HomeMy WebLinkAboutContract 22342234
Contract # ~IT~ ~]~' ~~L~i~~If~ IIEIG;1~`TS
WQ AGREEIVIENT
This Agreement is made this 28th day of September, by and between the City of Columbia Heights ("tile
City") and TMS Construction (the "Contractor") for Buildir7g Demolition, for a two single-family buildings and
two garages located at two properties at 4147 7tr' Street and 4448 Quincy Street as detailed in the Bid Request.
WITNESSETH:
WHEREAS, the City desires to have performed or constructed the services or facilities described in the Contract
Documents (the "work");
WIIERE~4S, Contractor represents that it has the necessary personnel, experience, competence, and legal right to
perforn the Work;
WHEREAS, the City has adopted a motion authorizing the city staff to enter a contract for the completion of the
Work specified herein.
NOW, THEREFE}RE, inconsideration of the premises and the mutual obligations of the parties hereto, each of
them does hereby covenant and agree with the other as follows:
1. W~RI~ TD BE CfI1~1I'I.ETEI3 ... The Work shaII be performed in strict accordance with the Contract
Documents. The Contractor shall carefirlly review all of the Contract Documents before performing the Work and
shall promptly call to the attention of the City any discrepancy or inconsistency which may exist bettiveen any two
or more documents or between any parts of the same document. The City shall have discretion as to how to
address an_y such discrepancy or inconsistency and shall modify, interpret, or adjust the Contrast Documents
accordingly as the case may be.
2. CCINTRACT BDCIJI~ENTS ... TI~e Contract Documents shall consist of the Work Agreement and the
Scope of Work & Specifications prepared by the City in connection with the Work (where specified), all
Axnendn~ent Request Certificates approved by the City, all Change Orders issued by the City, the I~lotice to
Proceed, the Completion Certificate, and written interpretations of the Contract Documents issued by the City. The
Contract Documents shall, insofar as is possible, be interpreted to be consistent with one another. Any
inconsistencies shall be addressed in accordance with paragraph 1 of this Agreement.
3. P`ERIYIITS ANI} REGULATIONS ... Prior to commencing the Work, the Contractor shall secure all
necessary building permits and licenses as clay be required, and before and during the progress of the Work, give
all notices and comply with all the laws, ordinances, r°ules, and regr,rlations of ever°y kind and nattue now or°
hereafter in effect that are promulgated by any federal, state, county, or other goven~mental authority, relating to
the performance of the Wark. if the Contractor's performance is contrary to any such law, ordinance, rule, or•
regr.ilation, it shall bear° ail costs arising there from. Conn°aetor specifically agrees to abide by and observe all
standards and regulations of the Occupational Safety and 1~ealth Administration, which are applicable to the Wor°k.
4. PRGSECIJTIE3N Gl~ THE WGRI~ ... The Contractor s11a11 at all times prosecute the Worlc diligently so
as to insure its completion in full accordance with the Contract Documents and shall at all times furnish sufficient
numbers and amounts of pr°operly skilled Workers, acceptable materials and equipment, adequate services,
construction tools, and equipment. The Work shall be performed in a good and Worlunaniike manner. Contractor
shall keep the Wark site clean arld orderly during t11e course of the Work and remove aI1 debris at the completion of
the Work. If the Contractor is negligent in these areas, the City reserves the right to perform this work with its own
forces at overtime rates. The costs of such work shall be charged. to the Contractor. The Contractor will
adequately protect the Work from damage, will protect the property from injury or loss, and will take all necessary
precautions during the progress of the Work to protect all persons and the property of others front injury or damage.
The Contractor will assume full responsibility for all its tools and equipment and all materials to be used in
connection with the Work. Materials and equipment that leave been removed. and replaced, as part of the Work
shall belong to the Contractor unless agreed otherwise.
5. COMMENCEMENT AND COMPLETION OE 9~VORK; LII~UIDATED DAMAGES ... The Work
must be satisfactol°ily completed in the opinion of the City by October 23, 2009. if the Collh•actor is unable to
colmnence the Work by the specified date, it must promptlynotify the City. In the event the Work is not completed
by the specified date, the Contractor and its sureties shall be assessed liquidated damages of one percent (1°io) of
the total Contract Price or fifty dollars ($50.00), whichever is gl•eater, per day for each calendar day of delay
excluding Saturday, Sunday, and legal holidays. This sum shall he deducted from the Contract Price at the time of
payment. This provision for liquidated damages represents the best estimate by the City and the Contractor of loss
suffered by the City dLle to failure to complete the Work on tune, and shall not be, or is deemed to be, a penalty or
forfeiture. This provision for liquidated damages is in addition to any alld all other rights and remedies to which
the City may be entitled at law or in equity in connection With this Agreement.
6. EXCUSABLE DELAI'S ... The following circumstances, and only these circumstances, will, at the
City's discretion, be considered legitimate cause fol° a change in the commencement and/or completion dates
specified ill paragraph 5 of this Agreement:
a. Material delay -- material delays that are beyond the control of the Contractor, Which can be
shown to ]lave directly caLlsed the overall late completion.
b. Adv[el"se weather conditions -- weather conditions that directly affect the seheduhng of exterior
work. OVCr a SigiiiilCailt poIiivll of the teI"In of tills AgrCC1i1C2'it.
C. StrlkeS -- COnt]'aCtOl"S Wt10 face Unroll Work Stoppage 111 the Case Wllel'e they have t0 rely On SL1Cl1
a Work force in order to complete the Work.
d. Alnendlncnts -- significant alnendlllents in the original scope of Work, which call be reasonably
shown to require an extension of the tinge, allowed for completion.
e. Emergencies -- accidents, death or illness in the immediate family of the Contractor, which
necessitates a significant Ieave of absence from the jab.
Proven lack of cooperation from persons in possession of the property resulting in siglliiicant
delays.
g. Proven lack of cooperation from the Colltraetot•'s agents resulting in significant delays.
7. AMENDMENT R~€~I~rEST CERTIFICATE ... Changes iii the scope, specifications, or cost of the
Work that are proposed 6y the Contractor subsequent to the execution of this Agreement shall be considered
Amendments. No such Amendments s11a11 be made without prior written approval by the City. Any Amendment
proposed by the Contractor shall be submitted via an Amendment Request Cel-tificate. The Amendment Request
Certificate must: (a) be sighed and dated by the Contractor; (b) specify how fl1e Work is to be aJnended and the cost
for such Amendments; and (c} specify the reason for any cost increase/decrease resulting fiom the Amendment(s).
The City will approve or disapprove the Ameudlnent Request Certificate after appropriate review and propel-ty
inspection. If approved, a copy of the signed Amendment Request Certificate will be forwarded to the Contractor.
Ullon receipt by the Contractor of the approved Amendment Request Certificate, the approved Anlendnlent(s) may
be implemented. All Amendments made before 1°eceipt of an apps°oved Amendmnnt Request Certificate will not be
compensable by the City. No such Amendment Request Certificate shall be deemed to constitute a waiver of any
remaining covenant, age°eement, tel•m, ol° condition contained in the Contract Documents.
8. CHANGE ORI}ER ... The City shall have the right, within the general scope ofthe Work and without
notice to any surety or sureties of the Contractor, to make changes in the Wark, either by aitel°ing the nature of the
same or by adding to or deducting from it. All changes shall, except in the case of emergencies endangering the
safety of persons or property be made by written Change Order. The Contractor shall promptly comply with any
and all written Change Orders. No such Change Order shall be deemed to invalidate the remaining terms and
conditions contained in the Contract Documents.
9. GENERAL G UARANTY ... The Contractor hereby guarantees to tl~e City that all of the Work shall be
done incompetent, workman-like manner and that such Work shall be and remain free of defects in worlananship
and materials for a period of one (1) year fi°otn the date that the City executes the Completion Certificate pursuant
to paragraph l7 of this Agreement. T'ne Contractor wal-~-ants that all materials and equipment furnished u7
connection with the Work will be new, unless otherwise specified, and be of good quality and free fi•orn faults and
defects. The Contractor shall assign to the City (if assignable) or enforce for the benefit of the City (if not
assignable) any guarantees provided by manufacturers or sellers of machinery materials or equipment that are to be
incorporated. into the Work. The City's acceptance of the Work shall not be deemed to be a waiver of any of the
City's rights under this paragraph.
10. WAIVER ~}>~' EIABILIT~' ... It is agreed that the Work is undertaken at the sole risk of the Contractor.
The Contractor does expressly fog°ever release the City of Columbia Heights from any claims, demands, injuries,
damage actions, or causes of action whatsoever, arising out of or com~ected with the Work.
1'1. INDEI~'INIEICA'I'I~N ... Any and all claims that arise or may arise as a consequence of any act or
omission on the part of the Contractor, its agents, servants, or employees while engaged in the performance oftl.e
Wark shall in no way be the obligation or responsibility of the City of Columbia Heights. The Contractor shall
indemnify, hold harmless, and defend the City of Cohrmbia Heights, council members, officers, employees,
successors, and assigns against any and all liability, loss, cost, damages, expenses, claims, or actions, including
attorney's fees which t11e City of Columbia Heights, council members, officers, or employees may hereinafter incur
or be required to pay on account of injury to or death of any person or persons or damage to any property arising
out of or by reason of any act or omission of the Contractor, its agents, servants, or employees in the execution,
performance, ar failure to adequately perkorm its obligations under this l~greement, whatever the cause of such
injuries or damage.
12. INSURANCE ... The Contractor agrees that in order to protect itself, the City of Columbia Heights undet°
the indemnity provisions set forth in paragraph 11 of this Agreement, it ~vi6I at a[I times during the torch of this
Agreement, maintain, at a minimum, the falloaving insurance gsmlieies:
a. Workers Compensation hlsurance. The Contractor shall maintain workers compensation
insurance in compliance with all applicable statutes including Chapter 176 of the Mi~niesota
Statutes. Such policy shall include Employer's Liability Coverage and at least such amolult(s) as
are customarily provided in worker`s compensation policies issued in Minnesota. Contractor°
further agrees to require all subcontractors and independent contractors to maintain worker's
compensation insurance in compliance with all applicable statutes and to monitorthe compliance
of such subcontractors and independent contractors with the applicable statutes.
Commercial General Liability Insurance. The Contl°actor shall maintain Occurrence Based
Commercial General Liability Insurance ("CGL"), providing coverage on an "occurrence", rather
than on a "claims made" basis, which policy shall include coverage for the Completed Operations
Hazard, and which shall a.iso include a Broad Form General Liability Endorsement, ISO number
GL 0404, ar an equivalent form (ar forms), so long as such an equivalent form (or forms} affords
coverage which is in all material respects at least as broad. Any equivalent farm (or farms) of
coverage, shall be approved by the EDA.
The Contractor agrees to maintain total liability policy limits of at least One Million Dollars
($1,000,000), applying to liability for Bodily Injul°y, Personal Injury, and Property Damage,
which total limits may be satisfied by the limits afforded under its Occurrence Based CG,L policy
as specified above, or by such policy in combination with the limits afforded by an Umbrella
Liability Policy (or policies) provided, however, that the coverage afforded under any such
Umbi°ella Liability Policy shall be at least as broad as that afforded by the underlying occurrence
based CGL Policy as specified above.
Automobile Liability hlsurance. The Conti~aetor shall maintain automobile liability inslu-ance
covering liability far Bodily Injury and Property Damage arising out of the ownership, use,
maintenance, or operation of all owned, non-owned, and hired automobiles and other motor
vehicles. Such policy shall provide total liability limits far ca~nbined Bodily Injur;~ and/or
Property Damage inthe amount ofat least One Million Dollars ($1,OQ0,000}per accident, which
total limits may be satisfied by the limits afforded under such policy, or by such policy in
combination with the limits afforded by a~1 Umbrella Liability Policy (or policies) provided,
however, that the coverage afforded under any such Umbrella Liability Policy shall be at least as
broad as that afforded by the underlying automobile liability insurance policy.
The City of Columbia Heights shall be »amed as "additional insured" pal-ties with respect to the insurance policies
specified in (b} and (c} above. The Contractor shall not commence workuntil a Certificate of Insurance evidencing
all of the insurance policies required above is approved and a written T~lotice to Proceed is issued by an authorized,
representative of the City. The City shall, at any time during the term of this agreement, have the right to require
that the Contractor secure any additional insurance, ar additional feature to existing insurance, as the City may
reasonably require for the protection of its interests or those of the public. It is expressly understood that the City
does not in any way represent that the minimum insurance coverage set Earth in this pal•agraph is sufficient or
ad"equate to pi"atcct the inierest ar ilabllitlcS of file Calii3'aCtar.
13. LIEN ~AIViEF2 ... Neither the Contractor nor any subcontractor or other person or entity fun~ishiilg
labor, equipment, or materials in connection with the Work shall file any mechanic's Lien against the City's
buildings, structtn°es or land or any poi°t thereof. The Contractor shall protect, defend, indemnify, and hold
harmless the City of Columbia Heights from any and all claims, demands, or actions of whatever nature arising out
of work, Iabor, equipment, oi° materials fiin~ished by file Contractor or its subcontractors in curutectioii wii11 tl^ie
Work. Payment afthe Contract Price shall not be due until the Contractor has delivered to the City lien waivers
acceptable to the City, which 1°elease the City fi-om all liens that may arise in eom~ection with the Work. `f he
Contractor shalllist below the names of all suppliers and/ar subcontractors that will provide materials, services, o~°
labor in connection with the Work. The Contractor will notify the City of any changes in this List prior to the
comme~tcement of fl1e Wark.
14. C~I~TRAC'>!' >?1tIC'~ ... The Contractor agrees to furnish all work, labor, materials, and. equipment
necessary to complete the WoT°k as set forth in the Contract Documents for the sum of 514,004.40 (the "Contract
Price"), to be paid by the City in accordance with the terms and conditions of this Agreement. The Contract Price
shall constitute the sale compensation payable to the Contractor for its performance of the Work or anything done
in connection therewith including expenditures by the Contractor for all taxes, pei-~nits, licenses, and bonds
required to perform the Work. The Contractor shall indemnify and save the City harmless from and against any
liability for any such taxes, fees, premiums, contributions, eta that the Contractor incurs in comlection with the
Work. Seeding the entire excavated site with. three inches of topsoil will be required by October 26, 2009. The dead
tree on the south. side of the house located at 4448 Quincy Street shall be removed as part of the demo.
15. EKAMINATION OI+ FORK SITE ... Contractor agrees that the Contract Price specified in paragraph
14 of this Agreement is based upon Contractors examination of the work site and that it will make no claim for
additional compensation or the extension. of time for performance if the conditions encountered differ from those
anticipated by such examination, unless such a claim is based upon conditions at the work site, or omissions,
ambiguities, or conflicts in the Contract Doetunents, which Contractor can show could not have been discovered in
the exercise of reasonable care prior to the submission of the Contract Price.
16. PAYMENT OP CONTRACT PRICE ... The Contractor agrees to provide the City with the fallowing
documentation as a condition to receiving payment of the Contract Price: (a) an itemized bill for the completed
Work; (b)all lien waivers as required by parag~•aph 14 of this Agreement (e} and receipts from demolition disposal
and asbestos disposal. The City may withhold payment of the Contract Price to the Contractor to such extent as
may be necessary to protect the City from loss on aceolmt of: (a) defective worknot remedied; (b) claims or actions
filed or evidence reasonably indicating the probable filing of the same against the City with i°espect to the Work
performed; (c) the failure of the Contractor to make payments properly to subcontractors and/or suppliers for
equipment, material, or Labor, or to provide evidence that such payments have been made; (d) any cost far which
the Contractor is liable under the Contract Documents; or (e} a breach by Contractor of any tern, condition, or
provision contained in the Contract Documents.
17. EQUAL EMPLOYMENT OPPORTUNITY ... T11e Contractor shall not discriminate against any
employee or applicant for employment un tyre basis of age, race, color, religion, scx, or national origin. The
Contractor shall comply with all applicable laws, Executive Orders, and i°egulations concerning non-discrimination
in employment, including the Equal Opportunity CIause of Section 202, Executive Order 1 1246, as amended,
which is hereby incorporated by reference.
18. INDEPENDENT CONTRACTOR STATITS ... Contractor is and shall remain an independent
contractor in the performance of the Work, maintaining complete control of its workers and operations. i~Teither
Contractor nor anyone employed or engaged by Contractor shall become an agent, representative, servant, or
employee of the City in the performance of the Work or any part thereof.
19. CONTRACT REPRESENTATIVES; ADDRESSES ... The City's representative with respect to this
Agreement shall be Sheila Cartr~ey, Assistant Comart€anity Development Director, far the City of Coiuenbia
I-Inights. The Contractor's representative with respect to this Agreement shall be Todd Sclnnidt. A11 notices,
requests, and instructions, or other commiulications given or received by either party under the terns of this
Agreement shall, unless otherwise specifically provided herein, be made in writing signed by the designated
representative of the party making such communication alzd be delivered or addressed to the designated
representative of the other party at the following address:
CITY ADDRESS: City of Columbia heights
Attn: Sheila Cartrrey
590 40`~ Avenue Northeast
Colurrabia heights, MN 55421
CANT CTQR ,~DD>l2>1/SS: Tit!iS Construction
Attn: Todd Schmidt
5990 Meadow Lark Lane
Prior Lake l0~IP155372
20. SUBCOIi~T CTC}I3S ... Cantractor agrees to bind every subcontractor by the teens, conditions, and
provisions set forth u1 the Contract Documents that are applicable to the subcont~•actor's wank, unless otherwise
specifically agreed otherwise in writing by the City.
21. ASSIGNIi~UiVT ... This Agreement shall be binding upon and in order to the benefit ofthe Contractor, its
legal representatives, heis-s, successors, and assigns. No assignment or attempted assignment of this Agreement or
any rights hereunder shall be effective unless the written consent of the City is first obtained. No such assignment,
even if consented to by the City, shall relieve the Cantractor from liability under this Agreement for the
performance and completion of the Work in accordance with the Conn°act Documents.
22. )/NTiItE AG12LL19~IElV~T ... The Contract Documents contain all the terms, conditio~~s, and provisions
pertaining to the Work to be completed by the Contractor, there being no other understandings, agreements, or
warranties, express or implied. All prior negotiations ar~rd dealn~gs regarding tl~e subject matter of the Contract
Documents are superseded by and merged into tl~e Contract Documents.
23, m ~P! tC e ~zLL. LAS ... This Age°e?n?ent si_rall be construed in accordance with and governed by t)~e laws
of the state of Minnesota.
24. A1~E1~T3IVIUNT ... This Agreement maybe modified oX° amended only with the written approval of the
City and the Cantractor.
2S. CQI~STtiUCTI~l~ ... In the event that any one or more of the provisions of this Agreement, or any
application thereof, shall be found to be invalid, illegal, or otherwise unenforceable, the validity, legality, and
enforceability of the remaining provisions or any application thereof shall not in any way be affected or impaired
thereby.
2b. r~UTI-I~t2.IT3~' ... Each of the undersigned pal•ties warrants that it has the full authority to execute t11is
Agreement, and each. individual signing this Agreement an behalf of a corporation hereby warrants that he or she
bas full authority to sign on behalf of the corporation and that he or she represents and binds such corporation
thereby.
27. ~A~~U~ ... No faihu•e by the City to insist upon the strict perfo:°mance of any covenant, duty,
agreement, or condition contained in this Agreement or to exercise any right or remedy consequent upon a breach
thereof shall constitute a waiver of any such breach or any other covenant, agi°eement, term, ar condition, nor does
it imply that suc11 covenant, agreement, term, or condition may be waived again.
28. I~~TICIv T~? ~'>~~CLI~D... The Cantractor shall not proceed with work until the City issues a notice to
proceed which evidences the securing of necessary permits, instu•ances and any other requirements of the contract
documents.
29. CC}I~>PI~ETION CFI2TIFICATF...The Contractor sha11 receive a completion certificate upon
satisfactorily completing the work outlined in the contract documents.
IN WITNESS WHERE®F, the parties have set their hands this 28th day of September 2009.
cIT~ ~F LU>li>r~ >~~~~g~~S
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It's Mayor-Vary L~ Peterson
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It's City Manager-Walter R. Fehst