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HomeMy WebLinkAbout23-0701 SKC Construction Inc - Bowes Creek Parking LotAGREEMENT THIS AGREEMENT is dated this _ day of , 2023 by and between the City of Elgin, an Illinois Municipal Corporation (herein called "City") and _SKC Construction, Inc. (herein called "Contractor"), a _Corporation with a principal place of business at _695 Church Rd, Elgin, IL_ WHEREAS, on Jul 1. 2023 the City solicited quotes for Bowes Creek Clubhouse Parking lot seal coating. WHEREAS, Contractor submitted a timely bid on July 21, 2023 and WHEREAS, SKC Construction is the lowest, most responsive bidder for Bowes Creek Clubhouse farking lot seal coati??g. thereinafter 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: The scope ofwork will include all labor, material, and equipment necessary to generally describe as all incidental work and all other appurtenant work and materials necessary. for the Bowes Creek Clubhouse Parkin r loll coatis ;r and all other ancillary work to complete the project as set. forth in the bid docu»tents. Article 2. ENGINEER. Not Applicable Article 3. Work COMPLETION, LIQUIDATED DAMAGES, DELAYS AND DAMAGES. 3.1. Work Completion. The selected Bidder shall commence work not less than 45 days following receipt of a written "Notice to Proceed" and shall substantially complete the project not later than December 1, 2023. 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 $0 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 ,�0 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 S18.752.81 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. Bonds. d. Notice of Award. e. Notice to Proceed. f. General Conditions. g. Supplementary Conditions. h. Specifications. Drawings consisting of 0 sheets j . Any Addenda. k. Contractor's Bid. City Forms. in. 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 parry 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's General Services 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. 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. Compliance with Laws. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, _S C QNS1R► iCZ1�Q_W Imo^ 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, SKC CONSTRUCTION, rV,,. _ hereby certifies, represents and warrants to the City that all of 's employees and/or agents who will be providing products and/or se . e ec to this Agreement shall be legally authorized to work in the United States. shall also, at its expense, secure all permits and licenses, pay all charges an ees, an give a l 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 Agreement. The City shall have the right to audit any records in the possession or control of ,qKC CONSTRI ICTIMI 1 _ to determineSKC CONS-TRLICTInN, w ,com liance with the ppr�ovisions of this section. In the event the City proceeds with such an audit, st�C CONSTRUCTION, shall make available to the City SKC CONSTRUCTlnN, ING relevant records at no cost to the City. �RKC CONSTRI ICTION, INC-- shall pay any and all costs associated with any such audit up to the amount of $900_ k. Contractor hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, 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. m. Notwithstanding any other provision hereof, the City may terminate this Agreement at any time for cdn th�� S C. reason upon thirty (30) days prior written notice to 1`U�OI�P, IIVwithout penalty. In the event this Agreement is so terminated SKC CONSTRUCTION, IN shall be paid for goods provided and/or services actually performed, and reimbursable expenses actually incurred as may be specifically provided for herein prior to such termination, except that such payment and/or reimbursement shall not in any event exceed the total amount set forth for the total contemplated payment provided for herein. Additionally, in the event this Agreement is so terminated, SKC-CONSTRUCTION, INC. shall immediately cease the expenditure of any funds paid to SKC CONSTRUCTION. INC.—by the City and shall refund to the City any unearned or unexpended funds. n. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement_ For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail a copy of this agreement shall be re -executed by the parties in an original form. No parry to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 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 CONTRACTOR: CI of Elgin SKC GO STR' CTION, INC. ` BY: By: Richard G. Kozal Title: ��i St Title: City Manager FEIN# 3L, 3 Address forgiving notices Address for notices SKC CONSTRUCTION, INC. City of Elgin 150 Dexter Court Elgin, IL 60120