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HomeMy WebLinkAbout2006-092 -z- 00 (0 0o6 AGREEMENT INDIAN RIVER COUNTY, FLORIDA INDIAN RIVER COUNTY SECTOR 7 BEACH NOURISIIMENT THIS AGREEMENT made and entered into on the 4th day of April 2006, by andbetween Great Lakes Dredge & Dock Company�LC , 2122 York Road , Oak Brook , IL 60523 (Name and Address) herein after called the CONTRACTOR, and INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, hereinafter called the COUNTY, or OWNER. WITNESSETH : That the CONTRACTOR and the COUNTY, for the consideration hereinafter named, agree as follows: Article 1 . SCOPE OF WORK: The CONTRACTOR shall furnish all of the materials and perform all the work shown on the Drawings and described in the Specifications entitled : INDIAN RIVER COUNTY SECTOR 7 BEACH NOURISHMENT for Indian River County, Florida and shall do everything required by this Agreement and Contract Documents . Payment shall be made in accordance with the Itemized Bid Schedule attached as Exhibit "A" and made a part of this agreement. Article 2 . COMMENCEMENT AND COMPLETION; LIQUIDATED DAMAGES : As time is of the essence, the Contractor will be required to commence work under this contract within ten (10) calendar days after receipt of the notice-to-proceed and shall complete the project as specified in the Supplementary Conditions, Paragraph F. Project completion must occur prior to May 1 , 2006. The undersigned CONTRACTOR agrees, if the Work is not substantially complete by May 1 , 2006, to demobilize completely from the project site and to fully remobilize to the project site on November 1 , 2006, [the end of the 2006 turtle season] at no additional mobilization/demobilization cost to the County and thereafter to complete the Work at the same unit price per cubic yard as set forth in this Contract in lieu of liquidated damages. The , foregoing liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by OWNER as a consequence of such delay, and both parties desiring to obviate any question or dispute concerning the amount of such damages and the cost and effect of the failure of CONTRACTOR to complete the Contract on time. In addition to the above-stated liquidated damages, the CONTRACTOR shall be responsible for reimbursing OWNER for all costs incurred by OWNER to third party consultants including without limiting the generality of the foregoing, any ENGINEER in administering the construction of the Project beyond the Substantial Completion date as specified in the Contract or beyond an approved extension of time granted to CONTRACTOR, whichever date is later. AGREEMENT A-1 Article 3 . THE CONTRACT SUM: The COUNTY will pay the CONTRACTOR for performance of the Contract, subject to additions and deductions provided therein, in current funds as follows : Numerical Amount $- 13 , 991 , 302 . 15 Written Amount Thirteen Million , Nine Hundred Ninety One Thousand , Three Hundred Two and 15/ 100 Article 4. PAYMENT AND RETAINAGE : 4. 1 . 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. at not less than monthly intervals. The request must be made to the OWNER on an approved form showing the component breakdown of the work for each item completed at the time of the request. 4.2 . 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 (51/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. 4.3 Each request for a progress payment shall be submitted on the application for payment 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 (501/0) 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, and the County 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 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)(c)(2005) , Contractor further acknowledges and agrees that: 1 ) the County 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 .)) Contractor will not seek release from the County of the withheld retainage until the final pay request. AGREEMENT A-2 4 .4. Paragraphs 4.2 and 4.3 do not apply to construction services Work purchased by the County as Owner which are paid for, in whole or in part, with federal fiords 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. 4 . 5 . CONTRACTOR shall allow adequate processing time for County Commission final acceptance and approval for final payment in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218 .70 et. seq. 4.5 .The CONTRACTOR shall make the following certification (Affidavit) on each Request for Payment: "I hereby certify that the labor and materials listed on this Request for Payment have been used in the construction of this Work and payment received from the last request for payment has been used to make payments to all subcontractors, laborers, material, men and suppliers except as listed below : 4 .7. Notice of Non-Payment. If one or more "Notice of Non-Payment" or "Notice to OWNER" is received by the OWNER, no further payments will be approved until non-payment(s) have been satisfied and a "Lien Waiver" for each "Notice" has been submitted to the OWNER. Upon request, CONTRACTOR shall furnish acceptable evidence that all such claims have been satisfied. The CONTRACTOR may, with consent of Surety and indemnification of the COUNTY against any claims, receive payment for work for which there is an outstanding Notice of Non-Payment or Notice to OWNER. Article 5 . ACCEPTANCE AND FINAL PAYMENT: Upon receipt of written notice that the work is ready for final inspection and acceptance, the OWNER/ENGMER will promptly make such inspection and when the OWNER/ENGINEER finds the work acceptable under the terms of the Contract and the Contract fully performed, the OWNERIENGINEER 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. Before issuance of a final completion certificate, the contractor shall submit evidence satisfactory to the COUNTY that all payrolls, material bills, and other indebtedness connected with the work have been paid. An affidavit must be submitted by the CONTRACTOR to the OWNER stating that all indebtedness connected with the work has been paid. Such affidavit will be signed by a duly authorized officer of the contractor, will, bear the firm's seal, and will be notarized and attested by two witnesses. A Waiver-of-Lien form signed by a duly authorized officer of all Subcon- tractors, notarized and attested by two witnesses is required from each Subcontractor engaged under the scope of tlris Contract, and must accompany the request for final payment. AGREEMENT A-3 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 this Work and for every act and neglect of the OWNER and others relating to or arising out of this Work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or his/her sureties from any obligations under the Contract Documents or the Payment and Performance Bonds. Article 6. INDEMNIFICATION: CONTRACTOR agrees to indemnify and hold harmless the OWNER, together with its agents, 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 intentionally wrongful conduct of the CONTRACTOR and persons employed or utilized by the CONTRACTOR in the performance of this Contract. This indemnification and hold harmless provision shall survive the termination or expiration of this Contract. Article 7. PUBLIC CONSTRUCTION PAYMENT AND PERFORMANCE BOND : The CONTRACTOR shall furnish the COUNTY immediately upon execution of this Contract a Performance Bond in an amount equal to 125% of the contract price and a Payment Bond in an amount equal to 100% of the contract price, conditioned upon the performance of this Contract by the CONTRACTOR in accordance with the terms and conditions hereof, within the time herein provided, and with the additional obligation that such CONTRACTOR shall promptly make payments to all persons supplying him labor, materials and supplies, used directly or indirectly by the said CONTRACTOR in the prosecution of the work provided for in this Contract. The Surety shall be authorized to issue surety bonds in Florida and be included in the most recent United States Department of Treasury List of Acceptable Sureties. Bidder shall require the attorney-in-fact, who executed the Payment Bond and the Performance Bond, to affix to each a current certified copy of their Power of Attorney, reflecting such person's authority as Power of Attorney in the State of Florida. Further, at the -time of execution of the Contract, the successful Bidder shall provide a copy of the Surety's current valid Certificate of Authority issued by the United States Department of the Treasury under 31 United States Code sections 9304- 9308 . Each of the Payment Bond and Performance Bond shall be submitted in the forms furnished herewith The CONTRACTOR shall provide two separate bonds; a combined Payment and. Performance Bond for 125 % of the contract price is not an acceptable substitute. Article 8 . REMEDIES AND CHOICE OF LAW : This Agreement shall be governed by the laws of the State of Florida. Any legal actions instituted under this Agreement that are justiciable in state court shall be instituted in Indian River County. Any legal actions instituted under this Agreement that are justiciable in federal court shall be instituted in 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. AGREEMENT A-4 No single or partial exercise by any party or any right, power, or remedy hereunder shall preclude any other or further exercise thereof. Article 9 . GENERAL PROVISIONS 9_1 Independent Contractor. The parties expressly recognize that the relationship between the COUNTY and CONTRACTOR is that of OWNER and independent contractor, and that neither the CONTRACTOR nor any of his servants, agents, or employees shall ever be considered to be an agent, servant or employee of the . COUNTY . 9 .2 . Pledge of Credit. The CONTRACTOR shall not pledge the COUNTY' 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_3 . 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_4. Public Records. The COUNTY and the CONTRACTOR shall comply with the provisions of Chapter 119, Florida Statutes (Public Records Law) in connection with this Agreement. 9_5 . Notices. All notices, requests, demands, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be (as elected by the person giving such notice) hand delivered by messenger; delivered by commercial overnight courier service; sent by facsimile/telecopier; or mailed by registered or certified mail (postage prepaid) return receipt requested and addressed to: As to COUNTY: Jonathan Gorham, Ph.D. Department: Indian River County Public Works Dept. Address: 1840 25`x' Street Vero Beach, FL 32960 With a required copy to : Mr. James Gray, Jr. (address as above) As to CONTRACTOR: W . F . Pagendarm , Vice President , Great• Lakes Dredge & Dock Company , LLC 2122 York Road , Oak Brook , IL 60523 phone : 630 - 574 - 3000 AGREEMENT A-4 A or to such other address as any party may designate by notice complying with the terms of this Section. Each such notice shall be deemed delivered and effective on the date of hand delivery, or on the second day after the date of deposit of notice with an overnight courier service, or on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed. IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and year first written above. (C TRACTOR) W . F . Pagendarm , Vice President Signed and sealed by the Great Lakes Dredge & Doc/ck/ Company , LLC CONTRACTOR in the presence of: Attest G.//tc %Orl � / /yitCN�S. nJ INDIAN RIVER COUNTY ' (OWNER) r Ca a tf- 419 �c;;)C A�' ' XAJ Atte t Arthur R. NeubdrgNbr, Chair d ) Jeffrey K Barton;�Icik ; iS t (Seal) APPROVED eph A. Baird, ounty Administrator APPROVED AS TO FORM L GAL UFFICIENCY i iamG. Collins , Co to ey AGREEMENT A-5