HomeMy WebLinkAboutContract 2235contract # CITY OF COLUMBIA IIEIGIITS
WORK AGREEMENT
This Agreement is made this 21st day of October, by and between the City of Columbia Heights ("the
City") and TMS Construction (the "Contractor") for Building Demolition, for one single-family building one
garage and one shed located at 4235 Washington 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");
WHEREAS, Contractor represents that it has the necessary personnel, experience, competence, and legal right to
perform 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, THEREFORE, in consideration 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. WORK TO BE COMPLETED ... The Worlc shall be performed. in strict accordance wit11 the Contract
Documents. The Contractor shall carefully 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 between any two
or more documents or between any parts of the same document. "The City shall have discretion as to how to
address any sudi discrepancy or u~consiste..cy and shall modify, interpret, or adjust the Contract Documents
accordingly as the case may be.
2. CONTRACT DOCUMENTS ... The Conntract Documents shall consist of the Worlc Agreement and the
scope of Work ~ Specifications prepared by the City in connection with the Work (where specified), all
Amendment Request Certifcate.s approved by the City, all Change Orders issued by the City, the Notice to
Proceed, the Completion Certificate, and written interpretations of the Contract Documents issued by the City. The
Contract Docwnents 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. PERMITS AND REGULATIONS ... Prior to commencing the Work, the Contractor shall secure all
necessary building permits and licenses as may be required, and before and during the progress of the Work, give
all notices and comply with all the laws, ordinances, rules, aild regulations of every kind and nature now or
hereafter in effect that are promulgated by any federal, state, county, or other governmental authority, relating to
the performance of the Work. If the Contractor's performance is contrary to any such law, ordinance, rule, or
regulation, it shall bear all costs arising there from. Contractor specifically agrees to abide by and observe all
standards and regulations of the Occupational Safety and Health Administration, which are applicable to the Work.
4. PROSECUTION OF THE WORK ... The Contractor shall at all times prosecute the Work 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 properly skilled Workers, acceptable materials and equipment, adequate services,
construction tools, and equipment The Work shall be performed in a good and Workmanlike mamzer. Contractor
shall keep the Work site clean and orderly during the course of the Work and remove all debris at the completion of
the Work. If the Contractot° is negligent in these areas, the City reserves the right to perform this work with its own
forces at overtime rates. The costs of suc31 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
2235
precautions during the progress of the Work to protect all persons and the property of others from injury or damage.
The Contl°actor 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 have been removed and replaced, as part of the Work
shall belong to the Contractor unless agreed otherwise.
5. COMMENCEMENT AND COMPLETION OF WORK; LIQUIDATED DAMAGES ... The Work
must be satisfactorily completed in the opinion. of the City by November 20, 2009. If the Contractor is unable to
commence the Work by the specified date, it must promptly notify 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%) of
the total Contract Price or fifty dollars {$50.00), whichever is greater, per day for each calendar day of delay
excluding Saturday, Sunday, and legal holidays. This sum shall be 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 due to failure to complete the Work on time, and shall not be, or is deemed to be, a penalty or
forfeiture. This provision for liquidated damages is in addition to any and all other rights and remedies to which
the City may be entitled at law or in equity in connection with this Agreement.
6. EXCUSABLE DELAYS ... The following circumstances, and olily these circumstances, will, at the
City's discretion, be considered legitimate cause far a change in the commencement and/or completion dates
specified in paragraph 5 of this Agreement:
a. Material delay -- material delays that are beyond the control of the Contractor, which can be
shown to have directly caused the overall late completion.
b. Adverse weather conditions -- weather conditions that directly affect the scheduling of exterior
work over a si~~lificant portion of the term. of this Ag',-eemer~t.
c. Strikes --Contractors who face union work stoppage in the case where they have to rely on such
a work force in order to complete the Work.
d. Amendments -- signif cant amendments in the original scope of work, which can be reasonably
shown to require an extension of the time, allowed for completion.
e. Emergencies -- accidents, death or ilhless in the immediate family of the Contractor, which
necessitates a significant leave of absence from the job.
f. Provers lack of cooperation from persons in possession of the property resulting in significant
delays.
g. Proven lack of cooperation. from the Contractor's agents resulting insignificant delays.
7. AMENDMENT REQUEST CERTIFICATE ... Changes in the scope, specifications, or cost of the
Work that are proposed by the Contractor subsequent to the execution of this Agreement shall be considered
Amendments. No such Amendments shall be made without prior written approval by the City. Any Amendment
proposed by the Contractor shall be submitted via an Amendment Request Certificate. The Amendment Request
Certificate must: (a) be signed and dated by the Contractor; (b) specify how the Work is to be amended and the cost
for such Amendments; and (c) specify the reason for any cost increase/decrease resulting from the Amendment(s).
The City will approve or disapprove the Amendment Request Certificate after appropriate review and property
inspection. If approved, a copy of the signed Amendment Request Certificate will be forwarded to the Contractor.
Upon receipt by the Contractor of the approved Amendment Request Certificate, the approved Amendment(s) may
be implemented. All Amendments made before receipt of an approved. Amendment 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, agreement, term, or condition contained in the Contract Documents.
8. CHANGE ORDER ... The City shall have the right, within the general scope of the Work and without
notice to any surety or sureties of fine Contractor, to make changes in the Work, either by altering 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 the 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 workmanship
and materials for a period of one (1) year from the date that the City executes the Completion Certificate pursuant
to paragraph 17 of ibis Agreement. The Contractor war-ants that all materials and equipment furnished in
connection with. the Work will be new, unless otherwise specified, and be of good quality and free from 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 shad not be deemed to be a waiver of any of the
City's rights under this paragraph.
10. WAIVER OF LIABILITY ... It is agreed that the Work is undertaken at the sole risk of the Contractor.
The Contractor does expressly forever release the City of Columbia Heights from any claims, demands, injuries,
damage actions, ar causes of action whatsoever, arising out of or connected with. the Work.
11. INDEMNIFICA'T`ION ... Any and alt claims that arise or may arise as a consequence of ashy act or
omission on the part of tine Contractor, its agents, servants, or employees while engaged in the performance of tine
Work 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 Columbia 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 the City of Columbia Heights, cowncil 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, or failure to adequately perfornn its obligations under this Agreement, whatever tine cause of such
injuries or damage.
12. INSURANCE ... The Contractor agrees that in order to protect itself, the City of Colwnbia Heights under
the indemnity provisions set forth in paragraph I 1 of this Agreement, it wilt at alt times during the term of this
Agreement, maintain, at a minimum, the following insurance policies:
a. Workers Connpensation Insurance. The Contractor shall maintain worker's compensation
insurance in compliance with all applicable statutes including Chapter 176 of the Mimiesota
Statutes. Such policy shall include Employer's Liability Coverage and at least such asnount(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 incompliance with all applicable statutes and to monitorthe compliance
of such subcontractors and independent contractors with the applicable statutes.
b. Commercial General Liability Insurance. The Contractor 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 also include a Broad Forn General Liability Endorsement, ISO nwnber
GL 0404, or an equivalent form (ar forms), so long as such an equivalent forn (or forns) affords
coverage which is in all material respects at least as broad. Any equivalent forn (or forns) 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 Injury, Personal Injury, and Property Damage,
which total limits may be satisfied by the limits afforded under its Occurrence Based CGL 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
Umbrella Liability Policy shall be at Least as broad as that afforded by the underlying occurrence
based CGL Policy as specified above.
c. Automobile Liability Insw•ance. The Contractor shall maintain automobile liability insurance
covering Liability for 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 for combined Bodily LZjury andlor
Property Damage in the amount of at least One Million Dollars ($1,000,000) per accident, which
total limits may be satisfied by the limits afforded Linder such policy, 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 Umbrella Liability Policy shall be at least as
broad as that afforded by the w~derIying automobile liability insurance policy.
The City of Columbia Heights shall be named as "additional insured" parties with respect to the insurance policies
specified in (b}and (c} above. The Contractor shall not commence work until a Certificate of Insurance evidencing
all ofthe insurance policies required above is approved. and a written. Notice 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, or 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 forth in this paragraph is sufficient or
adequate to protect the interest or iiabiiities of Lire Co;itractor.
13. LIEN WAIVER ... Neither the Contractor nor any subcontractor or other person or entity furnishing
lobar, equipment, or materials in connection with the Work shall file any mechanic's lien against the City's
buildings, stnlctures or land or any part thereof. The Contractor shall protect, defend, indemnify, and hold
harmless the City ofColumbia I-leights from any and all claims, demands, or actions ofwhatever nature arising out
of work, labor, equipment, or materials furnished by the Contractor or its subconiractors in corn~ectioi~ with tiie
Work. Payment of the Contract Price shall not be due until the Contractor has delivered to the City Lien waivers
acceptable to the City, which release the City from all liens that may arise in connection with the Work. The
Contractor shall list below the names of all suppliers and/or subcontl•actors that will provide materials, services, or
labor in connection with the Work. The Contractor will notify the City of any changes in this list prior to the
commencement of the Work.
14. CONTRACT PRICE ... The Contractor agrees to furnish all work, labor, materials, and equipment
necessary to complete the Work as set forth in the Contract Documents for the sum of X6,766.00 (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 sole compensation payable to the Contractor for its performance of the Work or anything done
Ln connection therewith. including expenditures by the Contractor for all taxes, permits, 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, etc. that the Contractor incurs in connection with the
Work. Seeding the entire excavated site with three inches of topsoil will be required by Spring 2010, 10% of the
bid will be withheld. until the seeding is complete. The driveway adjacent to the retaining wall shall remain in
place.
15. EXAMINATION OF WORK 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 Documents, 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 OF CONTRACT PRICE ... The Contractor agrees to provide the City with the following
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 paragraph 14 ofthis Agreement (c) 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 account of: (a) defective work not remedied; (b) claims or actions
filed or evidence reasonably indicating the probable filing of the same against the City with respect 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 for which
the Contractor is liable under the Contract Documents; oi° (e) a breach by Contractor of any term, condition, ar
provision contained in the Contract Documents.
17. EQUAL EMPLOYMENT OPPORTUNITY ... The Contractor shall not discriminate against any
employee or applicant for ernployrnent oil the basis of age, race, color, religion, sex, or national origin. The
Contractor shall comply with all applicable laws, Executive Orders, and regulations concerning non-discrimination
in employment, including the Equal Opportunity Clause of Section 202, Executive Order 11246, as amended,
which is hereby incorporated by reference.
18. INDEPENDENT CONTRACTOR STATUS ... Contractor is and shall remain an independent
contractor in the performance of the Work, maintaining complete control of its workers and operations. iveiillei'
Contractor nor anyone employed or engaged by Contractor shall became 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 Cartney, Assistant Community Development Director, for the City of Columbia
Heights. The Cont•actor's representative with 1°espect to this Agreement shall be Todd Schmidt. A11 notices,
requests, and inst-uctions, or other communications given or received by either parry under the terms of this
Agreement shall, unless otherwise specifically provided herein, be made in writing sigised by the designated
representative of the party making such communication and be delivered or addressed to the designated
representative of the other party at the following address:
CITY ADDRESS: City of Columbia Heights
Attn: Sheila Cartney
590 40`x' Avenue Northeast
Columbia Heights, MN 55421
CONTRACTOR ADDRESS: TMS Construction
Attn: Todd Schmidt
5990 Meadow Lark Lane
Prior Lake MN 55372
20. SUBCONTRACTORS ... Contractor agrees to bind every subcontractor by the terms, conditions, and
provisions set forth in the Contract Documents that are applicable to the subcontractor's work, unless otherwise
specifically agreed otherwise in writing by the City.
21. ASSIGNMENT ... This Agreement shall. be binding upon and in order to the benefit ofthe Contractor, its
legal representatives, heirs, successors, and assigns. No assigmnent 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 Contractor from liability under this Agreement far the
performance and completion of the Work in accordance with the Contract Documents.
22. ENTIRE AGREEMENT ... The Contract Documents contain all the teens, conditions, 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 and dealings regarding the subject matter of tl~e Contract
Documents are superseded by and merged into the Contract Documents.
23. APPLICABLE 1,AW ._, This Agreement shall be construed in accordance with and governed by the laws
of the state of Minnesota.
24, AMENDMENT ... This Agreement may be modified or amended only with the written approval of the
City and the Contractor.
25. CONSTRUCTION ... In the event that any one or mare 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.
26. AUTHORITY ... Each of the undersigned parties warrants that it has the full authority to execute this
Agreement, and each individual signing this Agreement on behalf of a corporation hereby warrants that he or she
has full authority to sign on behalf of the corporation and that he or she represents and binds such. corporation
thereby.
27. WAIVER ... No failure by the City to insist upon the strict performance 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, agreement, teen, or condition, nor does
it imply that such covenant, agreement, term, or condition may be waived again.
28. NOTICE TO PROCEED... The Contractor shall not proceed with work until the City issues a notice to
proceed which evidences the securing of necessary permits, insurances and any other requirements of the contract
documents.
29. COMPLETION CERTIFICATE...The Contractor shall receive a completion certificate upon
satisfactorily completing the work outlined in the contract documents.
IN WITNESS WHEREOF, the parties have set their hands this 21st day of October 2009.
r,.-----`~.
f
CITY OF ~~ OLUMBI~. HEI 'I'S
~- -~%. ~_
} s ~~ ~: ~_
It's Mayor-Gary L3:'Peterson
O °- ~'~°' ,~ ~°'
It's City Managezz=Walter . Fehst
CONTRACTOR ,-~
,-
~ .~ ~ t` T
Its: %=