HomeMy WebLinkAbout2021-02-01-J01H InfraSource Master Construction AgrAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: January 18, 2021
AGENDA ITEM:Consideration of approval of a resolution approving Master Construction
Agreement with InfraSource Construction, LLC
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: The Contractor will furnish all labor, equipment, tools,
and machinery to perform construction services for new gas main installations on a linear foot basis
during the term of this Agreement and in accordance with Exhibit 1 (Trenched Gas Main; Directional
Bored Gas Main; Gas Services; Hot Tie In as applicable). The work contemplated pursuant to this
Agreement and Exhibit 1 is for typical Work connecting private property and/or development property
to existing public utility infrastructure. From time to time, Special /Emergency Work will be required
of the Contractor by the Owner. Approval from the Owner is required for the Contractor to complete
this Special/Emergency Work on a Time and Material basis in accordance to Exhibit 1(Steel Work;
Frost Charges; Welding; Labor Rates; Equipment Rates; Stopping Equipment; By-Pass; Miscellaneous
as applicable). Owner shall provide materials such as piping, valves and meters to be installed by
Contractor, however, all materials utilized by Contractor supplied by Owner shall be accounted for by
Contractor in the manner specified by Owner. InfraSource currently performing gas main work for the
City and approval of this agreement allows for the City to continue to work with the contractor through
December 31, 2021. At that time, the City has the option to extend the contract for an additional year
or terminate the contract with InfraSource. City legal staff has reviewed the agreement and finds it
acceptable for approval.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: InfraSource will invoice the City
of Waukee on a weekly basis for work performed.
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the Resolution and Master Construction Agreement.
ATTACHMENTS: I. Resolution
II. Master Construction Agreement
PREPARED BY: Beth Richardson
REVIEWED BY: Rudy Koester RK
J1H
THE CITY OF WAUKEE, IOWA
RESOLUTION 2021-
APPROVING MASTER CONSTRUCTION AGREEMENT WITH INFRASOURCE
CONSTRUCTION, LLC
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Iowa is a duly organized municipality within Dallas County;
AND,
WHEREAS, the City contracts with certain companies for gas main installation, steel gas pipe
replacement, large service line installation and repair during the construction phase of new
subdivisions in the City; AND,
WHEREAS, City staff recommends retaining the services of InfraSource Construction, LLC for
said professional services; AND,
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee that the
Master Construction Agreement with InfraSource Construction, LLC, attached hereto as Exhibit
A, is hereby approved.
Passed by the City Council of the City of Waukee, Iowa, and approved this the 1st day of
February, 2021.
____________________________
Courtney Clark, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
Anna Bergman
R. Charles Bottenberg
Chris Crone
Larry R. Lyon
Ben Sinclair
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MASTER CONSTRUCTION AGREEMENT
This Master Construction Agreement (“Agreement”) is entered as of the _____ of
___________________, 20______, by and between the City of Waukee, 230 W. Hickman Road,
Waukee, IA 50263 (“Owner”) and InfraSource Construction, LLC, 16000 College Blvd.,
Lenexa, KS 66219 (“Contractor”).
The parties agree as follows:
1.DESCRIPTION OF THE WORK:
Contractor hereby agrees to furnish all labor, equipment, tools, and machinery to perform
construction services for new gas main installations on a linear foot basis during the term
of this Agreement and in accordance with Exhibit 1 (Trenched Gas Main; Directional
Bored Gas Main; Gas Services; Hot Tie In as applicable). The work contemplated
pursuant to this Agreement and Exhibit 1 is for typical Work connecting private property
and/or development property to existing public utility infrastructure. From time to time,
Special /Emergency Work will be required of the Contractor by the Owner. Approval
from the Owner is required for the Contractor to complete this Special/Emergency Work
on a Time and Material basis in accordance to Exhibit 1(Steel Work; Frost Charges;
Welding; Labor Rates; Equipment Rates; Stopping Equipment; By-Pass; Miscellaneous
as applicable). Owner shall provide materials such as piping, valves and meters to be
installed by Contractor, however, all materials utilized by Contractor supplied by Owner
shall be accounted for by Contractor in the manner specified by Owner.
This Agreement does not commit Owner to order any Work. However, all Work provided
by Contractor to Owner during the term of this Agreement, whether or not the subject of
specific Work, will be subject to the terms and conditions of this Agreement.
2.TERM AND SCHEDULES.
2.1 Term. The term of this Agreement is one (1) year. The term shall begin on January
1, 2021 and shall end on December 31, 2021 unless amended or otherwise
terminated sooner by either party in accordance with Section 5 of this Agreement.
The term of this Agreement shall renew for successive one-year periods, unless
sooner terminated, however, the agreement shall continue in effect for any Work
that is in process as of the date that this Agreement terminates or expires, but only
until the completion or cancellation of said Work.
2.2 Term of Statements of Work. Contractor will commence Work upon execution of
any Work and carry the Work forward expeditiously with adequate forces and in
compliance with this Agreement. Contractor will complete the Work within the time
period set forth by the Owner or the parties may elect by mutual agreement.
2.3 Time of the Essence. All time limits and/or schedule requirements stated herein are
of the essence of the Agreement.
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3.PRICING, PAYMENT AND INVOICING.
3.1 Pricing. Effective January 1, 2021, the Pricing attached to the Agreement is attached
as Exhibit 1 and incorporated herein by reference. At the end of an applicable Term,
the parties may elect by mutual agreement to amend the pricing for Contractor
services under this contract.
3.2 Payment Terms. Owner will pay the Contractor for the satisfactory performance of
the Work pursuant to the payment terms and conditions set forth in the Exhibit 1.
3.3 Invoices. Contractor shall invoice Owner for Work on a weekly basis. Invoices
shall be sent to the Owner’s Representative as identified below;
Waukee Public Works
Attn: Assistant Public Works Director - Operations
805 University Ave, Waukee, Iowa 50263
Invoices shall:
a.be accompanied by all documentation supporting its fees, including
itemized time records;
b.reference the appropriate Work location;
c.identify the applicable taxes as a line item or indicate that state and local
taxes are not included in the invoice amount; and
d.provide a breakdown of the cost of labor and materials; and
Payment of undisputed invoices will be made within thirty (30) days of Owner’s receipt of
invoice for Work performed and completed during the calendar week prior to invoicing.
No payment by Owner will constitute approval or acceptance of any portion of th e Work,
nor does such payment relieve Contractor from any responsibility or obligation under this
Agreement or constitute a waiver of any claim arising hereunder. No invoice will be paid
by Owner until Contractor complies with the Evidence of Insurance requirement set forth
in Exhibit 2 of this Agreement.
3.4 Withholding of Payment. Owner, acting reasonably and in good faith, may decline
to pay an invoice, in whole or in part, to the extent Owner determines it is necessary
to protect against loss due to any of the following: (a) breach by Contractor of any
of its material obligations under the Agreement, including all costs to Owner for
remedying the breach; (b) third party claims filed against Owner for which
Contractor has an indemnification obligation under this Agreement; (c)
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Contractor’s failure to properly pay its subcontractors (except to the extent of
Owner’s non-payment of undisputed invoices); (d) damage to Owner or Owner’s
other contractors where such damage is caused by the willful misconduct or
negligent acts or omissions of Contractor, their respective agents, employees, or
any other person for whom, directly or indirectly, Contractor may be liable; and (e)
unsubstantiated or unsupported amounts billed by Contractor. Owner shall
promptly notify Contractor of any rejected invoice or portion thereof with reasons
for such rejection. If payment is withheld for any of the reasons set forth in this
Section 3.3, such payment will be made when the grounds for withholding have
been removed.
3.5 Lien Releases. Contractor will pay promptly and prevent any default in all
obligations incurred by it for the purchase of materials, equipment, labor, services
and taxes related to the completion of the Work. Upon request of Owner,
Contractor shall, as a condition precedent to payment, furnish to Owner with each
invoice lien waivers, affidavits, or other documents in form and substance
satisfactory to Owner, conditioned only upon Contractor’s receipt of payment of
said invoice from Owner, as required to keep the Work free from liens or claims
for liens arising out of the furnishing of the Work. Contractor agrees that the
payment of any invoice will be deemed conclusively to waive all liens with respect
to said Work to which Contractor then may be entitled, provided, however, that in
no event will such waiver of lien rights waive the right to payment for the Work.
If any such lien is filed or claim is made, Contractor shall remove the lien or
indemnify and defend Owner against any such claim. If Contractor fails to remove
such lien or claim within seven (7) calendar days after receipt of Owner’s written
notice, Owner may proceed to remove such lien or claim, and Contractor shall pay
Owner all costs and expenses incurred by Owner in so doing, including reasonable
attorneys' fees and court costs.
3.6 Claims for Additional Compensation. Upon the occurrence of any event during the
course of the Work for which Contractor intends to submit a claim for extra
compensation or damages for any reason in addition to the compensation set forth
in the Work, Contractor, as a condition precedent to Owner's consideration of such
claim, will give Owner notice in writing of such intent within fifteen (15) business
days after knowledge of the occurrence of such event, failing which such claim will
be deemed to have been waived by Contractor. Such notice will in no way
constitute acceptance by Owner of the validity of such claim.
3.7 Release of Liability. Acceptance by the Contractor of the last payment will be a
release to Owner, and every officer and agent thereof, from all payment claims and
payment liability for anything done or furnished for, or relating to the Work, or for
any act or neglect of Owner or of any person relating to or affecting the Work.
3.8 Audits. Contractor consents to audits by Owner or its designee during normal
business hours for the purpose of examining the time and expense books and
records of Contractor related to any costs or compensation which have been paid
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or are to be paid pursuant to the terms of this Agreement. Owner will have no right
to audit the components of any pre-determined pricing (such as lump sums, except
for cancellation of Work in progress or any fixed percentages of mark-ups) agreed
upon by the parties and set forth in this Agreement or an applicable Purchase Order.
4.SUSPENSION AND RIGHT TO STOP WORK.
4.1 Suspension Without Cause. Owner may, at any time, and without invalidating the
provisions of the Agreement, suspend and reinstate the performance of the Work,
in whole or in part, upon written notice to Contractor. Suspension of Work does
not automatically entitle Contractor to additional compensation; however, the
Contractor is entitled to reimbursement for reasonable real and unavoidable direct
costs incurred as a result of suspension and reinstatement. Any claim by Contractor
for an adjustment of compensation due to Work suspensions ordered by Owner
pursuant to this Section 4.1 will be made in writing within ten (10) days after notice
from Owner terminating the suspension and will be mutually negotiated by the
parties in good faith.
4.2 Suspension With Cause. If the Work is defective, Contractor fails to supply
sufficient skilled workers or suitable materials or equipment or fails to furnish or
perform the Work in such a way that conforms to the Agreement, or if Contractor
is performing the Work in violation of, or without regard to, Contractor's
obligations under this Agreement, including, but not limited to any safety-related
work requirements, or if Contractor violates any environmental laws or regulations,
Owner may order Contractor to stop the Work or any portion thereof until the cause
for such suspension in Work has been eliminated. Owner’s right to stop the Work
pursuant to this provision is in addition to any other remedies Owner may have and
does not subject Owner to liability to Contractor for delay damages, costs for
equipment down time or any other similar liability. Contractor is not entitled to
any reimbursement of costs or an adjustment of the compensation for the Work due
to suspensions ordered by Owner pursuant to this Section 4.2.
4.3 Preservation. In the event of any suspension by Owner under this Section 4,
Contractor shall preserve and protect the Work (whether completed or in progress),
pending Owner's instructions. Contractor shall use all reasonable means to
minimize the consequences of such suspension.
5.CANCELLATION AND TERMINATION.
5.1 Cancellation of Work. Owner may cancel any Work upon written notice to
Contractor. Upon receipt of notice of cancellation, Contractor shall immediately
discontinue performance of the Work under this Agreement to the extent that the
notice so specifies but will continue to perform any portion of the Work not
terminated.
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5.1.1 Cancellation Without Cause. Subject to Contractor's compliance with the
provisions of this Section 5.1.1 and other applicable portions of this
Agreement, Contractor is entitled to, as complete, full, and final settlement,
a sum equal to its actual direct cost for the cancelled Work satisfactorily
performed as of the effective date of cancellation. In no event will
Contractor be entitled to any prospective, anticipated, or lost profits or any
damages of any type with respect to the cancelled portion of the Work.
Payment of the compensation specified under this Section 5.1.1 will be the
sole and exclusive liability of Owner and the sole and exclusive remedy of
Contractor with respect to cancellation of Work pursuant to this Section
5.1.1.
5.1.2 Cancellation With Cause. Owner has the right to cancel any Work, without
prejudice to any right or remedy, if Contractor files for bankruptcy, makes
a general assignment for the benefit of its creditors or has a receiver
appointed on account of its insolvency. Owner also has the right to cancel
any Work, without prejudice to any right or remedy, if the work is defective,
if Contractor fails to supply sufficient skilled workers or suitable materials
or equipment, or fails to furnish or perform the Work in such a way that
conforms to the Agreement, if Contractor fails to maintain compliance with
any Owner-required Contractor pre-qualification program, or if Contractor
is performing the Work in violation of, or without regard to, Contractor’s
obligations under this Agreement, including, but not limited to any safety-
related work requirements, or if Contractor violates any environmental laws
or regulations. Owner also has the right to cancel any Work, without
prejudice to any right or remedy if Contractor fails to prosecute the Work
diligently, fails to complete the Work within the specified term or any
extension thereof authorized by Change Order or defaults in its performance
of any other obligation under the Work or this Agreement and Contractor
does not cure its default in performance within a period of seven (7)
calendar days after Contractor's receipt of such a written notice of default
from Owner.
Upon cancellation pursuant to this Section 5.1.2, Owner will have the right,
without prejudice to any other remedy under this Agreement or at law or in
equity, to withhold any payments otherwise due to Contractor to the extent
that such sums are required to compensate Owner, in whole or in part, for
any loss or damage resulting from Contractor’s failure to perform under this
Agreement. Contractor is not entitled to reimbursement of costs, lost profit
or any adjustment of the compensation set forth in Exhibit 1 due to
cancellation ordered by Owner pursuant to this Section 5.1.2.
Owner may cancel any Work immediately upon written notice if
Contractor’s default or neglect may cause immediate harm to Owner or its
business operations.
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5.1.3 Preservation. In the event of any cancellation by Owner under this Section
5, Contractor shall preserve and protect the Work (whether completed or in
progress), pending Owner's instructions. With respect to the cancelled
Work, Contractor shall promptly make every reasonable effort to cancel
associated purchase orders and other commitments upon terms satisfactory
to Owner or Contractor and shall take such other action with respect to same
as may be directed by Owner.
5.1.4 Owner's Right to Carry Out the Work. In addition to any other available
remedy, if any Work is subject to termination pursuant to Section 5.1 and
Contractor has failed within seven (7) days after written notice is given by
Owner to Contractor to cure its default or neglect, Owner will be entitled to
make good such deficiencies. Reasonable and verifiable direct costs of
correcting such deficiencies are to be deducted from the payments then or
thereafter due the Contractor. If payments then or thereafter due Contractor
are not sufficient to cover such costs, Contractor shall pay the difference to
Owner.
5.2 Termination. Owner has the right, at any time and at its sole discretion, to terminate
this Agreement in whole or in part and for its convenience, by giving Contractor
thirty (30) days written notice specifying the extent to which this Agreement is
terminated and the effective date of such termination. If Owner fails to pay
Contractor any undisputed amounts due hereunder for Work performed in
accordance with the Agreement, and such failure continues for thirty (30) days
following receipt of written notice thereof from Contractor, then Contractor shall
be entitled to suspend or terminate this Agreement and interest shall accrue until
such amounts due and owing are received by Contractor.
6.INSPECTION AND ACCEPTANCE.
6.1 Progress Inspection. Owner may appoint such inspectors as Owner deems
necessary to inspect the Work for compliance with the Agreement (“Progress
Inspections”). Contractor shall furnish all reasonable assistance required by Owner
or other inspectors for Progress Inspections of the Work. Progress Inspections do
not constitute acceptance of the Work.
6.2 Authority of Inspectors. Inspectors will have the authority to reject Work which is
unsatisfactory, faulty, or defective or does not conform to the requirements of the
Agreement.
6.3 Final Inspection and Final Acceptance. Upon completion of the Work, Contractor
shall provide written notification to the Owner’s Representative, the Assistant
Public Works Director – Operations. Upon receipt of such notice, the Owner’s
Representative or his/her designee shall promptly inspect the Work (“Final
Inspection”). Contractor shall furnish all reasonable assistance required by Owner
for the Final Inspection of the Work. The Final Inspection does not constitute a
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waiver of any right or warranty; however, a satisfactory Final Inspection by the
Owner’s Representative or his/her designee shall constitute acceptance of the Work
(“Final Acceptance”). If Owner fails to inspect the Work within fifteen (15) days
after receipt of notice of completion from Contractor, the date of the notice of
completion shall be deemed “Final Acceptance” for the sole purpose of the
initiation of the Warranty Period.
6.4 No Waiver. Inspections do not constitute a waiver of any right or warranty and will
not relieve Contractor from any obligation to perform the Work strictly in
accordance with the Agreement or preclude Owner from rejecting defective Work.
6.5 Correction of Rejected Work. After inspection and upon receipt of written notice,
Contractor shall promptly correct Work rejected by Owner which fails to conform
to the requirements of the Agreement, whether or not fabricated, installed, or
completed. Contractor shall bear costs of correcting such rejected Work, including
additional testing and inspections and compensation for Owner's services and
expenses made necessary thereby.
7.WARRANTIES AND REPRESENTATIONS.
7.1 Warranty. Contractor warrants:
a.that it will perform the Work using its commercially reasonable best efforts
and in accordance with standards of care, skill and diligence normally
provided by professionals in the performance of similar Work;
b.that the Work will be free from all faults and defects in title, workmanship
and material, and is fit for service when operated in accordance with
Contractor's operating and maintenance instructions and, in the absence
thereof, in accordance with generally accepted industry practices;
c.that unless specifically set forth herein, all materials and equipment
furnished for installation as part of the Work will be new, unused, and
undamaged when installed or otherwise incorporated in the Work; and
d.that the Work will, when tested, perform in accordance with any guarantees
set forth in the Work;
All Work not conforming to these requirements, including substitutions not properly
approved and authorized by Owner, will be considered defective.
7.2 Warranty Period. The warranty will continue for a period of two year(s) from
Final Acceptance of the Work (“Warranty Period”). Any repair or replacement of
Work furnished pursuant to Section 7.3 carries warranties on the same terms as set
forth above except that the warranty period is for a period of one (1) year from the
date of such repair or replacement or the end of the Warranty Period, whichever
occurs last.
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7.3 Repair, Replacement, or Correction. If the Work or any part thereof is determined
to be defective during the Warranty Period, Contractor shall, upon written notice
and Owner making the Work available for correction, and at Contractor’s expense,
repair, replace or correct the defective Work.
The cost of field labor directly associated with the repair, replacement or correction
of defective Work will be borne by Contractor. This obligation includes the costs
associated with the repair, removal or replacement of structures or other parts of
the Work site that were not provided or installed under the Agreement, to the extent
such structures or other parts of the Work site are damaged as a result of defective
Work or the repair, replacement or correction of defective Work, or to the extent
the removal of such structures or other parts of the Work site are necessitated by
the repair, replacement or correction of defective Work.
If Contractor is required to perform warranty repair or replacement work at the
Work site, Contractor, at its own expense, shall comply with and cooperate in
enforcing Owner's procedures, work rules, and regulations. Contractor shall
conduct its operations so as to provide maximum safety and shall, at a minimum,
comply with the safety programs and requirements of Owner.
Any repair or replacement of defective Work disrupting the commercial operation
at the Work site will be coordinated with Owner’s operating personnel to minimize
disruption of Owner's ongoing operations. Owner may, upon written notice, require
around-the-clock repair, including weekends and holidays. All costs incidental to
such efforts are to be borne by Contractor.
If Contractor has not started to make necessary repairs, replacement or correction
of the Work within ten (10) days after Owner has notified Contractor of a defect in
the Work, Owner is hereby authorized to make the repairs or replacement or to
order repairs or replacement to be done by a third party, with the cost paid by
Contractor. Such costs will be paid by the Contractor.
In the event of an emergency where, in the reasonable judgment of Owner, delay
would cause serious loss or damage, repairs or replacement of the Work may be
made by Owner or a third party chosen by Owner without prior notice to Contractor.
The cost of the repairs or replacement of the Work will be paid by Contractor.
Nothing in this section is to be construed to establish a period of limitation with
respect to other obligations the Contractor may have under the Agreement.
7.4 Contractor’s Representations. Contractor represents that Contractor: a) has
carefully and thoroughly examined the Agreement and attachments thereto; b) is
familiar with and has satisfied itself as to all federal, state, and local laws and
regulations that may affect cost, progress, performance, and furnishing of the Work;
and c) has given Owner written notice of all conflicts, errors, ambiguities, or
discrepancies that Contractor has discovered in the Agreement and attachments and
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Contractor is satisfied that the Agreement and attachments are generally sufficient
to indicate and convey understanding of all terms and conditions for performance
and furnishing of the Work.
Contractor further represents that Contractor: (a) is financially capable of fulfilling
all of its obligations under this Agreement and that there are no legal or
administrative proceedings pending or threatened against it that could adversely
affect its performance and that Contractor is not prohibited by any arrangements or
any document or obligation from entering into or performing this Agreement; b) is
fully experienced and properly qualified, organized and equipped to perform the
Work; and c) shall comply with all quality requirements set forth in the Statements
of Work.
Breach of any of these representations by Contractor will represent a ground for
insecurity with respect to the performance by Contractor. Owner reserves the right
to demand adequate assurance of performance upon breach of any of these
representations or of any other Agreement provisions that create reasonable
grounds for insecurity. Owner may suspend Work in accordance with Section 4.2
of this Agreement until such time as adequate assurance is received. If adequate
assurance is not provided by Contractor within thirty (30) days from receipt of
Owner’s request, Owner may withhold payment pursuant to Section 3.3, may
cancel Work pursuant to Section 5.1.2 or may employ any other remedy available
under the law or in equity.
8.INSURANCE.
Contractor shall comply with the insurance coverage and policy requirements set forth in
Exhibit 2 of this Agreement. As scope or circumstances dictate, Owner may adjust the
insurance requirements if both parties elect to by mutual agreement.
9.INDEMNIFICATION.
9.1 Indemnification. Contractor will indemnify, hold harmless and defend Owner and
its affiliates, officers, directors, shareholders, agents, employees, and
representatives from all third party claims, liabilities, fines, interest, costs, expenses
and damages (including reasonable attorneys’ fees) incurred by Owner for any
damage, injury, death, loss or destruction of any kind to persons, property or the
environment, to the extent the damage, injury, death, loss or destruction are caused
by any negligent act or negligent omission of Contractor or any of its servants,
representatives, agents, employees or subcontractors during the performance of the
Work.
9.2 Miscellaneous. Whenever any suit or other proceeding which involves any matter
for which the indemnification provisions of this Section 9 are applicable,
Contractor shall, upon receipt of timely notice of the institution of such suit or other
proceedings assume the defense thereof and defend the same at its own expense
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and shall pay any and all costs, charges, attorneys’ fees and other expenses and any
and all judgments that may be incurred by or obtained against Owner in such suits
or other proceedings, and if any judgment or other lien shall be placed upon or
obtained against the property of Owner as a result of such suits or other
proceedings, Contractor shall at once cause the same to be released and discharged
by giving bond or otherwise.
9.3 Concurrent Negligence. In the event the damage, injury, death, loss or destruction
is caused by the joint or concurrent negligence of Owner and Contractor, the loss
will be borne by each party in proportion to its negligence.
9.4 Survival. The provisions of this Section 9 will survive completion, Final
Acceptance and final payment, cancellation of a Work or termination of the
Agreement.
10.LIMITATION OF LIABILITY.
Having considered the risks and potential liabilities that may arise out of the Work, the
benefits of the Work and in specific consideration of the promises contained in this
Agreement and other valuable consideration receipt of which is acknowledged, Owner and
Contractor agree that, with the exception of third party claims under Section 9 of this
Agreement, neither Owner nor Contractor are liable to each other for any special,
consequential, punitive, or exemplary damages in any way arising from or related to the
performance of this Agreement.
11.DELAYS.
11.1 Force Majeure. If Contractor is delayed at any time in the progress of the Work by:
any causes or events beyond the reasonable control of, and without the fault or
negligence of Contractor, including acts of God; severe actions of the elements such
as floods, droughts, earthquakes, hurricanes, and tornadoes; vandalism beyond that
which could reasonably be prevented by Contractor; terrorism; war; sabotage; riots;
fire; explosion; blockades; insurrection; pandemic, epidemic, quarantine, severe
hot or cold weather or other severe weather conditions not reasonably anticipated;
and actions by any governmental authority taken after the date hereof (including
the adoption or change in any rule or regulation or environmental constraints
lawfully imposed by such governmental authority) but only if such actions prevent
or delay performance; then the Term shall be extended by mutual agreement from
both parties for such a reasonable period of time as mutually agreed to by both
parties. Owner is not responsible for additional labor, materials, or resources
required by Contractor for the execution of the Work as a result of weather delays
which do not constitute a force majeure event under this Section 11.1. Economic
hardship is not considered a provision for force majeure under the Agreement and
is specifically excluded.
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Notwithstanding the foregoing, the following do not constitute force majeure
causes or events: (i) any acts or omissions of any third party, including any vendor,
materialman, customer, Subcontractor or sub-supplier, unless such acts or
omissions are themselves excused by reason of this Section 11.1; (ii) any labor
strike, slow down or labor disruption against Contractor or its respective sub-
suppliers or subcontractors; (iii) material shortage unless the shortage is caused by
a force majeure event hereunder; or (iv) delays in delivery vessel, rail or carrier
shipment.
This Agreement may be terminated by Owner if an event of force majeure
hereunder causes a delay in excess of sixty (60) days after notice of delay is
delivered pursuant to Section 11.2 below.
11.2 Notice of Delay or Potential Delay. Contractor shall give Owner notice in writing
of any delay or potential delay within three (3) business days after the occurrence
of the event giving rise to the delay or the potential delay. The notice will include
a description and cause of the delay or the potential delay and the actions Contractor
is undertaking to remediate or avoid the delay. Contractor shall use reasonable
efforts to continue to perform its obligations hereunder and to correct or cure the
event excusing performance.
If the delay is not a force majeure event pursuant to Section 11.1, and Contractor
fails to take steps that Owner determines are necessary to remediate or avoid the
delay, Owner may direct Contractor to accelerate Work by whatever means Owner
deems necessary, including, but not limited to, supplying additional labor and
working overtime or additional shifts. Contractor shall be solely liable for costs to
accelerate its Work.
Owner’s receipt of Contractor’s notice of delay and/or Owner's directive to
accelerate the Work does not constitute a waiver of any right or remedy available
to Owner under this Agreement, at law or in equity, or the requirements of this
Agreement.
13.ENVIRONMENTAL.
13.1 Environmental Compliance. Contractor shall observe and comply with all federal,
state and local environmental laws, rules, regulations, policies, and orders.
13.2 Hazard Communication (SDS). Contractor will supply Owner with a Safety Data
Sheet (SDS) for any substance to be used during the performance of the Work.
These chemicals include, but are not limited to, those classified as a health hazard
or physical hazard under federal or state environmental laws.
A chemical health hazard is defined as any chemical for which there is statistically
significant evidence that acute or chronic health effects may occur in exposed
employees. Chemicals covered by this definition include carcinogens, toxic or
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highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers,
hepatotoxins, nephrotoxins, neurotoxins, agents that act on the hematopoietic
system, and agents that damage the lungs, skin, eyes, or mucous membranes.
A physical hazard is defined as a chemical for which there is scientifically valid
evidence that it is a combustible liquid, a compressed gas, explosive, flammable,
an organic peroxide, an oxidizer, pyrophoric, unstable (reactive), or water-reactive.
In addition, Contractor shall provide Owner with a list of the maximum quantities
of such substances which will be used in the Work. Contractor represents that all
personnel involved in performing the Work shall be properly trained and
experienced in the use, handling and cleanup of the hazardous substances used.
13.3 Labeling. All hazardous chemicals, substances and/or petroleum brought onto the
Project site or hazardous waste, waste oil, or used oil generated during the
performance of the Work shall be plainly and properly labeled.
13.4 Spills and Release. Contractor shall immediately notify Owner in the event of a
spill, leak or other intended or unintended release of any chemical, petroleum
product or other hazardous substance occurring at the Project site or during the
course of performing the Work.
13.5 Waste Removal. Contractor shall remove all hazardous waste, waste material, or
refuse generated by Contractor while performing Work at the Project site. The
removal, transport, and disposal will be in compliance with all applicable laws and
regulations. Contractor will pay all costs associated with removal and disposal
unless otherwise agreed upon in writing by Owner.
13.6 Storm Water Provisions. If Work requires a NPDES General Permit No. 2, the
permit shall be secured by Owner prior to commencing Work on the project.
Contractor shall comply with all provisions of applicable permit(s) and/or plans.
Owner reserves the right to stop construction activities at any time if Clean Water
Act-related compliance is compromised in any way.
13.7 SPCC - Spill Control and Containment Provisions. If Contractor is unloading and
transferring petroleum or chemical product from a truck or to a storage tank during
the performance of Work at the Project site, Contractor shall provide for secondary
containment or have established a spill contingency plan for this activity.
Contractor shall provide secondary containment when storing petroleum or
chemical products in containers equal to or greater than fifty (50) gallons. If
Contractor is conducting Work at the Project site with its own equipment,
including, but not limited to, skids with oil filled engines/tanks, in which there is a
potential for a petroleum or chemical spill, secondary containment will be required
to contain or capture the full amount of fluid in the equipment.
13.8 Anything to the contrary notwithstanding, Contractor shall not be responsible or
liable for all Pre-Existing Hazardous Materials. “Pre-Existing Hazardous
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Materials” means any Hazardous Materials present on, in, under, around or about
the Work site or any other portion of the project on or before the date Contractor
commences Work on such Work site or any other portion of the project.
14.SAFETY.
14.1 Safety. Contractor shall comply with all applicable local, state and federal safety
laws, regulations, ordinances and codes including, without limitation, those
promulgated by the Occupational Safety & Health Administration (“OSHA”) and
Department of Transportation applicable to the Work. Contractor shall take all
reasonable and necessary safety precautions and furnish, install and maintain all
guards and/or barricades necessary for the prevention of accidents and injury to
persons and property. Contractor shall immediately notify Owner in the event of
any accident or incident involving personal injury, property damage of any kind or
any violation of safety rules and regulations occurring at the Work site or during
the course of the performance of the Work. Contractor shall also immediately
notify Owner if Contractor observes any accident or safety violation incident
involving third parties performing other services or work at the Work site.
14.2 Exposure Risks. If the Work involves the potential for exposure of Contractor's
personnel to natural gas pipelines or facilities, energized electric lines, equipment
or circuits, Contractor hereby represents that all employees, agents and
representatives who will perform the Work are trained in the inherent hazards of
natural gas and electricity and the means of avoiding exposure to such hazards
pursuant to OSHA regulations. Contractor shall be responsible and hereby agrees
to maintain a qualified person at the site of the Work and to strictly comply with all
safety-related work requirements under OSHA.
14.3 Natural Gas/Department of Transportation Requirements. Contractor and their
agents who perform operations, maintenance or emergency response functions
under this Agreement on a pipeline subject to Parts 191, 192, 193 or 195 of Title
49 of the Code of Federal Regulations shall ensure compliance by such parties with
all pipeline safety laws and regulations and all other applicable laws and regulations
for drug and alcohol testing.
15.DISPUTE RESOLUTION.
The parties will attempt, in good faith, to resolve all disputes under this Agreement in
accordance with this Section 15.
Any and all disputes, controversies or claims between the parties to this Agreement, if not
settled within twenty (20) days following written notice of such dispute, shall be referred
to senior management of the parties for resolution. In the event that the dispute has not
been resolved within thirty (30) days following referral to senior management, or such
longer period as the parties may agree, either party may initiate formal proceedings against
the other party.
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Notwithstanding the foregoing, a party may initiate formal proceedings with regard to any
dispute, controversy or claim: (i) in order to avoid the expiration of any applicable statute
of limitations period; (ii) with respect to which injunctive relief is available under this
Agreement; or (iii) which is the subject of, or related to, a pending lawsuit or arbitration to
which either Owner or Contractor is a party and under which Owner or Contractor brings
a third-party action or cross-claim against the other party.
16.PERFORMANCE OF WORK.
16.1 Supervision. Contractor shall supervise and direct the Work, using that skill and
attention required by good construction practices. Contractor is solely responsible
for all construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work. Contractor is responsible to Owner for acts
and omissions of the Contractor's employees and other persons performing portions
of the Work under contract with or at the direction of the Contractor. Contractor is
not relieved of obligations to perform the Work in accordance with the Agreement
either by activities or duties of Owner’s engineer or by tests, inspections or
approvals required or performed by persons other than the Contractor. Contractor
is responsible for inspection or portions of Work already performed under the
Agreement to determine that such portions are in proper condition to receive
subsequent Work.
16.2 Compliance with Law. Contractor shall give all notices and comply with all laws,
ordinances, rules, regulations, codes and orders of any federal, state and local
authority bearing on the performance of the Work. Contractor will obtain and keep
current, at Contractor’s expense, all permits, certificates and licenses necessary for
the performance of the Work.
16.3 Qualification of Personnel. Contractor agrees to employ only personnel who are
competent to perform the Work assigned to them and, in the case of skilled labor,
who are adequately trained and experienced in their respective trades and who do
satisfactory work.
16.4 Cooperation. If other work or services are being done at the same time and place
as the Work done hereunder, Contractor shall cooperate with and coordinate the
Work with that of other contractors and Owner’s personnel to promote the prompt
and efficient completion of the Work. The operations of Owner will continue at
the Work site during the performance of the Work by Contractor. Contractor shall
cooperate with Owner and coordinate its work to minimize and avoid to the extent
possible the disruption of the business operations of Owner.
16.5 Conflicts. Contractor shall promptly notify the Owner’s Representative in writing
of any apparent conflicts, discrepancies, errors, or omissions in the Work.
Contractor shall obtain a written clarification from Owner before proceeding with
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any affected Work. Contractor is liable to Owner for failure to report any conflict
Contractor knew or should have reasonably known thereof.
16.6 Ownership of Work Product. All data, plans, specifications, reports, estimates,
summaries, designs, drawings, tracings, studies, and other materials prepared or
caused to be prepared by Contractor in connection with this Agreement are the
exclusive property of Owner upon delivery. Upon either Final Acceptance or
termination of this Agreement, Contractor shall deliver to Owner all such data,
plans, specifications, reports, estimates, summaries, designs, drawings, tracings,
studies and other materials. Anything to the contrary notwithstanding, Owner’s
ownership rights in Work Product shall not extend to elements of Work Product
that constitute: (a) Contractor (for the purposes of this Article, including its parents,
affiliates, and subsidiaries)’s preexisting material; (b) information protected by
copyright, patent, or trademark law; and/or (c) refinements to Contractor processes,
whether or not developed under any project for Owner. Anything in the foregoing
that may appear to the contrary notwithstanding, nothing in this Agreement shall
be construed so as to limit or transfer Contractor's ownership of all rights, facts and
data (regardless of whether such rights arise from the law of copyright, trademark,
patent or trade secret or any other source) to use its basic know-how, methods of
analysis, experience, techniques, processes, models, industry knowledge and
contacts, models, skills and presentation formats, whether or not acquired during
performance of the Work.
16.7 Cleaning Up. If Work is performed on Owner’s property, the property of Owner’s
customers or in the public domain, Contractor shall keep the Work site in a clean
and orderly manner at all times and shall remove all rubbish and refuse daily. At
completion of the Work, Contractor shall remove from the site waste materials,
rubbish, Contractor’s tools, construction equipment and machinery and surplus
materials. Contractor shall restore and replace in a suitable manner all public and
private property which has been damaged in the performance of the Work which
was not a part of the Work and shall leave the Work site free and clear from all
obstructions, hindrances and safety hazards. Owner may perform such cleanup,
removal and remediation if Contractor fails to do so within a reasonable time after
notice of such failure and the charges therefor will be paid by Contractor.
16.8 Removal of Personnel. Owner may require Contractor to remove individual
personnel from providing Work to Owner for any lawful reason. Owner is not
obligated to pay for Work provided by the removed personnel following Owner’s
written notice of removal.
16.9 Contraband. Contractor will advise its employees and agents that the use,
possession and/or distribution of illegal drugs, drug-related paraphernalia or
weapons at the Work site or the location of the Work is prohibited. Contractor
agrees to comply with all postings and notices located on Owner’s property and
with all policies, rules, and regulations of Owner.
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16.10 Independent Contractor. Contractor is an independent contractor of Owner.
Contractor has the responsibility for and control over the means and details of
performing the Work. All Work performed by Contractor and its employees, and
agents shall be supervised by Contractor. This Agreement cannot be construed to
create an employment relationship between Owner and Contractor nor a
partnership, joint venture or joint undertaking between the parties.
16.11 Inspection of Plans and Site. Contractor shall be held to have carefully examined
the Agreement and the attachments thereto and to be fully informed as to all
existing and reasonably discoverable conditions and limitations, including all laws,
ordinances and regulations affecting the Work, and to have included all items
implied or required therein to attain the completed conditions specified by the
Agreement and attachments to complete the Work. Failure to conform to this
requirement does not relieve the Contractor of any of the obligations set forth
herein.
16.12 Referenced Standards. Reference to the standards of any technical society,
organization, or association, or to codes of local or state authorities, will mean the
latest standard, code, specification, or tentative standard adopted and published at
the effective date of the Agreement, unless specifically stated otherwise.
16.13 Access to Site of Work. Owner shall provide Contractor reasonable access to the
Work site for the performance of the Work.
16.14 Background Checks. Contractor shall, prior to the commencement of the Work,
obtain a reasonable background check on each employee, agent, representative and
Subcontractors personnel (“Contractor Personnel”) for the purpose of this Section
16.14) who will be engaged in the performance of the Work. Contractor
acknowledges and agrees that only those persons who have successfully passed
background checks to the reasonable satisfaction of Contractor will perform Work
at the Work site, the property of its customers and on its computer systems.
At a minimum, Contractor shall confirm and verify each Contractor Personnel’s
social security number, identity and authorization to work in the United States.
Contractor shall also perform a reasonable criminal record check. Contractor shall
provide such information to Owner upon request.
16.15 Nonexclusive. This Agreement is nonexclusive. Owner may retain the services of
other contractors for the same or similar Work.
17.MODIFICATION.
17.1 Change Orders. Owner, without invalidating the Agreement, may at any time
request changes in the Work within the general scope of the Agreement consisting
of additions, deletions or other revisions. All such mutually agreed upon changes
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in the Work will be authorized by the Owner’s Representative and will be
performed under the applicable conditions of the Agreement.
17.2 Minor Changes in the Work. Owner will have authority to direct minor changes in
the Work not involving adjustment in the compensation set forth in Exhibit 1 and
not reasonably inconsistent with the intent of the Agreement and Work. Such
changes will be documented and are binding on Owner and Contractor. Contractor
shall carry out such minor changes promptly.
18.MISCELLANEOUS.
18.1 Governing Law and Jurisdiction. This Agreement is governed by, and construed
in accordance with, the laws of the state of where the Work is performed, without
regard to conflicts of law principles. Contractor hereby consents and submits to
the personal jurisdiction and exclusive venue of the state and federal courts sitting
in the state where the Work is performed.
18.2 Assignment. The Agreement is personal to Contractor. Contractor may not
assign this Agreement or any of its rights or obligations hereunder, without the
prior written consent of Owner. Owner may assign this Agreement to an affiliate
or subsidiary without the consent of Contractor.
18.3 Severability and Entire Agreement. The invalidity in whole or in any part of this
Agreement does not affect the validity of the remainder of the Agreement. This
written Agreement represents the complete Agreement of the parties. It is
understood and agreed that the written terms and provisions of the Agreement will
supersede all oral statements of representatives of the Owner, and oral statements
will not be effective or be construed as being a part of the Agreement.
Commercial terms and conditions incorporated into Contractor’s invoices are of
no effect.
18.4 Notices. All notices under this Agreement must be in writing, identified by the
Agreement and title and sent by certified mail, return receipt requested, by
overnight mail, by facsimile (with proof of transmission to the receiving party’s
fax number) or by hand-delivery to the following:
City of Waukee InfraSource Construction, LLC
Attn: Asst. PW Director - Operations Attn: Contracts Manager
805 University Ave 16000 College Blvd.
Waukee, Iowa 50263 Lenexa, KS 66219
Phone: 515-978-7920 Phone: 816.949.2100
Email: troyer@waukee.org Email: contracts@infrasourceinc.com
or to such other addresses, facsimile numbers or email addresses as either party
notifies the other of in writing.
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18.5 Nonwaiver. The failure of Owner to insist upon or enforce, in any instance, strict
performance by Contractor of any of the terms of this Agreement or to exercise any
rights herein conferred cannot be construed as a waiver or relinquishment to any
extent of its right to assert or rely upon such terms or rights on any future occasion.
18.6 Amendments. No alteration or amendment of this Agreement is valid unless the
same is made in accordance with an instrument in writing signed by Owner and
Contractor. No alteration or amendment of a specific section or paragraph of this
Agreement can be construed to alter or amend any other provisions of the
Agreement unless expressly so stated in such written instrument.
18.7 Counterparts. This Agreement may be signed in any number of counterparts and
by signatures transmitted electronically, each of which is deemed an original and
which together constitutes one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed as
of the date first set forth above.
City of Waukee, Iowa InfraSource Construction, LLC
(Signature) (Signature)
Courtney Clarke
(Name Printed) (Name Printed)
Mayor
(Title) (Title)
(Date) (Date)
Jeff Winterstein
Executive Vice President
1/21/2021
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EXHIBIT 1
Price Sheet January 1, 2021 – December 31, 2022
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EXHIBIT 2
INSURANCE COVERAGE REQUIREMENTS
1. Coverage. Contractor shall maintain at its sole cost and expense during the term of this Agreement, with
insurers satisfactory to Owner and licensed to do business in the jurisdiction where Work is to be performed,
the required insurance coverage set forth in this Exhibit 2.
1.1 Workers Compensation Insurance. Contractor shall maintain both workers compensation as required
under any workers compensation or similar law in the jurisdiction where the Work is performed and
Employers Liability insurance. Employers liability required limits shall be $500,000 each accident
for bodily injury by accident or $500,000 each employee for bodily injury by disease.
1.2 Commercial General Liability Insurance. Contractor shall maintain commercial general liability
with a required limit of $1,000,000 each occurrence and $2,000,000 aggregate. The policy shall
cover liability arising from premises, operations, independent contractors, products-completed
operations, personal injury and advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract). Completed Operations
coverage is to extend for two (2) years following the last to occur of the following events: (i)
termination of this Agreement; or (ii) termination of all outstanding Work.
1.3 Automobile Liability. Contractor shall maintain automobile liability with a required limit of
$1,000,000 each accident. Such insurance shall cover liability arising out of the use of any auto
including owned, hired, and non-owned autos.
1.4 Umbrella or Excess Liability Insurance. Umbrella or excess liability insurance in excess of
Employers Liability, General Liability and Automobile Liability with a required limit of $5,000,000
per occurrence. Any aggregate limits on this policy shall not be impaired as of the date the Contractor
commences Work.
2. Policy Requirements. All policies, with the exception of workers' compensation insurance policies, shall
name Owner, its affiliates, officers, directors, shareholders, agents, employees, and representatives as an
additional insured and shall contain a severability of interest provision. All policies shall waive subrogation.
The insurance applies on a primary and non-contributory basis with respect to any other insurance or self-
insurance available to Owner. Any deductibles or self-insured retentions carried by Contractor are the sole
responsibility of Contractor. Any Party named an additional insured pursuant to this Agreement shall be an
additional insured, but only to the extent that the loss in question is caused by the negligent act or omission
of Contractor.
3. Evidence of Insurance. Prior to the commencement of Work and upon any change in insurers or material
change to policies, Contractor shall furnish Owner with a certificate of insurance executed by a duly
authorized representative of each insurer, showing compliance with the insurance requirements set forth
herein. Contractor shall deliver the certificate to the Owner’s Representative as identified in Section 3.3 of
this Agreement.
4. Notice. Contractor shall provide a minimum of thirty (30) days advance written notice to Owner in the
event of cancellation, material reduction in coverage or non-renewal of the policy.
5. Subcontractors. Contractor shall require all Subcontractors to furnish the same insurance as required of
Contractor.