HomeMy Public PortalAboutStone Canyon Cabins 1-12-15 STATE OF GEORGIA )
COUNTY OF CHATHAM )
AGREEMENT FOR SERVICES
THIS AGREEMENT FOR services relating to the Two Cabins to be delivered to River's End
Campground & RV Park in the City of Tybee Island, Georgia, also identified as "two cabins,"
hereinafter referred to as `Agreement", is made and entered into as of the Ia4k day of
fy , 2015 (the"Date Hereof"), by and between Stone Canyon Cabins, LLC, whose
agent and address for purposes of this agreement is Tim Canida, 11061 State Hwy 129,
Brilliant, AL 35548, hereinafter referred to as"the Company,"and THE CITY OF TYBEE ISLAND,
a municipality, whose address for the purposes of this Agreement is 403 Butler Avenue, P. 0.
Box 2749,Tybee Island, Georgia 31328, herein referred to as"the City."
WITNESSETH THAT:
WHEREAS, the City is a municipal corporation organized under Georgia law; and
WHEREAS, the City desires to purchase and deliver two cabins at the River's End Campground;
and
WHEREAS, the Company, is engaged in the building of campground cabins; and
WHEREAS, the City has solicited bids related to the purchase and installation of two cabins at
River's End Campground; and
WHEREAS, the Company has submitted the attached proposal; and
WHEREAS, the Company and City desire to document the terms and conditions of their
Agreement.
NOW, THEREFORE, for and consideration of the mutual covenants contained herein, the receipt
and sufficiency of which is hereby acknowledged, it is agreed as follows:
ARTICLE 1
BASIC AGREEMENT
1.1 The Company will perform the Scope of Work ("the Work") described in RFP No. 2014-
654 City of Tybee Island, Georgia ("RFP"), attached hereto as Exhibit "A" and incorporated by
reference as if fully set forth herein, and supply all materials in connection therewith for a total
sum of sixty-two thousand, two hundred and fifty and NO/100 Dollars$62,250.00 ("the price")
and will perform all preparatory and clean-up work associated therewith. Where the RFP and
quote conflict from this Agreement, this Agreement shall control.
1.2 The Company and all of its subcontractors will comply with the necessary requirements
of all State and Federal law pertaining to the residency of its workers and will further comply
with all reporting requirements required of City contractors pursuant to the grant under which
proceeds are being made available to the City and expressly recognizes that any breach on its
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part of the reporting and other requirements under such grant will result in potential liabilities
to the City and the Company will indemnify and hold harmless the City for any such damages in
addition to all other indemnity obligations contained herein or the terms and conditions
attached hereto.
ARTICLE 2
MATERIAL AND WORKMANSHIP
2.1 All material and articles furnished under this agreement shall be new and of the most suitable
grade for the purpose intended, unless otherwise specifically provided in this Agreement. The
Company may, at its option, use any material, article, or process that, in the judgment of, and as
approved by the City, is equal to that named in the specifications, unless otherwise specifically
provided in this agreement.
2.2 (a) When required by the specifications or the Contract Administrator, the Company shall
submit appropriately marked samples (and certificates related to them) for approval at the
(b) Company's expense, with all shipping charges prepaid. The Company shall label, or
otherwise properly mark on the container, the material or product represented, its place of origin,
the name of the producer, the Company's name, and the identification of the construction project
for which the material or product is intended to be used.
(1) Certificates shall be submitted in triplicate, describing each sample submitted for
approval and certifying that the material, equipment or accessory complies with agreement
requirements. The certificates shall include the name and brand of the product, name of
manufacturer, and the location where produced.
(2) Approval of a sample shall not constitute a waiver of the City's right to demand
full compliance with agreement requirements. Materials, equipment and accessories may be rejected
for cause even though samples have been approved.
ARTICLE 3
WARRANTIES
3.1 In addition to any other warranties in this agreement, the Company warrants,
except as provided in paragraph 3.9 of this agreement, that work performed under this
agreement conforms to the agreement requirements and is free of any defect in equipment,
material, or workmanship performed by the Company or any subcontractor or supplier at
any tier. This warranty shall continue for a period of two years from the date of final
acceptance of the Work. If the City takes possession of any part of the Work before final
acceptance, this warranty shall continue for a period of two years from the date that the
City takes possession.
3.2 The Company shall remedy, at the Company's expense, any failure to conform,
or any defect. In addition, the Company shall remedy, at the Companys expense, any damage
to City-owned or controlled real or personal property when the damage is the result of—
(1) The Company's failure to conform to agreement requirements; or
(2) Any defects of equipment, material, workmanship or design furnished by the
Company.
3.3 The Company shall restore any work damaged in fulfilling the terms and
conditions of this clause. The Company's warranty with respect to work repaired or
replaced will run for (one year unless otherwise indicated) from the date of repair or
replacement.
3.4 The Contract Administrator shall notify the Company, in writing, within a reasonable
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time after the discovery of any failure, defect or damage. If the Company fails to remedy
any failure, defect, or damage within a reasonable time after receipt of notice, the City
shall have the right to replace, repair or otherwise remedy the failure, defect, or damage
at the Company's expense.
3.5 With respect to all warranties, express or implied, from subcontractors,
manufacturers, or suppliers for work performed and materials furnished under this
agreement, the Company shall:
(1) Obtain all warranties that would be given in normal commercial practice;
(2) Require all warranties to be executed in writing, for the benefit of the City; and,
(3) Enforce all warranties for the benefit of the City.
3.6 In the event the Company's warranty under paragraph 3.1 has expired, the City
may bring suit at its own expense to enforce a subcontractor's warranty,
3.7 Company shall not be liable for the repair of any defect of material or design furnished by
the City or for the repair of any damage(s)that result(s)from any defect in City-furnished material or
design.
3.8 Notwithstanding any provisions herein to the contrary, the establishment of the time periods
in paragraphs 3.1 and 3.3 above relate only to the specific obligation of the Company to correct the
Work, and have no relationship to the time within which its obligation to comply with the
agreement may be sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Company's liability with respect to its obligation other than specifically
to correct the Work.
3.9 This warranty shall not limit the City's rights with respect to latent defects, gross mistakes or
fraud.
3.10 The Company warrants good title to all materials, supplies and equipment incorporated
in the Work and agrees to deliver the premises together with all improvements thereon free
from any claims, liens or charges, and agrees further that neither it nor any other person, firm
or corporation shall have any right to a lien upon the premises or anything appurtenant thereto.
ARTICLE 4
COVENANTS AND REPRESENTATIONS
4.1 The Company shall perform services in accordance with the Company's Proposal and
Terms and Conditions contained in the agreement and contained herein.
4.2 To induce the City to enter into this Agreement, the City shall be entitled to rely upon
the representations and certifications made by the Company in the Company's Proposal, without
independent investigation and verification, and each such representation or certification shall be
deemed to be material to this Agreement. The person negotiating and executing this Agreement
on behalf of the Company has the full right, power, and authority to enter into, execute and
perform this Agreement in accordance with the terms hereof, and when executed and
delivered, this Agreement will constitute a valid and binding obligation of the Company and will
be enforceable in accordance with the terms thereof.
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ARTICLE 5
PAYMENT AND FEES
5.1 The City shall pay the Company the price as provided in this agreement.
5.2 Upon execution of this Agreement, the City shall pay to the Company fifty (50%)
percent of the price of the cabins.
5.3 Upon delivery of the cabins at River's End Campground & RV Park, and upon
certification of completion of the cabin units by the Company, and upon inspection and approval
by the City, if the City so selects to inspect, thereafter and within thirty (30) days of submittal
of an invoice showing the balance due, the Company shall be entitled to the balance due the
Company under this Agreement.
ARTICLE 6
CONTINGENCIES
6.1 The obligations of the City are subject to the following conditions:
(1) The ability of the City to carry out the terms of this Agreement in accordance with
the laws and Constitution of the State of Georgia.
(2) The timely performance by the Company of each and every covenant, agreement,
and obligation imposed upon the Company in this Agreement.
(3) The truth and accuracy as of the Date Hereof of each and every representation
made by the Company.
(4) This Agreement is expressly made subject to other laws affecting its subject matter.
In the event of any conflict between such laws and this Agreement, such laws shall take
precedence.
6.2 The obligations of the Company are subject to the following conditions:
(1)The timely performance by the City of each and every covenant, agreement, and
obligation imposed upon the City in this Agreement.
ARTICLE 7
NOTICES
7.1 All notices, demands or requests required or permitted to be given pursuant to this
Agreement shall be in writing and given or served either in person or by United States Mail,
postpaid, registered or certified with Return Receipt Requested, showing the name of the
recipient and the date of delivery. Notices shall be addressed to the party or parties identified
and at the address as set forth in the introductory paragraph of this Agreement, and the date
upon which such notice is delivered shall be deemed the effective date thereof. Either party
may, from time to time, by five (5) days' prior written notice to the other party, specify a
different agent or address to which notices can be delivered. Rejection or other refusal to
accept a notice or inability to deliver a notice because of a changed agent or address of which
no notice was given shall constitute receipt of the notice on the date when personal service is
attempted or the date of the postmark, if mailed.
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ARTICLE 8
RIGHTS CUMULATIVE
8.1 All rights, powers, and privileges conferred hereunder shall be cumulative and not
restrictive of those given by law.
ARTICLE 9
NON-WAIVER
9.1 No failure of the City to exercise any right or power given to the City under this
agreement, or to insist upon strict compliance by the Company with the provisions of this
agreement, and no custom or practice of the City or the Company at variance with the terms
and conditions of this Agreement, shall constitute a waiver of the City's right to demand exact
and strict compliance with the terms and conditions of this Agreement.
ARTICLE 10
CONTINUITY
10.1 Each of the provisions of this agreement shall be binding upon and inure to the benefit
and detriment of the Company and the City and the heirs, devisees, legatees, legal
representatives, successors and assigns of the Company and the City.
ARTICLE 11
CONTRACT MODIFICATIONS
11.1 (a) Only the Contract Administrator has authority to modify any term or condition of
this contract. Any contract modification shall be authorized in writing.
(b) The Contract Administrator may modify the contract unilaterally (1) pursuant to a
specific authorization stated in a contract clause (e.g., Changes); or (2) for administrative
matters which do not change the rights or responsibilities of the parties (e.g., change in the
City's address). All other contract modifications shall be in the form of supplemental agreements
signed by the Company and the Contract Administrator.
(c) When a proposed modification requires the approval of the Tybee Island City
Council prior to its issuance (e.g., a change order that exceeds the Contract Administrator's
approved threshold), such modification shall not be effective until the required approval is given
by the Tybee Island City Council.
ARTICLE 12
CHANGE ORDERS
12.1 In the event the Company asserts that there has been a change in the work that entitles
it to further compensation, prior to performing any additional or different work, work that is not
covered by the original agreed terms, the Company must provide the City with a written
statement regarding any changes. The change order must state the difference between the
original scope of work and the changed scope of the work and must specify the adjustment in
price. Thereafter, the City may elect to accept or reject the change order.
ARTICLE 13
TIME OF THE ESSENCE
13.1 All time limits stated herein are of the essence of this Agreement.
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ARTICLE 14
CAPTIONS
14.1 The brief headings or titles preceding each provision hereof are for purposes of
identification and convenience only and should be completely disregarded in construing this
Agreement.
ARTICLE 15
THIRD PARTY BENEFICIARIES/O=LIGOKS
15.1 Although this agreement is a personal retention of the Company as an independent
Company, the Company and the City agree that there will be other third party obligors
subcontractors performing work on the project. The Company, however, agrees to be
responsible for ensuring that all agreement terms are complied with, regardless of the entity
performing the actual work.
ARTICLE 16
DRUG FREE WORK PLACE
16.1 It is the policy of the City of Tybee Island that its work place shall be a drug free
workplace in compliance with the Drug Free Work Place Act, 41 U.S.C.S. 701et.seq.
ARTICLE 17
APPLICABLE LAWS
17.1 The Company agrees that it and all of its subcontractors will comply with all applicable
legal requirements whether imposed by Local, State or Federal law and, further, will comply
with State"SAVE" and"E-Verify"requirements.
ARTICLE 18
JURISDICTION AND VENUE
18.1 The Company agrees that any civil action, arbitration or mediation of any dispute arising
under this Agreement shall take place only in Tybee Island or Savannah, Chatham County,
Georgia. City and Company further agree and stipulate to the jurisdiction and venue of the
United States District Court for the Southern District of Georgia, Savannah Division, the Superior
Court of Chatham County or the State Court of Chatham County over them and over any civil
action arising under this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Company and the City have caused these presents to be duly
signed, sealed and delivered on the day, month, and year first above written.
STON CANYON CABINS, LLC CITY OF TYBEE ISLAND
a Canida 7 n Buelterman, Mayor
Title: 6 ;r,ax`„ Date
VI-/ ) `� Date
Clertiof Council
//43 /� Date
APPROVED AS TO FORM:
Edward M. Hughes, ty Attorney
/ 7 l g i l a Date
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City of Tybee Island
City of Tybee Island
TERMS AND CONDITIONS
DEFINITIONS. As used herein, the following terms shall have the meanings set forth below, whether
or not capitalized.
(a) "Purchase Order"or`Order"means this purchase order.
(b) "Buyer"means The City of Tybee Island.
(c) "Seller"or"Vendor"means the party furnishing the supplies under this order.
(d) "Supplies" means what the Seller furnishes the Buyer under this order and includes with
limitation, the following; (1) the work; materials; articles; deliverable items, items, data and
services, whether tangible or intangible or any combination thereof; and (2) what is leased or
licensed, pursuant to the lease(s) or license(s) signed by both the Buyer and the lessor or
licensor if attached to and made a part of this order.
(e) "Loss" means any or all the following: claims, liabilities, damages, losses, costs, or expenses
(including reasonable attorneys'fees and expenses and other legal costs).
ACCEPTANCE. This order constitutes an offer which shall become a binding contract upon the terms
and conditions herein set forth upon acceptance by Seller either by acknowledgement of this order or
commencement of performance. Buyer objects to any difference, conflicting or additional terms
proposed by Seller in the acceptance of this order, and no such terms shall be effective unless expressly
accepted by Buyer in writing. Each shipment received by Buyer from Seller shall be deemed to be only
upon the terms and conditions contained in this order, except by such written instrument modifying the
order, signed by Buyer, notwithstanding any terms and conditions that may be contained in any
acknowledgment, invoice, or other form issued by Seller and notwithstanding Buyer's act of accepting or
paying for any shipment, or similar act by Buyer.
PRICES. Seller represents that the prices, terms, warranties, and benefits contained in this order are
comparable to or better than those offered to any other customer of Seller for items which are the same
or substantially similar in both the characteristics of the community and actual scope of work
implemented. Buyer shall receive the benefit prospectively or retrospectively if Seller offers any item or
service included in this order to any other customer at a lower price, more favorable terms, more
favorable warranties, or more favorable benefits up to one year after completion of this order.
DELIVERY. Any delivery schedule made a part of this order is an important, material condition; time is
of the essence of the order. Unless otherwise agreed to in writing. Seller shall not make material
commitments or production arrangements in excess of the amount or in advance of the time necessary to
meet Buyer's delivery schedule. It is Seller's responsibility to comply with this schedule, but not to
anticipate Buyer's requirements. In addition to any other rights or remedies, Buyer may cancel all or any
part of this order for Seller's failure to deliver in strict accordance with the delivery terms set forth herein.
Seller shall promptly notify Buyer of any anticipated delay in the delivery date and Buyer may require
Seller to ship by alternate means in order to expedite delivery. Any additional costs shall be paid by
Seller and Seller shall be liable for all resulting damages to Buyer occasioned by the delay. Delivery shall
not be deemed to be complete until the items have been received and accepted by Buyer. Advance and
excess shipments may at Buyer's option be rejected and returned to Seller at Seller's expense.
TRANSPORTATION. Except as otherwise provided on the face of this order, transportation charges on
Supplies shall be f.o.b. destination, at Seller's sole cost and expense. Risk of loss from any casualty to
supplies ordered hereunder, regardless of cause, shall be Seller's responsibility until goods have been
delivered to Buyer's designated delivery post. No insurance or premium transportation costs beyond the
price listed in this order will be allowed unless authorized by Buyer in writing. If Seller does not comply
with Buyer's delivery schedule, Buyer may, in addition to any other rights that Buyer may have under this
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order, require delivery by fastest way, and charges resulting from the premium transportation must be
fully prepaid and absorbed by Seller.
WARRANTY. Seller warrants that all supplies delivered pursuant to this order shall strictly conform to
the applicable specifications (including without limitation information or functional performance, material
content, size, appearance, response time, etc.), shall be free from all defects and workmanship in
materials including latent defects, shall be free from defects in design and suitable for their intended
purpose, and shall be free from all claims, encumbrances, and liens. This warranty shall survive
inspection, delivery and payments shall run to Buyer, its successors, assigns and the users of the items
and shall not be deemed to be exclusive. Seller agrees to indemnify, defend and hold Buyer, Buyer's
employees, and those for whom Buyer may act as agent, harmless from all damages, including
consequential and incidental damages, incurred or sustained by Buyer by reason of any breach of any
warranty with respect to the supplies purchased. Buyer shall be promptly reimbursed for all expenses
incurred in the handling, inspection and return of defective items, and Seller shall bear the risk of loss on
all such items. If any of the supplies are found at any time prior to acceptance to be defective in material
or workmanship, or otherwise not in conformity with the requirements of this order, Buyer (in addition to
any other rights which it may have under warranties or otherwise) may at its option (1) correct or have
corrected the nonconformity at Seller's expense, or (2) reject and return such supplies or other
deliverable items at Seller's expense, such supplies or other deliverable items not to be replaced without
suitable written authorization from Buyer.
CHANGES. Buyer may at any time request in writing changes to this order in the specifications, packing,
shipment, quantities, delivery schedules, and other matters. If any such change causes an increase or
decrease in the costs of or the time required for performance, Seller shall immediately notify Buyer. Any
request for an equitable adjustment must be made in writing with 30 days from the date of the written
request for the change. No additional charge or change in the specifications, packing, shipment,
quantities, delivery schedules, and other matters will be allowed unless authorized by Buyer in writing.
TAXES. The Buyer, a municipality in the State of Georgia, is exempt from Georgia Sales Tax under the
Sales and Use Tax ID # 302 526 178. All sales and use tax due on materials purchased by the city for
installation by the seller under this contract are the responsibility of the contractor.
ASSIGNMENT. Neither this order nor any interest herein may be assigned, in whole or in part, by Seller
without the prior written consent of Buyer. Notwithstanding the above, Seller may assign any monies
due or to become due to him hereunder, provided that such assignment shall not be binding upon Buyer
until receipt of a copy of the assignment agreement is acknowledged and approved by Buyer in writing.
SUBCONTRACTING. Seller shall not enter into a subcontract for any part of this order, including
completed or substantially completed items or major components thereof, without Buyer's written
consent. Nothing in this order shall be seen as prohibiting Seller's purchase of standard commercial
articles, raw materials, or other supplies specified in this order if these are typically purchased by Seller in
the normal course of business.
TERMINATION. Buyer may terminate or suspend performance under this order in whole or in part
from time to time by sending written notice to Seller. Upon receiving notice of such action by Buyer,
Seller shall immediately comply with its terms and take all reasonable steps to avoid incurring any
additional costs under this order. Buyer's sole liability to Seller shall be for items completed and delivered
to Buyer in accordance with this order and for Seller's reasonable costs to the date of termination, such
costs being solely attributable to this order and not being recoverable from other sources.
INDEMNIFICATION. Seller agrees to indemnify, defend and hold Buyer, Buyer's employees, and those
for whom Buyer may act as agent harmless from (1) any and all claims and liabilities for injuries or death
of persons or damages to or destruction of property; (2) any other Loss caused by or resulting from the
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acts or omissions of Seller, its agents, subcontractors, suppliers or employees in the performance of this
order; (3) any Loss caused by or resulting from the supplies purchased under this order, (4) any intended
use of products or materials provided by Seller; (5) any defective products or materials provided by
Seller, including without limitation the use or disposal of hazardous and/or toxic materials, such materials
to include at minimum all materials recognized by the Environmental Protection Agency as hazardous; or
(6) any breach by Seller of any express or implied warranties. If Seller's work hereunder involves
operations by Seller's agents, subcontractors, suppliers or employees on Buyer's premises or any place
where Buyer conducts operations, Seller shall take all necessary precautions to prevent the occurrence of
any injury or damage to persons or property during the progress of such work. Further, Seller shall
indemnify, defend and hold Buyer, Buyer's employees, and those for whom Buyer may act as agent
harmless for any injuries occurring to Seller's agents, subcontractors, suppliers or employees and Seller
shall maintain public liability, property damage and employee's liability and compensation insurance
sufficient to protect Buyer from any claims under any applicable law, statute, or regulation.
MODIFICATION; WAIVER. No waiver or modification of this order shall be effective unless in writing
and signed by both of the parties hereto. Failure of either party to enforce its rights under this order
shall not constitute a waiver of such rights or any other rights.
ENTIRE AGREEMENT. This order is intended by the parties as a final expression of their agreement
and also as a complete and exclusive statement of the terms thereof, any prior or contemporaneous oral
or written agreements as to the same subject matter notwithstanding.
INVALIDITY. In the event that any provision of this order is declared invalid, illegal, or otherwise
unenforceable by any tribunal or law, the remainder of the provisions shall not be affected thereby, and
each term and provision not declared invalid, illegal or unenforceable shall be valid and shall be enforced
to the fullest extent permitted by law.
DRUG FREE WORKPLACE. By accepting this order, the Seller certifies that he shall provide a drug free
workplace for his employees in accordance with the laws of the State of Georgia.
SPECIFICATIONS, PROPOSALS, BID DOCUMENTS. The documents which form the basis for this
order shall include the plans and specifications and bid documents as attached hereto, together with any
other documents so listed and enumerated, if any, and it is expressly understood that any special
conditions listed and attached hereto are specifically made a part of this contract.
APPLICABLE LAW. The provisions and performance of this purchase order shall be governed by the
laws of the State of Georgia and applicable federal law. Seller agrees to bring any and all actions relating
to this purchase order only in the state and federal courts located within Chatham County in the State of
Georgia.
APP`"-'OPRIATION. Notwithstanding, any other provision hereof, this agreement shall terminate at the
end of each calendar year without liability or obligation on the part of the city in any calendar year where
the City has not appropriated funds for the obligations hereunder for the next calendar year.
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