HomeMy WebLinkAboutContractFOR THE CONSTRUCTION OF THE SCHUMANN DRIVE
TENNIS COURTS AND ASSOCIATED IMPROVEMENTS
THIS AGREEMENT, made this Sa day of , 1997 by
and between the City of Sebastian, a unicipal Corporation
organized and existing under the laws of the State of Florida
(hereinafter called the "City"), and The Nidy Company
or its successors, executors, administrators, and assigns
(hereinafter called "Contractor"):
W I T N E S S E T H•
The City and Contractor for good and valuable consideration as
hereinafter set forth, do mutually agree as follows:
1. Scor) of Work. Contractor agrees to furnish all
materials, labor, supervision, and services necessary to complete
the Work as described in the contract documents (the "Contract
Documents") and agrees to complete the Work in a workmanlike manner
in accordance with all applicable codes and in full compliance with
the Contract Documents.
(a) The Contract Documents consist of this Agreement,
Notice of Invitation to Bid, Bid Bond, Scope of Work, Instructions
for Bidders, Special Terms and Conditions, Bid Form, Performance
Bond, Payment Bond, Notice of Award, Notice to Proceed, all
drawings, technical specifications, addenda issued prior to the
execution of this Agreement, other documents listed in this
Agreement and modifications issued after execution of this
Agreement. The Addenda, if any, are as follows: Addendum No.l
and Exhibit "A" showing certain changes. The
intent of the Contract Documents is to include all items necessary
for the proper execution and completion of the Work by Contractor.
The Contract Documents are complimentary, and what is required by
one shall be binding as if required by all; performance by
Contractor shall be required only to the extent consistent with the
Contract Documents and reasonably inferable from them as being
necessary to produce the intended results.
(b) The Contract Documents shall not be construed to
create a contractual relationship of any kind (1) between the City
and a Subcontractor or a Sub -subcontractor, or, (2) between any
persons or entities other than the City and Contractor.
(c) The term "Work" means the construction and services
required by the Contract Documents, whether completed or partially
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completed, and includes all labor, materials, equipment and
services provided or to be provided by Contractor to fulfill
Contractor's obligations hereunder. The Work may constitute the
whole or a part of the project.
3. Contract Sum and Payment to Contractor.
(a) Contract Sum, The City shall pay to Contractor for
Contractor's performance hereunder, the amount(s) specified in the
Contract Documents (the "Contract Sum").
(b) Progress Payments, The City shall make progress
payments on account of the Contract Sum to Contractor as provided
below and elsewhere in the Contract Documents.
(i) Monthly Progress Payments shall be submitted to
the City at the end of each month.
(ii) The City Engineering Division shall have at
least ten (10) working days to confirm the quantities listed for
payment and to approve the request.
(iii) Starting from the date the City Engineering
Division approves an invoice for payment, the City shall make
payment to the Contractor no later than 20 business days after the
date on which the invoice is approved.
(iv) Final payment to Contractor is contingent upon
acceptance of the Work by the City.
4. Contractor's Obligations.
(a) Contractor shall supervise and direct the Work,
using Contractor's best skill and attention. Contractor shall be
solely responsible for and have control over construction means,
methods, techniques, sequences and procedures and for coordinating
all portions of the Work under this Agreement, unless the Contract
Documents give other specific instructions concerning these
matters.
(b) Unless otherwise provided in the Contract Documents,
Contractor shall provide and pay for labor, materials, equipment,
tools, construction equipment and machinery, water, utilities,
transportation, and other facilities and services necessary for the
proper execution and completion of the Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in
the Work.
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(c) Unless otherwise provided in the Contract Documents,
Contractor shall pay all sales, use and other similar taxes and
shall secure and pay for all permits and governmental fees,
licenses and inspections necessary for proper execution and
completion of the Work.
(d) Contractor shall enforce strict discipline and good
order among Contractor's employees and other persons carrying out
the Work. Contractor shall not permit employment of unfit persons
or persons not skilled in tasks assigned to them.
(e) Contractor currently holds and shall maintain at all
times during the term of this Agreement all required federal, state
and local licenses necessary to perform the Work required under the
Contract Documents.
(f) Contractor shall be responsible to the City for the
acts and omissions of Contractor's employees, Subcontractors and
their agents and employees, and other persons performing portions
of the Work under a contract with Contractor.
5. Warranty. Contractor warrants to the City that all
materials and labor furnished under this Agreement shall be free
from any and all defects for a period of one (1) year from the date
of completion of the Work, and that the Work will conform with the
requirements of the Contract Documents. Work not conforming to
these requirements, including substitutions not properly approved
and authorized, may be considered defective.
(a) Contractor shall, at no cost to the City, promptly
correct Work failing to conform to requirements of the Contract
Documents, whether observed before or after completion of the Work
and whether or not fabricated, installed or completed, and shall
correct any Work found to be not in accordance with the
requirements of the Contract Documents within a period of one (1)
year from the date of completion of the Work or by the terms of an
applicable special warranty required by the Contract Documents.
The provisions of this Paragraph 6 apply to the Work done by
Subcontractors as well as to the Work done by direct employees of
Contractor.
(b) Nothing contained in this Paragraph 6 shall be
construed to establish a period of limitation with respect to other
obligations which Contractor might have under the Contract
Documents. Establishment of the time period of one (1) year as
described in Subparagraph 6(a) above relates only to the specific
obligation of Contractor to correct the Work, and has no relation -
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ship to the time within which the obligation to comply with the
Contract Documents may be sought to be enforced, nor to the time
within which proceedings may be commenced to establish Contractor's
liability with respect to Contractor's obligations other than
specifically to correct the Work.
7. Subcontracts.
(a) A Subcontractor is a person or entity who has a
direct contract with Contractor to perform a portion of the Work.
(b) A Supplier is a person or entity who has a direct
contract with Contractor to provide materials and/or supplies
required to perform a portion of the Work.
(c) Unless otherwise stated in the Contract Documents or
the bidding requirements, Contractor, as soon as practicable after
award of the Contract, shall furnish in writing to the City the
names of the Subcontractors and Suppliers for each of the principal
portions of the Work. Contractor shall not contract with any
Subcontractor or Supplier to whom the City has made reasonable and
timely objection. Contracts between Contractor and its
Subcontractors and Suppliers shall require each Subcontractor and
Supplier, to the extent of the Work to be performed by the
Subcontractor and the material and/or supplies to be provided by
the Supplier, to be bound to Contractor by the terms of the
Contract Documents, and to assume toward Contractor all the
obligations and responsibilities which Contractor, by the Contract
Documents, assumes toward the City.
8. Term. The term of this Agreement shall be the number of
consecutive calendar days accepted and approved by the City based
upon the number of days the Contractor has designated on the Bid
Form to complete the project.
9. Termination.
(a) For Cause. If Contractor defaults or persistently
fails or neglects to carry out the Work in accordance with the
Contract Documents or fails to perform a provision of this
Agreement, the City may, after ten (10) days written notice to
Contractor and without prejudice to any other remedy the City may
have, terminate this Agreement.
(b) Without Cause. The City retains the right to cancel
this Agreement at any time, with or without good cause, upon
written notice to Contractor when such termination is deemed by the
City Council, or their designee, to be in the public interest.
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(c) Payment Upon Termination. In the event of
termination as provided herein, Contractor shall be paid for
services performed through the date of termination, less damages
incurred by the City as a result of Contractor's failure to carry
out the Work in accordance with the Contract Documents and
Contractor's failure to perform any provision of this Agreement.
10. Indemnity. To the fullest extent permitted by law,
Contractor shall indemnify, defend and hold harmless the City and
the City's agents, servants and employees, from and against all
claims, damages, losses and expenses, including but not limited to
attorney's fees, arising out of or resulting from performance of
the Work, except for injuries, damages or claims which are the
result of the sole negligence of the City, its agents, servants, or
employees. Contractor hereby acknowledges that the obligations
imposed upon the City and the terms of this Agreement are the
specific consideration for the indemnification provided herein.
11. Insurance. Contractor shall procure and maintain during
the life of this Agreement insurance of the types and subject to
the limits set forth below. Contractor shall also provide the City
with evidence of this insurance prior to commencement of the Work
in the form of Certificates of Insurance which shall be subject to
the City's approval for adequacy.
(a) Workers' Compensation. Contractor shall purchase
from and maintain in any company or companies lawfully authorized
to do business in Florida, workers' compensation insurance as
required by law.
(b) Commercial General Liability_. Contractor shall
provide and maintain during the life of this Agreement, at
Contractor's own expense, Commercial General Liability insurance
with a combined single limit of at least $300,000.
(c) Commercial Auto Liability. Contractor shall provide
and maintain during the life of this Agreement, at Contractor's own
expense, Commercial Auto Liability insurance with a combined single
limit of $300,000.
12. Performance and Payment Bond. "Section 255.05 of the
Florida Statutes requires that any bidder who obtains a contract
from a City to perform a public works project must post a
performance and payment bond unless the City waives such bond. In
the event the City waives the bonding requirements, the following
will apply:
(a) The successful bidder must present an insurance
certificate to the City that verifies workers' compensation
insurance, as required by Florida law and
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(b) A general liability policy with the combined single
limit of at least $300,000 and
(c) A 10% retainer fee will be withheld until the
contractor presents an affidavit to the City that it has paid all
subcontractors, laborers and materialmen for the work which has
been performed and evidence from each subcontractor, laborer and
materialmen of such payment.
13. Assignment. Contractor shall not assign this Agreement
to any other persons or firm without first obtaining the City's
written approval.
14. Notices. All notices, requests, consents, and other
communication required or permitted under this Agreement shall be
in writing and shall be (as elected by the person giving such
notice) hand delivered by messenger or courier service, or mailed
by registered or certified mail (postage prepaid) return receipt
requested, addressed to:
IF TO THE CITY: City of Sebastian
Attn: Thomas W. Frame, City Manager
1225 Main Street
Sebastian, Florida 32958
WITH A COPY TO: Valerie Fernandez Settles,
City Attorney
4125 Pinta Court
Coral Gables, F1 33146
IF TO CONTRACTOR: The Nidv Company
P. n. Rox 73n
Sanford, F1 32772
15. Time. Time limits stated in the Contract Documents are
of the essence of this Agreement. By executing this Agreement,
Contractor confirms that the contract time is a reasonable period
for performing the Work.
(a) Contractor represents that it presently has no
interest and shall acquire no interest, either direct or indirect,
which would conflict in any manner with the performance of services
required hereunder, as provided by law. Contractor further
represents that no person having any such interest shall be
employed in performance of the Work.
(b) Contractor shall promptly notify the City in writing
by certified mail of all potential conflicts of interest prohibited
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by existing state law involving any prospective business
association, interest or other circumstance which may influence or
appear to influence Contractor's judgment or quality of services
being provided hereunder. Such written notification shall identify
the prospective business association, interest or circumstance, the
nature of work that Contractor may undertake and request the
opinion of the City as to whether the association, interest or
circumstance would, in the opinion of the City, constitute a
conflict of interest if entered into by Contractor. The City
agrees to notify Contractor of its opinion by certified mail within
thirty (30) days of receipt of notification by Contractor.
If, in the opinion of the City, the prospective business
association, interest or circumstance would not constitute a
conflict of interest by Contractor, the City shall so state in the
notification and Contractor shall, at its option, enter into said
association, interest or circumstance and it shall be deemed to be
not a conflict of interest with respect to services provided to the
City by Contractor under the terms of this Agreement.
17. Compliance With All Applicable Federal Laws. Contractor
shall comply with all applicable federal laws that in any way
regulate or impact the Work, including, but not limited to, The
Clean Air Act (42 USC §7506(c)), The Endangered Species Act (16 USC
§1531, at sea.), Executive Order No. 11593, Executive Order No.
11988, Executive Order No. 11990, The Fish and Wildlife
Coordination Act (PL 85-624), The Safe Water Drinking Act Section
1424(e) (PL 93-523, as amended), The Wild and Scenic Rivers Act (PL
90-542, as amended), The Demonstration Cities and Metropolitan
Development Act of 1966 (PL 89-754), Section 306 of The Clean Air
Act, Section 508 of The Clean Water Act, Executive Order No. 11738,
The Civil Rights Act of 1964 (PL 88-352), The Age Discrimination
Act (PL 94-135), Section 13 of The Federal Water Pollution Control
Act (PL 92-500), Executive Order No. 11246, Executive Order No.
11625, Executive Order No. 12138, Executive Order No. 12549, The
Davis Bacon Act (40 USC §276), the Occupational Safety and Health
Act and applicable regulations, and the Americans with Disabilities
Act (PL 101-336).
18. Liquidated Damages. In the event Contractor violates or
fails to perform any provision of the Contract Documents, then the
City may elect to receive as liquidated damages the amount(s)
specified in the Contract Documents. It is expressly acknowledged
by Contractor that said payment shall not be interpreted nor
construed as a penalty but is in fact a good faith attempt to fix
damages which the City will suffer in the event Contractor fails to
perform as required hereunder or violates any provision of the
Contract Documents.
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19. Bid. Performance, and Payment Bonds. Bid, Performance,
and Payment Bonds are required for this contract in accordance with
Section 17 and 22 of the Instructions for Bidders.
20. Drug -Free Workplace. Contractor, in accordance with
Florida Statute 287.087, hereby certifies that Contractor does:
(a) Publish a statement notifying employees that the
unlawful manufacture, distribution, dispensing, possession, or use
of a controlled substance is prohibited in the workplace and
specifying the actions that will be taken against employees for
violations of such prohibition.
(b) Inform employees about the dangers of drug abuse in
the workplace, the business's policy of maintaining a drug-free
workplace, any available drug counseling, rehabilitation, employee
assistance programs and the penalties that may be imposed upon
employees for drug abuse violations.
(c) Give each employee engaged in providing the
commodities or contractual services that are required hereunder a
copy of the statement specified in Subparagraph (a).
(d) In the statement specified in Subparagraph (a),
notify the employees that, as a condition of working on the
commodities or contractual services that are required hereunder,
the employee will abide by the terms of the statement and will
notify the employer of any conviction of, or plea of guilty or nolo
contendere to, any violation of Chapter 1893 or of any controlled
substance law of the United States or any state, for a violation
occurring in the workplace no later than five (5) days after such
conviction.
(e) Impose a sanction on, or require the satisfactory
participation in a drug abuse assistance or rehabilitation program
if such is available in the employee's community, by any employee
who is so convicted.
(f) Make a good faith effort to continue to maintain a
drug-free workplace through implementation of Subparagraphs (a)
thru (e).
A FULLY EXECUTED DRUG FREE WORKPLACE FORM (APPENDIX B3) SHALL BE
ATTACHED TO AND MADE AN INTEGRAL PART OF THIS AGREEMENT.
21. Public Entity Crimes.
warrants:
(a) Contractor hereby acknowledges, represents and
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(i) That a "public entity crime" as defined in
Paragraph 287.133(1)(g), Florida Statutes, means a violation of any
state or federal law by a person with respect to and directly
related to the transaction of business with any public entity or
with an agency or political subdivision of any other state or of
the United States, including, but not limited to, any bid or
contract for goods or services to be provided to any public entity
or an agency or political subdivision of any other state or of the
United States and involving antitrust, fraud, theft, bribery,
collusion, racketeering, conspiracy, or material misrepresentation.
(ii) That "convicted" or "conviction" as defined in
Paragraph 287.133(1)(b), Florida Statutes, means a finding of guilt
or a conviction of a public entity crime, with or without an
adjudication of guilt, in any federal or state trial court of
record relating to charges brought by indictment or information
after July 1, 1989, as a result of a jury verdict, nonjury trial,
or entry of a plea of guilty or nolo contendere.
(iii) That an "affiliate" as defined in Paragraph
287.133(1)(a), Florida Statutes, means:
1. A predecessor or successor of a person
convicted of a public entity crime; or
2. An entity under the control of any natural
person who is active in the management of the entity and who has
been convicted of a public entity crime. The term "affiliate"
includes those officers, directors, executives, partners,
shareholders, employees, members, and agents who are active in the
management of an affiliate. The ownership by one person of shares
constituting a controlling interest in another person, or a pooling
of equipment or income among persons when not for fair market value
under an arm's length agreement, shall be a prima facie case that
one person controls another person. A person who knowingly enters
into a joint venture with a person who has been convicted of a
public entity crime in Florida during the preceding 36 months shall
be considered an affiliate.
(iv) That a "person" as defined in Paragraph
287.133(1)(e), Florida Statutes, means any natural person or entity
organized under the laws of any state or of the United States with
the legal power to enter into a binding contract and which bids or
applies to bid on contracts for the provision of goods or services
let by a public entity, or which otherwise transacts or applies to
transact business with a public entity. The term "person" includes
those officers, directors, executives, partners, shareholders,
employees, members, and agents who are active in management of an
entity.
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(b) Based on information and belief, the statement which
Contractor has marked below is true in relation to Contractor
submitting this sworn statement. [indicate which statement
applies.]
Neither Contractor, nor any of its officers,
directors, executives, partners, shareholders, employees,
members, or agents who are active in the management of
Contractor, nor any affiliate of Contractor has been
charged with and convicted of a public entity crime
subsequent to July 1, 1989.
Contractor, or one or more of its officers,
directors, executives, partners, shareholders, employees,
members, or agents who are active in the management of
Contractor, or an affiliate of Contractor has been
charged with and convicted of a public entity crime
subsequent to July 1, 1989.
Contractor, or one or more of its officers,
directors, executives, partners, shareholders, employees,
members, or agents who are active in the management of
Contractor, or an affiliate of Contractor has been
charged with and convicted of a public entity crime
subsequent to July 1, 1989. However, there has been a
subsequent proceeding before a Hearing Officer of the
State of Florida, Division of Administrative Hearings and
the Final Order entered by the Hearing Officer determined
that it was not in the public interest to place
Contractor on the convicted vendor list. [attach a copy
of the final order].
(C) CONTRACTOR UNDERSTANDS THAT THE ACKNOWLEDGMENTS,
REPRESENTATIONS AND WARRANTIES MADE IN THIS PARAGRAPH 21 TO THE
CITY ARE FOR THE CITY ONLY AND, THAT SUCH ACKNOWLEDGMENTS,
REPRESENTATIONS AND WARRANTIES ARE VALID THROUGH DECEMBER 31 OF THE
CALENDAR YEAR IN WHICH THIS AGREEMENT IS EXECUTED. IN THE EVENT
THE TERM OF THIS AGREEMENT SHALL EXTEND BEYOND THE CALENDAR YEAR IN
WHICH IT WAS EXECUTED, CONTRACTOR SHALL EXECUTE AND SUBMIT TO THE
CITY A NEW SWORN STATEMENT UNDER SECTION 287.133, FLORIDA STATUTES,
ON PUBLIC ENTITY CRIMES, FORM PUR. 7068, AS REVISED FROM TIME TO
TIME. CONTRACTOR ALSO UNDERSTANDS THAT CONTRACTOR IS REQUIRED TO
INFORM THE CITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE
THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR
CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS
PARAGRAPH 21. A FULLY EXECUTED SWORN STATEMENT ON PUBLIC ENTITY
CRIMES (EXHIBIT B1 AND B2) SHALL BE ATTACHED TO AND MADE AN
INTEGRAL PART OF THIS AGREEMENT.
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22. Entire and Sole Aareement. Except as specifically stated
herein, the Contract Documents constitute the entire agreement
between the parties and supersede all agreements, representations,
warranties, statements, promises and understandings not
specifically set forth in the Contract Documents. Neither party
has in any way relied, nor shall in any way rely, upon any oral or
written agreements, representations, warranties, statements,
promises or understandings not specifically set forth in the
Contract Documents.
23. Successors and Assigns. Except as otherwise provided in
the Contract Documents, all covenants and agreements of the parties
contained in the Contract Documents shall be binding upon and inure
to the benefit of the respective successors and assigns of the
parties.
24. Attorney's Fees. In the event any action, proceeding,
suit or claim is filed, initiated or maintained to enforce any of
the provisions of the Contract Documents, the prevailing party
shall, in addition to relief to which it is otherwise entitled, be
entitled to recover such further amounts, to the extent lawful, as
shall be sufficient to pay the cost and expenses of enforcement,
including reasonable attorney's fees, both at trial and all
appellate levels.
25. Remedies. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy and each and every
such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or
in equity or by statute or otherwise.
26. Governing Law, The Contract Documents shall be construed
and enforced in accordance with and governed by the laws of the
State of Florida, and venue for any action pursuant to the Contract
Documents shall be in Indian River County, Florida.
27. Amendments. Neither the Contract Documents nor any term
thereof may be changed, waived, discharged or terminated orally,
except by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination
is sought.
28. Waiver. The failure of any of the parties at any time to
require performance of any provision of the Contract Documents
shall in no manner affect the right of such party at any later time
to enforce or require the same unless waived in writing. No waiver
by any party of any condition or breach shall be construed or
deemed to be a waiver of any other condition or any other breach of
any term, covenant or warranty contained in the Contract Documents.
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IN WITNESS WHEREOF, the City has hereunto subscribed and
Contractor has affixed his, its, or their names, or name.
CITY:
ATTEST: THE CITY OF SEBASTIAN, FLORIDA
6 1� Pia
Kathryn'Halloran
CMC/AAE,-City-Clerk
(Corporate Seal)
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
Title: City Manager
The for goininstrument was acki�owledged before me this
day of 1990F by
the of the CITY OF SEBASTIAN, FLORIDA, on
behalf Of the/CITY/OF SEBASTIAN. He/she is personally known to me
or produced as
identification.
;•;�yy H. JOANNESANOBER6
n. MY COMMISSION R CC 969021
x•. EXPIRES: AP119D.1988
B%d1d TI" Ndey Pudic UndenMlae
Approved as to Form and Legal
Sufficiency:
V
Noti- Public,
FloridaState of
Printed Name
c e- 3G90A/
Commission Number
Valerie Fernandez Settles. ty Attorne
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Signed, sealed and delivered
iyj the presence of:
Name:
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foregoing instrument
day of , 199'
behalf of CONTRACTO she i
CONTRACTOR: h/ Nidy Company
By:
f Name: Lynn Scott Nidy,
Title: President
s
was acknowledged before me this d8 Y1.
by ��yNN S. N %�,y on
personally known to me or produced
asid— a/n/tifij/cation —
.. iii%/ • L ������
Notary Public,
State of Florida
Printed Name
_ W CL' .5'D 5J 725'
Commission Number
�" ' Linda L. ftetll
• W COMMISSION M CM795 E7IPM
>? yt` WOW 24, 1989
eoNoso nwo mor rax INAMVO, Na
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EXHIBIT "A"
BID AND COST SUAINIARY
Schumann Drive Tennis Court's and Associated Improvement
The Ndy Company
NIDY'S BASE BID PRICE
Less Savings Using Alt. 91: 6"Base Course for Tennis Courts in lieu of 6"
stabilized subgrade & 4" base course. Replaces
Items 13 & 14.
Less Savings Using Alt: 92 10" Base Course for Parking Lot in lieu of 6"
stabilized subgrade & 6" base course. Replaces
Items 16 & 17.
SUB -TOTAL
Less Item #31: Pavement Markings which the City will do- savings $2,173.23
Less Item #32: Signs and Posts which the City will do - saving $1,015.28
Less Item 410: Soil and Base Course Compaction Testing which the City will
contract out direct - saving $407.40
Bid Award Amount to the Ndy Company GRAND TOTAL
$173,901.57
- 10,968.80
- 5,261.30
$157,671.47
- 2,723.88
1,397.28
- 1,327.40
$152,222.91