Sample_Construction_Agreement.pdf

STATE OF SOUTH CAROLINA ) CONSTRUCTION AGREEMENT

GREENVILLE COUNTY )

SAMPLE CONTRACT FOR

CONSTRUCTION AGREEMENT

IFB Project ID

Greenville County Sample Contract for Construction Agreement

I. Construction Agreement II. Terms & Conditions

III. Signature Page

Title: Sample Contract for Construction Agreement

1. CONSTRUCTION AGREEMENT

This AGREEMENT is made and entered into on this _____ day of __________, 2022, by and between the COUNTY OF GREENVILLE, a political subdivision of the State of South Carolina, having its principal place of business at 301 University Ridge, Greenville, S.C. 29601 (“County”), and TBD, located at Vendor Address, City, State Zip Code (“Contractor”).

In consideration of the covenants hereinafter set forth, the parties mutually agree as follows:

2. TERMS & CONDITIONS

2.1. CONTRACT PERIOD.

This Agreement shall begin on the date the NOTICE TO PROCEED is issued by COUNTY. All work phases specified herein must be completed no later than ninety (90) calendar days from the effective date of the Notice to Proceed. If the Contractor fails to satisfactorily complete the work within the specified time, liquidated damages of $250.00 per calendar day shall be assessed up to value of the contract (total bid). The penalty may be drawn from any payment due, or the performance bond, at the discretion of the County.

2.2. SCOPE OF SERVICES.

County has employed Contractor to provide ENTER DESCRIPTION OF SERVICES HERE.

These services to be provided by Contractor are set forth more fully in County INVITATION FOR BIDS (“IFB”) IFB Project ID and in Contractor’s Response, received March 1, 2022, to County IFB Project ID, attached hereto and incorporated herein by reference.

2.3. PAYMENT TERMS.

County agrees to pay Contractor a total sum not to exceed TO BE DETERMINED dollars ($XXX,XXX.XX) .

Contractor will submit monthly invoices to the County. Such invoices shall include a detailed listing of charges. County shall notify Contractor within ten (10) days of receipt of invoice of any dispute with the invoice and Contractor , upon such notice, shall provide back-up data to County. County and Contractor will, thereafter, promptly resolve any disputed items. Payment on undisputed invoice amounts is due upon receipt of invoice by County and is past due thirty (30) days from the date the invoice is received. If payment on undisputed invoice amounts remains past due sixty (60) days from the date the invoice is received by County, then Contractor shall have the right to either suspend all work under this Agreement, without prejudice, or terminate this Agreement in accordance with the provisions of Section

2.13. County shall, prior to making payment on any invoice, withhold ten (10%) percent from any payment due. The amounts so withheld shall be released to Contractor upon satisfactory completion of the Project.

Approval and/or payment of such invoices shall not in any way relieve Contractor of its liability to County for deficiencies in the performance of its services. County's approval or acceptance of, or payment for any of the services shall not operate as a waiver of any rights to which County may be entitled.

NO INTEREST OR OTHER LATE PENALTIES SHALL ACCRUE ON LATE PAYMENTS.

IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT IN THE EVENT FUNDS ARE NOT APPROPRIATED IN THE CURRENT FISCAL YEAR OR ANY SUBSEQUENT FISCAL YEAR, THIS CONTRACT WILL BECOME NULL AND VOID AND THE COUNTY WILL ONLY BE REQUIRED TO PAY FOR SERVICES COMPLETED TO THE

SATISFACTION OF THE COUNTY.

2.4. CHANGES.

COUNTY may, at any time, in writing, and within the general scope of this Agreement, make “Request for Changes” in the services or work to be performed. In the event CONTRACTOR is requested to perform additional services or work not contemplated by this Agreement, CONTRACTOR will promptly notify COUNTY if such change causes an increase in CONTRACTOR’S cost of, or time required for, performance of any services under this Agreement, an equitable adjustment shall be made and this Agreement shall be modified in writing accordingly. In the event CONTRACTOR is requested to reduce the performance of services or scope of work, such request must be in writing. In the event CONTRACTOR is requested to reduce the performance of services or scope of work COUNTY shall be entitled to a decrease in the amount of compensation to be paid to CONTRACTOR accordingly.

All change orders must be in writing to be valid, and no services for which any additional compensation will be charged by CONTRACTOR shall be furnished without the written authorization of COUNTY.

COUNTY may add to or reduce the scope of work by generating mutually agreed upon contract exhibits to this basic agreement.

2.5. WARRANTIES.

In addition to any express and/or implied warranties provided to COUNTY by law, CONTRACTOR warrants to COUNTY that the performance of the services covered by this Agreement will be competent to perform the tasks undertaken, that the product of such paving services will yield only first-class results, that materials and equipment furnished will be of good quality and new unless otherwise permitted by this Agreement, and that the work will be of good quality, free from faults and defects and in strict conformance with this Agreement. All work not conforming to these requirements may be considered defective. In the event any of the work is found to be defective or not in accordance with this Agreement within one (1) year after completion of the contract services, CONTRACTOR will promptly correct the work without additional compensation from COUNTY, upon written notice from COUNTY. All corrective work shall be completed within thirty (30) days of receipt of written notice from COUNTY. Establishment of the one year time period in this section relates only to the duty of CONTRACTOR to specifically correct the work.

2.6. WITHHOLDING PAYMENT.

COUNTY has the right, but not the obligation, to withhold funds to the extent and only to the extent necessary to protect COUNTY from loss because of:

a) Defective work not remedied by CONTRACTOR within a reasonable time or for which CONTRACTOR has failed to initiate a remedy within a reasonable time;

b) Claims of third parties against COUNTY or COUNTY’S property for which CONTRACTOR is liable;

c) Failure by CONTRACTOR to pay subcontractors or others in a prompt and proper fashion the amounts due and owing to such subcontractor or others relating to the Project.

d) Evidence that the balance of the work cannot be completed in accordance with this Agreement for the unpaid balance of the Contract Price;

e) Evidence that the work will not be completed in the time required for final completion;

f) Persistent failure to carry out the work in accordance with this Agreement, or

g) Damage to the COUNTY or a third party to whom the COUNTY is, or may be, liable and for which CONTRACTOR is liable pursuant to the terms of this Agreement.

2.7. RIGHT TO STOP WORK.

In the event CONTRACTOR fails to perform the work in accordance with this Agreement, COUNTY may order CONTRACTOR to stop the work and COUNTY may then perform the work in accordance with Section 8, below, or terminate this Agreement in accordance with Section 13.1.2. In such event, CONTRACTOR shall immediately obey such stop work order.

2.8. COUNTY'S RIGHT TO PERFORM WORK

In the event CONTRACTOR’S work is stopped pursuant to Section 7, above, entitled “Right to Stop Work”, and CONTRACTOR fails to provide adequate assurance to COUNTY, within seven (7) days of such stoppage, that the cause of such stoppage will be eliminated or corrected, then COUNTY may proceed to carry out the subject work or terminate this Agreement. In such a situation, an appropriate Change Order shall be issued deducting from the Contract Price the documented and agreed to cost of correcting the deficiencies, including any professional services and expenses necessitated thereby. If the unpaid portion of the Contract Price is insufficient to cover the amount due COUNTY, CONTRACTOR shall pay the difference to COUNTY; provided, however if COUNTY stops the work, takes over a portion of or all of the work and performs the work, then CONTRACTOR’S WARRANTY OBLIGATIONS relating to such work performed by COUNTY shall be null and void.

2.9. INDEMNIFICATION.

CONTRACTOR agrees to assume responsibility for any damage, loss, or injury, including death, of any kind or nature whatever to person or property, including employees and property of COUNTY, caused by or resulting from any negligent act or omission of CONTRACTOR or its subcontractors or any of their officers, agents, servants, or employees, arising from the performance of the work under this Agreement. CONTRACTOR shall defend, indemnify, and hold harmless COUNTY and all of its officers, agents, servants, or employees from and against any and all claims, loss, damage, charge, or expense to which they or any of them may be put or subjected by reason of any such damage, loss, or injury.

CONTRACTOR expressly agrees to defend against any claims brought or filed against COUNTY, where such claim or action involves, in whole or in part, the subject of the indemnity contained herein, whether such claims or actions are rightfully or wrongfully brought or filed.

2.10. INSURANCE.

The Contractor is responsible for and must have all required insurance listed below and shall not commence work under the associated contract until it has obtained all insurance required, and the County has approved such insurance in writing, nor shall the Contractor allow any subcontractor to commence work on its subcontract until all similar insurance required of the subcontractor has been obtained. All insurance policies shall be maintained for the life of the contract.

A. THE COUNTY SHALL BE NAMED AS “ADDITIONAL INSURED” FOR ITS INTEREST on all policies of insurance, except Worker’s Compensation, Automobile Liability and Professional Errors and Omissions, regarding ongoing operations, products and completed operations, and this shall be noted on the face of the Certificate of Insurance. As a part of the certificate of insurance requirement the contractor shall also include acknowledgement and acceptance of the wavier of subrogation provision granted to the County of Greenville. This acknowledgement and acceptance should be included in the same section of the Certificate of Insurance that evidences the “Additional Insured” provision.

B. Certificates for all such policies of insurance shall be provided by the contractor's insurance agent or broker to the County within 10 working days from the date of Notice of Award.

C. All Certificates of Insurance submitted shall provide on the face of the certificate reference to County's IFB Project ID.

D. Contractor will provide County a minimum of 30 days advance notice in the event the insurance policies (or an insurance policy) are canceled.

E. Subcontractors approved to perform work on this project are subject to all of the requirements in this Section.

F. Contractor agrees to maintain and keep in force during the life of this Agreement, with a company or companies authorized to do business in South Carolina, the following insurance policies:

1. Comprehensive General Liability:

a. $1,000,000 per occurrence - combined single limit / $2,000,000 general aggregate, to include products and completed operations.

2. Automobile Liability:

a. $1,000,000 per occurrence - combined single limit (Coverage shall include bodily injury and property damage and cover all vehicles including owned, non-owned and hired)

3. Statutory Worker's Compensation:

a. Coverage A - State of SC

b. Coverage B - Employers liability

i. $1,000,000 Each Accident

ii. $1,000,000 Disease, Per Employee

iii. $1,000,000 Disease, Policy Limit

c. Policies shall contain a waiver of subrogation in favor of and/or that applies to the County of Greenville, its departments, agencies, boards, employees, and commissions for losses from work performed by or on behalf of the contractor.

No deviation from these coverages will be accepted unless, in the County’s sole discretion, it is more advantageous to the County, i.e., $1,000,000 - a $2,000,000 or $5,000,000 limit would be acceptable.

Vendors will provide County a minimum of 30 days advance notice in the event the insurance policy (or an insurance policy) is canceled. Subcontractors approved to perform work on this project are subject to all of the requirements in this Section.

2.11. PERFORMANCE AND PAYMENT BOND.

Contractor shall furnish a satisfactory Performance and Payment Bond in the amount of the total contract price no later than fifteen (15) business days after the date of the Notice of Award. The Bond must have approval by the County Attorney’s Office before it is made effective. The Contractor shall have as surety a corporate surety authorized to act as surety in South Carolina. The Performance and Payment Bond shall remain in effect for one year after completion of the contract.

2.12. ILLEGAL IMMIGRATION REFORM ACT COMPLIANCE.

By submitting an offer, Contractor certifies that it will comply with the applicable requirements of Title 8, Chapter 14 of the South Carolina Code of Laws (originally enacted as Section 3 of The South Carolina Illegal Immigration Reform Act , 2008 S.C. Act No. 280) and agrees to provide upon request any documentation required to establish either: (a) the applicability of Title 8, Chapter 14 to Contractor and any subcontractors or sub-subcontractors; or (b) the compliance with Title 8, Chapter 14 by Contractor and any subcontractor or sub-subcontractor. Pursuant to Section 8-14-60, “A person who knowingly makes or files any false, fictitious, or fraudulent document, statement, or report pursuant to this chapter is guilty of a felony, and upon conviction, must be fined within the discretion of the court or imprisoned for not more than five years, or both.” Contractor agrees to include in any contracts with its subcontractors language requiring the subcontractors to (a) comply with the applicable requirements of Title 8, Chapter 14, and (b) include in any contracts with the sub-subcontractors language requiring the sub- subcontractor to comply with the applicable requirements of Title 8, Chapter 14. In the event any contractor, subcontractor and/or sub-subcontractor is found not to be in compliance with the SC Immigration Reform Act [hereinafter "The Act"], the contractor agrees to fully indemnify the County for any loss suffered by the County as a result of such contractor, subcontractor or sub-subcontractor's failure to comply with the Act.

2.13. TERMINATION.

TERMINATION BY COUNTY

This Agreement may be terminated by COUNTY upon fifteen (15) days written notice at COUNTY’S election. In the event of termination at COUNTY’S election and not due to the fault of CONTRACTOR, CONTRACTOR will be paid only for the work actually completed to the satisfaction of the County as of the date of termination.

Should CONTRACTOR default or persistently fail or neglect to carry out the work in accordance with the terms of this Agreement, COUNTY may by written notice to CONTRACTOR, without prejudice to any other right or remedy under this Agreement, terminate the employment of CONTRACTOR and take possession of the site and all materials, equipment, tools and construction equipment and machinery thereon owned by CONTRACTOR as well as all drawings, plans and specifications and finish the work by whatever methods COUNTY may deem expedient; provided, however, prior to such termination, CONTRACTOR shall be given notice of the default and an opportunity to cure such default within seven

(7) days. Such termination shall be deemed “for cause”. Should this Agreement be terminated “for cause”, CONTRACTOR shall not be entitled to any further payment. In the event the actual and documented cost of finishing the work, including compensation for professional services and expenses made necessary thereby, if any, exceed the unpaid balance, CONTRACTOR shall pay the difference to COUNTY. This obligation for payment shall survive the termination of this Agreement.

TERMINATION BY CONTRACTOR

Should COUNTY fail to make payment on any undisputed invoice amount within sixty (60) days of receipt of such invoice, CONTRACTOR may elect to either suspend the work or terminate this Agreement; provided, however, prior to termination, COUNTY shall be given notice of the default and an opportunity to cure such default within seven (7) days. Should this Agreement be terminated by CONTRACTOR, CONTRACTOR shall be entitled to be paid only for the work actually completed to the satisfaction of the County as of the date of termination.

2.14. SITE CLEANING, SAFETY, HEALTH, AND SECURITY.

CONTRACTOR shall keep the site reasonably clean during performance of the work. CONTRACTOR shall dispose of all refuse at a South Carolina DHEC approved landfill.

Contractor shall be solely responsible for its activities, that of its employees on the site and activities of its consultants, contractors and/or subcontractors for maintaining a safe job site. Contractor’s activities and activities of its consultants, contractors and/or subcontractors shall comply with all local, state, and federal safety regulations and their enforcement agencies. Contractor shall at all times conduct its operations under this Contract in a manner to avoid risk of endangerment to the health and safety of persons and property. The Contractor shall have sole responsibility for implementing its safety and health programs, taking all safety and health precautions necessary and continuously inspecting all equipment, materials and work to prevent, discover, determine and correct any conditions which might result in personal injury, equipment damage or damage to property or the public. Contractor’s safety, health and security programs shall be in compliance with all regulatory requirements and shall furnish accident, incident, injury, and other records and reports required by the Occupational Safety and Health Administration, State and Local laws, or by the County.

2.15. ASSIGNMENT.

This Agreement may not be assigned by either party without the prior written consent of the other party.

2.16. SUBCONTRACTS.

CONTRACTOR shall promptly furnish to COUNTY, in writing, the bid list proposed by CONTRACTOR to act as subcontractors on the Project. COUNTY shall, within seven (7) days, reply to CONTRACTOR, in writing, stating any objections COUNTY may have to such proposed subcontractors. CONTRACTOR may enter into a subcontract with any subcontractor on the approved bid list. CONTRACTOR shall not be required to enter into a subcontract with any subcontractor to whom CONTRACTOR has objection.

All subcontractors shall provide performance and payment bonds in accordance with bonding requirements set forth in the Greenville County procurement policies and shall name COUNTY as an additional obligee on such bonds.

All subcontractors will be required to furnish Certificates of Insurance to the County in accordance with all of the requirements set forth in Section 10 of this Agreement.

2.17. NOTICES.

All notices made pursuant to this Agreement shall be in writing and delivered personally or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses set forth below:

COUNTY

Bob Brewer, NIGP-CPP, CPPO, CPPB, Director

Procurement Services Division

County of Greenville

Procurement Services Division

301 University Ridge, Suite 100

Greenville, SC 29601

CONTRACTOR

Vendor Representative

Representative Title

Sample Vendor

Vendor Address

City, State Zip Code

Any party may change the person to whom notices are to be sent by giving ten (10) calendar days written notice of such change to the other party.

2.18. APPLICABLE LAW AND VENUE.

The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of South Carolina.

The County and Contractor further agree that this Agreement shall be deemed to be made and performed in Greenville County, South Carolina. For the purposes of venue, all suits or causes of action arising out of this Agreement shall be brought in the courts of Greenville County, South Carolina.

2.19. COMPLIANCE WITH CODES AND STANDARDS.

Contractor’s professional services shall incorporate those federal, state and local laws, regulations, codes and standards that are applicable at the time Contractor rendered its services. Contractor shall not be responsible for any claim or liability for injury or loss allegedly arising from Contractor’s failure to abide by federal, state or local laws, regulations, codes and standards that were not in effect or publicly announced at the time Contractor rendered its services.

2.20. SUCCESSORS AND ASSIGNS.

CONTRACTOR and COUNTY each binds itself and its partners, successors, executors, administrators and assigns to the other party of this Agreement and to the partners, successors, executors, administrators, and assigns of such other party, in respect to all covenants of this Agreement.

2.21. SEVERABILITY

Should any section, paragraph, clause, phrase, or provision of this Agreement be determined invalid or held unconstitutional by a court of competent jurisdiction, such declaration shall not affect the validity of this Agreement as a whole or any part or provision thereof, other than the part so decided to be invalid or unconstitutional.

2.22. CONFIDENTIALITY.

Contractor will maintain as confidential any documents or information provided by the County and will not release, distribute or publish same to any third party without prior permission from the County, unless compelled by law or order of a court or regulatory body of competent jurisdiction. Such release will occur only after prior notice to the County.

2.23. CONTRACT DOCUMENTS.

This Agreement, along with the provisions contained in County IFB Project ID and Contractor’s Response to County IFB Project ID represents the entire agreement between the parties and supersedes any and all prior agreements, whether written or oral, that may exist between the parties regarding same. If there is a conflict between any of the terms of these contract documents the order of precedence of these contract documents shall be;

A. Any change order or amendment signed after the execution date of this agreement;

B. This Agreement;

C. Contractor’s Response to County IFB Project ID;

D. Addenda to County IFB Project ID.

E. County IFB Project ID.

3. SIGNATURE PAGE

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

CONTRACTOR

By: ________________________

Its: ________________________

WITNESS 1.___________________________

WITNESS 2.___________________________

COUNTY OF GREENVILLE

By: _____________________________

Dan Tripp, Chairman

Greenville County Council

By: ____________________________

Joseph M. Kernell

County Administrator

ATTEST:__________________________

Regina McCaskill

Clerk to Council

3. SIGNATURE PAGE