First Amendement to Agreement FIRST AMENDMENT TO AGREEMENT
FOR CONSTRUCTION OF LANDFILL CELL 19
This First Amendment to Agreement for Construction of Landfill Cell 19
("Amendment") is entered into this !' day of October, 2014, by and between the City of
Salina, Kansas, a Kansas municipal corporation ("Owner"), and Sporer Land Development, Inc.,
a Kansas corporation ("Contractor").
Recitals
A. The Owner and Contractor entered into an Agreement dated April 14, 2014
("Agreement"), setting forth the terms and conditions relating to the Contractor's construction of
a leachate pond, leachate pumping system, and a municipal solid waste landfill cell located at the
Salina Municipal Solid Waste Landfill.
B. Due to delays, the Contractor has not substantially completed the Work by the
date established in the Agreement for Substantial Completion.
C. The parties now desire to make certain modifications to the Agreement affecting
the accrual of liquidated damages, the withholding of retainage, and the method of determining
completion and readiness for final payment.
FOR AND IN CONSIDERATION of the mutual and reciprocal promises and agreements
set forth herein,the parties agree as follows:
1. Incorporation of Definitions. Except as otherwise provided in this Amendment,
all terms used herein shall have the meanings assigned to them in the Contract Documents.
2. Contract Times; Liquidated Damages. Notwithstanding anything to the
contrary contained in the Contract Documents, the Contractor shall not be obligated to pay any
accrued liquidated damages if the Work is substantially completed on or before October 20,
2014; provided, however, that if the Work is not substantially completed on or before October
20, 2014, the Contractor shall pay liquidated damages as originally set forth in the Agreement,
calculated at the rate of$1,500.00 for each day that expires after September 20, 2014, until the
Work is substantially complete. The October 20, 2014 deadline for achieving Substantial
Completion shall not be extended for any reason, regardless of the cause, including but not
limited to delays caused by rain, wind, flood, or other natural phenomena or weather conditions.
After October 20, 2014, or the date of Substantial Completion, whichever is later, liquidated
damages shall be calculated at the rate of$750.00 for each day that expires prior to completion
and readiness for final payment; subject, however, to potential allowances for additional time to
achieve completion and readiness for final payment, in accordance with the Contract Documents.
The parties acknowledge and expressly reaffirm the provisions of the Agreement pertaining to
the difficulty and impracticability of proving the actual loss suffered by the Owner if the Work is
not completed on time, and further agree that, considering all the circumstances, the liquidated
damage amounts are reasonable.
3. Progress Payments; Retains e. Notwithstanding anything to the contrary
contained in the Contract Documents, the retainage amount with respect to monthly progress
payments is hereby increased from ten percent (10%) to twenty percent (20%), such that the
Owner shall withhold an amount equal to twenty percent (20%) of each monthly progress
payment paid to the Contractor after the date of this Amendment, plus such amounts as the
Engineer shall determine, or the Owner may withhold, in accordance with Paragraph 14.02 of the
General Conditions. All retainage shall be withheld by the Owner pending final completion and
acceptance of all Work in accordance with Paragraph 14.07 of the General Conditions.
4. Final Completion and Payment.
4.1. Seeding, Fertilizing, and Mulching. Due to seasonal weather issues, the
portions of the Work described as "seeding, fertilizing, and mulching" in Section 02900 of the
Scope of Work must now be postponed until the spring of 2015. The Contractor agrees to
complete all seeding, fertilizing, and mulching Work on or before April 1, 2015. If the seeding,
fertilizing, and mulching Work is not completed and ready for final payment on or before April
1, 2015, the Contractor shall pay liquidated damages at the rate of $150.00 for each day that
expires after April 1, 2015, until such Work is completed and ready for final payment.
4.2. Final Payment. Notwithstanding section 4.1 above or anything to the
contrary contained in the Contract Documents, upon final completion and acceptance of all
remaining portions of the Work in accordance with Paragraph 14.07 of the General Conditions,
the Owner shall pay the remainder of the Contract Price as recommended by the Engineer
pursuant to said Paragraph 14.07, less: (a) any sum the Owner is entitled to setoff against the
Engineer's recommendation, including but not limited to liquidated damages; and (b) the sum of
$15,000.00, which shall be retained by the Owner and disbursed to the Contractor upon
satisfactory completion of all seeding, fertilizing, and mulching Work.
4.3. KDHE Authorization to Operate. For purposes of determining final
completion and readiness for final payment pursuant to the Contract Documents and section 4.2
above, the Work shall not be deemed finally complete, and no retainage shall be disbursed, until
such time as the Kansas Department of Health and Environment ("KDHE") has reviewed the
Engineer's certification report and issued a formal written Authorization to Operate the new
landfill cell. Notwithstanding the foregoing, the parties recognize that the time required for the
Engineer to prepare the certification report and the time required for KDHE to review and
approve the report are outside of the Contractor's control. Accordingly, no liquidated damages
shall accrue prior to the KDHE's issuance of a formal written Authorization to Operate, or denial
thereof, if, in the opinion of the Engineer, the Contractor has otherwise finally completed the
Work and all other obligations of the Contractor under the Contract Documents have been
fulfilled.
5. Ratification of Unamended Terms. The terms of the Agreement and related
Contract Documents not amended by this Amendment are ratified and confirmed.
{Signature Page Follows}
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IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their
duly authorized officers on the day and year first above written.
CITY OF SA A, • SAS
By:
Aaron K. I T.useholter, Mayor
ATTEST:
By: U
idi Wicks, CMC, City Clerk
SPORER LAND DEVEL 0 '' • NT, INC.
Name: ,i4,4 ✓L, '
Title: Arrr/
Recommended by:
SCS AQUATERRA, INC.
By:
Name: -r i'l i a , 6.4_,
Title: Vic,- ?rcSlejev,t
Form: „
al CoL l
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