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HomeMy WebLinkAboutWal-Rose, Inc. Agreement (O'Day Drive Pond Improvements) - 2010 11 23 , • . �• CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 � � ��-�� WINTER SPRINGS, FLORIDA 32708-2799 v � � Telephone (407) 327-1800 •- •� Utility / Public Works Department THIS AGREEMENT MADE THIS L�� 4 I DAY OF ��1 C l����'-�'-'"c--� , 2010 between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as OWNER) and Wal-Rose, Inc., a corporation authorized and duly licensed to do business in the State of Flonda (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 the O'Day Drive Pond Improvements. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are 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. Contractors Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Drawings 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. 5. CONTRACT TIME - The CONTRACTOR shall begin work within 10 days after the issuance of a written Notice to Proceed and shall complete the work (Final Completion) within 90 calendar days from the date of the Notice to Proceed. Extensions. if any, are authorized by OWNER. and may only be granted in writing. � � . • Page 2- Wal-Rose Agreement - O'Day Drive Pond ImprovemeMs 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 witf�in the time specified in Paragraph 5 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 arbitra6on preceding the actual loss suffered by OWNER if the Woric 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 ;300.00 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 7 770.50. 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 dces not cure such other defauft within seven (7) calendar days after written notice from the OWNER specifying the defauft 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 t�e 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 Wor1c 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 defauft 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 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; riot; war, sabotage; strikes (except invoNing CONTRACTOR's labor force); extraordinary breakdown of or damage to OWNER 's affiliates' generating plants, their equipment, or facilfies; court injunction or order, federal and/or state law or regulation; order by any regulatory agency; or cause or • Page 3- Wal-Rose Agr+eemerrt — O'Day Drive Pond Improveme�s 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. SEVERABILITI( - In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or othervvise unenforceable by a court of law, the parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustrnent in the affected provision of t�is 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 worlc progresses, and in accordance with the Contract Documents. Progress payments may be withheld ifi 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 woric is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price until 50% completion. After 50% completion, OWNER shall reduce to 5% the amount of retainage withheld from each subsequent progress payment made to the Contractor. For purposes of this section, the term "50- percent completion" shall be the point at which the OWNER has expended 50% of the total cost of the construction services purchased as identified in the Agreement together with all costs associated with existing change orders and other additions or modifications to the 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 OWNER has grounds for withholding the payment of retainage. 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 liens arising out the contract, or receipt releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the altemative a bond satisfactory to OWNER indemnifying him against such claims. By making payments OWNER dces not waive Gaims inGuding but not limited to those relating to: a. Faulty work appearing after substantial comp{etion has been granted; b. Work that dces not comply with the Contract Documents: c. Outstanding claims of liens; or • Page 4- Wal-Rose Agreement — O'Day Drive Pond Improvements 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, Brian Fields, P.E. or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITI� may change the Project Manager during the term of tt�is contract. b. Insuections. Oainions, and Pros�ress Reaorts. The OWNER shall be kept familiar with the progress and quality of the woric 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 tfie work in accordance with the Contract Documents. c. Access to Worksite for Insaections. The OWNER shall be given free access to the worksite at all times during worlc preparation and progress. The Project Manager is not obligated to make exhaustive or continuous on site inspections to petform his duties of checking and reporting on work progress, and any such inspections shall not waive Owners claim regarding defective work by Contractor. d. Intemretation of Contract Documents: Decisions on Disuutes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on Gaims and disputes between Contractor and Owner. e. Reiection and Stooaas�e 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. Pavment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the woric progresses, based on CONTRACTOR's applications and OWNER's inspections and obseroations, 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 monthty 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: a. Responsibilitv for Suaervision 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. Discialine and Emalovmen� CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for woric on the project any person unfit or without sufficient skill to perform the job for which he was employed. c. Fumishins� of Labor. Materia�. etc. CONTRACTOR shall provide and pay for all labor, materials and equipment, inGuding tools, construction equipment and machinery, utilities, including • Page 5- Wal-Rose Agreement - O'Day Drive Pond Improvements water, transportation, and all other facilities and work necessary for the proper completion of worlc on the project in accordance with the Contract Documents. d. Pavment of Taxes: Procurement of Licenses and Permits. 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 ac�ts and/or omissions pe►formed by the subcontractor as rf 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 sih�ation. c. If CONTRACTOR, prior to the commencement of any Woric 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 negligence, recklessness or intentianal 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, empbyees, and city attomeys which may covered by this indemnification. In all events the OWNER and its officers, employees, and city attomeys 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. • Page 6- Wal-Rose Agreement — O'Day Drive Pond Improvemer�ts 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 F{orida, 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 pawer, 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 representa6on, 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 accordance with Florida law and to the satisfaction of OWNER, 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 direcUy 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 operafions 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 Insurance in the minimum amount of $2,000,000 for all of its employees performing Woric 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 expiraaon date. There shall also be a 30�iay 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. • Page 7- Wal-Rose Agreement — O'Day Drive Pond Improvemerrts 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 paragraph 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 8 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 PRNATE 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 befinreen 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, partne�s, 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 of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examinabon 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. • Page 8- Wal-Rose Agreemerrt — O'Day Drive Pond Improvements 31. SOVEREIGN IMMUNITY - �1�sta�ding any ather prYwision set forth in thisAgreement, nothing contained in th� Agreement shali be oanstrued as a waiver of the CITY'S right bo sovereign immunity under Secbon 768.28, or other limitations imposed on the CITY'S pobential liability under state or federal law As such, the CITY shall not be liable, under this Agreemerrt fior punitive damages or infier�est for tlie period befone judgment. Further, tlie CITY shall not be liable for any daim orjudgment, or porGon thereo#, to any one person for mone than one hundred thousand ddlars ($100,000.00), or any daim or judgment, or portion thereof, which, when botaled with all ather daims orjudgment� paid by the Stabe or its agencaes and subdivisans arising out of the same incident or oax�mence, exoeeds the sum of two hundred thousand doltars ($200,000.00). 32. HEADINGS - Paragraph headings are for the �nvenience 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 tt�an 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. Modifica6ans 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 provisron of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. No waiver, consent, or modiftcation 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 considefed 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 For OWNER City of Winter Springs City Engineer, 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- Wa!-Rose Agreemerrt - O'Day Drive Pond Improvements Signed, Seafed and Delivered in the presence ofi CONTRACTOR: . ��� �---- Name �res r a�ent' Title _� o. 3oX 7a8 Business Address �ccn �c �-�I � F L 3� 7 7� City, State Zip Date !$ 1vOV Z 01 O OWNER: CITY OF WINTER SPR+NC;� � � �� - ,. i���k� By: evin L. S ith - �� r ;. ,��� J City Manager 1126 East State Road 434 � Wnter Springs, FL. 32708 : 407-327-1800 . � • CITY OF WINTER SPRINGS � ,` PUBLIC WORKS DEPARTMENT 1126 STATE ROAD 434 Incorporalyd WINTER SPRINGS� FL 32708 19 407-327-7597 • - �' FAX:407-327-6695 MEMORANDUM TO: City Clerk's Office FROM: Brian Fields, City Engineer�� J DATE: November 19, 2010 SUBJ: O'Day Drive Pond Improvements Please request that the City Manager sign both copies of the enclosed Agreement, with witness signatures by the City Clerk. Please keep one copy for your records and retum one to me. This item was authorized by the City Commission at the October 25, 2010 meeting under consent agenda item #202. The Agreement uses the standard construction agreement form prepared by the City Attomey.