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HomeMy WebLinkAbout2011-023 AMS - Energie Innovations, Inc. - Construction Agreement Under $250,000 for Sportsplex Low E CeilingY ~ ~ ~ ® Please return this Copy to the ~'~ _ Clerk to the Board's office for PAF [Departmental Use Only] TITLE Sportsplex Low E Ceiling FY 2010-11 NORTH CAROLINA CONSTRUCTION AGREEMENT UNDER $250,000.00 ORANGE COUNTY THIS ONSTRUCTION AGREEMENT (hereinafter called "Agreement"), made as of the ~~Tia day of ~E~~~~20 E I , by and between Energie Innovation, Inc. , (hereinafter called the "Contractor"), and. Orange County, a body corporate and 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. 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 attached hereto and made a part hereof as if fully contained herein and prioritized as follows: a. Construction Drawings prepared by N/A (Sheet N/A dated N/A) b. Written specifications prepared by the project engineer. c. Orange County's request #367-1600 ("Attachment A", pages A-1 through A-17) for competitive proposal dated November 9, 2010 which fully describes the work to be performed, such work hereinafter called the "Work". d. Other documents as follows: Contractor Response submitted on 11/22/2010, including executed Addendum 1 and Addendum 2 ("Attachment B, pages B-1 through B-6). 2. TERM AND SCHEDULING a. The Contractor agrees to commence work on the date of the executed original of this Agreement and agrees to complete fully all Work included by Apri130, 2011. b. Time is of the essence with respect to all dates specified in the Contract Documents as Completion Dates. c. 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. d. 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. Revised July 2010 e. Should the Owner determine that the Contractor is behind schedule, it may require 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 at no additional cost to the Owner. 3. 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. 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. 4. 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 Forty Nine Thousand Seven Hundred Eighty Dollars ($49,780.00). Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner a Request for Payment for work done during the previous calendar month. The Request for Payment shall be in form of AIA Document G702 and shall show substantially the value of work done during the previous calendar month. 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. Revised July 2010 2 Final payment shall not be due to the Contractor until thirty (30) days after all work has been satisfactorily completed. 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 seven (7) days to cure the breach. Owner may withhold the accompanying payment without penalty until such time as Contractor cures the breach. Should Contractor or its representatives fail to cure the breach within seven (7) days, or fail to reasonably agree to such modified schedule, Owner may immediately terminate this Agreement in writing, without penalty or incurring further obligation to Contractor. 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. 5. INSURANCE 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 Revised July 2010 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." 6. INDEMNITY 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. 7. GOVERNING LAW 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 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. 8. NON ASSIGNMENT T'he Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the Owner. 9. NON APPROPRIATION 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. 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 and/or 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: Revised July 2010 4 Orange County Energie Innovation, Inc., attn: Ive Baljak P.O. Box 8181 2970 Halpern Street Hillsborough, NC 27278 St-Laurent, Quebec, H4S 1 R2 11. TERMINATION 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, 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. 12. 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 COUNT CONTRACTOR I- 31~k Signature Signa e Frank W. Clift Manager t Jj 4i ~ V-S Printed ame Title 's instrument has been approved as to technical content. !~/Wt f~G... Pamela J ,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 h be n approved as to legal form and sufficiency. Revised July 2010 5 L Office of the County Attorney Revised July 2010