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HomeMy WebLinkAboutAgenda - 02-15-2011 - 4mORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 15, 2011 Action Agenda Item No. ~- -rYl SUBJECT: Bid Award: Whiffed Health and Dental Renovations DEPARTMENT: Asset Management, Health, PUBLIC HEARING: (YIN) No and Financial Services ATTACHMENT(S): A) Certified Bid Tabulation B) Comparative Costs C) Contract PURPOSE: To consider: INFORMATION CONTACT: Pam Jones, Asset Management, 245-2652 Rosemary Summers, Health, 245-2411 Jeff Thompson, Asset Management, 245-2658 David Cannell, Financial Services, 245-2651 Michael Talbert, Financial Services, 245-2153 • Awarding a general construction contract to H.M. Kern, Greensboro, NC, in the amount of $763,800 for the Health and Dental renovations, including the structural repairs to the Building A; and • Authorizing the installation of a sprinkler system in Building A; and authorizing the Manager to sign a corresponding change order to effect the work. BACKGROUND: On December 14, 2010, the BOCC approved the scope and design of the Whiffed Health and Dental renovations and authorized staff to solicit bids for the related work. This project ensures quality facilities for Health and Dental operations for at least the next 7 to 10 years. The plan, while not "new-building" perfect, effectively uses the existing Whiffed structure to deliver good quality clinic space in a reasonable timeframe and at a reasonable cost. Competitive bids were opened on January 19, 2011 (see Attachment A, "Certified Bid Tabulation"). The full scope of work for renovation of space proposed for the new Health and expanded Dental clinic was included in the base bid. Alternates were included for work to correct long-standing deficiencies in the structure on both the first and second levels of Building A; and to make needed Building Code improvements. These items were bid as alternates in order to segregate pricing and to allow flexibility should budget constraints become an issue. Pricing submitted for the renovation work, including the alternates for structural work, is well within the available funding and is therefore recommended for award. H.M. Kern is the apparent low bidder at $763,800, including structural work. One of the required code improvements is to create "rated hallways" on both the upper and lower levels. This involves wrapping the structure with drywall in a manner that creates three- hourfire rated walls in corridors leading to an outside exit. The cost for this work is $53,300 as reflected in alternates #1 and #5. Parallel with the discussion regarding "rated hallways" is the potential for the Hillsborough Arts Commission ("HAC") to use the old Library space at the Whiffed Building, or some other future yet undetermined activity. The Board may recall on November 18, 2010, it authorized the Manager to engage the Town of Hillsborough with regard to its interest in the 1St level of Building A as a location for the Hillsborough Arts Commission. HAC has explored the facility for such use, and would need an "Assembly" rating for the space, triggering the need for a full sprinkler system within the entire Building A. Currently, the building carries a "Business" rating that does not require a sprinkler system. If a sprinkler system were to be installed, then the work included for "rated hallways" would not be needed. The cost of a sprinkler system for Building A has been estimated at $190,000. Installation of the sprinkler system is recommended. While the impetus for installing a sprinkler came from the revised usage by HAC, the County would derive significant protection from having the facility sprinkled; and a sprinkled building would provide the greatest flexibility for future use. Since operations of the Health Department and other occupants of the building would be significantly disrupted should the sprinkler not be installed in conjunction with the renovation project, installation is recommended at this time. If the Board should choose not to move forward with the installation of a sprinkler system, the bid awardee would change (see Attachment B). Attachment B, "Comparative Costs" illustrates the comparison of: 1) the original staff prepared schematic cost estimate and the recommended base bid and alternate packages for both sprinkled and un-sprinkled scenarios; 2) the schematic estimate for the sprinkler system. The timeline presented to the BOCC on December 14, 2010 by which the project would be delivered is as follows: TASK PROPOSED BEGINNING DATE END BY DATE BOCC Action: A royal of lans for the renovation of s ace 12/14/10 12/14/10 Biddin hase 12/20/10 1/19/11 BOCC Action: Bid Award 2/15/11 2/15/11 Phase (Construction - A Buildin est. 90 da duration ,Health Clinic move 2/16/11 5/23/11 Phase II Construction - B Buildin est. 45 da duration 5/26/11 7/11/11 Dental move from Carr Mill 7/25/11 7/29/11 FINANCIAL IMPACT: On December 14, $1,470,000. Adequate funding is availabl Capital Project and the Dental Equipment Project Fund. 2010, the BOCC approved a project budget of e for the project within the Medicaid Maximization Capital Project which are in the County Capital Project Revenues: Medicaid Maximization Capital Project $1, 370,000 Dental Capital Equipment Capital Project $ 100.000 Total: $1,470,000 Project Expenditures: General Construction Bid Award $ 763,800 Sprinkler System Estimated Cost $ 190,000 Design, Furnishings, & Equipment Cost $ 280,756 Contingency/Unforeseen Conditions $ 235,444 Total: $1,470,000 RECOMMENDATION(S): The Manager recommends that the Board: 1.) Award the bid and approve a general construction contract to H.M. Kern of Greensboro, NC in the amount of $763,800 for the renovation of the Whitted Health and Dental Clinics; 2.) Authorize the Chair to sign the contract on behalf of the Board of County Commissioners, subject to final review by the County Attorney; 3.) Approve the .sprinkler system installation for Building A in coordination with the general construction; and 4.) Authorize the Manager to execute individual change orders within the limit of his authority ($250,000) up to the extent of the project budget, specifically authorizing the approval of a change order for the installation of a sprinkler system for Building A. ~-y~- a CORLEY REDFOOT ZACK, >N~. BID TABULATION Orange County Health Department Renovations 300 W. Tryon St., Hillsborough, NC CRZ #1001 3:00 PM, January 19, 2011 Bids as shown on the two pages attached, received at 3:00 PM, January 19, 2011, have been checked and validated and are hereby certified as correct. enneth a oot, AIA, LEED AP P nt a a:, ~ ~~, ,p J'n~, ~.'~~.IJ~~ i!~~y r^ t.a p e ~'/ ~~f7~ ~ m ~~°:~.~ 4 °o ~,,,°°:°°~` 2v 2a~/ CORLEY REDFOOT ZACK, ~~. BID TABULATION Orange County Health Department Renovations 300 West Tryon Street, Hillsborough, NC CRZ #1001 3:00 PM, January 19, 2011 CONTRACTOR License No. 5% Bid Bond MINORITY BUS. FORMS Add. Recd BASE BID AIM Construction Contracting No bid Bar Construction Co. 7973 Yes Yes Yes $ 714,500 Bordeaux Construction Co. 9266 Yes Yes Yes $ 723,820 Colmar Contracting No bid Harrod & Assoc Constructors 32791 Yes Yes Yes $ 708,000 Inland Construction Co. 2487 Yes Yes Yes $ 707,000 H. M. Kern Corp. 8542 Yes Yes Yes $ 673,000 Lomax Construction 37571 Yes Yes Yes $ 733,200 Mixon Construction Co. 27303 Yes Yes Yes $ 742,000 J. Wayne Poole, Inc. 8553 Yes Yes Yes $ 707,700 Professional Building Systems 35341 Yes Yes Yes $ 863,594.61 Progressive Contracting Co. No bid The Resolute Building Co. 14397 Yes Yes Yes $ 682,700 Riggs-Harrod Builders 18667 Yes Yes Yes $ 667,91 I S&S Building and Development 61690 Yes Yes Yes $ 697,900 D. S. Simmons, Inc. 7651. Yes Yes Yes $ 742,000 Stonewall Construction Services 53398 Yes Yes Yes $ 717,317 Van Thomas Contractor 2560 Yes Yes Yes $ 757,000 C. T. Wilson Construction No bid DOT Construction, Inc. * 48092 Yes Yes Yes $1,050,410 * Did not obtain CDs from the Designer Page 1 of 2 Orange Co. Health Department Renovations Bid Tabulation, 1/19/11, page 2 of 2 CONTRACTOR Alt. #1-Struct. Alt. #2 -Code Alt. #3 -Struct. Alt. #4 -Work Alt. #5 - Reinf. of 2"d FI. Bldg. A Improvements of 2"~ Fl. Bldg. A Reinf. of lg` FI. Bldg. A Assoc. with Separate Renovate East Wing of 2"d Fl. Contract for Automatic Fire Suppression Sys. Bld . A AIM .Construction No bid Contracting Bar Construction $44,900 $30,000 $35,000 $5,750 $9,500 Bordeaux $33,969 $29,040 $32,073 $2,500 $30,702 Construction Co. Colmar No bid Contracting Harrod & Assoc $39,000 $27,000 $62,000 N/C $32,000 Constructors Inland Const. Co. $27,654 $21,669 $30,078 $(3,500) $22,158 H. M. Kern Corp. $26,000 $27,000 $27,300 $(1,500) $39,000 Lomax $37,000 $30,100, $30,500 $(1,500) $56,500 Construction Mixon $28,200 $26,500 $28,500 $(12,333) $34,500 Construction Co. J. Wayne Poole, $18,594 $12,668 $21,874 $3,500 $19,598 Inc Professional $45,900 $33,300 $46,300 $(3,210) $50,550 Building Systems Progressive No bid Contracting Co. The Resolute $31,700 $26,700 $31,500 $(5,000) $32,000 Building Co. ' Riggs-Harrod $42,500 $36,000 $36,000 $65,000 $35,500 Builders S&S Building and $28,600 $22,500 $70,200 $(10,500) $31,200 Development ' D. S. Simmons. $5,200 $34,000 $40,000 $23,200 $34,000 Stonewall $19,675 $18,221 $68,485 n/c $31,013 Construction Svcs Van Thomas $40,500 $41,000 $38,000 $(12,600) $43,800 Contractor C. T. Wilson No bid DOT Const. * $42,289 $27,317 $46,480 $(22,753) $14,933 * Did not obtain CDs from Designer Attachment B: Comparative Costs Schematic Estimate (12/14/10) Base Bid 885,035 Structural Alternates 80,000 Code Improvements, assuming no sprinkler 40,000 Base building adjustments due to sprinkler installation 0 2nd Flr Board, Classroom Renovation Alternate 0 Sub-Total 1,005,035 Responsive Low Bidder, Responsive Low Bidder, Assuming Sprinkler Assuming No Sprinkler (1/19/111, H.M. Kern) (1/19/11, J, Wayne Poole) 673,000 707,700 53,300 40,468 not required -1,500 39,000 12,668 not required 19,598 780,43 ~{/~~,~~~1 G [Departmental Use Only] TITLE Whitted Renovation FY NORTH CAROLINA ORANGE COUNTY CONSTRUCTION AGREEMENT UNDER $1,000,000.00 THIS CONSTRUCTION AGREEMENT (hereinafter called "Agreement"), made as of the 16th day of February, 2011, by and between H.M. Kern Corporation, (hereinafter called the "Contractor"), and Orange County, a body politic and a political subdivision of the State of North Carolina, (hereinafter called the "Owner"). WITNESSETH: That the Contractor and the Owner, for the consideration herein named, agree as follows: 1. CONTRACT DOCUMENTS; PRIORITY The Contract Documents consist of this Agreement, the Request for Proposals, Proposal, Construction Drawings and Written Specifications. The Contract Documents form the Contract and are fully incorporated herein. In the event of any inconsistency between or among the Contract Documents the Contract Documents shall be interpreted in the following order of priority: a. This Agreement. b. Designer Approved Bulletins and/or Field Orders. c. Request for Proposals and addenda thereto. d. Proposal. 2. SCOPE OF WORK The Contractor shall furnish and deliver all of the materials, and perform all of the work required by this Agreement within the time period stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner and in accordance with the following enumerated documents, which are made a part hereof as if fully contained herein: a. Construction Drawings prepared by Corley, Redfoot, Zack Architects, Inc. ("Designer") (Sheet sections G1.0 through G.1; C1.0 through C2.1; A1.0 through A3.1; 52.1 through 52.2; P1.0 through P4.0; M1.0 through M4.0; E1.0 through E4.0; and D.1 through D.4; all sheets dated 12/20/2010; and Addendum 1 dated 12/28/2010; Addendum 2 dated 1 /5/2011; Addendum 3 dated 1 /7/2011; Addendum 4 dated 1 / 13/2011; Addendum 5 dated 1/14/2011, and Project Specifications entitled "Orange County Health Department Renovations Construction Document Bid Set Project Manual" dated 12/20/2011) b. Written specifications prepared by the project engineer. c. Project proposal dated January 19, 2011 which fully describes the work to be performed, such work (hereinafter called the "Work"). 8 Revised December 2010 ~ 9 d. Related documents listed under Section 1 above. 3. TERM AND SCHEDULING a. The Contractor agrees to commence work pursuant to the written Notice-to Proceed. b. The Contractor agrees to complete substantially all Work included by July 26, 2011, or One Hundred Sixty (160) Days after the issuance of the written Notice-to-Proceed. The Notice-to-Proceed will occur no later than ten (10) days after the execution of this Contract or when the demolition permits are received by the Contractor, whichever is later. Base bid Work components per the Contract Documents are to be substantially complete by July 1, 2011, or One Hundred Thirty Five (135) Days after the issuance of the written Notice- to-Proceed. Time is of the essence with respect to all dates specified in the Contract Documents as Completion Dates. d. The Contractor shall perform the Work in the time, manner and form required by the Contract Documents and as stipulated in a written Notice-to-Proceed to be executed by the Contractor and Owner. e. It is expressly understood that the Owner will employ other contractors to perform work as a part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the Contractor. It shall be necessary for the Contractor to coordinate its activities with such other contractors, particularly with respect to access to work areas, storage of materials and other common facilities. £ Should the Owner determine that the Contractor is behind schedule Owner may require, at no additional cost to the Owner, the Contractor to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform the Work in accordance with the approved project schedule. 4. STANDARD OF CARE a. 'The Contractor shall exercise reasonable care and diligence in performing the Work in accordance with the highest generally accepted standards of this type of Contractor practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Contractor is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work. b. The Contractor shall not load or permit any part of the Work to be loaded with a weight that will endanger its safety, intended performance or configuration. c. Contractor shall be responsible for all errors or .omissions, in the performance of the Agreement. Contractor shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the Owner. Revised December 2010 2 ~o d. Contractor is an independent contractor of Owner. Any and all employees of the Contractor engaged by the Contractor in the performance of any work or services required of the Contractor under this Agreement, shall be considered employees or agents of the Contractor only and not of the Owner, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Contractor. e. Contractor agrees that Contractor, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Contractor's services under this Agreement. f. If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Contractor represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 5. PAYMENT & TAXES a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to- exceed Seven Hundred Sixty Three Thousand Eight Hundred Dollars ($763,800). Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner's Representative, generally the architect if an architect is retained on the Work, a Request for Payment for work done during the previous calendar month. i. The Request for Payment shall be in form of a standardized invoice or AIA Document G702-703 appropriately addressed to Owner's Representative at Corley, Redfoot, Zack Architects, Inc., PO Box 2368, Chapel Hill, NC 27515-2368 and shall show substantially the value of work done during the previous calendar month. ii. The amount due for payment shall be ninety percent (90%) of the value of work completed since the last Request for Payment and this amount shall be paid by the Owner on or before the last business day of the month. Owner shall retain ten percent (10%). 1. Upon Owner's Representative's certification that seventy-five percent (75%) of the Work has been satisfactorily completed retainage shall be reduced to five percent (5%). Retainage may be waived, at Owner's Discretion, so long as work continues to be completed satisfactorily and on schedule. iii. Final payment shall not be due to the Contractor until thirty (30) days after one hundred percent (100%) of the Work, including punch list work, has been satisfactorily completed and an appropriate affidavit as required in Section 7(c) below has been received by Owner. b. Should Owner reasonably determine that Contractor has failed to perform the Work related to a Request for Payment, Owner, at its discretion may provide the Contractor ten (10) days to cure the breach. Owner may withhold the accompanying payment without penalty until such time as Contractor cures the breach. i. Should Contractor or its representatives fail to cure the breach within ten (10) days, or fail to reasonably agree to such modified schedule, Owner may immediately Revised December 2010 3 11 terminate this Agreement in writing, without penalty or incurring further obligation to Contractor. . ii. This section shall not be interpreted to limit the definition of breach to the failure to perform the Work related to a Request for Payment. c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any authority on the Work or the labor and materials used therein. It shall be the Contractor's responsibility to furnish the Owner documentary evidence showing the materials used and sales and use tax paid by the Contractor and each of its subcontractors. 6. INSURANCE AND BONDS a. Minimum requirements -The Contractor shall obtain, at its sole expense, all insurance required under this Agreement and the Contractor shall not commence work until such insurance is in force nor shall the Contractor allow any Subcontractor to commence work on its subcontract until all insurance required to be procured by Subcontractors hereunder has been so obtained by or for the Subcontractor. All required insurance shall be procured from insurance companies licensed to do business in North Carolina with a Best's Insurance Guide Rating of A- or better. Coverage for the following types of insurance shall be maintained continuously during the life of the Project until Final Completion of the Work. Coverages shall be maintained continuously during the life of the Project until Final Completion of the Work for the following types of insurance in the amounts listed: i. Worker's Compensation Insurance with limits for Coverage AStatutory -State of North Carolina and Coverage B Employers Liability $500,000 each accident and policy limit and disease each employee. ii. Comprehensive General Liability and Property Damage Insurance ($500,000 Each Occurrence; $1,000,000 Aggregate). iii. Contractual Liability (Bodily Injury and Property Damage $500,000 Each Occurrence; Property Damage $1,000,000 Aggregate). iv. Personal Injury, with Employment Exclusion deleted ($1,000,000 Aggregate). v. Comprehensive Automobile Liability Insurance (Bodily Injury $100,000 Each Person/Each Accident, $300,000 Each Occurrence; Property Damage $100,000 Each Occurrence). b. Additional Insured -The Owner shall be named as additional insured on all forms of insurance except Worker's Compensation. Each certificate of insurance and policy required hereunder, except the worker's compensation policy, shall bear the provision that "The policy cannot be canceled or reduced in amount and that coverage cannot be eliminated in less than thirty (30) days after mailing written notice to the Owner of such alteration, cancellation, or elimination, the written notice to be sent by Certified Mail." c. Performance Bonds -Contractor shall furnish bonds covering the faithful performance of the Contract and payment of all obligations arising under any of the Contract Documents or related in any way to the Work. Contractor shall immediately furnish a copy of such Revised December 2010 4 12 bonds to any requesting person who appears to be a potential beneficiary of bonds covering payment obligations arising under any of the Contract Documents. 7. INDEMNITY a. The Contractor shall indemnify and hold harmless to the extent permitted by law the Owner and its agents and employees from and against any and all claims, damages, losses and expenses, including attorney's fees, arising out of or resulting from the performance or nonperformance of the Work, provided that any such claim, damages, loss or expense (A) is attributable to bodily injury, sickness, disease or death or injury to, or destruction of, property, including the loss of use resulting therefrom; and (B) is caused in whole or in part by any breach of any provision of the Agreement or by any negligent or wrongful act or omission of the Contractor, any Subcontractor, or supplier of the Contractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The indemnification obligation under this paragraph shall not be limited in any way by any limitation of the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' compensation acts, disability benefits acts or other employee benefit acts. b. The Contractor shall indemnify and hold harmless Owner from any lien of whatever type through the purchase of appropriate bonds and insurance as designated in Section 6 above. c. Upon completion of the Work the Contractor shall execute an affidavit stating there are no unpaid debts for any work that has been done or materials that have been furnished to the Project prior to and as of the date of substantial completion and further stating that Contractor shall indemnify, save and protect Owner and Owner's lender, if any, harmless from and against any and all claims, liabilities, losses, damages, causes of action, and expenses (including court costs and reasonable attorney's fees related thereto) arising out of, in connection with, or resulting from any such debts and liens in a form and substance mutually acceptable to Owner and Contractor. d. By executing this Agreement Contractor agrees to abide by and be bound by the indemnification provisions of Section 7(c) above. 8. DISPUTE RESOLUTION AND GOVERNING LAW a. Owner and Contractor agree that should a dispute arise as to the terms of the Contract Documents the architect shall serve as the initial decision-maker, unless there is no architect retrained on the project related to the Work. Owner and Contractor further agree as follows: i. If there is no architect retained for the Work, Owner and Contractor agree, prior to the initiation of any civil litigation, to submit to mediation by agreeing on an individual to serve as mediator to mediate the dispute. ii. Should the Owner and Contractor fail to mutually agree on an individual to serve as mediator Owner may select a mediator to mediate the dispute. iii. Any mediator selected under this section shall be an attorney licensed to practice law in the State of North Carolina and shall be generally recognized as having experience in mediating construction disputes. iv. Owner and Contractor agree to equally share in the cost of a mediator selected under this section. Revised December 2010 5 13 b. The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement or the Contract shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. c. Notice of any claim by Owner or Contractor must be initiated by written notice to the other Party within thirty (30) days of the occurrence of the event giving rise to the claim or within thirty (30) days of the discovery of the event or condition giving rise to the claim, whichever is later. i. Should any claim be made, regardless of whether such claim is made by Owner or Contractor, Contractor shall continue to faithfully and diligently perform the Work in such a manner as to meet all scheduled timelines. Any failure to faithfully and diligently perform the Work may be deemed, by the Owner, a breach of the Contract. ii. If a claim is made such claim shall be made to the initial decision maker, if applicable, who may request more supporting data, reject the claim in whole or in part, approve the claim in whole or in part or advise the parties the claim is unable to be resolved. iii. If a claim is made by the Owner the Owner may, but is not obligated to, notify the surety. 9. NON-APPROPRIATION a. Contractor acknowledges that Owner is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. b. In the event that public funds are unavailable and not appropriated for the performance of Owner's obligations under this Agreement, then this Agreement shall automatically expire without penalty to Owner immediately upon written notice to Contractor of the unavailability and non-appropriation of public funds. It is expressly agreed that Owner shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the Owner's statutory authority, mandate andlor mandated functions, by state and/or federal legislative or regulatory action, which adversely affects Owner's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to Owner upon written notice to Contractor of such limitation or change in Owner's legal authority. 10. NOTICES Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Owner: Contractor: Orange County H.M. Kern Corporation Attn: Pamela Jones Peter Upchurch Revised December 2010 6 14 P.O. Box 8181 P.O. Box 19424 Hillsborough, NC 27278 Greensboro, NC 27419 11. MISCELLANEOUS a. Duties and Obligations imposed by the Contract Documents shall be in addition to any Duties and Obligations imposed by state, federal or local law, rules, regulations and ordinances. b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or duty granted them under the Contract Documents, nor shall any act or failure to act constitute any approval except as specifically agreed in writing. c. The Work shall be tested and inspected as required by the Contract Documents and as required by law. Unless prohibited by law the costs of all such tests and inspections related to state and federal codes such as ADA, Administrative, Electrical, Plumbing, Mechanical and Building Codes shall be borne by the Contractor. The costs for material and structural testing shall be conducted by an independent third party at the expense of the Owner. Delays related to any of the aforementioned tests and inspections shall not be grounds for delaying the completion of the work. If any such tests and inspections reveal deficiencies in the Work such that the Work does not comply with terms or requirements of the Contract Documents and/or the requirements of any code or law the Contractor is solely responsible for the cost of bringing such deficiencies into compliance with the terms of the Contract Documents and/or any code or law. d. Should the Architect, if an architect is retained for the project involving the Work, or Owner reject any portion of the Work for failing to comply with the Contract Documents Contractor shall immediately, at Contractor's expense, correct the Work. Any such rejection may be made before or after substantial completion. If applicable, any additional expense borne by the Architect under this section shall be paid at Contractor's expense. e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the Owner. 12. CONSEQUENTIAL AND LIQUIDATED DAMAGES a. Owner and Contractor mutually waive any claim against each other for consequential damages. Consequential Damages include: i. Damages incurred by Owner for loss of use, income, financing, or business. ii. Damages incurred by Contractor for office expenses, including personnel, loss of financing, profit, income, business or damage to reputation. b. Liquidated damages shall be in accord with the Contract Documents. 13. TERMINATION OR SUSPENSION a. The Owner may, without cause, order the Contractor to terminate, suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. In the event of termination by the Owner under this Agreement, the Contractor shall be entitled to receive its reasonable and documented direct costs prior to termination, Revised December 2010 7 15 including the cost of materials purchased for the Work which purchases cannot be canceled or which material cannot reasonably be used by the Contractor on other work, and the cost of closing down the work in a safe and efficient manner. i. If Owner orders a delay, suspension or interruption of the Work, and such order is not due to or as a result of any fault on the part of the Contractor, the Contractor may recover a per diem amount at a rate calculated by dividing the Contract General Conditions amount found in the Schedule of Values by the project duration of 160 days. ii. If Contractor elects to accept the amount listed in the General Conditions provision of the Construction Documents Contractor waives any right to further claims for payment of damages sustained as a result of Owner's order to delay, suspend or interrupt the Work. b. Contractor may terminate the Contract if, at the Owner's written direction, the Work is stopped for thirty (30) consecutive days through no act or fault of the Contractor, their agents or employees, or a subcontractor or their agents or employees or any other person performing work pursuant to the Contract Documents. Contractor may terminate the Contract if a Court or other Public authority having jurisdiction enters a lawful order that requires all work to be stopped and such stoppage lasts for thirty (30) consecutive days. 14. ENTIRE AGREEMENT All of the documents listed, referenced or described in this Agreement, the written Notice-to- Proceed, together with Modifications made or issued in accordance herewith are the Contract Documents, and the work, labor, materials and completed construction required by the Contract Documents and all parts thereof is the Work. The Contract Documents constitute the entire agreement between Owner and Contractor. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. If any provision of the Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and date first above written in a number of counterparts, each of which shall, without proof or accounting for other counterparts, be deemed an original contract. ORANGE COUNTY CONTRACTOR Signature Signature Bernadette Pelissier, Chair Orange County Board of Commissioners Attest: Printed Name and Title Donna Baker, Clerk to the Board Revised December 2010 $ 16 This instrument has been approved as to technical content. Pamela Jones, Department Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Office of the Finance Director This instrument has been approved as to legal form and sufficiency. Office of the County Attorney Revised December 2010