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HomeMy WebLinkAboutBRP Signed Construction Agreement 7-31-15This Agreement made this aL day o 2015 between the CITY OF CAPE CANAVERAL, a Florida municipal corporation (herein rf ')4 ef4erre—d t a C—ITY)'and Archangel Engineering and Construction, Inc., a State Certified General Construction Firm authorized and duly licensed to do business in the State of Florida (herein referred to as CONTRACTOR), as follows: 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; Exhibits and denclum to the Agreement; Engineering Plans and Drawings prepared by John A. Pekar, P.E., dated May 14, 2015; Bid #2015-08 Documents issued by the City; Contractor's Bid Submittal; General Conditions by the City; Supplemental Terms and Conditions by the City; and all Change Orders approved by the City after execution of this Agreement. These Contract Documents are hereby incorporated into this Contract by this reference. 3. ORDER OF PRECEDENCE - In case of any inconsistency in any of the documents bearing on the Tg-reement between the CITY and the CONTRACTOR, the inconsistency shall be resolved by giving precedence in the following order: a. Agreement Exhibits and Addenda; Contractor's Bid Submittal; b. Change Orders; c. Supplemental Terms and Conditions; d. General Terms and Conditions; or e. Engineering Plans and Drawings. Any inconsistency in the work description shall be clarified by the CITY and performed by ti CONTRACTOR. 4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work, should any errors, ambiguities or discrepancies be found in the Agreement or specifications, the CITY at its sole discretion will interpret the intent of the Agreement and work descriptions and the CONTRACTOR hereby agrees to abide by the CITY's interpretation and agrees to carry out the work in accordance with the decision of the CITY, When the material, article or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article or equipment being provided without additional cost to the CITY. A substitute material, article or equipment is allowed if it is reasonably equivalent to the brand name specified. The CITY has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the CITY prior to use of the substitute for a specified brand name and allow the CITY to make a determination before CONTRACTOR uses the substitute. 5. CONTRACT TIME - The CONTRACTOR shall begin work within twenty-one (21) days after the issuance of a written Notice to Proceed and shall complete the Work as follows: Banana River Park Phase 1: Substantial completion - December 31, 2015; final completion - January 31, 2016� City of Cape Canaveral/Archangel Engineering and Construction, Inc. Page 1 of 9 7. CONTRACT PRICE, UNIT PRICE CONTRACT - The CITY will pay the CONTRACTOR in current ?u-nds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of three hundred and thirty thousand, six hundred and thirty dollars ($330,630). Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit Prices included as a part of the Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. TERMINATION; DEFAULT BY CONTRACTOR AND CITY'S REMEDIES - The CITY reserves the 7 right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, for convenience. Further, the CITY reserves the right to revoke and terminate this Agreement in the following circumstances, each of which shall represent a default and breach of this Agreement: a. CONTRACTOR defaults in the performance of any material covenant or condition of this from the CITY specifying the default complained of unless, however, the nature of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within seven (7) calendar days, in which case the CONTRACTOR shall have such time as is reasonably necessary to remedy the default, provided the CONTRACTOR promptly takes and diligently pursues such actions as are necessary therefore; or b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to pay its debts; or c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder; or d. CONTRACTOR has committed any act of fraud upon the CITY; or e. CONTRACTOR has made a material misrepresentation of fact to the CITY while performing its obligations under this Agreement; or f. CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right, or remedy CITY may have under this Agreement. 9. FORCE MAJEURE - Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; Page 2 of 9 explosion; riot,, war; sabotage; strikes (except involving CONTRACTOR's labor force); extraordinary breakdown of or damage to CITY's affiliates' generating plants, their equipment or facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency- or cause or causes beyond the reasonable control of the party affected; provided that prompt notice Of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 10. SEVERABILITY - In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the CITY, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. mom a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompt and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e, Claims or liens are filed on the job; or f� In the opinion of the City of Cape Canaveral, Contractor's work is not progressing satisfactorily. 12. FINAL PAYMENT - CITY shall withhold up to 10% of the Contract Price throughout the project in accordance with the Local Government Prompt Payment Act ("Act"). After 50% completion of the project, CITY shall reduce to 5% the amount of the retainage withheld from each subsequent progress payment made to the CONTRACTOR unless the project is subject to Federal funding, in whole or in part, and the project is subject to laws and regulations contrary to the Act. The term "50% completion of the project' shall mean the point at which the CITY has expended 50% of the total cost of the construction services purchased under this Agreement together with all costs associated with existing change orders and other additions or modifications to the construction services provided for in this Agreement. After 50% completion, the Contractor may present to the CITY a payment request for up to one-half of the retainage held by the CITY. CITY shall promptly make payment to the CONTRACTOR unless the CITY has grounds, under the Act, for withholding the payment of the retainage, The remaining retainage amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. CITY shall make final payment to CONTRACTOR within thirty (30) days after the work is fully and properly completed, if the contract has been fully and timely performed, but subject to the condition that final payment shall not be due until CONTRACTOR has delivered to CITY a complete release of liens arising out of the contract, or receipt of releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to CITY indemnifying him against such claims. By making payments, CITY does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; City of Cape Canaveral/Archangel Engineering and Construction, Inc. Page 3 of 9 MIUMV02ARM mo *'. Failure of Contractor to comply with any special guarantees required by the Contract Documents. a. General Administration of Contract. The primary function of the CITY is to provide the general administration of the contract. In performance of these duties, Gustavo Vergara or his authorized representative is the CITY's Project Manager during the entire period of construction, The CITY may change the Project Manager during the term of this contract. b. Inseections, Opinions, and Progress Reports. The CITY shall be kept familiar with the progress and quality of the work by CONTRACTOR and may make periodic visits to the work site. The CITY will not be res.%onsible for the means of construction or -for th procedures used therein, or for the CONTRACTOR's failure to perform the work in accordance with the Contract Documents. c. Access to Worksite for Inspections. The CITY shall be given free access to the worksite at all times during work preparation and progress. The Project Manager is not obligated to make exhaustive or continuous on site inspections to perform his duties of checking and reporting on work progress, and any such inspections shall not waive CITY's claim regarding defective work by Contractor. d. Interpretation of Contract Documents: Decisions on Disputes. The CITY will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between CONTRACTOR and CITY. e. Rejection and Stoppage of Work. The CITY shall have authority to reject work which in its opinion does not conform W. en!,�j,,7 d a portion thereof, when necessary. f. Payment Certificates. The CITY will determine the amounts owing to CONTRACTOR as the work progresses, based on CONTRACTOR's applications and CITY's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. 14, PROGRESS MEETING — CITY'S Project Manager may hold periodic progress meetings on a monthly sis, or more frequently if required by the CITY, during the term of work entered into under this Agreement. CONTRACTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the CITY'S Project Manager. 15. RESP011SIBILITIES OF CONTRACTOR - C*NTRACTOR's duties and rights in connection with tf7e project herein are as follows: Page 4 of 9 b. Discipline and Employment. CONTRACTOR shall maintain at all times strict discipli among his employees, and he agrees not to employ for work on the project any person unfit without sufficient skill to perform the job for which he was employed. c. Furnishing of Labor, Materials, etc, CONTRACTOR shall provide and pay for all lab water, transportation, and all other facilities and work necessary for the proper completion of wo on the project in accordance with the Contract Documents. d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall secure - licenses and permits necessary for proper completion of the work, paying the fees there CONTRACTOR warrants that it (and subcontractors or tradesmen, if authorized in the Contra Documents) hold or will secure all trade or professional licenses required by law f CONTRACTOR to undertake the contract work. e. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar ye after acceptance by CITY. 16. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, written consent of the CITY, a. If upon receiving written approval from CITY, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to CITY for all acts and/or omissions performed by the subcontractor as if no subcontract had been made, b. If CITY determines that any subcontractor is not performing in accordance with this Agreement, CITY shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. 17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than CITY and CONTRACTOR, 18. PROHIBITION AGAINST CONTINGENT FEES - CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 20. INDEMNIFICATION — For other and additional good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR shall indemnify, hold harmless and defend the CITY, its officers, agents, officials, representatives, employees, and/or attorneys against any and all liability, loss, cost, damages, expenses, claim or actions, of whatever type, including but not limited to attorney's fees and suit costs, for trial and appeal, which the CITY may hereafter sustain, incur or, be required to pay, arising out of, wholly or in part, or due to any act or omission of CONTRACTOR, its agent(s), vendors, contractors, subcontractor(s), representatives, servants or City of Cape Canaveral/Archangel Engineering and Construction, Inc. Page 5 of 9 employees in the execution, performance or non-performance or failure to adequately perfor CONTRACTOR's obligations pursuant to this Agreement. i The indemnification provided above shall obligate the indemnifying party to defend at its own expen or to provide for such defense, at the sole option of the CITY, as the case may be, of any and all clai of liability and all suits and actions of every name and description that may be brought against t CITY, its officers, agents, officials, representatives, employees, and/or attorneys which may result fro the services under this Agreement whether the services be performed by the indemnifying party anyone directly or indirectly employed or hired by them. In all events the CITY shall be permitted 0 choose legal counsel of its sole choice, the fees for which shall be subject to and included with t I] indemnification provided herein, as long as said fees are reasonable. This paragraph shall survii termination of this Agreement. 21. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, contractors, and agents while performing work provided hereunder. 2Z CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby represents and warrants to the CITY the following: a. CONTRACTOR is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. MR. a �= I N . .. 11 by the board of directors and/or president of CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a copy to the CITY of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. 1101110011111 Mimi ;JIM 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in form approved by the CITY's City Attorney and in accordance with Florida law and in an amount specified in the Contract Documents, 24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. a. The CONTRACTOR shall maintain comprehensive general liability insurance in the minimum amount of $2,000,000 as the combined single limit for each occurrence to protect tha. CONTRACTOR from claims of property damages which may arise from any Work performed under this Agreement whether such Work is performed by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. Page 6 of 9 MISM2271M c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the CITY pursuant to this Agreement. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in this paragraph section 24. 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Brevard County, Florida. 26. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Brevard County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 27. ATTORNEY'S FEES - Should either party bring an action to enforce any of the terms of this �6reement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non -prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on page 9 of this Agreement. 29. WORK IS A PRIVATE UNDERTAKING - With regard to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the CITY and CONTRACTOR is such that the CONTRACTOR is an independent contractor and not an agent of the CITY. The CONTRACTOR, its contractors, partners, agents, and their employees are independent contractors and not employees of the CITY. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the CITY, on one hand, and the CONTRACTOR, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement. 30. DOCUMENTS - Public Records: In accordance with section 119.0701, Florida Statutes, Contractor agrees that all documents, transactions, writings, papers, letters, tapes, photographs, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to this Agreement or in connection with any funds provided by the City pursuant to this Agreement may be considered public records pursuant to Chapter 119, Florida Statutes. Contractor agrees to keep and maintain any and all public records that ordinarily and necessarily would be required by the City in order to perform the services required by this Agreement. Contractor also agrees to provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceed the City of Cape Canaveral/Archangel Engineering and Construction, Inc. Page 7 of 9 MOLKHRM cost provided by Chapter 119, Florida Statutes or as otherwise provided by law. Contractor shall also ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. In addition, Contractor shall meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of the Contractor upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. If Contractor does not comply with a public records request, the City shall have the right to enforce the provisions of this Paragraph. In the event that Contractor fails to com I with the rovision f hi P ............ ............... k,oruract*r. T MTpll e ah sT fe entitiet reimr)ursement oT any ana aii a orney fees and damages which the City was required to pay a third party because of Contractor's failure to comply with the provisions of this Paragraph. This Paragraph shall survive the termination of this Agreement. 31. SOVEREIGN IMMUNITY - Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the CITY's right to sovereign immunity under Section 768.28, or other limitations imposed on the CITY's potential liability under state or federal law. As such, the CITY shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the CITY shall not be liable for any claim or judgment, or portion thereof, to any one person for more than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of three hundred thousand dollars ($300,000.00). 3Z HEADINGS - Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 33. INTEGRATION; MODIFICATION - The drafting, execution, and delivery of this Agreement by the Parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both parties. 34. '3AITER AND ELECTION OF REMEDIES - Waiver by either party of any terms or provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. No waiver, consent, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument, 35. DRAFTING - CITY and CONTRACTOR each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 36. NOTICE - Any notice, request, instruction, or other document to be given as part of this Agreement all be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail Page 8 of 9 or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt FoLCity-. City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL 32920 Phone: 321-868-1220 Fax: 321-868-1224 For Contractor: Archangel Engineering & Construction Inc Robert Chasin, Vice President, Constructi 485 Gus Hipp Blvd Rockledge, FL 32955 Phone: 321-403-8975 Fax: 321-704-8251 1 Pill IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first ,z*ove writte ii. /? Print Name: Attest: By: Angela Apperson, City Clerk Print Name - 0, Title� 5410 By: 0 -L 'UA -V" -'- David L. Greene, City Manager Date -7L —3/v—z2�— City of Cape Canaveral/Archangel Engineering and Construction, Inc. Page 9 of 9 � �F