HomeMy WebLinkAboutUniqco, LLC Streets Dept Re-Roof 2011 - 2 originals i
ROOF CONSTRUCTION AGREEMENT
T HIS CONSTRUCTION AGREEMENT ( " Agreement ") is made th day of
T 6g , , 2011 between the CITY OF CAPE CANAVERAL, a Florida municipal
c orporation ( "OWNER "), whose address is 105 Polk Avenue, Cape Canaveral, Florida 32920, and
UNIQCO, LLC a Florida limited liability company, ( "CONTRACTOR "), whose address is 14350
Eastside Drive, Groveland, Florida 34736, as follows:
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1. DESCRIPTION OF WORK - CONTRACTOR shall perform the Work, in accordance with
the Contract Documents for the construction of the roof. The Work includes all labor,
supplies and other facilities or things necessary to produce such construction, and all materials,
equipment, and supplies incorporated or to be incorporated in such construction.
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2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement;
Exhibits and any Addendums to this Agreement, Bid Documents for Bid No. 2010 -05,
"Replacement of Street Department Building Roof' issued by the City in December, 2010;
Contractor's Bid Submittal, dated December 21, 2010; General Conditions, if any;
Supplemental Terms and Conditions by the City, if any; and all Change Orders approved by
1 the City after execution of this Agreement. These Contract Documents are attached hereto as
1 "Exhibit A" and are hereby incorporated into this Contract by this reference.
1 3. ORDER OF PRECEDENCE - In case of any inconsistency in any of the documents bearing
on the Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be
resolved by giving precedence in the following order:
a. Agreement, Exhibits and Addenda;
b. Contractor's Bid Submittal
;; c. Change Orders
d. Supplemental Terms and Conditions
e. General Terms and Conditions
Any inconsistency in the Work description shall be clarified by the OWNER and performed
by the CONTRACTOR
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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 OWNER, at its sole discretion, will interpret the intent of the Agreement and Work
descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation
and agrees to carry out the Work in accordance with the decision of the OWNER. When the
f 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
I material, article, or equipment being provided without additional cost to the OWNER. A
substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand
name specified. The OWNER has full discretion to decide whether a substitute is reasonably
} equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a
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specified brand name and allow the OWNER to make a determination before
CONTRACTOR uses the substitute.
5. CONTRACT TIME - The CONTRACTOR shall begin Work no later than February 16,
2011 and shall be substantially complete (i.e. complete with only final punch List items
remaining) 30 consecutive calendar days thereafter. CONTRACTOR shall fully complete the
Work within 30 consecutive calendar days from February 16, 2011. Extensions, if any, may
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2 be authorized by OWNER, and may only be granted in writing.
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6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the
I essence of this Agreement and that OWNER will suffer financial loss if the Work is not
substantially complete within the time specified in Paragraph 5 above, plus any extensions
a thereof allowed in accordance with the General Conditions. They also recognize the delays,
expense, and difficulties involved in proving in a legal or arbitration preceding the actual loss
suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead
1 of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages
for delay (but not as a penalty) CONTRACTOR shall pay OWNER $500.00 for each day that
1 expires after the time specified in Paragraph 5 for final completion until the work is finally
complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00)
1 Dollars as consideration for this provision.
7. CONTRACT PRICE, UNIT PRICE CONTRACT - The OWNER will pay the
CONTRACTOR in current funds for the performance of the Work, subject to additions and
deductions by Change Order, the Total Contract Price of Fifteen Thousand, Four - Hundred and
Ninety Nine and 00 /100 Dollars ($15,499.00). Payment shall be made to the
CONTRACTOR when the Work is complete. Owner may withhold payment if
I a Work is found defective and not remedied;
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i : b. Contractor does not make prompt and proper payments to subcontractors;
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c. Contractor does not make prompt and proper payments for labor, materials, or
1 equipment furnished him;
d. Another Contractor is damaged by an act for which Contractor is responsible; or j
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e. Claims or liens are filed on the job.
8. TERMINATION; DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES - The
;s OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and 1
privileges associated with this Agreement, without penalty, in the following circumstances,
?1 each of which shall represent a default and breach of this Agreement:
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a. CONTRACTOR defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within seven (7) calendar days after
written notice from the OWNER specifying the default complained of, unless, however,
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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
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creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to pay its debts;
or
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c. CONTRACTOR has acted negligently, as defined by general and applicable law, in
1 performing the Work hereunder; or
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4 d. CONTRACTOR has committed any act of fraud upon the OWNER; or
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e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while
performing its obligations under this Agreement; or
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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 OWNER may have under this Agreement.
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Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the
1 .4 R OWNER shall have the right to exercise any other remedy the OWNER may have by
& operation of law, without limitation, and without any further demand or notice. In the event of
such termination, OWNER shall be liable only for the payment of all unpaid charges,
determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
1 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; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR's labor
force); extraordinary breakdown of or damage to OWNER '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 60 days, either party may terminate
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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,
1 at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the
affected provision of this Agreement. The validity and enforceability of the remaining parts of
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this Agreement shall otherwise be fully enforceable.
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13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER
are as follows:
a. General Administration of Contract. The primary function of the OWNER is to
provide the general administration of the contract. In performance of these duties, Jeff
Ratliff, Assistant Public Works Director, or his authorized representative, is the
OWNER's Project Manager during the entire period of construction. The OWNER
(CITY) may change the Project Manager during the term of this contract.
1 b. Inspections, Opinions, and Progress Reports. The OWNER shall be kept familiar
with the progress and quality of the Work by CONTRACTOR and may make periodic
visits to the work site. The OWNER will not be responsible for the means of construction,
or for the sequences, methods, and 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 OWNER 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
Owner's claim regarding defective Work by Contractor.
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d. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will
be the initial interpreter of the contract document requirements, and make decisions on
claims and disputes between Contractor and Owner.
1 e. Resection and Stoppage of Work. The OWNER shall have authority to reject work
I which in its opinion does not conform to the Contract Documents, and in this connection
' may stop the Work or a portion thereof, when necessary.
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f. Payment Certificates. The OWNER will determine the amounts owing to
CONTRACTOR as the Work progresses, based on CONTRACTOR's applications and
i OWNER'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 — OWNER'S Project Manager may hold periodic progress
meetings on a monthly basis, or more frequently if required by the OWNER, 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 OWNER'S Project
1 Manager.
l 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in
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connection with the project herein are as follows:
a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely I
responsible for all construction under this contract, including the techniques, sequences,
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procedures and means, for the coordination of all Work. CONTRACTOR shall supervise
and direct the Work, and give it all attention necessary for such proper supervision and
J direction.
b. Discipline and Employment. CONTRACTOR shall maintain at all times strict
discipline among his employees, and he agrees not to employ for Work on the project any
person unfit or without sufficient skill to perform the job for which he was employed.
I c. F urnishing of Labor, Materials, etc. C ONTRACTOR shall provide and pay for all
I labor, materials and equipment, including tools, construction equipment and machinery,
utilities, including water, transportation, and all other facilities and Work necessary for the
proper completion of Work on the project in accordance with the Contract Documents.
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d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall
1 secure all licenses and permits necessary for proper completion of the Work, paying the
fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if
authorized in the Contract Documents) hold or will secure all trade or professional licenses
required by law for CONTRACTOR to undertake the contract Work.
e. Written Guarantee. CONTRACTOR will provide written guarantee for Work and
materials for one (1) calendar year after acceptance by OWNER.
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16. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any
j rights or any monies due or to become due hereunder without the prior, written consent of the
1 OWNER.
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a. If upon receiving written approval from OWNER, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to
OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract
had been made.
b. If OWNER determines that any subcontractor is not performing in accordance with
this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps
to remedy the situation.
c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of
this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to
provide OWNER and its affiliates with insurance coverage as set forth by the OWNER.
17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights j
or benefits to anyone other than OWNER 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
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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.
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19. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or
principal -agent relationship between the parties and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would indicate any
i such relationship with the other party.
20. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its
officers, employees, and city attorneys (individually and in their official capacity, from
liability, losses, damages, and costs, including, but not limited to, reasonable attorney's fees, to
the extent caused by the negligence, recklessness or intentional wrongful misconduct of
CONTRACTOR and persons employed or utilized by CONTRACTOR in the performance of
this Agreement.
The indemnification provided above shall obligate the CONTRACTOR to defend at its own
expense or to provide for such defense, at the option of the OWNER, as the case may be, of
any and all claims of liability and all suits and actions of every name and description that may
be brought against the OWNER or its officers, employees, and city attorneys which may be
covered by this indemnification. In all events the OWNER and its officers, employees, and
city attomeys shall be pennitted to choose legal counsel of its sole choice, the fees for which
I . shall be reasonable and subject to and included with this indemnification provided herein.
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.
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22. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby
represents and warrants to the OWNER the following:
1 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
I carry on the functions and operations set forth in this Agreement.
b. The undersigned signatory for CONTRACTOR has the power, authority, and the legal
I right to enter into and perform the obligations set forth in this Agreement and all
applicable exhibits thereto, and the execution, delivery, and performance hereof by
CONTRACTOR has been duly authorized by the board of directors and/or president of
CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a
copy to the OWNER of a corporate certificate of good standing provided by the State of
t Florida prior to the execution of this Agreement.
1 c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the
work stated in Paragraph 1 herein. In support of said representation, CONTRACTOR
agrees to provide a copy of all said licenses to the OWNER prior to the execution of this
Agreement.
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23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in form
approved by the OWNER's City Attorney and in accordance with Florida law and in an
amount specified in the Contract Documents. NJ`A
24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for
1 providing the types of insurance and limits of liability as set forth below.
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a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the CONTRACTOR from claims of property damages which may arise from any
Work performed under this Agreement whether such Work are performed by the
1 CONTRACTOR or by anyone directly employed by or contracting with the
1 CONTRACTOR.
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b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in
the minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the CONTRACTOR from claims for damages for bodily injury, including wrongful death,
as well as from claims from property damage, which may arise from the ownership, use,
or maintenance of owned and non -owned automobiles, including rented automobiles
whether such operations be by the CONTRACTOR or by anyone directly or indirectly
employed by the CONTRACTOR.
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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 $1,000,000 for all of its
employees performing Work for the OWNER pursuant to this Agreement.
Special Requirements. Current, valid insurance policies meeting the requirements herein
identified shall be maintained during the term of this Agreement. A copy of a current
Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the
Effective Date of this Contract which satisfies the insurance requirements of this Paragraph
24. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date.
1 There shall also be a 30 -day advance written notification to the OWNER in the event of
1 cancellation or modification of any stipulated insurance coverage. The OWNER shall be an
additional named insured on all stipulated insurance policies as its interest may appear,
i from time to time, excluding worker's compensation and professional liability policies.
I 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 these paragraphs for Paragraphs 21 and 24.
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25. MEDIATION/VENUE - The parties agree that should any dispute arise between them
regarding the terms or performance of this Agreement, both parties will participate in
I mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to
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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, govemed, 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
Agreement, 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
'i applicable party at the address shown on the first page of this Contract.
i 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
i the contractual relationship between the OWNER and CONTRACTOR is such that the
CONTRACTOR is an independent contractor and not an agent of the OWNER. The
CONTRACTOR, its contractors, partners, agents, and their employees are independent
contractors and not employees of the OWNER. Nothing in this Agreement shall be interpreted
to establish any relationship other than that of an independent contractor, between the
OWNER, on one hand, and the CONTRACTOR, its contractors, partners, employees, or
agents, during or after the performance of the Work under this Agreement.
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30. DOCUMENTS - Public Records: It i s hereby specifically agreed that any record, document, I
computerized information and program, audio or video tape, photograph, or other writing of
the CONTRACTOR and its independent contractors and associates related, directly or
i indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession
or control of the OWNER or the CONTRACTOR. Said record, document, computerized
information and program, audio or video tape, photograph, or other writing of the
1 CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be
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destroyed without the specific written approval of the OWNER's City Manager. Upon request
by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to
the OWNER. All books, cards, registers, receipts, documents, and other papers in connection
I with this Agreement shall at any and all reasonable times during the normal working hours of
J the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of
examination and/or audit.
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The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and
subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any
I document produced by CONTRACTOR under this Agreement constitutes a Public Record;
CONTRACTOR shall comply with the Florida Public Records Law.
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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, Florida Statutes, 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 one
hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof which, when
1 totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising
out of the same incident or occur ence, exceeds the sum of two hundred thousand dollars
($200,000.00).
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32. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to
i be construed as part of this Agreement.
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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
I expressly referred to herein. Modifications of this Agreement shall only be made in writing
signed by both parties.
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1 ,.i 34. WAIVER 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
1 counterparts shall together constitute but one and the same instrument.
35. DRAFTING - OWNER 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.
[EXECUTION PAGE FOLLOWS]
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Signed, Sealed and Delivered in the presence of
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J CONTRACTOR:
Uniqco I LC,
Witness: a Flori I1 ' :1 liability company.
Ala
l rint Name( - 3;t^' fl C y Pr int Name: 1� S �'/�'/✓ 00 01
Title: f 4-1471 /(
Witness: i
I Date: q Vie ilv -
Print N : 6 #AgeN Dy S?f7 4-
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OWNER:
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City of Cape Canaveral,
W' ess: a Florida municipal corporation.
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VC) t`(1'') r-, ■.A.e.--- D c,---.c "--1 M 1.......L Print Name. Vvn- m m ,n
I- � � - t e 2 David Greene, City Manager
Witness: Date: a . f /g ` j i
// ' 4.-k•-4/ iiL .
Print Name: '/' Cr ,
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4 ROOF CONSTRUCTION AGREEMENT
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THIS CONSTRUCTION AGREEMENT ( "Agreement") is made this q f It day of
F tB • , 2011 between the CITY OF CAPE CANAVERAL, a Florida municipal
corporation ( "OWNER "), whose address is 105 Polk Avenue, Cape Canaveral, Florida 32920, and
4 UNIQCO, LLC a Florida limited liability company, ( "CONTRACTOR "), whose address is 14350
i Eastside Drive, Groveland, Florida 34736, as follows:
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1. DESCRIPTION OF WORK - CONTRACTOR shall perform the Work, in accordance with
the Contract Documents for the construction of the roof. The Work includes all labor,
supplies and other facilities or things necessary to produce such construction, and all materials,
equipment, and supplies incorporated or to be incorporated in such construction.
2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement;
4 Exhibits and any Addendums to this Agreement, Bid Documents for Bid No. 2010 -05,
"Replacement of Street Department Building Roof' issued by the City in December, 2010;
Contractor's Bid Submittal, dated December 21, 2010; General Conditions, if any;
Supplemental Terms and Conditions by the City, if any; and all Change Orders approved by
the City after execution of this Agreement. These Contract Documents are attached hereto as
"Exhibit A" and 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 Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be
; 1 resolved by giving precedence in the following order:
1 a. Agreement, Exhibits and Addenda;
b. Contractor's Bid Submittal
c. Change Orders
d. Supplemental Terms and Conditions
e. General Terms and Conditions
Any inconsistency in the Work description shall be clarified by the OWNER and performed
by the 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 OWNER, at its sole discretion, will interpret the intent of the Agreement and Work
descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation
and agrees to carry out the Work in accordance with the decision of the OWNER. 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 OWNER. A
substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand
name specified. The OWNER has full discretion to decide whether a substitute is reasonably
equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a
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specified brand name and allow the OWNER to make a determination before
CONTRACTOR uses the substitute.
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5. CONTRACT TIME - The CONTRACTOR shall begin Work no later than February 16,
2011 and shall be substantially complete (i.e. complete with only final punch list items
remaining) 30 consecutive calendar days thereafter. CONTRACTOR shall fully complete the
4.
Work within 30 consecutive calendar days from February 16, 2011. Extensions, if any, may
be authorized by OWNER, and may only be granted in writing. ID EA py .173 Atli- u) Gat Mf ev
6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the
essence of this Agreement and that OWNER will suffer financial loss if the Work is not
substantially complete within the time specified in Paragraph 5 above, plus any extensions
thereof allowed in accordance with the General Conditions. They also recognize the delays,
expense, and difficulties involved in proving in a legal or arbitration preceding the actual loss
suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead
of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages
for delay (but not as a penalty) CONTRACTOR shall pay OWNER $500.00 for each day that
expires after the time specified in Paragraph 5 for final completion until the work is finally
complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00)
Dollars as consideration for this provision.
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I 7. CONTRACT PRICE, UNIT PRICE CONTRACT - The OWNER will pay the
CONTRACTOR in current funds for the performance of the Work, subject to additions and
deductions by Change Order, the Total Contract Price of Fifteen Thousand, Four - Hundred and
Ninety -Nine and 00 /100 Dollars ($15,499.00). Payment shall be made to the
CONTRACTOR when the Work is complete. Owner may withhold payment if
a. Work is found defective and not remedied;
b. Contractor does not make prompt and proper payments to subcontractors;
1 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; or
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e. Claims or liens are filed on the job.
8. TERMINATION; DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES - The
OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and
privileges associated with this Agreement, without penalty, 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 Agreement and does not cure such other default within seven (7) calendar days after
written notice from the OWNER specifying the default complained of, unless, however,
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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 CON TRACTOR becomes insolvent, or is unable or unwilling to pay its debts; j
or
c. CONTRACTOR has acted negligently, as defined by general and applicable law, in
performing the Work hereunder; or 1
i ' d. CONTRACTOR has committed any act of fraud upon the OWNER; or
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e. CONTRACTOR has made a material misrepresentation of fact to the OWNER 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 OWNER may have under this Agreement.
Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the
a OWNER shall have the right to exercise any other remedy the OWNER may have by
1 operation of law, without limitation, and without any further demand or notice. In the event of
such termination, OWNER shall be liable only for the payment of all unpaid charges,
determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
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; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR's labor
force); extraordinary breakdown of or damage to OWNER '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 60 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 OWNER, 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.
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13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER
I I are as follows:
t a General Administration of Contract. The primary function of the OWNER is to
provide the general administration of the contract. In performance of these duties, Jeff
7 Ratliff, Assistant Public Works Director, or his authorized representative, is the
OWNER's Project Manager during the entire period of construction. The OWNER
(CITY) may change the Project Manager during the term of this contract.
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b. Inspections, Opinions, and Progress Reports. The OWNER shall be kept familiar
with the progress and quality of the Work by CONTRACTOR and may make periodic
visits to the work site. The OWNER will not be responsible for the means of construction,
or for the sequences, methods, and procedures used therein, or for the CONTRACTOR's
failure to perform the Work in accordance with the Contract Documents.
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C. Access to Worksite for Inspections. The OWNER 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
Owner's claim regarding defective Work by Contractor.
d. I nterpretation of Contract Documents: Decisions on Dputes. Th OWNER w ill
be t he initial interpreter of the contract document requirements , and m ake decision on
cla and disputes between Contractor and Owner.
e. Rejection and Stoppage of Work. The OWNER shall have authority to reject work
which in its opinion does not conform to the Contract Documents, and in this connection
may stop the Work or a portion thereof, when necessary.
f. Payment Certificates. The OWNER will determine the amounts owing to
CONTRACTOR as the Work progresses, based on CONTRACTOR's applications and
OWNER'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 — OWNER'S Project Manager may hold periodic progress
meetings on a monthly basis, or more frequently if required by the OWNER, 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 OWNER'S Project
Manager.
15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in
connection with the project herein are as follows:
a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely
I responsible for all construction under this contract, including the techniques, sequences,
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I procedures and means, for the coordination of all Work. CONTRACTOR shall supervise
and direct the Work, and give it all attention necessary for such proper supervision and
direction.
b. Discipline and Employment. CONTRACTOR shall maintain at all times strict
discipline among his employees, and he agrees not to employ for Work on the project any
person unfit or 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
labor, materials and equipment, including tools, construction equipment and machinery,
utilities, including water, transportation, and all other facilities and Work necessary for the
proper completion of Work on the project in accordance with the Contract Documents.
d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall
secure all licenses and permits necessary for proper completion of the Work, paying the
fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if
authorized in the Contract Documents) hold or will secure all trade or professional licenses
required by law for CONTRACTOR to undertake the contract Work.
e. Written Guarantee. CONTRACTOR will provide written guarantee for Work and
materials for one (1) calendar year after acceptance by OWNER.
0 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
OWNER. I
a. If upon receiving written approval from OWNER, any part of this Agreement is i
subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to
OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract
had been made. j
b. If OWNER determines that any subcontractor is not performing in accordance with
this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps
to remedy the situation.
c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of
this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to
provide OWNER and its affiliates with insurance coverage as set forth by the OWNER.
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17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights
or benefits to anyone other than OWNER 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
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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.
19. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or
principal -agent relationship between the parties and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would indicate any
1 such relationship with the other party.
20. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its
officers, employees, and city attorneys (individually and in their official capacity, from
liability, losses, damages, and costs, including, but not limited to, reasonable attorney's fees, to
the extent caused by the negligence, recklessness or intentional wrongful misconduct of
CONTRACTOR and persons employed or utilized by CONTRACTOR in the performance of
this Agreement.
The indemnification provided above shall obligate the CONTRACTOR to defend at its own
expense or to provide for such defense, at the option of the OWNER, as the case may be, of
any and all claims of liability and all suits and actions of every name and description that may
' be brought against the OWNER or its officers, employees, and city attorneys which may be
covered by this indemnification. In all events the OWNER and its officers, employees, and
city attomeys shall be permitted to choose legal counsel of its sole choice, the fees for which
shall be reasonable and subject to and included with this indemnification provided herein.
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
1 while performing work provided hereunder.
22. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby
represents and warrants to the OWNER 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.
• b. The undersigned signatory for CONTRACTOR has the power, authority, and the legal
right to enter into and perform the obligations set forth in this Agreement and all
applicable exhibits thereto, and the execution, delivery, and performance hereof by
CONTRACTOR has been duly authorized by the board of directors and/or president of
CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a
copy to the OWNER of a corporate certificate of good standing provided by the State of
Florida prior to the execution of this Agreement.
c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the
work stated in Paragraph 1 herein. In support of said representation, CONTRACTOR
agrees to provide a copy of all said licenses to the OWNER prior to the execution of this
Agreement.
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23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in form
approved by the OWNER's City Attomey and in accordance with Florida law and in an
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amount specified in the Contract Documents.
24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for
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1 providing the types of insurance and limits of liability as set forth below.
a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
1 minimum amount of $1,000,000 as the combined single limit for each occurrence to
protect the CONTRACTOR from claims of property damages which may arise from any
Work performed under this Agreement whether such Work are performed by the
CONTRACTOR or by anyone directly employed by or contracting with the
CONTRACTOR.
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b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in
the minimum amount of $1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the CONTRACTOR from claims for damages for bodily injury, including wrongful death,
as well as from claims from property damage, which may arise from the ownership, use,
1 or maintenance of owned and non -owned automobiles, including rented automobiles
whether such operations be by the CONTRACTOR or by anyone directly or indirectly
employed by the CONTRACTOR.
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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 $1,000,000 for all of its
employees performing Work for the OWNER pursuant to this Agreement.
1 Special Requirements. Current, valid insurance policies meeting the requirements herein
identified shall be maintained during the term of this Agreement. A copy of a current
Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the
Effective Date of this Contract which satisfies the insurance requirements of this Paragraph
24. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date.
There shall also be a 30 -day advance written notification to the OWNER in the event of
cancellation or modification of any stipulated insurance coverage. The OWNER shall be an
additional named insured on all stipulated insurance policies as its interest may appear,
from time to time, excluding worker's compensation and professional liability policies.
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4 Independent Associates and Consultants. All independent contractors or agents employed
by CON to perform any Work hereunder shall fully comply with the insurance
provisions contained in these paragraphs for Paragraphs 21 and 24.
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25. MEDIATION/VENUE - 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
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I 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
1 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
Agreement, 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
1 to, reasonable attorney's fees, whether at settlement, trial or on appeal.
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28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the
applicable party at the address shown on the first page of this Contract.
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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 OWNER and CONTRACTOR is such that the
CONTRACTOR is an independent contractor and not an agent of the OWNER. The
CONTRACTOR, its contractors, partners, agents, and their employees are independent
contractors and not employees of the OWNER. Nothing in this Agreement shall be interpreted
to establish any relationship other than that of an independent contractor, between the
OWNER, 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: It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of
the CONTRACTOR and its independent contractors and associates related, directly or
indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession
or control of the OWNER or the CONTRACTOR. Said record, document, computerized
information and program, audio or video tape, photograph, or other writing of the
CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be
destroyed without the specific written approval of the OWNER's City Manager. Upon request
l by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to
the OWNER. All books, cards, registers, receipts, documents, and other papers in connection
with this Agreement shall at any and all reasonable times during the normal working hours of
i the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of
= examination and/or audit.
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The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and
subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any
£ document produced by CONTRACTOR under this Agreement constitutes a Public Record;
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CONTRACTOR shall comply with the Florida Public Records Law.
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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, Florida Statutes, 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 one
hundred thousand dollars ($100,000.00), 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 two hundred thousand dollars
($200,000.00).
32. 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. WAIVER 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 - OWNER 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.
[EXECUTION PAGE FOLLOWS]
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Signed, Sealed and Delivered in the presence of:
CONTRACTOR:
' Uniqco, LLC,
Witness: a Fl • da limited liability company.
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Print Name S, 07 S'i61 Print N. 0 x v 'A / Pole `ykv
Title: 0 W N g i
Witness:
' Date: 4 1 p &i3 ;Z ,D 6,0 •
1 Print Names AzivbiD S % r -
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OWNER:
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City of Cape Canaveral,
Witness: a Florida municipal corporation.
1 v,--; tY1 '' rA -Lkc.. 0 6.- n -'
Print Name: \N m . WY kVA % c c: David Greene, City Manager
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Witness: Date: a, f i ti / 1
P 'nt Name: 277'
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