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HomeMy WebLinkAbout2014-140 • - ` `a �� o! Lf 8• AGREEMENT BETWEEN INDIAN RIVER COUNTY AND WELLER POOLS LLC FOR WORK ON THE COMPETITIVE POOL AT THE NORTH COUNTY AQUATICS CENTER THIS AGREEMENT ("Agreement' or "Contract') is entered into this 23rd day of September, 2014, by and between Indian River County, a political subdivision of the State of Florida ("OWNER") and Weller Pools, LLC, a Florida limited liability company ("CONTRACTOR") BACKGROUND RECITALS A. Pursuant to applicable provisions of Florida law, OWNER has selected CONTRACTOR to perform certain work on the Competitive Pool at the North County Aquatics Center, located at 9450 County Road 512 (Fellsmere Rd.), Sebastian, FL. 32958, as more specifically described in the Scope of Work attached hereto as Exhibit "A" B. CONTRACTOR agrees to perform certain work as more specifically described in the Scope of Work attached hereto as Exhibit "A" NOW THEREFORE, OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, and intending to be legally bound, agree as follows: ARTICLE 1 WORK 1 1 CONTRACTOR as an independent contractor and not as an employee shall furnish all of the necessary labor, material, and equipment to perform the improvements and shall complete the improvements to, including the wellpoint dewatering and ultimate re-filling of, the Competitive Pool at the North County Aquatics Center as specified or indicated in the Scope of Work. ARTICLE 2 CONTRACT TIME 2.1. Contract Times CONTRACTOR shall complete the work set forth in the Scope of Work in accordance with the following timeframe. 2.1.1 By November 10, 2014, CONTRACTOR shall obtain all necessary permits for the work described in the Scope of Work. OWNER will be responsible for any cost of obtaining any necessary permits 2.1.2 By November 17, 2014, CONTRACTOR shall a. mobilize all necessary labor, equipment, and materials to perform the work described in the Scope of Work; and b dewater and drain the Competitive Pool at the North County Aquatics Center OWNER will be responsible for any cost of draining the water from the Competitive Pool at the North County Aquatics Center 2 1 3 By December 15, 2014, the CONTRACTOR shall complete the tasks identified as items 1 through 12 in the Scope of Work. Completion of all tasks outlined above constitutes Substantial Completion 2.1.4 By December 22, 2014, the CONTRACTOR shall complete the following tasks a. clean up the area surrounding the Competitive Pool at the North County Aquatics Center. b. remove all equipment and material from area around the Competitive Pool at the North County Aquatics Center. c. repair the deck of the Competitive Pool at the North County Aquatics Center to its pre-Agreement condition. d. fill the Competitive Pool at the North County Aquatics Center to the standard water level. OWNER will be responsible for the cost of water for filling the Competitive Pool at the North County Aquatics Center. 2.1.5 In the event of rain, hurricane, other acts of God, or other circumstances or delays which are beyond the CONTRACTOR'S control and which materially impedes the performance of the work described above, CONTRACTOR may request an extension for any and all Contract Times, subject to the approval of OWNER, which shall not be unreasonably withheld. Delays caused by any sub- contractors will be deemed to be within the CONTRACTOR'S control. Completion of all tasks outlined above (i.e., Subparagraphs a, b, and c) constitute Final Completion. ARTICLE 3 CONTRACT PRICE 3.1. OWNER shall pay CONTRACTOR for completion of the work set forth in the Scope of Work in accordance with this Agreement in current funds in the amount of $ 87,561 3.2. In the event of rain, hurricane, other acts of God, or any other circumstances or delays which are beyond the CONTRACTOR'S control and which materially impedes the performance of the work described above, a change order to the contract price will be issued to reimburse CONTRACTOR for the added cost of labor, dewatering, or other direct costs which CONTRACTOR may incur to complete the Scope of Work. Delays caused by any sub-contractors will be deemed to be within the CONTRACTOR'S control. ARTICLE 4 LOCAL GOVERNMENT PROMPT PAYMENT ACT. 4.1 OWNER will pay CONTRACTOR is accordance with the procedures set forth in the Local Government Prompt Payment Act, Part VII, Chapter 218, Florida Statutes. ARTICLE 5 PUBLIC CONSTRUCTION BOND CONTRACTOR shall furnish a Public Construction Bond in the amount of one hundred percent (100%) of the total amount of the Contract Price set forth in this Agreement. The sureties for the Public Construction Bond must be entities included in the most recent United States Department of Treasury List of Acceptable Sureties and authorized to issue surety bonds in Florida. The Public Construction Bond shall continue in effect for one year after final payment is made as a guarantee that the workmanship and materials are free from construction defects. The Public Construction Bond shall be in the form suggested by Section 255.05(3), Florida Statutes, and attached to this Agreement as exhibit"B". A Power of Attorney from a surety insurer authorized to do business in Florida, authorizing the signature of the Attorney in Fact who executes the Public Construction Bond shall accompany that Bond. ARTICLE 6 MISCELLANEOUS 6.1. No Assignment. The CONTRACTOR shall not assign, transfer, or otherwise dispose of this Agreement 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 concurrence 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. OWNER and CONTRACTOR each binds itself, its successors, assigns and legal representatives to the other party hereto and to its successors, assigns and legal representatives in respect of all covenants, agreements and obligations contained in this Agreement. 6.2. Licenses. 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. 6.3. Remedies and Choice of Law 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. No remedy herein conferred upon any party is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every such remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party or any right, power, or remedy hereunder shall preclude any other or further exercise thereof. 6.4. Indemnification. CONTRACTOR agrees to indemnify and hold harmless the OWNER, together with its agents, engineers, employees, officers, elected officials and representatives, from liabilities, damages, losses, and costs, including but not limited to, reasonable attorney's fees, to the extent caused by a breach of this agreement or 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. 6.5 Insurance. CONTRACTOR is responsible for obtaining any and all necessary insurance, including, but not limited to Workers Compensation, Auto Liability, General Liability including Products and Completed Operations, Pollution Liability and pool pop up or floatation insurance to protect OWNER against damage to the Competitive Pool at the North County Aquatics, including protection against the Competitive Pool at the North County Aquatics Center from popping out. CONTRACTOR shall procure and maintain, for the duration of this Agreement, the minimum insurance coverage as set forth herein. 6.5.1. Workers' Compensation: Workers' Compensation as required by the State of Florida. Employers' Liability of $500,000 each accident, $500,000 disease policy limit, and $500,000 disease each employee. 6.5.2. General Liability: commercial general liability coverage, including contractual liability and independent contractor, with a minimum combined single limit of $1,000,000 per occurrence and personal injury coverage of $1,000,000 6.5.3. Business Automobile Liability: owned, hired, and non-owned vehicles at a minimum combined single limit of $1,000,000 per occurrence and personal injury coverage of $1,000,000 for bodily injury and property damage for owned and non-owned vehicles. 6.5.4. Limited Worksite Pollution coverage of no less than $100,000. 6.5.5. Pool pop up or floatation insurance shall be included as part of the above- referenced insurance requirements. 6.5.6. CONTRACTOR's insurance coverage shall be primary. 6.5.7. All required insurance policies shall be placed with insurers licensed to do business in Florida and with a Best's rating of A- VII or better. 6.5.8. The insurance policies procured shall be occurrence forms, not claims made policies. 6.5.9. A certificate of insurance shall be provided to the OWNER's Risk Manager for review and approval, ten (10) days prior to commencement of any of the work set forth in the Scope of Work. OWNER shall be named as an additional insured on all policies except workers' compensation and professional liability. 6.5.10.The insurance companies selected shall send written verification to OWNER's Risk Manager that they will provide 30 days prior written notice to the OWNER's Risk Manager of its intent to cancel or modify any required policies of insurance. 6.5.11. CONTRACTOR shall include all sub-contractors as insured under its policies or shall furnish separate certificates and endorsements for each sub-contractor. All coverages for sub-contractors shall be subject to all of the requirements stated herein. 6.6. Availability of Funds. The obligations of the Owner under this Contract are subject to the availability of funds lawfully appropriated for its purpose by the Board of County Commissioners of Indian River County. 6.7. 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. 6.8. 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. 6.9. Compliance with Chapter 119, Florida Statutes. OWNER is a public agency subject to Chapter 119, Florida Statutes. CONTRACTOR shall comply with Florida's Public Records Law. Specifically, CONTRACTOR shall: 6.9.1. Keep and maintain public records that ordinarily and necessarily would be required by OWNER in order to perform the service. 6.9.2. Provide the public with access to public records on the same terms and conditions that OWNER would provide the records and at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. 6.9.3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. 6.9.4. Meet all requirements for retaining public records and transfer, at no cost, to OWNER all public records in possession of CONTRACTOR upon termination of the Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to OWNER in a format that is compatible with the information technology systems of OWNER. 6.9.5. Failure of CONTRACTOR to comply with these requirements shall be a material breach of this Agreement. 6.10. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable for the remainder of this Agreement, then the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected, and every other term and provision of this Agreement shall be deemed valid and enforceable to the extent permitted by law. 6.11. Captions and Interpretations. Captions in this Agreement are included for convenience only and are not to be considered in any construction or interpretation of this Agreement or any of its provisions. Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa. Words of any gender include the correlative words of the other genders, unless the sense indicates otherwise. 6.12. Notices: Any notice, request, demand, consent, approval, or other communication required or permitted by this Agreement shall be given or made in writing and shall be served, as elected by the party giving such notice, by any of the following methods: (a) Hand delivery to the other party; (b) Delivery by commercial overnight courier service; or (c) Mailed by registered or certified mail (postage prepaid), return receipt requested at the addresses of the parties shown below: OWNER: Indian River County Attn: 1801 27th Street Vero Beach, FL 32960-3365 Facsimile: (772) - CONTRACTOR: Notices shall be effective when received at the address as specified above. Facsimile transmission is acceptable notice effective when received, provided, however, that facsimile transmissions received (i.e., printed) after 5:00 p.m. or on weekends or holidays, will be deemed received on the next day that is not a weekend day or a holiday. The original of the notice must additionally be mailed. Either party may change its address, for the purposes of this section, by written notice to the other party given in accordance with the provisions of this section. 6.13 Sovereign Immunity. Nothing in this Agreement is intended to, or shall be interpreted to, constitute a waiver or limitation of the COUNTY's sovereign immunity. 6.14. Entirety of Agreement. This Agreement incorporates and includes all prior and contemporaneous negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. It is further agreed that no modification, amendment or alteration in the terms and conditions contained herein shall be effective unless contained in a written document executed with the formality and of equal dignity herewith. 6.15. Background Recitals. The background recitals are true and correct and form a material part of this Contract. IN WITNESS WHEREOF, OWNER AND CONTRACTOR have signed this Agreement the day and year first written above. This Agreement will be effective on , OWNER Indian River County Bo f Countv Commissioners By: Peter D. O'Bryan, aairman September 23, 2014 Attest: Jeffrey R. Smith, Clerk of Court and Comptroller Deputy Clerk roved By: h A. Baird, County Administrator roved as to Form a egal Sufficiency: Dylan Reingold, County Attorney Address for giving notices 1801 271h Street Vero Beach, Florida 32960 CONTRACTOR W -al - ? (<. U& By: — — �'�" ORATE SEAL) Attest: Address for giving notices License No. �l%'� C- -2- Agent Agent for service of process: END OF SECTION