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HomeMy WebLinkAbout2009-043 SECTION 00530 — EJCDC STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE THIS AGREEMENT ("Agreement" or "Contract'), dated 2009 by and between Indian River County, a political subdivision of the State of F orida ("OWNER" or "County") and Summit Construction Management. Inc. ("CONTRACTOR"). OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1 WORK 1 . 1 . CONTRACTOR as an independent contractor and not as an employee shall Hanish and complete all of the necessary labor, material, and equipment to perform the work as specified or indicated in the Contract Documents. The work is generally described as follows: A. The Work shall include, but is not necessarily limited to, the following: I . Mobilization/Demobilization 2 . Site Work a. Clearing/Grubbing b. Filling/Grading c. Landscaping d. Sodding 3 . Paving, Grading, and Drainage 4 . Stormwater Outfall Relocation and Modification 5 . Yard piping, including: a. Wash Water Piping b. Force Main Extension c. Centrate Piping d. Sludge Piping e. Leachate Piping 6 . Electrical/Laboratory Building 7 . Centrate Ground Storage Tank 8 . Biosolids Holding Tanks 9. Aeration Equipment 10. Septage Receiving Station 11 . Sludge Receiving Station 12 . Biosolids and Centrate Lift Stations 13 . Chemical Storage and Feed System 14. Centrate Pumping Station 15 . Electrical 16 . HVAC 17. Process Instrumentation 18 . Incoming Switchgear 19 . Emergency Generator 20 . MCCs i' I I 005304 Jb2075.doc ,I I 126 ARTICLE 2 ENGINEER 2. 1 . The project has been designed by Camp Dresser & McKee Inc. , hereinafter called ENGINEER, and who is to act as OWNER'S representative, assume all duties and responsibilities and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the work in accordance with the Contract Documents. ARTICLE 3 CONTRACT TIME 3 . 1 The CONTRACTOR shall be substantially completed with the work two hundred seventy (270) calendar days after issuance of the Notice to Proceed, in accordance with Paragraph 2.03 of the General Conditions, and be completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within three hundred sixty (360) calendar days after the issuance of the Notice to Proceed. 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 above, 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 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: (a) three-hundred dollars ($300.00) for each day that expires after the time specified in Paragraph 3 . 1 for Substantial Completion of the 3 work on the project and (b) two hundred dollars ($200.00) for each day that expires after the time specified in Paragraph 3 . 1 for completion and readiness for final. payment. ARTICLE 4 CONTRACT PRICE 4. 1 . OWNER shall pay CONTRACTOR for completion of the work in accordance with the Contract Documents in current funds in the amount of $ 4,687.578.00. ARTICLE 5 PAYMENT PROCEDURES CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed as provided in the General Conditions and the Contract Documents, 5 . 1 Progress Payments . The OWNER shall make progress payments to the CONTRACTOR on the basis of the approved partial payment request as recommended by ENGINEER in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq. The OWNER shall retain ten percent ( 10%) of the payment amounts due to the CONTRACTOR until fifty percent (50%) completion of the work. After fifty percent (50%) completion of the work is attained as certified to OWNER by ENGINEER in writing, OWNER shall retain five percent (59/o) of the payment amount due to CONTRACTOR until final completion and acceptance of all work to be performed by CONTRACTOR under the Contract Documents. Pursuant to Florida Statutes section 218.735(8)(b), fifty percent (50%) completion means the point at which the County as OWNER has expended fifty percent (50%) of the total cost of the construction services work purchased under the Contract Documents, together with all costs associated with existing change orders and other additions or modifications to the construction services work provided under the Contract Documents, 5 .2 Pay Requests. Each request for a progress payment shall be submitted on the application for payment i i I 00530-2 Jozo,s.aoc 127 form supplied by OWNER and the application for payment shall contain the CONTRACTOR' s certification. All progress payments will be on the basis of progress of the work measured by the schedule of values established, or in the case of unit price work based on the number of units completed. After fifty percent (50%) completion, and pursuant to Florida Statutes section 218 .735(8)(d), the CONTRACTOR may submit a pay request to the County as OWNER for up to one half ( 1 /2) of the retainage held by the County as OWNER, and the County as OWNER shall promptly make payment to the CONTRACTOR unless such amounts are the subject of a good faith dispute; the subject of a claim pursuant to Florida Statutes section 255 .05(2005); or otherwise the subject of a claim or demand by the County as OWNER or the CONTRACTOR. The CONTRACTOR acknowledges that where such retainage is attributable to the labor, services, or materials supplied by one or more subcontractors or suppliers, the Contractor shall timely remit payment of such retainage to those subcontractors and suppliers. Pursuant to Florida Statutes section 218.735(8)(cx2005), CONTRACTOR further acknowledges and agrees that: 1 ) the County as OWNER shall receive immediate written notice of all decisions made by CONTRACTOR to withhold retainage on any subcontractor at greater than five percent (5%) after fifty percent (50%) completion; and 2) CONTRACTOR will not seek release from the County as OWNER of the withheld retainage until the final pay request. 5 .3 Paragraphs 5 . 1 . 1 and 5 .2 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. 5 .4 ACCEPTANCE AND FINAL PAYMENT: Upon receipt of written notice that the work is ready for final inspection and acceptance, the ENGINEER will promptly make such inspection and when the ENGINEER finds the work acceptable under the terms of the Contract and the Contract fully performed, the ENGINEER will promptly issue a final completion certificate stating that the work provided for in this Contract has been completed, and acceptance by the OWNER under the terms and the conditions thereof is recommended and the entire balance found to be due the CONTRACTOR, will be paid to the CONTRACTOR by the OWNER following County Commission approval of the final Contract payment. 5 . 5 Acceptance of Final Payment as Release. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a release to the OWNER from all claims and all liability to the CONTRACTOR other than claims in stated amounts as may be specifically excepted by the CONTRACTOR for all things done or furnished in connection with the work under this Contract and for every act and neglect of the OWNER and others relating to or arising out of the work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Payment and Performance Bonds . ARTICLE 6 INTEREST Not Applicable. ARTICLE 7 CONTRACTOR'S REPRESENTATIONS 0053M jb2075.doc 128 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 famishing 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 4.02 of the General Conditions, and accepts the determination set forth in Paragraph SC402 of the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which CONTRACTOR is entitled to rely. 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 addition 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 as CONTRACTOR considers necessary for the performance of famishing 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 4.02 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 underground 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 underground facilities are or will be required by CONTRACTOR in order to perform and famish 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 4.04 of the General Conditions. 7. 5 CONTRACTOR has correlated the results of all such observations, examinations, investigations, explorations, tests, reports and studies with the terms and conditions of the 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 of the following: 8 . 1 This Agreement (Section 00530). 8.2 Performance and Payment Bonds (Sections 00610 and 00612). 8 . 3 Notice of Award and Notice to Proceed (examples in Section 00800). 005304 ;b2075,aC 129 8A General Conditions (Section 00700). 8. 5 Supplementary Conditions (Section 00800). 8.6 Specifications bearing the title "INDIAN RIVER COUNTY BIOSOLIDS DEWATERING FACILITY" as listed in the table of contents hereof. 83 Drawings, inclusive with each sheet bearing the following general title: "INDIAN RIVER COUNTY BIOSOLIDS DEWATERING FACILITY" 8.8 Addenda numbers 1 to 4 , inclusive. 8.9 CONTRACTOR'S Bid (Section 00300) . 8. 10 Specifications bearing the title "IRCDUS Water and Wastewater Utility Standards, November 2008, or the latest version thereof_ 8. 11 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 .04 of the General Conditions. 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 .04 of the General Conditions. ARTICLE 9 MISCELLANEOUS 9. 1 Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions, 9.2 It is agreed that the CONTRACTOR shall not assign, transfer, convey, or otherwise dispose of the contract or its right, title, or interest in or to the same or any part thereof, or allow legal action to be brought in its name for the benefit of others, without previous consent of the OWNER and concurred to by the sureties. Any attempted assignment shall be void and may, at the option of the OWNER be deemed an event of default hereunder. Nothing herein shall be construed as creating any personal liability on the part of any officer or agent of the OWNER who may be a party hereto. 93 OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives 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. 9.4 The CONTRACTOR shall be properly licensed to practice its trade or trades which are involved in the completion of this Agreement and the work thereunder. 9.5 This Agreement shall be governed by the laws of the State of Florida. Venue for any lawsuit brought by either party against the other party or otherwise arising out of this agreement shall be in Indian River County, Florida, or, in the event of federal jurisdiction, in the United States District Court for the Southern District of Florida. 9.6 CONTRACTOR agrees to indemnify and hold harmless the OWNER, together with its agents, engineers, employees, elected officers and representatives, from liabilities, damages, losses, and costs, including but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of the CONTRACTOR and persons employed or utilized by the CONTRACTOR in the performance of the work under this Agreement. This indemnification and hold harmless provision shall survive the termination or expiration of this Agreement. The indemnification is limited to $ 5 million per occurrence. 00530-$ JW076,aoc 130 9 .7 Pledge of Credit. The CONTRACTOR shall not pledge the OWNER' S credit or make it a guarantor of payment or surety for any Agreement, debt, obligation, judgment, lien or any form of indebtedness. The CONTRACTOR further warrants and represents that it has no obligation of indebtedness that would impair its ability to fulfill the terms of this Agreement. 9. 8 . Counterparts . This Agreement may be executed in one or more counterparts, but all such counterparts, when duly executed, shall constitute one and the same Agreement. 9 .9. Public Records. The OWNER and the CONTRACTOR shall comply with the provisions of Chapter 119, Florida Statutes (Public Records Law) in connection with this Agreement. ARTICLE 10. DIRECT PURCHASE PROCEDURES . 10. 1 . Administrative guidelines governing the taxability of materials purchased for public works contracts, such as the Project under these Contract Documents, are contained in Rule 12A- 1 .094, Florida Administrative Code. 10.2. The exemption in Florida Statutes Section 212.08(6) is a general exemption for sales made directly to the government. A determination whether a particular transaction is properly characterized as an exempt sale to a governmental entity or a taxable sale to or use by a contractor shall be based on the substance of the transaction, rather than the form in which the transaction is cast. The determination of whether the substance of a particular transaction is a taxable sale to or use by a contractor or an exempt direct sale to a governmental entity, based on all of the facts and circumstances surrounding the transaction as a whole, is ultimately made by the Florida Department of Revenue. 10. 3 . The conditions that must be met to satisfy the requirements of Rule 12A- 1 .094, Florida Administrative Code, and establish that Indian River County as Owner rather than the Contractor is the purchaser of materials, include: ( 1 ). Direct Purchase Order. Indian River County as Owner must execute the purchase orders for the tangible personal property involved in the contract, which must include the County ' s consumer's certificate of exemption number. The Contractor may present the County' s purchase orders to the vendors of the tangible personal property; (2). Passage of Title. The Indian River County as Owner must acquire title to and assume liability for the tangible personal property at the point in time when it is delivered to the job site up until the time it is incorporated as real property ; (3). Direct Invoice. Vendors must directly invoice Indian River County as Owner for supplies; (4). Direct Payment. Indian River County as Owner must directly pay the vendors for the tangible personal property ; and (5). Assumption of the Risk of Loss. . Indian River County as Owner must assume all risk of loss or damage for the tangible personal property involved in the contract, as indicated by the County ' s acquisition of, or inclusion as the insured party under, insurance on the building materials. 00530-6 JQ075.doc 131 10.4. Indian River County as Owner desires to comply with the Direct Purchase Procedures set forth in this Article 10 for allowable purchases in an amount in excess of $5,000 (Five Thousand Dollars). Contractor agrees to cooperate with Owner to enable Owner to comply with the Direct Purchase Procedures set forth in this Article 10 for all such purchases. Whenever the Contract Documents conflict with the direct purchase procedures set forth in this Article 10, this Article 10 shall prevail. Owner and Contractor shall coordinate the builder' s risk coverage of each party to comply with the Direct Purchase Procedures set forth herein for such purchases. 10. 5 . Upon delivery of Owner direct purchase materials to the Project site, the Contractor shall, pursuant to the Contract Documents, inspect, accept delivery of, and store Owner direct purchase materials pending incorporation into the Project. Contractor shall forward proof of delivery acceptance to the Owner' s Project Manager. Notwithstanding the transfer of possession of Owner direct purchase materials to the Contractor, Indian River County as Owner retains title to the Owner direct purchase materials and the transfer of possession shall be deemed a bailment until the Owner direct purchase materials are incorporated into the Project. IN WITNESS WHEREOF, OWNER AND CONTRACTOR have signed this Agreement the flay and year first written above. This Agreement will be effective on t ��—, 2009. CONTRACTOR OWNER Indian River County Burd of County Summit Construction Management Inc. Commissioners 13 By ; v _ ,- � ;� _ _ e ey S. Davis, Chemarr Wil iam B . Schuh, President p Attest: J. K. Barton, Clerk Attest: t 6 C J L ^ ; _� I A (CORPORATE SEAL) By (: c, os_ t Deputy Clerk pproved By : �1 y eph A. B ' d, County Administrator pd as to Form and Legal Sufficiency : . Feil, S ruor ssistant County Attorney 005304 jb2075.doc 132