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1998-103 ORDINANCENO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CHANGE OR- DER TO THE INTAKE STRUCTURE DREDGING PROIECT, BID NO 1936, AUTHORIZ- ING FINAL PAYMENT TO THE CONT1L~CTOR AND THE RELEASE OF CLAIMS OF ALL PAl{TIES, AND PROVIDING AN EFFECTIVE DATE WltEREAS, there has been a dispute between the Contractor, Hydro Pump & Equip- ment, Inc, and the City regarding the final completion of the Intake Structure Dredging ProJect, Bid No 1936, to uncover a lower intake valve at Lewlswlle Lake, and WHEREAS, the parties have agreed to settle the matter by the execution of a final ductlve Change Order, whtch would reduce the Contract mount by $33,770 00 and provide for a final payment of $20,000 00 to the Contractor, and WHEREAS, the Contractor and Surety have executed the Change Order, releasing all clmms against the C~ty, and the Contractor has executed an Affidavit and Final Release, affirm- lng that all final bills have been prod, and WHEREAS, the C~ty deems ~t in the pubhc ~nterest to authorize the City Manager to exe- cute the attached Change Order to Intake Structure Dredging Project, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the City Manager is hereby authorized to execute the Change Order to Intake Structure Dredging Project on Bxd No 1936 with the Contractor, Hydro Pump & Eqmp- ment, Inc, and the Surety, Amwest Surety Insurance Company, Bid No 1936, ~n substantially the form of the attached Change Order, wi'ach is made a part of this ordinance as if written word for word hereto ~,~_QT.!_O_.!:{~ That the C~ty Manager is hereby authorized to make the final payment to the Contractor in the amount set forth in the Change Order ~ That th~s ordinance shall become effective immediately upon ~ts passage and approval PASSED AND APPROVED this the day of _ ,1998 ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY Page 2 CHANGE ORDER TO INTAKE STRUCTURE DREDGING PROJECT CHANGE ORDER NO One OWNER City of Denton, Texas CONTRACTOR Hydro Pump & Eqmpment, Inc SURETY Amwest Surety Insurance Company BID NO 1936 CONTRACT DATE September 17, 1996 WHEREAS, Owner and Contractor executed an Agreement dated September 17, 1996, relating to Bid No 1936 m the mount of $80,495 00, which secured performance by Surety's Bond No 1287270, and WHEREAS, the Agreement provided that Contractor was to dredge 2,000 cubm yards of material from water intake structure and channel and deposit m lake disposal area, and WHEREAS, a dispute has arisen relating to whether or not the terms of the Agreement have been met, and Owner, Contractor, and Surety desire to settle the dispute subject to the pro- visions set forth herein, NOW, THEREFORE, OWNER, CONTRACTOR, AND SURETY (Part,es) agree as follows 1 The Parties agree to make the following changes in this Contract Liquidated Damages Crerht $33,770 Total Amount of this Change Order Credit $33,770 The Ongmal Contract Sum was $80,495 Net Change by Previously Authorized Change Orders 0 The Contract Sum Pnor to this Change Order was 80,495 The Contract Sum Decreased by th~s Change Order (33,770) The New Contract Sum Including this Change Order will be 46,725 Amount of Previous Payments Made to Contractor under Contract (26,725) Final Payment Due Contractor Under flus Change Order $20,000 2 Upon the execution of this Change Order by the duly authorized representatives of the Par- ties, Owner agrees to remit a check to the Contractor, Hydro Pump & Eqmpment, Inc, m the amount of $20,000 00, m full satisfaction of Owner's respons~blhtles under the Agreement By ~ts signature hereon, the Surety fully consents to this payment to Contractor 3 That the approximately 1,536 cubic yards of material which has been removed from the lake is fotmd to be satisfactory completion of the intake structure dredging project, and Owner waives any clatms it may have to additional hqmdated damages 4 That the warranty and guaranty provisions of the NCTCOG Standard Specfficat~ons for Pub- hc Works Construction, which were incorporated into Bid No 1936, were honored by Con- tractor and Surety for a period of one year from December 10, 1996, which is the agreed upon date of final completion 5 Contractor and Surety release any and all claims, liens, rights, judgments, demands, or inter- ests they may have now or in the future against Owner for breach of contract or any other le- gal or equitable remedy, including, but not limited to, failure to receive adequate compensa- tion for work performed and all mechanic's and matenalman's liens under the Constitution and laws of the State of Texas growing out of Intake Structure Dredging Project Bid No 1936 and this Contract Owner releases Contractor and Surety from and against any and all claims, demands, judgments, or causes of actions that it may have now or in the future an connection with the Intake Structure Dredging Project Bid No 1936, Performance Bond No 1287270 6 All services performed under this Agreement are warranted to be in accordance with the contract documents, including, without limitation, the plans and specifications Contractor and Surety guarantee, in accordance with their respective obligations, that this work will be free from defects in materials and workmanship for a period of one year from the job eom- pletion date of December 10, 1996 7 That, prior to Owner's remitting of $20,000 00 to Contractor, Contractor shall provide an fidavlt that payrolls, bills for materials and equipment, and other indebtedness connected with the work have been paid or otherwise satisfied 8 This Change Order shall extend to and bind the Parties and their successors and assigns 9 To the extent that this Change Order conflmts with terms and provisions of the Agreement between Contractor and Owner, the terms and provisions of this Change Order prevail 10 The unenforceablhty of any provision of this Change Order shall not affect the validity or enforceability of any other provision hereof 11 This Change Order is not valid until signed by all the Parties By execution hereof, the parties represent that the persons executing this Change Order are fully authorized to bind the respective parties to all the terms and conditions of this Change Order CITY OF DENTON (Owner) Approved as to Form By ~~ BY '~/~i~e Ted Benamdes, City Manager Herbert L Prou y Date signed by Owner Page 2 HYDRO PUMP & EQUIPMENT, INC (Contractor) Corporate Secretary/W~tness Date s~gnefl by Contractor ~///~ff AMWEST SURETY INSURANCE CO (Surety) Corporate Secretary/W~tness Date slgnedby Surety ]flf~r~ ~ Page 3 CONTRACTOR'S AFFIDAVIT AND FINAL RELEASE STATE OF TEXAS § COUNTY OF ~+~'~ § BEFORE ME, the undersigned authority, on this day personally appeared L J Yehch, known to me to be a credible person and Premdent of Hydro Pump & Equipment, Inc, (hereunder called "Contractor") and who, being duly sworn, upon his oath declares and acknowledges as follows 1 I am the duly authonzed agent for the smd Contractor, which has authonzed me to make thru affidawt, to enter ~nto the agreements, and to grant the lien waivers here~n set forth, on ~ts behalf and as its acts and deeds, and all of the facts and recitations here~n are true and correct 2 Pursuant to a Contract Agreement dated September 17, 1996, between the C~ty of Denton (the "Owner") and Hydro Pump & Eqmpment, Inc, Contractor has supphed matenals and/or performed labor ~n connectmn w~th the construction of unprovements on the construction project known as Intake Structure Dredging Project, B~d No 1936, upon certaan property owned by the City of Denton, Texas and located m Denton County 3 Contractor has requested final payment in the amount of twenty thousand dollars ($20,000 00), which constitutes payment ~n full for any and all materials supphed and/or labor performed m connectmn w~th smd Contract 4 In coamderat~on of these premmes and the receipt of final payment by Contractor from Owner, the sufficiency of which is hereby acknowledged, Contractor hereby wmves and releases any and all hens, rights, and ~nterests (whether choate or ~nchoate and ~nclud~ng, w~thout lnmtat~on, all mechamc's and matenalman's liens under the Constitution and statutes of the State of Texas) owned, claimed, or held by Contractor in and to the property and ~mprovements, whether now or hereaiter thereon, whether real or personal property, and whether or not affixed or severable from the proper~y or from any other portion of the ~mprovements 5 Contractor has actual knowledge that all bills owed by Contractor to others for matenals supplied or labor performed ~n connection wxth the ~mprovements have been fully paid and satmfied Contractor does further warrant that should any claim or hen be filed for material supplied or labor performed by wrtue of Contractor's pamc~patlon m the construction of smd ~mprovements, Contractor will ~mmedmtely fummh a bond, pursuant to Tex Prop Code §§53 171-53 174, for release of such hen, and obtmn settlement of any such hens and fummh the Owner wntten full release of such hens Should Contractor be unable to obtmn such release, Contractor agrees to save, mdemmfy, protect, and hold harmless Owner, its officers, d~rectors, shareholders, agents, successors, and asmgns agmnst any habthty for costs and expenses 0nelud~ng attorney's fees) growing out of or ansmg from or suffered by Owner on account of elmms made for xtems hereto represented as being prod and discharged and on which demand may heremaiier be made agmnst Owner, ~ts officers, directors, shareholders, agents, successors, and asmgns EXECUTEDthls 7~t dayof C~L~ ,1998 HYDRO PUMP & EQUIPMENT, INC L J Yeah, ~esaclent SUBSCRIBED AND SWORN TO bofore me by the smd L J Yehch this 7~ day of ~4~'a~*- ,1998 to certify which witness my and hand seal of office Notary Pubhc ~n and for the Si~te of Texas Page 2