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HomeMy WebLinkAboutCross Court Resurfacing, Inc, - Trotwood Park Double Basketball Courts Resurfacing Construction Agreement - 2015 01 07TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING CONSTRUCTION AGREEMENT THIS CONSTRUCTION AGREEMENT ("Agreement") is made this &_ day of January, 2015 between the CITY OF WINTER SPRINGS, a Florida municipal corporation ( "OWNER "), whose address is 1126 E. State Road 434, Winter Springs, Florida 32708, and CROSS COURT RESURFACING, INC., a Florida corporation, ( "CONTRACTOR "), whose address is 4250 Alafaya Trail, Suite 212 -237, Oviedo, Florida 32765, as follows: 1. DESCRIPTION OF WORD - CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of the Trotwood Park Double Basketball Courts Resurfacing. The work includes all labor, supplies and other facilities or things necessary to produce such construction, and all materials, equipment, and supplies incorporated or to be incorporated in such construction. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; Exhibits and any Addendums to this Agreement, including, but not limited to CONTRACTOR'S job description dated November 5, 2014, attached hereto as Exhibit "A " and fully incorporated herein by this reference ("WorV); General Conditions, if any; Supplemental Terms and Conditions by the City, if any; and 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; b. Change Orders c. Supplemental Terms and Conditions d. General Terms and Conditions 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 cant' 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 City of Winter Springs /Cross Court Resurfacing, Inc. Trotwood Park Double Basketball Courts Resurfacing Construction Agreement Page 1 of 10 Page 2 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING 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 upon receipt of a Notice to Proceed issued by OMrNER and shall fully complete the work within 30 consecutive calendar days from the date of commencement. Extensions, if any, are authorized by OWNER, and may only be granted in writing. 6. LIQUIDATTEED 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 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 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 $500.00 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 Five Thousand and no /100 Dollars ($59000.00). 8. TERMINATION« DEFAULT BY CONTRACTOR AND ONVNER'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 Page 3 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING 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 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. g. FORCE MAJEJRE - Any delay or failure of either party in the perfonmance 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 involving CO CTOR'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 Maj eure remains in effect for 60 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, voids 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. PAYMENTS — Upon issuance of its Notice to Proceed, OWNER shall pay CONTRACTOR fifty percent (50 %) of the Contract Price. OWNER shall pay CONTRACTOR forty percent (40 %) of the Contract Price upon CONTRACTOR's completion of Work, and upon final inspection and acceptance of the Work by OWNER, OV;NER shall pay CONTRACTOR the remaining ten percent (10 %) of the Contract Price. Payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; Page 4 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING c. Contractor does not make prompt and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or E In the opinion of OWNER, Contractor's work is not progressing satisfactorily. 12. DESIGNATION OF PROJECT MANAGER: 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, Michael Barclay, Recreation Superintendent, 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 Pro ress Re orts. 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 Worksite for Inspections. The OWNER shall be given free access to the .11.11 111111 .�lIII.111111..���1.1111111 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: Recisions on Dis utes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between Contractor and Owner. e. Rejection and Stoppage 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. 13. PROGRESS MEETING -- OWNER'S Project Manager may hold periodic progress during the term of work entered into under this Agreement. CO CTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the OWNER'S Project Manager. 14. RESPONSIBILITIES OF CON'T'RACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follows: Page 5 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING a. Res onsibili for Sul2ervision 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. Disgnfine and Emplo, ,yrnen,t. 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. Furnishin2 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. Pa ment 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. Written Guarantee. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 15. A►.SSIGNMENT - 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 fu11y 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, OWNED. 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. 16. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 17. PROHIBITION AGAINST CONTINGENT FEES - CONTRACTOR wan -ants that it has not employed or retained any company or person, other than a bona fide employee working Page 6 TROTwOOD PARK DOUBLE BASKETBALL COURTS RESURFACING 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. 18. 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. 19. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its officers, employees, and city attorneys (individually and in their official capacity, from liability, losses, damages, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the 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 attorneys which may be 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. 20. 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 perfon-ning work provided hereunder. 21. 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 herein. In support of said representation, CONTRACTOR Page 7 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING agrees to provide a copy of all said licenses to the OWNER prior to the execution of this Agreement. 22. 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 $100,000 as the combined single limit, $500,000 in the aggregate, 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 $1.00,000 combined single limit bodily injury and minimum $100,000 property damage as the combined single limit, $500,000 in the aggregate, 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 lave and Employer's Liability Insurance in the minimum amount of $100,000 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 satisfies the insurance requirements of this Paragraph 22. 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 this Paragraph 22. 23. MEDIATION/VENUE - 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. Page 8 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING 24. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue r for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 25. 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 lave, to recover from the non - prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 26. 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. 27. 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. 28. DOCUMENTS - Public Records: In accordance with section 119.0701, Florida Statutes, CONTRACTOR agrees that all documents, transactions, Writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided by the City pursuant to this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. CONTRACTOR agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this .Agreement. CONTRACTOR also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law. CONTRACTOR shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, CONTRACTOR shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the CONTRACTOR upon termination of this 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 the City in a format that is compatible with the information E technology systems of the City. If CONTRACTOR does not comply with a public records request, the City shall have the right to enforce the provisions of this Paragraph. In the event that CONTRACTOR fails to comply With the provisions of this Paragraph, and the City is required to enforce the provisions of this Paragraph, or the City suffers a third party award of Page 9 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING attorney's fees and/or damages for violating the provisions of Chapter 119, Florida Statutes due to CONTRACTOR's failure to comply with the provisions of this Paragraph, the City shall be entitled to collect from CONTRACTOR prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Paragraph against CONTRACTOR. And, if applicable, the City shall also be entitled to reimbursement of any and all attorney's fees and damages which the City was required to pay a third party because of CONTRACTOR's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement. 29. SOVEREIGN EMAWMTY - 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 768.28, Florida Statutes, 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 claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). 30. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 31. 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. 32. 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. 33. 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. Page 10 TROTWOOD PARK DOUBLE BASKETBALL COURTS RESURFACING Signed, Sealed and Delivered in the presence of: Witness: Print Name: Witness: -rant.. e: 1 ATTEST- 3 Andrea o juaces, City Clerk CONTRACTOR: Cross Court Resurfacing, Inc., a Florida corporation. Print Na : e r Title: Date: 7 �4 City of Winter Springs, a Florida municipal co ation. K n L. S i nager Date: i /� / /,f' ..... .. .. .