1999-135-PARK STREET EXTENSION TO SERVE WAREHOUSE DISTRIBUTION FACILITY FOR PEDC, PROJECT CONTRACT
RESOLUTION NO. 99-135
WHEREAS, the City Council of the City of Paris did heretofore, on the 18th day of
October, 1999, in Resolution No. 99-126, approve the advertisement for bids for furnishing plant,
labor, materials, and equipment, and for performing all work required for the "Park Street
Extension to Serve Warehouse Distribution Facility for Paris Economic Development
Corporation" Project, which bids were received until 3:00 o'clock p.m" Friday, the 5th day of
November, 1999; and,
WHEREAS, the best bid for such construction was made by APAC - Texas, Inc., Buster
Paving Division, of Sulphur Springs, Texas, and it should be awarded the bid for the same; and,
WHEREAS, the form of the contract for such construction project, attached hereto as
Exhibit A, should, in all things, be approved, and the Mayor, Charles H. Neeley, should be
authorized to execute the same; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, that the bid
of APAC - Texas, Inc., Buster Paving Division, for the "Park Street Extension to Serve
Warehouse Distribution Facility for Paris Economic Development Corporation" Project, in the
amount of $53,000.00, be, and the same is hereby, accepted and let conditioned upon said
contractor meeting all of the terms and specifications included in the bid documents; and,
BE IT FURTHER RESOLVED, that the form of the contract with APAC - Texas, Inc.,
Buster PaYing Division, attached hereto as Exhibit A, be, and the same is hereby, approved; and,
BE IT FURTHER RESOLVED, that the Mayor, Charles H. Neeley, be, and he is
hereby, authorized and directed to execute, on behalf of the City of Paris, the contract with AP AC
_ Texas, Inc., Buster Paving Division, upon the terms and conditions and in the form shown in
Exhibit A, attached hereto.
PASSED AND ADOPTED this 8th day of Nov
(I'
\charles H.
ATTEST:
1',
Mattie Cunningham, City Clerk
APPROVED AS TO FORM:
~H~~
Acting City Attorney
AGREEMENT
THIS AGREEMENT is dated as of the 8th day of November
between City of Paris, Paris, Texas, (hereinafter called OWNER) and
Paying Division (hereinafter called CONTRACTOR).
in the year 19...22.., by and
AP AC - Texas. Inc. / Buster
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree
as follows:
Article I. WORK.
CONTRACTOR shall complete all Work as specified or indicated in the Contract Docwnents. The
Work is generally described as follows: 650 L.F. asphalt street with other appurtenant construction,
complete in place.
The Project for which the Work ooder the Contract Documents may be the whole or only a part is
generally described as follows: Park Street Extension to Serve Warehouse Distribution Facility Paris
Economic Development Corporation.
Article 2. ENGINEER.
The Project has been designed by City Engineer, City of Paris, Paris, Texas, or his authorized
representative, who is hereinafter call ENGINEER and who is to act as OWNER'S representative,
asswne all duties and responsibilities and have the rights and authority assigned to ENGINEER in
the Contract Docwnents in connection with completion of the Work in accordance with the Contract
Docwnents.
Article 3. CONTRACT TIME.
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3.1 The Work will be substantially completed within ...Q.(L days from the date when the Contract
Time commences to run as provided in paragraph 2.3 of the General Conditions, and completed and
ready for final payment in accordance with paragraph 14.13 of General Conditions within..2lL days
from the date when the Contract Time commences to roo.
3.2 Liquidated Damages. 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
times specified in paragraph 3.1 aboye, plus any extensions thereof allowed in accordance with
Article 12 of the General Conditions. They 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 One htmdred fifty and Noll 00 dollars $ 150.00 ) for each day
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EXHIBIT A
that expires after the time specified in paragraph 3.1 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 Contract Time or any proper extension thereof
granted by OWNER, CONTRACTOR shall pay OWNER fifty and No/I 00 dollars
($ 50.00 ) for each day that expires after the time specified in paragraph 3.1 for completion and
readiness for final payment.
Article 5. PAYMENT PROCEDURES.
CONTRACTOR shaH submit Applications for Payment in accordance with Article 14 of the General
Conditions. Applications for Payment will be processed by ENGINEER as provided in the General
Conditions.
5.1 Progress Payments, OWNER shaH 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 last day of each month during construction as provided below. All Progress payments
will be on the basis ofthe progress of the Work measured by the schedule of values established in
paragraph 2.9 of the General Conditions (and in the case of Unit Price Work based on the number
of units completed) or, in the eyent there is no schedule of values, as provided in the General
Requirements.
5.1.1 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
paragraph 14.7 of the General Conditions.
Ten Percent (10%) of Work Completed,
Ten percent (10%) of materials and equipment not incorporated in the Work (but delivered, suitably
stored and accompanied by documentation satisfactory to OWNER as provided in paragraph 14.2
of the General Conditions),
5.1.2 Upon Substantial Completion, in an amount sufficient to increase total payments to
CONTRACTOR to ninety-five percent (95%) of the Contract Price, less such amounts as
ENGINEER shall determine, or OWNER may withhold, in accordance with paragraph 14.7 of the
General Conditions,
5.2 Final Payment. Upon final completion and acceptance of the Work in accordance with
paragraph 14.13 of General Conditions, OWNER shall pay the remainder of the Contract Price as
recommended by ENGINEER as provided in said paragraph 14.13.
5.3 If the total amount bid is less than $100,000, Contractor shall have the option of whether or not
to provide performance and payment bonds.
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If bonds are not provided, then payment will be made only at the successful conclusion of
the projecl. NO PARTIAL PAYMENTS WILL BE MADE,
If bonds are provided, partial payments will be made not more frequently than once per
month based on the progress of the work.
Article 6. INTEREST
No interest will be paid to the CONTRACTOR on retained money lll1less required by law.
Article 7. CONTRACTOR'S REPRESENTATIONS.
In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following
representations:
7.1 CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents,
Work, site locality, and all local conditions and Laws and Regulations that in any manner may affect
cost, progress, performance or furnishing of the Work.
7.2 CONTRACTOR has studied carefully all reports of explorations and tests of subsurface
conditions and drawings of physical conditions which are identified in the Supplementary
Conditions as provided in paragraph 4.2 of the General Conditions, and accepts the determination
set forth in paragraph SC-4.2 of the Supplementary Conditions of the extent of the technical data
contained in such reports and drawings upon which CONTRACTOR is entitled to reply.
7.3 CONTRACTOR has obtained and carefully studied (or assumes responsibility for obtaining and
carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in
additions to or to supplement those referred to in paragraph 7.2 above) which pertain to the
subsurface or physical conditions at or contiguous to the site or otherwise may affect the cost,
progress, performance or furnishing of the Work at the Contract Price, within the Contract Time and
in accordance with the other terms and conditions of the Contract Documents, including specifically
the provisions of paragraph 4.2 of the General Conditions; and no additional examinations,
investigations, explorations, tests, reports, studies or similar information or data are or will be
required by CONTRACTOR for such purposes.
7.4 CONTRACTOR has reviewed and checked all information and data shown or indicated on the
Contract Documents with respect to existing Undergrolll1d Facilities at or contiguous to the site and
assumes responsibility for the accurate location of said Underground Facilities. No additional
examinations, investigations, explorations, tests, reports, studies or similar information or data in
respect of said Undergrolll1d Facilities are or will be required by CONTRACTOR in order to
perform and furnish the Work at the Contract Price, within the Contract Time and in accordance with
the other terms and conditions of Contract Documents, including specifically the provisions of
paragraph 4.3 of the General Conditions.
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,.,
"'.5 CONTRACTOR has correlated the results of all such observations, examinations, investigations,
explorations, tests, reports and studies with the terms and conditions
ofthe Contract Documents.
7.6 CONTRACTOR has given ENGINEER written notice of all conflicts, errors or discrepancies
that he has discovered in the Contract Documents and the written resolution thereof by ENGINEER
is acceptable to CONTRACTOR.
Article 8. CONTRACT DOCUMENTS.
The Contract Documents which comprise the entire agreement between OWNER and
CONTRACTOR concerning the Work consist ofthe following:
8.1 This Agreement (pages Ita 1, inclusive).
8.2 Exhibits to this Agreement (pages
to _' inclusive.)
8.3 Performance and other Bonds, identified as exhibits
pages.
and consisting of
8.4 Notice of Award.
8.5 General Conditions (pages 31
to 60 inclusive).
8,6 Supplementary Conditions (pages_ to _, inclusive).
8,7 Specifications bearing the title Park Street Extension to Serve Warehouse Distribution Facility
Paris Economic Deyelopment CoqlOration and consisting of_ divisions and _ pages, as listed
in table of contents thereof.
8.8 Drawings, consisting of a co~er sheet and sheets numbered ~ through _, inclusive with
each sheet bearing the following general title: Park Street Extension to Serve Warehouse Distribution
Facility Paris Economic Development Corporation.
8.9 Addenda numbers _ to _, inclusive.
8.10 CONTRACTOR's Bid (pages -1L to~, inclusive) marked exhibit
8.11 Documentation submitted by CONTRACTOR prior to Notice of Award (pages to
, inclusive).
8.12 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 paragraphs 3.4 and 3.5 of the General
Conditions.
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8.13 The documents listed in paragraphs 8.2 et seq. above are attached to this Agreement (except
as expressly noted otherwise above).
There are no Contract Documents other than those listed above in this Article 8. The Contract
Documents may only be amended, modified or supplemented as provided in paragraphs 3.4 and 3.5
of the General Conditions.
Article 9, MISCELLANEOUS
9.1 Terms used in this Agreement which are defined in Article I of the General Conditions will
have the meanings indicated in the General Conditions.
9,2 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 bond; 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 affect 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.
9.3 OWNER and CONTRACTOR each binds itself, its partners, successor, assigns and legal
representative to the other party hereto, its partners, successors, assigns and legal representatives in
respect of all covenants, agreements and obligations contained in the Contract Documents.
Article 10. OTHER PROVISIONS.
NONE 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 or identified by OWNER and
CONTRACTOR or by ENGINEER on their behalf.
This Agreement will be effective on
November 8.
1999.
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OWNER CITY OF PARIS
BY
Charles H. Neeley, Mayor
(CORPORATE SEAL)
Attest
Mattie Cunningham
City Clerk
Address for giving notices
P.O. Box 9037
Paris. Texas 75461-9037
Approved as to form:
James C. Henderson, Acting City Attorney
STATE OF TEXAS )
COUNTY OF LAMAR )
-.
CONTRACTOR (type business name)
AP AC - Texas. Inc. / Buster Paving Division
By
(CORPORATE SEAL)
Attest
Address for giving notices
P.O. Box 2219
Sulphur Springs, TX 75483
License No.
Agent for service of process:
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COUNTY OF LAMAR )
BEFORE ME, this undersigned authority, on this day personally appeared Charles H. Neeley.
Mayor of the City of Paris, known to be to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes and consideration
therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of
,19_,
Notary Public, State of Texas
Printed Name:
My commission expires:
STATE OF TEXAS )
COUNTY OF LAMAR )
BEFORE ME, the tmdersigned authority, on this day personally appeared
_,of , known to be to be the person(s) whose name is/are subscribed to
the foregoing instmment, and acknowledged to me that he/she/they executed the same for the
purposes and consideration therein expressed, and in the capacity therein stated.
I
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of
,19_.
Notary Public, State of Texas
Printed Name:
My commission expires:
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Hov-12-89 10:04.m From-WOLFE,CL~RK,HEHDERSOH'TIDWELL,LLP
+9038822397
T-438 P,02/02 F-840
MEMO
To:
cc:
Earl Smith, City Engineer
City of Paris City Council, Mayor. City Manager
James Corley Henderson, Acting City Attom~
ConstrUction of "Park Street Extension" -'U^'"
November 12, 1999
From:
Subject:
Date:
This memO will confirm my opinion comm\lnicated to you earlier this week that it is not a
violinion of any City ordinance, under the present circUmstances as outlined below, for the "Park
Street Extension" to be constrUCted out of asphalt material, rather than concrete,
t I
You and 1 reviewed the history of this property on Wednesday. November 10, 1999, Based
upon what our maps reflcc;t and infonnauon received from PEDC, it appears that the property upon
which this "road extension" is proposed is private property which belongs to the PEDC. Generally.
the history of this property is that it was originally held as a municipal airport, but thereafter
transferred to the Industrial Foundation. There does not appear to have been any easements reserved
for pUblic roadways at the time of that ll1IIlsfer. As I understand it, the properly has been available
for development through cooperative efforts between the Industrial Foundation and PEDC. Neither
the "road extension" nor the road which is being extended. as best as I can tell. has ever been
dedicated as a public road. You and I inspected the road, lUld it appears that the road serves as a
back driveway, and that it does not serve residential traffic or any other public traffic. Presently, the
road dead-ends at the back entrance to a private business, When extended, the road will dead-end
into another private business. In sumrnllIY, my opinion is that this extension would probably more
properly be characterized as a private driveway at this time.
The proYision concerning construction of roads of concrete is set out in the subdivision
ordinance. This property has never been platted, and has not been through the procedure set out in
the subdivision ordinance. That procedure would allow the developer/owner and the City, through
the P & Z procedure, to establish the location and teclmical requirements for any roads which would
be dedicated to the public use.
In the present case, the PEDC is the owner of the property upon which the extension is to be
constructed. The PEDC enabling statute, as well as the City ordinance which established the PEDC,
provides that the PEDC is broadly empowered to do things such as constrUction projects. and it is
my opinion that the PEDC is very clearly within its authority in constructing this extension,
Moreover, the question came before the City Council on November 8, 1999. to approve a bid which
had been publicly taken for the project. The plans and specifications for the project had preyiously
been approved by the Council at an earlier meeting, The project is to be paid for entirely by PEDC
and built on its own property. Therefore, the provision in the subdivision ordinance which requires
public streets to be constructed of concrete wotUd not apply to this project, particularly since the
property has not been platted and there is no inditation that the road will be dedicated to public use
or used by the public. Likewise, the City would: not be obligated to maintain the driveway.
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