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.
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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.
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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
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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.
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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
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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
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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;
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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,
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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.
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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