16-Exhibit N Sample Agreement.pdf

EXHIBIT N

STATE OF SOUTH CAROLINA )

AGREEMENT

COUNTY OF BEAUFORT )

THIS AGREEMENT is made this _______Day of _________ 202_ between _________(hereinafter called “Contractor") and the Town of Hilton Head Island (hereinafter called "Town “or “Owner”), a municipal corporation organized and existing under the laws of the State of South Carolina.

WHEREAS, the Town has a need for a qualified contractor to complete planned improvements for the asphalt parking lot located at and adjacent to 213 William Hilton Parkway, Hilton Head Island, SC 29926; and

WHEREAS, the Town and the Contractor desire to enter into an Agreement wherein the Contractor shall provide such services as set forth herein below.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

CONTRACT DOCUMENTS

The Contract Documents herein named include all of the following component parts, all of which are as fully a part of this Contract as if herein set out verbatim, subject to all stated exclusions, or, if not attached, as if hereto attached:

1. Exhibit A (IFB) (RFP) Project Number (dated XYZ)

2. Exhibit (TBD) Contractor (<insert name> Bid Form (dated XYZ)

3. Exhibit (TBD) Town/USPS Contract

4. Exhibit (TBD) Special Provisions

5. Exhibit (TBD) Special Conditions

6. Exhibit (TBD) General Conditions

7. Exhibit (TBD) A/E <insert name> Plans and Specifications (dated XYZ)

8. Exhibit (TBD) SC Illegal Immigration Act Affidavit

9. Exhibit (TBD) Project Schedule (dated XYZ)

10. Exhibit (TBD) <Insert additional Exhibits as necessary>

1. Total lump sum compensation paid to the Contractor shall not exceed

________________ dollars and _________cents. ($). Contractor shall submit monthly progress billings to Town for approval and payment. Town shall withhold ten percent (10%) as retainage from the payment otherwise due. Retainage amount will be released to Contractor once Town has determined that the Contractor has satisfactorily completed all contracted work.

Contractor shall, and agrees to, commence Work at the Project site by the date provided in the Notice to Proceed, and to complete fully all Work required by the Contract Documents to the point of Final Acceptance by the Town by no later than one hundred twenty (120) calendar days from said date. Contractor shall and agrees to furnish and deliver to Town within ten (10) days after date of award of this Contract, the Faithful Performance Bond and Payment Bond and the insurance certificates and policies required of them by the Contract Documents prerequisite to starting Work. The Contractor may not assign this Contract without the prior written approval of the Town.

In the event that any assigned work and deliverables are not completed within the contract performance period outlined herein, such failure will result in a material breach of this Agreement. The Contractor shall be assessed liquidated damages of one thousand dollars and zero cents ($1,000.00) per calendar day should construction of all Project elements not be finally accepted by the completion date identified in the Notice to Proceed.

Changes to the Contractor’s compensation or the performance period may be required to account for changes in the work if requested by the Town, or as a result of conditions Contractor did not know of and could not reasonably have been expected to be aware of or to have anticipated at the time of contract execution. Such changes shall be made via a written change order approved by both parties.

2. The term of this Agreement shall be for a period commencing on the date specified in the

Notice to Proceed and expire upon both parties completing the full obligations as provided therein.

3. The Contractor is required to maintain the levels of insurance as provided for in SC-5 of

Exhibit (TBD) Special Conditions, which is attached hereto and made part of this Agreement. The Contractor must provide the Town with a Certificate of Insurance evidencing that they have the required insurance coverages. The Town shall be named as an additional insured with respect to general liability coverage. The Contractor is required to immediately contact the Town should any change to these policies occur during the course of the performance of this contract. Failure to maintain these policies is grounds for termination.

4. Termination.

4.1 The Town may terminate this Agreement in whole or in part at any time for the convenience of the Town by delivery of a written notice to the Contractor. If this Agreement is terminated for the convenience of the Town, the Town will pay the Contractor only for those services rendered by the Contractor up to the date of termination, based on the existing rates of this Agreement, and prorated to the date of termination.

4.2 The Town may also terminate this Agreement if funds are not appropriated or otherwise made available to support continuation of this Agreement in subsequent fiscal years. In such event, the Town shall deliver a written notice to the Contractor that this Agreement is terminated effectively on the last day of the then current fiscal year due to the lack of appropriated funds, and the Town will pay the Contractor only through the end of the then current fiscal year at the existing rates in this Agreement.

4.3 If the Town is made to stop work on any work undertaken under this Agreement because of an order from a Court or State Department, the Agreement may be terminated.

Payment will be made for work completed, with an appropriate pro-rated payment made for any incomplete work that is in progress, and for the overhead and profit of the completed work and work in progress. Payment will not be made for anticipated profit and overhead on work not completed nor in progress.

5. Should any part of this Agreement be rendered void, invalid, or unenforceable by any court of law, such a determination shall not render void, invalid, or unenforceable any other part of this Agreement.

6. This Agreement has been made and entered into in the State of South Carolina, and the laws of South Carolina shall govern the validity and interpretation of this Agreement in the performance due hereunder.

7. This Agreement may not be modified unless such modification is in writing and signed by both parties.

8. The Contractor may not assign this Agreement without the prior written approval of the Town.

9. The Contractor shall defend, indemnify, and hold harmless the Town, its officers, directors, agents, and employees from and against any and all actions, costs, claims, losses, expenses, and/or damages, including attorney’s fees, whether incurred prior to the institution of litigation, during litigation, or on appeal arising out of or resulting from the conduct of any activity hereby authorized or the performance of any requirement imposed pursuant by this Agreement, however caused or occasioned, unless caused by the willful misconduct or gross negligence of the Town.

10. The parties hereto intend that no master/servant, employer/employee, or principal/agent relationship will be created by this Agreement. Nothing contained herein creates any relationship between the Town and the Contractor other than that which is expressly stated herein. The Town is interested only in the results to be achieved under this Agreement, and the conduct and control of the agents and employees of the Contractor and the methods utilized by the Contractor in fulfilling its obligations hereunder shall lie solely and exclusively with the Contractor and its agents and employees shall not be considered agents or employees of the Town for any purpose. No person employed by the Contractor shall have any benefits, status, or right of employment with the Town.

11. The Contractor, by signing this Agreement, hereby certifies that Contractor shall comply with all applicable requirements of the South Carolina Illegal Immigration Reform Act, S.C. Code Ann. §41-8-10 (2007) et seq., (the "Act"), and that Contractor covenants and agrees as follows:

11.1 Contractor shall not knowingly or intentionally employ any unauthorized alien and, unless excluded from coverage of the “Act”, shall verify the work authorization of newly hired employees performing work under the Agreement by registering and participating in the Federal Work Authorization Program (E-verify) and verifying the work authorization of every new hired employee within three (3) business days after employing employee.

11.2 Contractor agrees to provide to the Town all documentation requested by it to establish either:

(a) the applicability of the South Carolina Illegal Immigration Reform Act to Contractor; or

(b) compliance with the South Carolina Illegal Immigration Reform Act by Contractor.

11.3 Contractor agrees to include in any contracts with its sub-contractors language requiring its sub-contractors to:

(c) comply with the applicable requirements of Title 8, Chapter 14 of the South Carolina Code of Laws; and

(d) include in their contracts with the sub-subcontractors language requiring the sub-subcontractors to comply with the applicable requirements of Title 8, Chapter 14 of the South Carolina Code of Laws.

11.4 Contractor acknowledges and agrees that it shall comply with requirements of the Immigration Reform and Control Act of 1986 including the non-discrimination provisions thereof, and shall complete all required I-9 documentation for all workers employed by it.

11.5 Contractor certifies it shall comply with all state, federal, and local laws, rules, regulations and orders applicable to it in performance of work under the contract.

12. Anything called for by one of the Contract Documents and not called for by the others, shall be of like effect as if required or called for by all, except that a provision clearly designed to negate or alter a provision contained in one or more of the Contract Documents shall have the intended effect. In the event of any conflict, inconsistency, or ambiguity between the documents comprising this Contract, the following order of precedence shall apply unless otherwise expressly stated: (1) the main body of this Contract, including any amendments, addenda, or modifications executed by both Parties; (2) the exhibits, schedules, or attachments referenced in and attached to this Contract, in the following order where applicable: the Agreement of Purchase and Sale between the Town and United States Postal Service (USPS); then the Special Provisions (Exhibit); then the Special Conditions (Exhibit); then the General Conditions (Exhibit TBD); (3) any specifications, drawings, or technical documents incorporated by reference; and (4) any other documents, including purchase orders or correspondence, forming part of this Contract. This order of precedence shall govern the interpretation and resolution of any discrepancies between the Contract documents.

IN WITNESS WHEREOF, the parties hereto have affixed their signatures hereto the date first written hereinabove. The parties agree that an electronic copy, including facsimile copy, email, or scanned copy of the executed Agreement, shall be deemed, and shall have the same legal force and effect as, an original document.

<CONTRACTOR’S NAME>

By:

Its:

TOWN OF HILTON HEAD ISLAND

By:

Marc Orlando, ICMA-CM Its: Town Manager