Change Order 3 & Addendum
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ADDENDUM AND CHANGE ORDER NO.3
MUNICIPAL SOLID WASTE LANDFILL FACILITY
CELL 5 CONSTRUCTION
This Addendum and Change Order No.3 is entered into this ~ day of February,
2010 between the City of Salina, Kansas (the "Owner") and Larkin Excavating, Inc.,
Lansing, Kansas (the "Contractor").
Recitals
A. On August 10, 2009, the Governing Body of the Owner awarded a
contract (the "Contract") for construction of Municipal Solid Waste Landfill Facility Cell
5, Project No. 09-2769 (the "Project"), to the Contractor for the original contract price of
$1,554,890.00 ("Original Contract Price").
B. The Original Contract Price was increased $2,982.00 by Change Order
No.1 and increased $34,059.27 by Change Order No.2, resulting in a revised Contract
Price of$1,591,931.27 ("First and Second Revised Contract Price").
C. Section 00500, Article 4, Paragraph 4.02 of the Contract required
substantial completion of the Project on or before January 31,2010 and final completion
on or before March 31, 2010.
D. Due to a number of contributing factors, the Contractor was unable to
meet the substantial completion deadline of January 31, 2010 and has submitted claims
requesting a schedule extension on the basis of both (i) the lack of red clay available
within the limits of the excavation necessary to construct the required clay liner and (ii)
abnormal weather conditions (collectively, the "Contractor's Claims").
E. The Owner has asserted its claim for liquidated damages under the terms
ofthe Contract (the "Owner's Claim").
F. The Owner and the Contractor wish to document their mutual compromise
and settlement of their respective claims and a revised schedule for both substantial
completion and final completion of the Project.
THE PARTIES therefore covenant and agree:
1. Compromise and Settlement of Claims. The Owner and the Contractor
agree to fully compromise and settle the Contractor's Claims and the Owner's Claim on
the basis of a reduction of the contract price in the amount of $5,000.00, resulting in a
revised contract price of $1,586,931.27 ("Third Revised Contract Price").
2. Revised Proiect Schedule. Contractor shall complete the Work as
specified in the Contract Documents on the basis of the following schedule:
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2.1. Notice to -proceed. The parties anticipate the resumption of work by the
Contractor on or about February 15, 2010, depending upon weather conditions and
ground temperature. The parties shall jointly determine the date for resumption of work
("Resumption of Work Date") as soon as weather and ground-temperature allow and a
three day notice to proceed shall be issued to the Contractor.
2.2. Substantial and Final Completion. Section 00500, paragraph 4.02 of the
Contract Documents is amended to provide:
4.02. Substantial Completion and Final Payment.
A. The Work shall be substantially completed within thirty-three (33)
working days after the Resumption of Work Date and completed and ready for
final payment in accordance with Paragraph 14.07 of the General Conditions
within fourteen (14) working days after substantial completion. "Working
Day" shall be any weekday when conditions allow the Contractor to make
substantial progress toward completion of the Work, as determined by
agreement among the Owner, the Engineer, and the Contractor by 12:00 Noon
each weekday. In the event of disagreement among the three parties in
determining whether a particular day qualifies as a Working Day, the
determination of the Engineer shall control. Any work performed by the
Contractor on weekend days or national holidays shall not cause those days to
be counted as a working day.
2.3. Liauidated Damages. Section 00500, paragraph 4.03 of the Contract
Documents is amended to provide:
4.03. Liquidated Damages.
A. Contractor and Owner recognize that time is of the essence of this
Agreement and that Owner may suffer financial loss if the Work is not
completed within the time specified in Paragraph 4.02 above. The parties also
recognize the delays, expense, and difficulties involved in proving in a legal or
arbitration proceeding the actual loss suffered by Owner if the Work is not
completed on time. Accordingly, instead of requiring any such proof, Owner
and Contractor agree that as liquidated damages for delay (but not as a
penalty), Contractor shall pay Owner $1,000.00 for each Working Day that
expires after the number of Working Days specified in Paragraph 4.02 for
substantial completion until the Work is substantially complete. After
substantial completion, if Contractor shall neglect, refuse, or fail to complete
the remaining Work within the number of Working Days specified in
Paragraph 4.02 for completion and readiness for final payment, Contractor
shall pay Owner $500.00 for each Working Day that expires until the Work is
completed and ready for final payment.
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3. Incentive for Completion. As an incentive for completion of the Work,
the City agrees to increase the Third Revised Contract Price by $500 for each day in
advance of March 31, 2010 (regardless of the Resumption of Work Date) that the
Contractor achieves substantial completion of the Work, subject to a maximum of ten
(10) days (or $5,000).
4. Amendment and Ratification. The Contract Documents are ratified and
confirmed except as amended by this Addendum and Change Order No.3.
5. Binding Effect. This Addendum and Change Order No.3 shall be binding
upon the parties and their successors and assigns.
EXECUTED, the day and year first stated above by the duly authorized officers
of the parties.
CITY OF SALINA, KANSAS
By t~~
ATTEST:
By -Jitllftif:/fJLt/~
Shandi Wicks, Deputy City Clerk
LARKIN EXCAVATING, INC.
By
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