HomeMy WebLinkAbout19- Construction Agreement - Lutey Construction, The Craftsman, Inc. - Parking Garage Suite 4 Modification CONSTRUCTION AGREEMENT
This Construction Agreement is made this 5th day of February,2019,by and between the
CITY OF BOZEMAN, MONTANA, a municipal corporation organized and existing under the
laws of the State of Montana,P.O.Box 1231,Bozeman,Montana 59771-1231 ("City"),and Lutey
Construction,The Craftsman, INC. at 420 S. 13"Ave. Bozeman, MT 59715 ("Contractor").
Recitals
A. The City issued an Invitation to Bid for the construction project known as Parking
Garage — Suite 4 Modification ("Construction Project") pursuant to the requirements of all
applicable statutes,rules,regulations, and ordinances.
B. The City analyzed all responses to the request for pricing received pursuant to its
standard practices and the requirements of all applicable statutes, rules, regulations, and
ordinances.
C. The City awarded the bid to Contractor on January 17, 2019,pursuant to the terms
and conditions of this Agreement.
NOW THEREFORE,in consideration of the covenants,agreements,representations, and
warranties contained herein,the parties agree as follows:
Agreement
1. Work to be Performed:
a. A description of the Construction Project and Contractor's duties is set forth
in Proposal and in the Parking Garage — Suite 4 Modification Plans as awarded and
accepted by City and the Construction Documents for the Project, which are attached
hereto as Exhibits A and E and incorporated herein by this reference, and the drawings,
plans, and specifications provided by the City and its architects and engineers. Where a
provision of any other portion of the Construction Documents conflicts with this
Agreement,the terms and conditions of this Agreement shall control.
b. Prior to the commencement of any work on the Construction Project,
Contractor's representatives and City's representatives shall hold a meeting to establish a
working understanding among the parties as to the scope of the Construction Project and
duties of the Contractor. At this meeting,Contractor and City shall resolve any outstanding
issues related to the plans, designs, drawings, and specifications. If the parties are unable
to resolve these issues and the City fails,refuses,or is unable to approve the same,no work
shall commence on the Construction Project until such issues are resolved and the City
approves the related plans, designs, drawings, and specifications.
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C. Except as provided elsewhere in this Agreement, Contractor shall furnish
all the labor,materials, equipment, tools, and services necessary to perform and complete
the Construction Project.
d. During work on the Construction Project,and as part of the final completion
of the Construction Project,Contractor shall clean up the Project site,including the removal
and satisfactory disposal of all waste, garbage, excess materials, equipment, temporary
buildings,the removal or grading of all embankments made for construction purposes,the
filling in of all excavations,and the performance of any other work necessary to restore the
site to at least as good order and condition as at the commencement of the Construction
Project.
2. City-Supplied Materials: The City may supply materials from time to time in
furtherance of the Construction Project. Such materials will be noted as an addendum to
this Agreement.
3. Time of Performance:
a. Contractor shall begin the Construction Project after receiving a Notice to
Proceed from City. After receiving the Notice to Proceed from the City Contractor shall
develop a Construction Schedule including completion date for approval by the City which
shall become part of this Agreement. Time is of the essence of completion of all work and
each phase of the Construction Project.
b. The Construction Schedule is subject to the City's approval. Contractor's
construction plan,methods of operation,materials used,and individuals and subcontractors
employed (collectively"Contractor's Resources") are subject to the City's approval at all
times during the term of this Agreement, and must be such as to ensure the completion of
the work in compliance with the deadlines set in the Construction Schedule during the term
of this Agreement. In the event the City determines the Contractor's Resources are
inadequate to meet the approved Construction Schedule,the City may order the Contractor
to accelerate its performance to give reasonable assurances of timely completion and
quality results. Acceleration under this section shall not be deemed a Change Order as
defined in Section 5b below and the Contractor shall receive no equitable adjustment for
such acceleration. Nothing in this section shall be interpreted to relieve the Contractor of
its duties and responsibilities to plan for and complete the work in a timely manner
according to the Construction Schedule.
4. Liquidated Damages: If the Construction Project is not completed within the time
provided by this Agreement, the City may deduct for each day the Construction Project
remains uncompleted the sum of Five Hundred Dollars ($500.00) from the compensation
hereinafter specified and retain that sum as payment for liquidated damages sustained by
reason of the Contractor's failure to complete the Construction Project on time.
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5. Compensation:
a. City shall pay to Contractor,and Contractor shall accept as full payment for
the performance of this Agreement and the Construction Project, the amount of thirty
thousand seven hundred thirteen dollars and twenty one cents ($30,713.21) plus cost of
required permits, and an additional $500 for the city-required builders risk insurance, as
paid in accordance with Exhibit B, Compensation Schedule, attached hereto.
b. If work not included within the original Construction Documents is
requested by City, such additional work and the related compensation shall be agreed to in
writing by both parties prior to commencement of the additional work ("Change Order")
pursuant to the Change of Work Specifications set forth on Exhibit C attached hereto.
C. Monthly progress payments and final payment will be made only in
accordance with the terms of a completed Application for Payment in accordance with the
Compensation Schedule, Exhibit B to be approved by the City's Representative. All
invoices must be submitted to the City's Representative.
d. City shall retain five percent (5%) of the total amount of compensation to
be paid to the Contractor to ensure compliance with the terms and conditions of this
Agreement and the timely completion of the Construction Project and any and all "punch
list"items("Retainage Amount"). The Retainage Amount shall be paid to Contractor thirty
(30) days after the City's final acceptance of the portion of work for which a separate price
is stated in the specifications for the Construction Project.
e. Upon acceptance of final payment and for other good and valuable I�
consideration, Contractor shall and hereby does release and forever discharge City, its
officers, agents, and employees of and from any and all claims, demands, actions, causes
of action,obligations, and liabilities of every kind and character whatsoever,in law and in
equity, whether now known or in the future discovered, arising from or related to this
Agreement or the Construction Project that Contractor may have or assert against City, its
officers, agents, and employees. i
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6. Inspection and Testing: II
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a. City has the right to inspect and test any and all work performed by
Contractor on the Construction Project. Contractor shall allow City and its agents access
to the Construction Project at all times and shall provide every reasonable facility for the
purpose of such inspection and testing,including temporarily discontinuing portions of the
work or uncovering or taking down portions of the finished work. Any inspection and
testing performed by the City and its agents is for the sole benefit of the City and shall not
relieve the Contractor of its duty, responsibility, and obligation to ensure that the work
strictly complies with the Agreement terms and conditions and all applicable laws and
building and safety codes. City's inspection and testing shall not be deemed or considered
acceptance by the City of any portion of the Construction Project. City's inspection and
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testing shall not serve to nullify, amend, or waive any warranties provided by the
Contractor under this Agreement.
b. Contractor shall, without charge, replace any material or correct any work
found by the City or its agents to be defective or otherwise not in compliance with the terms
and conditions of this Agreement. In the event Contractor fails to replace or correct any
defective work or materials after reasonable written notice by the City to do so, the City
may take such corrective action, either with its own materials and employees or by
retaining any third party to do so,and deduct the cost and expense of such corrective action
from the Contractor's compensation.
7. Partial Utilization of Construction Project: City shall have the right to use or
occupy any portion of the Construction Project that City and Contractor mutually agree is
substantially completed and constitutes a separately functioning and usable part of the
Construction Project for its intended purpose without significant interference with Contractor's
performance of the remaining portions of the Construction Project. In the event City takes
possession of any portion of the Construction Project, such possession shall not be deemed an
acceptance of the Construction Project, in whole or in part. Contractor shall still be required to
conduct any final testing of the portions in the possession of the City. City's use of any portion of
the Construction Project shall not be grounds for extensions of any construction deadlines or a
change in the Contractor's compensation. Contractor's warranties shall run from the completion
of the total Construction Project and not from the date the City may take possession of selected
portions of the Construction Project.
S. Related Work at the Site: Nothing in this Agreement shall prevent or preclude
City, through its own employees or by contract with any third party, from performing other work
related to the Construction Project at the construction site; provided such related work is not
otherwise addressed in this Agreement and provided such related work does not otherwise interfere
with Contractor's performance of this Agreement or the completion of the Construction Project.
Contractor shall afford any City employee, agent or representative, or any third party under
contract with the City to perform the related work,proper and safe access to the construction site,
a reasonable opportunity for the introduction and storage of materials and equipment, the
opportunity to perform the related work, and shall properly coordinate the Contractor's work on
the Construction Project with the related work.
9. Contractor's Warranties: Contractor represents and warrants as follows:
a. Unless otherwise specified by the terms of this Agreement,all materials and
equipment used by Contractor on the Construction Project shall be new and where not
otherwise specified, of the most suitable grade for their intended uses.
b. All workmanship and materials shall be of a kind and nature acceptable to
the City.
C. All equipment,materials, and labor provided to, on, or for the Construction
Project must be free of defects and nonconformities in design,materials,and workmanship
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for a minimum period beginning with the commencement of the work on the Construction
Project and ending one (1) year from the final completion and acceptance by the City of
the Construction Project, regardless of whether such equipment, materials, or labor were
supplied directly by Contractor or indirectly by Contractor's subcontractors or suppliers.
Other express warranties on materials that provide for a warranty period longer than one
year apply for the period of that express warranty and are not reduced by this provision.
Upon receipt of City's written notice of a defective or nonconforming condition during the
warranty period, Contractor shall take all actions, including redesign and replacement, to
correct the defective or nonconforming condition within a time frame acceptable to the
City and at no additional cost to the City. Contractor shall also, at its sole cost, perform
any tests required by City to verify that such defective or nonconforming condition has
been corrected. Contractor warrants the corrective action taken against defective and
nonconforming conditions for aperiod of an additional one(1)year from the date of City's
acceptance of the corrective action.
d. Contractor and its sureties are liable for the satisfaction and full
performance of all warranties.
e. Contractor shall give its personal attention to the faithful prosecution of the
completion of the Construction Project and Contractor,or its duly authorized representative
assigned to serve as the Construction Project Manager, shall be personally present at the
site of the Construction Project during working hours for the term of this Agreement until
the completion of the Construction Project.
f. Contractor shall have a complete, accurate, and up-to-date set of
construction plans, drawings, and specifications on site at all times.
g. Contractor has examined all available records and made field examinations
of the site of the Construction Project. Contractor has knowledge of the field conditions to
be encountered during the Construction Project. Contractor has knowledge of the types
and character of equipment necessary for the work, the types of materials needed and the
sources of such materials, and the condition of the local labor market.
h. Contractor is responsible for the safety of the work and shall maintain all
lights,guards, signs,temporary passages, or other protections necessary for that purpose at
all times.
i. All work must be performed at Contractor's risk, and Contractor shall
promptly repair or replace all damage and loss at its sole cost and expense regardless of the
reason or cause of the damage or loss; provided, however, should the damage or loss be
caused by an intentional or negligent act of the City, the risk of such loss shall be placed
on the City.
j. Contractor is responsible for any loss or damage to materials,tools,or other
articles used or held for use in the completion of performance of the Construction Project.
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k. Contractor's performance must be without damage or disruption to any
other work or property of the City or of others and without interference with the operation
of existing machinery or equipment.
1. Title to all work, materials, and equipment covered by any payment of
Contractor's compensation by City, whether directly incorporated into the Construction
Project or not, passes to City at the time of payment, free and clear of all liens and
encumbrances.
10. Delays and Extensions of Time: If Contractor's performance of this Agreement
is prevented or delayed by any unforeseen cause beyond the control of the Contractor, including
acts or omissions of the City, Contractor shall,within ten (10) days of the commencement of any
such delay, give the City written notice thereof. Further, Contractor shall, within ten(10) days of
the termination of such delay, give the City written notice of the total actual duration of the delay.
If the City is provided with these required notices and if the City determines that the cause of the
delay was not foreseeable, was beyond the control of the Contractor, and was not a result of the
fault or negligence of the Contractor, then the City will determine the total duration of the delay
and extend the time for performance of the Agreement accordingly. Unless the delay is caused by
the intentional interference of the City with the Contractor's performance, Contractor shall make
no claim for damages or any other claim other than for an extension of time as herein provided by
reason of any delays.
11. Suspension:
a. The City may,by written notice to the Contractor and at its convenience for
any reason, suspend the performance of all or any portion of the work to be performed on
the Construction Project ("Notice of Suspension"). The Notice of Suspension shall set
forth the time of suspension, if then known to the City. During the period of suspension,
Contractor shall use its best efforts to minimize costs associated with the suspension.
b. Upon Contractor's receipt of any Notice of Suspension, unless the notice
requires otherwise, Contractor shall: (1) immediately discontinue work on the date and to
the extent specified in the Notice of Suspension; (2)place no further orders or subcontracts
for materials, services, or equipment; (3)promptly make every reasonable effort to obtain
suspension upon terms satisfactory to City of all orders, subcontracts, and rental
agreements to the extent that they relate to the performance of the work suspended;and(4)
continue to protect and maintain the Project, including those portions on which work has
been suspended.
C. As compensation for the suspended work,Contractor will be reimbursed for
the following costs,reasonably incurred,without duplication of any item, and to the extent
that such costs directly resulted from the suspension: (1) a standby charge paid during the
period of suspension which will be sufficient to compensate Contractor for keeping,to the
extent required in the Notice of Suspension, Contractor's organization and equipment
committed to the Project in standby status; (2) all reasonably incurred costs for the
demobilization of Contractor's and subcontractor's crews and equipment; (3) an equitable
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amount to reimburse Contractor for the cost to protect and maintain the Project during the
period of suspension; and (4) an equitable adjustment in the cost of performing the
remaining portion of the work post-suspension if, as a direct result of the suspension, the
cost to Contractor of subsequently performing the remaining work on the Construction
Project has increased or decreased.
d. Upon receipt of written notice by the City to resume the suspended work
("Notice to Resume Work"), Contractor shall immediately resume performance of the
suspended work as to the extent required in the Notice to Resume Work. Any claim by
Contractor for time or compensation described in Section I I(c)shall be made within fifteen
(15)days after receipt of the Notice to Resume Work and Contractor shall submit a revised
Construction Schedule for the City's review and approval. Contractor's failure to timely
make such a claim shall result in a waiver of the claim.
e. No compensation described in Section 1l(c) shall be paid and no extension
of time to complete the Construction Project shall be granted if the suspension results from
Contractor's non-compliance with or breach of the terms or requirements of this
Agreement.
12. Termination for Contractor's Fault:
a. If Contractor refuses or fails to timely do the work, or any part thereof, or
fails to perform any of its obligations under this Agreement, or otherwise breaches any
terms or conditions of this Agreement, the City may, by written notice, terminate this
Agreement and the Contractor's right to proceed with all or any part of the Construction
Project ("Termination Notice Due to Contractor's Fault"). The City may then take over
the Construction Project and complete it, either with its own resources or by re-letting the
contract to any other third party, and may immediately take possession of and use such
materials, appliances, tools, and equipment as may be on the site and which may be
necessary for the completion of the Construction Project.
b. In the event of a termination pursuant to this Section 12,Contractor shall be
entitled to payment only for those services Contractor actually rendered. In the case of a
lump sum or unit price contract, Contractor shall not be entitled to any further payment
until the Construction Project has been completed. Upon completion of the Construction
Project,if the unpaid balance of the Contractor's compensation exceeds the cost to the City
of completing the work, including all costs paid to any subcontractors or third parties
retained by the City to complete the Construction Project and all administrative costs
resulting from the termination("City's Cost for Completion"), such excess shall be paid to
the Contractor. If the City's Cost for Completion exceeds the unpaid balance of the
Contractor's compensation,then Contractor and its sureties shall be liable for and shall pay
the difference,plus interest at the rate applicable to court judgments,to the City.
C. Any termination provided for by this Section 12 shall be in addition to any
other remedies to which the City may be entitled under the law or at equity.
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d. In the event of termination under this Section 12, Contractor shall,under no
circumstances,be entitled to claim or recover consequential,special,punitive,lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
13. Termination for City's Convenience:
a. Should conditions arise which,in the sole opinion and discretion of the City,
make it advisable to the City to cease work on the Construction Project, City may terminate
this Agreement by written notice to Contractor ("Notice of Termination for City's
Convenience"). The termination shall be effective in the manner specified in the Notice of
Termination for City's Convenience and shall be without prejudice to any claims that the
City may otherwise have against Contractor.
b. Upon receipt of the Notice of Termination for City's Convenience, unless
otherwise directed in the Notice, the Contractor shall immediately cease work on the
Construction Project,discontinue placing orders for materials, supplies, and equipment for
the Construction Project, and make every reasonable effort to cancel all existing orders or
contracts upon terms satisfactory to the City. Contractor shall do only such work as may
be necessary to preserve,protect, and maintain work already completed, in progress, or in
transit to the construction site.
C. In the event of a termination pursuant to this Section 13, Contractor is
entitled to payment only for those services Contractor actually rendered and materials
actually purchased or which Contractor has made obligations to purchase on or before the
receipt of the Notice of Termination for City's Convenience,and reasonably incurred costs
for demobilization of Contractor's and any subcontractor's crews. It is agreed that any
materials that City is obligated to purchase from Contractor will remain the City's sole
property.
d. The compensation described in Section 13(c) is the sole compensation due
to Contractor for its performance of this Agreement. Contractor shall, under no
circumstances,be entitled to claim or recover consequential,special,punitive,lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature arising, or claimed to have arisen, as a result of the termination.
14. Limitation on Contractor's Damages; Time for Asserting Claim:
a. In the event of a claim for damages by Contractor under this Agreement,
Contractor's damages shall be limited to contract damages and Contractor hereby expressly
waives any right to claim or recover consequential, special, punitive, lost business
opportunity,lost productivity,field office overhead,general conditions costs,or lost profits
damages of any nature or kind.
b. In the event Contractor wants to assert a claim for damages of any kind or
nature, Contractor shall provide City with written notice of its claim, the facts and
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circumstances surrounding and giving rise to the claim, and the total amount of damages
sought by the claim, within ten (10) days of the facts and circumstances giving rise to the
claim. In the event Contractor fails to provide such notice,Contractor shall waive all rights
to assert such claim.
15. Representatives:
a. City's Representative: The City's Representative for the purpose of this
Agreement shall be Chuck Winn,Assistant City Manager or such other individual as City
shall designate in writing. Whenever approval or authorization from or communication or
submission to City is required by this Agreement, such communication or submission shall
be directed to the City's Representative and approvals or authorizations shall be issued
only by such Representative;provided,however,that in exigent circumstances when City's
Representative is not available, Contractor may direct its communication or submission to
other designated City personnel or agents and may receive approvals or authorization from
such persons.
b. Contractor's Representative: The Contractor's Representative for the
purpose of this Agreement shall be Shane Lutey or such other individual as Contractor
shall designate in writing. Whenever direction to or communication with Contractor is
required by this Agreement, such direction or communication shall be directed to
Contractor's Representative; provided, however, that in exigent circumstances when
Contractor's Representative is not available, City may direct its direction or
communication to other designated Contractor personnel or agents.
16. Locating Underground Facilities: Contractor shall be responsible for obtaining
and determining the location of any underground facilities, including but not limited to, the
location of any pipelines or utility supply, delivery, or service lines in accordance with the
provisions of§69-4-501, et seq., MCA. Contractor shall make every effort to avoid damage to
underground facilities and shall be solely responsible for any damage that may occur. If City
personnel assume responsibility for locating any underground facilities,this fact shall be noted in
writing prior to commencement of such location work.
17. Permits: Contractor shall provide all notices, comply with all applicable laws,
ordinances, rules, and regulations, obtain all necessary permits, licenses, including a City of
Bozeman business license, and inspections from applicable governmental authorities,pay all fees
and charges in connection therewith,and perform all surveys and locations necessary for the timely
completion of the Construction Project.
18. Ownership of Documents; Indemnification: All plans, designs, drawings,
specifications, documents, sample results and data, in whatever medium or format, originated or
prepared by or for Contractor in contemplation of, or in the course of, or as a result of this
Agreement or work on the Construction Project, shall be promptly furnished to the City ("City
Documents and Information"). All City Documents and Information shall be the exclusive
property of the City and shall be deemed to be works-for-hire. Contractor hereby assigns all right,
title, and interest in and to the City Documents and Information, including but not limited to, all
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copyright and patent rights in and to the City Documents and Information. Neither party grants to
the other any express or implied licenses under any patents, copyrights, trademarks, or other
intellectual property rights, except to the extent necessary to complete its obligations to the other
under this Agreement.
19. Laws and Regulations: Contractor shall comply fully with all applicable state and
federal laws, regulations, and municipal ordinances including, but not limited to, all workers'
compensation laws, all environmental laws including, but not limited to, the generation and
disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules,
codes,and provisions of the Montana Safety Act in Title 50,Chapter 71,MCA,all applicable City,
County, and State building and electrical codes,the Americans with Disabilities Act, and all non-
discrimination, affirmative action, and utilization of minority and small business statutes and
regulations.
20. Non-discrimination: Contractor agrees that all hiring by Contractor of persons
performing under this Agreement will be on the basis of merit and qualifications. The Contractor
shall have a policy to provide equal employment opportunity in accordance with all applicable
state and federal anti-discrimination laws, regulations, and contracts. The Contractor shall not
refuse employment to a person, bar a person from employment, or discriminate against a person
in compensation or in a term, condition, or privilege of employment because of race, color,
religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual
orientation,gender identity,physical or mental disability, except when the reasonable demands of
the position require an age, physical or mental disability, marital status or sex distinction. The
Contractor shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement.
21. Intoxicants; DOT Drug and Alcohol Regulations: Contractor shall not permit or
suffer the introduction or use of any intoxicants, including alcohol or illegal drugs, upon the site
of the Construction Project. Contractor acknowledges it is aware of and shall comply with its
responsibilities and obligations under the U.S. Department of Transportation (DOT) regulations
governing anti-drug and alcohol misuse prevention plans and related testing. City shall have the
right to request proof of such compliance and Contractor shall be obligated to furnish such proof.
22. Labor Relations:
a. Contractor shall post a legible statement of all wages and fringe benefits to
be paid to the Contractor's employees and the frequency of such payments (i.e., hourly
wage employees shall be paid weekly). Such posting shall be made in a prominent and
accessible location at the site of the Construction Project and shall be made no later than
the first day of work. Such posting shall be removed only upon the final completion of the
Construction Project and the termination of this Agreement.
b. In performing the terms and conditions of this Agreement and the work on
the Construction Project, Contractor shall give preference to the employment of bona fide
residents of Montana, as required by §18-2-403, MCA, and as such, term is defined by
§18-2-401(1), MCA. When making assignments of work, Contractor shall use workers
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both skilled in their trade and specialized in their field of work for all work to which they
are assigned.
C. Pursuant to §§18-2-403 and 18-2-422, MCA, Contractor shall pay wages,
benefits, and expenses in conformance with the current version of the Prevailing Wage
Rates for Building Construction Services as published by the Montana Department of
Labor and Industry and which are applicable to Gallatin County. Contractor shall pay all
hourly wage employees on a weekly basis. Violation of the requirements to pay applicable
prevailing wage rates may subject the Contractor to the penalties set forth in §18-2-407,
MCA. Contractor shall maintain payroll records and provide certified copies to the City.
Contractor shall maintain such payroll records during the term of this Agreement, the
course of the work on the Construction Project,and for a period of three(3)years following
the date of final completion of the Construction Project and termination of this Agreement.
d. In the event that, during the term of this Agreement and throughout the
course of Contractor's performance of the Construction Project, any labor problems or
disputes of any type arise or materialize which in turn cause any work on the Construction
Project to cease for any period of time, Contractor specifically agrees to take immediate
steps,at its own expense and without expectation of reimbursement from City,to alleviate
or resolve all such labor problems or disputes. The specific steps Contractor shall take to
resume work on the Construction Project shall be left to the discretion of Contractor;
provided, however, that Contractor shall bear all costs of any related legal action.
Contractor shall provide immediate relief to the City so as to permit the work on the
Construction Project to resume and be completed within the time frames set forth in the
Construction Schedule at no additional cost to City.
e. Contractor shall indemnify, defend, and hold the City harmless from any
and all claims, demands, costs, expenses, damages, and liabilities arising out of,resulting
from, or occurring in connection with any labor problems or disputes or any delays or
stoppages of work associated with such problems or disputes.
23. Subcontractors:
a. Contractor may employ subcontractors for any work on the Construction
Project. Contractor shall provide City with a list of all subcontractors employed.
b. Contractor remains fully responsible for the acts and omissions of any
subcontractor,just as Contractor is for its own acts and omissions, and Contractor shall
remain fully responsible and liable for the timely completion of the Construction Project.
C. Contractor is solely liable for any and all payments to subcontractors.
Contractor shall hold all payments received from the City in trust for the benefit of
subcontractors, and all such payments shall be used to satisfy obligations of the
Construction Project before being used for any other purpose. Contractor shall make any
payments due to any subcontractor within seven (7) days of Contractor's receipt of
payment, including a proportional part of the retainage Contractor has received from the
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City. In the event of a dispute regarding any subcontractor's invoice, Contractor shall
promptly pay the undisputed amount to the subcontractor and notify the subcontractor in
writing of the amount in dispute and the reasons for the dispute. Any withholding of
payment must comply with the requirements of§28-2-2103,MCA. In the event Contractor
is unwilling or unable to make timely and proper payment to any subcontractor, City may
elect to withhold any payment otherwise due to Contractor and upon seven (7) days'
written notice to Contractor,may pay subcontractor by direct or joint payment.
24. Indebtedness and Liens: Before City may make any final payment to Contractor,
Contractor shall furnish City with satisfactory proof that there are no outstanding debts or liens in
connection with the Construction Project. If the Contractor allows any indebtedness to accrue to
subcontractors or others during the progress of the work, and fails to pay or discharge the same
within five (5) days after demand, then City may either withhold any money due to Contractor
until such indebtedness is paid or apply the same towards the discharge of the indebtedness. If
any lien or claim is filed or made by any subcontractor,material supplier, or any other person,the
Contractor shall immediately notify the City and shall cause the same to be discharged of record
within thirty(30) days after its filing.
25. Hazard Communication: Contractor shall comply with all hazard communication
requirements dictated by the Environmental Protection Agency, the Montana Department of
Agriculture, OSHA, Hazard Communications Standard, 29 CFR 1910.1200, and applicable City
ordinances. Contractor shall supply a chemical list, the associated material safety data sheets
(MSDS), and other pertinent health exposure data for chemicals that the Contractor's,
subcontractor's or the City's employees may be exposed to while working on City property during
the course of the Construction Project. One copy of this documentation must be delivered to City
to the attention of the City's Representative. This documentation must be delivered before work
involving these chemicals may commence.
26. Accounts and Records: During the term of this Agreement and for two (2) years
following the City's final acceptance of the Construction Project, Contractor shall maintain
accounts and records related to the Construction Project. Upon reasonable notice, City shall have
the right to inspect all such accounts and records,including but not limited to,Contractor's records,
books, correspondence, instructions, drawings, specifications, field and site notes, receipts,
invoices,bills, contracts, or other documents relating to the Construction Project.
27. Indemnification; Insurance; Bonds:
a. Contractor agrees to release,defend,indemnify,and hold harmless the City,
its agents,representatives, employees, and officers (collectively referred to for purposes of
this Section as the City) from and against any and all claims, demands, actions, fees and
costs (including attorney's fees and the costs and fees of and expert witness and
consultants),losses, expenses,liabilities (including liability where activity is inherently or
intrinsically dangerous) or damages of whatever kind or nature connected therewith and
without limit and without regard to the cause or causes thereof or the negligence of any
party or parties that may be asserted against, recovered from or suffered by the City
occasioned by, growing or arising out of or resulting from or in any way related to: (i)the
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negligent,reckless,or intentional misconduct of the Contractor;(ii)any negligent,reckless,
or intentional misconduct of any of the Contractor's agents; or(iii)the negligent,reckless,
or intentional misconduct of any other third party.
b. Such obligations shall not be construed to negate, abridge, or reduce other
rights or obligations of indemnity that would otherwise exist. The indemnification
obligations of this Section must not be construed to negate, abridge, or reduce any
common-law or statutory rights of the indemnitee(s) which would otherwise exist as to
such indemnitee(s).
C. Contractor's indemnity under this Section shall be without regard to and
without any right to contribution from any insurance maintained by City.
d. Should any indemnitee described herein be required to bring an action
against the Contractor to assert its right to defense or indemnification under this Agreement
or under the Contractor's applicable insurance policies required below the indemnitee shall
be entitled to recover reasonable costs and attorney fees incurred in asserting its right to
indemnification or defense but only if a court of competent jurisdiction determines the
Contractor was obligated to defend the claim(s) or was obligated to indemnify the
indemnitee for a claim(s) or any portion(s)thereof.
e. In the event of an action filed against City resulting from the City's
performance under this Agreement,the City may elect to represent itself and incur all costs
and expenses of suit.
f. Contractor also waives any and all claims and recourse against the City or
its officers, agents or employees, including the right of contribution for loss or damage to
person or property arising from, growing out of, or in any way connected with or incident
to the performance of this Agreement except"responsibility for his own fraud, for willful
injury to the person or property of another, or for violation of law, whether willful or
negligent" as per 28-2-702,MCA.
g. These obligations shall survive termination of this Agreement and the
services performed hereunder.
h. In addition to and independent from the above, Contractor shall at
Contractor's expense secure insurance coverage through an insurance company or
companies duly licensed and authorized to conduct insurance business in Montana which
insures the liabilities and obligations specifically assumed by the Contractor in this Section.
The insurance coverage shall not contain any exclusion for liabilities specifically assumed
by the Contractor in subsection(a) of this Section. The insurance shall cover and apply to
all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed
against, recovered from, or suffered by the City without limit and without regard to the
cause therefore and which is acceptable to the City and Contractor shall furnish to the City
an accompanying certificate of insurance and accompanying endorsements in amounts not
less than as shown on Exhibit D: Required Insurance Coverage, attached hereto.
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The amounts of insurance provided shall be exclusive of defense costs. The City of
Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named
insured on a primary non-contributory basis on both the Commercial General and
Automobile Liability policies. The insurance and required endorsements must be in a form
suitable to City and shall include no less than a thirty (30) day notice of cancellation or
non-renewal. The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work. Contractor shall notify City within two (2)business days of
Contractor's receipt of notice that any required insurance coverage will be terminated or
Contractor's decision to terminate any required insurance coverage for any reason.
The City must approve all insurance coverage and endorsements prior to the
Contractor commencing work.
28. Taxes: Contractor is obligated to pay all taxes of any kind or nature and make all
appropriate employee withholdings. Contractor understands that all contractors or subcontractors
working on a publicly funded project are required to pay or have withheld from earnings a license
fee of one percent (1%) of the gross contract price if the gross contract price is Five Thousand
Dollars ($5,000) or more. This license fee is paid to the Montana Department of Revenue.
29. Dispute Resolution:
a. Any claim, controversy, or dispute between the parties, their agents,
employees, or representatives shall be resolved first by negotiation between senior-level
personnel from each party duly authorized to execute settlement agreements. Upon mutual
agreement of the parties, the parties may invite an independent, disinterested mediator to
assist in the negotiated settlement discussions.
b. If the parties are unable to resolve the dispute within thirty (30) days from
the date the dispute was first raised, then such dispute shall be resolved in a court of
competent jurisdiction in compliance with the Applicable Law provisions of this
Agreement.
30. Survival: Contractor's indemnification and warranty obligations shall survive the
termination or expiration of this Agreement for the maximum period allowed under applicable
law.
31. Headings: The headings used in this Agreement are for convenience only and are
not be construed as a part of the Agreement or as a limitation on the scope of the particular
paragraphs to which they refer.
32. Waiver: A waiver by City of any default or breach by Contractor of any covenants,
terms,or conditions of this Agreement does not limit City's right to enforce such covenants,terms,
or conditions or to pursue City's rights in the event of any subsequent default or breach.
33. Severability: If any portion of this Agreement is held to be void or unenforceable,
the balance thereof shall continue in effect.
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34. Applicable Law: The parties agree that this Agreement is governed in all respects
by the laws of the State of Montana.
35. Binding Effect: This Agreement is binding upon and inures to the benefit of the
heirs, legal representatives, successors, and assigns of the parties.
36. Amendments: This Agreement may not be modified,amended, or changed in any
respect except by a written document signed by all parties.
37. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the
parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or
enforced by a third party.
38. Counterparts: This Agreement may be executed in counterparts, which together
constitute one instrument.
39. Assignment: Contractor may not assign this Agreement in whole or in part without
the prior written consent of the City. No assignment will relieve Contractor of its responsibility
for the performance of the Agreement and the completion of the Construction Project. Contractor
may not assign to any third party other than Contractor's subcontractors on the Construction
Project,the right to receive monies due from City without the prior written consent of City.
40. Authority: Each party represents that it has full power and authority to enter into
and perform this Agreement and the person signing this Agreement on behalf of each party has
been properly authorized and empowered to sign this Agreement.
41. Independent Contractor: The parties agree and acknowledge that in the
performance of this Agreement and the completion of the Construction Project, Contractor shall
render services as an independent contractor and not as the agent,representative, subcontractor, or
employee of the City. The parties further agree that all individuals and companies retained by
Contractor at all times will be considered the agents, employees, or independent contractors of
Contractor and at no time will they be the employees, agents, or representatives of the City.
42. Agreement Documents: All work on the Construction Project shall be performed
by Contractor in accordance with all of the terms and conditions of this Agreement and the Exhibits
below,which are incorporated herein by this reference:
Exhibit A: Contractor's submitted proposal
Exhibit B: Compensation Schedule
Exhibit C: Change of Work Specifications
Exhibit D: Required Insurance Coverage
Exhibit E: Plans and Specifications
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43. Integration: This Agreement and all Exhibits attached hereto constitute the entire
agreement of the parties. Covenants or representations not contained therein or made a part thereof
by reference, are not binding upon the parties. There are no understandings between the parties
other than as set forth in this Agreement. All communications, either verbal or written,made prior
to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part
of this Agreement by reference.
IN WITNESS WHEREOF, Contractor and City have caused this Agreement to be
executed, effective on the date written above, and intend to be legally bound thereby.
CITY OF BOZEMAN, MONTANA CONTRACTOR
4
kaL-at-
By: By. J,
Andrea Surratt, City Manager f
Print Name: s '1 a n c L t,-4 e
Title: r e. s-, j er,
O.A/i
APPROV ,D AS TO ORM(§18-2-406,MCA):
By:
Greg On livan, City Attorney
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LUTEY CONSTRUCTION
'I["HE CRAFTSMAN, INC.
420 S.13th Ave. Bozeman,MT 59715
Phone:(406)587-8892
Fax: (406)582-5727
December 31, 2018
PROPOSAL
FOR: City of Bozeman
Attn: Chuck Winn,Assistant City Manager
121 North Rouse Ave
Bozeman, MT 59717-2760
RE: Parking Garage Suite 4 Modification
Lutey Construction—The Craftsman, Inc. Proposes to provide all labor, materials and
equipment required for the Downtown Parking Garage Suite 4 Modifications, as per Think One
drawings A1.0, A1.1,A4.0 dated 10/3/2018 as follows;
Scope of Work:
Parking Garage Suite 4 Modifications
• Demolition of existing display board
• Demolition of existing shelving
• Demolition of existing counter tops
• Demolition of existing cabinetry
• Modification of existing ceiling grid and the
• Demolition of on demand hot water piping and heaters
• Demolition of on demand hot water electrical
• Demolition of drywall and framing at CMU wall
• Saw cut and install steel lentil at CMU wall opening
• Demolition of CMU opening
• Install hollow metal door frame at CMU opening
• Reinstall on demand hot water plumbing and electrical on south wall
• Frame new steel stud Conference Room walls
• Install hollow metal door and window frame at new Conference room wall
• Rough in electrical in walls
• Install acoustical batt insulation in walls
• Install 5/8" gypsum board over metal stud walls
• Tape gypsum board walls
• Modify Acoustical ceiling grid
• Paint walls
• Install Acrovyn wall protection in Streamline room
• Install Streamline waiting electric cove heater
• Install TV monitor power and data
• Relocation T-stat from Streamline waiting to Conference Room
• Install counter tops in Conference Room
• Install door and hardware
• Install window glazing
• Lower counter tops in Officers room
• Install new counter top in Officers room
• Paint walls in Officers room
• Install new electrical and data outlets in Officers Room
• Install carpet tiles in Conference room
• Install vinyl the in Officers Room
• Install vinyl base
• Remove plumbing fixtures and grab bars in Restrooms
• Paint Restroom walls
• Install FRP wainscot in Restrooms
• Reinstall plumbing fixtures and grab bars
• Clean up and haul off materials
• Excludes removal of Owner items
• Excludes Owner's systems furniture
• Excludes controls for doors
• Excludes TV monitor mounts and installation
• Excludes permits and bonding
• Excludes mechanical
Total Material, Labor, Equipment $26,442.70
Overhead and Profit(15%) $3,966.42
State Tax(1%) $304.09
Total $30,713.21
Exhibit A-Proposal
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Exhibit B
Compensation Schedule
Contractor shall not demand or be entitled to receive payment for any work on the
Construction Project, in whole or in part, except in the manner set forth herein.
Monthly Progress Payments
A. After the commencement of work on the Construction Project,the Contractor may
request monthly progress payments by submitting an Application for Payment to the City's
Representative during each successive calendar month, with a copy to the project architect or
engineer. The Application for Payment must be based upon the actual or estimated percentage of
work completed and materials supplied on the Construction Project prior to the date of the
Application and shall be filled out and signed by the Contractor on a form provided by the City.
Contractor shall attach all supporting documentation to the Application,including certified payroll
records and receipts,to verify that the work claimed in the Application has been completed. Only
one Application for Payment may be submitted within a calendar month.
B. Beginning with the second Application for Payment, each Application shall also
include an affidavit signed by the Contractor stating that all previous monthly progress payments
received have been applied on account to discharge Contractor's obligations associated with the
prior Applications for Payment.
C. The City shall promptly review all Applications for Payment and, within twenty-
one (21) days after receipt of each Application, determine whether a progress payment should be
disapproved in whole or in part. An Application for Payment is considered to have been received
when it is submitted to City's Representative and is considered approved unless prior to the
expiration of the 21-day period the City or its architect or engineer provides the Contractor with a
written statement containing specific items that are being disapproved. A progress payment or any
portion may be disapproved upon a claim of. (1)unsatisfactory job progress; (2)failure to remedy
defective construction work or materials;(3)disputed work or materials;(4)failure to comply with
material provisions of this Agreement,drawings,plans,specifications for the Construction Project,
or other required documents, including but not limited to, payroll certifications, insurance
coverage, bonding, lien releases, warranties, material certifications, and test data; (5) failure of
Contractor to make timely payment for claims including, but not limited to claims for labor,
equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; (6)
damages to the City; (7) the existence of reasonable evidence that the Agreement cannot be
completed for the unpaid balance of the Agreement's Compensation; and (8) Contractor's non-
compliance with applicable federal, state, and local laws,rules, and ordinances.
D. The City will furnish Contractor a written statement specifying a reason for
disapproval that is listed in Section C above for which approval of the Application for Payment or
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a portion thereof is being withheld. If the City disapproves only a portion of an Application for
Payment,the remainder of the Application for Payment is considered approved.
E. If the City approves a monthly progress payment, the City shall withhold the five
percent(5%)Retainage Amount from the total payment requested in the Application for Payment
and may withhold an amount that is sufficient to pay the direct expenses that the City may
reasonably expect will be necessary to correct any claim based on the eight (8) items set out in
Section C above. City shall tender the balance of the approved monthly progress payment to
Contractor within seven(7) days following the approval.
F. Contractor understands that the Montana Public Contractors' Gross Receipts Tax
requires all contractors or subcontractors working on a publicly funded project to pay or have
withheld from earnings one percent (1%) of the gross contract price if the public contract price,
including subcontracts attached thereto, is Five Thousand Dollars ($5,000) or more. If required,
the City will withhold this tax from any payment made to Contractor and will remit the amount
withheld to the Montana Department of Revenue. Contractor must withhold the tax from payments
made to subcontractors by Contractor.
G. City's approval of any progress payment shall not operate as City's acceptance of
any portion of the Construction Project as complete or free of defects or nonconformities,nor shall
it operate as a waiver of Contractor's obligations under the Agreement including, but not limited
to, Contractor's testing and warranty obligations.
Final Payment
A. Upon completion of the Construction Project, Contractor shall submit a final
Application for Payment to the City's Representative seeking payment of the remaining balance
of Contractor's compensation, including all retainage amounts. Contractor shall attach all
supporting documentation and receipts to the final Application for Payment to verify that the
Construction Project has been fully and finally completed in compliance with all terms and
conditions of the Agreement, including complete and legally effective releases or waivers of all
liens or encumbrances that have been filed against the Construction Project, and a consent from
all of Contractor's sureties to final payment. In addition, Contractor shall include an affidavit
signed by the Contractor stating that all previous monthly progress payments received have been
applied on account to discharge Contractor's obligations associated with the Construction Project
and that the prior Applications for Payment and all claims asserted by any person arising from or
related to the Construction Project have been settled or satisfied. In the event any claims have not
been settled or satisfied, the Affidavit shall contain a complete listing of such claims, the name
and address of each person making a claim, the facts and circumstances surrounding each claim,
the amount of each claim, and the efforts made to date by Contractor to resolve, settle or satisfy
each claim.
B. City and its architect or engineer shall promptly review the final Application for
Payment and,within twenty-one(21)days after receipt of the request,determine whether it should
be disapproved in whole or in part. The final Application for Payment is considered to have been
received when it is submitted to City's Representative and is considered approved unless the City's
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Representative provides the Contractor with a written statement containing specific items that are
being disapproved prior to the expiration of the 21-day period. A final payment or any portion
may be disapproved upon a claim of. (1) unsatisfactory job progress; (2) after City's final
inspection of the Construction Project,Contractor has not completed all punch list items and failed
to remedy defective construction work or materials; (3) disputed work or materials; (4) failure to
comply with material provisions of this Agreement, drawings, plans, specifications for the
Construction Project, or other required documents including, but not limited to, payroll
certifications, insurance coverage, bonding, lien releases, warranties, material certifications, and
test data; (5)failure of Contractor to make timely payment for claims including,but not limited to,
claims for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and
royalties; (6) claims have been brought or liens have been filed against Contractor or the City
related to the Construction Project, or any such claims have not been properly documented in
Contractor's Affidavit; (7) damage to the City; (8) Contractor has not delivered all maintenance
and operating instructions,marked-up record documents, and any other documents relating to the
Construction Project as required by City; and (9) the Contractor is not in compliance with
applicable federal, state, and local laws, rules, and ordinances and has not remedied the
noncompliance.
C. The City's Representative will furnish Contractor a written statement specifying a
reason for disapproval that is listed in Section B above for which approval of the final Application
for Payment or a portion thereof is being withheld. If the City disapproves only a portion of an
Application for Payment,the remainder of the Application for Payment is considered approved.
D. Final payment is due and payable within fourteen (14) days of the City's
Representative's approval, but City may withhold an amount that is sufficient to pay the direct
expenses that the City may reasonably expect will be necessary to correct any claim based on the
nine(9)items set out in Section B above and any tax withholding required by law.
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Exhibit C
Change of Work Specifications
A. City may, at any time or from time to time, order changes, additions, deletions, or
revisions to the work on the Construction Project by submitting a written Change Order to
Contractor on a form as provided for by the City. Upon receipt of any Change Order, Contractor
shall comply with the terms of the changed work as reflected in the Change Order.
B. City and Contractor shall negotiate in good faith for an agreement as to any increase
or decrease in the Contractor's compensation that results from any Change Order. The increased
or decreased Contractor's compensation shall be set forth in the Change Order and both the City
and the Contractor shall sign the Change Order as an indication of their respective acceptance of
the changes and modifications to the Agreement. In the event the City and Contractor are unable
to agree upon the increase or decrease in Contractor's compensation resulting from any Change
Order, such increase or decrease shall be determined as follows:
1. increases to Contractor's compensation shall be calculated as follows and shall be
evidenced by Contractor's submission to the City of its actual supporting documentation
including time slips/cards, invoices, and receipts:
a. by unit prices otherwise set forth in the Agreement or subsequently agreed
upon;
b. by an agreed upon lump sum; or
C. by the cost of the work and an agreed upon mark-up for Contractor's
overhead and profit,with the costs of the work determined as follows:
(i) Contractor's actual, direct payroll expenses for the cost of labor.
Payroll expenses shall only include actual gross wages paid, without any
deductions, withholding, or overhead. The agreed upon mark-up fee shall
cover Contractor's liability insurance, workers' compensation, and Social
Security taxes applicable to said wages, Contractor's reasonable profit,the
costs for the use of small tools and equipment not otherwise classified under
heavy equipment use, and Contractor's general overhead expenses.
(ii) Contractor's actual cost of materials,including actual transportation
costs,for all materials supplied by Contractor.
(iii) Costs for the use of heavy equipment and the transportation of the
same. Such costs shall be the actual rental fees incurred for the use of the
heavy equipment and the actual costs of transporting such heavy equipment
to and from the site of the Construction Project.
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2. decreases to Contractor's compensation shall be determined by the City's good
faith estimate. If Contractor disagrees with such good faith estimate, Contractor can avail
itself of the Dispute Resolution provisions set forth in the Agreement.
C. Except for minor modifications in the work not involving an increase of costs or
Contractor's compensation and not inconsistent with the purposes of the work required by the
Agreement, and except in an emergency situation which endangers life or property, no change to
the work requirements shall be made unless pursuant to a written Change Order duly executed.
D. Contractor shall not be entitled to any increase in the Contractor's compensation or
the extension of any deadlines set forth in Construction Schedule with respect to any work
performed by Contractor that is not required by the terms and conditions of the Agreement and is
not contained in a duly executed Change Order.
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Exhibit D
Required Insurance Coverage
Contractor shall purchase and maintain insurance coverage as set forth below. The
insurance policy must protect, defend, and indemnify the City, its employees, officers, and agents
and must endorse the City, its employees, officers and agents as an additional insureds and be
written on a"primary—noncontributory basis."Each coverage shall be obtained from an insurance
company that is duly licensed and authorized to transact insurance business and write insurance
within the state of Montana, with a minimum of"A.M. Best Rating"of A-, VI, as will protect the
Contractor, the various acts of subcontractors, the City and its officers, employees, agents, and
representatives from claims for bodily injury and/or property damage which may arise from
operations and completed operations under this Agreement. All insurance coverage shall remain
in effect throughout the life of this Agreement and for a minimum of one (1) year following the
date of expiration of Contractor's warranties. All insurance policies must contain a provision or
endorsement that the coverage afforded will not be canceled, materially changed, or renewal
refused until at least forty-five (45) days prior written notice has been given to Contractor, City,
and all other additional insured to whom a certificate of insurance has been issued.
Required Insurance Coverage:
1. Commercial General Liability $1,500,000 per occurrence
(bodily injury and property damage) $3,000,000 aggregate
2. Products and Completed Operations $3,000,000
3. Automobile Liability $1,500,000 per accident
(all owned,hired,non-owned)
4. Workers' Compensation Not less than statutory limits
5. Employers'Liability $1,500,000
6. Professional Liability(E&O) $1,500,000
(only if applicable)
7. Builder's Risk/Property Insurance(for buildings) Equal to greater of Contractor's
compensation or full replacement(covering all work.buildings,materials and equipment,whether on site or
in transit, loss due to fire, lightening, theft, vandalism, malicious mischief, earthquake, collapse, debris
removal, demolition occasioned by enforcement of laws, water damage, flood if site within a flood plain,
repair or replacement costs,testing and start-up costs)
S. Owner's and Contractor's Protective Liability $1,000,000 per occurrence
$3,000,000 aggregate
9. Contractual Liability Insurance $1,000,000 per occurrence
(covering indemnity obligations) $3,000,000 aggregate
n
Additional coverage may be required in the event of the following:
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crane operating services: add On-Hook Coverage
transportation services: add$1,000,000 Transit Coverage
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Exhibit E
Drawings,Plans and Specifications
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