HomeMy WebLinkAboutContract #: 630 - From: 10-17-2012 To: 10-30-2015 - Desmond Landscaping - North Andover School Departmentr n��\
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NORTH ANDOVER SCHOOL DEPARTMENT
CONTRACT
DATE: October 17, 2012
This Contract is entered into on, or as of, this date by and between the North Andover School
Department (the "School"), and
Contractor: Desmond Landscape Contractors, Inc
Address: PO Box 756, North Andover, MA 01845 _
Telephone Number: 978-682-1106
Fax Number: 978-682-1106
This is a Contract for the procurement of the following: Athletic Fields maintenance
2. The Contract price to be paid to the Contractor by the North Andover School Department is:
Yr 1-$33,100.00, Yr2-$24,850, Yr 3- $25,550.00
3. Payment will be made as follows: upon successful completion of project each year and in
accordance with the standard payment practices of the town of North Andover.
4. Definitions:
4.1 Acceptance: All Contracts require proper acceptance of the described goods or
services by the North Andover School Department. Proper acceptance shall be
understood to include inspection of goods and certification of acceptable performance for
services by authorized representatives of the School to insure that the goods or services
are complete and are as specified in the Contract.
4.2 Contract Documents: All documents relative to the Contract including (where used)
Instructions to Bidders, Proposal Form, General Conditions, Supplementary General
Conditions, General Specifications, Other Specifications included in Project Manual,
(Rev 5-2007) Contract by and between North Andover School Department and Desmond Landscape Contractor Page 1
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IN W=SS WHEREOF the parties have hereto and to two other identical instruments set forth
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their hands the day and year first above written.
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THE SCHOOL THE CONTRACTOR
Di ' ion/Depariment Head
Contract Manager
l u q 117/
Sch of Su erintendent Date
APPROVED AS TO FORM:
Town C el Date
Desmond Landscape Contractors, Inc.
Company Name
a T 2
tore ` Date
Daniel J. Desmond , President
Print Name & Title
CERTIFICATION AS TO AVAILABILITY OF FUNDS:
1,
Town ountant TDate
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Drawings, and all Addenda issued during the bidding period. The Contract documents
are complementary, and what is called for by any one shall be as binding as if called for
by all. The intention of the document is to include all labor and materials, equipment and
transportation necessary for the proper performance of the Contract.
4.3 The Contractor: The "other party" to any Contract with the School. This term shall (as
the sense and particular Contract so require) include Vendor, Contractor, Engineer, or
other label used to identify the other parry in the particular Contract. Use of the term
"Contractor" shall be understood to refer to any other such label used.
4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the
services are performed, or the goods delivered, in accordance with Contract documents,
as modified by approved Amendments and Change Orders.
4.5 Goods: Goods, Supplies or Materials.
4.6 SubContractor: Those having a direct Contract with the Contractor. The term includes
one who furnished material worked to a special design according to the Drawings or
Specifications of this work, but does not include one who merely furnishes material not so
worked.
4.7 Work: The services or materials contracted for, or both.
5. Term of Contract and Time for Performance:
This Contract shall be fully performed by the Contractor in accordance with the provisions of the
Contract Documents on or before Oct 30, 2015, _, unless extended pursuant to a provision for
extension contained in the Contract documents at the sole discretion of the Town, and not subject to
assent by the Contractor, and subject to the availability and appropriation of funds as certified by the
Town Accountant. The time limits stated in the Contract documents are of the essence of the Contract.
6. Subject to Appropriation:
Notwithstanding anything in the Contract documents to the contrary, any and all payments which the
School is required to make under this Contract shall be subject to appropriation or other availability of
funds as certified by the Town Accountant. In the absence of appropriation, this Contract shall be
immediately terminated without liability for damages, penalties or other charges.
7. Permits and Approvals:
Permits, Licenses, Approvals and all other legal or administrative prerequisites to its performance
of the Contract shall be secured and paid for by the Contractor.
8. Termination and Default:
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8.1 Without Cause. The School may terminate this Contract on seven (7) calendar days notice
when in the best interests of the School by providing notice to the Contractor, which shall
be in writing and shall be deemed delivered and received when given in person to the
Contractor, or when received by fax, express mail, certified mail return receipt requested,
regular mail postage prepaid or delivered by any other appropriate method evidencing
actual receipt by the Contractor. Upon termination without cause, Contractor will be paid
for services rendered to the date of termination.
8.2 For Cause. If the Contractor is determined by the School to be in default of any term or
condition of this Contract, the School may terminate this Contract on seven (7) days notice
by providing notice to the Contractor, which shall be in writing and shall be deemed
delivered and received when given in person to the Contractor, or when received by fax,
express mail, certified mail return receipt requested, regular mail postage prepaid or
delivered by any other appropriate method evidencing actual receipt by the Contractor.
8.3 Default. The following shall constitute events of a default under the Contract:
1) any material misrepresentation made by the Contractor to the School; 2) any failure to
perform any of its obligations under this Contract including, but not limited to the
following: (i) failure to commence performance of this Contract at the time specified
in this Contract due to a reason or circumstance within the Contractor's reasonable
control, (ii) failure to perform this Contract with sufficient personnel and equipment or
with sufficient material to ensure the completion of this Contract within the specified
time due to a reason or circumstance within the Contractor's reasonable control, (iii)
failure to perform this Contract in a manner reasonably satisfactory to the School, (iv)
failure to promptly re -perform within a reasonable time the services that were rejected
by the School as unsatisfactory, or erroneous, (v) discontinuance of the services for
reasons not beyond the Contractor's reasonable control, (vi) failure to comply with a
material term of this Contract, including, but not limited to, the provision of insurance
and non-discrimination, (vii) any other acts specifically and expressly stated in this
Contract as constituting a basis for termination of this Contact, and (viii) failure to
comply with any and all requirements of state law and/or regulations, and Town bylaw
and/or regulations.
9. The Contractor's Breach and the School's Remedies:
Failure of the Contractor to comply with any of the terms or conditions of this Contract shall be
deemed a material breach of this Contract, and the North Andover School Department shall have
all the rights and remedies provided in the Contract documents, the right to cancel, terminate, or
suspend the Contract in whole or in part, the right to maintain any and all actions at law or in
equity or other proceedings with respect to a breach of this Contract, including damages and
specific performance, and the right to select among the remedies available to it by all of the
above.
From any sums due to the Contractor for services, the School may keep the whole or any part of
the amount for expenses, losses and damages incurred by the School as a consequence of
procuring services as a result of any failure, omission or mistake of the Contractor in providing
services as provided in this Contract.
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10. Statutory Compliance:
10.1 This Contract will be construed and governed by the provisions of applicable federal,
state and local laws and regulations; and wherever any provision of the Contract or
Contract documents shall conflict with any provision or requirement of federal, state or
local law or regulation, then the provisions of law and regulation shall control. Where
applicable to the Contract, the provisions of the General Laws are incorporated by
reference into this Contract, including, but not limited to, the following:
General Laws Chapter 30B — Procurement of Goods and Services.
General Laws Chapter 30, Sec. 39, et seq: - Public Works Contracts.
General Laws Chapter 149, Section 44A, et seq: Public Buildings Contracts.
10.2 Wherever applicable law mandates the inclusion of any term and provision into a
municipal contract, this Section shall be understood to import such term or provision
into this Contract. To whatever extent any provision of this Contract shall be
inconsistent with any law or regulation limiting the power or liability of cities and
towns, such law or regulation shall control.
10.3 The Contractor shall give all notices and comply with all laws and regulations bearing on
the performance of the Contract. If the Contractor performs the Contract in violation of
any applicable law or regulation, the Contractor shall bear all costs arising therefrom.
10.4 The Contractor shall keep itself fully informed of all existing and future State and
National Laws and Municipal By-laws and Regulations and of all orders and decrees of
any bodies or tribunals having jurisdiction in any manner affecting those engaged or
employed in the work, of the materials used in the work or in any way affecting the
conduct of the work. If any discrepancy or inconsistency is discovered in the Drawings,
Specifications or Contract for this work in violation of any such law, by-law, regulation,
order or decree, it shall forthwith report the same in writing to the School. It shall, at all
times, itself observe and comply with all such existing and future laws, by-laws,
regulations, orders and decrees; and shall protect and indemnify the North Andover
School Department, the Town of North Andover, and its duly appointed agents against
any claim or liability arising from or based on any violation whether by him or its agents,
employees or subcontractors of any such law, by-law, regulation or decree.
11. Conflict of Interest:
Both the School and the Contractor acknowledge the provisions of the State Conflict of Interest
Law (General Laws Chapter 268A), and this Contract expressly prohibits any activity which
shall constitute a violation of that law. The Contractor shall be deemed to have investigated the
application of M.G.L. c. 268A to the performance of this Contract; and by executing the
Contract documents the Contractor certifies to the School that neither it nor its agents,
employees, or subcontractors are thereby in violation of General Laws Chapter 268A.
12. Certification of Tax Compliance
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This Contract must include a certification of tax compliance by the Contractor, as required by
General Laws Chapter 62C, Section 49A (Requirement of Tax Compliance by All Contractors
Providing Goods, Services, or Real Estate Space to the Commonwealth or Subdivision).
13. Discrimination
The Contractor will carry out the obligations of this Contract in full compliance with all of the
requirements imposed by or pursuant to General Laws Chapter 151B (Law Against
Discrimination) and any executive orders, rules, regulations, and requirements of the
Commonwealth of Massachusetts as they may from time to time be amended.
14. Assignment:
Assignment of this Contract is prohibited, unless and only to the extent that assignment is
provided for expressly in the Contract documents.
15. Condition of Enforceability Against the School:
This Contract is only binding upon, and enforceable against, the School if: (1) the Contract is
signed by the School Superintendent or its designee; and (2) endorsed with approval by the
Town Accountant as to appropriation or availability of funds; and (3) endorsed with approval
by the Town Counsel as to form.
16. Corporate Contractor:
If the Contractor is a corporation, it shall endorse upon this Contract (or attach hereto) its
Clerk's Certificate certifying the corporate capacity and authority of the party signing this
Contract for the corporation. Such certificate shall be accompanied by a letter or other
instrument stating that such authority continues in full force and effect as of the date the
Contract is executed by the Contractor. This Contract shall not be enforceable against the.
North Andover School Department unless and until the Contractor complies with this section.
The Contractor, if a foreign corporation, shall comply with the provisions of the General Laws,
Chapter 181, Sections 3 and 5, and any Acts and Amendments thereof, and in addition thereto,
relating to the appointment of the Commissioner of Corporations as its attorney, shall file with
the Commissioner of Corporations a Power of Attorney and duly authenticated copies of its
Charter or Certificate of Incorporation; and said Contractor shall comply with all the laws of
the Commonwealth.
17. Liability of Public. Officials:
To the full extent permitted by law, no official, employee, agent or representative of the Town
of North Andover shall be individually or personally liable on any obligation of the Town
under this Contract.
18. Indemnification:
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The Contractor shall indemnify, defend and save harmless the School, the Town of North
Andover„ the Town's officers, agents and employees, from and against any and all damages,
liabilities, actions, suits, proceedings, claims, demands, losses, costs, expenses, recoveries and
judgments of every nature and description (including reasonable attorneys' fees) that may arise
in whole or in part out of or in connection with the work being performed or to be performed,
or out of any act or omission by the Contractor, its employees, agents, subcontractors, material
men, and anyone directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable, regardless of whether or not it is caused in part by any party indemnified
hereunder. The Contractor further agrees to reimburse the School for damage to its property
caused by the Contractor, its employees, agents, subcontractors or material men, and anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be
liable, including damages caused by his, its or their use of faulty, defective, or unsuitable
material or equipment, unless the damage is caused by the School's gross negligence or willful
misconduct. The existence of insurance shall in no way limit the scope of the Contractor's
indemnification under this contract.
19. Workers Compensation Insurance:
The Contractor shall provide by insurance for the payment of compensation and the furnishing
of other benefits under Chapter 152 of the General Laws of Massachusetts (The Worker's
Compensation Act) to all employees of the Contractor who are subject to the provisions of
Chapter 152 of the General Laws of Massachusetts.
Failure to provide and continue in force such insurance during the period of this Contract shall
be deemed a material breach of this Contract, shall operate as an immediate termination
thereof, and Contractor shall indemnify the School for all losses, claims, and actions resulting
from the failure to provide the insurance required by this Article.
The Contractor shall furnish to the School evidence of such insurance prior to the execution of
this Contract before the same shall be binding on the parties thereto, except if specifically
waived by the School.
20. Documents, Materials, Etc.
Any materials, reports, information, data, etc. given to or prepared or assembled by the
Contractor under this Contract are to be kept confidential and shall not be made available to
any individual or organization by the Contractor (except agents, servants, or employees of the
Contractor) without the prior written approval of the School, except as otherwise required by
law. The Contractor shall comply with the provisions Chapter 66A of the General Laws of
Massachusetts as it relates to public documents, and all other state and federal laws and
regulations relating to confidentiality, security, privacy and use of confidential data.
Any materials produced in whole or in part under this Contract shall not be subject to
copyright, except by the School, in the United States or any other country. The School shall
have unrestricted authority to, without payment of any royalty, commission, or additional fee of
any type or nature, publicly disclose, reproduce, distribute and otherwise use, and authorize
others to use, in whole or in part, any reports, data or other materials prepared under this
Contract.
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All data, reports, programs, software, equipment, furnishings, and any other documentation or
product paid for by the School shall vest in the School at the termination of this Contract. The
Contractor shall at all times, during or after termination of this Contract, obtain the prior
written approval of the School before making any statement bearing on the work performed or
data collected under this Contract to the press or issues any material for publication through
any medium.
21. Audit, Inspection and Recordkeeping
At any time during normal business hours, and as often as the School may deem it reasonably
necessary, there shall be available in the office of the Contractor for the purpose of audit,
examination, and/or to make excerpts or transcript all records, contracts, invoices, materials,
payrolls, records of personnel, conditions of employment and other data relating to all matters
covered by this Agreement.
22. Payment
The School agrees to make all reasonable efforts to pay to the Contractor the sum set forth in
the Contractor's bid or proposal within thirty (30) days of receipt of an invoice detailing the
work completed and acceptance from the School of the work completed.
23. Waiver and Amendment
Amendments, or waivers of any additional term, condition, covenant, duty or obligation
contained in this Contract may be made only by written amendment executed by all signatories
to the original Agreement, prior to the effective date of the amendment.
To the extent allowed by law, any conditions, duties, and obligations contained in this Contract
may be waived only by written Agreement by both parties.
Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver,
nor in any manner limit the legal or equitable remedies available to that party. No waiver by
either party of any default or breach shall constitute a waiver of any subsequent default or
breach of a similar or different matter.
24. Forum and Choice of Law
This Contract and any performance herein shall be governed by and be construed in accordance
with the laws of the Commonwealth. Any and all proceedings or actions relating to subject
matter herein shall be brought and maintained in the courts of the Commonwealth or the federal
district court sitting in the Commonwealth, which shall have exclusive jurisdiction thereof.
This paragraph shall not be construed to limit any other legal rights of the parties.
25. Notices
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Any notice permitted or required under the provisions of this Contract to be given or served by
either of the parties hereto upon the other party hereto shall be in writing and signed in the
name or on the behalf of the party giving or serving the same. Notice shall be deemed to have
been received at the time of actual service or three (3) business days after the date of a certified
or registered mailing properly addressed. Notice to the Contractor shall be deemed sufficient if
sent to the address set forth in the Contract and to the North Andover School by being sent to
the School Superintendent, 1600 Osgood, North Andover, Massachusetts 01845.
26. Binding on Successors:
This Contract shall be binding upon the Contractor, its assigns, transferees, and/or successors in
interest (and where not corporate, the heirs and estate of the Contractor).
27. Complete Contract:
This instrument, together with its endorsed supplements, and the other components of the
contract documents, constitutes the entire contract between the parties, with no agreements
other than those incorporated herein.
28. Supplemental Conditions:
The foregoing provisions apply to all contracts to which the North Andover School Department
shall be a party. One of the following "Supplements" must be "checked" as applicable to this
Contract, shall be attached hereto, and shall in any event apply as the nature of the Contract
requires. The Supplement contains additional terms governing the Contract:
[ ] GOODS
SUPPLEMENT "G" - Applicable to Contracts for the procurement of Q -ods
(governed by the provisions of General Laws Chapter
30B)
[ ] SERVICES
SUPPLEMENT "S" - Applicable to Contracts for the procurement of ices
(governed by the provisions of General Laws Chapter
30B)
[ X ] CONSTRUCTION
SUPPLEMENT "C" - Applicable to Contracts for Construction
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SUPPLEMENT "C"
[] CONSTRUCTION
SUPPLEMENT "C" - Applicable to Contracts for the construction of:
(1) Public Buildings and Public Works
(governed by the provisions of General Laws Chapter 30B);
(2) Public Buildings
(governed by the provisions of General Laws Chapter 149,§ 44A,
et seq.); and
(3) Public Works
(governed by the provisions of General Laws Chapter 30, §39M, et seq)
This form supplements the Town of North Andover "Contract and General Conditions" and applies
only to contracts for the construction, reconstruction, alteration, remodeling or repair of public works
or public buildings.
2. Wherever the law requires one contracting with a city or town to be bonded, such obligation shall be
understood to be a term and condition of this Contract. The Contractor agrees to secure such bond
(where required) in the form required by the Town and provide an original thereof to the Town prior
to the commencement of performance.
3. E uali :
3.1. In the case of a closed Specification written for a specific item or items to be furnished under
the Base Bid, such specifications shall, as applicable, be in compliance with the
Massachusetts General Laws, Chapter 30, Section 39M and Chapter 149, Sec. 44A et seq.
3.2. Where the name of an item, material or manufacturer is mentioned in the Specifications or
on the Drawings, except as above noted, the intent is to establish a standard and in no way
should be construed to exclude any item or manufacturer not mentioned by name, but whose
product meets the Specifications as to design, utility and quality. Final decision shall rest
with the Project Representative as to its acceptability.
4. Change orders to contracts governed by General Laws Chapter 30B may not increase the quantity of
goods or services provided by more than twenty-five (25%) per cent, in compliance with Sec. 13 of
Chapter 30B.
5. The Contractor will carry out the obligations of this contract in full compliance with all of the
requirements imposed by or pursuant to General Laws Chapter 151, Sec. 1, et seq. (Minimum Wage
Law) and any executive orders, rules, regulations, and requirements of the Commonwealth of
Massachusetts as they may from time to time be amended. The Contractor will at all times comply
with the wage rates as determined by the Commissioner of the Department of Labor and Industries,
under the provisions of General Laws Chapter 149, Sections 26 and 27D (Prevailing Wage), as shall
be in force and as amended.
6. The Contractor shall continuously maintain adequate protection of all work from damage and shall
protect the property of the Town and others, including adjacent property, from injury or loss arising
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in connection with the Contract. The Contractor shall make good any such damage, injury or loss,
except as may be directly due to errors in the Contract Documents or caused by agents or employees
of the Town, or due to causes beyond the Contractor's control and not the Contractor's fault or
negligence.
7. The Contractor shall take all necessary precautions for the safety of employees on the work, and shall
comply with all applicable provisions of Federal, State and local laws and codes to prevent accidents
or injury to persons on, about or adjacent to the premises where the work is being performed. The
Contractor will erect and properly maintain at all times, as required by the conditions and progress of
the work, all necessary safeguards for the protection of workers and the public, shall post danger
signs warning against the hazards created by such features of construction such as pits, protruding
nails, hosts, well holes, elevator hatchways, scaffolding, window openings, stairways and falling
materials; and shall designate a responsible member of its organization on the work, whose duty shall
be the prevention of accidents.
The Town shall at all times have access to the work wherever it is in preparation or progress and the
Contractor shall provide suitable accommodations for such access.
9. The Contractor shall appoint a competent superintendent and foreman and any necessary assistants,
all of whom shall be satisfactory to the Town. If the Town in its sole discretion determines that the
construction superintendent, foreman, or assistants are unacceptable to the Town, then upon seven
days notice from the Town, the Contractor shall replace such person or persons with people
acceptable to the Town.
10. The Contractor shall give efficient supervision to the work, using its best skill and attention. The
Contractor shall carefully study and compare the drawings, specifications and other instructions and
shall at once report to the Town any error, inconsistency or omission which shall be discovered.
Included in this responsibility shall be supervision of all work performed by subcontractors on the
work.
H. . If the Contractor should neglect to prosecute the work properly, or fail to perform the contract or any
of its provisions, the Town, upon three days written notice, may, without prejudice to any other
remedy it may have, make good such deficiencies and may deduct the cost thereof from the payment
then or thereafter due the Contractor.
12. Inspection by the Town's Project Representative
12.1. The Town shall have the right to designate a Project Representative who may make periodic
visits to the site to familiarize the Town generally with the progress and quality of the work,
and to determine in general if the work is proceeding in accordance with the Contract
Documents. The Project Representative will not be required to make exhaustive or
continuous on-site inspections to check the quality or quantity of the work, and will not be
responsible for the Contractor's failure to carry out the construction work in accordance with
the Contract Documents. During such visits and on the basis of these observations while at
the site, the Project Representative will keep the Town informed on the progress of the work,
will endeavor to guard the Town against defects and deficiencies in the work of contractors,
and may condemn structural work as failing to conform to the Contract Documents. The
Project Representative shall have authority to act on behalf of the Town only to the extent
expressly delegated by the Town, which shall be shown to the Contractor, and shall have
authority to stop the work whenever such stoppage may reasonably be necessary to insure
the proper execution of the Contract.
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12.2. In connection with the work, the Project Representative shall not be responsible for
construction methods, means, techniques, sequences or procedures employed by the
Contractor or the Contractor's safety programs, requirements, regulations, or precautions.
13. Decisions of the Project Representative
13.1. The Project Representative shall, within a reasonable time, make decisions on all claims of
the Town or the Contractor and on all other matters relating to the execution and progress of
the structural work or the interpretation of the Contract Documents.
13.2. The Project Representative's decision, in matters relating to the project, shall be final, if
within the terms of the Contract Documents.
13.3. If, however, the Project Representative fails to render a decision within ten days after the
parties have presented their evidence, either party may then avail itself of the remedies
provided in this contract or available to it by law. If the Project Representative renders a
decision after such remedies have commenced, such decision may be entered as evidence
but shall not disturb or interrupt such proceedings except where such decision is acceptable
to the parties concerned.
14.1 Use of Premises by the Contractor:
14.1. The Contractor shall confine its apparatus, the storage of materials and the operations of
its workmen to limits indicated by law, by-laws, permits or directions of the Town and
shall not unreasonably encumber the premises with its materials.
14.2. The Contractor shall not load or permit any part of the structure to be loaded with a
weight that will endanger its safety.
1.5. Maintenance of Premises:
The Contractor shall at all times keep the premises free from accumulation of waste materials or
rubbish caused by its employees or work, and at the completion of the work it shall remove all its
rubbish from and about the work site and all its tools, scaffolding and surplus materials and shall
leave its work "broom -clean", or its equivalent, unless more exactly specified. In case of dispute,
the Town may remove the rubbish and charge the cost to the several contractors, as the Town
shall determine to be just.
16. Right to Terminate
If the Contractor should (1) be adjudged a bankrupt, (2) make a general assignment for the benefit
of creditors, (3) have a receiver appointed on account of its insolvency, (4) persistently or
repeatedly refuse or fail to supply enough personnel and resources to perform the contract, (5) fail
to make prompt payment to subcontractors or to providers of materials or labor, (6) persistently
disregard laws and regulations or lawful directives of the Town, or (7) be guilty of a substantial
violation of any provision of the Contract, then the Town may, without prejudice to any other
right or remedy and after giving the Contractor (or any surety) seven days written notice,
terminate the contract and the employment of the Contractor and take possession of the premises
and of all materials, tools and appliances thereon and finish the work by whatever method it
deems appropriate.
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In such cases, the Contractor shall not be entitled to receive any further payment until the work is
finished. If the unpaid amount owed to the Contractor for work already completed shall exceed
the expense of finishing the work, including compensation for additional architectural,
managerial, legal and administrative services, such excess shall be paid to the Contractor. If such
expenses shall exceed such unpaid balances, the Contractor shall pay the difference to the Town.
The Contractor shall not be relieved of liability to the Town by virtue of any termination of this
contract, and any claim for damages against the Contractor relating to the Contractor's
performance under this contract shall survive any termination hereunder.
Notwithstanding any other provision of this Agreement, the Town reserves the right at any time
in its absolute discretion to suspend or terminate this Agreement in whole or in part for its
convenience upon seven days written notice to the Contractor. The Town shall incur no liability
by reason of such termination except for the obligation to pay compensation for all work
performed by the Contractor and accepted by the Town to the termination date.
17. Progress Payments:
17.1. The Contractor shall submit to the Town an itemized Application for Payment, supported
to the extent required by the Town by invoices or other vouchers, showing payments for
materials and labor, payments to Subcontractors and such other evidence of the
Contractor's right to payment.
17.2. The Contractor shall, before the first application, submit to the Town a schedule of values
of the various parts of the work, including quantities aggregating the total sum of the
Contract, divided so as to facilitate payments to Subcontractors, made out in such form as
the Town and the Contractor may agree upon, and, if required, supported by such
evidence as to its correctness. This schedule, when approved by the Town, shall be used
as a basis for payment, unless it is found to be in error. If applying for payments, the
Contractor shall submit a statement based upon this schedule.
18. Withholding of Payments
18.1. The Town may withhold or, on account of subsequently discovered evidence, nullify the
whole or part of any payment to such extent as may be necessary in its reasonable
opinion to protect the Town of North Andover from loss on account of -
18. 1. 1.
f:
18.1.1. Defective work not remedied.
18.1.2. Claims filed or reasonable evidence indicating probable filing of claims.
18.1.3. Failure of the Contractor to make payments properly to Subcontractors or
for material or labor.
18.1.4. A reasonable doubt that the Contract can be completed for the balance
then unpaid.
18.1.5. Damage to another contractor.
18.1.6. Delays resulting in liquidated damages.
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18.2. Withholding of payments shall be in strict compliance with statutory requirements.
19. Claims by Contractor and Liability of Town
All claims by the Contractor against the Town shall, unless otherwise provided by law, be
initiated by a written claim submitted to the Town no later than seven (7) calendar days after the
event or the first appearance of the circumstances causing the claim. The claim shall set forth in
detail all known facts and circumstances supporting the claim. The Contractor shall continue its
performance under this contract regardless of the submission or existence of any claims.
The limit of liability of the Town under this Agreement is limited to the compensation provided
herein for work actually performed, and shall in no event include liability for delays or for
incidental, special or consequential damages or lost profits or for damages or loss from causes
beyond the Town's reasonable control.
20. Liquidated Damages:
Because both parties recognize (1) that the time for completion of this Contract is of the essence,
(2) that the Town will suffer loss if the work is not completed within the contract time specified,
plus any extension thereof allowed in accordance with the provisions of this contract, and (3) the
delays, expense and difficulties involved in a legal proceeding to determine the actual loss
suffered by the Town if the work is not completed in time, it is agreed that the Contractor will pay
the Town as liquidated damages representing an estimate of delay damages, not as a penalty, the
sum of One Thousand Dollars ($1,000) per day for each calendar day of delay until the work is
completed, whether the work is completed by the Contractor or some other person. The Town's
right to impose liquidated damages shall in no way prohibit or restrict the Town's right to bring a
legal action for damages in lieu of or in addition to its option to impose liquidated damages. The
Town may deduct any liquidated damages from money due the Contractor, and if such payment is
insufficient to cover the liquidated damages, then the Contractor shall pay the amount due.
21. The Contractors' Mutual Responsibility:
Should the Contractor cause damage to any separate subcontractor on the work, the Contractor
agrees, upon due notice, to settle with such contractor by agreement, or by recourse to remedies
provided by law or by the provisions of the contract. If such separate contractor sues the Town
on account of any damage alleged to have been sustained, the Town shall notify the Contractor,
who shall defend such proceedings at the Town's expense and, if any judgment against the Town
arises therefrom, the Contractor shall pay or satisfy it and pay all costs incurred by the Town.
22. Separate Contracts:
22.1. The Town reserves the right to let other Contracts in connection with this work under
similar General Conditions. The Contractor shall afford other contractors reasonable
opportunity for the introduction and storage of their materials and the execution of their
work, and shall properly connect and coordinate its work with theirs.
22.2. If any part of the Contractor's work depends, for proper execution or results, upon the
work of any other contractor, the Contractor shall inspect and promptly report to the
Town any defects in such work that render it unsuitable for such proper execution and
results. Failure of the Contractor to so inspect and report shall constitute an acceptance
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept and Desmond Landscaping Page 5
of the other contractor's work as fit and proper for the reception of its work except as to
defects which may develop in the other contractor's work after the execution of its work.
22.3. To insure the proper execution of its subsequent work, the Contractor shall measure work
already in place and shall at once report to the Town any discrepancy between the
executed work and the Drawings.
23. Subcontracts:
23.1. All Subcontracts shall be awarded in conformity with the requirements of the General
Laws, Commonwealth of Massachusetts, Chapter 149, Sections 44A to 44L, inclusive.
23.2. The Contractor agrees that it is as fully responsible to the Town for the acts and
omissions of its Subcontractors and of persons either directly or indirectly employed by
them, as it is for the acts and omissions of persons directly employed by it.
23.3. Nothing contained in the Contract Documents shall create any contractual relationship
between any Subcontractor and the Town.
24. Contractor -Subcontractor Relations:
The Contractor agrees to bind every Subcontractor and every Subcontractor agrees to be bound
by the terms of the Agreement, the General Conditions of the Contract, the Supplementary
General Conditions, the Drawings and Specifications, as far as applicable to its work, including
the provisions of the General Laws, Commonwealth of Massachusetts, Chapter 149, Section 44A,
et seq.
25. Indemnification:
25.1. The Contractor shall indemnify, defend and save harmless the Town, its officers, agents
and employees from and against any and all damages, liabilities, actions, suits,
proceedings, claims, demands, losses, recoveries and judgments of every nature and
description (including reasonable attorneys' fees) brought or recovered against them that
may arise in whole or in part out of or in connection with the work being performed or to
be performed, or out of any act or omission by the Contractor, its employees, agents,
subcontractors, material men, and anyone directly or indirectly employed by any of them
or anyone for whose acts any of them may be liable, regardless of whether or not it is
caused in part by any party indemnified hereunder. The Contractor further agrees to
reimburse the Town for damage to its property caused by Contractor, its employees,
agents, subcontractors or material men, and anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable, including damages
caused by his, its or their use of faulty, defective or unsuitable material or equipment,
unless the damage is caused by the Town's gross negligence or willful misconduct. The
existence of insurance shall in no way limit the scope of the Contractor's indemnification
under this Contract.
25.2. In any and all claims against the Town or any of their agents or employees by any
employee of the Contractor, any Subcontractor, anyone directly or indirectly employed
by any of them or anyone for whose acts any of them may be liable, the indemnification
obligation under this paragraph shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for the Contractor or
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept and Desmond Landscaping Page 6
any Subcontractor under Workmen's Compensation Acts, disability benefit acts or other
employee benefit acts.
25.3. The intent of the Specifications regarding insurance is to specify minimum coverage and
minimum limits of liability acceptable under the Contract. However, it shall be the
Contractor's responsibility to purchase and maintain insurance of such character and in
such amounts as will adequately protect it and the Town from and against all claims,
damages, losses and expenses resulting from exposure to any casualty liability in the
performance of the Work.
26. The Contractor's Insurance:
26.1. The Contractor shall purchase and maintain such insurance as will protect the Contractor
from claims set forth below which may arise out of or result from the Contractor's
operations under the Contract, whether such operations be by itself or by any
Subcontractor or by anyone directly or indirectly employed by any of them or by anyone
for whose acts any of them may be liable.
26.1.1. Claims under Worker's Compensation, disability benefit and other similar
employee benefit acts;
26.1.2. Claims for damages because of bodily injury, occupational sickness or
disease, or death of its employees, and claims insured by usual personal
injury liability coverage;
26.1.3. Claims for damage because of bodily injury, sickness or disease, or death of
any person other than its employees, and claims insured by usual personal
liability coverage;
26.1.4. Claims for damages because of injury to or destruction of tangible property,
including loss of use resulting therefrom.
26.2. The insurance required by the above shall be written for not less than the following
minimum limits of liability:
26.2.1. Worker's Compensation Insurance Requirements
Workers' Compensation coverage as required by the laws of the Commonwealth of
Massachusetts.
26.2.2. Liability Insurance Requirements
Liability insurance shall include all major divisions and shall be on a comprehensive
general basis including Premises and Operations, Owners and Contractor's Protective, Products
and Completed Operations, and Owned, Non -owned and Hired Motor Vehicles. All such
insurance shall be written for not less than any limits of liability required by law, unless otherwise
provided in the contract documents, or the following limits, whichever are greater:
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept and Desmond Landscaping Page 7
Comprehensive General Liability Insurance (Broad Form)
Bodily Injury
Property Damage
Automobile Liability Insurance
Excess Liability (Umbrella)
$1,000,000 per person
$3,000,000 per occurrence
$1,000,000 per occurrence
$3,000,000 annual aggregate
$500,000 per person
$1,000,000 per occurrence
$10,000,000
Excess Liability (Umbrella) Insurance (Subcontractors) $1,000,000 or 1.5 times the value of
The subcontract, whichever is
Higher
26.3. The above insurance policies shall also be subject to the following requirements:
26.3.1. Insurance coverage for the Contractor's Comprehensive General Liability, as
hereinafter specified under Paragraph entitled "Protective Liability Insurance"
shall be written by one and the same insurance company to avoid the expense of
duplicate and/or overlapping coverage and to facilitate and expedite the
settlement of claims.
26.3.2. Certificates of Insurance acceptable to the Town shall be addressed to and filed
with the Town prior to commencement of the work. Renewal certificates shall be
addressed to and filed with the Town at least ten (10) days prior to the expiration
date of required policies.
26.3.3. No insurance coverage shall be subject to cancellation without at least thirty (30)
days prior written notice forwarded by registered or certified mail to the Town.
The Town shall also be notified of the attachment of any restrictive amendments
to the policies.
26.3.4. All Certificates of Insurance shall be on the "MIIA" or "ACORD" Certificate of
Insurance form, shall contain true transcripts from the policies, authenticated by
the proper officer of the Insurer, evidencing in particular those insured, the extent
of coverage, the location and operations to which the insurance applies, the
expiration date and the above-mentioned notice clauses.
26.3.5. All premium costs shall be included in the Contractor's bid.
26.3.6. All insurance shall be written on an occurrence basis. Coverage shall be
maintained without interruption from date of the Contract until date of final
payment and termination of any coverage required to be maintained after
payment.
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept and Desmond Landscaping Page 8
27. Protective Liability Insurance:
27.1. The Contractor shall purchase and maintain such insurance as described in the preceding
paragraph as will protect the Town from claims which may arise from operations under
the Contract, including operations performed for the named insureds by independent
contractors and general inspection thereof by the named insureds.
27.2. The Contractor shall also purchase and maintain such insurance as will protect the Town
against Automobile Non -Ownership Liability in connection with the Contractor's
operations under the Contract, whether such operations be by itself or by any
Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone
for whose acts any of them may be liable.
27.3. The limits of liability for coverage required under the preceding paragraphs shall be as
specified under the provisions hereof governing the Contractor's General Liability
Policy.
27.4. The Town shall be named as an additional insured on the above referenced liability
Policies, and the Contractor's insurance shall be the primary coverage. The cost of such
insurance, including required endorsements and amendments, shall be the sole
responsibility of the Contractor.
28. Liens:
Neither the Final Payment nor any part of the retained percentage shall become due until the
Contractor, if required, shall deliver to the Town a complete release of all liens arising out of the
Contract, or receipts in full in lieu thereof and, if required in either case, an affidavit that as far as
it has knowledge or information, the releases and receipts include all the labor and material for
which a lien could be filed. The Contractor shall comply with all statutory provisions of the
General Laws of the Commonwealth of Massachusetts with regard to liens, Chapter 254 and 149
as amended (as a minimum requirement).
29. Guarantees:
29.1 The Contractor guarantees and warrants to the Town that all labor furnished under this
Contract will be competent to perform the tasks undertaken, that the product of such
labor will yield only first-class results, that materials and equipment furnished will be of
good quality and new unless otherwise permitted by this Contract, and that the Work will
be of good quality, free from faults and defects and in strict conformance with this
Contract. All Work not conforming to these requirements may be considered defective.
29.2. If at any time any part of the work constructed under the terms of this contract shall in the
opinion of the Town Manager require repairing due to defective work or materials
furnished by the Contractor, he may notify the Contractor in writing to make the required
repairs. If the Contractor shall neglect to start such repairs within ten days of the date of
giving it notice thereof and to complete the same to the satisfaction of the Town Manager
with reasonable dispatch, then the latter may employ other persons to make such repairs.
The Town shall charge the expense thereof to the Contractor and may use any moneys
still retained to pay for the same, and if such sum is insufficient, the Contractor shall be
obligated to pay the balance thereof.
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept and Desmond Landscaping Page 9
29.3. All guarantees and warranties required in the various Sections of the Specifications which
originate with a Subcontractor or Manufacturer must be delivered to the Town before
final payment to the Contractor may be made for the amount of that subtrade or for the
phase of work to which the guarantee or warranty relates. The failure to deliver a
required guarantee or warranty shall be held to constitute a failure of the Subcontractor to
fully complete his work in accordance with the Contract Documents. The Contractor's
obligation to correct work is in addition to, and not in substitution of, such guarantees or
warranties as may be required in the various Sections of the Specifications.
This Agreement is intended to take effect as a sealed instrument. Witness our hands and seals
hereto:
Dated:
The North Andover School Dept by:
The Contractor by:
Dep ent/Division Head
UM -p•Y
sto
•1
Is to ��.p
Town Couns
(Rev 5-2007) Supplement "C" to Contract between the North Andover School Dept Industrial Floor Covering Page 10
Desmond Landscape Contractors, Inc
CERTIFICATE OF VOTE
At a duly authorized meeting the Board of Directors of the Desmond Landscape Contractors, Inc.
held on January 26, 2012 it was
VOTED, THAT
Daniel J. Desmond President
(Name) (Officer)
of Desmond Landscape Contractors, Inc. be and hereby is authorized to execute contracts and bonds in
the name and on behalf of said Desmond Landscape contractors, Inc. , and affix its corporate seal hereto;
and Such execution of any contract or obligation in the name of Desmond Landscape Contractors, Inc. on
its behalf by such Officer under Seal of Desmond Landscape Contractors, Inc., shall be valid and binding
Upon Desmond Landscape Contractors, Inc. .
I hereby certify that I am the clerk of the above named Desmond Landscape contractors, Inc. and
that Daniel J. Desmond
is the duly elected officer as above of said
Desmond Landcape Contractors, Inc. and that the above vote has not been amended or rescinded and
remains in full force and effect as the date of this contract.
October 9, 2012
(Date)
(Clerk)
North Andover School Department HB Page 31 of 35
School Athletic Fields Maintenance
CERTIFICATIONS
CERTIFICATE OF NON -COLLUSION
The undersigned certifies under penalties of perjury that this bid or proposal has been made and
submitted in good faith and without collusion or fraud with any other person. As used in this
certification, the word "person' shall mean natural person, business, partnership, corporation,
committee, union, club or other organization, entity, or group of individuals.
Daniel J. Desmond,
Print Name & Title
Date__4 42 Z, 2,
Desmond Landscape Contractors, Inc.
Company Name
CERTIFICATE OF TAX COMPLIANCE
Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I
Daniel J. Desmond , authorized signatory for Desmond Landscape Contractors, Inc.
Name of indiWdual Name of contractor
do hereby certify under the pains and penalties of perjury that said contractor has complied with
all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to
taxes, permit or other fees, reporting of employees and contractors, and withholding and
remitting child support.
0 6? ! Z
Date
North Andover School Deparhnent lFB Page 32 of 35
School Athletic Fields Maintenance
Purchase Order North Andover Public Schools No. 133344
Administrative Office
1600 Osgood Street, Suite 3059
North Andover MA 01845-1063
P.O.# must appear on all iinvoices Render all invoices in triplicate Tax Exempt #E-046-001-245
Contact:
Phone:
P.O. Date: 11/13/2012 Questions ? Accounts Payable (978) 794-1503 Ext: Account:
P.O. Issued To: Ship To:
Desmond Landscape Contractors Inc
PO Box 756
105 Mass Avenue
North Andover MA 01845-0756
Fax:
Location: School Maintenance and Operations
Project: Undesignated
North Andover Public Schools
Attn: John Mullen
Central Office
1600 Osgood Street Suite 3059
North Andover MA 01845-1063
(978) 794-1503 Req# 133405
Reference: Date Required: 11/20/2012 Award Number: 630
Line Qty Unit Part# Description Account Number Unit Price Extended Tax Freight
1 33100 EA all schools fields 100 100 1.2.3.0001.0150.2.524000.4220.0006.05.07 1.00 33,100.00 0.00 0.00
maintenance contract
Approval Log
Approved By
Date Notes
jmullen
11/05/12 Requisition Submitted for Approval
cmclaughlin
11/09/12
jmealey
11/13/12
cmclaughlin
11/13/12 Purchase Order Created
APPROVAL SIGNATURES:
NOTES
Sub -Total: 33,100.00
Freight: 0.00
Tax: 0.00
Total Amount: 33,100.00
Order Via: Mail
FILE COPY
Tuesday, November 13, 2012 Page 1 of 1
Purchase Requisition School Maintenance and Operations No. 133405
Desmond Landscape Contractors Inc SHIP TO: North Andover Public Schools
PO Box 756 REQUESTER: John Mullen
105 Mass Avenue PROJECT: Undesignated
North Andover MA 01845-0756 REQUISITION TYPE: Purchase Order
Contact Person: ORDER METHOD: Mail
Phone: Fax: REQUISITION DATE: 11/5/2012 DATE REQUIRED: 11/20/2012
REFERENCE:
BUYER: AWARD NUMBER:630
Line Qty Unit Part# Description Account Number Unit Price Extended Tax Freight
1 33100 EA all schools fields 1001001.2.3.0001.0150.2.524000.4220.0006.05.07 1.00 33,100.00 0.00 0.00
maintenance contract
Internal Notes:
APPROVAL SIGNATURES:
Sub -Total:
33,100.00
Freight:
0.00
Tax:
0.00
Total Amount:
33,100.00
NOTES: REQUESTOR'S COPY
Tuesday, November 13, 2012