Full Text
A-1 (1 of 10) AGREEMENT THIS AGREEMENT is made by and between City of Middleton, a municipal corporation, (hereinafter called OWNER) and (hereinafter called 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 generally identified as follows: Project [No. Contract [No. Article 2. THE PROJECT The Project for which the Work under the Contract Documents is titled as follows: [ ] Article 3. ENGINEER 3.01 Middleton City Engineer is hereinafter called ENGINEER and shall assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract Documents. If ENGINEER is undesignated, OWNER shall assume the duties and responsibilities of ENGINEER through OWNER’s Director of Public Works (DPW), or the DPW’s designee. 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 Dates for Substantial and Final Completion A. The work shall be substantially complete within calendar days after the date when the Contract Time commences to run. Unless otherwise defined in this Agreement or in the Special Provisions, Substantial Completion will be determined in accordance with paragraph 14.04 of the General Conditions. B. The work shall be complete and ready for final payment within calendar days after the date when the Contract Time commences to run. 4.03 Liquidated Damages ---PAGE BREAK--- A-2 (2 of 10) 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 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 to OWNER the following daily charge: ORIGINAL CONTRACT AMOUNT DAILY CHARGE From More Than To and Including Calendar Day $ $ 100,000 $ 500 100,000 500,000 800 500,000 1,000,000 1,000 1,000,000 3,000,000 1,200 3,000,000 5,000,000 1,500 5,000,000 2,000 B. The above liquidated damages shall be applied separately to each of the substantial and final completion dates shown in Paragraph 4.02. 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 as follows: $ Fill in Amount of Awarded Contract A. Above Contract Price will satisfy completion of all Work stated in CONTRACTOR’s Bid attached hereto as an exhibit. B. All specific cash allowances as specified are included in the Contract Price and have been computed in accordance with paragraph 11.02 of the General Conditions. 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. B. CONTRACTOR shall use Request and Certificate for Payment form included in Appendix of Standard Specifications and Construction Contract Documents. ---PAGE BREAK--- A-3 (3 of 10) 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. The frequency of CONTRACTOR’s Applications for payment will be on a basis for work completed through the 20th of the month and submitted by the 25th of that month, for approval by the second Council meeting of the following month. All such payments will be measured by the schedule of values established 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. Retainage will be withheld from progress payments as follows: 1. Prior to Substantial Completion, OWNER will retain an amount equal to 5% of each progress payment application until 50% of the Work has been completed. At 50% completion, further progress payment applications shall be paid in full to the CONTRACTOR and no additional amounts will be retained unless the ENGINEER certifies to the OWNER that the job is not proceeding satisfactorily. Amounts previously retained shall not be paid to the CONTRACTOR until substantial completion of the Work. At 50% completion of the Work, or any time thereafter when the character and progress of the Work is not satisfactory to OWNER on recommendation of ENGINEER, additional amounts may be retained, but in no event shall the total retainage be more than 10% of the value of the work completed. 2. Upon Substantial Completion, OWNER shall pay an amount sufficient to increase total payments to CONTRACTOR to 98% 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 100% 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. Article 7. HIERARCHY 7.01 In resolving inconsistencies among two or more sections of the Contract Documents, precedence shall be given in the following order: First: WRITTEN AMENDMENTS Second: AGREEMENT Third: CHANGE ORDERS Fourth: ADDENDA Fifth: SUPPLEMENTARY CONDITIONS Sixth: GENERAL CONDITIONS Seventh:SPECIFICATIONS Eighth: DRAWINGS Figure dimensions on drawings shall take precedence over scale dimensions. Detailed drawings shall take precedence over general drawings. ---PAGE BREAK--- A-4 (4 of 10) 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 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 the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions and 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 having done 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 that may affect the cost, progress, and 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 applying the specific means, methods, techniques, sequences, and procedures of construction, if any, expressly required by the Contract Documents to be employed by CONTRACTOR, and safety precautions and programs incident thereto. F. CONTRACTOR does not consider that any additional examinations, investigations, explorations, tests, studies or data are necessary for the performance and furnishing 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. ---PAGE BREAK--- A-5 (5 of 10) Article 9. CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages A-1 through A-10, inclusive); 2. Performance Bond (pages to CP-1 through CP-4, inclusive); 3. Payment Bond (pages CP-5 through CP-8, inclusive); 4. Other Bonds a. (pages to inclusive); 5. General Conditions (pages GC-1 through GC-41, inclusive) as prepared by the Engineers Joint Contract Documents Committee, document EJCDC C-700, copyright 2002, available for review in the office of the City Engineer during bidding, and bound herein with the executed agreement; 6. Supplementary Conditions (pages SC-1 through inclusive); 7. Specifications as listed in the table of contents of the Project Manual. Referenced specifications are printed in the City of Middleton Standard Specifications and Construction Contract Documents, dated June 2004, and most recently revised April 21, 2009; 8. Drawings (as identified in the Supplementary Conditions): 9. Addenda (numbered through inclusive). 10. Exhibits to this Agreement (enumerated as follows:) a. Notice to Proceed (page NP-1, incorporated herein by reference); b. CONTRACTOR’s Bid (pages B-1 through inclusive); c. Permits obtained by others for this project: i. ii. d. Prevailing Wage Rate Determination issued by the Department of Workforce Development, dated pages). e. Soils Exploration Report Title or Number prepared by dated pages). f. Documentation submitted by CONTRACTOR prior to Notice of Award ( ---PAGE BREAK--- A-6 (6 of 10) 11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Written Amendments; b. Work Change Directives; c. Change Order(s). B. The documents listed in paragraph 9.01.A are attached to this Agreement or printed in the City of Middleton Standard Specifications and Construction Contract Documents (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. Article 10. MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General 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, monies that may become due and monies 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 of 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. ---PAGE BREAK--- A-7 (7 of 10) 10.05 Public Records Law A. The City of Middleton is subject to the Wisconsin public records law. Any submissions to the City in connection with this project may be disclosed in response to a public records request. ---PAGE BREAK--- A-8 (8 of 10) IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One counterpart each has been delivered to OWNER, CONTRACTOR, and ENGINEER. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or identified by ENGINEER on their behalf. This Agreement will be effective on the day of 20___ (which is the Effective Date of the Agreement). OWNER: (SEAL) City of Middleton ATTEST: By: Lorie J. Burns City Clerk Mayor (Title) Business Address: Name: City of Middleton Street: 7426 Hubbard Avenue City, State, Zip Code: Middleton, WI 53562 Phone: (608) 827-1070 Facsimile: (608) 827-1080 Project Representative: ---PAGE BREAK--- A-9 (9 of 10) CONTRACTOR: (SEAL) ATTEST: By: (Title) Business Address: Name: Street: City, State, Zip Code: Phone: Facsimile: Designated Representative: ---PAGE BREAK--- A-10 (10 of 10) Approved as to form: OWNER's Attorney Date Provision has been made to pay the liability that will accrue under this Agreement: Countersigned: OWNER's Comptroller or Treasurer Date INSTRUCTIONS FOR EXECUTING CONTRACT If the Agreement is to be signed by the Secretary of the corporation, the certificate below should be executed by some other officer of the corporation, under the corporate seal. In lieu of the foregoing certificate, there may be attached to the Agreement copies of so much of the records of the corporation which will show the official character and authority of the officers signing, duly certified by the secretary or assistant secretary under the corporate seal to be true copies. The full name and business address of CONTRACTOR should be inserted and the Agreement should be signed with CONTRACTOR's official signature. Please have the name of the signing party printed under all signatures to the Agreement. If CONTRACTOR is operating as a partnership, each partner should sign the Agreement. If the Agreement is not signed by each partner, there should be attached to the Agreement a duly authenticated power of attorney evidencing the signer's (signers') authority to sign such Agreement for and in behalf of the partnership. If CONTRACTOR is an individual, the trade name (if CONTRACTOR is operating under a trade name) should be indicated in the Agreement and the Agreement should be signed by such individual. If signed by other than CONTRACTOR, there should be attached to the Agreement a duly authenticated power of attorney evidencing the signer's authority to execute such Agreement for and in behalf of CONTRACTOR. If CONTRACTOR is a corporation, the following certificate should be executed: I, , certify that I am the Secretary of the corporation named as CONTRACTOR herein above; that who signed the foregoing Agreement on behalf of CONTRACTOR was then of said corporation; that said Agreement was duly signed for and in behalf of said Corporation by authority of its governing body, and is within the scope of its corporate powers. (Corporate Seal)