12-Doc 00 52 00 - AGREEMENT.pdf

AGREEMENT

00 52 00-1

DOCUMENT 00 52 00

THIS AGREEMENT is by and between Upper Makefield Township (“Owner”) and _________________________ (“Contractor”) Owner and Contractor hereby agree as follows:

ARTICLE 1 - WORK

1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows:

This contract consists of a base bid and alternate bids. Both the base and alternate bids involve milling, base repair, leveling course, manhole rim adjustments, and wearing course along various roads within Upper Makefield Township. The roadway and quantities associated with the base bid and each alternate are more fully defined in Exhibits A and B of Section 01 22 00 Measurement and Payment.

ARTICLE 2 - THE PROJECT

2.01 The Project for which the Work under the Contract Documents is generally described in Article 1.

ARTICLE 3 - ENGINEER

3.01 The Project has been designed by: Gilmore & Associates, Inc. (Engineer), which is to act as Owner’s representative, assume all duties and responsibilities, and have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents.

ARTICLE 4 - CONTRACT TIMES

4.01 Time of the Essence

A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract.

4.02 Days to Achieve Substantial Completion and Final Payment

A. The Work will be substantially completed within 45 calendar days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within 60 calendar days after the date when the Contract Times commence to run.

4.03 Liquidated Damages

A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above, and that Owner will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed 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 $1,000.00 for each day that expires after the time specified in Paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment.

B. The Owner reserves the right to assess and enforce Work Zone Liquidated Damages for failure to overlay a milled section of roadway within 7 calendar days after it has been milled in accordance with PennDOT Publication 408 Section 491. Work stoppages caused by the Owner and documented weather delays will not count towards the 7 days for calculating Work Zone Liquidated Damages. Contractor shall maintain all milled surfaces and repair or replace any areas damaged due to the overlay not being placed within 7 calendar days of the milling

00 52 00-2 operation methods at no additional cost to the Owner. Accordingly, Owner and Contractor agree that as Work Zone Liquidated Damages, not as a penalty, Contractor shall pay Owner $500.00 for each day of noncompliance, beginning on the 8th calendar day after the roadway has been milled.

ARTICLE 5 - CONTRACT PRICE

5.01 For Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the actual quantity of that item. In that regard, Contractor’s Bid Form is attached hereto as an exhibit.

The Bid prices for Unit Price Work set forth as of the Effective Date of the Agreement are based on estimated quantities. As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer as provided in Paragraph 9.07 of the General Conditions.

ARTICLE 6 - PAYMENT PROCEDURES

6.01 Submittal and Processing of Payments

A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General Conditions.

Applications for Payment will be processed by Engineer as provided in the General Conditions.

B. A quantity breakdown is required to be submitted with each Application for Payment. The breakdown shall provide the actual quantity of work completed for each road at the end of each day of work. Quantities should be confirmed with the field representative before submitted. The Application for Payment will not be processed until an approved breakdown is submitted.

C. Final Payment will not be processed until all punchlist items are completed and approved.

6.02 Progress Payments; Retainage

A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor’s Applications for Payment on or about the 30th day of each month during performance of the Work as provided in Paragraphs 6.02.A.1 below. All such payments will be measured by the schedule of values established in Paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements:

1. Progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as Engineer may determine or Owner may withhold, in accordance with paragraph 14.02 of the General Conditions:

a. Ninety percent (90%) of Work completed (with the balance being retainage). If the Work (Contract Price as adjusted by Change Orders and incidental bid items) has been 50% completed as determined by Engineer, and if the character and progress of the Work have been satisfactory to Owner and Engineer, then as long as the character and progress of the Work remain satisfactory to Owner and Engineer, 95% of Work completed (with the balance being retainage); and

b. Fifty percent (50%) of cost of materials and equipment not incorporated in the Work (with the balance being retainage). Such materials and equipment must be delivered, suitably stored and accompanied by documentation satisfactory to OWNER as provided in paragraph 14.02.A.1 of the General Conditions.

c. When the Work has been 98% completed (Contract Price as adjusted by Change Orders and incidental bid items) as determined by Engineer, Owner shall pay an amount sufficient to increase total payments to Contractor to 100% of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 150% of Engineer's estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected as provided to Contractor.

6.03 Final Payment

00 52 00-3

A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 14.07.

ARTICLE 7 - INTEREST

7.01 All monies not paid when due as provided in Article 14 of the General Conditions shall bear interest in accordance with the following requirements:

A. Progress Payments: In accordance with 62 PA.C.S. §3932 (c) & (d), interest shall be computed at the rate determined by the Secretary of Revenue for interest payments on overdue taxes or the refund of taxes as provided in Sections 806 and 806.1 of the Act of April 9, 1929 (P.L. 343, No. 176), known as The Fiscal Code. No interest payment shall be paid if payment is made on or before the 15th calendar day after the required payment date.

B. Final Payment: In accordance with 62 PA. C.S. §3941(b), interest shall be computed at a rate of 10% per annum, the interest to begin after the date such payment becomes due and payable to Contractor.

However, when Owner has issued bonds to finance the project, interest shall be payable to Contractor at the rate of interest of the bond issue or at the rate of 10% per annum, whichever is less, but in no event shall the interest payable to Contractor be at a rate of interest less than the legal rate of interest.

ARTICLE 8 - CONTRACTOR’S REPRESENTATIONS

8.01 In order to induce Owner to enter into this Agreement Contractor makes the following representations:

A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents.

B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work.

D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities), if any, that have been identified in the Supplementary Conditions as containing reliable “technical data”, and (2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site which has been identified in the Supplementary Conditions as containing reliable “technical data”.

E. Contractor has considered the information known to Contractor; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and (3) Contractor’s safety precautions and programs.

F. Based on the information and observations referred to in Paragraph 8.01.E above, Contractor does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents.

G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor.

00 52 00-4

I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

ARTICLE 9 - CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement (pages 1 to 6, inclusive);

2. Performance Bond (pages 1 to 3, inclusive);

3. Payment Bond (pages 1 to 3, inclusive);

4. General Conditions (pages 1 to 71, inclusive);

5. Supplementary Conditions (pages 1 to 15, inclusive) along with Appendices A, & B.;

6. Specifications as listed in the table of contents of the Project Manual;

7. Drawings consisting of 1 sheet, and as listed in the Project Manual.

8. Addenda (numbers _ to _, inclusive);

9. Exhibits to this Agreement (enumerated as follows):

a. Contractor’s Bid (pages 1 to _, inclusive) and marked Exhibit I and attached to the Agreement;

b. Documentation submitted by Contractor prior to Notice of Award (pages 1 to _, inclusive);

c. Insurance Certificate(s).

10. The following which may be delivered or issued on or after the Effective Date of the Agreement:

a. Notice to Proceed

b. Work Change Directives

c. Change Orders

B. There are no Contract Documents other than those listed above in this Article 9.

C. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph

3.04 of the General Conditions.

ARTICLE 10 - MISCELLANEOUS

10.01 Terms

A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions.

10.02 Assignment of Contract

A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents.

10.03 Successors and Assigns

A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.

10.04 Severability

A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

10.05 Contractor’s Certifications

00 52 00-5

A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10:05:

1. “corrupt practice” means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution;

2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition;

3. “collusive practice” means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and

4. “coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract.

10.06 Other Provisions

A. The Contractor agrees to utilize a professional electrographer, actively engaged in preparation of color DVD or CD recordings for municipal construction projects, to establish video documentation of the existing condition of the roadways and curbing prior to the start of construction. Electrographer shall take special care to note any existing drainage issues and other areas of concern that cannot be remediated solely by the milling and paving. The Contractor further agrees to provide the Township with two (2) copies of the CD or DVD video documentation for their records. Audio-videotaping shall be completed in accordance with Section 01 32 36 of the project manual.

B. The Contractor agrees to notify all property owners and residents a minimum of 3 days prior to milling, paving and/or joint sealant operations that on-street parking will not be permitted during work hours.

Notifications must include specific the dates and times for each roadway. The Contractor further agrees that if proper notice is not given to residents prior to milling, paving and/or joint sealant operations, the Contractor will be responsible for incurring the costs of towing necessary to complete the work.

C. Upon request, Upper Makefield Township will post ‘No Parking’ signage during Contractor’s milling, paving and joint sealing operations. The Contractor agrees to coordinate the schedule and placement of signage with the resident project representative and Upper Makefield Township.

00 52 00-6

IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. Counterparts have been delivered to Owner and Contractor. All portions of the Contract Documents have been signed or have been identified by Owner and Contractor or on their behalf.

This Agreement will be effective on , 20_____ (which is the Effective Date of the Agreement).

OWNER: CONTRACTOR:

Upper Makefield Township

By: By:

Title: ___________________________________

Title: ___________________________________

[CORPORATE SEAL] [CORPORATE SEAL]

Attest:

Attest:

Title: ____________________________________

Title: ____________________________________

Address for giving notices:

Address for giving notices:

Upper Makefield Township

1076 Eagle Road

Newtown, PA 18940

Phone: Phone:

Facsimile:

Facsimile:

E-mail: __________________________________

E-mail: __________________________________

END OF DOCUMENT

(If Owner is a corporation, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of this Agreement.)

(If Contractor is a corporation, a partnership, or a joint venture, attach evidence of authority to sign.)

Agent for service of process:

Designated Representative: Designated Representative:

Name: Name:

Title: Title:

Address: Address: