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Primary Digestor #4 Repair :Pr~~t ðS- \555 ~ STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A COST PLUS FIXED FEE THIS AGREEMENT is dated as of the Jq~ day of December in the year 2005 by and between City of Salina, Kansas (hereinafter called OWNER) and Walters-Morgan Construction, Inc., (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1: WORK. OWNER and CONTRACTOR agree to proceed with the Work on the basis of trust, good faith and fair dealing, and shall take all actions reasonably necessary to perform this Agreement in an economical and timely manner. CONTRACTOR shall complete the Work as generally described as follows: ~ See Attachment A: Scope of Work and Pricing - Primary Digester 4 Repair Any disputes regarding the nature of the work to be done shall be submitted to the OWNER, whose decision will be fmal. Article 2. OWNER. Name: City of Salina Address: 300 Ash Street Salina, Kansas 67402 Article 3. CONTRACT TIME. 3.1. The Work will start on April 1, 2006 and be completed on or before July 1, 2006. Article 4. CONTRACT PRICE 4.1. OWNER shall pay CONTRACTOR for completion of the Work as follows: 4.1.1. For the Work described above, the OWNER agrees to pay the CONTRACTOR on a cost plus fIXed fee basis. An upper limit of $135,000 has been established for the total of all projects tasks and will not be exceeded without written authorization by the OWNER. Payments for the CONTRACTOR'S costs shall be based on actual costs incurred in providing the work described above. Article 5. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment to the OWNER for review and approval. 5.1. Progress Payments. OWNER shall make progress payments on the basis of CONTRACTOR'S Applications for Payment on or about the third Wednesday of each month during construction as Provided below. All progress payments will be based on cost of the Work as reflected on the monthly project detail report plus the CONTRACTOR'S fee of 10 percent. Retention will not be held on this contract. Cost of the Work is defmed as follows: Page 1 of 6 , 5.1.1. 5.1.2. 5.1.3. 5.1.4. 5.1.5. 5.1.6. 5.1.7. 5.1.8. 5.1.9. Wages paid for labor in the direct employ of the CONTRACTOR in the performance of the Work. Salaries of CONTRACTOR'S employees when stationed at the field office, in whatever capacity employed, employees engaged on the road expediting the production or transportation of material and equipment, and employees from the principal or branch office performing the functions listed below: Proj ect management! estimating Equipment maintenance attributable to the Work Cost of all employee benefits and taxes including but not limited to workers' compensation, unemployment compensation, Social Security, health, welfare, retirement, and other fringe benefits as required by law, labor agreements, or paid under the CONTRACTOR'S standard personnel policy, insofar as such costs are paid to employees of the CONTRACTOR who are included in the Cost of the Work under Subparagraphs 5.1.1. and 5.1.2. Referred to as Payroll Taxes and Insurance (PT & I) and is set at 40.0% of incurred labor costs. Reasonable transportation, travel; hotel, and moving expenses of the CONTRACTOR'S personnel incurred in connection with the Work. Cost of all materials, supplies, and equipment incorporated in the Work, including costs of inspection, testing, transportation, storage, and handling. Payments made by the CONTRACTOR to Subcontractors for Work performed under this Agreement. Cost, including transportation and maintenance of all materials, supplies, equipment, temporary facilities, and hand tools not owned by the workers that are used or consumed in the performance of the Work, less salvage value; and cost less salvage value on such items used, but not consumed that remain the property of the CONTRACTOR. Rental charges of all necessary machinery and equipment, exclusive of hand tools owned by workers, used at the site of the work, whether rented from the CONTRACTOR or others, including installation, repair and replacement, dismantling, removal, maintenance, transportation, and delivery costs as rental charges consistent with those prevailing in the area. Cost of the premiums for all insurance and surety bonds which the CONTRACTOR is required to procure or deems necessary. 5.1.10. Sales, use, gross receipts or other taxes, tariffs, or duties related to the Work for which the CONTRACTOR IS LIABLE. 5.1.11. Permits, fees, licenses, tests, royalties, and deposits lost for causes other than the CONTRACTOR'S negligence. 5.1.12. All costs associated with establishing, equipping, operating, maintaining, and demobilizing the field office. 5.1.13. Reproduction costs, photographs, cost of telegrams, facsimile transmissions, long distance telephone calls, data processing services, postage express delivery changes, telephone service at the site, and reasonable petty cash expenses at the field office. 5.1.14. All water, power and fuel costs necessary for the Work. 5.1.15. Costs of removal of all non-hazardous substances, debris, and waste materials. Page 2 of 6 , 5.1.16. Costs incurred due to an emergency affecting the safety of persons and/or property. 5.2. Discounts. All discounts for prompt payment shall accrue to the OWNER to the extent such payments are made directly by the OWNER. To the extent payments are made with funds of the CONTRACTOR, all cash discounts shall accrue to the CONTRACTOR. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall be credited to the Cost of the Work. 5.3. Final Payment. Upon fmal completion and acceptance of the work, OWNER shall pay the CONTRACTOR the fmal payment for all costs incurred in providing the Work. Article 6. OWNER'S RESPONSIBILITIES. 6.1. Designate a person to act as OWNERS' representative with respect to the services to be rendered under this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and defme OWNERS' policies and decisions with respect to CONTRACTOR'S services for the Work. 6.2. Obtain approval and permits from all governmental authorities having jurisdiction over the Work and such approvals and consents from others as may be necessary for completion of the Work. 6.3. Give prompt written notice to CONTRACTOR whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of the CONTRACTOR'S services. 6.4. Provide wastewater treatment facility staff to operate valves, gates, and process equipment as required to complete the Work. 6.5. Arrange for Kyle Minden of Engineering and Design & Testing Corporation to travel to the site to meet with the CONTRACTOR and OWNER to inspect damage and address repair and cost issues. This site visit shall occur when the digester lid is removed and sitting on the support stand on the ground.. 6.6. Bear all costs incidental to compliance with the requirements of this article. Article 7. CONTRACTOR'S RESPONSIBILITIES. 7.1. CONTRACTOR shall not commence work under this Agreement until he has obtained all the insurance required under this paragraph and the OWNER has approved such insurance, nor shall the CONTRACTOR allow any subcontract to commence work on his subcontract until all similar insurance required of the subcontractor has been so obtained and approved. Policies shall contain a provision that coverages afforded under the policies will not be canceled or not renewed until at least 30 days' prior written notice has been given to the OWNER. Certificates of Insurance showing such coverage to be in force shall be filed with the OWNER prior to commencement of the work. 7.1.1. Worker's Compensation insurance shall be procured and maintained during the life of this Agreement. Worker's Compensation and Employer's Liability Insurance as required by applicable law shall fully cover all employees, and in case any work is sub-let, CONTRACTOR shall require the subcontractor to provide Worker's Compensation and employer's Liability Insurance for all of the subcontractor's employees, unless such employees are covered by the protection offered by the CONTRACTOR'S insurance. In case any class of employees engaged in hazardous work under this Agreement at the site of the project are not protected under the Worker's Compensation statute, the CONTRACTOR shall provide and shall require each subcontractor to provide adequate and suitable insurance for the protection of his employees as are not otherwise protected. , Page 3 of 6 ~ 7.1.2. 7.1.3. 7.1.4. 7.1.5. The CONTRACTOR shall hold the OWNER free and harmless for all personal injuries of all persons who the CONTRACTOR may employ directly or through subcontractors. Comprehensive General Liability Insurance shall be procured and maintained during the life of this Agreement. Contractor's Comprehensive General Liability Insurance shall include premises - operations (including explosion, collapse and underground coverage), independent contractors, completed operations, and blanket contractual liability, including broad form property damage coverage. The policy shall protect the CONTRACTOR and any subcontractor performing work covered by this Agreement for claims for damages for bodily injury, as well as from claims for property damages which may arise from operations under this Agreement, whether such operations be by himself or any subcontractor or by anyone directly or indirectly employed by either of them. Such insurance shall be written for not less than limits of liability as follows: Comprehensive General Liability I. Bodily Injury $500,000 Each Person $500,000 Aggregate $500,000 Each Occurrence 2. Property Damage or 3. Combined Single Limits $500,000 Each Occurrence Comprehensive General Liability Insurance may be arranged under a single policy for the full limits required or by a combinations or underlying policies with the balance provided by an Excess or Umbrella Liability policy. Comprehensive Vehicle Liability Insurance shall be procured and maintained during the life of this Agreement. Comprehensive Vehicle Liability Insurance which shall cover claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle on the project, whether owned, hired or non-owned; and in connection with any operations or work under this Agreement whether such operations or work be performed by the CONTRACTOR or any subcontractor or by anyone directly or indirectly employed by either of them. Such insurance shall be written for not less than limits of liability as follows: Comprehensive Automobile Liability I. Bodily Injury $500,000 Each Person $500,000 Each Occurrence $500,000 Each Occurrence 2. Property Damage or 3. Combined Single Limits $500,000 Each Occurrence Subcontractor's Insurance: Require each subcontractor to procure and to maintain during the life of his subcontract, Subcontractor's Comprehensive General Liability insurance and Comprehensive Vehicular Liability Insurance of the type and in the same amount as specified in the preceding subparagraphs, or insure the activities of his subcontractors in the CONTRACTOR'S policy. File with the OWNER a "Certificate of Insurance". The "Certificate" will be considered proof to show that the CONTRACTOR and his subcontractors, if any, carry adequate coverage fully to protect themselves against such claims which may arise from operations under this Agreement, whether such operations be by the CONTRACTOR, or any subcontractor or anyone directly or indirectly employed by either; said coverage to be in the form and minimum amounts herein above specified. Each "Certificate" shall contain a clause requiring the Insurer to notify the OWNER at least 30 days in advance of any Page 4 of6 , cancellation or change in insurance contracts. All policies shall be subject to written approval by the OWNER as to Insurer and adequacy of protection. If the CONTRACTOR is subject to Worker's Compensation law, a certificate shall be provided. 7.2. Meet all Occupational Safety and Health Administration's (OSHA) guidelines and regulations and ensure that CONTRACTOR'S personnel are provided applicable safety training and personal protective equipment and personnel will also be required to utilize universal precautions and work practice controls. 7.3. Procurement of materials and construction of the work consistent with the OWNERS' maintenance program. 7.4. Track costs through the CONTRACTOR'S management information system with labor cost reports and total project cost reports products on a monthly basis. The cost reports will be used to monitor the total cost of the contract as related to the upper limit identified in Article 4. The cost reports will be used for basis of progress payments. 7.5. Schedule Work consistent with the OWNER'S plant operation. Updated schedules will be provided on a monthly basis. 7.6. Guarantee the workmanship and materials for a period of 12 months from the date the workmanship or materials are utilized for the purposes for which they were intended. All manufacturer's warranties which extend beyond the 12 month period shall remain in effect. 7.7. The CONTRACTOR agrees to indemnify and save harmless the OWNER, its officials, agents, servants, officers, directors, and employees from and against all claims, expenses, demands, judgements, and causes of action for personal injury or death or damage to property where, and to the extent that, such claims, expenses, demands judgement or causes of action arise from the CONTRACTOR'S negligent acts. 7.8. See Attachment B: Statutory Bond Article 8. AGREEMENT. The Agreement consists of the following: 8.1. This Agreement (pages I to 6, inclusive). Article 9. MISCELLANEOUS. 9.1. No assignment by a party hereto of any rights under or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound: and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. 9.2. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in this Agreement. 9.3. This Agreement is solely for the benefit of the parties, represents the entire and integrated agreement between the parties, and supersedes all prior negotiations, representations or agreements, either written or oral. Page 5 of 6 ~ IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year ftrst above written. OWNER CONTRACTOR City of Salina Salina, Kansas Walters-Morgan Construction, Inc. Manhattan, Kansas BY~~ By: Title: (\J'tthjDR- Title: John D. Walters. President Arte" ~Á~ ÇþKj- Attest Address for giving notices Address for giving notices City of Salina Address: 300 West Ash Salina, Kansas 67402 Walters-Morgan Construction, Inc. 2616 Tuttle Creek Blvd. Manhattan, KS 66502 Page 6 of 6 Attachment A: Scope of Work & Pricing - Primary Digester 4 Repair Labor Material & Subcontractor Total Const. Equip. 1 Mobilize: 1,340 1,076 0 2,416 I 2 Project Preparation: 4,946 7,618 0 12,564 Place Ventilation And Safety Equipment, Erect Work Platform In Tank, Inspect And Photograph Tank, Support Lid And Unfasten Remaining Anchors 3 Remove Lid: 3,941 8,864 10,000 22,805 Cut And Remove Bottom Plate From Skirt, Collect and Remove Sand, Oakum, Etc., Erect Support Stand, Remove Mechanical Equipment, Disconnect Electrical Power, Remove Handrail, Remove Ventilation and Safety Equipment, Lift Lid From Digester 4 Repair Lid: 6,339 43,160 0 49,499 Cut And Remove Portion Of Skirt As Needed, Replace Damaged Anchors, Install New Skirt Panels, Repair Or Replace Base Plates, Paint Skirt 5 Repair Digester Wall 112 142 225 479 Repair Damaged Concrete And Brick 6 Install Lid: 5,044 13,604 9,000 27,648 Place Lid On Tank, Place Ventilation And Safety Equipment, Fasten Base Plates To Anchors, Install Handrail, Weld New Bottom Plate To Skirt, Paint Bottom Plate, Place Oakum, Sand, And Mastic Sealant 7 Project Close-out: 1,422 1,784 2,500 5,706 Remove Work Platform From Tank, Remove Ventilation And Safety Equipment, Install Mechanical Equipment, Reconnect Electrical Power, Remove 8 Demobilize: 394 1,217 0 1,611 Contractor's Fee 0 12,272 0 12,272 Grand Total 23,538 89,737 21,725 $ 135,000 , ~ I Attachment B STATUTORY BOND KNOW ALL MEN BY THESE PRESENTS, THAT Walters-Morgan Construction, Inc. of . ' Safeco Insurance Manhattan, Kansas, principal, and Company of America , a corporation organized under the laws of the State of Wash. , with general offices in Seattle, WA and authorized to transact business in the State of Kansas as Surety; are held and firmly bound unto the One HlIDdred Thirty Five Thousand, State of Kansas in the penal sum of and NO/100----- dollars ($135,000.00-) lawful money of the United States; for the payment of which sum, well and truly to be made, said principal and surety bond themselves, their heirs, administrators, executors, successors and assigns, jointly and severally, firmly by these presents. Signed, sealed, and delivered this day of December 2005. THE CONDITION OF THE FOREGOING OBLIGATION IS SUCH THAT WHEREAS, said principal has entered into written contract with the CITY OF SALINA, KANSAS, dated , 20_, for the furnishing of all materials and labor and doing all the work of whatever kind necessary to construct certain improvements for the Owner; all in accordance with the detailed plans and specifications for such work on file in the office of the Owner; and in accordance with said contract, a copy of which is by reference made a part hereof. NOW THEREFORE, if the said principal, or the subcontractor or subcontractors of said principal, shall pay all indebtedness incurred for supplies, materials, or labor furnished, used, or consumed in connection with, or in or about the construction or making of, the above described improvement; including gasoline, lubricating oils, fuel oils, greases, and similar items used or consumed directly in furtherance of such improvement; this obligation shall be void; otherwise, it shall remain in full force and effect. SB-1 . " , The said surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder, or the specifications accompanying the same, shall in any way effect its obligations on this bond; and it does hereby waive notice of any such change, extension oftime, alteration or addition to the terms ofthe contract, orto the work, orto the specifications. IN TESTIMONY WHEREOF, said principal has duly executed these presents, and said surety has caused these presents to be executed in its name, and its corporate seal is to be hereunto affixed, by its duly authorized agent or agents, all as of the day and year first above written. Walters-Morgan Construction, Inc. ~:~~ D. Wal rs, President Safeco Insurance Company of America Surety (A certified copy of the agent's power of attorney must be attached hereto.) (Contractor shall file with the Clerk of the District Court.) S8-2 . EXHIBIT B IMPORTANT NOTICE TO SURETY BOND CUSTOMERS REGARDING THE TERRORISM RISK INSURANCE ACT OF 2002 As a surety bond customer of one of the SAFECO insurance companies (SAFECO Insurance Company of America, General Insurance Company of America, First National Insurance Company, American States Insur- ance Company or American Economy Insurance Company), it is our duty to notify you that the Terrorism Risk Insurance Act of 2002 extends to "surety insurance". This means that under certain circumstances we may be eligible for reimbursement of certain surety bond losses by the United States government under a formula established by this Act. Under this formula, the United States government pays 90% of losses caused by certified acts of terrorism that exceed a statutorily established deductible to be paid by the insurance company providing the bond. The Act also establishes a $100 billion cap for the total of all losses to be paid by all insurers for certified acts of terrorism. Losses on some or all of your bonds may be subject to this cap. This notice does not modify any of the existing terms and conditions of this bond, the underlying agreement guaranteed by this bond, any statutes governing the terms of this bond or any generally applicable rules of law. At this time there is no premium change resulting from this Act. $-6248 2/03 Fa S A FEe 0"' POWER OF ATTORNEY SAFECO Insurance Company PO Box 34526 Seattle, WA 98124-1526 No. 10732 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA, a Washington corporation, does hereby appoint . .............. ... ....... ......... .......... .......... ....... JOHN M. K OG-ER, JR.; Topeka., Kansas".."."""""." ............. .... ............. ....... ..... its true and lawful attomey(s)-in-fact, with full authority to execute on behalf of the company fidelity and surety bonds or undertakings and other documents of a similar character issued in the course of its business, and to bind SAFECO INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly elected officers at its home office. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA has executed and attested these presents this 3rd day of October , 2001 RA. PIERSON, SECRETARY ~ k þt C-~\ rA- MIKE MCGAVICK, PRESIDENT .£R ú' .Æ? ~ CERTIFICATE Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA: "Article V, Section 13. - FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business... On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking," Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA adopted July 28, 1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The provisions of Article V, Section 13 of the By-Laws, and (ii) A copy of the power-of-attorney appointment, executed pursuant thereto, and (iii) Certifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be facsimile thereof." I, R.A. Pierson, Secretary of SAFECO INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of this corporation, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By-Laws, the Resolution and the Power of Attomey are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this day of -Ø? t1' ..if ~ RA. PIERSON, SECRETARY S-1300/SAEF 2/01 ~ A registered trademar1< of SAFE CO Corporation 1013/01 PDF