6-TB2660-WT - Attachment C - Sample Contract.pdf

ATTACHMENT E TB2650-RHP

(SAMPLE CONTRACT DOCUMENT)

Facility Name:____________________ Project Name:____________________

SALT LAKE CITY SCHOOL DISTRICT BOARD OF EDUCATION

AND CONTRACTOR AGREEMENT

THIS AGREEMENT is made and entered into this ___________________ by and between the BOARD OF EDUCATION OF SALT LAKE CITY SCHOOL DISTRICT (“Board”), and ______(contractor)__________. The Board authorizes Salt Lake City School District (“District”) to implement and execute this Agreement on its behalf.

WHEREAS, the District desires to employ Contractor for the purposes hereinafter specified; and Contractor desires to be employed by the District on the terms and conditions hereinafter specified; the District and Contractor for the consideration set forth above, do hereby covenant, promise and agree to the following:

ARTICLE I -DEFINITIONS

l.1 Contract Documents. The "Contract Documents" consist of this Agreement, together with the District’s Terms and Conditions for Services (Attachment A), Additional Terms and Conditions (Attachment A.1), plans, drawings and specifications as found in Bid # ________, and as they may be modified or amended from time to time, written interpretations of the Contract Documents, directives to be made from time to time by the Architect or the project manager, and change orders which may be issued. The Contract Documents together form the Contract for the Work. The parties hereto intend that the Contract Documents include provision for all labor, materials, equipment, supplies and other items necessary for the execution and completion of the Work and all terms and conditions of payment.

1.2 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by Contractor to fulfill Contractor's obligations.

1.3 Project. The Project is the total construction plan, of which the Work performed under the Contract Documents may be the entirety or just a portion thereof, and which may include construction by the Contractor, sub-contractors or by separate contractors.

ARTICLE II -PERFORMANCE OF WORK

2.1 Contractor's Duties. Contractor shall fully perform the following described Work under the direction of the District's duly appointed Architect, Executive Director of Auxiliary Services, or other authorized agent in accordance with the Contract Documents.

Provide all labor, materials, equipment and services to ______________________________________.

ARTICLE III -CONTRACT PRICE

3. 1 Contract Price. The District agrees to pay the Contractor for the Work the total amount of $_________________. The Contract Price is subject to additions or deductions in accordance with the provisions of this Agreement and the Contract Documents.

ARTICLE IV -PAYMENT OF CONTRACT PRICE

4.l Progress Payments. Not later than the last Friday of each month, the Contractor shall present to the Architect designated in

Section 5.1 a statement of the value of that portion of the Work done, including materials in place as of the date of the statement, itemized according to the headings of the specifications which are part of the Contract Documents. Not later than the first Tuesday of the month, the Architect shall present to the District their estimate of the value of said Work and materials in place.

The District shall, within ten (10) days thereafter, pay to the Contractor a sum equal to 95% of the Architect's estimate of the Work and materials in place but not yet paid for. The remaining 5% of the Architect's estimate shall be held as retainage until final payment is authorized. The 5% retainage shall become part of the final payment. Progress payments may be withheld in whole or in part if:

a. work is found defective and not remedied to the satisfaction of the Architect;

b. Contractor fails to make prompt and proper payments to subcontractors;

c. Contractor fails to make prompt and proper payments for labor, materials, or equipment furnished by others;

d. another contractor or subcontractor is damaged by an act for which Contractor is allegedly responsible;

e. claims or liens are filed on, against or with respect to the Work; or

f. in the opinion of the Architect or the District, the Work is not progressing satisfactorily.

4.2 Failure to Make Progress Payments. If a progress payment is not made by the District, through no fault of Contractor, for a period of thirty (30) days after it becomes due, Contractor may terminate this Agreement, without waiving any other rights to which it may be entitled, by giving the project manager and the Architect thirty (30) days written notice.

4.3 Additional Payment. In addition to the progress payments referred to in Section 4.1 above, the District may, in its own discretion, include in its monthly payment an amount up to, but not exceeding 75% of the Architect's estimated value of materials delivered to the site but not yet incorporated in the Work. Contractor hereby warrants that all material delivered to the site for which payment is made pursuant to this Section 4.3 shall not be removed from the site, provided that if such material is removed, Contractor shall promptly notify the Architect or project manager in writing of such removal and shall fully reimburse the District for all amounts paid for such material pursuant to this section.

4.4 Final Payment. Final payment shall be made to Contractor by the District within thirty (30) days after the later of: (a) full completion of the Work, or (b) the District's final acceptance of the Work as complete. As a condition precedent to final payment, the Contractor shall deliver to the Architect good and sufficient evidence that all claims due and chargeable to the Contractor have been paid.

4.5 Payments not Acceptance. The payment by the District of any or all of the Contract Price shall not be construed to be an acceptance of defective or improper materials or workmanship.

ARTICLE V -DESIGNATION OF ARCHITECT: DUTIES AND AUTHORITY

5.1 Designation of Architect/Engineer. The Architect for the Project is: __________.

5.2 Duties and Authority of Architect. The Architect/Project Manager shall have the following duties and authority under the

Contract Documents:

5.2.1 General Administration of the Contract. The primary function of the Architect is to provide the general administration of the

Contract Documents and this Agreement. In performing these duties, the Architect is the District's representative and duly authorized agent during the entire period of construction, including any correction period following construction.

5.2.2 Progress Reports. The Architect will keep apprised of the progress and quality of the Work by making periodic visits to the worksite. The Architect will make general determinations as to whether the Work is proceeding in accordance with the Contract Documents, and the Architect will keep the project manager informed of such progress and will use his/her best efforts to protect the District from defects or deficiencies in the Work.

5.2.3 Access to Worksite. The Architect/Project Manager shall be given free access to the worksite at all times during the preparation for, and the performance of, the Work, including any correction period following the completion of the Work.

5.2.4 Interpretation of Contract Documents Decisions on Disputes. The Architect is the initial interpreter of the Contract Documents and will make preliminary decisions on any claims or disputes that arise. The decision of the Architect upon any question relating to the true meaning of the drawings, plans and specifications or the performance or completion of the Work,

5.2.5 Rejection and Stoppage of Work. The Architect shall have authority to reject any portion of the Work which, in his/her opinion does not conform to the Contract Documents. The Architect may stop the Work or any portion thereof when he/she deems it to be necessary for any reason. The Architect shall inspect the project to determine if any material or workmanship is not in accordance with the provisions of the Contract Documents. If any non-conforming material or workmanship is found, the Architect shall notify Contractor within a reasonable time after such discovery. Contractor shall, within a reasonable time after it receives such notice, take all necessary actions to cure the non-conformity. The District shall be under no obligation to accept or pay Contractor for any such non-conforming material or workmanship.

ARTICLE VI -TIME LIMITS/LIQUIDATED DELAY DAMAGES

6.1 Time Limits. The Contractor acknowledges that time is of the essence in the performance and completion of the Work covered by this Agreement and in the Contract Documents. By executing this Agreement, the Contractor expressly agrees that the time limits set forth herein and in the Contract Documents are reasonable. The Contractor understands and agrees that time is still of the essence if any additional time is allowed for the completion of any Work, and by allowing such additional time neither party waives the right to demand timely performance in the future.

6.2 Beginning and Completion Dates. The Work to be performed by the Contractor under this Agreement shall begin no later than __________________ with full completion NO LATER THAN __________________.

6.3 Completion and Progress of Work. Contractor agrees that the Work shall be undertaken diligently, and without interruption, at such rate of progress as will insure full completion in the time specified in this Agreement.

6.4 Extension of Time. Should Contractor be delayed in the progress or completion of the Work by any cause mentioned in this Agreement, or by any alteration or addition made in said Work by and under the authority of the Architect, then the time fixed for the completion of said Work shall be extended for a period equivalent to the time lost by reason of any of the aforementioned causes. The extended period, if any, shall be determined and fixed in writing by the Architect, but no such allowance shall be made unless a written claim is presented by Contractor to the Architect within a forty-eight (48) hour period after the occurrence of any such alleged cause. If, for any reason, the Architect shall deem it advisable to suspend the Work, he shall have the right and power to do so without incurring any liability to Contractor, provided that the period of suspension, if any, will be added to the time stipulated for completing the performance of the Work in Section 6.2 above.

6.5 Liquidated Damages for Delay. In the event Contractor shall fail to fully complete the Work within the time limits specified in this Agreement, Contractor expressly agrees as part of the consideration for the awarding of this Agreement to pay to the District for each and every day that the Work shall remain uncompleted after the completion date, or after the respective completion dates specified for each phase of the Work in Section 6.2 above, as such date(s) may be changed pursuant to this Agreement, the sum of $1,000 per calendar day as liquidated damages. It is expressly understood and agreed by the District and Contractor that the time specified herein for completion of the Work and the amount of said liquidated damages are fair and reasonable, and that the liquidated damages provided for herein represent the parties' best estimate of the amount of actual damages which will be sustained by the District in the event of a delay, and that the liquidated damages are not a penalty. It is further expressly understood and agreed, by the District and Contractor, that in fixing said completion date and in determining the amount of said liquidated damages, the following factors, among others, have been taken into consideration:

a. The urgent need of the District to have the Work completed by the time specified in order to fulfill its educational commitments.

b. The size, design and location of the Work.

c. The quantity, quality and availability of labor and materials involved in the Work.

d. The Contract Price.

e. The average climatic range, the customary weather for the time period of this Agreement, and the usual customs and practices prevailing in the construction industry in this geographic area.

f. The impossibility of ascertaining and fixing the actual damages the District would sustain in the event of delay in the completion of the Work.

g. Applicable laws and governmental rules and regulations.

6.6 Retention of Delay Damages. The parties agree that any delay damages incurred pursuant to Section 6.5 above may be deducted and retained by the District in addition to the amounts withheld by the District as provided in Sections 4.1 and 4.5 hereof, provided that in the event the withheld amounts are insufficient to pay the delay damages, Contractor shall promptly, upon demand, pay such deficiency to the District. Contractor shall not be liable for delay damages when the delay is directly caused by any of the following:

a. General strikes, acts of God, acts of the public enemy, acts by the District, or casualty beyond the control and/or through no fault or negligence of Contractor.

b. Delays of subcontractors or suppliers, occasioned by any of the causes specified in subparagraph 6.6(a) above.

ARTICLE VII -RESPONSIBILITIES OF CONTRACTOR

7.1 Responsibility for and Supervision of Construction. Contractor shall be solely responsible for all of the Work, including the techniques, sequence, procedures, and means, and for the coordination of all Work; and shall supervise and direct the Work to the best of its ability and give it all attention necessary for such proper supervision and direction.

7.2 Materials and Equipment. Contractor shall provide and pay for all materials and equipment not furnished by the District and shall also provide and pay for labor, transportation, services, tools, machinery and all other items and services necessary for the proper execution and completion of the Work according to the Contractor Documents, whether the same may or may not be particularly described therein, and according to such explanations and directions as the Architect may from time to time give for the purpose of the Work. Every part of the Work shall be executed and completed in a sound workmanlike manner and all materials furnished by Contractor and used in the Work shall be new and of the best of their respective kinds, except as otherwise directed in writing by the Architect or allowed by the Contract Documents.

7.3 Taxes. Contractor represents that it has included in its bid the cost of all applicable taxes and fees including, but not limited to, Social Security and Unemployment Compensation as required by federal, state and local taxing authorities. The District is exempt from sales and use taxes, Utah Code Ann. §59-12-104(2)

7.4 Extra Work. Contractor shall not deviate from the Contract Documents or perform any extra work of any kind unless authorized or directed in advance in writing by the Architect. The amount to be paid, allowed or deducted on account of such alterations or extra work, if any, shall be stated in writing, or provision made for the determination thereof in said written authorization, and no claim by Contractor for extra payment on account of such extra work shall be valid, nor shall any such extra payment be due and owing to Contractor, unless such written authorization shall be delivered to the District before the change is made or the work is done.

7.5 Discipline and Employment. While completing the Work, Contractor shall at all times maintain strict discipline among its employees, and shall not employ any person unfit or without sufficient skill to perform the job for which he was employed.

Contractor shall assure that no alcohol, tobacco of any kind or illegal drugs are used or possessed on any District property or the job site.

7.6 Access to Job Site. Contractor shall permit all persons appointed or authorized by the project manager or the Architect to visit the worksite or inspect the Work at any reasonable time, and shall provide sufficient, safe and proper ways and means for such inspection. When so directed by the project manager or by the Architect, Contractor shall prevent the entrance or presence upon the worksite of any person or persons whether or not engaged or employed in the Work. Should the Contractor fail to do so, the District, or the Architect acting for the District, may employ such guards, watchmen or other persons as the District or the Architect deem necessary, the cost and expense of which shall be chargeable against the Contractor and may be deducted from the Contract Price or any amount due or to become due the Contractor.

7.7 Procurement of Licenses and Permits. Contractor, at its sole cost and expense, shall secure all licenses and permits necessary for proper performance and completion of the Work.

7.8 Safety. Contractor shall provide for and oversee all safety orders, precautions and programs necessary to the reasonable safety of the persons and employees engaged in the Work, including specifically, but not limited to, all applicable federal and state Occupational Safety and Health Standards. Contractor shall comply with all applicable laws, ordinances, rules, regulations and orders, and shall take all other reasonable precautions for the proper maintenance and safekeeping of all work and materials incorporated into the Work, and all equipment, property and improvements on the construction site and adjacent thereto.

7.9 Clean-up. Contractor agrees to keep the work premises and adjoining property free of waste material and rubbish caused by performance of the Work. Contractor shall remove all such waste materials and rubbish upon completion or termination of the Work, together with all tools, equipment, machinery and surplus materials used in the Work, to the satisfaction of the Architect and the District.

ARTICLE VIII -DIRECT PURCHASES BY THE DISTRICT

8.1 Furnishing of Labor and Materials and Direct Purchase by District. The District shall have the right to furnish any part or all of the materials and equipment which shall be used in the Work or which shall become a part of the permanent structure. At the request of the District, Contractor shall furnish to the District a description, source of supply and trade discount information on any or all of the equipment or material to be used in the Work in order to enable the District to purchase directly any such materials and equipment it desires. Purchases by the District shall be made on requisition of purchase orders furnished by the District and signed by the District’s duly authorized purchasing agent.

8.2 Title to Directly Purchased Items. Title to all materials and equipment purchased directly by the District shall pass from the vendor directly to the District upon delivery to the worksite, without any vesting of title in Contractor. After delivery to the worksite, Contractor assumes all risk of loss, damage, theft, vandalism, or destruction of or to any such materials and equipment purchased directly by the District.

8.3 Storage/Hold Harmless. Storage of any materials and equipment purchased directly by the District shall be the responsibility of Contractor. Contractor shall hold the District harmless of and from any failure of the suppliers of materials or equipment so purchased by the District resulting in any loss, claim, defect, discrepancy, delay in delivery or any problem relating to such materials or equipment.

8.4 Acknowledgment by Contractor/Payment by District. Contractor shall acknowledge receipt and approval of any such materials or equipment purchased directly by the District by signing the invoice for any such materials or equipment. The District agrees to make payment for any such materials or equipment within a reasonable time after the receipt of the signed invoice from Contractor.

8.5 Prompt Payment Discounts. The District shall not be responsible for the loss of a prompt payment discount from the purchase price if the District makes payment (determined by the date of mailing of the check for payment) within ten (10) business days following the receipt by the District of the Contractor’s signed invoice from.

8.6 Adjustment of Contract Price. The Contract Price shall be reduced by the amount actually paid by the District for such materials and equipment purchased directly by the District and by the amount of any sales or use tax which would have been paid on such materials and equipment had they been purchased by Contractor. The amount of any progress payment provided for in Section

4.1 hereof shall be reduced as provided in the previous sentence to reflect the direct purchase of any such materials and equipment by the District. The District shall not be responsible for the loss of or reduction in any trade discounts available to the Contractor as a result of any purchases made directly by the District.

8.7 Miscellaneous. All bonds and insurance required by this Agreement shall remain in full force and without reduction or modification despite any direct purchases by the District. Contractor shall not be relieved of any of its duties or obligations under this Agreement or under the Contract Documents because of any direct purchase made by the District, nor shall any such direct purchase be construed as a waiver of the District's right to insist upon complete performance of this Agreement by Contractor.

ARTICLE IX - INSURANCE

9.1 General Liability Insurance. During the term of this Agreement, Contractor, at his or her own cost and expense, shall procure and keep in force comprehensive general liability insurance with minimum limits as follows:

a. $1,000,000.00 bodily injury or death for each person, $3,000,000.00 for each occurrence, and $3,000,000.00 aggregate;

b. $1,000,000.00 for property damage for each occurrence and $3,000,000.00 aggregate.

9.2 Automobile Liability Insurance. Contractor shall procure and keep in force at its own cost and expense during the term of this Agreement comprehensive automobile liability insurance with minimum limits as follows:

a. $1,000,000.00 for bodily injury or death for each person and $3,000,000.00 for each occurrence;

b. $1,000,000.00 for property damage for each occurrence.

9.3 Owner's Protective Liability. The District shall procure and keep in force at its own cost and expense during the term of this Agreement owner's protective liability insurance with minimum limits as follows:

a. $1,000,000.00 for bodily injury or death or each person and $3,000,000.00 for each occurrence;

b. $1,000,000.00 for property damage for each occurrence and $3,000,000.00 aggregate.

9.4 Fire Insurance, Vandalism, and Malicious Mischief. During the term of this Agreement, the District, at its own cost and expense, shall procure and keep in force for and extended coverage insurance with a minimum limit of 100% of the insurable value of the Work. The insurance premiums shall be paid by the District and the policy shall be made payable to the District.

District shall also procure and maintain vandalism and malicious mischief coverage at its own cost and expense.

9.5 Worker's Compensation and Employer's Liability Insurance. Contractor shall comply with the provisions of the Utah Worker's Compensation Act, the Utah Unemployment Compensation Act, and all other federal and state laws relating to Contractor's employees, and Contractor shall make all payments, returns and reports required by such federal and state laws.

9.6 Insurance Companies. All insurance policies required under this Article IX shall be issued by a company or companies satisfactory to the District.

9.7 Certificates of Insurance. Certificates of Insurance acceptable to the District shall be filed with the District prior to commencement of the Work. These Certificates and the insurance policies required by this Article IX shall contain a provision that coverage(s) afforded under the policies will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the District. If any of the foregoing insurance coverage's are required to remain in force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment. Information concerning reduction of coverage shall be furnished by Contractor with reasonable promptness in accordance with Contractor's information and belief.

ARTICLE X -INDEMNIFICATION

10.1 Indemnification. Contractor agrees to protect, indemnify and hold the Board, its officers, members, agents and District employees (collectively the "Indemnitees") free and harmless from and against all losses, claims, liens, demands and causes of action of every kind and character arising out of the performance of the Work by Contractor or by its subcontractors, including the amount of judgment, penalties, interest, court costs and legal fees incurred by the Indemnitees or any of them in defense of same, arising in favor of any party, including governmental agencies or bodies, on account of, but not limited to, taxes, claims, liens, debts, personal injuries, death or damages to property (including property of Indemnitees). Contractor further agrees to investigate, handle, respond to, provide defense for and defend any such claim, demand or cause of action at its sole expense, and agrees to bear all other costs and expenses related thereto, even if such claim, demand or cause of action is groundless, false or fraudulent, unless such claim, demand or cause of action is due solely to the fault of the District. Contractor agrees to defend and indemnify the District against any and all demands, claims, lawsuits and liabilities against the District for materials and labor furnished in connection with the Work, whether such claim arises before or after final payment.

ARTICLE XI -WORK CHANGES

11 .1 Change Orders. The District reserves the right to order additions, deletions, or modifications in the Work, without invalidating this Agreement or the Contract Documents. Any such change will become effective upon receipt by Contractor of a written change order signed by the Architect and approved by the District. Each approved change order will include conforming changes in the Contract Documents, including necessary or appropriate changes in the Contract Price and completion time.

ARTICLE XII -THE DISTRICT'S RIGHTS UPON BREACH BY CONTRACTOR

12. 1 Termination or Cover. In the event Contractor at any time refuses to order, contract for or supply at the appropriate times, sufficient skilled workers or sufficient and proper materials, or fails in any way to perform the Work with promptness and diligence, or when ordered to do so by the Architect fails to discontinue the employment of any person or persons whose presence or continued employment tends to delay or hinder the Work, or fails in the performance of any of the covenants and agreements herein contained, the District shall thereupon have the right to either (a) terminate this Agreement by giving Contractor ten (10) days written notice, or (b) after three (3) days written notice to Contractor (or posting the same at the worksite), order, contract for or otherwise provide such labor and materials as the Architect may deem necessary, and to deduct the cost thereof from any money then due or thereafter to become due to Contractor under this Agreement, or otherwise to charge the cost thereof to Contractor, who shall be liable therefore. If the District elects to terminate this Agreement, upon termination the District may take possession of the worksite and materials, equipment, tools and machinery thereon, and finish the Work in whatever way the District deems expedient. If the unpaid balance on the Contract Price at the time of such termination exceeds the expense of finishing the Work, the District will pay such excess to Contractor. If the expense of finishing the Work exceeds the unpaid balance at the time of termination, Contractor agrees to pay the difference to the District.

ARTICLE XIII -ACCEPTANCE

13.1 Acceptance of Work. The occupancy of the facilities by students, faculty or other school personnel shall not constitute acceptance of the Work. The Work shall be deemed accepted by the Board only upon written certification of satisfactory completion issued by either the District or the Architect.

ARTICLE XIV -CHANGE IN SUBCONTRACTORS' LIST

14.1 Prior Approval Required. The list of subcontractors submitted with the Contractor's bid may not be changed without prior written approval of the Architect and the project manager.

ARTICLE XV -BONDS

15.1 Performance and Payment Bonds. Prior to commencing the Work, Contractor shall obtain, at Contractor's expense, a Performance Bond and a Payment Bond executed on forms acceptable to the District. Each of these two bonds shall be in the penal sum of the full Contract Price, and shall be conditioned that the Contractor will properly and fully perform each and all of the conditions and covenants of the Contract Documents in accordance with each and all of their provisions, and that Contractor will promptly pay all persons supplying labor or material used in the prosecution of the Work provided for in the Contract Documents.

ARTICLE XVI -MISCELLANEOUS

16.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah applicable to contracts made and to be performed wholly within such state.

16.2 Attorneys' Fees. In the event of any legal, equitable or administrative action or proceeding brought by either party against the other under this Agreement or any of the other Contract Documents, the prevailing party shall be entitled to recover the reasonable fees of its attorneys and any costs incurred in such action or proceeding, including costs of appeal, if any, in such amount that the court or administrative body having jurisdiction may award.

16.3 Notice. All notices or other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given either at the time of delivery, if personally delivered, or seventy-two (72) hours after being placed in the mail, if mailed first class, postage prepaid, return receipt requested, and addressed to the respective parties as follows:

District of Education of Salt Lake City District Auxiliary Services Dept.

Attention:

995 West Beardsley Place Salt Lake City, Utah 84119

16.4 Successors and Assigns. This Agreement shall not be assignable by either party hereto without the written consent of the other party, which consent shall not be unreasonably withheld, except that Contractor may subcontract portions of the work in the usual course of business, provided that Contractor shall at all times remain primarily responsible to the Board hereunder. This Agreement shall be binding upon and shall inure to the benefit of the legal personal representatives, successors and assigns of the parties hereto.

16.5 Invalidity. The invalidity or unenforceability of any term of this Agreement shall not invalidate, make unenforceable or otherwise affect any other term of this Agreement, which shall remain in full force and effect.

16.6 Titles and Headings. Titles and headings to sections herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of this Agreement.

IN WITNESS WHEREOF, the Contractor above named has hereto set his hand, and the Board through the District has caused this Agreement to be signed by its proper officers thereunto duly authorized, as of the day and year first above written.

CONTRACTOR THE DISTRICT OF EDUCATION OF

SALT LAKE CITY SCHOOL DISTRICT

By: ___________________________________ By: __________________________________ Business Administrator

Its: __________________________________