 4. CONTRACT PRICE. 4.1 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents in current funds as follows: Attached is an Exhibit to this Agreement is a copy of the Invitation to Bid and Instruction to Bidders (Lump Sum) and the CONTRACTOR"S Proposal to Great American Insurance Company (Bid Form) which is attached hereto and made a part hereof by reference. [CONTRACTOR's Bid may be attached as an exhibit to avoid lengthy retyping of unit price schedules, formulae for escalation of prices, information as to alternatives, etc.) Article 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions and Section 012900 of the Supplementary Conditions. Applications for Payment will be processed by ARCHITECT as provided in the General Conditions. 5.1 Progress Payments. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by ARCHITECT on or about the last day of each month during construction as provided below. All progress payments will be on the basis of the progress of the Work measured by the schedule of values established in accordance with the General Conditions (and in the case of Unit Price Work based on the number of units completed) 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 each case, less the aggregate of payments previously made and less such amounts as ARCHITECT shall determine, or OWNER may withhold, in accordance with Paragraph 14.02 D of the General Conditions. 95% of Work completed. 0% of materials and equipment not incorporated in the Work (but delivered, suitably stored and accompanied by documentation satisfactory to OWNER as provided in paragraph 444 14.02 of the General Conditions). 5.2. Final Payment. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07. Article B. INTEREST. All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the maximum rate allowed by law at the place of the Project. 4779 005213-2 Article 7. CONTRACTOR'S REPRESENTATIONS. In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: 7.1. CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. 7.2. CONTRACTOR has studied carefully all reports of explorations and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions as provided in Paragraph 4.02 of the General Conditions, and accepts the determination set forth in Paragraph 4.02 of the General Conditions of the extent of the technical data contained in such reports and drawings upon which CONTRACTOR is entitled to rely. 7.3. CONTRACTOR has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in Paragraph 7.2 above) which pertain to the subsurface or physical conditions at or contiguous to the site or otherwise may affect the cost, progress, performance or furnishing of the Work as CONTRACTOR considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 4.02 of the General Conditions: and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are or will be required by CONTRACTOR for such purposes. 7.4 CONTRACTOR has reviewed and checked all information and data shown or indicated on the Contract Documents with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are or will be required by CONTRACTOR in order to perform and furnish the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 4.03 of the General Conditions. 7.5 CONTRACTOR has correlated the results of all such observations, examinations, investigations, explorations, tests, reports and studies with the terms and conditions of the Contract Documents. 7.6 CONTRACTOR has given ARCHITECT written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by ARCHITECT is acceptable to CONTRACTOR. Article 8. CONTRACT DOCUMENTS. The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR concerning the Work consist of the following: 8.1 This Agreement (pages 1 to 5, inclusive). 82 Performance, Payment, Maintenance, and other Bonds as requested. 8.3 Notice of Award. 8A General Conditions 8.5 Supplementary Conditions consisting of the following: Section 004343 (Labor Classification and Minimum Wage Scale); Section 004553 (Request for Certification of Exemption from Texas Limited Sales, Excise and 4779 005213-3 Use Tax); Section 004536 (Equal Opportunity Clause); Section 004800 (Payment Bond); Section 006113 (Performance Bond); Section 006119 (Maintenance Bond); Section 007316 (Requirement's for Contractor's Insurance); and Section 008000 (Supplementary Conditions);. Section 013300 (Submittal Procedures); Section 014000 (Quality Requirements); Section 015000 (Temporary Facilities and Controls); Section 017300 (Execution); Section 017329 (Cutting and Patching); Section 017700 (Closeout Procedures) and General Contractor's Request for Substitution. 8.6 Specifications as listed in table of contents thereof. 8.7 Drawings, consisting of a cover sheet and sheets as listed on the cover sheet, inclusive with each sheet bearing the following general title: Southlake Roundabout Intersection Improvements, 8.8 Addenda numbers n/a. to inclusive. 8.9 The invitation to Bid and Instruction to Bidders (Lump Sum) and CONTRACTOR's Bid with Attachment "A" and related Exhibits. 8.10 Documentation submitted by CONTRACTOR prior to Notice of Award (pagei)02113 to 334600 inclusive). 8.11 The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying, or supplementing the Contract Documents pursuant to Paragraphs 3.4 and 3.5 of the General Conditions. 8.12 The documents listed in Paragraphs 8.2 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 8. The Contract Documents may only be amended, modified or supplemented as provided in Paragraphs 3.4 and 3.5 of the General Conditions, Article 9. MISCELLANEOUS, 9.1 Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 9.2 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 be 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. 9.3 OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. Article 10. OTHER PROVISIONS. 10.1 Contractor shall timely provide and update, if applicable, the vendor questionnaire required by Texas Local Government Code Chapter 176, and Form CIQ, promulgated by the Texas Ethics Commission and posted online at www.ethics.state,tx.us/forms/CIQ.pdf. 10.2 If trenching and shoring work is required for the Project, Contractor shall bear responsibility for design and execution of acceptable trenching and shoring procedures, in accordance with Texas Government Code, Section 2166.303 and Texas Health and Safety Code, Subchapter C, Section 756.021, et seq. 4779 005213-4 The parties acknowledge the obligations imposed by Texas Government Code, Chapter 2258, prevailing Wage Rates. Among other things, this Chapter provides that it shall be mandatory upon the Contractor and upon any subcontractor under him to pay not less than the prevailing rates of per diem wages in the locality at the time of construction to all laborers, workmen, and mechanics employed by then in the execution of the Contract. A list of prevailing wage rates is attached hereto, Marked Exhibit "A' and made a part hereof by reference. No claims for additional compensation shall be considered by Owner because of payments of wage rates in excess of the applicable rate provided herein. Owner reserves the right to receive and review payroll records, payment records and earnings statement of employees of Contractor, and of Contractor's subcontractors and sub - subcontractors. [INTENTIONALLY LEFT BLANK] 4779 005213-5 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One counterpart each has been delivered to OWNER, CONTRACTOR and ARCHITECT. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or by ARCHITECT on their behalf. This Agreement will be effective on 20 OWNER CONTRACTOR City of Southlake, Texas Dean Electric, Inc„ d/b/a Dean Construction By [CORPORATE SEAL] Attest Address forgiving notices (If OWNER is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of Agreement.) By Gregory fireb4ugh, President [CORPORATE SEAL) Attesxgu" (/ffo- ( Address for giving notices 701 hall. Street Cedar Bill, Texas 75104 License No. Agent for service of process: (If CONTRACTOR is a corporation, attach evidence of authority to sign.) 4779 005213-6 Invitation to Bid and Instruction to Bidders (Lump Sung) TO: Invited Bidders RE: ROYAL AND ANNIE SMITH PARK AND LIBERTY PARK OWNER: CITY OF SOUTHLAKE 1400 Main Street, Suite 460 Southlake, Texas 76092 FORMER CONTRACTOR: ROBINSON LANDSCAPE & CONSTRUCTION 221 Bedford Road, Suite 300 Bedford, Texas 76022 SURETY FOR THE FORMER CONTRACTOR: Great American Insitrance Company Bond Division 580 Walnut Street Cincinnati, OH 45202 ATTENTION: Gary Ballinger Telephone: 410/628-1696 BID DATE: By the Close of Business September a a &'d 2009 Robinson Landscape & Construction (hereinafter referred to as "Contractor") and City of Southlake, Texas (hereinafter referred to as the "Owner") entered into a $1,021,343.00 contract (hereinafter referred to as the "Contract") on or about August 4, 2008 to furnish all labor and material and perform all work for the Royal and Annie Smith Park and Liberty Park projects. (hereinafter referred to as "Project"). As required by the Contract, Great American Insurance Company (hereinafter referred to as "Surety" issued Performance and Payment Bonds numbered 407 69 72 dated September 19, 2008 (hereinafter referred to collectively as the "Bonds" and individually as the "Performance Bond" and "Payment Bond") each in the amount of $1,021,343.00 naming Contractor as Principal and Owner as Obligee. The Owner sent to Surety a letter on August 14, 2009 terminating Contractors' August 4, 2008 agreement and demanding Surety fulfill its obligations under the Bonds. Work remained to be performed under the Contract (hereinafter referred to as the "Remaining Work") as of the date of Owner's termination of Contractor. Therefore, Surety is interested in inviting proposals from contractors (hereinafter referred to as "Invitees") for the completion of the Remaining 'Work pursuant to the following instructions: 1. The Invitees shall submit a lump sum proposal for completion of the Remaining Work in accordance with the terms and conditions of the Contract, including this document, all supplementary and special conditions, drawings, specifications, forms, addenda and documents forming apart of the Contract, and any modifications to the Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents." The proposal shall include all labor, material, supplies, equipment, services and appurtenances necessary to complete the Remaining Work. 2 2. Surety and Owner have entered or are in the process of entering into an agreement for the completion of the Remaining Work whereby the Owner will contract directly with the Invitee as selected by Surety and Owner after a review of the proposals to contract directly with the Owner for completion of the Remaining Work pursuant to the Contract Documents. An award of the right to contract with Owner will be made to the Invitee who, in the judgment of the Surety and Owner, submits the best responsible bid, however, the right is reserved to reject any and all bids, and waive any informalities. 3. All proposals submitted to Surety shall be with the understanding that the invitee, if awarded a contract with the Owner, understands and acknowledges that Invitee shall enter into a Contract with Owner and shall be bound in the same manner and to the same extent that the Contractor was bound to the Owner under the Contract, including but not limited to the conditions or determinations by the Owner, with respect to all work done there under, except the Invitees shall have no responsibility or liability for indebtedness incurred. by Contract nor shall there be any responsibility for any work performed by Contractor or others working for the Contractor except as provided for in Paragraph 9 of these Instructions. 4. The Invitees by submitting a proposal to Surety agrees that it has visited and fully investigated the ,Project and is fully informed as to the status and conditions affecting the Remaining Work and that no representations in reference thereto have been made to it by the Surety or any of its representatives. The Surety makes no warranties or representations, express or implied, to the Invitees, with respect to the -Contract Documents. 3 4 .. 5. Time is of the essence in completing the Project. The Invitees should state the length of time in consecutive calendar days that will be required to complete the Remaining Work. Stipulation of completion time shall be considered as an element of importance in determining the contract award. 6, The Owner may assess liquidated damages against an Invitee awarded a contract with the Owner in the event that the Invitee's performance exceeds the time .in Invitee's proposal. However, the Invitee shall not be responsible for damages incurred by the Owner for delays caused by the Contractor. 7. The cost of correcting defective or nonconforming work performed by Contractor or others working for Contractor shall be included in the Invitee's proposal if the defective or nonconforming work is patent, i.e. visible to Invitee or readily discoverable upon inspection. 8. The invitee shall not be responsible in its proposal for defective work performed by Contractor that is latent, i.e. hidden or concealed and not readily discoverable upon inspection by the Invitee. The Invitee shall not be responsible in its proposal for warranty work applicable to the work of the Contractor. 9. In order to fulfill the obligations under the Contract Documents, it may be necessary for the successful Invitee to perform completion or correction of latent defective work and/or warranty work related to work previously performed by Contractor, however, the Invitee shall perform such work, at the Surety's expense, on a written fixed price proposal basis in accordance with the labor and material rates, and percentage mark up set forth in the Invitee's proposal. a ' 10. The Invitee, if selected to contract with the Owner for the coznbletion of the Remaining Work, shall immediately, but no case later than five (5) calendar days after discovery, notify Owner and Surety in writing of any latent defects of any type in the workmanship and/or materials that must be corrected and shall obtain the approval of the Owner and the Surety in writing before proceeding to correct such defects if the corrective work is to be the basis for a claim for additional compensation by the successful Invitee. 11. The Invitee, if selected to contract with the Owner for the completion of the Remaining Work, shall be responsible within its lump sum proposal for any and all defective work and work not in conformance with the Contract Documents, which the Invitee or any of the Invitee's subcontractors or suppliers have performed or fiunished. 12. No bid bond or bid security is required, however, the successful Invitee will be required at the time of execution of the contract with the Owner to furnish performance and payment bonds to the Owner to be executed by a corporate surety authorized to do business in the State of Texas and acceptable to the Owner. 13. The Invitee, if selected to contract with the Owner for the completion of the Remaining Work, will be required to furnish, at his own expenses, the necessary workers' compensation and general liability insurance, or other insurance as may be required in the Contract. Documents. The general liability policy provided by the Invitee shall be endorsed to add the Owner and the Surety as additional insureds. 5 Texas. The Invitees know, understand, and will comply with all laws, codes, rules and regulations of the City of Southlake, Texas and the State of 15. No extra compensation or allowance shall subsequently be made to the Invitee for omissions, errors, misunderstandings, misinterpretations or ignorance on his part of any requirement of the drawings and specifications or of any conditions or requirements of the contract documents or any of their terms or provisions. 16. All costs and expenses attendant to estimating, preparing and submitting the proposals herein requested are to be borne in their entirety by the Invitee whether or not such proposal is accepted. 1.7. The Invitee, if selected to contract with the Owner for the completion of the Remaining Work, will take possession of all materials stored on site and make whatever use of such materials as he chooses in the completion of the project. The quantity, quality, availability and usefulness of all stored materials must be verified. These materials have been or will be paid for by the Surety where proper claims against the Payment Bond have been or will be made, and to the extent that these materials can be used by the Invitee, if selected to contract with the Owner for the completion of the Remaining Work, there will be no costs to said Invitee. The Surety makes no representations or warranties as to these materials 19. The Surety has ratified several of the subcontract agreements between the Contractor and his subcontractors and will assign any or all of the Ratified Subcontracts to the invitee if requested to do so by the invitee. Upon accepting the requested assignment of Ratified Subcontracts the Invitee will be obligated to make M payments to the subcontractor for any contract work performed by the subcontractor, including all retainage, in accordance with the terms of the Ratification Agreement. The Invitees shall submit sealed proposal to Surety at the address below on or before 5:00 PM CDT on the,4 day of September 2009: Walter Staudt, Jr. Delta Constructors, Inc. 9014 Cross Mountain Trail San Antonio, TX 78255 Supplemental Instructions to Bidders (Re -let) Contract Re: ROYAL AND ANNIE SMITH PARK AND LIBERTY PARK As a means to assist the bidder with a clarification of the Scope of Work and the attached exhibits, please note the following explanations: Scope of Work:, The bidder' scope of work shall consist of the final completion of the project in strict accordance with the Contract Documents, including all submittals, tests, as -built drawings, certifications, manufacturers warranties and any other such item associated with the work or as required by the contract documents. Attached Items: Schedule of Values: The Schedule of Values and last paid Pay Application, attached hereto as Exhibit 'A' is the approved Schedule of Values used by the Former Contractor. The successful bidder may submit his own schedule of values to the owner based on his contract amount. Change Orders: There are I 1 fully executed change orders to the original contract, a copy of each is attached as Exhibit `B'. Ratified Subcontracts: Several of the subcontracts between the Contractor and Subcontractors have been ratified by the Surety and are attached hereto as Exhibit `C, 7 Proposal to Great American Insurance Company Bid Form 1. Project Identification: Royal and Annie Smith Park and Liberty Park 2. Sealed proposal shall be sent by the Invitees to Surety at the address below on or before 5:00 PM CDT on thX day of September 2009: Walter Staudt, Jr. Delta Constructors, Inc. 9014 Cross Mountain Trail San Antonio, TX 78255 3. In submitting his bid, the bidder represents that he has examined and carefully studied the bid documents and the following addenda, the receipt of which is hereby acknowledged: (List addenda by number and date of receipt) 4. The bidder has thoroughly inspected, evaluated and appraised the Project, and has familiarized himself with all aspects of the work to be performed. The lump sum bid submitted by the bidder is based on his inspection, evaluation and appraisal of the work required to be done for project completion to the satisfaction of the Owner and the Surety. 5. Total amount bid (Lump Sum) for the completion of the Project: (worsts) (figures) © i 4, C/ o -Sic-a- i E4Pv 1 /' s 6. The bidder will substantially complete the project within q4 Calendar Days. ie bidder accepts the provisions of the Contract Documents with respect to dated damages in the event of failure to complete the work within the time fled. 8. In the event that extra work beyond the scope of this proposal is directed by the Surety, the bidder agrees that the rates specified below for Labor, Materials, Equipment, Subcontractors and Mark -Up will be the basis for calculating the total cost for such extra work. LABOR: JeA 043 MATERIAL: EQUIPMENT: SUBCONTRACTS: Submitted By: PER HOUR INCLUDING MARK-UP / 5 PERCENT MARK-UP / 5 PERCENT MARK-UP l 15' PERCENT MARK-UP CONTRACTOR, AAA 4: e i Q I G N i Arj p,)srRu e) o+J BY: WKt.-004VK*4 F1re- FsH#9WaH TITLE: ► 'D t E N "r ADDRESS: 1 r/ q 1-1 :5?' 4:'DAR_ 1414E a 77"k 7 5 ! a .4 TELEPHONEA % :�, M 1- 7 /.53 EMAIL ADDRESS: a n , FAX: 9 7A A„q/.__7/ 7:2_- 9 U, 2009 ATTACHMENT "A" Page 1 of 2 pages SMITH PARK Handrails (painted) $14,705.00 Stripe/wheel stops (pressure wash) $ 1,200.00 Pressure wash/clean incl. Replace concrete (R&R) $ 15,000.00 Granite w/metal edge $ 8,700.00 Seed-rye/Bermuda $ 2,250.00 Temporary irrigation $ 4,000.00 Buffalo sod $32,650.00 Check playground $ 375.00 Playground-9000 sq ft-gravel/fibar $19,530.00 Paint existing handrail $ 900.00 Landscape/planting $13,785.00 TOTAL $113,095.00 LIBERTY PARK Rye/Bermuda $ 5,600.00 Temporary irrigation/maintenance $12,000.00 Decomposed granite $ 4,705.00 Clean/grade/dress — pond $ 4,300.00 Repair grass pavers $ 1,350.00 Install grass pavers (CPS) (at pavilion) $24,000.00 Repair stacked stone $ 1,176.00 Handrails (painted) $1.4,705.00 Stripe/wheel stops (pressure wash) $ 2,985.00 Paint (storage room & conduit) $ 2,$50_00 Sandblast $ 3,000.00 Pressure wash/clean $ incl. H/C pavers $ 1,050.00 Bronze plaque $ 240.00 Landscape/planting $43,092,00 R & R concrete @ h/c ramp 570 sq ft. 3,705.00 TOTAL $124,758.00 ATTACHMENT "A» Page 2 of 2 pages SMITH & LIBERTY PARKS Topsoil Tractor — process topsoil — dress up Dress up — hand work Haut off Install drinking fountain (furnished by others) Roof repair and replace Survey/layout Joint sealer parking lot & trail Bollards (2 ea) Memory sidewalk/colored concrete Boulders Clear— understory TOTAL BOND SUPERVISION GRAND TOTAL Bill Blankenship — Ratification Agreement Smith Liberty TOTAL $ 3,530.00 $ 6,000.00 $ 4,705.00 $ 2,000.00 $ 941.00 $ 7,060.00 $ 800.00 $ 3,200.00 $ 1,530.00 $ 4,700.00 $ 1,350.00 1850.00 $37,666.00 $ 5,900.00 $ 3,000.00 $284,419.00 $ 425.00 250.00 $285,094.00 AW-my CERTIFICATE F LIABILITY" INSURANCE 9/18 2 9' PRODUCER (214) 691-5721 X-105 Fax: (214) 691-4961 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Southwest Assurance Group, Inc, Attn: Sherrel Breazeale ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 12201 Merit Drive, Suite 795 Dallas TX 75251 INSURERS AFFORDING COVERAGE NAIL # INSURED INSURER A:Em 10 ere Mutual Casualty Bean Electric, Inc. 701 Hall Street INSURER B'Great American Ins Co INSURERaTexas Mutual insurance INSURER D: Cedar Hill TX 75104 INsiJRERE: COVEERAGl=s THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, REG I L NSR ADD'L TYPE OF INSURANCE POLICY EFFECTIVE POLICY EXPIRATION POLICY NUMBER DATE MMIDOfYY DATE MM1DD LIMITS GENERAL LIABILITY "- -.E6:Qj OCCURRENC.9$ 1,000, 000 X COMMERCIAL, GENERAL LIABILITY DAWETY11T Once $ 300r000 CLAIMSMADE OCCUR 3b86424 7/23/2009 3/31/2010 P SES n one arson $ 10,000 P ES—ONAL & AOV INJURY $ 1,000,000 GEN RALAG FGATE $ 21000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PROD CTS — COMPIOP AGG S 2,000,000 A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEOULEDAUTOS HIRED AUTOS NON -OWNED AUTOS 3ES6424 7/23/2009 3/31/2010 COMBINED SINGLE LIMIT (Ea accident) $ 11000,000 X BODILY INJURY (Per person} $ BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANYAUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ B EXCESSIUMBRELLA LIABILITY X OCCUR CLAIMS MADE DEDUCTIBLE Umbrella Coverage Form SBUS96585602 3/31/2009 3/31/2010 $ 3, 000, 000 -AGGREGATE $ 3,000,000 R C WORKERS COMPENSATION AND - X TINC ST - OT - EMPLOYERS' LIABILITY ANY PROPRIETORWARTNERIEXECUTIVE E.L. EACH ACCIDENT $ 11000,000 OFFICERIMEMBER EXCLUDED? TSPOOOB610GS 3/31/2009 3/31/2010 If yes, describe under E.L. D)sEASE-Ep EMPLOYEE $ 11000,000 IAL PR V S15,elow E.L. D)SEA E - POLICY LIMIT $ 1, ODD, 000 OTHER DESCRIPTION OF OPERATIONWLOCATIONSfVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS Re: Royal & Annie Smith Park and Liberty Park When required by written contract, the City of 5outhlake and Great .American insurance company are shown as additional insured on all policies except work comp and are afforded a waiver of subrogation on all policies. City of 5outhlake 1400 Main Street Suite 450 Southlake, TX 76092 ACORD 25 (2001108) IWQn*a ........ SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO 00 $0 SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER ITS AGENTS OR REPRESENTATIVES, AUTHORIZED REPRESENTATIVE Stephen _ O ACORD CORPORATION 1988 Panes S nf'J W p Wp77 p Wp�� Q�Wyy W W�7 W W W W iwJ W W W W W W GNn W W G V PN1y74sNV W W W W W W W W N j j N CDAmVOWOpOA—"©N[mP OOOO +l .A-�m[nNO V m fAO t�mcn NiornW O �' C. 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W N W A(tea N No{u g U1 bs OO Ut bm •V <h L4 {� NN C7 cm 4- 'rf Ch cf rn --*ae mfn �yrys grnmA Chi N x�z] © N W Ci ,rJ O iLf W (N(�� [tl l��7ppo fD O (.W(.�� C7 VOi ti bl bl EXHIBIT A WAGE RATES TEXAS COUNTIES IDENTIFIED BY WAGE RATE ZONES: 27, 28, 29, 30, 31, 41, 43, 45, 46,118,119,120,125 County Name Zone County Name Zone County Name Zone County Name Zone AfitlersOn 45 Donley 120 Karries 145 Reagan 120 Andrews 120 Duval 119 Kaufman 43 Real 120 Angelina 45 Eastmend 120 Kendall 125 Red River 45 Aransas 125 Ector 28 Kenedy 119 Reeves 27 Archer 120 Edwards 27 Kent 120 Refugio 125 Armstrong 120 Ellis 43 Kerr 125 Roberts 120 Atascosa 125 El Paso 31 Kimble 120 Robertson 45 Austin 125 Erath 45 King 120 Rockwall 43 Bailey 120 Falls 45 Kinney 27 Runnels 120 Bandera 125 Fannin 45 Kieberg 125 Rusk 45 Bastrop 126 Fayette 125 Knox 120 Sabine 45 Baylor 120 Fisher 120 Lamar 45 San Augustine 45 see 125 Floyd 120 Lamb 120 San Jacinto 45 Bell 41 Foard 120 Lampasas 120 San Patriclo 118 Bexar 41 Fort Bend 46 LaSalle 119 San Saba 120 Blanco 125 Franklin 45 Lavaca 125 Schleicher 120 Border 120 Freestone 45 Lee 125 Scurry 120 Bosque 45 Frio 125 Leon 45 Shackelford 120 Bowie 30 Gaines 120 Liberty 46 Shelby 45 Brazoria 46 Galveston 46 Limestone 45 Sherman 120 Brazos 41 Garza 120 Lipscomb 120 Smith 30 Brewster 27 Glilesple 125 Live Oak 125 Somenreil 45 Briscoe 120 Glasscock 120 Llano 125 Starr 119 Brooks 119 Goliad 125 Loving 120 Stephens 120 Brown 120 Gonzales 125 Lubbock 28 Sterling 120 Burleson 45 Gray 120 Lynn 120 Stonewlal 120 Burnet 125 Grayson 43 Madison 45 Sutton 27 Caldwell 125 Gregg 30 Marion 45 Swisher 120 Calhoun 125 Grimes 45 Martin 120 Tarrant 43 Callahan 120 Guadalupe 41 Mason 125 Taylor 28 Cameron 29 Hale 120 Matagorda 125 Terrell 27 Camp 45 Hall 120 Maverick 119 Terry Throckmorton 120 Carson 120 Hamilton 45 McCulloch 120 Titus 120 Cass 45 Hansford 120 McLennan 41 Tom Green 45 Castro 120 Hardeman 120 MCI_Mullen 119 Travis 28 Chambers 46 Hardin 46 Medina 125 Trinity 41 Cherokee 45 Harris 46 Menard 120 Tyler 45 Childress 120 Harrison 30 Midland 28 Upshur 45 Clay 120 Hartley 120 Milam 45 Upton 45 Cochran 120 Haskell 120 Mills 120 Uvalde 120 Coke 120 Hays 41 Mitchell 120 Val Verde 119 Coleman 120 Hemphill 120 Montague 1250 Van Zandt 27 Collin 43 Henderson 45 Montgomery 46 Victoria 45 Collingsworth 120 Hidalgo 29 Moan; 120 Walker 118 Colorado 125 Hill 45 Morris 45 Waller 45 Comal 41 Hockley 120 Motley 120 Ward 46 Comanche 120 Hood 45 Nacagdoches 45 Warshington 120 Concho 120 Hopkins 45 Navarro 45 Webb 458 Cooke 120 Houston 45 Newton 45 Sharton 29 Coryeli 41 Howard 120 Nolan 120 Sheeler 125 Cottle 120 Hudspeth 27 Nueces 118 Sichlta 120 Crane 120 Hunt 45 Ochittree 120 Wlibarger 43 Crockett 27 Hutchinson 120 Oldham 120 Willacy 120 Crosby 120 Idon 120 Orange 46 Williamson 119 Culberson 27 Jack 45 Palo Pinto 45 Wilson 41 Dallarn 120 Jackson 125 Panola 45 Winkler 125 Dallas 43 Jasper 45 Parker 43 Wise 120 Dawson 120 Jeff Davis 27 Parmer 120 Wood 45 Deaf Smith 120 Jefferson 46 Pecos 27 Yoakum 45 Delta 45 Jim Hogg 119 Polk 45 Young 120 Denton 43 Jim Wells 126 Potter 28 Zapata 120 DeWitt 125 Johnson 43 Presidio 27 Zavala 119 Dickens 120 Jones 120 Rains 45 119 Dimmit 119 Randall 28 DEAN ELECTRIC INC. dba DEAN CONSTRUCTION 701 HALL ST. a CEDAR HILL, TEXAS 75104 PHONE: (972) 291-7153 • FAX: (972) 291-7172 CORPORATE RESOLUTION RESOLVED THAT Donald R. Dean CEO CFO whose signature or signatures appear below, or any of them, are hereby authorized, directed and empowered for and on behalf of this corporation and in its name to execute Contracts on behalf of Dean Electric, Inc. dba Dean Construction. Authorized Signatures: Signature Donald R. Dean, CEO/CFO re y Firebaug , President Signatur I, Barbara Dean, Secretary of Dean Electric Inc dba Dean Construction a corporation, do hereby certify that the resolution appearing above is a full, true and correct copy of a resolution of the Board of Directors of said corporation which was duly and regularly called and held in all respects as required by law and by the bylaws of said corporation on the 10't day of July, 2009, and that the signature appearing on the above mentioned copy of said resolutions are the genuine signatures of the persons mentioned in said resolution and authorized to act on behalf of said corporation as set forth in said resolution. I further certify that said resolution has not been amended or revoked and is still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary this 251h day of September_, 2009. Secretary Seal SECTION 00 8000 SUPPLEMENTARY CONDITIONS These Supplementary Conditions amend or supplement the Standard General Conditions of the Construction Contract and other provisions of the Contract Documents as indicated below. All provisions which are not so amended or supplemented remain in full force and effect. SC-1. The terms used in these Supplementary Conditions which are defined in the Standard General Conditions of the Construction Contract have the meanings assigned to them in the General Conditions, except as follow: Calendar Day - any day of the week or month, no day being excepted. The CONTRACTOR will be allowed to work on Saturdays providing that the CONTRACTOR notifies ENGINEER and CITY forty- eight (48) hours prior to work. The CONTRACTOR may undertake work only between 7:00 a.m. and 7:00 p.m. on Monday through Saturday except in the case of urgent necessity in the interest of Public Safety. Owner's Representative - the authorized representative of OWNER who is assigned to the site or any part thereof. Copies of Documents SC-2.02, Delete Paragraph 2.02 of the General Conditions in its entirety and insert the following in its place: 2.02. Five (5) sets of plans and specifications shall be furnished to the CONTRACTOR, at no charge, for construction purposes. Additional copies may be obtained at the cost of reproduction upon request by the CONTRACTOR. Preconstruction Conference SC 2.05. Amend the first sentence of Paragraph 2.05.A, Preliminary Schedules of the General Conditions by striking out the following words: "Within ten days after the Effective Date of the Agreement unless otherwise specified in the General Requirements" and as so as amended Paragraph 2.05 A remains in effect. Finalizing Schedules SC-2.06. Add the following language to the beginning of Paragraph 2.06 of the General Conditions: "if Engineer notifies Contractor at the time Contractor submits the schedules stipulated in Paragraph 2,05, the schedules will be finalized at the preconstruction conference. If no such notification is given to Contractor, then the schedules may be finalized by a telephone conversation between Engineer and Contractor and Owner. Intent of Documents SC-3.03. Add the following paragraphs to the end of Paragraph 3.03 of the General Conditions: "Should Drawings disagree in themselves or with Specifications and are not clarified by addendum, the better quality or greater amount of work or materials shall be estimated upon and, unless otherwise ordered by Engineer in writing, shall be performed and furnished. Figures given on Drawings govern scale measurements, and large- scale details govern small scale drawings." Article 5 - Bonds and Insurance SC-5-0 Add the following paragraphs to Section 5 of the General Conditions. INSURANCE Except as otherwise specified in this contract, the Contractor will be required at their own expense to maintain in effect at all times during the performance of the contract insurance coverages with limits not less than those 4837 SUPPLEMENTARY CONDITIONS 008000 - 1 set forth in Section 007316 of the Supplementary Conditions with insurers and under forms of policies satisfactory to the City of Southlake. It shall be the responsibility of the Contractor to maintain adequate insurance coverages at all times. Failure of the Contractor to maintain adequate coverage shall not relieve it of any contractual responsibility or obligation. INDEMNIFICATION For the consideration included in the bid price, Contractor shall pay to indemnft and save harmless the Cit its agents, guests, consultants invitees and employees, from all suits actions claims demands damn es losses expenses, includina attorne 's fees costs and ud ments of evely kind and descrl tion to which the Cily, its a ents uests consultants Invitees or emvlQyee_%--may be subilected to §y reason of injury to persons or death or -property damage, resulting from or -growing out of any act of commission. -omission negligence or fault of the Contractor, their-a-cients or employees, committed in connection with this contract Contractor's performance hereof, or any work performed hereunder. violation of any federal state counly, or cily law, by law ordinance or reciulation by the Contractor, its agents, trainees invitees, -servants and employees, WAIVER OF SUBROGATION The Contractor shall require their insurance carrier, with respect to all insurance policies, to waive all rights of subrogation against the City of Southlake, its commissioners, partners, officials, directors, officers, agents, and employees. Performance and Other Bonds SC-5.01. Bonds 5.01 A. Add the following language at the end of Paragraph 5.01.E of the General Conditions: "Ail Bonds shall be in accordance with the provisions Chapter 2253 of the Texas Government Code, as amended." 5.01 B. Payment Bond shall be furnished in favor of the OWNER for one hundred percent (100%) of the Contract Price, A Maintenance bond shall be furnished in the amount of one hundred percent (100%) of the Contract Price in favor of the OWNER for a period of one (1) year and shall be executed by an approved surety company authorized to do business in the State of Texas. Services, Materials and Equipment SC-6.03. Add the following paragraph to the end of Paragraph 6.03. D: "Before ordering materials or doing any work, the contractor shall in all cases verify measurements at the site or premises and check same against the Drawings. No extra charge or compensation will be allowed on the account of differences between actual dimensions and measurements shown on the Drawings. Any differences found shall be submitted to the Owner for resolution before proceeding with the work." Concerning Subcontractor, Suppliers and Others SC-6.06. Add the following to the end of Paragraph B: "The CONTRACTOR shall submit a list of all Subcontractors, Suppliers or other persons or organizations to the OWNER in advance of the specified date prior to the Effective Date of the Agreement for acceptance by OWNER and ENGINEER. No approval required prior to the effective date of the agreement. (The general conditions provide for rejection of subcontractors during the construction.) No increase in bid price will be allowed if contractor is required to use a substitute subcontractor." 4837 SUPPLEMENTARY CONDITIONS 008000 - 2 Add a new paragraph after Paragraph 6.06, B., of the General Conditions to read as follows: "The apparent successful bidder and any other bidder so requested shall, within seven days after the Bid Opening submit to Owner and Architect/Engineer a list of all Subcontractors, Suppliers and other persons and organizations proposed for those portions of the work for which such identification is required. If requested by Owner, such list shall be accompanied by an experience statement with pertinent information regarding similar projects and other evidence of qualification for each such Subcontractor or Supplier. If Owner or Architect/Engineer, after due investigation has reasonable objection to any proposed Subcontractor or Supplier, may before the Notice of Award is given request the apparent Successful Bidder to submit an acceptable substitute without an increase in Bid Price. If apparent Successful Bidder declines to make any such substitution, Owner may award the contract to the next lowest Bidder that proposes to use acceptable Subcontractors, Suppliers and other persons and organizations. The refusal to make requested substitutions will not constitute grounds for sacrificing the Bid security of any Bidder. Any Subcontractor, Supplier, either person or organization listed and to whom Owner or Architect/Engineer does not make written objection prior to the giving of the Notice of Award will be deemed acceptable to Owner and Engineer subject to revocation of such acceptance after the Effective Hate of the Agreement as provided in Paragraph 6.06B of the General Conditions." The Contractor shall not change subcontractors without first notifying the Owner in writing seven (7) days in advance. Permits SC-6.08. Add the following new provision at the and of Section 6.08 of the General Conditions: B. The OWNER will provide right-of-way for the purpose of construction without cost to the CONTRACTOR by securing permits in areas of public dedication or by obtaining easements across privately owned property. It shall be the responsibility of the CONTRACTOR, prior to the initiation of construction on easements through private property, to inform the property owner of his intent to begin construction. Before beginning construction in areas of public dedication, the CONTRACTOR shall inform the agency having jurisdiction in the area prior to the initiation of the work. The CONTRACTOR shall pay for all fees and permits, as called for above, except for City Building Permits which will be paid for by the OWNER." Contractor will be required to obtain City Building Permit. Fee for building permit only will be waived by City. Taxes SC-6.10. Delete Paragraph 6.10 of the General Conditions in its entirety and insert the following in its place: 6.15 The CONTRACTOR'S attention is directed to Paragraph NO.3 of Ruling No.9, Repairmen and Contractors (amended April 3, 1962), issued by the Comptroller of Public Accounts. Reference: Article 20.01 (T) Limited Sales, Excise, and Use Tax. Bidders who desire to be exempt from the sales tax must comply with Paragraph NO.3 of Ruling No.9, by obtaining the necessary permit or permits from the State Comptroller allowing the purchase of materials for incorporation in this project without having to pay the Limited Sales, Excise, and Use Tax at the time of purchase. Such bidders must submit segregated prices for the total cost of materials and total cost of services, and the successful bidder (if he has elected to comply with Paragraph NO.3 of Ruling No.9) must require his subcontractors to obtain such permits and to sign written subcontracts, in which the prices are segregated for the total cost of materials and the total cost of services. Total materials costs should not include materials which are used or consumed in performing the work. If the lowest acceptable bidder has complied with Paragraph NO.3 of Ruling No.9, the OWNER will furnish the CONTRACTOR with an exemption certificate for the materials incorporated in the project. 4837 SUPPLEMENTARY CONDITIONS 008000 - 3 If the lowest acceptable bidder has elected to comply with Paragraph NO.3 of Ruling No.9, as provided in the paragraph above, a statement on the following form shall be submitted in six (6) copies with the executed Contract and such statement will be a part of the contract. STATEMENT OF MATERIALS AND SERVICES Project Name Royal and Annie Smith Park and Liberty Paris City of City of Southlake„ ,.. Total Materials Cost $ 185,312.00 Total Services Cost $ 99, 782.00 Total Contract Price $ 295,094-00 NOTE: The Total materials cost plus the total services must equal the amount shown of the total Contract price. Before issuance of a final estimate on the project, the statement on which material costs are listed shall be substantiated by invoices showing the actual cost of the materials. SC-6.11. Add the following language at the end of the third sentence of Paragraph 6.17 of the General Conditions: All trees, stumps, slashings, brush or other debris removed from the Project Site or right-of-way as a preliminary to the construction of the work or its appurtenances shall be removed from the property and disposed of in a manner approved by the OWNER. All excess spoil materials shall be the property of the CONTRACTOR. The responsibility of locating suitable disposal sites for removal items on this project will be solely a function of the CONTRACTOR. The OWNER will in no way be responsible for the actions of the CONTRACTOR if he disposes of excess material and debris in locations that are not approved. No extra compensation will be made for the removal and hauling of this material; all costs shall be included in the various items listed in the bid proposal. Safety and Protection SC-6.13. Add the following four paragraphs to the end of existing section: The Contractor shall comply with all Occupational Safety and Health Act (OSHA) Standards and any other Federal, State, or Local rules and regulations applicable to construction and/or maintenance in the State of Texas. City Safety Personnel or any supervisor may, but are not required to, order that the work be stopped if a condition of immediate danger is found to exist. Nothing contained herein shall be construed to shift responsibility or risk of loss for injuries or damage sustained as a result of a violation of this Article from the Contractor to the City of Southlake. The Contractor shall remain solely and exclusively responsible for compliance with all safety requirements and for the safety of all persons and property at the project site. The parties hereto expressly agree that the obligation to comply with applicable safety provisions is a material provision of this Contract and a duty of the Contractor. The City of Southlake reserves the right to require demonstration of compliance upon reasonable request. In the event the Contractor is unable to demonstrate compliance with the safety provisions of this Contract, the parties agree that such failure is deemed to be a material breach of this Agreement; and the Contractor agrees that upon such breach, all work pursuant to the Contract shall terminate until demonstration to the City of Southlake that the safety provisions of this Agreement have been complied with. In no event shall action or failure to act on the part of the City of Southlake be construed as a duty to enforce the safety provisions of this Agreement nor shall it be construed to create liability for the City for any act or failure to act in respect to the safety provisions of this Agreement. 4937 SUPPLEMENTARY CONDITIONS 008000 4 The Contractor shall be responsible for the Safety Equipment to be used by its employees and/or all of its subcontractors working on the City of Southlake's property. This equipment will include, but may not be limited to, hard hats, safety belts or harnesses, eye, face, hand, ear or hearing protection. Sport or athletic type shoes are not considered suitable work shoes on any construction site. Coordination SC-7.02. Add the following paragraph immediately after Paragraph GC-7.02: "C. Should CONTRACTOR cause damage to the work or property of any separate contractor at the site, or should any claim arising out of CONTRACTOR's performance of the Work at the site be made by any separate contractor against CONTRACTOR, OWNER, ENGINEER, CONSTRUCTION COORDINATOR or any other person, CONTRACTOR shall promptly attempt to settle with such other contractor by agreement, or to otherwise resolve the dispute by mutual resolution or at law. CONTRACTOR shall. to the fullest extent permitted by Laws and Regulations, indemnify and hold OWNER, and ENGINEER and the Construction Coordinator harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by any separate contractor against OWNER, and ENGINEER or the Construction Coordinator to the extent based on a claim arising out of CONTRACTOR's performance of the work. Should a separate contractor cause damage to the Work or property of CONTRACTOR or should the performance of Work by any separate contractor at the site give rise to any other claim, CONTRACTOR shall not institute any action, legal or equitable, against OWNER, or ENGINEER or the Construction Coordinator or permit any action against any of them to be maintained and continued in its name or for its benefit in any court or before any arbiter which seeks to impose liability on or to recover damages from OWNER, or ENGINEER or the Construction Coordinator on account of any such damage or claim. If CONTRACTOR is delayed at any time in performing or furnishing Work by any act or neglect of a separate contractor and OWNER and CONTRACTOR are unable to agree as to the extent of any adjustment in Contract Time attributable thereto, CONTRACTOR may make a claim for an extension of time in accordance with Article 12. An extension of the Contract Time small be CONTRACTOR's exclusive remedy with respect to OWNER, and ENGINEER and Construction Coordinator for any delay, disruption, interference or hindrance caused by any separate contractor. This paragraph does not prevent recovery from OWNER, or ENGINEER or Construction Coordinator for activities that are their respective responsibilities." Owner's Representative SC-9.01. Add the following paragraph to the end of existing paragraph: "ENGINEER's responsibilities listed in Article 9 of the General Conditions shall be limited to: (1) Visits to the site at intervals appropriate to the work; (2) Clarifications and interpretations; (3) Authorized variations in work; (4) Rejecting defective work; (5) Shop drawings; (6) Change Orders; (7) Applications for payment; (8) Decisions on disputes, as set forth in the contract documents. All other responsibilities listed in Article 9 (SC 9.3 and 9.10) of the General Conditions will be assumed by OWNER. 4837 SUPPLEMENTARY CONDITIONS 008000 - 5 Project Representation SC-9.03. Delete Paragraph 9.03 in its entirety, Change of Contract Time or Price SC-12.03 Add the following paragraph to Paragraph 12.03.8. This contract has liquidated damages for failure to complete the work on time. Refer to the Agreement for details, Abnormal Weather Conditions Amend Article 12 of the General Conditions by adding to the end of the Article the following: 12.04 Abnormal Weather Conditions "Definition of abnormal weather conditions and requirements for extensions of Time due to abnormal weather conditions are as follows: 12.04.1. The contract time may be extended in whole days equal to the number of abnormal weather days. Abnormal weather days are defined as follows: a. Rain Days - the number of days each month, in excess of the number shown in Column "A" of the weather table, that rain at the project site causes a delay in a significant portion of the work. b. Drying Days - the number of days that muddy conditions at the project site cause a delay in a significant portion of the work, C. Freeze Days - the number of days each month, in excess of the number shown in Column "B" of the Normal Weather Table that the temperature at the project site is below freezing and causes a delay in a significant portion of the work. 12.04.2. Column "A" of the Normal Weather Table indicates the number of rain days to be considered normal for the area of the project site. Column "B" indicates the number of days below freezing to be considered normal for the area of the project site. This data was collected from the U.S. Weather Bureau. NORMAL WEATHER TABLE North Texas Area Month Column "A" Column "B" (RainRaingays) (Freeze Days) Jan. 7 14 Feb. 6 9 Mar. 7 4 Apr 8 0 May 9 0 Jun 6 0 Jul 5 0 Aug 5 0 Sep 7 0 Oct 6 0 Nov 6 3 Dec 6 9 4837 SUPPLEMENTARY CONDITIONS 008000 - 6 12.04.03. Contractor shall notify Architect/Engineer by telephone within two (2) days of the delay of each day that the work has been delayed due to normal weather or abnormal weather. Contractor may make a claim for extension of time for delays in significant portions of the work caused by abnormal weather days. Separate claims shall be made for each period of consecutive abnormal weather days causing a delay. Claims shall be made by written notice, delivered to Architect/Engineer and Owner with the first application for payment following the end of the delay, and shall include the following information: (a) date of each abnormal weather day, (b) type of weather day (rain, drying, or freeze), and (c) the portion of work affected. Engineer may require documentation from a local government weather service. 12.04.04. Each claim made by Contractor for extension of time for abnormal weather days will be reviewed by the Architect/Engineer and the extension of Contract Time, if any, will be made by a Change Order within 30 days of the date of the written notice. Claims due to abnormal weather not meeting the requirements of Paragraph 12.2 may not be considered by the Architect/Engineer or Owner. Tests and Inspections SC-13.03. Delete Paragraph A of the General Conditions in its entirety and insert the following in its place: 13.03 CONTRACTOR shall give the OWNER'S REPRESENTATIVE timely notice of readiness of the Work for all required inspections, tests or approvals. The site must be ready for testing upon the CONTRACTOR'S notification to the OWNER'S REPRESENTATIVE. Should the site not be properly prepared for testing upon the arrival of the testing agent, any costs which are incurred will be borne solely by the CONTRACTOR. The OWNER may withhold payment until the payment of the related outstanding expenses is resolved. Testing SCA 3.03. Amend Paragraph B of the General Conditions to read as follows: "The cost of all inspections, tests and approvals which are required by the Contract Documents shall be paid for by the CONTRACTOR." Application for Progress Payment SCA 4.02. A. After the first sentence of Paragraph A,1 add the following sentence: "Supporting documentation shall include copies of requisitions or invoices from Subcontractors and material suppliers, and any other data the ENGINEER or OWNER may reasonably require. B. Amend the last sentence of Paragraph A.3 to read as follows: "The amount of retainage with respect to progress payments shall be five (5%) percent as stipulated in the Agreement." Review of Applications for Progress Payment SC-14.04. Amend the first sentence in Paragraph CA to read as follows: "20 days after presentation of the Application for Payment..." Final Application for Payment SC-14.07. Add the following to Paragraph 14.07.A. of the General Conditions: 4. "The Final Application for Payment shall be accompanied by the following items in addition to those required above. A. Project Record Documents: to requirements of General Conditions of the Contract. 4837 SUPPLEMENTARY CONDITIONS 008000 - 7 B. Operating Maintenance Data, Instructions to Owner's Personnel: to the requirements of General Conditions of the Contract. C. Warranties and Bonds. D. Keys. E. Evidence of Payment and Release of Liens: to requirements of General and Supplementary Conditions. Abandonment of Contract by Contractor SC-15.02. Replace Paragraph 15.02 133 with the following: 3. The OWNER under sealed bids, after seven (7) days notice published one or more times in a newspaper having general circulation in the county of the location of the work, 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 OWNER 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 therefore. In neither case shall OWNER owe to CONTRACTOR any monies resulting from a cost savings to OWNER that may occur as a result of these actions. Dispute Resolution SC-16. Add the following new Paragraph D to Section 16..01 D. All provisions for "arbitration" are hereby deleted. The Contractor and the City expressly covenant and agree that in the event of any litigation arising between the parties to this contract, each party shall be solely responsible for payment of its attorneys. In no event shall either party be responsible for the other party's attorney's fees, regardless of the outcome of the litigation. Barricades, Lights and Watchmen SC-17.07. Add the following new paragraph 17,07 immediately after Paragraph 17.06 of the General Conditions which are to read as follows: 17.07. Barricades, lights and Watchmen A. Where the work is carried on in or adjacent to any street, alley or public place, the CONTRACTOR shall, at his own cost and expense, furnish and erect such barricades, fences, lights, and danger signals, shall provide such watchmen, and shall provide such other precautionary measures for the protection of persons or property and of the work as necessary. Barricades shall be painted in a color that will be visible at night. From sunset to sunrise the CONTRACTOR shall furnish and maintain at least one light at each barricade and a sufficient number of barricades shall be erected to keep vehicles from being driven on or into any work under construction. The CONTRACTOR shall furnish watchmen in sufficient numbers to protect the work. B. The CONTRACTOR will be held responsible for all damage to the work due to failure of barricades, signs, lights, and watchmen to protect it, and whenever evidence is found of such damage, the OWNER may order the damaged portion immediately removed and replaced by the CONTRACTOR at his cost and expense. The CONTRACTOR'S responsibility for the maintenance of barricades, signs, lights and for providing watchmen shall not cease until the project shall have been accepted by the OWNER. 4837 SUPPLEMENTARY CONDITIONS 008000 - 8 C. The CONTRACTOR shall use only battery powered lights, enclosed lanterns or other lights satisfactory to the OWNER. Smudge Pots or other lights which have an open flame will not be permitted. D. The CONTRACTOR will be required to furnish all barricades, lights, signs, and flagmen where it becomes necessary to reroute traffic during the time construction is in progress in the City streets or highways. The detour will be determined by the ENGINEER and approved by the OWNER and, as applicable, the Texas Department of Transportation. Protection of 'frees SC-17.08. Add a new paragraph 17.08 immediately after Paragraph 17.07 of the General Conditions which is to read as follows: 17.08 Protection of Existing Trees and Features A. No trees shall be removed or cut except upon the specific authority of the OWNER or specifically shown on the plans. Trees adjacent to the work shall be protected from all damage by the CONTRACTOR'S construction operations. (See Technical Specification Section 31 1500.) Contractor will be held responsible for any damage to trees not specified or marked by the Owner to be removed. B. The Contractor shall take all precautions necessary to protect all natural and manmade site features in the area where work is being done. The Contractor shall restore, rebuild and make good at his own expense all injury and damage to same which may result form work being carried out under this contract. His restoration shall result in a condition equal to or better than that which existed prior to the start of his work. Cleanup SC-17.09..Add a new paragraph 17.09 immediately after Paragraph 17.08 of the General Conditions which is to read as follows: 17.09. Cleanup of Construction Site A. During Construction - The CONTRACTOR shall at all times keep the job site as free from all material, debris and rubbish as is practical and shall remove same from any portion of the job site, when it becomes objectionable or interferes with the project in the opinion of the OWNER'S REPRESENTATIVE. B. Final- Upon completion of the work, the CONTRACTOR shall remove from the site all materials, debris, tools and equipment belonging to him, and leave the site with an appearance acceptable to the OWNER. The CONTRACTOR shall thoroughly clean all equipment and materials installed by him and shall deliver over such materials and equipment in a bright, clean polished and new appearing condition. Minimum Wage Rates SC-17.10. Add a new paragraph immediately 17.10 after Paragraph 17.09 of the General Conditions which is to read as follows: 17.10 Minimum Wage Rates. The specified wage rates are minimum rates only, and the OWNER will not consider any claims for additional compensation made by the CONTRACTOR of any wage range in excess of the applicable rate contained in this contract. All disputes in regard to payment of wages in excess of those specified in this contract shall be adjusted by the CONTRACTOR. 4837 SUPPLEMENTARY CONDITIONS 008000 - 9