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HomeMy WebLinkAboutGatz Landscaping~_ RESOLUTION 2012-772 k~,n~ ADOPTED DOC ID: 8197 THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2012-772 WAS ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON OCTOBER 12, 2012: RESOLVED that the Town Board of the Town of Southold hereby accepts the bid of Gatz Landscaping in the amount of $49,899.00 for the demolition of the building of Manor Grove property and be it further RESOLVED that the Town Board hereby authorizes and directs Supervisor Scott A. Russell to sign a contract with Gatz Landscaping for same, subject to the approval of the Town Attorney. Elizabeth A. Neville Southold Town Clerk RESULT: ADOPTED [UNANIMOUS] MOVER: Jill Doherty, Councilwoman SECONDER: William Ruland, Councilman AYES: William Ruland, Jill Doherty, Albert Kmpski Jr., Scott Russell ABSENT: Christopher Talbot, Louisa P. Evans ORIGINAL AGREEMENT THIS AGREEMENT, entered into this ~day of Oc~[~t.~, 2012, by and between the Town of Southold, New York ("the Town"), a municipal corporation organized and existing under the laws of the State of New York with offices at 53095 Main Road, P.O. Box 1179, Southold, New York, and Gatz Landscaping Inc. (the "Contractor"), with an address of 6477 Sound Avenue, Mattituck, New York; WITNESSETH, that the Town and the Contractor, for the consideration hereinafter named, agree as follows: ARTICLE 1. CONTRACT AND CONTRACT DOCUMENTS The Contract and Contract Documents consist of the following: Affidavit of qualification to bid, Notice to Bidders, Request for Proposal, Bid and Contract Agreement, Bid acceptance resolution, specifications, plans, drawings, all Addenda, Appendices and amendments to any contract document, change orders and any supplementary documents, together with all provisions of law deemed to be inserted in any of these documents. In case of any conflict or inconsistency between the provisions of the Contract and those of the Contract Documents, the provisions of this Contract shall govern, however, all references herein to the "Contract" shall also refer to the "Contract Documents". ARTICLE 2. WORK TO BE DONE AND CONSIDERATION THEREFOR The Contractor shall perform the following: Demolition of the Manor Grove Property and disposal of all demolition materials in full accordance with the Contract and Contract Documents and with the applicable rules and regulations of all federal, state and local agencies. The Contractor will furnish all labor, materials, supplies, equipment and other similar items necessary or proper for, or incidental to, the work contemplated by this Contract, as required by, and in strict accordance with the Contract Documents, and in strict accordance with such changes as are ordered and approved pursuant to this Contract. ARTICLE 3. TIME OF COMPLETION The services to be rendered under this Contract shall be completed no later than thirty (30) days from the date that this Contract is signed by all parties. Time of performance is of the essence of this Agreement. ARTICLE 4. ACCEPTANCE AND FINAL PAYMENT Upon receipt of written notice that the Contract has been fully performed and an inspection by the Town Engineer to certify that the work has been completed to the satisfaction of the Town, the Contractor shall file with the Town Comptroller an itemized voucher and the Town will pay the Contractor $49,899.00. Payment will be made on the basis of the actual work completed in accordance with the Contract and the Contract Documents. Contractor will be paid the total Contract amount after the project is completed and there will be no partial payment. -1- The acceptance by the Contractor of the final payment shall be, and shall operate as a release to the Town from all claims and all liabilities to the Contractor for all the things done or furnished in connection with this work and for every act and neglect of the Town and others relating to or arising out of, this Contract and the Contract Documents, except Contractor's claims for interest upon the final payment, if this payment be improperly delayed. No payment, however final or otherwise, shall operate to release the Contractor from any obligations under this Contract and the Contract Documents. ARTICLE 5. CHANGES TO THE CONTRACT AND EXTRA WORK (a) The Town may at times, without invalidating the Contract, order extra work or make changes by altering, adding to, or deducting from the work contemplated herein and may adjust the Contract price accordingly, pursuant to Paragraph (b) below. The Contractor shall not deviate from, add to, delete from, or make changes in the Work required to be performed hereunder unless so directed by a written Change Order. If the Contractor is directed by the Town to perform extra work prior to an agreement on costs or time, the Contractor shall promptly comply with the Change Order of the Town. No claim for extra work or any change in the work shall be allowed or made unless such extra work or change is ordered by a written Change Order from the Town. (b) The amount of compensation to be paid to the Contractor for any extra work, as so ordered, shall be determined as follows: 1. By a lump sum mutually agreed upon by the Town and the Contractor; or Using the applicable price or prices within the Contract and/or Bid and approved by the Town and the Contractor. (c) Regardless of the method used by the Town in determining the value of a Change Order, the Contractor shall submit to the Town a detailed payment breakdown of the Contractor's estimate of the value of the omitted or extra work. (d) Unless otherwise specifically provided for in a Change Order, the agreed compensation specified therein for extra work includes full payment for extra work covered thereby, and the Contractor waives all rights to any other compensation for such extra work, damage or expense, including claims for delay, damage or expense. (e) The Contractor shall and hereby agrees to produce any and all data the Town may request, including but not limited to, time sheets, certified payrolls, foreman's reports, daily reports, bills and vouchers of Subcontractors, receiving documents, freight and trucking receipts, etc. (f) All change orders shall be processed, executed and approved in the following manner: (i) if the estimated cost of the extra work is less than $1,000 in the aggregate, a Change Order Form (attached as Appendix A) must be processed and executed by the Supervising Department Head; -2- if the estimated cost of the extra work is less than $1,000 in the aggregate, a Change Order Form (attached as Appendix A) must be processed and executed by the Supervising Department Head; (ii) if the estimated cost of the extra work is greater than $1,000, then the Change Order Form (Appendix A) must be executed by the Supervising Department Head and submitted to the Town Board for consideration and approval by resolution. The Contractor must submit a detailed explanation of why the Change Order is needed and must also be submitted to the Town Board prior to its approval. The Change Order must also be approved by the Town Comptroller and the Town Attorney. Once this procedure is completed, the Contractor may proceed with the extra work. The Town will not accept any alteration to this form and no payment for Extra Work shall be due the Contractor unless it executes a Change Order on this Form. (g) If the Contractor claims that any work which the Contractor has been ordered to perform will be extra work, that the Contractor for any reason cannot comply with the terms and provisions of the Contract, or that any action or omission of the Town is contrary to the terms and provisions of the Contract and will require the Contractor to perform extra work, the contractor shall: Promptly comply with the Town's direction to perform the work which the contractor claims will be extra work; and Proceed diligently, pending and subsequent to the determination of the Town with respect to any said disputed matter, with the performance of the work in accordance with all the instructions of the Town. (h) No claim for extra work shall be allowed unless it was performed pursuant to change order duly approved by the Town Board. The Contractor's failure to comply with any part of this provision shall be deemed to be: A conclusive and binding determination on the part of the Contractor that said change order, work, action or omission does not involve extra work and is not contrary to the terms and provisions of the Contract, and A waiver by the Contractor of all claims for additional compensation, time or damages as a result of said change work, act or omission. (i) The value of claims for extra work, if allowed shall be determined methods described in the Contract including, but not limited to, section (b) immediately above. ARTICLE 6: CONTRACTOR'S OBLIGATIONS (a) The Contractor shall be responsible for the full and correct performance of the Work required by this Contract within the time specified herein, including work of the -3- Contractor's Subcontractors, and any errors therein shall be corrected at the Contractor's own cost and expense. In addition, the Contractor shall indemnify the Town for any costs or expenses attributable to errors in performance by the Contractor or the Contractor's Subcontractors. The Contractor's obligation hereunder shall include taking field measurements for all Work hereunder. Approval of shop drawings by the Town shall not relieve the Contractor from correcting Work either reflected in error on the Contractor's shop drawings, not confirming to the field requirements, or not complying with the terms of this Contract. Is shall not be incumbent upon the Town to discover any mistakes, errors, omissions, or deviations from the Contract requirements, or in the quality or kind of materials used by the Contractor or in the shop drawings, schedules and reports submitted by the Contractor and the Town's approval of same shall not relieve the Contractor from responsibility for unauthorized changes, deviations, omissions or for errors of any sort therein. Performance by the Contractor of any Work before the required approvals therefore have been issued shall be at the Contractor's sole risk and expense. (b) In case of discrepancy or difference between any figures, drawings, or specifications; the matter shall be immediately submitted in writing to the Town, whose decision shall be final, and without whose decision said discrepancy or difference shall not be adjusted by the Contractor, save only at the Contractor's own risk and expense. (c) Unless otherwise specifically provided in the Contract, the Contractor, without limitation, shall furnish and be responsible for all shop and field requirements, lines, grades, dimensions, layouts, colors, qualities, quantities, tests, approvals, operating manuals, guarantees, cuttings, removals, openings, channels, chases, flues, sleeves, insets, dowels, hangers, patching, clearing, temporary heat, water and electricity, guards, rails, night lights, barricades, pumping hoists, elevators, scaffolds, runways, protective paper, tarpaulins, polyethylene protections, and clean-up, and all things which may be necessary in performance of the Work contracted hereunder. (d) If the Town shall furnish any basic reference lines and bench marks to the Contractor, such basic reference lines and bench marks must be used by the Contractor and the finished Work shall agree therewith. (e) The Contractor agrees that the Contractor shall protect and shall be solely responsible for all labor and material provided for under this contract, whether or not the same may be erected in place, and for all its plans, tools, equipment, materials, tools of the Contractor's employees and agents, etc. for all adjoining private and public property, and all existing Work on the Project Site, which may be damaged by the Contractor's Work. In no event shall the Town be liable to the Contractor for loss of, pilferage, or damage to any of the same. In the event of said labor and materials, plant, tools or equipment, etc., are damaged, lost or destroyed by mason of fire, theft (irrespective of the negligence of the parties hereto or others), civil commotion, riot, insurrection, violence, war, acts of God, etc., the Contractor's responsibility therefore shall be absolute, and the Contractor shall replace, repair, rebuild, and make good any and all said damage or loss of any and all kinds whatsoever. -4- (f) Contractor shall be responsible for securing all permits required to perform the Work and/or required by the applicable laws, regulations, ordinances, etc., and maintain the validity of all such permits throughout the contract duration. ARTICLE 7. CONTRACTOR'S INSURANCE The Contractor shall not commence work under this Contract until it has obtained all insurance required under this paragraph and such insurance has been approved by the Town. (a) Workers' Compensation Insurance: The Contractor shall take out and maintain during the life of this Contract Workers' Compensation Insurance for its employees to be assigned to the work hereunder. (b) Insurance: The Contractor shall take out and maintain during the life of this Contract such general liability, property damage, and commercial auto liability insurance as shall protect it from claims for damages for personal injury, including accidental death, as well as from claims for property damage which may arise from operations under this Contract. The amounts of such insurance shall be as follows: (i) General liability insurance in an amount not less than $1,000,000 for injuries, including wrongful death to any one person and subject to the same limit for each person, in an amount not less than $2,000,000 on account of any one occurrence. (ii) Property damage insurance in an amount not less than $300,000 for damage on account of all occurrences. (iii) Commercial auto liability insurance in an amount not less than $500,000 for damage on account of all occurrences. (iv) The Contractor shall furnish the above insurances to the Town and shall also name the Town as an additional named insured in said policies. (c) Any accident shall be reported to the office of the Town Clerk as soon as possible and not later than twenty-four (24) hours from the time of such accident. A detailed written report must be submitted to the Town as soon thereafter as possible and not later than three (3) days after the date of such accident. ARTICLE 8. REPRESENTATIONS OF CONTRACTOR The Contractor represents and warrants: (a) That it is financially solvent and that it is experienced in and competent to perform the type of work or to furnish mechanical maintenance dredging to be furnished by it; and (b) That it is familiar with all federal, state, municipal and department laws, ordinances and regulations which may in any way affect the work or those employed therein. -5- ARTICLE 9. PERMITS AND REGULATIONS The Contractor shall comply with all permits issued to the Town in connection with the services furnished under this Agreement. ARTICLE 10. NO DAMAGES FOR DELAY The contractor agrees to make no claim for increased costs, charges, expenses or damages for delay in the performance of this Contract, or for any delays or hindrances from any cause whatsoever, and agrees that any such claim shall be fully compensated for by an extension in the time for substantial and/or final completion of the work. Should the Contractor be or anticipate being delayed or disputed in performing the work hereunder for any reason, it shall promptly, and in no even more than two (2) business days after the commencement of any condition which is causing or threatening to cause such a delay or disruption, notify the Town in writing of the effect of such condition stating why and in what respects the condition is causing or threatening to cause such delay or disruption. Failure strictly to comply with this notice requirement shall be sufficient cause to deny Contractor a change in Schedule and to require it to conform to the Schedule then in effect. ARTICLE 11. TOWN'S RIGHT TO STOP WORK OR TERMINATE CONTRACT The Town shall have the right to stop work or terminate the Contract if: (a) The Contractor is adjudged bankrupt or makes an assignment for the benefit of creditors; or (b) A receiver or liquidator is appointed for the Contractor or for any of its property and is not dismissed within 20 days after such appointment or the proceedings in connection therewith are not stayed on appeal within the said 20 days; or (c) The Contractor refuses or fails to prosecute the work or any part thereof with due diligence; or (d) The Contractor fails to make prompt payment to persons supplying labor for the work; or (e) The Contractor fails or refuses to comply with all applicable laws or ordinances; or (f) The Contractor is guilty of a substantial violation of any provision of this Contract; (g) The Town's execution and participation in this contract is found to be in violation of an existing collective bargaining agreement. (h) In any event, the Town, without prejudice to any other rights or remedy it may have, may, with our without cause, by seven (7) days' notice to the Contractor, terminate the employment of the Contractor and its right to proceed as to the work. In such case, the Contractor shall not be entitled to receive any further payment beyond what owed in quantum meruit. -6- ARTICLE 12. DAMAGES It is hereby mutually covenanted and agreed that the relation of the Contractor to the work to be performed by it under this Contract shall be that of an independent contractor. As an independent contractor, it will be responsible for all damage, loss or injury to persons or property that may arise in or be incurred during the conduct and progress of said work, whether or not the Contractor, its agents, or employees have been negligent. The Contractor shall hold and keep the Town free and discharged of and from any and all responsibility and liability of any sort or kind. The Contractor shall assume all responsibility for risks or casualties of every description, for loss or injury to persons or property arising out of the nature of the work, from the action of the elements, or from any unforeseen or unusual difficulty. The Contractor shall make good any damages that may occur in consequence of the work or any part of it. The Contractor shall assume all blame, loss and responsibility of any nature by reason of neglect or violation of any federal, state, county or local laws, regulations or ordinances. ARTICLE 13. INDEMNITY AND SAVE HARMLESS AGREEMENT The Contractor agrees to indemnify and save the Town, its officers, agents and employees harmless from any liability imposed upon the Town, its officers, agents and/or employees arising from the negligence, active or passive, of the Contractor and from and against any damages, claims, or expenses, including reasonable attorney's fees, arising out of Contractor's breach of the Agreement or from Contractor's acts or omissions outside the scope of the Agreement or arising out of claims or actions by third parties against Contractor by virtue of his performance of this Agreement. ARTICLE 14. NO ASSIGNMENT In accordance with the provisions of section 109 of the General Municipal Law, the Contractor is hereby prohibited from assigning, transferring, conveying, subletting or otherwise disposing of this Agreement, or of its right, title or interest in this Agreement, or its power to execute this Agreement, to any other person or corporation without the previous consent in writing of the Town. ARTICLE 15. REQUIRED PROVISIONS OF LAW Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to have been inserted herein. If any such provision is not inserted, through mistake or otherwise, then upon the application of either party, this Contract shall be physically amended forthwith to make such insertion. In particular, the Contractor shall, among other things, fully comply with: (a) Labor Law section 220-e and Executive Law sections 291-299 and the Civil Rights Law relating to prohibition against discrimination and providing equal opportunity. (b) Affirmative action as required by the Labor Law. (c) Prevention of dust hazard required by Labor Law section 222-a. -7- (d) Preference in employment of persons required by Labor Law section 222. (e) Eight-hour workday as required by Labor Law section 220(2). ARTICLE 16. PREVAILING WAGE RATES REQUIRED BY LAW (a) The parties hereto? in accordance with the provisions of section 220(3) of the Labor Law, hereby agree that there shall be paid each employee engaged in work under this Contract not less than the wage rate and supplements set opposite the trade or occupation in which he/she is engaged, as listed on Exhibit A attached hereto and made a part of this Agreement, which are the wage rates and supplements established as the prevailing rate of wages for the work covered by this Contract. (b) Labor classifications not appearing on the schedule of wages can be used only with the consent of the Owner and then the rate to be paid will be given by the Owner after being advised by the Department of Labor. (c) The Contractor shall post in a prominent and accessible place on the site of the work a legible statement of all wage rates and supplements, as specified in the Contract, for the various classes of mechanics, workingmen/women, or laborers employed on the work. ARTICLE 17. ARBITRATION Should any dispute arise between the Town and the Contractor regarding the manner or sufficiency of the performance of the work, the disputed matter shall be settled by arbitration in accordance with the laws of the State of New York. There shall be three arbitrators, one of whom shall be selected by each of the parties hereto, and the third by the two arbitrators so selected. If the selection of any arbitrator is not made within fifteen (15) days of the time that either party has notified the other of the name of the arbitrator it has selected, then the arbitrator or arbitrators not selected shall be appointed in the manner provided by the laws of the State of New York. The work shall not be interrupted or delayed pending such decision. ARTICLE 18. AUTHORITY FOR EXECUTION ON BEHALF OF THE TOWN The Supervisor has executed this Agreement pursuant to a Resolution adopted by the Town Board of the Town of Southold, at a meeting thereof held on October 12, 2012. Scott A. Russell, Supervisor, whose signature appears hereafter, is duly authorized and empowered to execute this instrument and enter into such an Agreement on behalf of the Town. This instrument shall be executed in duplicate. At least one copy shall be permanently filed, after execution thereof, in the office of the Town Clerk, Elizabeth Neville. -8- ARTICLE 19. NOTICES Any and all notices and payments required hereunder shall be addressed as follows, or to such other address as may hereafter be designated in writing by either party hereto: To Town: Elizabeth A. Neville, RMC, CMC Southold Town Clerk PO Box 1179 Southold, NY 11971-0959 To Contractor: Donald Gatz Gatz Landscaping Inc. PO Box 104 Mattituck, NY 11952 ARTICLE 20. WAIVER No waiver of any breach of any condition of the Agreement shall be binding unless in writing and signed by the party waiving said breach. No such waiver shall in any way affect any other term or condition of this Agreement or constitute a cause or excuse for a repetition of such or any other breach unless the waiver shall include the same. ARTICLE 21. MODIFICATION This Agreement constitutes the complete understanding of the parties. No modification of any provisions thereof shall be valid unless in writing and signed by both parties. ARTICLE 22. APPLICABLE LAW This Agreement is governed by the laws of the State of New York. IN WITNESS WHEREOF, the Town of Southold has caused its corporate seal to be affixed hereto and these presents to be signed by Scott A. Russell, its Supervisor, duly authorized to do so, and to be attested to by Elizabeth A. Neville, Town Clerk, and the Contractor has caused its corporate seal to be affixed hereto and these presents to be signed by its President, the day and year first above written. Town of Southold (Seal of the Town of Southold) Attest: By: Elizal~/(. Nev~'lle~ Town Clerk By: Scott .~Ru~ssel~:fl, Supervisor -9- STATE OF NEW YORK ) ) SS.: COUNTY OF SUFFOLK ) On this ~ day of ~¢(B-& \ ,2012, before me, the subscriber, personally appeared Scott A. Russell who, being by me duly sworn, deposes and says: That he is the Supervisor of the Town of Southold (the "Town"), the municipal subdivision of the State of New York named in and which executed the above and within Instrument; that he knows the seal of said Town and that the seal affixed to said Instrument is the seal of the Town; that it was so affixed by the order of the Town Board of the Town, and that he signed his name thereto by like order; And on the same day before me personally came and appeared Elizabeth A. Neville, Clerk of the Town of Southold, who, being by me duly sworn, deposes and says: that she is the Clerk of the Town; that she knows the seal of said Town; that it was affixed to said Instrument is the seal of the Town; that said Scott A. Russell is the Supervisor of the Town and that the signature on said instrument is the signature of said Scott A. Russell, as Supervisor. Notary Public STATE OF NEW YORK ) LAUREN M. STAND!SH Notar~ ~ub!~n, Smtc~ of New York ) ss.: ~,. 0 3T6164008 COUNTY OF SUFFOLK) 0ua!,~d in S~fMk C~untv ~ C0mm~ssion ~pires Ap*~t 9, 20~ On ~e ~ day of~in the year 2012 before me, the undersigned, a no~ public in ~d for said state, personally appe~ed ~[0 (~T , personally ~om to me or proved to me on the basis of satisf~tou evidence to be the individual whose nme is subscribed to the wi~in inst~ent ~d ac~owledged to me ~at he/she executed the sine in hisser capacity ~d that by hisser signat~e on the ins~ment, the individual or the person upon whose beh~f of w~ch the individual acted, executed the instrument. Notary Public LAUREN M. STANDISH Notary P~h' c, S?~I~ of New York -10-