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HomeMy WebLinkAboutBeach Construction Company, Inc. Agreement, Oak Forest Reclaimed Water Storage Tank And Pumping 2010 S IN TER S 6' 1%14 CITY OF WINTER SPRINGS, FLORIDA a Z cn F- 1126 EAST STATE ROAD 434 � Incorporate WINTER SPRINGS, FLORIDA 32708 -2799 1959 Telephone (407) 327 -1800 F L 0 RIO P Utility / Public Works Department THIS AGREEMENT MADE THIS DAY OF , 2010 between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as OWNER) and Beach Construction Company. Inc. , a Corporation authorized and duly licensed to do business in the State of Florida (herein referred to as CONTRACTOR), as follows: 1. DESCRIPTION OF WORK - CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of Oak Forest Reclaimed Water Storage Tank and Pumping. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement Exhibits and Addendum to the Agreement the Engineering Plan and Drawings prepared by CPH Engineers, Inc., dated April 2010 ; Bid Documents issued by the City, dated April 25, 2010; Contractor's Bid Submittal, dated June 9, 2010; General Conditions, if any; Supplemental Terms and Conditions by the City, if any; all Change Orders approved by the City after execution of this Agreement. These Contract Documents are hereby incorporated into this Contract by this reference. 3. ORDER OF PRECEDENCE - In case of any inconsistency in any of the documents bearing on the Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be resolved by giving precedence in the following order. a. Agreement Exhibits and Addenda; Contractor's Bid Submittal b. Change Orders c. Supplemental Terms and Conditions d. General Terms and Conditions e. Engineering Plans and Drawings f. [OTHER] Any inconsistency in the work description shall be clarified by the OWNER and performed by the CONTRACTOR. 4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and work descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry out the work in accordance with the decision of the OWNER. When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the OWNER. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. Form 11/25/2009 Page 2 Oak Forest Reclaimed Water Storage and Pumping 5. CONTRACT TIME - The CONTRACTOR shall begin work within 10 days after the issuance of a written Notice to Proceed and shall substantially complete the work of Oak Forest Reclaimed Water Storage and Pumping within 240 calendar days from the date of the Notice to Proceed and complete the work of the Oak Forest Reclaimed Water Storage and Pumping within 270 calendar days of the Notice to Proceed. Extensions, if any, are authorized by OWNER, and may only be granted in writing. 6. 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 substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration preceding the actual loss suffered by OWNER if the Work is not substantially complete 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 $1,148 for each day that expires after the time specified in Paragraph 5 for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. 7. CONTRACT PRICE. UNIT PRICE CONTRACT - The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of One Million Five Hundred Sixty Two Thousand Dollars ($1,562,000.001. Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit Prices included as a part of the Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. TERMINATION: DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES - The OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, in the following circumstances, each of which shall represent a default and breach of this Agreement a. CONTRACTOR defaults in the performance of any material covenant or condition of this Agreement and does not cure such other default within seven (7) calendar days after written notice from the OWNER specifying the default complained of, unless, however, the nature of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within seven (7) calendar days, in which case the CONTRACTOR shall have such time as is reasonably necessary to remedy the default, provided the CONTRACTOR promptly takes and diligently pursues such actions as are necessary therefore; or b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to pay its debts; or c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder, or d. CONTRACTOR has committed any act of fraud upon the OWNER; or e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while performing its obligations under this Agreement or f. CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right, or remedy OWNER may have under this Agreement Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exercise any other remedy the OWNER may have by operation of law, without limitation, and without any further demand or notice. In the event of such termination, OWNER shall be r � Page 3 Oak Forest Reclaimed Water Storage and Pumping liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for Work properly performed prior to the effective date of termination 9. FORCE MAJEURE - Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion; not war, sabotage; strikes (except involving CONTRACTOR's labor force); extraordinary breakdown of or damage to OWNER 's affiliates' generating plants, their equipment, or facilities; court injunction or order, federal and/or state law or regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement 10. SEVERABILITY - In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable 11. PROGRESS PAYMENTS - OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of application for payments submitted to the OWNER or OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance with the Contract Documents. Progress payments may be withheld it a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment fumished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Contractor's work is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price throughout the project in accordance with the Local Govemment Prompt Payment Act ( "Act"). After 50% completion of the project, OWNER shall reduce to 5% the amount of the retainage withheld from each subsequent progress payment made to the CONTRACTOR unless the project is subject to Federal funding, in whole or in part, and the project is subject to laws and regulations contrary to the Act. The term "50% completion of the project" shall mean the point at which the OWNER has expended 50% of the total cost of the construction services purchased under this Agreement together with all costs associated with existing change orders and other additions or modifications to the constructions services provided for in this Agreement After 50% completion, the CONTRACTOR may present to the OWNER a payment request for up to one -half of the retainage held by the OWNER. Owner shall promptly make payment to the CONTRACTOR unless the OWNER has grounds, under the Act, for withholding the payment of the retainage. The remaining retainage amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. OWNER shall make final payment to CONTRACTOR within thirty (30) days after the work is fully and properly completed, if the contract has been fully and timely performed, but subject to the condition that final payment shall not be due until CONTRACTOR has delivered to OWNER a complete release of hens arising out the contract, or Page 4 Oak Forest Reclaimed Water Storage and Pumping receipt releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such claims. By making payments OWNER does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding claims of liens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. 13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER are as follows: a. General Administration of Contract. The primary function of the OWNER is to provide the general administration of the contract In performance of these duties, the Utility Director or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract. b. Inspections. Opinions. and Progress Reports. The OWNER shall be kept familiar with the progress and quality of the work by CONTRACTOR and may make periodic visits to the work site. The OWNER will not be responsible for the means of construction, or for the sequences, methods, and procedures used therein, or for the CONTRACTOR's failure to perform the work in accordance with the Contract Documents. c. Access to Workslte for Inspections. The OWNER shall be given free access to the worksite at all times during work preparation and progress. The Project Manager is not obligated to make exhaustive or continuous on site inspections to perform his duties of checking and reporting on work progress, and any such inspections shall not waive Owner's claim regarding defective work by Contractor. d. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between Contractor and Owner. e. Refection and St000aae of Work. The OWNER shall have authority to reject work which in its opinion does not conform to the Contract Documents, and in this connection may stop the work or a portion thereof, when necessary. f. Payment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the work progresses, based on CONTRACTOR's applications and OWNER's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. 14. PROGRESS MEETING — OWNER'S Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the OWNER, during the term of work entered into under this Agreement. CONTRACTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the OWNER'S Project Manager. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follows: Page 5 Oak Forest Reclaimed Water Storage and Pumping a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely responsible for all construction under this contract, including the techniques, sequences, procedures and means, for the coordination of all work. CONTRACTOR shall supervise and direct the work, and give it all attention necessary for such proper supervision and direction. b. Discipline and Employment CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for work on the project any person unfit or without sufficient skill to perform the job for which he was employed. c. Fumishina of Labor. Materials. etc. CONTRACTOR shall provide and pay for all labor, materials and equipment, including tools, construction equipment and machinery, utilities, including water, transportation, and all other facilities and work necessary for the proper completion of work on the project in accordance with the Contract Documents. d. Payment of Taxes: Procurement of Licenses and Penults. CONTRACTOR shall secure all licenses and permits necessary for proper completion of the work, paying the fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if authorized in the Contract Documents) hold or will secure all trade or professional licenses required by law for CONTRACTOR to undertake the contract work. e. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 16. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, written consent of the OWNER. a. If upon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to provide OWNER and its affiliates with insurance coverage as set forth by the OWNER. 17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. PROHIBITION AGAINST CONTINGENT FEES - CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement 19. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or principal -agent relationship between the parties and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other party. 20. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its officers, employees, and city attomeys (individually and in their official capacity, from liability, losses, damages, and costs, including, but not limited to, reasonable attomey's fees, to the extent caused by the Page 6 Oak Forest Reclaimed Water Storage and Pumping negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and persons employed or utilized by CONTRACTOR in the performance of this Agreement. The indemnification provided above shall obligate the CONTRACTOR to defend at its own expense or to provide for such defense, at the option of the OWNER, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the OWNER or its officers, employees, and city attomeys which may covered by this indemnification. In all events the OWNER and its officers, employees, and city attorneys shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and included with this indemnification provided herein. 21. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, contractors, and agents while performing work provided hereunder. 22. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby represents and warrants to the OWNER the following: a. CONTRACTOR is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for CONTRACTOR has the power, authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution, delivery, and performance hereof by CONTRACTOR has been duly authorized by the board of directors and/or president of CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a copy to the OWNER of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the work stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR agrees to provide a copy of all said licenses to the OWNER prior to the execution of this Agreement. 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in form approved by the OWNER's City Attomey and in accordance with Florida law and in an amount specified in the Contract Documents. 24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. a. The CONTRACTOR shall maintain comprehensive general liability insurance in the minimum amount of $2,000,000 as the combined single limit for each occurrence to protect the CONTRACTOR from claims of property damages which may arise from any Work performed under this Agreement whether such Work are performed by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $1,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non - owned automobiles, including rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability ....__. __.. .. • Page 7 Oak Forest Reclaimed Water Storage and Pumping Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall also be a 30-day advance written notification to the OWNER in the event of cancellation or modification of any stipulated insurance coverage. The OWNER shall be an additional named insured on all stipulated insurance policies as Its interest may appear, from time to time, excluding worker's compensation and professional liability policies. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in these paragraphs for sections 21 and 24. 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Seminole County, Florida. 26. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted, construed, govemed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 27. ATTORNEY'S FEES - Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non - prevailing party the costs and expenses of such action including, but not limited to, reasonable attomey's fees, whether at settlement, trial or on appeal. 28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 29. WORK IS A PRIVATE UNDERTAKING - With regard to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the OWNER and CONTRACTOR is such that the CONTRACTOR is an independent contractor and not an agent of the OWNER. The CONTRACTOR, its contractors, partners, agents, and their employees are independent contractors and not employees of the OWNER. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the OWNER, on one hand, and the CONTRACTOR, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement 30. DOCUMENTS - Public Records: It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the CONTRACTOR and its independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the OWNER or the CONTRACTOR. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the OWNER's City Manager. Upon request by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to the OWNER. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours Page 8 Oak Forest Reclaimed Water Storage and Pumping of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and/or audit. The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any document produced by CONTRACTOR under this Agreement constitutes a Public Record; CONTRACTOR shall comply with the Florida Public Records Law. 31. SOVEREIGN IMMUNITY - Notwithstanding any other provision set forth in this Agreement nothing contained in this Agreement shall be construed as a waiver of the CITY'S right to sovereign immunity under Section 76828, or other limitations imposed on the CITY'S potential liability under state or federal law. As such, the CITY shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the CITY shall not be liable for any daim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other daims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). 32. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 33. INTEGRATION: MODIFICATION - The drafting, execution, and delivery of this Agreement by the Parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both parties. 34. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms, or provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. No waiver, consent, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 35. DRAFTING - OWNER and CONTRACTOR each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 36. NOTICE - Any notices required to be given by the terms of this Agreement shall be delivered by hand or mailed, postage prepaid to: For CONTRACTOR: Beach Construction Company, Inc. P.O. Box 141860 Gainesville, FL 32614 -1860 For OWNER: City of Winter Springs Utility Director, Utility/Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party written notice of the change. Page 9 Oak Forest Reclaimed Water Storage and Pumping Signed, Sealed and Delivered in the presence of: CO .TOR: _ _ _ // ,eAlip __ ... Name 411 _ - - _ or9 // lg. a49e/I Rfath Title 1 , A A 1 I A Pe! 30 X / / Business Address GoaP Scii-e- Al gilmeswi.L. EL . *z6 /y- irco City, State Zip / Date _ OWNER: = ; C I O F W R S N & a _ .., �- - B 1<e L; - -r, '‘, Mana. er 1126 East Stat&iod Winter Springs, FL. $2108 ' 407 -327 -1800