HomeMy WebLinkAbout12-0824 Lord Street Rain Garden ‘ -02.a4
AGREEMENT
THIS AGREEMENT is dated this ,2%-k day of August, 2012 by and between the City of
Elgin, an Illinois Municipal Corporation (herein called "City") and Encap, hic.(herein called
"Contractor"), a corporation with a principal place of business at 1709 Afton Road, Sycamore, IL
60178.
WHEREAS, on ugu7 a , 2012 the City requested quotations pricing on a
"Rain Garden for the Lord Street CSO Green Infrastructure Project"; and WHEREAS,
Contractor submitted a pricing on A . ab , 2012; and
WHEREAS, the City has deemed Contractor to be the lowest price responsive and responsible
bidder for the Rain Garden for the Lord Street CSO Green Infrastructure Project, hereinafter
referred to as"Work;"
NOW THEREFORE, in consideration of the mutual promises and covenants herein, the
sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows:
Article 1. Work.
Contractor shall complete the Work as specified in the Contract Documents.
The Work is generally described as follows:
A. Construction of one parkway rain garden.
B.Restoration of all disturbed areas.
Article 2. ENGINEER.
The Work has been designed by Trotter and Associates, Inc. ("Engineer"). Engineer shall act as
City's representative and shall assume and provide such duties and obligations to the extent
provided in the Contract Documents.
Article 3. Work COMPLETION,LIQUIDATED DAMAGES,DELAYS AND DAMAGES.
3.1. Work Completion. The Work shall be completed as provided in the Contract Documents.
Project commencement is August 27, 2012,project shall be substantially complete September 6,
2012 and final completion by September 7, 2012. In the event of any conflict between these
dates and dates elsewhere in the Contract Documents, these dates shall prevail. Time is of the
essence of this Agreement.
3.2. Liquidated Damages. City and Contractor agree that as reasonable liquidated damages for
delay (but not as a penalty) Contractor shall pay City $100 for each day beyond the time
specified for Substantial Completion in the Contract Documents. After Substantial Completion,
if Contractor shall neglect, refuse, or fail to complete the remaining Work within the times
specified in the Contract Documents (hereinafter referred to as "Contract Times") or any proper
extension thereof granted by City, Contractor shall pay City $100 for each day beyond the time
for Final Completion. Contractor agrees and acknowledges that such liquidated damages
constitute a reasonable estimate of City's actual damages. Such liquidated damages shall
constitute City's sole recourse for and shall constitute full satisfaction of City's actual damages
resulting from Contractor's delay. Contractor further acknowledges and agrees that in the event
any provisions in any of the Contract Documents conflict with the provisions of this paragraph or
otherwise provide for damages resulting from Contractor's delay,the provisions of this paragraph
shall control, and such conflicting provisions and any Contract Documents shall not constitute,
and shall not be construed as, a basis by which to render the provisions of this paragraph
unenforceable.
3.3. Delays and Damages. In the event Contractor is delayed in the prosecution and completion
of the Work or achievement of any Contract Times because of any delays caused by City or
Engineer, Contractor shall have no claim against City or Engineer for damages or contract
adjustment other than an extension of the Contract Times as provided herein and the waiving of
liquidated damages during the period occasioned by the delay.
Article 4. CONTRACT PRICE.
City shall pay Contractor $16,800.00 as indicated in the Contractor's Bid for completion of the
Work in accordance with the Contract Documents.
Article 5.PAYMENTS.
5.1. Payments. City shall make payments on the basis of Contractor's Applications for Payment
as recommended by Engineer, in conformance with the City of Elgin's accounts payable
schedule. All payments shall be based on the progress of the Work measured by the schedules
provided in the Contract Documents. Notwithstanding anything to the contrary in any Contract
Documents, City shall be entitled to withhold any payments pending the submission of partial or
full waivers of lien and/or certifications verifying the receipt of payment for all work performed
by all subcontractors up to the date of Contractor's application for partial or final payment in
City's sole discretion. City shall further be entitled to make such payments directly to any
subcontractors as may be necessary to obtain such lien waivers and/or certifications. In the event
City makes any such payments directly to any subcontractors, the amount of such payments shall
be deducted from the total amount due to Contractor pursuant to this agreement; and Contractor
shall provide a written release to City in the amount of any such payments upon ten (10) days
written demand. Concurrent with all applications for payment,Contractor shall provide City with
a sworn certification of all work performed by all subcontractors and amounts paid to all
subcontractors as of the date of application.
5.2. Retainage. City may withhold, from all payments prior to Substantial Completion, an
amount equal to up to ten percent (10%) of work completed, at City's sole discretion. Upon
Substantial Completion, City may release a portion of the retainage to Contractor,retaining at all
times an amount sufficient to cover the cost of the Work remaining to be completed, at City's
sole discretion. The time for payment of any retainage from City to Contractor shall be at City's
sole discretion. Such payment shall not be unreasonably withheld.
5.3.Final Payment. The City shall not be required to make final payment prior to completion and
acceptance of the Work by the City.
Article 6. CONTRACT DOCUMENTS.
There are no Contract Documents other than those listed below.The Contract Documents which
comprise the entire agreement between City and Contractor concerning the Work consist of the
following:
a.This Agreement.
b.Certificates of Insurance.
c.Bonds.
d. General Conditions.
e. Supplementary Conditions.
f. Specifications.
g.Drawings consisting of 9 sheets,with each sheet bearing one of the following general titles:
Cover Sheet
• GA General Notes
• G.2 Individual "Rain Garden"Site Location
• C.1 BMP Site No. 6—342 Perry Street
• C.2 Construction Details
• C.3 Construction Details
• C.4 Construction Details
• C.5 Traffic Control Details
• C.6 Traffic Control Details
• L.1 BMP Site No. 6—342 Perry Street—Planting Plan
h. Contractor's Pricing.
i. Any subsequent Written Amendments to any documents listed above and other documents
amending, modifying, or supplementing the Contract Documents, which may be delivered or
issued after the Effective Date of the Agreement and are not attached hereto.
This Agreement and the Contract Documents listed above comprise the sole and exclusive
Agreement between the parties hereto. There are no other agreements between the parties hereto
either oral or written, and neither this Agreement nor any Contract Documents shall be modified
or amended without the written consent of the authorized representatives of the parties hereto.
Article 7.MISCELLANEOUS.
a. Terms used in this Agreement shall have the meanings indicated in the General Conditions.
b. No assignment or delegation by a party hereto of any rights under, obligations or interests in
the Contract Documents shall 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 shall release or discharge the assignor
from any duty or responsibility under the Contract Documents.
c. City and Contractor each binds itself, its partners, successors, employees, assigns, and agents
to the other party hereto, its partners, successors, employees, assigns, and agents in respect of all
covenants, agreements, and obligations contained in the Contract Documents.
d. The business address of Contractor is hereby designated as the place to which all notices,
letters, and other communication to Contractor shall be mailed or delivered. The address of City
is hereby designated as the place to which all notices, letters, and other communication to City
shall be mailed or delivered. Such notices, letters and other communications shall be directed to
the City Manager. Either party may change its address at any time by an instrument in writing
delivered to Engineer and to the other party.
e.The terms and provisions of this Agreement shall be severable. In the event any of the terms or
provisions of this Agreement shall be deemed to be void or otherwise unenforceable for any
reason,the remainder of this Agreement shall remain in full force and effect.
f. This Agreement shall be subject to and governed by the laws of the State of Illinois.Venue for
the resolution of any disputes and the enforcement of any rights arising out of or in connection
with the Agreement shall be in the Circuit Court of Kane County,Illinois.
g. This Agreement shall not be construed so as to create a partnership,joint venture,employment
or agency relationship between the parties hereto except as may be specifically provided for
herein.
h. In the event of any conflict between any of the terms or provisions of this Agreement and any
other Contract Documents,the terms and provisions of this Agreement shall control.
i. Indemnification. To the fullest extent permitted by law, Contractor agrees to and shall
indemnify, defend and hold harmless the City, the Engineer, Engineer's consultants and the
officers, employees, boards and commissions of each and any of them from and against any and
all claims, suits,judgments, costs, attorneys' fees, damages or any and all other relief or liability
arising out of or resulting from or through, or alleged to arise out of, any acts or negligent acts or
omissions of Contractor or Contractor's officers, employees, agents or subcontractors in the
performance of this agreement, or arising out of or in connection with litigation based on any
mechanic's lien or other claims, suits,judgments and/or demands for damages by subcontractors.
In the event of any action against the City, its officers, employees, agents, boards or
commissions covered by the foregoing duty to indemnify, defend and hold harmless,such action
shall be defended by legal counsel of City's choosing. In the event and to the extent that any legal
work is performed by City's in-house legal counsel pursuant to the provisions of this section,
City shall be reimbursed by Contractor for such legal work at the rate of$200 per hour, which
rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in-house
attorneys' fees. The provisions of this paragraph shall survive any expiration and/or termination
of this agreement.
j. Compliance with Laws. Notwithstanding any other provision of this CONTRACT it is
expressly agreed and understood that in connection with the performance of this CONTRACT
that the CONTRACTOR shall comply with all applicable Federal, State, City and other
requirements of law, including, but not limited to, any applicable requirements regarding
prevailing wages, minimum wage, workplace safety and legal status of employees. Without
limiting the foregoing, CONTRACTOR hereby certifies, represents and warrants to the CITY
that all CONTRACTOR'S employees and/or agents who will be providing products and/or
services with respect to this CONTRACT shall be legal residents of the United States.
CONTRACTOR shall also at its expense secure all permits and licenses,pay all charges and fees
and give all notices necessary and incident to the due and lawful prosecution of the work, and/or
the products and/or services to be provided for in this CONTRACT. The CITY shall have the
right to audit any records in the possession or control of the CONTRACTOR to determine
CONTRACTOR'S compliance with the provisions of this section. In the event the CITY
proceeds with such an audit the CONTRACTOR shall make available to the CITY the
CONTRACTOR'S relevant records at no cost to the CITY. CONTRACTOR shall pay any and
all costs associated with any such audit.
k. Contractor hereby waives any and all claims to interest on money claimed to interest on
money claimed to be due pursuant to this Agreement, and any and all such rights to interest to
which it may otherwise be entitled pursuant to law, including, but not limited to,pursuant to the
Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et.seq), or the Illinois
Interest Act as amended(815 ILCS 205/1,et.seq).
1. Limitation of Actions. Contractor shall not be entitled to and hereby waives, any and all rights
that it might have to file suit or bring any cause of action or claim for damages against the City
of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions, of
whatsoever nature and in whatsoever forum after two (2)years from the date of this Agreement.
IN WITNESS WHEREOF, City and Contractor have signed this Agreement. One counterpart
each has been delivered to City, Contractor,Surety,and Engineer.
This Agreement shall be effective on
CITY: City o Elgin
CO ' • CT'R: Enca., Inc. `�% �•
By: Sean R. Stegall
/ Title: City Manager
Title: y i e-Ckes i at,ecs'r
Address for giving notices
Address for giving notices /ry
I70 APcorl Ronj
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y(ftr,I\ Xe , IL 01-7 gtZ
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