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HomeMy WebLinkAboutRes 14-08 Authorizing an Agreement with Alpha Fitness TOWN OF WESTLAKE SOLUTION NO. 14-08 A RESOLUTION OF THE TOWN COUNCIL OFT E TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN AGREEMENT WITH ALPHA FITNESS SOLUTIONS TO PROVIDE AND INSTALL ATHLETIC EQUIPMENT FOR THE WESTLAKE ACADEMY PHASE I EXPANSION PROJECT, AND AUTHORIZE TOWN MANAGER TO MAKE Ft1NDING CHANGES NOT TO EXCEED $25,000.00 ON THIS PROJECT. WHEREAS, the Town of Westlake is working to become a leader in premier educational facilities and programs; and, WHEREAS, the Town of Westlake owns and operates the Westlake Academy and provides facilities for Town and Academy use; and, WHEREAS, the option to select one contractor based on the total aggregate bid or awarding items or sections separately to one or more contractors based on unit pricing; and, WHEREAS, the Town Council approves an expenditure for the budgeted amount of$60,000.00 from municipal funds towards the total purchase of athletic equipment for the Field House in the amount of$118,780.96, with the additional funding of$58,780.96 provided by WA affiliates and or interested parties to cover this cost increase; and, WHEREAS, the Town Council fmds that the contract from Alpha Fitness Solutions to provide and install the athletic equipment for the Field House for the Westlake Academy Phase I Expansion benefits the public and is in the best interest of the public, citizens of Westlake, Westlake Academy students and their parents; and WHEREAS, the Town Council finds that the passage of this Resolution is in the best interests of the citizens of Westlake. NOW, THEREFORE, DE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2: That the Town of Westlake Town Council does hereby approve the agreement with Alpha Fitness Solutions and authorizes Town staff to purchase athletic equipment, as it relates to the Westlake Academy Phase I Expansion construction project at the Westlake Academy Campus, attached as Exhibit "A". Resolution 14-08 Page 1 of 2 SECL'ION 4: If any portion of this Resolution shall, for any reason, be declared invalid by any court of competent jurisdiction, such invalidity shall not affect the remaining provisions hereof and the Council hereby determines that it would have adopted this Resolution without the invalid provision. SECTION 5: That this resolution shall become effective from and after its date of passage. PASSEL? AND APPROVED ON THIS 3rd AY OF MARCH 20140 ATTEST: ffdAtfa L. Wheat, Mayor d ' KeVy Ed#ds, Town Secretary Thomas E. Brymd wn Man-ager APPROVED AS TO FORMOF V, 1 L. ton Low At rney XIS Resolution 14-08 Page 2 of 2 AGREEMENT BETWEEN TOWN AND CONTRACTOR THIS AGREEMENT is dated as of the 3`d day of March in the year 2014, by and between the Town of Westlake, Texas(hereinafter called OWNER)and Alpha Fitness Solutions (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: The furnishing of all labor, shipping, materials, equipment, and incidentals for the Westlake Academy Expansion Phase I which include installing fitness equipment listed in the scope. All manufacture and warranty information must be provided in three ring notebook and CD. Article 2. CONTRACT TIME. 3.1. CONTRACTOR agrees to commence work within five(5)days after the date of written notice to commence work, and to complete the work on which he has bid within eighty(80)working days as provided in the General Conditions. Article 3. CONTRACT PRICE. 4.1. OWNER shall pay CONTRACTOR for completion of the Work on a Unit Price Work Basis in accordance with the Contract Documents in current funds based on the measured quantities and the unit prices stated in the Proposal. Article 4. PAYMENT PROCEDURES. CONTRACTOR shall submit Applications for Payment on work completed during the previous month on the first day of the month. CONTRACTOR shall present only one Application for Payment each month. Applications for Payment will be processed by ENGINEER and OWNER shall make payment to CONTRACTOR within thirty(30)days of the date of the invoice. Article 5. INTEREST. All moneys not paid when due shall bear interest at the maximum rate allowed by law at the place of the Project. Article 6. CONTRACTOR'S REPRESENTATIONS. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations: 6.1 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. 6.2. CONTRACTOR binds itself to use such materials and so construct the work that it will remain in good repair and condition for and during the period of one(1)year from the date of the repair and to maintain said work in good repair and condition for said term of one(1)year. CONTRACTOR binds itself to repair or replace the furnishing in whole or in part at any time within said period, if, in the opinion of the owner, it be Resolution 14-08 Page 1 of 3 deemed necessary. 6.3. To the fullest extent permitted by laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER and ARCHITECT and their consultants, agents and employees from and against all claims, damages, losses and expenses, direct, indirect or consequential (including but not limited to fees and charges of engineers, architects, attorneys and other professionals and court and arbitration costs) arising out of or resulting from the performance of Work, provided that any such claim, damage, loss or expense(a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property(other than the Work itself) including the loss of use resulting there from and (b ) is caused in whole or in part by any negligent act or omission of CONTRACTOR, and Subcontractor, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder or arises by or is imposed by Laws and Regulations regardless of the negligence of any such party. 6.4. In any and all claims against OWNER or ARCHITECT or any of their consultants, agents or employees by any employee of CONTRACTOR, any Subcontractor, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, the indemnification obligation under paragraph 6.3 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for CONTRACTOR or any such Subcontractor or other person or organization under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. Article 7. Contract Documents The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR concerning the Work consists of the following: 7.1 Notice to Bidders consisting. 7.2 Instructions to Bidders. 7.3 Proposal. 7.4 This Agreement. 7.5 Pre-bid Bond, Performance Bond, Payment and Maintenance Bonds 7.6 General Conditions. 7.7 General Requirements. 7.8 Set of Plans. There are no Contract Documents other than those listed above in this Article 7. Article 8.TERMINATION. OWNER may terminate contract if CONTRACTOR persistently fails to perform the work in accordance with the Contract Documents including, but not limited to,failure to supply sufficient skilled workers, or suitable materials or equipment, or otherwise violates in any substantial way any provisions of the Contract Documents. OWNER may, after giving CONTRACTOR seven(7)days written notice and to the extent permitted by Laws and Regulations, terminate the services of CONTRACTOR, exclude CONTRACTOR from the site and take possession of the Work. Article 9. MISCELLANEOUS. Resolution 14-08 Page 2 of 3 10.1. 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. OWNER and CONTRACTOR each binds itself, its partners, successors, assignees and legal representatives to the other party hereto, its partners, successors, assignees and legal representatives in respect of all covenants, agreements and obligations contained in the Contract Documents. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed Three(3)copies of the Agreement. Two counterparts each have been delivered to OWNER and CONTRACTOR. Al portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR. This agreement will be effective on the day of I v ° -` 2014. OWNER: CONTRACTOR: Town of Westlake, Texas By: .1 4i4ctl By: . Laufa Wheat, Mayor ®OLri 95 f.tea V ATTESIC ' c ATTEST: Kelly gdward own Secretary Address for giving notices: 3 Village Circle, Suite 202 Westlake, Texas 76262 (If OWNER is a public body, attach resolution authorizing execution of Agreement. ) (If CONTRACTOR is a Corporation, p WEST attach evidence of authority to sign.) T E S Resolution 14-08 Page 3 of 3 Westlake Academy Expansion;13111.00 c urs MeNT SPEQIFICATIL1N LIST — BFMETF-BE(J lER TiT fAG LpCATION ;STYLE $PECIFICr1TI0N NUMBER "" ""'""" '^"•' -- DESCRIPTION { Ty LIST PRICE 'EX'(F_NDED PRICE, ( Standatare function 1 kcau^ing,1/2 rack:Wdh dual wrap aroGnd. utie Pulte'. ad adjustable e'trli al ---y at ._..alis '._... ,_,,,,,_ i to fnilividuril 3CJ0[.b,sta.ef yei;lat stacks with i;yfan coated galvanized steel alrc alt cable.:(7)Gau e;ee(s uare tub`lached F eltl Hoosc-Weight ` sanded and polished welds aria rapped Cube Cnds Y.eavy duty earner stttcnec4 vinyl upho3stery. EqulpmFntgFoarpnnT'2vlth E:1 Alternate Room .- 85' . g .__. Xpload plate Ic'+ded t4y.Way geek strength mncl the.:-r."x+1;f1 ,J Gauge w®li-main frarnecubing. Nigh precision,sealed ler Field House tiNei ht life.deep groove bear'lip and self lubricating bail Joints. !d'va E.4 Room aPL0Aa7 P3FWN htgh resolutjon positioning grid high rads upholsie C4'i?round Ioadlf5g points Tilt ana glide.adiustahfb scats with ....-_ g _ ry pads. Oversizd padded handgrips: ,zea Moo (pload walk in bead Liit Shrug plate l0adpd strdrgfh.'2'x 4",jliy Gauge wail ma,infaRid'Iulimg. Hi"h recision,scale For House-weight life,dee roc bearings and'seif lutsricat np balljoints, Low to ground toadi ig points.-7th and s g p i d for G3 Room p o Y' XPLOAt7 _ P3DLS hlgh resolution Positioning and high g ade:uphol .*d - Id.de_ad).rstable seats with -y _ IY,pads 69p Fr a WegFtS'AdiusPable:ClGlity 0enrh, tiij uge Cea(frame bench, Agannu grade,contoured upholstery,' f Field House-Weight GaITENT NOT SHOWN ON PLAN.THIS ITEM PER OWNER REQUEST:TO BE fNSTALLEU'SEPARATELY. CONFIRM INSTALLATION TIME FRAME Wo . a E•4 Room F30-90 WITH WNER Si Field Hut.Se-Weight ...._. : - E.5 Room — Free Weight F32TDR Two Tier Bar Bell Rack, i1T)Gault ateel frame. 4ofd§!10 airs qt dui Total(NAUTILU,9) _ )A rnbbells Molded dumbbell saddles. gt k 2 H ,,,,. . „ .. 77 .`t ' M tt T ,x a TAG LQCATION STYLE SPECIFICATION NUMBER DESCRIPTION- Stand LIST.PRICE EXTENDED PRICE Stand alone'funrga nal traihing.1/2 rack+Kith dual vwiaf)around Uulleya, Pullrrys adladlusiable verdcally iiY 3'Itl rvpls attached. .o indivioval 30ULb,steel welghistacks with nylon coated galvanized steei,airc*aft cable. (7)Ga Use Steel titli are t'ubfnP with Field House-Weigtrt sanded ane'Polished Welds anti ca E.2 Room 6S pped untie ends. Heavy duty coKner stftc!ed vinyl upholstery..EgwpYnent ootprjnt 72"',X / l Total(SAMSON) P 4 , 2/S/2014 E no1:31'11.O0 Westlake Aeadett7Y;=zpansror.`xxR'CUtE ur n,ent U P SPr'cifraaG2n5lWest;Ghe Aeadenry Egulpma t SpecrLcatfan Lisr,,-02.05.1t-xlsx - Page'l of 2 r llll MEL m Ag - � Ply c> CE 14 Ally �, f.�"�N :13 � - r~I� n � i! I� r�� � c rl.� r• ., niii x' .'� r ' -! l .n I -'I � �'I. Yom'-+: '�k •c� ��`` i o f r 1 r WAS AZT i { 1 � 1 s 1 , s f Cs I c f ti _ a INDEMNIFICATION BY CONTRACTOR Town shall not be liable or responsible for,and shall be saved and held harmless by Contractor from and against any and all snits, actions. losses, damages, clams. or liability of any character,type or description; including ali expenses of litigation., court costs; and attorney's fees for injury or death to any person, or injury to any property, received or sustained by any person or persons or property, arising out of,or occasioned by; directly or indirectly,the performance of Contractor under this agreement, including ding claims and damages arising In part from,the r�eglicgence of town, without*, however, waiving any governmental immunity available to the Town under Texas lav,and without waiving any defenses of the parties under Texas law. The revisions of this indernnification are solely,for the benefit of the parties hereto and not intended to create or grant any rights: contractual or otherwise to any other person or entity. It is the expressed intent of the paries to this Agreement that the indemnity, provided for in this section is an indemnity extended by Contractor to indemnify and protect Town from the consequences of Town's own negligence, provided, however, that the indemnity prodded for in this section shall apply only when the negligent act of Torn is a contributory cause of the resultant injury death, or damage, and shall have no application when the negligent act of Town is the sole cause of the resultant injury, death, or damage, unmixed with the legal fault of another person or entity. Contractor further agrees to defend, at its own;expense, and on behalf of Town and in the name of Town, any claire or litigation broughtin connection With any such injury, death, or damage. The Contractor will secure and maintain Contractual Liability insurance to cower this indemnification agreement that will be primary and noncontributory as to any insurance maintained by the Town for its oven benefit;, including self-insurance_' In addiction, Contractor shall obtain and file with Town a Town.of Westlake Certificate of insurance evidencing the required coverage. Company Name tC ntractor j Signature Marne(Please Print) t Title HE UNDERSIGNED BIDDER AGREES TO COMMENCE WORK WITHIN FIVE (5) DAYS AFTER THE DATE OF WRITTEN OTIC TO COMMENCE WORK, ANDTO SUBSTANTIALLY COMPLETE THE'WORK ON WHICH HE HAS BID WITHIN EIGHTY (80) CALENDAR DAYS AS PROVIDED IN THE GENERAL CONDITIONS OF AGREEMENT, T, ENCLOSED WITH THIS PROPOSAL IS A'CASHIER'S OR CERTIFIED CHECK FOR %Greatest Amount Bid ( 5% CAB) DOLLARS, OR A PROPOSAL BOND IN THE SU OF DOL�,AR .� HIt:.H IT I ,TEED SHALL E COLLECTED AND RETAI `;' }-fE OWNER;AS LIQUIDATED DAMAGES S IN HE EVENT THIS PROPOSAL IS ACCEPTED BY THE OWNER WITHIN SIX-r (60) DAYS-AFTER THE DATE ADVERTISED FOR THE RECEPTION OF BIDS AND THE UNDERSIGNED FAILS TO EXECUTE THE CONTRr C-= AAND THE'REQUIRED BOND WITH THE OWNER, UNDER THE CONDITIONS HEREOF. WITHIN FIVE ( ;3 DAYS AFTER THE SAID PROPOSAL IS ACCEPTED 13Y THE OWNER AND RECEIVED BY THE UNDERSIGNED'. OTHERWISE,ISE, SAID CHECK OR BOND SMALL BE RETURNED TO THE UNDERSIGNED UPON DEMAND. THE UNDERSIGNED HEREBY DECLARES THAT HE HAS VISITED THE SITE :AND HAS CAREFULLY EFULLY EXAt II ED THE CONTRACT DOCUMENTS RELATIVE TO THE WORK COVERED BY THE ABOVE BID. RESRECTF-ULLY SUMITTED. z EFT SEAL_ - IF BIDDER A CJRPQRATIO Address forgiving notices. 3 Village Circle, Suite 202 Nestle. Texas 76262 ?l` WNER is a public body, attach resolution authorizing execution of Agreement, (If CONTRACTOR is a Corporation, attach evidence of authority to sign,) FINAL CONTRACT AMOUNTS THAT EXCEED THE ORIGINAL CONTRACT AMOUNT WILL BE Bond No.: 3225262 CHARGED AN ADDITIONAL PREMIUM.INCLUDE THESE PREMIUM CHARGES IN YOUR CHANGE ORDERS. wTM V1 1m_ AIA Document A312 - 2010 Performance Bond CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place Alpha Fitness Solutions of business) 1800 Industrial Blvd,Suite 120 Bankers Insurance Company This document has important legal Colleyville,TX 76034 11101 Roosevelt Blvd N consequences.Consultation with St Petersburg,FL 33716 an atluLncy is encuuiuyud with OWNER: respect to its completion or (Name, legal status and address) modification. Town of Westlake Any sin gut a r refs ren ce.,tn 3 Village Circle,Suite 202 Contractor,Surety,Owner or Westlake,TX 76262 other party shall be considered CONSTRIICTION CONTRACT plural where applicable. Date:3/3/2014 AIA Document A312-2010 combines two separate bonds,a Performance Bond and a Amount: $118,780.00 Payment Bond,into one form. Description: This is not a single combined (Name and location) Performance and Payment Bond. Provide and Install the athletic equipment for the Westlake Academy Phase 1 Expansion Project BOND Date:4/30/2014 (Not earlier than Conshwtion Contract Date) Amount: $118,780.00 Modifications to this Bond: ❑None ® See Section 16 CONTRACTOR AS-, IN PAL. SURETY Company: (Comate Seal), Company: (Corporate Seal) Alpha Fitness So�tirn „_. Bankers Insurance Company SignatureSignature: Name Carli G. gth, Name and Title:Managing Member and Title: Br Quiri,Attorney-in-Fact (Any additional signatures appear on the last page of thisPei formanc Bond) (FOR INFORMATION ONLY—Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect.Engineer or other party:) CCI Surety,Inc. 1710 N.Douglas Dr,Suite 110 Golden Valley MN 55422 763.543.6993 AIA Document A312 T'—2010.The American Institute of Architects.This document was created on 02128/2012 11:24:44 under the terms of Init. AIA Documents-on-DemandTm order no. 2008406923,and is not for resale.This document is licensed by The American Institute of Architects for 1 une-time use only,dnd mdy nut be repiuduced pliur Lu its uumpleLiun.. uaruw §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner for the performance of the Construction Contract,which is incorporated herein by reference. §2 I the Contractor performs the Construction Contract,the Surety and the Contractor shall have no obligation under this Bond,except when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner does not request a conference,the Surety may,within five(5)business days after receipt of the Owner's notice, request such a conference.Tf the Surety timely requests a conference,the Owner shall attend.Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten (10)business days of the Surety's receipt of the Owner's notice.If the Owner,the Contractor and the Surety agree,the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right,if any,subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default,terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations,except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself,through its agents or independent cutittactuts, §5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract,arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence,to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract,and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default;or §5.4 Waive its right to perform and complete;arrange for completion,or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation,determine the amount for which it may be liable to the Owner and,as soon as practicable after the amount is determined,make payment to the Owner;or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided iii Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations raider this Bond,and the Owner shall be entitled to enforce any remedy available to the Owner.If the Surety proceeds as provided in Section 5.4,and the Owner refuses the payment or the Surety has denied liability,in whole or in part,without further notice the Owner shall be entitled to enforce any remedy available to the Owner. AIA Document A3121—2010.The American Institute of Architects.This document was created on 02128/2012 11:24:44 under the terns of Init. ALA Documents-on-DemandTM order no. 2008406923,and is not for resale.This document is licensed by The American Institute of Architects for 2 one-tine.use unly,and may nul Ue repiuduvedp6ur tv iW cugipletiun. 1 §7 If the Surety elects to act under Section 5.1,5.2 or 5.3,then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract,and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to die conunitnicnt by the Owner to pay the Balance of the Contract Price,the Surety is obligated,without duplication,for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal,design professional and delay costs resulting from the Contractor's Default,and resulting from the actions or failure to act of the Surety under Section 5;and .3 liquidated damages,or if no liquidated damages are specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. §8 If the Surety elects to act under Section 5.1,5.3 or 5.4,the Surety's liability is limited to the amountofthis Bond. §9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations.No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors and assigns. §10 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §11 Any proceeding,legal or equitable,under this Bond maybe instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond,whichever occurs first.If the provisions of this Paragraph are void or prohibited by law,the minimum periodof limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §12 Notice to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. §13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement slla.11 be deemed deleted liciefi uni and p1UvisiU116 colifulluirig to sued statutUty of Uthei legal iuqunemvnt shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §14 Definitions §14.1 Balance of the Contract Price.The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made,including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled,reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. §14.2 Construction Contract.The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. §14.3 Contractor Default.Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. §14.4 Ovlmer Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract §14.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §15 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. AIA Document A3121m-2010.The American Institute of Architects.This document vias created on 02/2612012 11:24:44 under the terms of Init. AIA Documents-on-DemandT"A order no. 2008406923,and isnot for resale.This document is licensed by The American Institute of Architects for 3 une-lime use wily,and may nutUe fepiuduced pliul tw its cwnpletivn. 1 §16 Modifications to this bond are as follows: *Notwithstanding the terms of the contract,the sum or the bond stated herein shall not increase without prior written consent of Surety. "All obligations of the Surety shall be discharged and released at the end of one year from project acceptance by owner or architect. (Space is provided below for additional signatures of addedparties, other than triose appearing on the coverpage.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA Document A312 TM-2410.The American Institute of Architects.This document was created on 02128/2012 11:24:44 under the terms of Init.. AIA Documents-on-Demand TM order no. 2008406923,and is not for resale.This document is licensed by The American Institute of Architects for 4 une-tiffm use only,and may nut pe reproduced pfivf ip its cvrnpletivn. i FINAL CONTRACT AMOUNTS THAT EXCEED THE ORIGINAL CONTRACT AMOUNT WILL BE Bond No.: 3225262 CHARGED AN ADDITIONAL PREMIUM.INCLUDE THESE PREMIUM CHARGES IN YOUR CHANGE ORDERS. J' ? TM 4 0-z�A I ADocument A312 - 2010 PaymentBond CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place Alpha Fitness Solutions of business) 1800 Industrial Blvd,Suite 120 Bankers Insurance Company This document has important legal 11101 Roosevelt Blvd N Colleyville,TX 76034 consequences.Consultation with St Petersburg,FL 33716 an attorney is encoutayed with OWNER: respect to its completion or (Name, legal status and address) modification. Town of Westlake Any singular reference to 3 Village Circle,Suite 202 Contractor,Surety,Owner or Westlake,TX 76262 other party shall be considered CONSTRIiCTION CONTRACT plural where applicable. AIA Document A312-2010 Date:3l3/2014 combines two separate bonds,a Amount: $118,780.00 Performance Bond and a Payment Bond,into one form. Description: This is nota single combined (Name and location) Performance and Payment Bond. Provide and Install the athletic equipment for the Westlake Academy Phase I Expansion Project BOND Date:4/30/2014 (Not earlier than Construction Contract Date) Amount:$118,780.00 Modifications to this Bond: ❑None ® See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Alpha Fitness Solutions Bankers Insurance Company Signature: Signature: Name Carli G.Strength, Name and Title:managing Member and Title: �Brad Q tri Attornev-In-Fact (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY—Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect.Engineer or other party:,) CCI Surety,Inc. 1710 N.Douglas Dr,Suite 110 Golden Valley MN 55422 763543.6993 AIA Document A3121—2010.The American Institute of Architects.This document was created on 02!2612012 11:24:44 under the terms of Init. AIA Documents-on-DemandT" order no. 2008406823,and is not for resale.This document is licensed by The American Institute of Architects for une-time utieeonly,and may nut ue reproduced print to its curnptetiun, uetuiu I §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner to pay for labor,materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated hereitn by reference,subject to the following terms. §2 If the Contractor promptly makes payment of all sums due to Claimants,and defends,indemnifies and holds harmless the Owner from claims,demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract,then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety(at the address described in Section 13) of claims,demands,liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor,materials or equipment furnished for use in the perfonnance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3,the Surety shall promptly and at the:Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand,lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were,or equipment was,furnished or supplied,or for whom the labor was done or performed,within ninety(90)days after having last performed labor or last furnished materials or equipment included in the Claim,and .2 have sent a Claim to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety(at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7 When a Claiiiiant has satisfied the cunditions of Scctiuns 5.1 ur 5.2,whichever is applicable,the Surety shall promptly and at the Surety's expense take the following actions: §7.1 Send an answer to the Claimant,with a copy to the Owner,within sixty(60)days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement.If,however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs:thereafter to recover any sums found to be due and owing to the Claimant. §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's fees provided under Section 7.3,and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims,if any,under any construction performance bond.By the Contractor furnishing and the Owner accepting this Bond,they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety tinder this Bond,subject to the Owner's priority to use the funds for the completion of the work. AIA Document A3121-2010.The American Institute of Architects.This document was created on 02/28/2012 11:24:44 under the terms of Init. AIA Documents-on-Demand T11 order no. 2008406923,and is not for resale.This document is licensed by The American Institute cfArchitects for 6 une-lime use unly,and may nut Ue repruduued pour to its uumpletiun. I §10 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract.The Owner shall not be liable for the payment of any costs or expenses of any Claimant wider this Bond,and shall have under this Bond no obligation to make payments to,or give notice on behalf of,Claimants or otherwise have any obligations to Claimants under this Bond. §11 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2,or(2)on which the last labor or service was performed by anyone,or the last materials or equipment were furnished by anyone under the Construction Contract,whichever of(1)or(2)first occurs.Tf the provisions of this Paragraph are void or prohibited by law,the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. §13 Notice and Claims to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears.Actual receipt of notice or Claims,however accomplished,shall be sufficient compliance as of the date received. §14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. §-16 Definitions §16.1 Claim.A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done,or materials or equipment furnished, .3 a UUpy Uf the agluutIlunt UI purchase Uldci-pursuant tUwhich labui,inatuilals Ur uquiplllullt was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant;and .8 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. §16.2 Claimant.An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor,materials or equipment for use in the perform ance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond shall be to include without limitation in the terms"labor,materials or equipment"that part of water,gas,power,light,heat,oil, gasoline,telephone service or rental equipment used in the Construction Contract,architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor,materials or equipment were furnished. §16.3 Construction Contract.The agreement between the Owner and.Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. AIA Document A312i°°-2010.The American Institute of Architects.This document was created on 02/28/2012 11:24:44 under the terms of [nit. AIA Documents-on-DemandT11order no. 2008406923,and is not for resale.This document is licensed by The American Institute of Architects for 7 Une-time use only,and may not Ge reproduced put to its cumpletim. §16.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contractor to perform and complete or comply with the other material terms of the Construction Contract. §16.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §17 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. §18 Modifications to this bond are as follows: "Notwithstanding the terms of the contract,the sum or the bond stated herein shall not increase without prior written consent of Surety. "All obligations of the Surety shall be discharged and released at the end of one year from project acceptance by owner or architect. (Space is provided below foradditional signatures of addedparties, other than those appearing on the coverpage.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA Document A3121"—2010.The American Institute of Architects.This documentwas created on 0212812012 11:24:44 under the terms of Init. AIA Documents-on-DemandT"order no. 2008406923;and is not for resale.This document is licensed by The American Institute of Architects for une-timt.use unly,and gray not be reproduced prlul to it;cumpletiun. Banners Insurance Company KNOW ALL MEN BY THESE PRESENTS, that BANKERS INSURANCE COMPANY, a corporation duly organized under the laws of the State of Florida, and having its principal office in the City of St. Petersburg, Pinellas County, Florida, does hereby nominate, constitute and appoint: * Andrea J. Michael Haight and/or Brad Quin of the City of Tampa , Hillsborough County, State of Florida its true and lawful Attorney-in-fact, with full power and authority hereby conferred upon him/her to make, execute, seal and deliver for and on its behalf, as Surety, as its act and deed; any and all bonds, undertakings consent or Agreement not exceeding the sum of Three Million and xx/1O0 Dollars------------------------ $3,000,000.00 which this Company may be authorized to write. This Power`of Attorney is granted and is signed and sealed under and by the authority ;of the following resolutions adopted by the Board of Directors of Bankers Insurance Company, and now in force to-wit: BE IT RESOLVED, that the Chairman of the Board, President and any Vice President of the Corporation are hereby authorized to execute'Powers of Attorney,qualifying the Attorney(s)-in-Fact named in the Powers of Attorney to execute, on behalf of the Corporation,bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of the Corporation are hereby authorized to attest the execution of any such Power of Attorney. BE IT FURTHER RESOLVED,that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile,; any and such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporation'when so affixed in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, Bankers Insurance Company has caused these presents to be executed by their duly authorized officers as of this 4'" day of April, 2013. ATTEST: BANKERS �NSt)RANCE COMPANY By: ; Ian Barber, Assistant Secretary Wilbur L. Martin IV, President STATE OF FLORIDA ) COUNTY OF PINELLAS ) The foregoing instrument was acknowledged before me 4th day of AAril, 2013 by Wilbur L. Martin IV and Ian Barber, as President and Assistant Secretary,respectively,of Bankers Insurance Company,a Florida corporation,on behalf of the corporation. Personally knew x OR Produced Identification-Type of Identification Provided * A (SEAL) (NOTARY PUBLIC) I, the undersigned, Assistant Secretary of Bankers Insurance Company do hereby certify that the original Power of Attorney, of which the foregoing is a full,true and correct copy,is in full force and effect. IN WITNESS WHEREOF,I have hereunto subscribed my name as Assistant Secretary,and affix the corporate seal of the Corporation this $ day Of 20\tet (SEAL) -- Ian Barber, Assistant Secretary ***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***SBA***