HomeMy WebLinkAbout2007-252ATTACHMENT
FIRST AMENDMENT TO CONTRACT DOCUMENTS FOR WEST REGIONAL
WASTEWATER TREATMENT FACILITY EXPANSION TO 6 MGD
This First Amendment to Standard Form of Agreement between Owner and
Contractor on the Basis of a Stipulated Price and to the Supplementary Conditions
("First Amendment") is entered into effective as of July 24, 2007, by and between
INDIAN RIVER COUNTY, a political subdivision of the State of Florida ("County") and
WHARTON-SMITH, INC„ a Florida corporation, 750 Monroe Road, Sanford, FL 32771
("Contractor ,) -
BACKGROUND
BACKGROUND RECITALS
A. Effective May 1, 2007, the County as Owner and the Contractor entered into the
Standard Form of Agreement between Owner and Contractor on the Basis of a
Stipulated Price ("Agreement").
B. The Agreement contains, In Article 4, paragraph 4.1, the lump sum contract price
of $22,172,000.00, and the parties desire to modify the contract price by a series of
deductive change orders, subsequent to this First Amendment, to reflect Owner's direct
purchases of materials.
C. The County and the Contractor desire to amend the Agreement and the Contract
Documents to provide for direct purchases as allowed under applicable Florida law, and
to make certain other conforming changes to the Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally
bound, covenant and agree to amend the Agreement as follows:
1. The Background Recitals are true and correct and form a material part of this First
Amendment;
2. From and after the effective date of this First Amendment, the Agreement will be
amended by adding the direct purchase provisions, set forth on Exhibit "A" attached
hereto and incorporated herein in its entirety by this reference, as new Article 10 of the
Agreement.
3. From and after the effective date of this First Amendment, the Contract
Documents will be amended by amending SC 5.04 CA of the Supplementary Conditions
in its entirety to read as follows:
Contractor's Builders' Risk "AII Risk" [nsurance; — All risk coverage with
limits equal to one hundred percent (100%) of the completed value of the
Work. There shall be a waiver of occupancy endorsement to enable the
Owner to occupy the facility under construction during such activity. The
policy must be endorsed to provide machinery/equipment endorsement
during transit and installation, and Owner direct purchase materials. The
maximum deductible under this coverage is $10,000 per claim, except
Wind Storm coverage which will have a maximum deductible equal to 2
percent of the completed value of the work. In accordance with Article 10
of the Agreement, Indian River County as Owner shall pay the full amount
of any and all deductibles incurred for any loss of Owner direct purchased
materials where such loss result from either (1) the negligence of Indian
River County as Owner or (2) a force majeure event beyond the control of
Owner or Contractor. Notwithstanding the foregoing, Contractor is
responsible for risk of loss to Owner direct purchased materials attributable
to the negligence of Contractor or its agents.
4. Effective September 1, 2007, the address for notices to Owner under the
Agreement shall be as follows; 1801 27°i Street, Vero Beach, FL 32960,
5. All terms and provisions of the Agreement and Contract Documents not amended by
this Amendment shall be and remain in full force and effect. From and after the effective
date of this First Amendment, all references to the Agreement and Contract Documents
shall mean such documents as amended by this First Amendment.
IN WITNESS WHEREOF, the County and the Contractor have caused this First
Amendment to be signed by their respective duly authorized officers as of the day and
year first stated above.
Cact : WHARTON-SMITH, INC.
By:; ,
George E. Smith
Chairman
INDIAN RIVER COUNTY, FLORIDA
BOARD c /COLINTY FO MISSIONE
BRS
/Gary heeler, Chairman
F ,
Attest: J. K. B on, Clerk
By
Deputy; 'C I
(Approved by:
as to form and legal
ey
2
EXHIBIT "A"
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 ("FAC").
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,
FAC, 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 issue the purchase
orders directly to the vendors for the tangible personal property involved in the
Agreement, and the purchase orders 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. 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 from public funds; 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 acquisition by Indian River County as Owner of, or inclusion as the
insured party under, insurance on the building materials.
10.4. Indian River County as Owner desires to comply with the Direct Purchase
Procedures set forth in this Article 10 for purchases of certain items, including, but not
limited to, the following items: concrete; rebar; ductile iron pipe; process valves;
chemical storage tanks; vertical mixers; slide/sluice gates; submersible pumps;
horizontal non -clog pumps; grit equipment; mechanical bar screens; clarifier equipment;
chemical feed skids; sludge thickener; ABW filters; blower equipment; floating aerator;
aeration equipment; hydro tank system; biofilter system; odor control scrubber;
generator; and electrical gear, 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.
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.
10.6 If the State of Florida assesses any sale tax, penalties or interest against the
Contractor or any of the subcontractors or materials suppliers relating to the direct
purchase materials and/or equipment by Indian River County as Owner, such taxes or
charges will be reimbursed by Indian River County as Owner to the Contractor.
TOTAL P.6