TOWNSHIP OF LAWRENCE AGREEMENT

Transcription

1 TOWNSHIP OF LAWRENCE AGREEMENT THIS AGREEMENT, made this 17 th day of June, 2008, between THE TOWNSHIP OF LAWRENCE, in the County of Mercer, a municipal corporation of the State of New Jersey, 2207 Lawrenceville Road, P. O. Box 6006, Lawrenceville New Jersey 08648, (hereafter called "Township"), and Earle Asphalt Company, a corporation organized under the laws of the State of New Jersey having its principal place of business at P. O. Drawer 556, Farmingdale NJ 07727, (hereafter called Contractor"); WITNESSETH: WHEREAS, in accordance with Contractor's proposal copies for the 2008 Pavement Milling and made a part of hereof, and hereafter sometimes referred to as the Contract Documents. IT IS, THEREFORE, UNDERSTOOD AND AGREED between the parties hereto as follows: 1. PRICE, TERMS AND ACCEPTANCE. In consideration of the total quoted unit price of $2.00/sy which creates a contract price not to exceed $38, agreed to be paid by The Township pursuant to the said contract documents submitted by Contractor. Contractor agrees to furnish all work, labor, services, materials and/or equipment as set forth therein strictly in accordance with all the terms and conditions of the said contract documents (which shall include applicable "Instructions to Bidders"), performance of same to be completed no later than ten (10) calendar days after receipt of notice to proceed, with liquidated damages of $ per day for each day of unexcused delay thereafter, to the reasonable satisfaction of both the Township Manager and the Township Engineer, whose acceptance shall be given in writing prior to final payment. 2. INDEMNIFICATION. Contractor agrees to make prompt and full payment of all proper charges for work, labor, services, materials and equipment incurred pursuant to this Agreement, and further agrees to indemnify, defend, and hold The Township and its officials, agents and employees harmless from all such charges and from any and all other claims, demands, costs, expenses, judgments, damages and liabilities (including reasonable counsel fees,) of every find and nature whatsoever arising out of or related to the performance by Contractor of its obligations under this Agreement. 3. INSURANCE. Contractor shall furnish the Township Manager within ten (10) days of the date of this Agreement with a Certificate for such Workmen's Compensation and other employer liability insurance coverage as may be required by the United States of America and the State of New Jersey, and Certificates for the following liability insurance: Bodily Injury $1,000,000/$3,000,000. Property Damage $ 250,000/$1,000,000. All such Certificates shall be issued by an insurer, naming Lawrence Township, its officers, employees and agents, including the Engineer, as additional names insured, which is acceptable to the Township Manager and authorized to transact business in the State of New Jersey, and shall provide for at least ten (10) days prior written notice to The Township of any cancellation or reduction in amount or type of coverage.

2 Township of Lawrence Page 2 Agreement (Earle Asphalt Company 2008 Pavement Milling) 4. TIME OF PERFORMANCE. It is understood and agreed that time is of the essence in the performance of this Agreement, and that Contractor shall be responsible for the strict completion of all its obligations under this Agreement as set forth in paragraph 1 hereof, unless delayed by causes beyond the reasonable control of Contractor, which such causes shall include, but not be limited to, labor disputes shortages of materials or supplies, civil disturbance, war, and acts of God, in which instance the completion date shall be extended by the amount of time unavoidably lost to such permitted delays, except that if such delays for any reason extend sixty (60) or more days, The Township shall have the option to cancel this Agreement without further liability by written notice to Contractor effective upon mailing to the address first set forth-above. No claim by the Contractor shall be made for the consequences of any delay in the performance of the contract, regardless of cause, unless the Contractor shall provide written notice of any such occurance within 24 hours of the first occurance to the Township Engineer, requesting an extension of the completion date. Under no circumstances shall the Township compensate or otherwise be liable for delay damages incurred by the Contractor, unless the delay was caused by a discretionary action of the Township, not arising from an emergency affecting the public health, safety and welfare, and caused the Contractor's overall performance period to be extended by more than fifteen percent (15%), as measured by the last projected completion date. Under no circumstances shall the Contractor be entitled to delay damages in any form arising from interference with the Contractor's ability to complete the project earlier than the scheduled completion date. All claims for delay damage or other claims for compensation arising from the performance of the contract, shall be deemed to have been satisfied and barred upon acceptance of final payment. In the event completion is delayed for reasons not beyond the reasonable control of Contractor, as provided above, there shall be liquidated damages payable to The Township for each such day of unexcused delay, as provided in paragraph 1 hereof. 5. COMPLIANCE WITH LAWS. This Agreement is entered into in accordance with and subject to compliance with the "Local Public Contracts Law" of New Jersey, and the specific provisions of N.J.S.A. 40A:11-5(a) thereof pertaining to professional services. Consultant agrees to comply with all laws and regulations applicable to the services to be performed under this Agreement and to comply with the New Jersey Affirmative Action Regulation requirements of P.L. 1975, C.127 (NJAC 17:27) and Prevailing Wage Regulations N.J.A.C. 12:60-1 et seq., the terms of which are incorporated herein by reference. This Agreement shall be governed by and construed under the laws of the State of New Jersey. 6. GENERAL CONDITIONS. This Agreement and its attachments shall be deemed complete and comprehensive, shall supersede all other agreements, representations and understandings between the parties with respect to the subject matter hereof, whether oral or written, the more strict requirements of which shall govern in the event of any inconsistency or conflict with the attached Contract Documents, may be amended only in writing specifically designated as such an amendment duly executed by both parties hereto, and shall be governed by the Laws of New Jersey. The non-performance by any party of any obligation hereunder shall not be deemed a waiver by the other of its right to insist on strict performance of the same or any other obligation thereafter, and all notices permitted hereunder shall be effective if sent by ordinary mail to the other party at the address first above given, unless a different address be sooner specified in writing, and this Agreement may not be assigned or transferred by Contractor without the prior written consent of The Township.

3 Township of Lawrence Page 3 Agreement (Earle Asphalt Company 2008 Pavement Milling) 7. ALTERNATIVE DISPUTE RESOLUTION. In accordance with P.L. 197, C.371, Construction Contracts entered into in accordance with the provision of P.L. 1971, C.198 (C.40A:11-1 et seq.), Local Public Contracts Law, shall provide that disputes arising under or related to the contract shall be submitted to a process of resolution pursuant to alternative dispute resolution practices, such as mediation, binding arbitration or non-binding arbitration pursuant to industry standards, prior to being submitted to a court for adjudication. Mediation shall be employed as the method of alternative dispute resolution under this contract. Noting in this subsection shall prevent the contracting unit from seeking injunctive or declaratory relief in court at any time. The alternative dispute resolution practices required by this subsection shall not apply to disputes concerning the bid solicitation or award process, or the formation of contracts or subcontracts to be entered into pursuant to P.L. 1971,C.198 (C.40A:11-1 et seq.), Local Public Contracts Law. Notwithstanding industry rules or any provision of the law to the contrary, whenever a dispute concerns more that one contract, such as when a dispute in a contract involving construction relates to a contract involving design, architecture, engineering, or management, upon the demand of a contracting party, other interested parties to the dispute shall be joined unless the mediator or person appointed to resolve the disputes determines that such joinder is inappropriate. Notwithstanding industry rules or any provision of law to the contrary, whenever more than one dispute or a similar nature arises under a construction party, the disputes shall be joined unless the mediator or person appointed to resolve the dispute determines that the disputes are inappropriate for joinder. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement through their respective authorized representatives the day and year first above written. ATTEST: THE TOWNSHIP OF LAWRENCE Kathleen Norcia Municipal Clerk ATTEST: By: Mark W. Holmes Mayor CONTRACTOR: Secretary By: Walter R. Earle, II, President Earle Asphalt Company h:\sue\contracts\earle asphalt 2008 milling.doc

4 Township of Lawrence County of Mercer AFFIRMATIVE ACTION (P.L. 1975, C N.J.A.C. 17:27) During the performance of this contract, the contractor agrees as follows: a. The contractor or subcontractor, where applicable, will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation. The contractor will take affirmative action to ensure that such applicants are recruited and employed, and that employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status or sex. Such action shall include, but not be limited to the following: employment, up grading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Public Agency Compliance Officer setting forth provisions of this nondiscrimination clause; b. The contractor or subcontractor, where applicable will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, sex, affectional or sexual orientation; c. The contractor or subcontractor, where applicable, will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contractor understanding, a notice, to be provided by the agency contracting officer advising the labor union or workers; representative of the contractor s commitments under this act and shall post copies of the notice in conspicuous places available to employees and applicants for employment. d. The contractor or subcontractor, where applicable, agrees to comply with any regulations promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time. e. When hiring workers in each construction trade, the contractor or subcontractor agrees to attempt in good faith to employ minority and female workers in each construction trade consistent with the applicable employment goal prescribed by N.J.A.C. 17:27 7.3; provided, however, that the Affirmative Action Office may, in its discretion, exempt a contractor or subcontractor from compliance with the good faith procedures prescribed by the following provisions, A, B and C, as long as the Affirmative Action Office is satisfied that the contractor is employing workers provided by a union which proves evidence, in accordance with standards prescribed by the Affirmative Action Office, that its percentage of active card carrying members who are minority and female workers is equal to or greater than the applicable employment goal prescribed by N.J.C.A. 17:27 7.3, promulgated by the Treasurer pursuant to P.L. 1975, c. 127, as amended and supplemented from time to time. The contractor or subcontractor agrees that a good faith effort shall include compliance with the following procedures:

5 Affirmative Action Page 2 (A) If the contractor or subcontractor has a referral agreement or arrangement with a union for a construction trade, the contractor or subcontractor shall, within three days of the contract award, seek assurances from the union that it will cooperate with the contractor or subcontractor as it fulfills its affirmative action obligations under this contract and in accordance with the rules promulgated by the Treasurer pursuant to P.L. 1975, c. 127 as supplemented and amended from time to time. If the contractor or subcontractor is unable to obtain said assurances from the construction trade union at least five days prior to the commencement of construction work, the contractor or subcontractor agrees directly to attempt to hire minority and female works consistent with the applicable employment goal. If the contractor s subcontractor s prior experience with a construction trade union, regardless of whether the union has provided said assurances, indicates a significant possibility that the trade union will not refer sufficient minority and female works consistent with the applicable employment goal, the contractor or subcontractor agrees to be prepared to hire minority and female workers directly, consistent with the applicable employment goal, by complying with the hiring procedures prescribed under (B) below; and the contractor or subcontractor further agrees to immediately take said action if it determines or is so notified by the Affirmative Action Office that the union is not referring minority and female works consistent with the applicable employment goal. (B) If the hiring of a workforce consistent with the employment goal has no or cannot be achieved for each construction trade by adhering to the procedures of (b) above, or if the contractor does not have a referral agreement or arrangement with a union for a construction trade, the contractor or subcontractor agrees to take the following actions consistent with the applicable county employment goals: (1) To notify the Public Agency Compliance Officer, Affirmative Action Office and at least one approved minority referral organization of its manpower needs, and request referral of minority and female workers; (2) To notify any minority and female workers who have been listed with it as awaiting available vacancies; (3) Prior to commencement of work, to request the local construction trade union, if the contractor or subcontractor has a referral agreement or arrangement with a union for the construction trade, to refer minority and female workers to fill job openings; (4) To leave standing requests for additional referral to minority and female workers with the local construction trade union, if the contractor or subcontractor has a referral agreement or arrangement with a union for the construction trade, the State Training and Employment and other approved referral sources in the area until such time as the workforce is consistent with the employment goal; (5) If it is necessary to lay off some of the workers in a given trade on the construction site, to assure, consistent with the applicable State and Federal statutes and court decisions, that sufficient minority and female employees remain on the site consistent with the employment goal; and to employ any minority and female workers so laid off by the contractor on any other construction site in the area on which its workforce composition is not consistent with an employment goal established pursuant to rules implementing P.L. 1975, c.127; (6) To adhere to the following procedure when minority and female workers apply or are referred to the contractor or subcontractor:

6 Affirmative Action Page 3 (i) If said individuals have never previously received any documents or certification signifying a level of qualification lower than that required, the contractor or subcontractor shall determine the qualifications of such individuals and if the contractor s or subcontractor s workforce in each construction trade is not consistent with the applicable employment goal, it shall employ such persons which satisfy appropriate qualification standards; provided however, that a contractor or subcontractor shall determine that the individual at least possesses the skills and experience recognized by any worker s skills and experience classification determination which may have been made by a Public Agency Compliance Officer, union, apprentice program or a referral agency, provided the referral agency is acceptable to the Affirmative Action Office and provided further, that, if necessary, the contractor or subcontractor shall hire minority and female workers who qualify as trainees pursuant to these regulations. All of the requirements of this paragraph, however, are limited by the provisions of below. (ii) If the contractor s or subcontractor s workforce is consistent with the applicable employment goal, the name of said female or minority group individual shall be maintained on a waiting list for the first consideration, in the event the contractor s or subcontractor s workforce is no longer consistent with the applicable employment goal. (iii) If, for any reason, said contractor or subcontractor determines that a minority individual or a female is not qualified or if the individual qualifies as an advance trainee or apprentice, the contractor or subcontractor shall inform the individual in writing with the reasons for the determination, maintain a copy in its files, and send a copy to the Public Agency Compliance Officer and to the Affirmative Action Office. (7) To keep a complete and accurate record of all requests made for the referral of workers in any trade covered by the contract and on forms made available by the Affirmative Action Office and shall be submitted promptly to that office upon request. C. The contractor or subcontractor agrees that nothing contained in (B) preceding provisions shall preclude the contractor or subcontractor from complying with the hiring hall or apprenticeship provisions in any applicable collective bargaining agreement or hiring hall arrangement, and, where required by custom or agreement, it shall send journeymen and trainees to the union for referral, or to the apprenticeship program for admission, pursuant to such agreement or arrangement: provided, however, that where the practices of a union or apprenticeship program will result in the exclusion of minorities and females or the failure to refer minorities and females consistent with the county employment goal, the contractor or subcontractor shall consider for employment persons referred pursuant to said provisions (B) without regard to such agreement or arrangement; provided further, however, that the contractor or subcontractor shall not be required to employ female and minority advanced trainees and trainees in numbers which result in the employment of advance trainees and trainees as a percentage of the total workforce for the construction trade, which percentage significantly exceeds the apprentice to journey worker ratio specified in the applicable collective bargaining agreement, or in the absence of a collective bargaining agreement, exceeds the ratio established by practice in the area for said construction trade. Also, the contractor or subcontractor agrees that, in implementing the procedures of the preceding provisions (B) it shall, where applicable, employ minority and female workers residing within the geographical jurisdiction of the union.

7 Affirmative Action Page 4 (D) The contractor agrees to complete an Initial Project Manning Report on forms provided by the Affirmative Action Office or in the form prescribed by the Affirmative Action Office and submit a copy of said form no later than 3 days after signing a construction contractor; provided, however, that the public agency may extend in a particular case the allowable time for submitted the form to no more than 14 days; and to submit a copy of the Monthly Project Manning Report once a month (by the seventh work day of each month) thereafter for the duration of this contract to the Affirmative Action Office and to the Public Agency Compliance Officer. The contractor agrees to cooperate with the public agency in the payment of budgeted funds, as is necessary, for on the job and off the job programs for outreach and training of minority and female trainees employed on the construction projects. (E) The contractor and its subcontractors shall furnish such reports or other documents to the Affirmative Action Office as may be requested by the office from time to time in order to carry out the purposes of these regulations, and public agencies shall furnish such information as may be requested by the Affirmative Action Office for conducting a compliance investigation pursuant to Subchapter 10 of the Administrative Code (NJAC 17:27).

8 NEW PREVAILING WAGE REGULATIONS - N.J.A.C. 12:60-1 et. seq. Effective February 18, 1992, the Department of Labor, Division of Workplace Standards, has adopted amendments to the rules and concerning prevailing wages for public works. The amended rules do not affect the statutory responsibilities of the public body regarding prevailing wages generally. Under the amended rules, the public work employers, (contractors, and subcontractors) shall submit to the public body or lessor certified payroll records each payroll period within 10 days of the payment of wages. A certified payroll record is defined as "a payroll record which is attested to by the employer, or the owner of the company doing business as the employer, or a corporate officer of such company, or an authorized agency of the employer." The public body is required to receive, file, catalogue, and make available for inspection during normal business hours, these certified payroll records. The public body may store the certified payroll records at any depository, including a public library or other building. However, in choosing a storage location the public body must be mindful of the requirement that the records be available for inspection during normal business hours. A copy of the certified payroll form for submission of the payroll records may be obtained by contacting the Department of Labor, Division of Workplace Standards at (609)