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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 Schumann Drive Tennis Courts Page 1 of 13 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. Schumann Drive Tennis Courts Page 2 of 13 (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 - Schumann Drive Tennis Courts Page 3 of 13 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. Schumann Drive Tennis Courts Page 4 of 13 (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 Schumann Drive Tennis Courts Page 5 of 13 (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 Schumann Drive Tennis Courts Page 6 of 13 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. Schumann Drive Tennis Courts Page 7 of 13 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 Schumann Drive Tennis Courts Page 8 of 13 (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. Schumann Drive Tennis Courts Page 9 of 13 (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. Schumann Drive Tennis Courts Page 10 of 13 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. Schumann Drive Tennis Courts Page 11 of 13 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 Schumann Drive Tennis Courts Page 12 of 13 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 Schumann Drive Tennis Courts Page 13 of 13 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