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HomeMy WebLinkAbout1991-08-05 91-305 ORDERBV w Cit Ciouaait of Bye City MBaaao+: ORDERED, TH*T David Pellegrino, Purchasing Agent, is hereby authorized and directed, on behalf of the City of Bangor, to execute a Letter Agreement with The Ames Corporation for provision of clerk -of -the -works services in conjunction with Phase 1 of the Hayford Park Baseball Field. A copy of said Letter Agreement is on file in the office of the City Clerk. 91 - 305 Aripal to Cauamlor Ssxl August 5,1991 ' CITY OF BANGOR (TITLE.) (Drbgrt--........ Authorising Purchasing Agent to Execute Letter Agreement with The Ames Corporation -- Hayford Park Baseball Field BV w Cit Ciouaait of Bye City MBaaao+: ORDERED, TH*T David Pellegrino, Purchasing Agent, is hereby authorized and directed, on behalf of the City of Bangor, to execute a Letter Agreement with The Ames Corporation for provision of clerk -of -the -works services in conjunction with Phase 1 of the Hayford Park Baseball Field. A copy of said Letter Agreement is on file in the office of the City Clerk. IN CITY COUNCIL August 5, 1991 Suspension of the Rules Passed. Or Passed. CI (1^Lhaw 91-305 O RNER Title, Authorizing ?prchaslps Apept Co E%e Cute Letter Agreement with the Rmee Corporation - Hayford Park Baseball Field/ Asslp" t0 Councilman MEMORANDUM OF DONATION Ibis MEMORANDUM is entered into as of the 28k day of ,4�5RJ , 1991 by and between Stephen King of Bangor, Maine ("King') and the City ofBa.ngor, amumcrpality organized and existing under the laws of the State of Maine (the "City'). WHEREAS, Ring wishes to make a donation to the City for the purpose of enabling the City to construct a baseball diamond, grandstand, lighting and related facilities m Hayford Park, subject to certain terms and conditions; and WHEREAS, the City has agreed to accept such donation subject to such terms and conditions; NOW THEREFORE, in order to better memorialize the terms of this donation and the obligations of the Qty upon acceptance, the parties agree as follows: ARTICLE I DONATION King hereby offers to donate to the City up to $1,000,000 for the purpose of enabling the City to construct an NCAA regulation -size baseball diamond, grandstand, restrooms, concession stand, lighting and fencing (hereinafter collectively rhe "Improvements'), all in accordance with plans to be approved by King as hereinafterprovided. King agrees to make his donation at such time as a construction contract for construction of the Improvements acceptable to King bas been executed by Ne City. The donation shall be made in a lump sum, or, in the discretion of King, may be disbursed in installments, provided, however, that King shall make payments to the City as necessary to fund construction of the Improvements in accordance with the terms of the construction contract. l WR The donation described in Article I above shall be subject to the following conditions: 2.1 Selection of Contractor. The general contractor for construction of the Improvements shall be Crowell Construction, Inc of Ellsworth, Maine, unless both King and rhe City shall otherwise agree. 2.2 Constmadon Contract. The terms of the construction contract entered into by the City for construction of the Improvements shall be approved in advance by King or his authorized representatives. After execution of the construction contract, no change orders shall be made without the consent of both King and the City. During construction of the Improvements, King or his representative shall be available at least weekly to review and approve or disapprove proposed change orders. King agrees to be responsible for the additional cost, if any, resulting from change orders so approved. 2.3 Plant and Speeificatiom. The City agrees to submit to King, upon request, copies of all building designs, phos, specifications and related documents for advance approval prior to commencement of work on the project and all such documents shall be subject to King's approval. 2.4 Permit and AooroWs. The City shall obtain all federal, state and local permit approvals required as a precondition to the construction of the Improvements including, without formation, any environmental permits required by the Army Corps of Engineers or the Maine Department of Environmental Protection, aed shall comply with all applicable federal, state and local ordinances pertaining to construction, maintenance and use of the Improvements. 2.5 Right of InSpgcdon. During construction of the Improvements, King or his designated representative shall have the right, but not the obligation, m periodically inspect construction work to assure compliance with project plans. 2.6 Scheduling and Use. For a period of not less than thirty (30) years from the data of completion of construction of the Improvements, the City will adequately maintain and use the Improvements as a public baseball diamond for the primary use of older children not having access to other NCAA regulation size baseball diamond facilities in the greater Bangor area, and for such other public special events as may be approved in advance by the City Council. Scheduling and use of the diamond will be supervised by the Bangor Parks and Recreation Department in accordance with policies established by that Department and the Bangor City Council and with the advice of the Advisory Commission to be established in accordance with Section 2.9 bereof. Senior Little Lague, Coastal, Olympic and American Legion basebaB league teams from the greater Bangor area, and teams from similar successor leagues, shall be given priority with respect to use of the diamond for thein regularly scheduled games and league playoffs. 27 Terms of Use The Improvements donated by King shall be made available for regularly scheduled games of the leagues desenbed above at no charge. The City may, in its sole discretion, charge reasonable fees for use of the baseball diamond for special event uses, night games, playoff and interleague games, non -Bangor area teams and leagues, and for use by teams, leagues and groups above the high school level. In addition, the City may impose reasonable regulations on the operation of any public concession operated in convection with the Improvements, and may require payment of a percentage of any concession receipts to lite City for the Citys use in reconceiving and operating the Improvements. U Maintenance Obligations Upon completion of construction of the Improvements and for a period of thirty (30) years thereafter, the City agrees to maintain the Improvements in a safe and playable condition in accordance with applicable standards established from time to time by the National Collegiate Athletic Association for NCAA "regulation" baseball diamonds, or comparable standards established by any successor organization. In addition, the City agrees to supply, maintain and repair, at its sole expense, water, sewer, electrical service and other utilities needed in connection with use of the Improvements during such thirty (30) year period. Nothing in this Section shall be deemed -2- to prohibit the City from charging or collecting fees for use of the Improvements, including concession commissions, except as otherwise restricted by the terms hereof. 2.9 Psmblishment of Advisory Commission. Following Ectal completion of the improvements, the City shall establish an Advisory Commission for the purpose of advising its Parks and Reaeation Department on issues of maintenanee, scheduling and other policies for use of the Improvements. Members of the Commission shall be Bangor area residents with an interest in baseball and shall be appointed by the Bangor City Council. In lieu of establishing such an Advisory Commission, the Bangor City Council may invest the functions of the Advisory Commission in a larger Hayford Park Advisory Commission or in any, private baseball council organized within the City of Bangor to serve regular users of Hayford Park 3.1 Indemnification. The City hereby covenants and agrees to indemnify and hold harmless King, his heirs, successors and assigns, from and against all claims, demands, actions, suits, proceedings, judgments, decrees, debts, liabilities, costs, fees and expenses, including attorney's fees, of any kind whatsoever which may at any, time be asserted by any person, firm, corporation or governmental agency arising, either directly or indirectly, out of the coostmaiom, maintenance or use of the Improvements. 32 Approval by Citv The City hereby represents that it has the lawful authority to enter into this Memorandum and to accept the donation offered by King on the conditions set forth herein. This Memorandum shall be deemed binding on the City when executed by its City Manager and ratified by Order of the Bangor City Council. The City will promptly deliver to King an attested copy of the County Order ratifying execution of this Memorandum ut N:.:J•• ••a a 4.1 Rights Personal to King. The City acknowledges that it is the intention of King that the Improvements constructed with the proceeds of his donation be used in accordance with his personal wishes as expressed in this Memorandum. Accordingly, it is agreed and acknowledged that any and all rights created by this Memorandum shall be deemed personal to King or, in the event of his death or disability, to his corturvator, personal representative, or hews, and no other person may enforce any such rights as a beneficiary hereof unless such right has been specifically assigned to that person by King. 4.2 Remedw . In the event of a breach of the undertakings, covenants and conditions imposed on the City as set forth in this Memorandum, King, his conservator, personal represenmtive, heirs or assigns, may bring legal proceedings in any appropriate foram for the purpose of specifically enforcing such undertaken& covenant or condition or, in the event that such specific performance is not practical or available under the -3. circumstances, to reform the obligations of the City as set forth in this Memorandum to the extent required to assure that the intent of Ring with respect to the construction, maintenance and use of the Improvements, as expressed in this Memorandum is carried out to the fullest extent predicable under the circumstances. 4.3 Duration of Undenakines. The undertakings and covenants of the City as expressed in this Memorandum shall remain in full force and effect for a period of thirty (30) years from the data of Imnl completion of construction of the Improvements, and the City shall thereafter have no further obligation with respect m maintenance or use of the Improvements and may make such use or disposition of the Improvements as shall seem proper at that time; provided, however, that to the extent it is practicable in do so, the City shall use the Improvements, or the proceeds resulting from any disposition thereof, for purposes consistent with the wishes of King as expressed in this Memorandum. Any funds held by the Qty at the expiration of such thirty (30) year period for maintenance or operation of the Improvements, whether raised by private solicitation, donation, or otherwise, shall be applied as the City may at that time deem proper for parks or other recreational uses within the City of Bangor. 4.4. Binding Effect This Memorandum is intended as a binding agreement by the City to accept the donation offered by King on the terms and conditions herein set forth. This Memorandum embodies the entire understanding of the parties with respect to the subject matter hereof, and no modification of this Memorandum or the terms set forth herein shall be deemed effective unless in a writing executed by both parties or thein authorized representatives. 45 Governing Law. This Memorandum shall be coaamed in accordance with and shall be governed by the laws of the State of Maine. 4.6 Charitable Contribution. 'he City acknowledges that it is the intention of Icing that his donation qualify as a charitable contribution as that term is defined in Section 170(c) of the Internal Revenue Code of 1986, as amended. Accordingly, this Memorandum is to be consimed to further such imen4 and any provision herein, to the extent that it would cause said donation not to qualify as mcb charitable contribution, shall be deemed null and void. IN WITNESS WHEREOF, the partes harem have caused this Memorandum to be executed under seal as of the day and year first above it c2¢i Stephen Kidg CITY OF BANGOR TA.• ( �� o,. By Its Cif LZ STATE OF MAIME Penobscot County hv6vli A .1991 Personallyappeared the above-named Stephen Kingandacknowledged the foregoing instrument to be his free ad and deed. Before me, Attomry-at-law Print m type name as signed STATE 0P MAINE Penobscot County I August 2, 1991 Personally appeared the above-named Reward A. Bavrecc and acknowledged the foregoing instrument tp be his free act and deed, and the free act and deed of said body corporate. Before me,_ -_t^ ALY�olrnVely-at%Ema/Nota Public Print or type nmie as aimed -5- TIE AM CORPORATION sayummaH IAM a MAMIRS August 1, 1991 Mr. David Pellegrino Purchasing Agent City of Bangor 73 Harlow St. Bangor, Maine 04401 Re: Stephen Bing Baseball Field - Phase I The Ames Corporation would be pleased to perform Construction Contract Administrative and Quality Assurance services as Project Representative and Agent to the City of Bangor for the Baseball Field portion of the Project. We propose to render these services in accordance with the attached" General Provisions and Schedule of Hourly Rates, which. shall not exceed $10,000. The services are intended to be Performed by Mr. Richard Derosier. If you are in agreement with this proposal, please sign and return one copy to this office. V TYours, tN— Richar erosier Contra Administrator Accepted by _ Accepted by Brian A. Ames David H. Pellegrino President Purchasing Agent 115 Main St., P.O. Box 2610 73 Harlow St. Bangor, Me. 04402-2610 Bangor, Me. 04401 115 MUN SHEVA) WX M1MBMx:OR ME 04W1-9m/XP-%7m5YiAr 47941021 GENERAL PROVISIONS Attached to and made part of LETTER AGREEMENT dated August 1, 1991 between the City of Bangor (OWNER) and The Ames Corporation, hereinafter referred to as the PROJECT REPRESENTATIVE, in respect to the project described therein. 1.1 Construction Phase During the Construction Phase: 1.1.1 General Admini tKation of Construction Contract,All of OWNER'S instructions to Contractor(s) will be issued through PROJECT REPRESENTATIVE who will have authority to act on behalf of OWNER to the extent provided in said Standard Conditions except as otherwise provided in writing. 1.1.2 Eigits to Site and Obsenatinn of Construction. In connection with observations of the work an Contractor(s) while it is in progress: 1.1.2.1 PROJECT REPRESENTATIVE shall make visite to the site at intervals appropriate to the various stages of construction as he deems necessary i order to observe as an experienced and qualified design professional the progress and quality of the aspects of Contractor(s)' work. Baseda information obtained during such sits and such observations, PROJECT REPRESENTATIVE Shall endeavor to determine in general if such work is proceeding in accordance with the contract Documents and he shall keep OWNER informed of the progress of the work. 1.1.2.2 The PROJECT REPRESENTATIVE (and any assistants) will be agent and consultant to the City of Bangor. 1.1.2.3 The purpose of visits to and representation by the PROJECT REPRESENTATIVE(and assistants, if any) at the site will be to enable him to better carry out the duties and responsibilities signed to and undertaken by PROJECT REPRESENTATIVE during the Construction Phase, and, in addition, by exercise of his efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed work of Contractor(s) will conform generally to the Contract Documents and that the integrity of the design concept as reflected in the Contract Documents has been implemented and preserved to be Contractor(s). On the other hand, PROJECT REPRESENTATIVE shall not, during such visits or aresult of such observations of Contractor(s)' work in progress, supervise, direct or have control over Contractor(s)' work nor shall PROJECT REPRESENTATIVE have authority over or responsibility for the means, methods, techniques, sequences o procedures of construction selected by Contractor(s), for safety precautions and programs incident to the work of Contractor(s) or for any failure of contractor(s) to comply with laws, rules, regulations, ordinances, cedes or orders applicable to Contractor(s) furnishing and performing their work. Accordingly, PROJECT REPRESENTATIVE can neither guarantee the performance of the construction contracts by Contractor(s) nor responsibility for Contractor(s) failure to furnish and perform their work in accordance with the Contract Documents. 1.1.3 Defectivew ork. During such visits and on the basis of such observations,PROJECT REPRESENTATIVE may disapprove of o reject Contractor(s)' work while it is in progress if he believes that such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the Project as reflected in the Contract Documents. 1.1.4 Intern relations and Clarificati one PROJECT REPRESENTATIVE shall issue necessary interpretations and clarifications of the Contract Documents andin nnection therewith prepare work directive changes and changeorders, review andemmend Contractor Pay Requests, and secure appropriate Waivers of Lien. 1.1.5 Inspections and Tests. PROJECT REPRESENTATIVE shall have authority, as OWNER's representative, to require special inspection or testing of the work, and shall receive and review all certificates of inspections, testings and approvals required by laws, rules, regulations, ordinances, codes, orders or the Contract Documents (but only to determine generally that their content complies with the requirements of, and the results certified indicate compliance with, the Contract Documents). 1.1.6 Disputes between OWNER and Contractor. PROJECT REPRESENTATIVE shall act as initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the work thereunder and make decisions on all claims of OWNER and Contractor(s) relating to the acceptability of the work or the interpretation of the requirements of the contract Documents pertaining to the execution and progress of the work. PROJECT REPRESENTATIVE shall not be liable for the results of any such interpretations or decisions rendered in good faith. 1.1.7 Limitation of Responsibl l i ties. PROJECT REPRESENTATIVE shall not he responsible for the acts or omissions of any Contractor, o of any subcontractor o supplier, o any of the Cant Tact or (a) or Soho not rest or' s o r supplier's agents r employees or any other person (except engineer'snemployees and agents) at the site o otherwise furnishing or performing any of the Contractor(s)' work; however, nothing contained in paragraphs 1.1.1 through 1.1.8 inclusive, shall be construed to release PROJECT REPRESENTATIVE from liability for failure to properly perform duties and responsibilities assumed by PROJECT REPRESENTATIVE in the Contract Documents. 1.1.8 Limitation of Liability. The PROJECT REPRESENTATIVE liability for damages due to professional negligence will be limited to an amount net to exceed PROJECT REPRESENTATIVE'S fee for this contract. TEE AMES CORPORATION SCHEDULE OF HOURLY RATES Principal -In -Charge $100.00 Senior Structural Engineer 80.00 Landscape Architect/Planner 75.00 Senior Architect 70.00 Senior Civil Engineer 60.00 Senior Technician 60.00 Structural Engineer 50.00 Civil Engineer 50.00 Project Architect 50.00 Construction Administrator 50.00 Technician 40.00 Drafter 30.00 Clerical 30.00 Production Clerk 25.00 CARD (Machine Time) 20.00 Clerk -of -the -Works Per Project Reimbursable Expenses: Reproductions, travel expense (includes the mileage rate of $.35/mile reimbursed to our employees) accommodations, and consultants will be billed to the Client at 110 percent times cost• Interest: Interest will be charged at the rate of 1 percent per month (128 per annum) on balances outstanding after 15 daps of date Of invoice. DRAFT q/ef CONSTRUCTION AGREEMENT This Construction Agreement is entered into as of the 6th day of august, 1991 by and between Crowell Construction, Inc. of Bast Stoneham, Maine (the "Contractor') and the City of Bangor, a municipality Organized and existing under the laws of the State Of; Maine (the "Owner"). - dA Recitals The Owner has title to atract of land in Bangor, Maine, Chat is generally known as Hayford Park on which it wants to construct an NCAA regulation -size baseball diamond. The. Owner wants to employ the Contractor to construct the baseball diamond and the Contractor is ready, willing and able to commence construction. Now, therefore, the parties agree as follows: article 1 The Project 1.1 The total project Contemplated by the owner is the construction of an NCAA regulation -size baseball diamond, grandstand, restrooms, Concession stand, lighting and fencing (the "Project"). - - 1.2 This Construction Agreement shall be limited in scope to Phase 1 of Me Project, which shall include excavation, irriga- tion, fencing, sod, infield surface and general expenses as set forth on Schedule A (the "Work•). It is contemplated that Phase 2 Of the Project Willinclude the constriction of the grandstand, restrooms,-concession stand and lighting and will be covered by aseparate construction agreement. -. Article 2 C0htraetor4S Responsibilities 2.1 Contractor's Services A 5.]..1 The Contractor shall be responsible for Completion of the Work in accordance with the attached plans and specifications, which have been reviewed and. approved by both the Contractor and the owner and which are incorporated herein by reference. 2.2 Responsibilities with Respect to Construction 2.2.1 The Contractor will provide all Construction supervision, inspection, labor, materials, tools, construction. equipment and subcontracted items necessary for the execution and completion of the Work. The owner will furnish a clerk of the works who will be the Owner's on-site representative during construction of the Project, as Provided in Article 3 below. 2.2.2 Not later than August 12, 1991, the Contractor will prepare and submit for the owners approval an estimated progress Schedule for the Work. This schedule shall indicate the dates for the starting and completion of the various stages of the- construction., It shall be revised as required by the conditions Of the Work and those conditions and events which are beyond the Contractor's Control.. 2.2.3 The Contractor shall at all times keep the premises free from the accumulation of waste materials or rubbish caused by its operations. At the completion of the Work, the Contractor shall remove all waste material and rubbish from and around the Project as well as all tools, construction equipment, machinery and surplus materials. 2.2.4 The contractor will give all notices and comply with all. laws and ordinances which govern the proper execution of the Work. 2.2.5 The Contractor shall take necessary precautions for the safety of its employees, and shall comply with all applicable Provisions of federal, state and municipal safety, health and environmental laws to Prevent accidents or injury to persons on, about or adjacent to the Project site. The Contractor shall erect and properly maintain, at all times, as required by the Conditions and progress of the Work, necessary safeguards for the protection of workers and the public. 2.3 Warranties and Completion 2.3.1 The Contractor warrants to the Owner that all materials and equipment furnished under this Agreement will be new, unless otherwise specified, and that all Work will be of good quality, free from improper workmanship and defective materials and in conformance with the Drawings and Specifications. The Contractor agrees to correct all Work performed under this Agreement which proves to be defective in material and workmanship within a. period of one year from the Date of Substantial Completion as defined in Paragraph 5.2, or for such longer periods of time as may be set forth with respect to specific warranties Contained in the Specifications. - 2.3.2 The Contractor, with the assistance of the owner's maintenance personnel, will direct the checkout of utilities and operations of systems and equipment for readiness. -2- Article 3 Owner's Responsibilities 3.1 The owner shall provide full information regarding its requirements for the Work to be performed on the Project. 3.1, Me owner shall designate a representative who shall be fully acquainted with the Projectg and has authority to approve minor changes, render decisions promptly, and furnish Information expeditiously and in time to meet the dates set forth in subpara- graph 2.2.2. 3.3 The owner shall make available to the Contractor all information which it has regarding the site of the Project including surveys, soils reports and subsurface investigations, legal limitations, sewer locations, and above -ground utility locations known to the Owner. The Contractor shall be responsible to obtain information regarding the location of underground water and electric utilities from the utility Provider concerned. 3.4 The owner shall secure and pay for all necessary approvals, easements, assessments and Charges required for the construction, use, or occupancy of the Project site. The Contractor shall secure necessary building permits. The owner agrees to waive its applicable fees for issuance of any municipal building permit or other approvals. 3.5 if the owner becomes aware of any fault or defect in the Work or non-conformance with the Drawings or Specifications, the Owner shall give prompt written notice thereof to the Contractor. The Contractor shall give similar notice of defects to the Owner. 3.6 The Owner shall have no contractual obligation to the Contractor's Subcontractors and shall communicate with such Subcontractors only through the Contractor. Article 4 subcontracts 4.1 All portions of the work that the Contractor does not perform with its own forces shall be performed under subcontracts. The owner shall separately contract for all necessary testing and inspections. 4.3 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform any Work in connection with the Project. The term *Subcontractor" does not include any separate contractor employed by the Owner. -3- 6.3 No contractual relationship shall exist between the Ower and any Subcontractor. The Contractor shall be responsible for the management of the Subcontractors in the. Performance of their Work. Article 5 - Contract Time Schedule 5:1 no Work to be performed under, this. Agreement shall commence on or about August 6, 1991 and shall be substantially completed on or about November 15, 1991. 5.2 Me Date of SubstantialCompletionof the Work or a designated Portion thereof is the data when construction is sufficiently complete in accordance with the Drawings or Specifications. Warranties called for by this Agreement or by the Drawings and Specifications shall commence on the Date of Substantial Completion of the Work or designated portion thereof. This date shall be established by a certificate of Substantial Completion signed by the Ower and Contractor and shall state their respective responsibilities for security, maintenance, damage to the Work and insurance. This certificate shall also list the items to be completed or corrected and fix the time for their completion and correction. 5.3 If the Contractor is delayed at any time in the progress Of the Work by any act or neglect of the Owner, or by changes ordered in the Work, or by labor disputes, unusual delay in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, or any causes beyond the Contractorls control, or a delay authorized by the Owner pending arbitration, then the Date for Substantial Completion shall be extended by Change Order for the period caused by such delay. Article 6 Lump Sum Price. 6.1 The Lump Sum price for the Work will not exceed $520,000 unless authorized by Change Order as described in Article 7. 6.3 The Lump Sum is based upon criteria, Drawings and Specifications as set forth in this Agreement, as well as current laws, ordinances, codes and regulations. 6.3 The Lump Sum will be modified for delays caused by the Owner and for Ganges in the Work, all pursuant to Article 7. -4- Article 7 Changes in the Work 7.1 The Owner, without invalidating this Agreement, may order Changes in the Work within the general scope of this Agreement consisting of additions, deletions or other revisions. The Lump Sum^, and the Contract Time Schedule, shall be adjusted accordingly. All such Changes in the Work shall be authorized byychange order. 111. 7. 1.1 A Change Order is aWritten order to the Contractor signed by the Owner or the Owner's authorized agent and issued after the execution of this Agreement, authorizing a Change in the Work and/or an adjustment in the Lump Sum or the Contract Time Schedule. 7.1.1 The increase r decrease in the Lump Sum resulting from a Change in MeWorkshall be determined in one or more of the following ways: 7.1.1.1 by mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; or 7.1.3.3 by unit prices stated in this Agreement or subsequently agreed upon. 7.1.3 If unit prices a stated in this Agreement or subsequently agreed upon, and if the quantities originally contemplated are so changed in a proposed Change Order or as a result of s ral Change orders that application of the agreed unit priceseto the quantities of Work proposed will cause substantial inequity to the Owner or the Contractor, the applicable unit prices and the Lump Sum shall be equitably adjusted. 7.1.4 Should concealed conditions encountered in the performance of the Work below the surface of the ground be at v with no conditions indicated by the Drawings, Specifications, Owner -furnished information or should unknown physical conditions balm the surface of the ground of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character. provided for in this Agreement, be encountered, the Lump Sum and the Contract Time Schedule shall be equitably adjusted by Change Order upon claim by either party made within a reasonable time after the first observance of the conditions. 7.3 Claims for Additional Cost Or Ties 7.3.1 I£ the Contractor wishes to make a claim for an increase 1n the Lump Sum or an extension in the Contract Time Schedule, he -5- shall give the owner written notice thereof within a reasonable time after the occurrence of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering life o property in which case the Contractor shall act, at its discret- ion, to prevent threatened damage, injury or lose. Claims arising from delay shall be made within a reasonable time after the delay. Increases based upon design and estimating costs with respect to possible changes requested by the Owner, shall be made within a reasonable time after the decision is made not to proceed with the Change. No such claim shall be valid unless so made. If the Owner and the Contractor cannot agree on the amount of Ne adjustment in the Lump Som, and the Contract Time Schedule, it shall be determined pursuant to the provisions of Article 13. My change in the Lump Sum or Contract Time Schedule resulting from such claim shall be authorized by Change Order. 7.3 Binor Changes in the Project 7.3.1 The Owner will have authority to order minor Changes in the Work not involving an adjustment in the Lump Sum or an extension of the Contract Time Schedule and not inconsistent with the intent of the Drawings and Specifications. Such Changes may be effected by Written order and shall be binding on the Owner and the Contractor. La zmergenmies - y.a.Y In any emergency affecting the safety of persons o property, the Contractor shall act, at its discretion, to prevent threatened damage, injury or loss. My increase in the Lump Sum or extension of time claimed by the Contractor on account of emergency work shall be determined as provided in this Article. Article a Payments to the Contractor 8.1 Payments shall be made by the Owner to the Contractor according to the budget set forth on Schedule B. The contractor Shall be entitled to receive scheduled progress payments upon presentation of approved vouchers reflecting completion of work equal in value to the amount to be advanced, including advances previously made. 8.3 The Contractor warrants and guarantees that title to all Work, materials and equipment will pass to the Owner free and clear of all liens, Claims, security interests or encumbrances (hereinafter referred to as Liens). The contractor shall provide the Owner with satisfactory evidence of Lien Waivers by Subcontractors for Work done, as a condition of payment to the - Contractor of any subsequent Progress Payments designated in Schedule B. -6- 8.3. No Progress Payment, nor any partial or entire use e or occupancy of the Project by the Owner shall constitutean acceptance of any Work not in accordance with the Drawings and Specifications. 8.4 Final payment constituting the unpaid balance of the Work under this Agreement shall be due and payable when the Project is delivered.to the Owner, ready for beneficial occupancy, provided that the Work be then substantially completed and this Agreement substantially performed. If there should remain minor items to be completed, the Contractor and the Owner shall list such items and the Contractor shall deliver, in writing, his. guarantee to complete said items within a reasonable time thereafter. The Owner may retain a sum equal to Iso percent of the estimated cost of completing any unfinished items, provided that said unfinished -items are listed separately and the estimated cost of completing any unfinished items is likewise listed separately. Thereafter, .the Owner shall pay to the Contractor, monthly, the amount retained for incomplete items as each of said items is completed. 8.5 Before issuance of Final Payment, the Contractor shall provide the Owner with satisfactory evidence that all payrolls,.. materials bills and other indebtedness connected with the Work have been paid or otherwise satisfied. 8.8 The making of Final Payment shall constitute a waiver of all claims by the Owner except those rising from: -unsettled liens; improper workmanship or defective materials appearing within one year after the Date of Substantial Completion; and terms of any special guarantees required by the Drawings and Specifications. 8.7 The acceptance of Final Payment shall constitute a waiver of all claims by the Contractor except those. previously made in writing and unsettled. article 9 Insurance, Indemnity and Waiver of subrogation 9.1 Indemnity 9.1.1 The Contractor agrees to indemnify and hold the Owner harmless from all claims for bodily injury and property damage (other than the Work itself and other property insured under Paragraph 9.4) that may arise from the Contractor's operations under this Agreement. 9.1.E The Owner shall cause any other contractor who may have a contract win the Owner to perform work in the areas where Work will be performed under this Agreement, to agree to indemnify the Owner and the Contractor and hold them harmless from all claims for bodily injury and property damage (other than property -7- insured under Paragraph 9.6) that may arise from that contractor's operations. Such. provisions shall be in a form satisfactory to the Contractor. 9.2 Contractors Liability Insurance 9.2.1 The Contractor shall purchase and maintain such insurance mwill protect it from the claims set -forth below which may ise out of or result from the Contractor's operations under tkiis Agreement whether such operationa.be by itself or by any .Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: 9.2.1.1 Claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; 9.2.1.2 Claims for damages because of bodily injury, - occupational sickness or disease, or death of its employees under any applicable employer's liability law; 9.2.1.3 Claims for damages because of bodily injury, or death of any person other than its employees; 9.2.1.6 Claims for damages insured by usual personal injury liability Coverage which are sustained (1) by any person as a result of an offense directly or indirectly related to the employment of such person by the Contractor or (2) by any other person; , 9.2.1.3 Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use therefrom; 9.2.1.6 Claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. 9.2.2 The Comprehensive General Liability Insurance shall include premises -operations (including explosion, collapse and underground coverage), independent contractors, completed operations, and blanket contractual liability on all written contracts, all including broad form property damage coverage. 9.2.3 The Contractor's Comprehensive General and Automobile Liability Insurance, as required by Subparagraphs 9.2.1 and 9.2.2 shall be Written for not less than limits of liability as. follows: a. Comprehensive General Liability 1. Bodily Injury $ 1.000.000.00 Each occurrence (Completed Operations) $1.000.000.00 Aggregate 2. Property Damage $ 1.000.000.00 Each Occurrence $_1 000.D00.00 Aggregate b. Comprehensive Automobile Liability 1. Bodily injury and $ 1.000.000.00 Each Person Property Damage $ 1.000.000.00 Each Occurrence 9.2.9 Comprehensive General Liability Insurance may be arranged under a single Policy for the full limits required or by a com- bination of underlying policies with the balance provided by an Excess or Umbrella Liability policy. 9.2.5 The foregoing policies shall name the City of Bangor as an additional insured and shall contain a provision that coverages afforded under the policies will not be canceled or not renewed until at least sixty (60) days' prior Written notice has been given to the owner. Certificates of Insurance showing such coverages to be in force shall be filed with the Owner prior to commencement of the Work. 9.3 owner's Liability Insurance 9.3.1 The Owner shall be responsible for purchasing and maintaining its own liability insurance or self-insurance and, at its option, may Purchase and maintain such insurance as will protect it against claims which may arise from operations under this Agreement. 9.9 Waiver of subrogation 9.4.2 The Owner and Contractor waive all rights against each other and the subcontractors for loss or damage to any equipment used in connection with the Project which loss is covered by any property insurance. Article le Termination of the Agreement and Owner's Right to Perform Contractor's obligations 10.1 Termination by the Contractor 10.1.1 If the Project is stopped for a period of thirty (30) days under an order of any court or other Public authority having jurisdiction, or as a result of an act of state or federal government, such as a declaration. of a national emergency making -9- materials unavailable, through no act or fault of the Contractor or if the Project should be stopped for a period of thirty (30) days by the Contractor for the Owner's failure to make payment thereon, then the Contractor may, upon seven days' written notice to the Owner, terminate this agreement and recover from the owner payment for all Work executed, the Lump Sum earned to date, and for any proven loss sustained upon any materials, equipment, tools, construction equipment and machinery, including reasonable profit. 10.1 Owner's Wight to Perform Contractor's Obligations and Termination by the Owner for Cause 10.2.1 If the Contractor fails to perform any of its obligations under this Agreement, including any obligation to perform Work with its own forces, the Owner may, after seven days' written notice, during which period the Contractor fails to perform such obligation, make good such deficiencies. The Lump Sam, if any, shall be reduced by the cost to the Owner of making good such deficiencies. 10.1.1 If the Contractor is adjudged a bankrupt, or if it makes a general assignment for the benefit of its creditors, or if a receiver is appointed on account of its insolvency, or if it persistently or repeatedly refuses or fails, except in cases for which extension of time is provided, to supply enough properly skilled workers or proper materials, or if it fails to make proper payment to Subcontractors for materials or labor, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or otherwise is guilty of a substantial violation of a provision of this Agreement, then the Owner may, without prejudice to any right or remedy and after giving the Contractor seven (2) days' written notice, during which period the Contractor fails to cure the violation, terminate the employment of the contractor and take possession of the site and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Con- tractor and may finish the Work by whatever reasonable method it may deem expedient. In such case, the Contractor shall not be entitled to r any further payment until the Work is finished nor shall it be relieved from its obligations assumed under Article 6. 10.3 Termination by Owner Without Cause 10.3.1 If the Owner terminates the Agreement other than pursuant to 10.2.2, it shall pay the Contractor the total of; (a) Costs incurred by the Contractor in performing the Work; (b) Costs in- curred in settling and paying termination claims under terminated subcontracts; (c) Storage, transportation, demobilization and other costs incurred for the preservation, protection or disposi- tion of material and equipment on the Project) (d) Overhead at ten percent (101) of the total amount of (a) through (c) above; -10- profit at ten percent (102) of the total amount of (a) through (c) above, as adjusted pursuant to Articles 6 and 7. In. calculating the amount due the Contractor under this clause, a deduction shall be made for all payments to. the contractor under this Agreement. Article 11 Assignment and governing Law 11.1 Neither the Owner nor the Contractor shall assign its interest in this Agreement without the written consent of the other except as to the assignment of proceeds. 11.2 This Agreement shall be governed by the laws of the State of Maine. Article 12 miscellaneous Provisions 12.1 It is specifically agreed that no. performance bond or other surety shall be required of the Contractor. 12.2 It is understood by the parties that payment of the installments due under this Construction Agreement will he funded by one or more gifts to the Owner and that progress payments to be made under Schedule N may be reasonably delayed pending receipt of gifted funds. Article 13 Arbitration 13.1 Agreement to Arbitrate 13.1.1 All claims, disputes and matters in question arising out of, or relating to this Agreement or the breach thereof, except for claims which have been waived. by the making or acceptance of final payment, and the claims described in Paragraph 13.7, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Associa- tion then in effect unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. 1312 Notice of Demand 13.1.3 Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement And with the American Arbitration Association.. The demand forarbitration shall be made within a reasonable time after written notice of the claim, dispute or other matter in question has been given, -11- and in no event shall it be made after the date of final acceptance of the Work by the Owner or when institution of legal or equitable proceedings based on such claim, dispute or other matter in.question would be barred by the applicable statute of limitations, whichever shall first occur. The location of the arbitration proceedings shall be in Bangor, Maine. 13., Award 13.3.1 The award rendered by the arbitrators shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. 13.6 Work Continuation aad payment 13.6.1 Unless otherwise agreed in Writing, the Contractor shall carry on the Work and maintain the Schedule of Work pending arbitration, and, if $o, the Owner shall continue to make Payments in accordance with this Agreement. - 13.3 No Limitation of Rights or Remedies 13.5.1 Nothing in this Article shall limit any rights o remedies not expressly waived by the Contractor which the Contractor may have under lien laws or payment bonds. - 13.6 Same Arbitrators. 13.6.1 To the maximum extent permitted by law, all claims which e related to or dependent upon each other, shall be heard by the same arbitrator or arbitrators even through the parties are not the same. - 13.7 =Captions 13.7.1 This agreement to arbitrate shall not apply to any claim of contribution or indemnity asserted by one party to this Agreement against the other party and arising out of any action brought in a state or federal court or in arbitration by a person Who is under no obligation to arbitrate the subject matter of such action with either of the parties hereto. In any dispute arising over the application of this Paragraph 13.7, the question of arbitrability shall be decided by the appropriate court and not.by arbitration. Attest: City of Bangor Attest] Crowell Construction, Inc. -12- schedule A 1. General Expenses: Includes design, engineering and planning for the entire proposed ballfield project. _ 2. Excavation: Includes all labor and materials for excavation and drainage to complete ballfield project as per plans/specifications. J. Irrigation: Includes all labor and materials for irrigation of field to mechanical room water supply as per plans/ specifications. - 4. Fencing: Includes all labor and materials for playing field fencing as per plana/specifications. Note: This figure does not include fencing, bandrails, etc. for grandstand. 5. Sod: Includes all labor and materials for playing field sod as per plana/specifications. Note: This figure does not include any sodding or hydroseeding outside playing .field fence. 6. Baseball Diamond: Includes all labor and materials for the infield surface as per plans/specifications. TOTAL BUDGET PHASE 1 Schedule B IMAGE I 1. General Expenses: Engineering - Bob Swift Engineering $ 7,900.00 Permit Fees - City of Bangor 0.00 - Insurance - Chalmers Insurance 5,260.00 Design/Planning - Ulis J. Tacos Assoc./ Crowell Construction 25,000.00 Project Manager - Crowell Construction - 36,000.00 Construction Fencing - superior Fence 2,500.00 Erosion Control - Crowell Construction 500.00 Total General Expenses $ 77,160.00 2. Excavation - H. E. Bridges, Inc.. $310,500.00 3. Irrigation - Irrigation Systems of Maine $ 20,958.00 4. Fencing - superior Fence Co. $ 24,000.00 5. sod - New Land Nursery and Landscaping $-39,100.00 6. Baseball Diamond - Bean Clay Co./ New Land Nursery, $ 23,000.00 7. Contingency S 25.282.00 TOTAL BUDGET PHASE 1