6-Form of Agreement betweeen Owner and Contractor.pdf

SEDCO

Highridge Business Park – Lot #12 Foster Township, Schuylkill County, PA

FORM OF AGREEMENT Page 1 of 9 Section 520

FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR

THIS AGREEMENT is by and between Schuylkill Economic Development Corporation (“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:

Schuylkill Economic Development Corporation (SEDCO)

Highridge Business Park – Lot #12

Foster Township, Schuylkill County, PA

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:

Clearing and grading of the land, extension of transmission infrastructure, and the installation of stormwater management, paving, and curbing.

All work is as more fully described on the Project Drawings and documents.

ARTICLE 3 – ENGINEER

3.01 The Project has been designed by WJP ENGINEERS (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 120 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 180 days after the date when the Contract Times commence to run.

FORM OF AGREEMENT Page 2 of 9 Section 520

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 $ 100 for each day that expires after the time specified in Paragraph 4.02 above 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 $ 100 for each day that expires after the time specified in Paragraph 4.02 above for completion and readiness for final payment until the

Work is completed and ready for final payment.

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, 5.01.B, and 5.01.C below:

A. For all Work other than Unit Price Work, a lump sum of: $

All specific cash allowances are included in the above price in accordance with Paragraph 11.02 of the General Conditions.

B. For all 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:

UNIT PRICE WORK

Item Estimated Bid Unit

No. Description Unit Quantity Price Bid Price

(Not Applicable)

Total of all Bid Prices (Unit Price Work) $ N/A

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.

C. For all Work, at the prices stated in Contractor’s Bid, attached hereto as an exhibit.

FORM OF AGREEMENT Page 3 of 9 Section 520

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.

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 Paragraph 6.02.A.1 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 Engineer may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions.

a. 5 percent of Work completed (with the balance being retainage). If the Work has been

50 percent 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, there will be no additional retainage; and

b. 10 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage).

B. 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 Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 200 percent 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 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

Engineer as provided in said Paragraph 14.07.

ARTICLE 7 – INTEREST

7.01 No allowance for interest shall be made with respect to progress payments prior to Substantial

Completion. The final payment due the Contractor from Owner after the Engineer has certified

Substantial Completion of the Work shall bear interest at a rate of six percent per annum, such interest to begin to accrue from the date such payment shall become due and payable to Contractor;

provided, however, that where Owner has issued bonds to finance the project to which the Work

FORM OF AGREEMENT Page 4 of 9 Section 520 relates, interest shall be payable to Contractor at the rate of interest of the bond issue or at the rate of six percent per annum whichever is less.

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 Paragraph SC-4.02 of the Supplementary Conditions as containing reliable "technical data," and

(2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site that have been identified in Paragraph SC-4.06 of 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 the Site-related reports 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.

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

FORM OF AGREEMENT Page 5 of 9 Section 520

ARTICLE 9 – CONTRACT DOCUMENTS

9.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement.

2. Notice of Award.

3. Performance bond.

4. Payment bond.

5. Statement of Surety.

6. General Conditions.

7. Supplementary Conditions.

8. Specifications as listed in the table of contents of the Project Manual.

9. Drawings consisting of 14 sheets with each sheet bearing the following general title: Lot #12

[or] the Drawings listed on attached sheet index. (See Specifications)

10. Addenda (numbers to , inclusive).

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

a. Contractor’s Bid (pages to , inclusive).

b. Documentation submitted by Contractor prior to Notice of Award (pages N/A to , inclusive).

12. The following which may be delivered or issued on or after the Effective Date of the

Agreement and are not attached hereto:

a. Notice to Proceed.

b. Work Change Directives.

c. Change Orders.

B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above).

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

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

Paragraph 3.04 of the General Conditions.

FORM OF AGREEMENT Page 6 of 9 Section 520

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

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

FORM OF AGREEMENT Page 7 of 9 Section 520

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 In hiring of employees for the performance of Work under this Agreement or any subcontract, neither Contractor nor any subcontractor or any person acting on behalf of Contractor or any subcontractor shall by reason of gender, race, creed or color discriminate against any citizen of the

Commonwealth of Pennsylvania who is qualified and available to perform the Work to which such employment relates.

10.07 Neither Contractor not any subcontractor or any person on behalf of Contractor or any subcontractor shall in any manner discriminate against or intimidate any employee hired for the performance of the

Work under this Agreement on account of gender, race creed or color.

10.08 This Agreement may be canceled or terminated by Owner, and all money due or to become due under the Agreement may be forfeited for a violation of the terms or conditions set forth in paragraph 10.6 and/or 10.7.

10.09 The parties hereto consent to the exclusive jurisdiction of the Court of Common Pleas of the county in which the contract work is taking place, with respect to any dispute which may arise in connection with this Agreement or the enforcement thereof unless the parties mutually agree in writing to another from of dispute resolution.

10.10 Contractor shall accept the provisions for the Workers’ Compensation Act of 1915, and any supplements or amendments thereof, and Contractor shall insure its liability thereunder or file with

Owner a certificate of exemption from insurance issued by the Department of Labor and Industry of the Commonwealth of Pennsylvania.

10.11 Contractor represents and warrants:

(1) This it is financially solvent and experienced in and competent to perform the Work.

(2) That is familiar with all Federal, State, Township and County laws, ordinances and regulations which may in any way affect the completion of the Work.

(3) That it has carefully examined the Contract Documents and that it has familiarized itself with the various conditions affecting the Work.

(4) That it will perform the Work in accordance with the requirements of the Contract

Documents.

10.12 In accordance with Act 3 of 1978, if any steel or steel products are to be used or supplied in the performance of the Work, only those produced in the United States as defined in the Act shall be used or supplied in the performance of the Work, including any subcontracts. In accordance with

Act 161 of 1982, cast iron products shall be considered steel products governed by the Steel

Products Procurement Act, and all cast iron products shall be produced in the United States. In accordance with Act 141 of 1984, steel products are defined to include machinery and equipment, and machinery and equipment which is governed by the Steel Products Procurement Act shall be supplied in accordance with the requirements of such Act.

10.13 Contractor shall assume all risk of damage or loss which may occur in the performance of the Work or any part thereof and with respect to any of the materials or other things done, furnished and

FORM OF AGREEMENT Page 8 of 9 Section 520 supplied by Contractor, or used and employed in the Work and in the performance of this

Agreement. Contractor shall assume all liability for, and shall indemnify and hold Owner harmless from and against, all claims and expense resulting from accidents, negligence or other cause that may occur during the performance of the Work and this Agreement to any person or persons employed upon this Work or to any person or persons who may be injured or to any property which may be damaged in any manner whatsoever by and during the performance of the Work, together with all costs (including attorneys’ fees costs of defense) incurred in connection with said claim or claims. The parties thereto agree that in any and all relevant respects Contractor is to be considered as an independent contractor.

10.14 This Agreement represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral.

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

OWNER CONTRACTOR

Schuylkill Economic Development Corporation

By: By:

Title: Title:

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

Attest: Attest:

Title: Title:

Address for giving notices: Address for giving notices:

Schuylkill Economic Development Corp.

FORM OF AGREEMENT Page 9 of 9 Section 520

One Progress Circle, Suite 200

Pottsville, PA 17901

License No.:

(Where applicable)

(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 Agent for service of process:

or other documents authorizing execution of this Agreement.)

FORM OF AGREEMENT Page 10 of 9 Section 520