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HomeMy WebLinkAbout2011-069 Planning - Pro-Tech Construction, Incorporated for Repairs to Lake Orange Spillway $56,975~~~~ _~...-.~ mC~Op~ [Departmental Use Only] TITLE LakeOrangeSpillway Repairs FY 2011-2012 NORTH CAROLINA CONSTRUCTION AGREEMENT UNDER $100,000.00 ORANGE COUNTY THIS CONSTRUCTION AGREEMENT (hereinafter called "Agreement"}, made as of the ~'9 day of ~~C, 2011, by and between Pro-Tech Construction, Incorporated, (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 furtush 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: a. Construction Drawings prepared by Hazen & Sawyer (Sheet 0001, 5200, 5201, 5202 dated October 2011} b. Written specifications prepared by the project engineer. c. Bid #1634 proposal dated October 26, 2011 which fully describes the work to be performed, such work hereinafter called the "Work". d. Other documents as follows: All bid package documents for Project #1634 that have not been specifically mentioned above, including Contractor's bid submittal form. 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 January 31, 2011, assuming suitable environmental conditions for the work to be performed. b. Time is of the essence with respect to all dates specified in the Contract Documents as Completion Dates. o, The Contractor shall perform the Work in the time, manner and form requixed 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. 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 Revised October 2011 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. Contractor agrees that Contractor, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local anti-discrimination 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 fifty-six thousand nine hundred and seventy-five Dollars ($56,975). 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 the form of a standardized invoice or AIA Document G702 and shall show substantially the value of the work done during the previous calendar month. The amount due for payment shall be ninety-five percent (95%) 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. Final payment shall not be due to the Contractor until thirty (30) days after all work, including punch list 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. Revised October 2011 2 This section shall not be interpreted to limit the defmition 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 bf the Work for the following types of insurance in the amounts listed: i. Worker's Compensation Insurance wi#h 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 seirt 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 bonds to any requesting person who appears to be a potential beneficiary of bonds covering payment obligations arising under any of the Contract Documents. This subsection 6{c) applies only to Contracts of fifty thousand dollars ($50,000.00) or more where the total cost for the project is three hundred thousand dollars ($300,000.00) or more. 6. 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, Revised October 2011 3 including attorney's fees, arising aut 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, ar 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 5 above. In the event any such lien is filed against Owner's property Contractor shall, through such bonds and insurance or at Contractors expense, defend Owner against all such claims of lien. 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 herein and of Section 6(c) specifically. 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 respec# to such suits or actions. 8. NON-ASSIGNMENT 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. 9. NON-APPROPRIATION ° Contractor aclmowledges 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 Revised October 2017 4 Any notice required by this Agreement shall be in writing and delivered by certified ar registered mail, return receipt requested to the following: Owner: Contractor: Orange County Steve Butler Attn:. Kevin Lindley, Planning Dept. Pro-Tech Construction, Inc. P.O. Box 8181 7429 ACC Blvd, Suite 109 Hillsborough, NC 27278 Raleigh, NC 27517 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 Modifica#ions 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 Signature Frank W. Clifton, C T OR Signature ~kvro M 11~Jtt-K,~~l2~a--~ ~Ic.~ Q~51~" Printed Name and Title This i ent has been approv to technical content. Craig Bene ct, Departm irector 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 i um nt has been approved as to legal form and sufficiency. Revised Octab r 2011 5