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HomeMy WebLinkAbout2019-02-8561ORDINANCE 2019-2-8561 AN ORDINANCE APPROVING AN AGREEMENT FOR DEMOLITION SERVICES WITH DANNY COPE AND SONS EXCAVATING, LLC, IN AN AMOUNT OF $573,000 FOR EMERGENCY DEMOLITION SERVICES OF THE KRESGE BUILDING LOCATED AT 316,318 & 320 BROADWAY; RATIFYING THE CITY MANAGER'S DECLARATION OF AN EMERGENCY AND EXECUTION OF SAID AGREEMENT AND DECLARING AN EMERGENCY TO EXIST WHEREAS, on February 19, 2019, several bricks fell from the fagade of the former Kresge Building which created a public safety hazard; and WHEREAS, the structural engineer assigned to the Kresge Building Demolition Project, Gardner Engineering Consultants, confirmed that the Kresge Building poses a threat to human life, as well as property damage, and recommends an emergency demolition of the facility; and WHEREAS, the City Manager has made a written determination that an emergency exists which will cause public harm as a result of the delay in competitive procedures, in accordance with the City of Paducah Code of Ordinances Sec. 2-659 and KRS 45A.380(1); and WHEREAS, the City Manager entered into an Agreement for Demolition Services on February 21, 2019, on behalf of the City of Paducah with Danny Cope and Sons Excavating, LLC; and WHEREAS, the Board of Commissioners now wish to ratify the Agreement for Demolition Services with Danny Cope and Sons Excavating, LLC, for the emergency demolition of the Kresge Building; NOW THEREFORE, BE IT ORDAINED BY BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY: SECTION 1. Authorizations & Recitals. The City hereby authorizes and approves an Agreement for Demolition Services, in substantially the same form attached hereto as Exhibit A, with Danny Cope & Sons Excavating, LLC, in an amount of $573,000, for emergency demolition of the building located at 316, 318 & 320 Broadway, known as the Kresge Building. Further, the City hereby ratifies the City Manager's execution of the Agreement for Demolition Services and ratifies the City Manager's declaration of an emergency. This expenditure shall be charged to Project Account # MR0073. SECTION 2. Emergency Declared. Pursuant to KRS 83A.060, the City Commission suspends the requirement of a second reading of this ordinance. As grounds therefor, the City Commission does hereby declare an emergency to exist due to the need for immediate action to prevent public harm and property damage that could result from the instability of the building. SECTION 3. Effective Date. This ordinance shall become effective immediately upon its adoption by affirmative vote of 2/3 or more of the legislative body. Brandi Harless, Mayor ATTEST: �w Lindsay Parish, Oy Clerk Introduced & Adopted by the Board of Commissioners February 26, 2019 Recorded by Lindsay Parish, Paducah City Clerk, February 26, 2019 Published by The Paducah Sun, March 1, 2019 \ord\Emergency- Kresge Demolition — Danny Cope & Sons Exhibit A AGREEMENT FOR DEMOLITION SERVICES THIS AGREEMENT FOR DEMOLITION SERVICES (hereafter the "Agreement) is hereby effective this _ day of February, 2019 by and between DANNY COPE & SONS EXCAVATING LLC, (hereinafter referred to as "Contractor"), and the CITY OF PADUCAH, KENTUCKY (hereinafter referred to as "City") (collectively referred to as "Parties") agree as follows: WHEREAS, City owns the building located at 318 Broadway in Paducah, Kentucky, commonly referred to as the Kresge Building (hereinafter the "building"); and WHEREAS, City has retained Gardner Engineering & Consulting PLLC (hereafter "Gardner"), a structural engineering firm with experience in building demolition projects; and WHEREAS, Gardner has notified the City that in its opinion, the building has deteriorated to the point that it is in imminent danger of collapse and as such, a serious threat to the health and safety of the public exists; and WHEREAS, given the condition of the building and pursuant to its powers and authority, the City has determined it necessary to order an emergency abatement of the building and any debris associated with the abatement pursuant to KRS 65.8838 and Paducah City Ordinance Section 42 et. seq.; and WHERAS, due to the emergency nature of the Project (as defined herein), the City hereby determines that an emergency exists such that it is necessary to engage in noncompetitive negotiation because competition is not feasible due to the emergency nature _ of this matter, rendering the provisions of KRS 45A.380 and Paducah City Ordinance Section 2-641 et seq. inapplicable; and WHEREAS, Contractor has agreed to perform all work necessary to temporarily brace portions of the building in order to protect the public health and safety of the public during the demolition process and to lawfully remove all debris (hereinafter known as "the Project'). NOW THEREFORE, for and inconsideration of the foregoing, the undertakings of the Parties set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree as follows: Section 1. Scope of Work 1.1. Work. Contractor agrees to provide all necessary labor, professional services, supervision, materials, tools, accessories, equipment, permits, fees, testing, inspections, certifications, transportation, disposal, permitting, fencing and utilities necessary to demolish the building in its entirety and to remove and lawfully dispose of all debris associated with the Project to the satisfaction of the City an all applicable governmental authorities or officials having jurisdiction over the Project (hereafter the "Work.") The term Work, as used herein, includes all demolition, services, labor, materials, tools, machinery, equipment, transportation, disposal, permitting, utilities, and other facilities and services necessary for the proper execution and completion of the Work. 1.2. Scope of Work. The specific Work to be performed under this Agreement includes the temporary stabilization of portions of the building prior to demolition, the dismantling, leveling and demolition of all improvements, including but not limited to all components of the building, the below -grade foundations, utility installations located on or under the building; removal and proper disposal of all debris resulting from such Work and proper filling, compaction and grading of the site following removal of all improvements and debris therefrom. The Work shall also include all backfilling of the basement areas and/or other voids or depressions with appropriate fill material with testing to be performed by an approved geotechnical firm. The Work expressly includes identification and remediation, removal and proper disposal of asbestos and polychlorinated bi-phenyls or any other hazardous substances that may be present in the building or in portions of the building. Contractor shall be required to perform all work incident to the above Work that is necessary to complete the Proj ect. 1.3. Workmanlike Manner and Compliance with Laws. Contractor shall complete the Work in a good and workmanlike manner in accordance with the terms of this Agreement and generally accepted demolition practices adopted by firms performing services of a similar nature to the Work. Contractor shall comply with all applicable federal, state and municipal laws, codes, ordinances, rules and regulations. 1.4. General Requirements. Subject to additional requirements as set forth herein, Contractor shall perform the following duties in connection with the Work: 1.4.1. Utilities. Contractor shall contact all relevant utilities to 1) insure that service had been disconnected; 2) to determine the location of any underground utilities located at the site, and 3) to properly cap off all utilities as appropriate with all applicable legal requirements. 1.4.2. Fill and Compaction. Any depressions or voids resulting from the demolition including the removal of underground utilities, building foundations or other items shall be filled to grade with clean fill and appropriately compacted. 1.4.3. Gradin ¢. Following the removal of all on -grade improvements, underground improvements and debris, Contractor shall grade all disturbed surface areas. 1.4.4. Disposal of Hazardous Materials. Asbestos, polychlorinated bi- phenyls and other hazardous materials, if any, shall be removed and disposed of in a properly licensed facility in accordance with all applicable environmental laws or other state or federal requirements. Contractor shall promptly provide all original waste manifests and other evidence of proper disposal following removal of any hazardous waste from the site. All activities in the demolition process shall comply with all state and federal environmental laws and regulations. 1.4.5. Salvage Rights. Contractor shall have all salvage rights to all components of the improvements to the site, except any components containing any hazardous materials which must be disposed of as provided herein. 1.4.6. Safety fencing. Contractor shall supply and install safety fencing for the Project including fencing for the sidewalk areas. 1.5 Safety. Contractor further agrees that it will, during the performance of the Work, take proper precautions to prevent injury or damages to persons or property, including without limitation providing, erecting, and maintaining all reasonable, necessary, or required safety devices for its employees and flagmen, erecting proper barricades and other safeguards around its Work, and posting danger signs and other warning devices where warranted by the nature of the existing condition of the Work. In any event, Contractor shall promptly and properly replace any safety devices provided by others or Contractor and which are disturbed by Contractor's operations or forces hereunder. Contractor shall take all necessary steps to protect and secure its Work, materials, tools, scaffolding, equipment, buildings, trailers, and work shacks from vandalism, theft, and fire damage and City shall not be responsible for losses or damages to such items. Contractor shall be responsible for initiating, maintaining, and supervising safety precautions and programs in connection with the performance of its Work hereunder. Contractor shall take all reasonable precautions for the safety of and shall provide all reasonable protection to prevent damage, injury or loss to: (i) all Contractor's employees on the Project and all other persons on or near the Project Site who may be affected by Contractor's operations; (ii) all the Work and all materials and equipment used in connection with the performance of the Work, whether on or off-site, under the care, custody, or control of Contractor or any of Contractor's Subcontractors; and (iii) other property at the site or adjacent thereto; When the use or storage of explosives or other hazardous materials or equipment is necessary for the execution of the Work, Contractor shall exercise the utmost care and shall carry on such activities under the supervision of properly qualified personnel and in accordance with all applicable Legal Requirements. Contractor shall properly remedy all damage or loss to any property referred to herein caused in whole or in part by Contractor, any of its Subcontractors, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable and for which Contractor is responsible hereunder. The foregoing obligation is in addition to Contractor's indemnification obligations set forth elsewhere herein. City will not in any manner be answerable or accountable for any loss or damage that shall or may happen to the Work or any part or parts thereof respectively or for any of the equipment, materials or other things used and employed in finishing and completing the Work, or for injury to any person or persons, either workers or the public, or for damage to property. 1.6. Additional Services. At the point the building has been demolished and leveled, the Contractor and City, along with the City's consulting engineer, shall evaluate the condition of any adjoining buildings. The City may issue an additional scope of work to Contractor to stabilize such adjoining structures. In addition, in the discretion of City, the City may direct Contractor to perform other work necessary to complete the Project which addition work shall be performed on a time and material basis or on a mutually agreed lump sum. Section 2. Conducting and Supervising Work. 2.1. Means, Methods, and Techniques. Contractor shall use its best skill and attention in supervising and directing the Work and shall have full control over and sole responsibility for the means, methods, techniques, sequences and procedures of the Work and shall coordinate the Work with any other work being done by City or City's separate contractors. Contractor shall be responsible for worksite safety, but shall at all times comply with any safety rules or programs maintained by City at the Site. Contractor shall be responsible for all acts and omissions of Contractor's employees, agents, subcontractors, licensees and invitees at the jobsite or elsewhere while acting in connection with the Project. Neither City nor City's employees or agents shall be responsible for Contractor's (a) means, methods, or techniques; (b) safety precautions or programs; (c) acts or omissions; or (d) failure to carry out the Work in accordance with the Agreement, applicable environmental laws or other legal requirements. 2.2. Jobsite Order. Contractor shall maintain good order at the jobsite at all times and shall not permit unqualified personnel to work on the Project. Contractor shall not permit the use of drugs or alcohol by its employees or those of its subcontractors on the site and shall immediately remove from the Site any such person under the influence of drugs or alcohol. 2.3. Subcontractors. Contractor shall supply to City a list of any subcontractors to whom Contractor expects to perform work valued in excess of $5,000.00. Each such subcontract shall: (a) require that such Work be performed in accordance with the requirements of this Agreement; (b) require the subcontractor to carry and maintain liability insurance in an amount not less than those set forth in this Agreement and to furnish a certificate of such insurance naming City as additional insureds prior to entry on the site. Section 3. Contract Sum. 3.1. Lump Sum. For all Work required under this Agreement, City agrees to pay Contractor the total lump sum fixed fee of $573,000.00 except as may be modified by a Changer Order or Change Directive. The lump sum quote provided by Contractor to City is attached hereto as Exhibit A. To the extent any conflict exists between this Agreement and the quote, the terms of this Agreement shall prevail. 3.2. Amount Changed only by Change Order. Notwithstanding anything to the contrary contained in this Agreement, it is the specific intent of the City and of Contractor that the Contract Sum may not, under any circumstances, be increased, other than by a written Change Order signed by authorized representatives of both the City and Contractor or by Change Directive. 3.3. Amounts Outside of Contract Sum. Contractor agrees that it will not perform any work outside the scope of this Agreement prior to receipt of a signed Change Order or Change Directive from the City. Any such additional work performed without a Change Order or Change Directive shall not be subject to reimbursement by the City. Contractor will be solely responsible for all its costs and expenses incurred in connection with this Contract that are not specifically provided for herein or in a written Change Order or Change Directive. This provision is of the highest importance to the City and the City would not have entered into this Agreement absent this provision. 3.4. ChanIzes in the Work. A. A "Change Order" is a written agreement signed by the City and Contractor stating their agreement upon a change in the Work and the amount of the adjustment of the Contract Sum, if any. B. A "Change Directive" is a written order prepared by the City directing a change in the Work and stating a proposed basis for adjustment, if any, in the Contract Sum. The City may by Change Directive, without invalidating this Agreement, order changes in the Work within the general scope of the contract documents consisting of additions, deletions or other revisions, with the Contract Sum being adjusted accordingly. A Change Directive shall be used in the absence of total agreement on the terms of a Change Order. C. Changes in the Work may be accomplished after execution of this Agreement, and without invalidating this Agreement, by Change Order or Change Directive, subject to the limitations stated in this Section 3.4 and elsewhere in the contract documents. A Change Order shall be based upon agreement among Owner and Contractor. A Change Directive issued by the City may or may not be agreed to by Contractor, however Contractor shall perform the changes in the Work under applicable provisions of the Contract Documents, and Contractor shall proceed promptly to perform all such changes in the Work (including, without limitation, under a Change Directive whether or not agreed to by Contractor) even if Contractor does not sign the Change Directive. D. A Change Directive signed by Contractor indicates the agreement of Contractor therewith, including adjustment in the Contract Sum and/or Contract Time or the method for determining same. Such agreement shall be effective immediately and shall be recorded as a Change Order. E. No more than 10% profit and overhead will be allowed on any change order. 3.5. Payment of the Contract Sum. After Contractor has completed all of the Work in accordance with the Agreement and other controlling requirements, Contractor shall notify the City in writing. When the City is satisfied Contractor has completed the Work in accordance with the Agreement, the City shall notify Contractor of final acceptance of the Work by issuance of an "Owner's Certificate of Acceptance" in such form determined by the City. Upon receipt of the Owner's Certificate of Acceptance, Contractor shall deliver to Owner an invoice for the entire Contract Sum along with the following documents: A. An affidavit or final waiver of lien, in such form as the City may request, certifying payment of its subcontractors, laborers, suppliers and materialmen; B. Releases and/or final waivers of the subcontractors or materialmen of Contractor of liens arising out of or in connection with performance of the Work as Owner may request; and B. A release by Contractor of all claims against Owner arising out of the Contract Documents and/or performance of the Work. 11.2. C. 3.7. Payment of Final Invoice. The City shall pay the Contract Sum to Contractor within 30 days after Owner's receipt of the final invoice and all of the items listed in Section 3.5, all to the reasonable satisfaction of the City. 3.6. Effect of Final Payment. The payment of the final payment by the City shall not affect or impair the City's rights with respect to any defect in or nonconforming Work or any other breach or right or remedy under the Agreement or the law. 3.7 Inspections. Prior to making the final payment required, the City (individually or through its structural engineer or other consultants) shall have the right, but not the obligation, to conduct inspections of the Work to determine the level of completion of the Work, the quality thereof and the compliance of the Work with the Agreement and all applicable codes, ordinances, regulations or other legal requirements. Should the City elect to retain a consultant for such inspections, such consultant shall have the authority, in the consultant's sole discretion, to reject all nonconforming Work and to make recommendations to the City regarding the acceptance or rejection of any Work. 8. Withholding Pavments. Payments may be withheld by the City for any of the following reasons: A. Contractor fails to correct defective or non -conforming Work; B. Claims or liens have been filed or threatened; C. Contractor has failed to make timely and adequate payments to subcontractors or others; D. Contractor has failed to carry out the Work in accordance with this Agreement; E. The City incurs costs and expenses to cancel or discharge the lien of a subcontractor, laborer or materialman of Contractor; and F. The Contractor defaults in its obligations under this Agreement. Section 3.9. No Liens. Contractor agrees that any monies it shall receive in payment for Work performed under this Contract, other than the portion of such payments being a part of Contractor's fee for services rendered under this Contract and remaining after payment in full of all expenses associated with the Work, shall be received in trust and used to discharge its financial obligations with respect to such Work. Contractor further agrees that it will not file or cause to be filed any mechanic's lien for labor performed or to be performed unless the City fails to pay in accordance with the Agreement. Contractor further agrees that if any subcontractor holding a subcontract from it or any materialman supplying materials to it or anyone claiming by or through it or any such subcontractor or materialman shall file or cause to be filed any lien, Contractor will, upon notice from the City, cause such lien to be canceled and discharged within 15 calendar days from such notice; and in the event of Contractor's failure to do so, City shall have the right to cause such lien to be canceled and discharged, and in that event any expense so incurred by the City, including the premiums upon any bond furnished for such cancellation and discharge and reasonable attorneys' fees and disbursements, shall be paid by Contractor, or at the option of the City, shall be deducted from any payment then due or thereafter becoming due from the City to Contractor. Section 4. Schedule All parties agree and understand that time is of the essence in the completion of all Work for the Project. Contractor shall immediately commence performance of the Work upon receipt of a signed copy of this Agreement. Contractor shall use its good faith efforts to complete this project as rapidly as reasonably possible, while ensuring the safety of its employees and the general public. Contractor agrees to perform the Work on a continuous full time basis from the date work is commenced to the date it is complete. Contractor shall supply adequate manpower and resources necessary to complete the Project in a timely manner. Section 5. City's Responsibilities. The City shall have the following responsibilities: 5.1. Representative. The City will designate representatives to act on its behalf relative to the Project. The City's representatives shall examine documents submitted by Contractor and shall render decisions pertaining thereto promptly to avoid unreasonable delay in the progress of Contractor's services. 5.2. Consultants. The City may engage the services of a consulting engineer who may assist the City in this regard. Section 6. Indemnification. 6.1. Indemnification. To the fullest extent permitted by applicable law, Contractor shall defend, indemnify and hold harmless the City and its Board of Commissioners, officials, employees or agents (collectively, the "City Indemnified Persons"), and individually, a "City Indemnified Person" from and against: A. All claims, damages, losses and expenses, including attorneys' and consultants' fees, arising out of the failure, in whole or in part, directly or indirectly, of Contractor, any subcontractor, or material or equipment supplier, or anyone directly or indirectly employed by them and all other persons for whom Contractor may be legally liable to comply with applicable environmental laws or the release or disturbance of hazardous materials by the Contractor or those under its control. Contractor hereby agrees to indemnify, defend and hold all City Indemnified Persons harmless from and against any and all costs, penalties, fines, remediation expenses, accountants', experts' and attorneys' fees and costs of litigation in the event of any allegation of improper disposal of hazardous materials by Contractor or any subcontractor in connection with this Agreement. B. All claims, damages, losses, expenses, liabilities and judgments which may be made, asserted or entered against the City or any other City Indemnified Person (including attorneys', consultants' and experts' fees), which arise from, are incident to, grow out of or are connected with bodily injuries to any person, (including employees of Contractor or employees of any subcontractor), or damage to any property, caused in whole or in part by Contractor or any other subcontractor of Contractor (except to the extent caused by the sole negligence of any City Indemnified Person). Contractor hereby waives any immunity provided for by the applicable workers compensation laws so that this indemnity may be enforced against Contractor for any action against any City Indemnified Person by any employee or alleged employee of Contractor or subcontractor. C. Any and all liability imposed by reason of Contractor's or any subcontractor's actual or asserted violation of laws, regulations, ordinances, or other rules of government or any quasi -governmental body or agency, including but not limited to, OSHA, or any other federal or state agency. Section 7. Insurance. Contractor as well as any subcontractor shall maintain at all times, the following insurance. Contractor shall provide certificates of insurance to the City prior to commencing work. A. Commercial General Liability with limits of no less than the following: $1,000,000 per occurrence, $2,000,000 general aggregate, $1,000,000 product -completed operations aggregate limit, $1,000,000 personal and advertising injury limit, $100,000 damage to premises rented to you limit, $10,000 medical expense limit. B. Business Automobile Liability with limits of no less than $1,000,000 C. Workers Compensation with the statutory limits. D. With the exception of the workers compensation policy, Contractor shall name the City as an additional insured on all policies of insurance. In the event an insurance carrier refuses to add the City as an additional insured, Contractor shall immediately notify the City. Section 8. Termination or Suspension 8.1. Termination. The City may terminate this Agreement or any portion of the Work at any time, with or without cause, by providing written notice to Contractor. In the event of termination, the City shall pay Contractor for any work performed and verified expenses incurred up to the date of termination subject to the right to withhold payment as provided in Section 3.4 above or as otherwise permitted under the law. 8.2. Suspension. The City may suspend performance of all or any portion of the Work at any time, with or without cause, upon written notice to Contractor. In the event of a suspension, Contractor shall protect and secure the Work in such manner as the City or its consulting engineer may require at the City's expense. Following a suspension, the City may at any time give Contractor notice that the suspension is lifted and Contractor shall immediately resume Work. Section 9. Default. 9.1. Events of Default. Each of the following circumstances shall constitute an "Event of Default:" A. Contractor institutes a proceeding in bankruptcy or a receiver is appointed or seeks a corporate reorganization or is unable to pay its debts when due; B. Contractor fails to perform any material obligation under this Agreement and such failure continues or has not been remedied and/or the effects of such failure have not been remedied, in each case, for more than three (3) days after notice by the City or if Contractor. C. Contractor abandons performance of the Work and such abandomnent is not cured within three (3) days after first written notice is provided. D. Contractor breaches any applicable environmental laws or regulations and such breach is not cured within three (3) days written notice. E. Contractor fails to obtain or maintain, in full force and effect, any insurance required under this Agreement. 9.2. Pavment Obligations. If City terminates this Agreement as a result of an Event of Default, the City is not obligated to make any further payments to Contractor until the Work that remained outstanding on the date of termination has been completed by or on behalf of the City. Any payment to Contractor shall be subject to the City's right to set off from such amount owed the Contractor from the costs incurred by the City to complete the Contractor's unfinished Work and/or any other losses incurred as a result of Contractor's default. Section 10. Miscellaneous. 10.1. Governing Law. The validity of this Agreement, its interpretation and performance shall be governed exclusively by the laws of the Commonwealth of Kentucky. 10.2. Venue. The Parties hereby agree that any legal action relating to this Agreement shall be filed in the State Courts located in McCracken County, Kentucky. 10.3. Prevailing Attorney fees. In the event of a dispute, the prevailing party shall have the right to recover from the other party its costs and expenses incurred by reason of the dispute, including attorney's fees. 10.4. Entire Agreement. This Agreement, including any exhibits, contains the entire agreement by and between the City and Contractor pertaining to the subject matter of this Agreement and fully supersedes all prior contracts and understandings between the City and Contractor pertaining to such transaction. Any modifications shall be made in writing and with the mutual consent of the Parties. 10.5 Severability. Any provisions of this Agreement later held to be unenforceable for any reason shall be deemed void and all remaining provisions shall continue in full force and effect. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the Parties shall survive the completion of the services hereunder and the termination of this Agreement. 10.6. Non -Waiver. The failure at anytime to enforce any provision of this Agreement or failure to exercise any right herein granted shall not constitute a waiver of such provision or such right thereafter to enforce any or all of the provisions of this Agreement. 10.7. Headings. The Section headings contained herein are for reference only and shall not be construed as substantive parts of this Agreement. IN WITNESS WHEREOF, the parties have, through their authorized representatives, executed this Construction Services Agreement as of the date first written above. DANNY COPE & SONS EXCAVATING LLC By (Title) Printed Name CITY OF PADUCAH, KENTUCKY C Printed (Title)