THIS FACILITIES SERVICES AGREEMENT (“Agreement”), by and between Shelby County Board of Education, a school district organized and existing under the laws of the State of Tennessee (hereinafter referred to as the “Owner”), having its principal place of business at 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, and Xxxxxx & Xxxxxxxxx, Inc. (hereinafter referred to as the “Contractor”), having its principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
1. Owner is desirous of contracting with a third party for purchase and installation of various HVAC units at Xxxxxxxx High School.
2. The Contractor represents that it can perform the work and is willing and able to perform the work required under this Agreement.
FOR AND IN CONSIDERATION of the mutual covenants contained in this Agreement, Owner and the Contractor (the “Parties”) agree as follows:
As used in this Agreement, the following terms shall have the respective meanings set forth below:
"Contract Documents" means the documents listed in Section 3 of this Agreement and modifications issued after execution of the contract.
“Contract Price” means the amount to be paid for the Work, as set forth in Section 6 of this Agreement.
“Contractor” means the person or entity identified as such throughout the Contract Documents, as if singular in number, or its authorized representative.
"Owner" means Shelby County Schools, including its Project Manager or other designees.
“Equipment” means the related materials involved in providing the services delineated herein.
"Project Manager" means the person appointed by the Owner to administer the terms of the Agreement between the Owner and the Contractor, who is also empowered to take certain actions under this Agreement.
"Substantial Completion" means that the Equipment has been installed, placed in satisfactory operating condition, and tested, and the value of the Work remaining to be performed by the Contractor is, in the estimate of the Owner, less than five percent (5%) of the original Contract Price.
"Work" means the improvement services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligation.
2. SCOPE OF WORK. The Contractor shall furnish all labor, materials and equipment, and perform all work (collectively, the “Work”) required for purchase and installation of various HVAC units at Xxxxxxxx High School (the “Project”), in strict accordance with the Contract Documents. All changes in the Work including any increase, decrease, or other equitable adjustment in the Agreement price or in the time for performing the Agreement, shall be authorized in writing by the Owner or Project Manager prior to commencement of the Work. The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Agreement. The Contractor hereby represents and warrants that it is certified and licensed to perform the Work. The Contractor shall provide the Owner copies of appropriate certifications upon request.
3. CONTRACT DOCUMENTS. The Contract Documents consist of the following documents which are either
attached to this Agreement or are incorporated herein by reference and made a part hereof:
a. This Agreement;
b. The Owner's Invitation to Bid #25HVAC0218-C820 issued by the Division of Procurement Services;
c. The Project Manual for the Project, including the Specifications and, if included or referenced therein, any Standard Terms and Conditions, Special Conditions, Equal Opportunity/Affirmative Action Requirements, and the Owner’s Fair Business Policy;
d. Addenda Number(s): 1, 2, 3 and 4
e. The Bid Response of the Contractor submitted for this Project and accompanying documents and certifications;
f. Certificate(s) of Insurance and surety bond(s) submitted by the Contractor in connection with this Project;
g. Duly authorized and executed Amendments, Change Orders or Work Orders issued by the Owner after execution of this Agreement.
This Agreement, together with the other documents enumerated in this Article, constitute the entire Agreement between the Owner and the Contractor.
3.1 PRIORITY OF DOCUMENTS. In the event of inconsistency between the terms of this Agreement and the Project Manual, the terms of this Agreement shall prevail.
4. CONTRACT TERM. The term of this Agreement shall begin upon receipt of a fully executed Agreement and written authorization to proceed from the Owner. The term shall expire upon the acceptance of full completion of the Work by the Owner.
5. PRE-CONSTRUCTION CONFERENCE. Prior to commencement of the Work, the Contractor shall meet in conference with representatives of the Owner regarding the Owner's requirements under the Agreement for administration of the quality assurance program, safety program, labor provisions, the schedule of Work, and other contract procedures. The Contractor shall begin Work upon receipt of a written Notice to Proceed from the Project Manager. The Contractor shall not begin Work prior to receiving such notice.
6. CONTRACT PRICE. The Owner shall pay the Contractor for the performance of the Work, subject to additions and deductions provided for herein, in current funds, a lump sum price of One Million Seven Hundred Eighty Thousand and 0/100 Dollars ($1,780,000.00) for the Services, Twenty-Five Thousand and 0/100 Dollars ($25,000.00) for payment of the performance bond for the Project, Owner’s contingency of One Hundred Seventy-Eight Thousand and 0/100 Dollars ($178,000.00), and allowances in the amount of $309,000.00.
7. PAYMENT FOR WORK PERFORMED. Final payment will be due following completion and acceptance of the Work performed in accordance with this Agreement. Before final payment is made, the Contractor shall submit evidence to the Owner that all payrolls, materials, bills, and other indebtedness connected with the Work have been made. The Owner will use best efforts to pay within thirty (30) days of receipt of an invoice for the Work accepted by the Owner. Notwithstanding, the Owner may withhold from final payment an amount equal to the value of any claims Owner reasonably has against the Contractor arising out of the Work.
8. RESPONSIBILITY FOR THE WORK. The Contractor shall take all responsibility for the Work, and shall take all precautions for preventing injuries to persons and property in or about the Work. The Contractor shall effectively protect its Work and shall be liable for all damage and loss by delay or otherwise caused by his neglect or failure so to do.
9. GENERAL INDEMNIFICATION. The Contractor shall take all responsibility for the Work and take all precautions for preventing injuries to persons and property in or about the Work; and shall bear all losses resulting to
or on account of the amount or character of the Work. The Contractor shall pay or cause payment to be made for all labor performed or furnished and for all materials used or employed in carrying out this Agreement. The Contractor shall assume the defense of, and indemnify and save harmless the Owner, and the Owner's officers and agents from all claims relating to labor performed or furnished and materials used or employed for the Work; to inventions, patents and patent rights used in and in doing the Work unless such patent infringement is due to a product or process specified by the Owner; to injuries to any person or corporation received or sustained by or from the Contractor and any employees, and subcontractors and employees, in doing the Work, or in consequence of any improper materials, implements or labor used or employed therein; and to any act, omission or neglect of the Contractor and any employees therein.
10. WARRANTY. The Contractor warrants to the Owner that materials and Equipment furnished under the Agreement will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and Equipment. Except as may be otherwise provided in the Project Manual, the Contractor shall replace, repair or make good, without cost to the Owner, any defects or faults arising within one (1) year after date of acceptance of Work and Equipment or materials furnished hereunder (acceptance not to be unreasonably delayed) resulting from imperfect or defective Work done or Equipment or materials furnished by the Contractor.
11. INSPECTION AND TESTS. All Equipment furnished and installed hereunder shall be subject to the inspection, tests and approval of the Owner. Notwithstanding, the Owner's inspection of the Work shall not relieve the Contractor of any of its responsibilities to fulfill the contract obligations.
12. PATENT INDEMNIFICATION. The Contractor agrees to assume the defense of and shall indemnify and save harmless the Owner and all persons acting for or on behalf of it from all suits and claims against them, or any of them, arising from or occasioned by the use of any material, Equipment or apparatus, or any part thereof which infringes or is alleged to infringe on any patent rights. In case such material, equipment or apparatus, or any part thereof, in any such suit is held to constitute infringement, the Contractor, within a reasonable time, shall at its own expense, and as the Owner may elect, replace such material, Equipment or apparatus with non-infringing material, Equipment or apparatus, or remove the material, equipment, or apparatus and refund the sums paid therefor.
13. INSURANCE REQUIREMENTS. The Contractor shall provide insurance coverage as listed below. This insurance shall be provided at the Contractor's expense and shall be in full force and effect during the full term of this Agreement.
a. Worker's Compensation (Statutory)
b. Commercial General Liability, to include the following:
i. Contractual liability
ii. Personal injury liability, including offenses related to employment
iii. Coverage of explosion, collapse, or underground hazards
iv. Broad form property damage liability, including completed operations coverage
v. Limits shall be the greater of requirements of the umbrella excess underwriter, or
1) $1,000,000 bodily injury and property damage per occurrence;
2) $1,000,000 personal injury and advertising injury per person
3) $1,000,000 aggregate products and completed operations; and
4) $1,000,000 general aggregate.
c. Business Auto Liability (includes owned, non-owned and hired vehicles):
i. Contractual liability coverage
ii. Limits shall be the greater of the umbrella excess underwriter’s requirement, or $1,000,000 combined bodily injury and property damage per accident.
The Contractor shall not commence the Work until proof of compliance with this Section 13 has been furnished to the Owner by submitting one copy of a properly endorsed insurance certificate issued by a company authorized to write insurance in the state of Tennessee. This certificate shall indicate that the contractual liability coverage is in force.
The Owner shall be named as additional insured on the Contractor's Liability Policies. Cancellation of any insurance required by this Agreement, whether by the insurer or the insured, shall not be valid unless written notice thereof is given by the party proposing cancellation to the other party and Owner at least thirty days prior to the effective date thereof, which shall be expressed in said notice.
14. BONDS. The Contractor shall provide the Owner with a performance bond in the form provided by the Owner, executed by a surety company licensed by the state of Tennessee prior to the commencement of the Work. Such bond shall be in an amount equal to the Contract Price unless otherwise stated in the Contract Documents. All bonds shall be accompanied by a current power of attorney.
15. TERMINATION FOR CAUSE. The Owner may terminate this Agreement for cause if it determines that any of the following circumstances have occurred:
a. The Contractor is adjudged bankrupt or has made a general assignment for the benefit of its creditors.
b. A receiver has been appointed of the Contractor's property.
c. All or a part of the Work has been abandoned.
d. The Contractor has sublet or assigned all or any portion of the Work, the Agreement, or claims thereunder, without the prior written consent of the Owner, except as provided in the Agreement.
e. The Owner has determined that the rate of progress required on the project is not being met.
f. The Contractor has substantially violated any provisions of this Agreement.
In the event of termination for cause, (i) the Owner may complete the Work, or any part thereof, and charge its expense of so completing the Work or part thereof, to the Contractor, or (ii) the Owner may take possession of and use any materials, machinery, implements and tools found upon the site of said Work. The Owner shall not be liable for any depreciation, loss or damage to said materials, machinery, implements or tools during said use and the Contractor shall be solely responsible for their removal from the Project site after the Owner has no further use for them.
16. TERMINATION FOR CONVENIENCE. In the event that this Agreement is terminated by the Owner, prior to the completion of the Work and termination is not based on a reason listed in Section 15, the Contractor shall be compensated for its costs incurred on the Project, including reasonable costs of de-mobilization, covering the period of time between the last approved application for payment and the date of termination. Payment by the Owner pursuant to this Section 16 shall be considered to fully compensate the Contractor for all claims and expenses and those of any consultants, subcontractors, and suppliers, directly or indirectly attributable to the termination, including any claims for lost profits.
17. PERMITS, FEES, AND NOTICES. The Contractor shall secure and the Owner shall pay for the building permit, if required. The Contractor shall coordinate all efforts required to obtain this permit. All other permits and governmental fees, licenses, and inspections necessary for proper execution and completion of the Work shall be secured and paid for by the Contractor. The Contractor shall comply with and give notices required by laws, ordinances rules, regulations, and lawful orders of public authorities bearing on performance of the Work. If the Contractor performs Work that it knows or reasonably should know is contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Owner, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs.
18. SAFETY REQUIREMENTS. The Contractor shall comply with all Federal, State, and local safety laws and regulations applicable to the Work performed under this Agreement.
19. EMPLOYEES AND SUBCONTRACTORS. It is understood that, from time to time, it may become necessary for the Contractor to replace an individual working as an employee or subcontractor of the Contractor. All such removals or replacements shall be subject to Owner’s prior approval. Owner reserves the right to approve a replacement, which approval shall not be unreasonably withheld, or terminate the Work, either partially or in its entirety without further obligation to the Contractor thereunder other than to remit payment for the Work rendered up to the termination date. Contractor agrees that Owner may, at any time, with cause, require Contractor to remove an individual from the performance of the Work. An election by Owner of any of its rights under this Section 19 shall not affect the Contractor’s responsibilities, liabilities or warranties under this Agreement.
20. BACKGROUND CHECKS. Contractor hereby agrees that it is aware of the provisions of Tennessee Code Annotated §49-5-413 requiring the background check of any employee or subcontractor that works on school grounds at any time when students are present, and prohibiting any person with a history of the criminal offenses cited in the statute from working on a school campus during such times. The Contractor hereby certifies that it has, and will, at all times during the performance of the Work, comply with the provisions of this statute and will provide to Owner, upon request, proof of its compliance with this provision. A default by the Contractor of the provisions of this Section 20 shall be automatic grounds for termination of this Agreement pursuant to Section 15.
21. INDEPENDENT CONTRACTOR. It is understood and agreed that Contractor will perform the Work under this Agreement as an independent contractor. It is also agreed that Contractor will comply with all applicable federal, state, and local laws and regulations relating to the employment, insurance, and taxation of employees who perform Work under this Agreement. No agency or employment relationship with Owner is intended nor shall be construed to exist between Owner and Contractor or between Owner and any of Contractor’s employees performing the Work under this Agreement, and neither Contractor nor its employees shall be entitled to participate in any of Owner's pension or employee welfare benefit plans, including its group life insurance plans.
22. RIGHT TO AUDIT. The Owner shall, until three (3) years after final payment under this Agreement, have access to and the right to examine any of the Contractor's directly pertinent books, documents, papers, or other records involving transactions related to this Agreement for the purpose of making audit, examination, excerpts, and/or transcriptions.
23. ASSIGNMENT/SUB-CONTRACTING. The Contractor agrees that he will not sell, assign or transfer this Agreement or any part thereof or interest therein without the prior written consent of the Owner.
24. GOVERNING LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee without reference to its choice of law provisions. Jurisdiction of any legal proceeding or dispute related to this agreement shall be exclusively within the Courts of the State of Tennessee and venue shall be in Memphis Tennessee.
25. SEVERABILITY. The provisions of this Agreement are severable. If any section, paragraph, clause or provision of this Agreement shall be finally adjudicated by a court of competent jurisdiction to be invalid, the remainder of this Agreement shall be unaffected by such adjudication and all of the remaining provisions of this Agreement shall remain in full force and effect as though such section, paragraph, clause or provision, or any part thereof so adjudicated to be invalid, had not been included herein, unless such remaining provisions, standing alone, are incomplete and incapable of being executed in accordance with the intent of the parties to this Agreement.
26. AMENDMENTS TO THIS CONTRACT. This Agreement may not be amended except by mutual agreement in writing which specifically recites that the Parties intend such writing to amend this Agreement and which is signed by authorized representatives of each party
27. ENTIRE AGREEMENT. This Agreement, together with the Scope of Work and other documents that may be executed pursuant to this Agreement and incorporated herein, constitutes the entire agreement between the Parties and shall supersede any and all prior agreements, communications and understandings between the Parties with respect to the subject matter hereof. The terms of this Agreement shall apply notwithstanding any proposed variations or additions that may be contained in any purchase order, invoice or other communication submitted by Contractor. This Agreement may not be modified, amended or changed except by mutual agreement in writing.
28. NOTICES. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by express delivery or confirmed facsimile, or certified mail, return receipt requested, to the Parties at the respective address set forth below, or to such other address as the party to receive the notice has designated by notice to the other party:
If to Contractor: Xxxxxx & Xxxxxxxxx, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Attn: Xxxxx Xxxxxxxxx
If to Owner: Shelby County Schools 0000 Xxxxxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Executive Director
With a copy to: Shelby County Schools 000 X. Xxxxxxxxx Xxxxxx Xxxxxxx, XX 00000
Attn: Office of the General Counsel
29. SEVERABILITY. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
30. NO WAIVER. The failure by either party at any time to require performance by the other of any provision of this Agreement shall in no way affect that party’s right to enforce such provision, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision or any other provision.
31. SURVIVAL. The provisions of this Agreement relating to “Warranty,” "Independent Contractor," "General and Patent Indemnification," and “Right to Audit” shall survive any expiration or termination of this Agreement.
32. EQUAL OPPORTUNITY. During the performance of this contract, the Contractor agrees as follows:
a. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor will take affirmative action so that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.
b. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin.
c. To the extent required by law, the Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
d. The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
e. In the event of the Contractor’s non-compliance with the nondiscrimination clauses of this Agreement or with any of such rules, regulations, or orders, this Agreement may be canceled or terminated.
33. SALES TAX EXEMPTION AND OTHER TAXES. The Contractor shall be responsible for paying all taxes and tariffs of any sort, related to the Work. Owner is a tax-exempt organization and, to the fullest extent allowable by law, shall incur no charges for the payment of taxes.
34. PROHIBITION AGAINST LIENS. The Contractor is prohibited from placing a lien on the Owner's property. This prohibition shall apply to all subcontractors at any tier and all materials suppliers.
35. ATTORNEYS FEE AND EXPENSE OF ENFORCEMENT. If, by reason of the failure of the Contractor to carry out and perform any of the provisions of this Agreement or the obligations under this Agreement, it becomes necessary or desirable in the judgment of the Owner to employ an attorney or incur any other reasonable attorneys’
fees, cost or expenses, then Contractor agrees to pay such reasonble attorneys’ fees and expenses, and hold Owner harmless against any loss thereof.
36. CONFLICT OF INTEREST. Contractor warrants that no part of the compensation payable hereunder shall be paid directly or indirectly to an employee or official of Owner as wages, compensation, or gifts in exchange in connection with the Services contemplated or performed relative to this Agreement. Contractor shall disclose in writing to Owner’s Office of the General Counsel any financial or beneficial interests that it, or its principals or officers, has in services, products, or companies recommended to Owner in the performance of this Agreement. Failure to disclose any such interests shall be deemed a violation of this Agreement and will result in the forfeiture of all monies previously paid by Owner to Contractor pursuant to this Agreement.
37. COMPLIANCE WITH LAWS. Contractor will observe and comply with all applicable local, state, and federal laws, ordinances and regulations, including, but not limited to, Equal Opportunity laws, the Fair Labor Standards Act, the Occupational Safety and Health Act (OSHA) the Civil Rights Act of 1964, and the Americans with Disability Act (ADA).
38. APPROPRIATIONS. This Agreement is subject to the appropriation and availability of funds. In the event that the funds are not appropriated or are otherwise unavailable, Owner reserves the right to terminate this Agreement upon written notice to the Contractor. Said termination shall not be deemed a breach of this Agreement by Owner. Upon receipt of written notice, the Contractor shall cease all work associated with this Agreement. In the event of termination, the Contractor shall be entitled to compensation for all satisfactory and authorized Services completed as of the termination date. Upon such termination, the Contractor shall have no right to recover from Owner any actual, general, special, incidental, consequential, or any other damages whatsoever of any description or amount.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties have caused this instrument to be executed under seal the day and year first above written.
Xxxxxx & Xxxxxxxxx, Inc. XXXXXX COUNTY BOARD OF EDUCATION
Xxxxx Xxxxxxxxx Xxxxxx X. Xxxxxx, Superintendent
Title: Vice President
2/14/2018 | 13:15 PM PST
By: Xxxxxx X. Xxxxx, Board Chairperson
Approved as to legal form:
Associate General Counsel