EXHIBIT 10.91
AGREEMENT BETWEEN OWNER AND CONTRACTOR
Project Name: System Voltage Upgrade Project
Downtown Substation, Plant Switchgear
Contract Name: Construction & Distribution System Upgrade
Contract No.: A-2
THIS AGREEMENT is dated as of the 3rd day of March in the year 1998 by and
between the City of Xxxxxxx, Kansas (hereinafter called Owner) and Onsite
Business Services (hereinafter called Contractor).
Owner and Contractor, in consideration of the mutual covenants hereinafter set
forth, agree as follows:
ARTICLE 1 - WORK
1.01 Contractor shall complete all Work as specified or indicated in the
Contract Documents. The Work under this Contract is generally described
as follows: material procurement and construction of the 12.47-kV
Downtown regulating substation, including structures, equipment,
foundations, bus, low voltage wiring, grounding, raceway, metering,
miscellaneous materials, and demolition of existing substation. The
installation of a 15-kV class metal-clad switchgear and associated
equipment and materials at the City of Xxxxxxx xxxxx plant.
1.02 Upgrade of the Electric Distribution System, consisting of work on
energized lines, construction of new lines, removal of existing electric
lines and transformer replacement.
1.03 The Project for which the Work under the Contract Documents may be the
whole or only a part is generally described as follows: Electric System
Voltage Upgrade - 1997.
ARTICLE 2 - ENGINEER
2.01 The Project has been designed by Xxxxx & XxXxxxxxx Engineering Co. Inc.,
who is hereinafter called Engineer and who is to act as Owner's
representative, assume all duties and responsibilities, and have the
rights and authority assigned to Engineer in the Contract Documents in
connection with completion of the Work in accordance with the Contract
Documents.
ARTICLE 3 - CONTRACT TIME
3.01 TIME OF THE ESSENCE:
A. All time limits for milestones, if any, Substantial Completion, and
completion and readiness for final payment as stated in the Contract
Documents are of the essence of the Contract.
3.02 DATES FOR SUBSTANTIAL COMPLETION AND FINAL PAYMENT:
A. The Work will be Substantially Completed on or before December 31,
1998, and completed and ready for final payment in accordance with the
GENERAL CONDITIONS on or before January 31, 1999. 1. Areas to be
Substantially Complete prior to date stated above are as follows:
Switchgear Foundation Installation B May 22, 1998
3. LIQUIDATED DAMAGES:
A. Owner and Contractor recognize that time is of the essence of this
Agreement and that Owner will suffer financial loss if the Work is not
completed within the time specified above, plus any extensions thereof
allowed in accordance with the GENERAL CONDITIONS. The parties also
recognize the delays, expense, and difficulties involved in proving the
actual loss suffered by Owner if the Work is not Substantially 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 five hundred dollars ($500.00) for each
day that expires after the time specified above in Paragraph 3.02 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 time specified in Paragraph 3.01 for
completion and readiness for final payment or any proper extension thereof
granted by Owner, Contractor shall pay Owner five hundred dollars ($500.00)
for each day that expires after the time specified for completion and
readiness for final payment.
ARTICLE 4 - CONTRACT PRICE - Not Used
ARTICLE 5 - PAYMENT PROCEDURES
1 SUBMITTAL AND PROCESSING OF PAYMENTS:
A. Contractor shall submit Applications for Payment in accordance with the
GF-NERAL CONDITIONS. Applications for Payment will be processed by
Engineer and Owner shall make payment as provided in the GENERAL
CONDITIONS.
5.02 PROGRESS PAYMENTS, RETAINAGE:
A. Owner shall make progress payments on account of the Contract Price on the
basis of Contractor's Applications for Payment as recommended by Engineer,
on or about the 3rd Monday of each month during construction. All such
payments will be measured by the schedule of values established in the
GENERAL CONDITIONS (and in the case of Unit Price Work based on the number
of units completed) or, in the event there is no schedule of values, as
provided in the General Requirements. 1. Prior to Substantial Completion,
progress payments will be made in an amount equal to the percentage
indicated below, but, in each case, less the aggregate of payments
previously made and less such amounts as Engineer shall determine, or Owner
may withhold, in accordance with the GENERAL CONDITIONS.
a. 90% of Work completed (with the balance being retainage).
b. 90% (with the
balance being retainage) of Equipment and Materials not
incorporated in the Work (but delivered, suitably stored, and accompanied
by documentation satisfactory to Owner as provided in the GENERAL
CONDITIONS).
5.03 FINAL PAYMENT:
A. Upon final completion and acceptance of the Work in accordance with the
GENERAL CONDITIONS, Owner shall pay the remainder of the Contract Price
as recommended by Engineer and as provided in the GENERAL CONDITIONS.
ARTICLE 6 - INTEREST
6.01 All moneys not paid when due hereunder shall bear interest at the rate of
9% per annum in accordance with the GENERAL CONDITIONS.
ARTICLE 7 CONTRACTOR'S REPRESENTATIONS
7.01 In order to induce Owner to enter into this Agreement, Contractor makes
the following representations:
A. Contractor has examined and carefully studied the Contract Documents
(including the Addenda) and other related data identified in the
Bidding Documents.
B. Contractor has visited the Site and become familiar with and is
satisfied as to the general, local, and Site conditions that may affect
cost, progress, performance, and furnishing of the Work.
C. Contractor is familiar with and is satisfied as to all federal, state,
and local Laws and Regulations that may affect cost, progress,
performance, and furnishing of the Work.
D. Contractor shall carefully study all: (1) reports of explorations and
tests of subsurface conditions at or contiguous to the Site and all
drawings of physical conditions in or relating to existing surface or
subsurface structures at or contiguous to the Site; and (2) reports and
drawings of a Hazardous Envirorunental Condition, if any, at the Site.
Contractor acknowledges that Owner and Engineer do not assume
responsibility for the accuracy or completeness of information and data
shown or indicated in the Contract Documents with respect to
Underground Facilities at or contiguous to the Site.
E. Contractor shall obtain and carefully study (and assumes responsibility
of having done so) all such additional supplementary examinations,
investigations, explorations, tests, studies, and data concerning
conditions (surface, subsurface, and Underground Facilities) at or
contiguous to the Site or otherwise which may affect cost, progress,
performance, and furnishing of the Work or which relate to any aspect
of the means, methods, techniques, sequences, and procedures of
construction to be employed by Contractor and safety precautions and
programs incident thereto.
F. Contractor does not consider that the Owner should furnish any
additional examinations, investigations, explorations, tests, studies,
or data necessary for the performing and furnishing of the Work at the
Contract Price, within the Contract Times, and in accordance with the
other terms and conditions of the Contract Documents.
G. Contractor is aware of the general nature of work to be performed by
Owner and others at the Site that relates to the Work as indicated in
the Contract Documents.
H. Contractor has correlated the information known to Contractor,
information and observations obtained from visits to the Site, reports
and drawings identified in the Contract Documents, and all additional
examinations, investigations, explorations, tests, studies, and data
with the Contract Documents.
I. Contractor has given Engineer written notice of all conflicts, errors,
ambiguities, or discrepancies that Contractor has discovered in the
Contract Documents and the written resolution thereof by Engineer is
acceptable to Contractor.
J. The Contract Documents are generally sufficient to indicate and convey
understanding of all terms and conditions for performance and
furnishing of the Work.
ARTICLE 8 - CONTRACT DOCUMENTS
8.01 CONTENTS:
A. The Contract Documents which comprise the entire Agreement between Owner
and Contractor concerning the Work consist of the following and may only be
amended, modified, or supplemented as provided in the
GENERAL CONDITIONS:
1. This Agreement.
2. Exhibits to this Agreement (enumerated as follows):
a. Notice to Proceed.
b. Contractor's Bid.
C. Documentation submitted by Contractor prior to Notice of Award.
3. Performance, Payment, and other Bonds.
4. General Conditions.
5. Specifications consisting of divisions and sections as listed in
table of contents of Bid Documents.
6. Drawings consisting of a cover sheet and sheets as listed in the
table of contents thereof, with each sheet bearing the following
general title:
City of Xxxxxxx, Kansas
7. Addenda numbers 1 to 4, inclusive.
8. The following which may be delivered or issued after the Effective
Date of the Agreement and are not attached hereto: All Written
Amendments and other documents amending, modifying, or supplementing
the Contract Documents pursuant to the GENERAL CONDITIONS.
ARTICLE 9 - MISCELLANEOUS
9.01 TERMS:
A. Terms used in this Agreement which are defined in the GENERAL CONDITIONS
shall have the meanings stated in the GENERAL CONDITIONS.
2. ASSIGNMENT OF CONTRACT:
A. No assignment by a party hereto of any rights under or interests in the
Contract Documents 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 Contract Documents.
9.03 SUCCESSORS AND ASSIGNS:
A. Owner and Contractor each binds himself, his partners, successors,
assigns, and legal representatives to the other party hereto, its
partners, successors, assigns, and legal representatives in respect to
all covenants, Agreements, and obligations contained in the Contract
Documents.
9.04 SEVERABILITY:
A. Any provision or part of the Contract Documents held to be void or
unenforceable under any Law or Regulation shall be deemed stricken, and
all remaining provisions shall continue to be valid and binding upon
Owner and Contractor, who agree that the Contract Documents shall be
reformed to replace such stricken provision or part thereof with a valid
and enforceable provision that comes as close as possible to expressing
the intention of the stricken provision.
OTHER PROVISIONS: Not Applicable.
IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement in
triplicate. One counterpart each has been delivered to Owner, Contractor, and
Engineer. All portions of the Contract Documents have been signed, initialed, or
identified by Owner and Contractor or identified by Engineer on their behalf.
This Agreement will be effective on March 3, 1998, which is the Effective Date
of the Agreement.
CONTRACTOR: Onsite Business Services, Inc.
By: \s\ Xxxxxxx X. Xxxxxxxx By: \s\ Xxxxx X. Xxxxxx
Title: President Title: Mayor
(SEAL) (SEAL)
Attest: \s\ Xxxxxx Xxxxxx Xxxxxxxxxx Attest:\s\ Xxx X Xxxxxx
Address for giving notices: Address for giving notices:
000 Xxxxxxx Xxxxxxx Xxxx Xxxxx 000
Xxxxxxxx, XX 00000
(License No._____________________
(if required by law)
(If Owner is a public body, attach
evidence Agent for Service of
process of authority to sign and
resolution or other
_______________________________ documents authorizing execution of
Agreement)
(If Contractor is a corporation, attach Approved as to Form:
evidence of authority to sign.)
By: ____________________________________
Attorney for: ________________________
