4-Sample Agreement Between Owner and Contractor - FINAL.pdf

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved.

This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law.

AGREEMENT

BETWEEN OWNER

AND CONTRACTOR

(SAMPLE)

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

SUGGESTED FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR FOR

CONSTRUCTION CONTRACT

Prepared by

ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE

and

Issued and Published Jointly By

PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE

a practice division of the

NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS

AMERICAN CONSULTING ENGINEERS COUNCIL

AMERICAN SOCIETY OF CIVIL ENGINEERS

This document has been approved and endorsed by

The Associated General Contractors of America and the

Construction Specification Institute

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

AGREEMENT

BETWEEN OWNER AND CONTRACTOR

FOR CONSTRUCTION CONTRACT

THIS AGREEMENT is by and between City of Owensboro, Kentucky (“Owner”) and

(“Contractor”)

Owner and Contractor, in consideration of the mutual covenants hereinafter set forth, 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:

Replace storm inlets at various locations throughout the City of Owensboro.

ARTICLE 2 – THE PROJECT

2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows:

ARTICLE 3 – ENGINEER

3.01 Kevin Collignon, P.E., City Engineer (Engineer) has 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 unless otherwise directed in writing by the Owner.

3.02 The Owner will use an Owner’s Representative during the construction project 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

Project Substantial Completion and 100% Final Completion:

A. Substantial Completion: The Work must be complete in accordance with the General Conditions for the _______________________________________, or as adjusted for extensions. Work shall be considered finally complete upon completion by the Contractor and approval by the Owner. For the project to be considered substantially complete all items of work must be completed and the roadway open to traffic.

B. 100% Project Completion: The Work must be 100% complete and accepted as final by the Owner on or before 30 calendar days after substantial completion or as adjusted for extensions.

C. Contract Time Extensions: Contract time extensions will be applied equally to the Substantial and 100% Completion dates for the conditions enumerated in paragraph “D” through “H” below.

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

D. Maintenance of Schedule with respect to weather delays will be determined by two weather categories: Adverse Weather & Unusually Severe Weather.

E. Definitions:

i. “Adverse weather” - atmospheric conditions at a definite time and place that are unfavorable to construction activities.

ii. “Unusually severe weather” – weather that is more severe than the adverse weather anticipated for the season or location involved.

F. TIME EXTENSIONS FOR AVDERSE WEATHER - The following schedule of monthly anticipated adverse weather delays is based on the National Oceanic Atmospheric Administration (NOAA) or similar data for the project location and will constitute the base line for monthly weather time evaluations. The Contractor’s progress schedule must reflect these anticipated adverse weather delays in all weather dependent activities.

MONTHLY ANTICIPATED ADVERSE WEATHER DELAY

WORK DAYS BASED ON (5) DAY WORK WEEK

JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC

(11) (08) (06) (06) (05) (04) (05) (04) (04) (04) (04) (06)

G. TIME EXTENSIONS FOR UNUSUALLY SEVERE WEATHER - This provision specifies the procedure for the determination of time extensions for unusually severe weather in accordance with the contract clause entitled in the General Conditions Article 12.03 -C. In order for the City of Owensboro to award time extension under this clause, the following conditions must be satisfied

i. The weather experienced at the project site during the contract period must be found to be unusually severe, that is, more severe than the adverse weather anticipated for the project location during any given month

ii. The unusually severe weather must actually cause a delay to the completion of the project (Critical Path Items). The delay must be beyond the control and without the fault or negligence of the Contractor.

H. Upon acknowledgment of the Notice to Proceed (NTP) and continuing throughout the contract, the Contractor will record on the DIR, the occurrence of adverse weather and resultant impact to normally scheduled work. Actual adverse weather delays days must prevent work on critical path activities for 50 percent or more of the Contractor’s scheduled work day. The number of actual adverse weather delay days shall include days impacted by actual adverse weather (even if adverse weather occurred in previous month), be calculated chronologically from the first to the last day of each month, and be recorded as full days. If the number of actual adverse weather delay days exceeds the number of days anticipated in paragraph F, above, the Contracting Officer will convert any qualifying delays to calendar days, giving full consideration with the contract clause entitled in the General Conditions Article 12.03 -C.

4.03 Liquidated Damages

A. Contractor and Owner recognize that time is of the essence of this Agreement 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 and 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 $_____ for each calendar day that expires after the time specified in Paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by Owner, Contractor shall pay Owner $_____ for each calendar 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.

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

ARTICLE 5 – CONTRACT PRICE

5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to Paragraphs 5.01.A and 5.01.B below:

A. For all Work in compliance with the Unit Price amounts established in the Form of Proposal, The total sum based on the calculated base bid quantities shall be:

(words) (figure)

All specific cash allowances are included in the above price and have been computed in accordance with paragraph

11.02 of the General Conditions.

B. All components of the revised alternate design (labor, material and equipment) are the responsibility of the Contractor. Any deviation in the quantities, including the cost of quantity increases, will not be passed onto the Owner and will not result in an increase in additional costs to the Owner.

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 Owner’s Representative as provided in the General Conditions.

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 first week of each month during performance of the Work as provided in Paragraphs 6.02.A.1 and 6.02.A.2 below. All such payments will be measured by the schedule of values established as provided 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. Prior to Substantial Completion, 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 Owner’s Representative may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions:

a. 100 percent of Work completed (with the balance being retainage). If the Work has been 50 percent completed as determined by Owner’s Representative, and if the character and progress of the Work have been satisfactory to Owner and Owner’s Representative, Owner, on recommendation of Owner’s Representative, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage; and

b. 100 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage).

c. A ten percent (10%) retainage shall be held for all completed work. At the Owner’s discretion, the retainage may be reduced to five percent (5%) after 50 percent of the Work has been complete and accepted.

2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 100 percent of the Work completed, less such amounts as Owner’s Representative shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 100 percent of Owner’s

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

Representative’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 attached to the certificate of Substantial Completion.

6.03 Final Payment

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 Owner’s Representative as provided in said Paragraph 14.07.

ARTICLE 7 – INTEREST

7.01 This Article has been intentionally omitted.

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 in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in Paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in Paragraph 4.06 of the General Conditions.

E. Contractor has obtained and carefully studied (or assumes responsibility for doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of 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 Bidding Documents, and safety precautions and programs incident thereto.

F. Contractor does not consider that any 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 correlated the information known to Contractor, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents.

I. 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.

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

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

ARTICLE 9 – CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement.

2. Performance bond.

3. Payment bond.

4. Bid bond.

5. Instruction to Bidders.

6. Standard General Conditions.

7. Specifications as listed in the Table of Contents of the Project Manual.

8. Addenda (numbers to , inclusive).

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

a. All Bid Documents including Contractor’s Bid Submission

b. Sub-Contractors List (if any)

c. Exceptions List (if any)

10. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto:

a. Revised Alternate Design Plans, provided by the Contractor & stamped by a licensed Professional Engineer registered in the state of Kentucky.

b. Notice to Proceed.

c. Work Change Directives.

d. Change Order(s).

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 Standard 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.

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

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 Joint and Several Liability

A. All terms, covenants and conditions contained in this Agreement shall be applicable to and binding upon the Contractor, _______________. The Contractor represents and warrants that all insurance policies issued to provide coverage for the Project and all performance and payment bonds issued for the Project do and shall cover and apply to the Contractor, __________________.

10.06 Representation on Authority of Parties/Signatories

A. Each signatory to this Agreement warrants that he/she is duly authorized to sign this Agreement on behalf of the entity they represent and to bind such entity to the terms, covenants, and conditions contained herein. This Agreement may be signed in one or more counterpart copies. Each counterpart copy shall constitute an Agreement and together they form a fully executed Agreement.

EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price)

IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement in duplicate. One counterpart each has been delivered to Owner and Contractor. All portions of the Contract Documents have been signed or identified by Owner and Contractor or on their behalf.

This Agreement will be effective on ________________(which is the Effective Date of the Agreement).

OWNER: CONTRACTOR

City of Owensboro, Kentucky COMPANY NAME:

By: By:

Thomas H. Watson

Title: Mayor, City of Owensboro, Kentucky

Attest: Attest:

Title: Title:

Address for giving notices: Address for giving notices:

ADDRESS

License No.: N/A

(Where applicable)

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

End of Section

2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 100 percent of the Work completed, less such amounts as Owner’s Representative shall determine in accordance with Paragraph 14.02.B.5 of t...