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HomeMy WebLinkAbout2013-222 Bid Award – Community Geothermal HVAC – Phase II Agreement Warren Hay Mechanical [Departmental Use Only] TITLE GEO-THERMAL SYSTEM, PH II FY 2013-14 NORTH CAROLINA CONSTRUCTION AGREEMENT OVER$1,000,000.00 ORANGE COUNTY THIS CONSTRUCTION AGREEMENT(hereinafter called "Agreement"), made as of the 19th day of June, 2013, by and between Warren-Hay Mechanical, (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. DEFINITIONS a. Change Order. A written order signed by the Owner authorizing an addition, deletion, or revision in the Work and/or an adjustment in the Contract Price and/or an adjustment in the Date of Substantial Completion. b. Contract Price. Total monies payable to the Contractor pursuant to the Contract Documents. The Contract Price may only be amended by Change Order. c. Contract Documents. All of the documents that make up the agreement between the Owner and Contractor as set out in Section 2. d. Contract Time. The number of calendar days stated in, or computed from, the Contract Documents for the completion of the Work, or any portion thereof. Time of completion as specified therein is of the essence. The time used and referred to on the Project will be that time which is observed in Hillsborough,North Carolina, being Eastern Daylight Savings Time, Eastern Standard Time, or other as designated by the Designer or Owner if no Designer is retained for the Project. e. Designer. The person or firm designated as the Designer in the Contract Documents, or their authorized representatives. The Designer, as referred to herein, shall mean architect, landscape architect, and/or engineer. They will be referred to hereinafter as if each were of the singular number,masculine gender. f. Drawings. Designer approved graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work and generally including plans, elevations, sections, details, schedules, and diagrams. g. Field Order. A written order issued by the Designer which clarifies or interprets the Contract Documents or orders minor changes in the Work in accordance with the Contract Documents. h. Final Completion. The point at which the Contractor has, as determined by the Designer, completed the Work, including punchlist work and the submittal of the Affidavit in section 8(d), with the exception of guaranty and warranty obligations, and becomes entitled, upon the recommendation of the Designer and determination by the Owner,to final payment. Revised November 2011 i. Minor Change. A change or alteration in the Work that does not involve a change in the Contract Price or Contract Time and which is not inconsistent with the overall intent of the Contract Documents. A minor change may be initiated by a Field Order. j. Notice. Notice and/or Written Notice shall mean and include all written notices, demands, instructions and claims approvals and disapprovals furnished by the Owner or Designer to obtain compliance with the requirements of the Contract Documents, as well as all written notices, demands, instructions and claims furnished by the Contractor as required by the Contract Documents. Where notice is required under the terms of the Contract Documents, written notice shall always be required, and oral or "constructive" notice shall be insufficient and ineffective as notice. Email or other electronic delivery shall be insufficient and ineffective as notice. Written notice shall be deemed duly served on the date that it is delivered in person to the individual or to a member of the firm,to an officer of the corporation for whom it is intended,to an authorized representative of such individual, firm or corporation, or on the date that it is mailed by registered or certified mail, return receipt requested, addressed to the last business address of such individual, firm, or corporation known to the person giving the notice. k. Project. The total construction of which the Work performed under the Contract Documents may be the whole or a part. 1. Specifications. That portion of the Contract Documents consisting generally of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work and performance of related services. m. Subcontractor. A person, firm, or corporation who has entered into a direct contract with the Contractor to perform any of the Work at the Project. A Subcontractor may have direct or indirect contracts with persons, firms, or corporations, known as a sub-subcontractor, to perform any of the Work on the Project. n. Submittal. Shop drawings, product data, samples, and other documents required by the Contract Documents to be submitted by the Contractor to the Owner and/or the Designer. o. Substantial Completion. The point at which the Work, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be utilized by the Owner for its intended use, and all necessary permits and permissions for beneficial occupancy and utilization having been obtained. All operations and maintenance manuals, Owner Training, Warranties, and as-built drawings must be submitted within thirty (30) days of substantial completion. p. Work. The construction and services required by the Contract Documents, including all labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. 2. CONTRACT DOCUMENTS; PRIORITY The Contract Documents consist of this Agreement, the Request for Proposals, designer approved communications and/or field orders, the Proposal, Construction Documents and 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: Revised November 2011 2 a. This Agreement. b. Designer approved and stamped construction documents and drawings and written specifications. c. Designer approved communications and/or field orders. d. Request for Proposals and addenda thereto. e. Proposal. 3. SCOPE OF WORK The Contractor shall furnish and deliver all of the materials, and perform, and be fully responsible for 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 Reece,Noland& McElrath (Sheet#s: C1.0, M1.0 through M7.3, E1.0 through E4.0 (19 sheets total) dated April 19, 2013) b. Written specifications prepared by the Designer. c. Specifications for Community Geothermal System, Phase II, Orange County, Hillsborough, North Carolina and three (3) addenda (#I dated May 7, 2013, #2 dated May 9, 2013, and #3 dated May 20, 2013) proposal dated April 19, 2013 which fully describes the work to be performed, such work(hereinafter called the"Work"). d. Related documents listed under Section 2 above. 4. 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 June 30, 2014. c. 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. Owner may deploy its own employees or engage other contractors to perform Work as part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the Contractor. The Contractor shall coordinate construction activities with the Owner or other contractors,particularly with respect to access to work areas, storage of materials, and use of elevators and other common facilities. The Contractor shall cooperate in good faith with the Owner and such other contractors with respect to these matters. Revised November 2011 3 f. Should the Designer or Owner determine that the Contractor is behind schedule and that the Contractor is behind schedule due to any act or failure to act on the part of the Contractor (or one or more subcontractors), the 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. g. Time extensions will not be granted for rain,wind, snow or other natural phenomena of normal intensity for the locality where work is performed. For purpose of determining extent of delay attributable to unusual weather phenomena, a determination shall be made by comparing the weather for the contract period involved with the average of the preceding five (5) year climatic range during the same time interval based on the National Oceanic and Atmospheric Administration National Weather Service statistics for the locality where work is performed and on daily weather logs kept on the job site by the contractor reflecting the effect of the weather on progress of the work and initialed by the Designer or his authorized representative. Time extensions for weather delays do not entitle the Contractor to "extended overhead" recovery. 5. STANDARD OF CARE AND DUTIES OF CONTRACTOR 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. £ 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. Revised November 2011 4 g. The Contractor shall supervise and direct the Work efficiently and with the Contractor's best skill and attention. Except as specifically set forth in the Contract Documents the Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction, and for safety precautions and programs in connection with the Work. The Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents. h. The Contractor shall appoint a competent Project Manager with general authority to manage the Project for the Contractor. The Contractor shall also keep on the Project at all times during the Work of the Contractor a competent Resident Superintendent and necessary assistants who shall not be replaced without prior written approval by the Designer or by the Owner if a Designer is not retained for the Project. i. If, in the opinion of the Designer, any Subcontractor on the Project is incompetent or otherwise unsatisfactory, such Subcontractor shall be replaced by the Contractor with no increase in the Contract Price if and when directed by the Designer. j. The Contractor shall attend all progress conferences and all other meetings or conferences. The Contractor shall be represented at these progress conferences by a representative having the authority of the Project Manager and by such other representatives as the Designer may direct. k. Costs and expenses of providing samples for and assistance in any testing shall be borne by the Contractor. Any Work in which untested materials are used without approval or written permission of the Owner and/or Designer shall be removed and replaced at Contractor's expense. 6. 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 one million, five hundred and seventy-nine thousand, one hundred and ninety three Dollars ($1,579,193). Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner's Representative, generally the Designer if a Designer 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 Asset Management Services, 131 West Margaret Lane, Hillsborough, NC and shall show substantially the value of work done during the previous calendar month. (ii) 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. Owner shall retain five percent (5%) (the "Retainage"). (1) Upon Owner's Representative's certification that ninety percent (90%) of the Work has been satisfactorily completed Retainage may be discontinued. Retainage may be discontinued, 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 Final Completion of the Work, including punch list work, has been satisfactorily completed Revised November 2011 5 and an appropriate Affidavit, Indemnification, and Release as required in Section 8(d) 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 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. d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the Work performed related to a Request for Payment, Owner shall have the authority to withhold payment of the disputed amount until parties resolve their dispute. Failure to pay the Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the Agreement. 7. INSURANCE AND BONDS a. Minimum requirements — The Contractor shall obtain, at its sole expense, all insurance required under this Agreement and the Contractor shall include all Subcontractors as Insureds under its policies, or shall furnish separate certificates, policies, and endorsements for each Subcontractor the Contractor intends to use. If a Subcontractor does not take out insurance in its own name and the Contractor wishes to provide insurance protection for such Subcontractor and such Subcontractor's employees, the Contractor shall either (a) procure appropriate policies in the name of the Subcontractor, or (b) cause a rider or riders to be attached to the Contractor's policies which shall identify the Subcontractor thereby covered; provided however, in the case of the latter option, such a rider need not be attached to the Contractor's worker's compensation policy if such policy by its terms is sufficiently broad to cover the employees of all Subcontractors performing Work under the Contract Documents. 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 A Statutory - State of North Carolina and Coverage B Employers Liability $500,000 each accident and policy limit and disease each employee. Revised November 2011 6 (ii) Comprehensive General Liability and Property Damage Insurance ($1,000,000 Each Occurrence; $2,000,000 Aggregate). (iii) Contractual Liability (Bodily Injury and Property Damage $1,000,000 Each Occurrence;Property Damage $2,000,000 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). (vi) Property Insurance in an amount appropriate to protect the Project from perils of physical loss. The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall include as named insureds the Owner, the Contractor and its Subcontractors and shall insure against the loss from the perils of fire and all risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief,transit, flood, earthquake,testing, damages resulting from defective design,negligent workmanship or defective material. 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 and Payment 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. The bonds shall be in the full amount of the Contract Price and subject to changes in the Contract Price. The bonds shall be dated the same date as this Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bonds on behalf of a surety company licensed to do business in the State of North Carolina. 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. 8. INDEMNITY a. The Contractor shall indemnify and hold harmless 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 (i) is attributable to bodily injury, sickness, disease or death or injury, or destruction of property, including the loss of use resulting therefrom; and (ii) 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. Revised November 2011 7 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 7 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. The Contractor acknowledges that during construction on the Project hazardous or toxic waste, material, chemicals, compounds or substances, or other environmental hazards, contamination or pollution, (referred to hereinafter as "environmental hazards") may be present at the Project site that were not created, generated, or released at the Project site by the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others. Unless the remediation, abatement or handling of such environmental hazards is part of the scope of the Work under this Agreement, then upon the discovery of such environmental hazards, the Contractor shall immediately, and in no event more than three (3) days after such discovery, give notice to the Owner and Designer of the environmental hazards before they are disturbed. The Owner and Designer shall thereupon promptly investigate the environmental hazards, and make such changes in the Drawings and/or Specifications as they may find necessary to abate, remediate, isolate or handle the environmental hazards. Any increase or decrease in the Contract Price or the Contract Time resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work for any environmental hazards existing at, on or in the Project site prior to the date that Work commences under this Agreement unless the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others, by their own negligence or misconduct, release or expose the Owner or third parties to the environmental hazards. d. Upon completion of the Work the Contractor shall execute an affidavit, indemnification, and release 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, liens, 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 claims, liabilities, liens, losses, damages, causes of action, or expenses. Such affidavit, indemnification, and release shall be in a form and substance acceptable to Owner. By executing this Agreement Contractor acknowledges the receipt of adequate consideration in return for said release. e. By executing this Agreement Contractor agrees to abide by and be bound by the indemnification provisions herein and of Section 8(d) specifically. f. The provisions of this Section 8 shall survive the termination or cancellation or completion of this Agreement. g. The Contractor shall cause each Subcontractor to indemnify and hold harmless the Owner and Designer from and against any and all claims, demands, suits, damages, including consequential damages and damages resulting from personal injury or property damage, costs, and expenses and fees that are asserted against the Owner and Designer and that arise out of or result from negligent acts or omissions of the Subcontractors or Contractor or the breach of this Agreement by the Contractor, its employees, agents and representatives in performing the Work. 9. RECORD DOCUMENTS AND SUBMITTALS Revised November 2011 8 a. The Designer shall furnish the Contractor with the approved number of copies of Drawings and Specifications. The Contractor may obtain additional copies at the cost of reproduction and handling. b. The Contractor shall submit to the Designer all Submittals required by the Contract Documents. The Contractor shall submit four (4) reproducible prints of all shop drawings plus the number of copies sufficient for its requirements. The Contractor shall submit samples in quantities required by the Contract Documents. The Contractor shall submit product data in five (5) copies, plus the number of copies sufficient for the Contractor's requirements. All shop drawings shall be reviewed by the Contractor and shall bear the Contractor's stamp of approval before being forwarded to the Designer. Submittals shall be submitted in such time as to cause no delay to the Work or any part thereof. The Designer shall review and process the Submittal with reasonable promptness, noting desired corrections, if any. The Designer shall retain the number of copies of the Submittal deemed required by the Designer and shall return the remainder of the reviewed Submittals to the Contractor. c. The Contractor acknowledges that the processing of shop drawings and other Submittals is directly impacted by the clarity, completeness, and accuracy of said documents and that it is the Contractor's responsibility to review and coordinate each Submittal with all other related or affected Work and approve each submittal before submitting same to the Designer for approval. d. Review of shop drawings and Submittals by the Designer shall not be construed as relieving the Contractor from responsibility for compliance with the terms or designs of the Contract Documents nor from responsibility for errors of any sort in the Submittal. 10. DISPUTE RESOLUTION AND GOVERNING LAW a. Owner and Contractor agree that should a dispute arise as to the terms of the Contract Documents the Designer shall serve as the initial decision-maker, unless there is no Designer retrained on the project related to the Work. Owner and Contractor further agree as follows: (i) If there is no Designer 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. 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 Revised November 2011 9 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. 11. 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. c. 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. 12. 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 Warren-Hay Mechancial Attn: Wayne Fenton Ron Lapann P.O. Box 8181 P.O. Box 818 Hillsborough,NC 27278 Hillsborough,NC 27278 13. DESIGNER a. The Designer is charged with responsibility for interpretation of the Contract Documents. The Designer's decisions related to aesthetic matters shall be final. b. All Work completed pursuant to the Contract Documents shall be subject to review by the Designer. Any Work completed without review or prior authorization by the Designer shall be subject to full replacement at Contractor's expense. c. The Designer shall be Owner's agent during the construction period. The duties, responsibilities and authority of the Designer as the Owner's representative during construction Revised November 2011 10 are as set forth in the Contract Documents. 14. OWNER a. The Owner shall issue communications and notices to the Contractor through the Designer and through the Owner's Representative as contemplated by the Contract Documents. b. The Owner shall have the right to take possession of and use any portion of the Work notwithstanding the fact that the time for completion of such portion of the Work may not have expired, but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. c. A waiver on the part of the Owner of any breach of any part of the Agreement by the Contractor shall not be held to be a waiver of any other or subsequent breach. d. Owner shall conduct all laboratory and field tests to determine compliance of construction with the Contract Documents except those laboratory and field tests required elsewhere in the Contract Documents to be paid by the Contractor. e. Owner shall contract separately with the Designer to provide architectural and engineering design for the Project. 15. 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 Designer, if a Designer 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 Designer 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. 16. CONSEQUENTIAL AND LIQUIDATED DAMAGES Revised November 2011 11 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, damage to reputation, or any other non-direct damages. b. Liquidated damages shall be in accord with the Request for Proposal and Addenda thereto. 17. 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, 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 a flat rate of$200.00 per day. (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. Owner may terminate this Agreement without penalty to Owner upon ten (10) working days written notice should the Contractor fail substantially to perform in accordance with the terms hereof through no fault of the Owner or if the Project in whole or substantial part is stopped for a period of one hundred twenty (120) consecutive days under an order of any court or other public authority having jurisdiction or as a result of an act of government. c. Owner may terminate this Agreement without penalty to Owner if the Contractor fails to complete the Work within the Contract Time. d. Contractor may terminate this Agreement 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. e. Neither Party to this Agreement may terminate the Agreement without first giving the other Party ten (10) business days notice of the intent to terminate the Agreement measured from actual receipt of notice. If the grounds for termination stated within the written notice are removed or cured within ten (10) business days after receipt of notice, the Agreement may not be terminated for default based on the grounds stated in the notice. Revised November 2011 12 18. 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 CO T RACTOR Signa re 'gnat `J-74 Printed Nam/and Title Attest: Donna lBaker, Clerk to the Board This instrument has been approved as to technical content. Jeff hompson, Department Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. u a,,—, /J. Office of the Finance Director This instrument has en approved as to legal form and sufficiency. Office of t County Attorney Revised November 2011 13 OP ID:MR A O�RO' CERTIFICATE OF LIABILITY INSURANCE DATE(M04/1 YYY) 06/04/13 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies) must be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CONT PRODUCER 919-968-4472 NAMEACT Margo G.Roberts,AAI,CISR Summers Thompson Lowry,Inc. 100 Europa Drive,Suite 571 919-942-4221 a,c 0,NE Nc Ex*919-969-5300 a,c No):919-9424221 Chapel Hill,NC 27517 E MAILSS:margo@stlinsure.com Larry A.Summers PRODUCER cuSTOMER ID#:WARRE-1 INSURER(S)AFFORDING COVERAGE NAIC# INSURED Warren Hay Mechanical INSURER A:Selective Ins.Co.of America 12572 Contractors,Inc. INSURER B: PO Box 818 Hillsborough,NC 27278 INSURERC: INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE DDL UBR POLICY NUMBER MMDDY/YYYY MM DD/YYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 A X COMMERCIAL GENERAL LIABILITY X S 2058359 12/31/12 12/31/13 PREMISES Ea occurrence $ 100,00 CLAIMS-MADE 1XI OCCUR MED EXP(Any one person) $ 5,00 PERSONAL&ADV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,00 POLICY I X PRO 7, LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ 1,000,00 A X ANY AUTO S 2058359 12/31112 12131/13 BODILY INJURY(Per person) $ —1-ALL OWNED AUTOS I --� BODILY INJURY(Per accident) $ SCHEDULED AUTOS PROPERTY DAMAGE $ HIRED AUTOS (Per accident) NON-OWNED AUTOS $ $ X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 3,000,00 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 3,000,00 A S 2058359 12131112 12/31/13 � DEDUCTIBLE I $ X_' RETENTION $ 0 $ WORKERS COMPENSATION WC STATU- I JOTH- AND EMPLOYERS'LIABILITY Y/N T RY LIMITS I I •R ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? ❑ N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space is required) Certificate Holder is additional insured as respects written contract per Form CG 79 21 01 01 CERTIFICATE HOLDER CANCELLATION ORANGPU SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Orange County ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 8181 Hillsborough,NC 27278 AUTHORIZED REPRESENTATIVE ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD THIRD PARTY NOTICE TO DESIGNATED PERSON(S) OR ORGANIZATION(S) POLICY NUMBER: S 2058359 IL 79 90 10 10 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART BUSINESS AUTO COVERAGE PART COMMERCIAL UMBRELLA LIABILITY COVERAGE PART GARAGE COVERAGE PART BUSINESSOWNERS COVERAGE PART The policy provisions relating to cancellation or non- If we cancel the policy for nonpayment of premium, the renewal as provided in the Condition Section or as number of days advance notice provided to the amended by any applicable state cancellation endorse- person(s) or organization(s) listed in the Schedule below ments are modified as follows: will be as required by law. If we cancel or non-renew this policy for any reason If notice is mailed, proof of mailing to the address shown other than nonpayment of premium or at the request of in the Schedule below will be sufficient proof of notice. or on behalf of the Named Insured, we agree that the In no event will coverage extend beyond the actual individual person(s) or organization(s) listed in the expiration,termination or cancellation of the policy. Schedule below and the Named Insured will be notified prior to the effective date of cancellation when such Nothing in this endorsement shall confer additional notice is required in a written contract. The manner and insured status on any entity scheduled herein. timing of the notice will be as required by law, or the number of days shown in the Schedule below, whichever is greater. A transfer of this policy from one insurance affiliate to another within the same insurance holding group shall not be deemed a cancellation, unless prohibited by law. Name of Persons or Organization(s) Mailing Address No. Of Days Notice COUNTY OF ORANGE, FINANCIAL SERVICE PO BOX 8181 30 HILLSBOROUGH, NC 27278 Copyright, 2010 Selective Insurance Company ofAmerica. All rights reserved. IL 79 90 10 10 Page 1 of 1 INSURED'S COPY