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HomeMy WebLinkAbout2019 - Contractancr SEs�A1V HOME OF PELICAN ISLAND Pavement Management RFQ 19-03 March 19, 2019 Addendum 1 1. Are the Units and Quantities in the wrong order on the bid sheet? a. Yes please use revised bid sheet 2. Is it the intent to use percentages on mobilization and traffic control for each work order or per project? a. The mobilization and traffic control have been removed from the bid sheet. These items are to be included in your cost of work items. See revised Bid Sheet. 3. Is the rate of application for single (18-24lbs)and double micro (28-32 Ibs) correct? a. No single micro shall be 20- 24 LBS and double micro 30-34 LBS. See revised Bid Sheet. 4. Do you have to bid all items? a. No. Put" No Bid" in the item you do not wish to bid. S. Do I have to use a Sub -Contractor? a. No. If you do use a Sub Contractor, you need to list them on the Sub- Contractor form provided in the bid documents. 6. Is there an engineers estimate on the project? a. The current budget is approxamtly $400,000.00 7. Is there an estimate of the types of work? a. No this will be based on the pavement study and the Pavement Condition Index and the strategies that provide the best overall outcome of the roadway infrastructure. Cp I�d�RY CAi�F6R1tt , "t 2�Sla�.vT AsPgAtr favljy Sys; -ems jN�, Ey: Robert Capoferri hue) (print name) Address: 9021 Wire Road Zeohvrhills. FL 33540 Telephone: 813-788-0010 Fax: 813-788-0020 Taxpayer Identification Number. State Under Which Corporation Was Chartered: New JerseV Corporate President: Robert Capoferri Corporate Secretary: Kenneth Messina (Print Name) (Print Name) Corporate Treasurer. Robert Capoferri (Print Name) CORPORATE SEAL Attest By: ��Ci/J✓!I Secretary Proposer acknowledges the receipt of Addenda No.'s 1 The following individuals are the designated contacts assigned to the CITY : VENDOR SERVICE REPRESENTATIVE (REGULAR WORK HOURS): Name: Tommy Donald Addy, 9021 Wire Rd., Zephyrhills, FI. 33540 Telephone:! 8131 788-0010 VENDOR SERVICE REPRESENTATIVE (AFTER WORK HOURS, WEEKEND & HOLIDAYS): Name: Tommy Donald Address: 9021 Wire Rd. Zephyrhills, FI. 33540 Telephone:! 8131 455-2489 EEE DRUG FREE WORKPLACE Preference shall be given to businesses with drug-free workplace programs. Whenever two or more Bids which are equal with respect to price, quality, and service are received by the Village for the procurement of commodities or contractual services, a Bid received from a business that certifies that it has implemented a drug- free workplace program shall be given preference in the award process. Established procedures for processing tie Bids will be followed if none of the tied vendors have a drug-free workplace program. hi order to have a drug- free workplace program, a business shall: 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under Bid a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (I), notify the employees that, as a condition of working on the commodities or contractual services that are under Bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of chapter 893 or of my controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. Robert Capoferri / President Proposer'. Signature Ii SWORN STATEMENT PURSUANT TO SECTION 287.133f31fatr FLO(�A STATUTES. ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS. 1. This sworn statement is submitted to City of Sebastian by Robert Capofern / President (print individual's name and title) for Asphalt Paving Systems, Inc. (print name of entity submitting sworn statement) 2. Whose address is 9021 Wire Road, Zephyrhills, FL 33540 and (if applicable) its Federal Employer Identification Number (FEIN) is (if the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: 3. 1 understand that a "public entity crime" as defined in Paragraph 287.133(t)(g), Florida Statutes. means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision or any other state or of the United States and involving antitrust, Gaud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. 4. I understand that "convicted" or "conviction as defined in paragraph 287.133(l)(b), Florida Statutes. means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federd or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of ajury verdict, non jury trial or entry of a plea of guilty or nolo contendere. 5. I understand that an "affiliate" as defined in Paragraph 287.133(1)(a) Florida Statutes, means: i. A predecessor or successor of a person convicted of a public entity crime; or ii. An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The «nn "affiliate" includes those officers, directors, executives, partners, shareholders, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling equipment or income among persons when not for fair market value under an Arms length agreement shall be prima facie case that one person controls another person. A person knowing enters into ajoint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. 5. 1 understand that a "person' as defined in Paragraph 287.133(I)(e) Florida Statutes, means any natural person entity organized under the laws of any state or the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provisions of LLL goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person includes those officers, directors, executives, partners, shareholders, members, and agents who are active in the management of an entity. 6. Based on information and belief, the statement, which I have marked below, is true in relation to the entity submitting this swom statement. (Indicate which statement applies.) X Neither the entity submitting this sworn statement, or one of its officers, directors, executives, partners, shareholders, members, and agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, members, and agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, members, and agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Heating Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing OtHcar determined that it was not in the public interest to place the entity submitting this swom statement on the convicted vendor list (Attach a copy of the flood order) I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY, AND THAT THIS FORM IS VALID THROUGH DECEMBER Jl OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 187.017, FLORIDA ST]'��'E9 FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS F�RM. STATE OF FLORIDA COUNTY Pasco / ignaluR) The foregoing instrument was acknowledged before me this 10th day of April 2019 by Robert Caooferri as President ofA�paha ft Pa inq Svstems, Inc. , who is personally known to me or has produced Personally Known as identification. SEAL: Notary Signature: , An..Nfin/ /v ,-•, twwuoexuox c tktnp -a dna ruar¢ SGGIT&VS eam Fix Myes Jai 17ala. ��:.._•,.,. moa*o.m xao., avarnw Notary Name David Gannon ITFUT AGREEMENT THIS AGREEMENT, made this 3rd day of June 2019, by and between the CITY of Sebastian, a municipality in Indian River County, Florida (hereinafter called the "CITY"), and Asphalt Paving Svstems. Inc. Or its successors, executors, administrators, and assigns (hereafter called "CONTRACTOR"). WITNESSETH: The CITY and CONTRACTOR for good and valuable consideration as hereinafter set forth, do mutually agree as follows: 1. Scope of Services: CONTRACTOR agrees to furnish roadway paving services meeting the requirements described in the TECHNICAL SPECIFICATIONS attached hereto as Exhibit "A", on an "as needed" basis in accordance with all applicable codes pursuant to Work Orders issued by the CITY. This Agreement is not an exclusive agreement and the CITY may employ other CONTRACTORS, professional or technical personnel to furnish services for the CITY as the CITY in its sole discretion fords is in the public interest. 2. Agreement Documents: The Agreement Documents (also called Contract Documents) consist of this Agreement, Supplemental Agreement(s), Notice of Invitation to Bid, Instructions for Bidders, Bid Proposal, Bond Forms, Bid Specifications and Scope of Work, Work Orders, Change Orders, Addenda, if any, plus any documents listed in the Agreement Documents, and fully -executed written modifications issued after initial execution of this Agreement, if any. Except as specifically stated herein, the Agreement Documents constitute the entire agreement between the parties and supersede all other agreements, representation, warranties, statements, promises, and understandings not specifically set forth in the Agreement Documents. Neither party has in any way relied, nor shall in any way rely, upon any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in the Agreement Documents. This Agreement shall not be construed against the party who drafted the same, as both parties have obtained experts of their choosing to review the legal and business adequacy of the same. This Agreement shall be governed by the laws of the State of Florida, and any venue for any action pursuant to the Agreement Documents shall be in Indian River County, Florida. The parties hereto expressly waive trial by jury in any action to enforce or otherwise resolve any dispute arising hereunder. This Agreement shall not be construed to create a contractual relationship of any kind between the CITY and the Sub-contractor(s), or between any person or firm other than the CITY and the CONTRACTOR. The CONTRACTOR shall not sell, transfer, assign or otherwise dispose of the contract or nay portion thereof, or of his right, title of interest therein or his obligations thereunder„ or moneys due or to be come due under this Contract, without the express written consent of the CITY. Page 1 of 26 Changes and Amendments: (a) The parties may modify this Agreement at any time by written agreement. Neither the Agreement Documents nor any term thereof may be changed, waived, discharged or terminated orally, except by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. No oral order, objection, claim or notice by any parry to the others shall affect or modify any of the terms or obligations contained in any of the Contract Documents, and none of the provisions of the Contract Documents shall be held to be waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing, and no evidence shall be introduced in any proceeding of any other waiver or modification. (b) The CITY may initiate a Change Order to direct the CONTRACTOR to perform additional Work or to address new and unforeseen items found to be necessary. Proposed changes initiated by the CONTRACTOR shall be presented to the CITY before work starts on the changes or revisions. If the CONTRACTOR deems that extra compensation is due for said Work, the CONTRACTOR shall notify the CITY in writing of its intention to make claim for extra compensation before work begins on which the claim is based. The CITY is not obligated to pay the CONTRACTOR if the CITY is not notified in advance and in writing. (c) The Change Order shall set forth in complete detail the nature of the change, the change in the compensation to be paid the CONTRACTOR and whether it is an addition or a reduction of the original total contract cost. Upon agreement, the CONTRACTOR shall do such changes in the Work and famish such materials, labor and equipment as may be required for the proper completion of the Work. In the absence of such written order, no payment claim for changes in the Work shall be considered. (d) Changes in the Work required in an emergency to protect life and property shall be performed by the CONTRACTOR and shall be given reasonable consideration for payment by the CITY, providing the CONTRACTOR promptly advises the CITY of the proposed changes and the CITY concurs that such actions were necessary and initiates a Change Order to document the emergency Work. (e) Compensation to be paid to the CONTRACTOR for accomplishing the work of a Change Order shall be established in one of the following ways: (1) By lump sum proposed by the CONTRACTOR and accepted by the CITY; (2) By unit prices established and agreed to; Page 2 of 26 (3) By unit prices established for additional kinds of Work; (4) By other methods as may be mutually agreed upon; 4. Cancellation or Suspension. The CITY shall have the right to cancel or suspend those portions of the Contract relating to the Work of any item provided herein. Such cancellation, when ordered by the CITY in writing, shall entitle the CONTRACTOR to the payment of all Work pertaining to the cancelled items before the date of cancellation or suspension of the Work. Acceptable materials ordered by the CONTRACTOR or delivered on the site before the date of cancellation or suspension of the Work shall be purchased from the CONTRACTOR by the CITY at actual cost and shall thereupon become the property of the CITY but no allowance will be made for the CONTRACTOR's anticipated profits. 5. Specifications and Minimum Standards. The Specifications are an integrated part of the Contract Documents and as such will not stand alone if used independently. The Specifications establish minimum standards of quality for the work. They do not purport to cover all details entering into the design and construction of materials or equipment. The intent of the Agreement Documents is to set forth requirements of performance, type of equipment and structures, and standards of materials and construction. It is also intended to include all labor and materials, equipment, and transportation necessary for the proper execution of the Work, to require new material and equipment unless otherwise indicated, and to require complete performance of the Work in spite of omission of specific reference to any minor component part and to include all items necessary for the proper execution and completion of the Work by the CONTRACTOR. Performance by the CONTRACTOR shall be required only to the extent consistent with the Agreement Documents and reasonably inferable from them as being necessary to produce the intended results in a manner acceptable to the CITY. 6. Definition of Terms. Whenever the following terms appear in these Agreement Documents, their intent and meaning shall, unless specifically stated otherwise, be interpreted as shown. (a) Act of God — The words "Act of God" mean an earthquake, flood, hurricane (or other named tropical event), tornado, or other cataclysmic phenomenon of nature. Rain, wind or other natural phenomenon (including tropical waves and depressions) of normal intensity for the locality shall not be construed as an Act of God. (b) Addendum — A modification of the specifications or other Contract Documents issued by the Owner and distributed to prospective bidders prior to the opening of bids. All Addenda shall be considered as part of the Contract Documents. Page 3 of 26 (c) Agreement — A written agreement is between the CONTRACTOR and the CITY of Sebastian defining in detail the Work to be performed. The words Agreement and Contract are one and the same. (d) A.S.T.M. Designation — Whenever the letters "A.S.T.M." are used in the Specifications, it shall be understood as referring to the American Society for Testing Materials. When reference is made to a certain Designated Number of a specification or test as set out or given by the American Society for Testing Materials, it shall be understood to mean the current, up-to-date standard specification or tentative specification for that particular process, material or test as currently published by that group. (e) Bid — The bid or proposal is the written offer of a Bidder to perform work described by the Contract Documents when made out and submitted on the prescribed proposal form properly sealed and guaranteed. The bid or proposal shall be considered as part of the Contract Documents. (f) Change Order - A written order authorized by the CITY and approved by the CONTRACTOR covering and documenting authorized changes in the plans, specifications, or scope of Work when the amount of Work changed is not deemed sufficient to require a supplemental agreement, and/or to cover adjustments in the Contract Price or Contract Time. (g) CONTRACTOR — The word "CONTRACTOR" shall mean an individual, partnership, or corporation, and its heirs, executors, administrators, successors and assigns, or the lawful agent of any such individual, firm, partnership, covenant or corporation, or its surety under any contract bond, constituting one of the principals to the Contract and undertaking to perform the Work herein. (h) Directed, Ordered, Approved, etc. — Whenever in the Agreement Document the words "directed", "ordered", "approved", "permitted", "acceptable", or words of similar import are used, it shall be understood that the direction, order, approval or acceptance of the Owner is intended unless otherwise stated. (i) Inspector — A duly authorized representative of the CITY assigned to make official inspections of the materials famished and of the Work performed by the CONTRACTOR. (j) Laboratory — A licensed and qualified independent laboratory designated by, or acceptable by the CITY to perform the necessary testing of material for the construction, if required. All testing will be the responsibility of the CONTRACTOR to hire a licensed testing firm to conduct any testing which is included in the price of various bid items. (k) Owner—City of Sebastian Page 4 of 26 (I) Licenses and Permits - Collectively, all licenses, registrations, franchises, permits, concessions, orders, approvals, certificates of occupancy, dedications, subdivision maps and entitlements now or hereafter issued, approved or granted by any Governmental Entity in connection with performing the work, together with all renewals and modifications thereof. (m) Punch List Inspection — A tour and visual inspection of the Work near the end of the Work to identify incomplete or incorrect Work or any incidental damages. (n) Proposal — The Proposal or Bid is the written offer of a Bidder to perform the work described by the Contract Documents when made out and submitted on the prescribed proposal form, properly signed and guaranteed. The Proposal or Bid shall be considered as part of the Contract Documents. (o) Specifications — The directions, provisions, and requirements together with all written agreements made or to be made, setting forth or relating to the method and manner of performing the Work, or to the quantities and qualities of materials, labor and equipment to be furnished under the Agreement. (p) Sub -Contractor — An individual, partnership, or corporation, supplying labor, equipment, or materials under a direct contract with the CONTRACTOR for work on the project site. Included is the one who supplies materials fabricated or formulated to a special design according to the plans and specifications for the particular project. (q) Supplemental Agreement — A written understanding, or proposal and acceptance, executed between the CITY and the CONTRACTOR subsequent to execution of the Agreement herein with the written consent of the CONTRACTOR's Surety, relating to the work covered by the Agreement and clarifying or furthering the terms thereof A modification to the Agreement shall be made by Contract Addendum. (r) Surety — Surety is a corporation qualified to act as surety under the laws of Florida, who executes the CONTRACTOR's Performance and Payment Bonds and is bound with the CONTRACTOR for the acceptable performance of the contracted work and for the payment of all debts pertaining thereto. (s) Work — Work is the necessary activities of the CONTRACTOR to complete the Roadway Paving Services authorized by this Agreement. (t) Work Order — Work orders are Work instructions including specifications and plans that show the location, character, dimensions, days of completion and Page 5 of 26 details to the Work to be done. Work orders are specific instruction, of limited scope, that will be part of this Contract. Work orders shall be considered as part of the Contract Documents. Any Work Orders that require consideration as Change Orders of any kind shall be in writing and address, at a minimum, any changes in the scope of work and the related impact on Contract price, cost and/or schedule. Contract Sum and Payment Request. During the term of this Agreement, the CITY shall pay CONTRACTOR the unit prices for work as proposed and stated in the CONTRACTORs bid proposal. (a) The CONTRACTOR may submit to the CITY not more than once each month as request for payment for Work completed. Where applicable, the CONTRACTOR may choose to submit a request for payment at the substantial completion of each work order. The CITY may elect to provide its own standard form for the CONTRACTOR to submit progress payment request. The standard form provided by the CITY or a form presented by the CONTRACTOR that has received prior approval from the CITY, can be used for the submittal of a progress payment. In addition to each month's invoice, an updated project schedule shall be submitted. Each request for payment shall be computed from the Work completed to date on all items listed in the detailed breakdown of the Contract amount less previous payments and back charges. Progress payments on Unit Price Work will be based on the number of units completed at the time the payment request was dated by the CONTRACTOR. (b) Any request for payment shall be accompanied by claim releases of liens for Work done or materials furnished. Also, from each supplier or Sub -Contractor who has notified the CITY of his right to file a Claim (Notice to the CITY) or who is listed in the CONTRACTOR's Affidavit and Release of Claim as an unpaid, potential Claimant, a Claimant's Swom Statement of Account, executed by the supplier or Sub -Contractor, must be attached to each request for payment. If the completed forms are not provided with the request for payment, the CITY will notify the CONTRACTOR of the outstanding claims of record and, if said completed forms) are not provided within thirty (30) days, the CITY shall make joint payments to the CONTRACTOR and outstanding claimants. (c) If payment is requested on the basis of materials and equipment not incorporated in the project but delivered and suitably stored at the site or at another location agreed to in writing, the payment request shall also be accompanied by a bill of sale, invoice or other documentation warranting that the CITY has received the materials and equipment free and clear of all liens, charges, security interest and encumbrances, all of which shall be satisfactory to the CITY. No payments shall be made for materials stored on site without CITY approval. (d) The CITY shall review request for payment to determine that the Work covered by the request for payment has been completed in accordance with the intent of the Plans and Specifications and that the quantities of Work have been Page 6 of 26 completed as stated in the request for payment, whether for a unit price contract or for payment on a lump -sum contract. (e) Within thirty (30) days from the date of receipt of a request for payment the CITY shall approve and pay the request for payment as submitted; approve and pay such other amount of the request for payment for only the amount the CITY decides is due the CONTRACTOR; or disapprove the request for payment. The CITY shall inform the CONTRACTOR in writing of the reasons for paying any amended amount or disapproving and withholding payment. Payment may be withheld in whole or in part to the extent determined necessary by the CITY based on: (1) A reduction in the Contract Price due to a written Change Order; (2) Work not actually performed or in the opinion of the CITY, Work covered in the request for payment is not in accordance with the Plans, Specifications and generally accepted construction practices or the Work is defective or requires correction or replacement; (3) The CITY has had to correct a defect in the Work, or there are other items entitling the CITY to a set-off against the amount of payment requested; (4) Should the CITY have directed in writing that the CONTRACTOR not correct Work that has been damaged or that was not performed in accordance with the Contract Documents, an equitable deduction from the Contract amount shall be made to compensate the CITY for the Uncorrected Work. (5) Failure of the CONTRACTOR to make payments to sub -contractor's, material suppliers or labor or in the event of a claim or lien being filed, or receiving information of a potential filing of a claim or lien against the CONTRACTOR of CITY; (6) Damage to another CONTRACTOR that has not been satisfactorily settled or resolved; (7) Default of any of the provisions of the Contract Documents. (f) Should the CITY have incurred expenses related to the CONTRACTOR's removal of rejected Work and materials, the CONTRACTOR shall pay the CITY the amount of the incurred expenses, within thirty (30) days after written notice is given by the CITY. If the full amount of incurred expenses is not paid, such additional amounts may be set-off against the amount of payment requested. Page 7 of 26 (g) An amount of ten percent (10%) of each monthly pay request shall be retained until final completion and written acceptance of the Work by the CITY. Payment of the retainage shall be included in the CONTRACTOR's final pay request. Any deviation in the release or partial release of the ten percent (10%) retainage shall be at the sole discretion of the CITY, but in no case earlier than completion of the CITY's "Punch List Inspection". Any request for payment shall be accompanied by claim releases for work done or materials furnished. 8. Final Payment Request. When it is determined, as a result of a joint inspection of the Work by the CONTRACTOR and the CITY that the Work has been completed in accordance with the terms of the Contract Documents, the CONTRACTOR may submit the CONTRACTOR's final request for payment. (a) The CONTRACTOR's final request for payment shall be the Contract amount plus all approved written additions, less all approved written deductions and less all previous payments made. (b) As a condition for final payment, a CONTRACTOR's final affidavit must be received, along with full and final releases of Claim for labor, materials and equipment incurred in connection with the Work. The CITY will thereafter release the CONTRACTOR, except as to the conditions of the performance bond, any legal rights of the CITY, required guarantees and satisfaction of all warranty work, and shall authorize payment of the CONTRACTOR's final request for payment. (c) The making of the final payment by the CITY to the CONTRACTOR shall not relieve the CONTRACTOR of responsibility for faulty materials or workmanship. The CITY shall promptly give notice of faulty materials and workmanship and the CONTRACTOR shall promptly replace any such defects discovered within three (3) years from the date of final written acceptance of the Work by the CITY. 9. CONTRACTOR's Obligations: (a) Bonds and Insurance - The CONTRACTOR is required to submit bonds for performance and payment in the form prescribed by State Law. The CONTRACTOR shall commence work on the date specified in the Notice to Proceed subsequently issued by the CITY, or as specifically noted in any Contract Addendum. However, in no case shall the CONTRACTOR commence work until the CITY has been furnished and acknowledges receipt of the CONTRACTOR's Certificate of Insurance and a properly executed performance and payment bond as required. (b) Supervision and Control - CONTRACTOR shall supervise and have control over means, methods, techniques, sequences and procedures for performing the Work Orders, unless the terms of this Agreement give other specific instructions Page 8 of 26 concerning these matters. A qualified superintendent, who is acceptable to the CITY, shall be maintained on the project and give sufficient supervision to the Work until its completion. The superintendent shall have full authority to act on behalf of the CONTRACTOR, and all communications given to the superintendent shall be considered given to the CONTRACTOR. In general, such communications shall be confirmed in writing and always upon written request from the CONTRACTOR. (c) Discipline and Good Order - The CONTRACTOR shall enforce strict discipline and good order among CONTRACTOR's employees and other persons carrying out the Work. CONTRACTOR shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (d) Maintenance of Licenses - CONTRACTOR currently holds and shall maintain at all times during the term of this Contract all required Federal, State and local licenses necessary to perform the Work required. CONTRACTOR shall indemnify, defend and hold the CITY harmless from all claims arising out of or related to its performance of the Work, except to acts arising solely from the active negligence of the CITY. (e) Protection of Persons and Private Property. The CONTRACTOR shall submit, for the CITY's approval, a project safety and security plan, which describes the CONTRACTOR's plans and procedures to protect the safety and property of property owners, residents, and passers-by. The plan shall describe measures and precautions to be taken during working hours and non -working hours. The CONTRACTOR shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to all employees on the Work and all other persons who may be affected thereby. Privately owned mail boxes, newspaper boxes, sprinkler systems, ornamental shrubs, lawn ornaments, house numbers, fences, etc. may be removed and relocated by the property owners. The CITY will not remove, relocate, or re- install mail boxes, sprinkler systems, ornamental shrubs, etc. belonging to a private property owner. However, should such items not be removed or relocated by the start of the Work, the CONTRACTOR shall remove the objects, in a manner which does not damage or injure the objects at no extra cost to the CITY, which interfere with doing the Work and place them on the property owner's front lawn just outside the boundary of the Work. Otherwise, the CONTRACTOR shall not enter upon private property for any purpose without obtaining permission from the property owner thereof Where extensive intrusions upon private property are required to conduct the Work, the CITY and CONTRACTOR shall cooperate to obtain Temporary Construction Easements from the property owner. (f) Protection of Public Property - The CONTRACTOR shall be responsible for the preservation of all public property, trees, monuments, etc., along and adjacent to the street and/or right-of-way, and shall use every precaution Page 9 of 26 necessary to prevent damage or injury thereto. He shall use suitable precautions to prevent damage to pipes, conduits and other underground structures, and shall protect carefully from disturbance or damage all monuments and property marks. (g) Protection of Utilities - All utilities and all structures of any nature that may be affected by the Work shall be protected and maintained by the CONTRACTOR and shall not be disturbed, disconnected or damaged by the CONTRACTOR's employees, sub -contractors and their agents and employees, and other persons performing portions of the Work. The cost of locating the existing utilities shall be home by the CONTRACTOR. Should any utility or any structure be disturbed, disconnected or damaged, all expenses of whatever nature arising from such disturbance or the replacement or repair and testing thereof shall be home by the CONTRACTOR. Should utilities require relocation, the CONTRACTOR shall seek direction from the CITY prior to proceeding with the Work as to how the CITY elects to proceed. (h) Operation of Machinery and Equipment - The CONTRACTOR acknowledges that, in executing the Project, it will operated machinery and equipment that may be dangerous to the adjacent property owners and the general public. The CONTRACTOR shall rigorously prohibit the committing of nuisances on the site of the Work, on the lands of the CITY or an adjacent property. The CONTRACTOR shall take all reasonable precautions for the safety of all employees on the Work and all other persons who may be affected thereby and shall provide all reasonable precautions to prevent damage to work materials and equipment, whether in storage on or off the project site; under the care, custody or control of the CONTRACTOR or any of his sub -contractors; and other property on the project site or adjacent thereto, including trees, shrubs, lawns; walks, pavement, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. Fire hydrants on or adjacent to the Work shall be kept accessible to fire -fighting equipment at all times. Temporary provisions shall be made by the CONTRACTOR to insure the proper functioning of all swales, gutters, sewer inlets, drainage ditches and irrigation ditches, which shall not be obstructed except as approved by the CITY. (i) Safety Precautions and Programs - The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work in accordance with the U.S. Department of Labor Occupational Safety and Health Act and the laws of the State of Florida. This Contract requires that the CONTRACTOR and any and all sub -contractors hired by the CONTRACTOR comply with all relevant standards of the Occupational Safety and Health Act. Failure to comply with the Act constitutes Page 10 of 26 a failure to perform. The CONTRACTOR agrees to reimburse the CITY for any fines and/or court costs arising from penalties charged to the CITY for violations of OSHA committed by the CONTRACTOR or any and all Sub- contractors. The CONTRACTOR shall be held fully responsible for such safety and protection until final written acceptance of the Work is received from the CITY. (j) Traffic Control and Warning Devices - All safety precautions, traffic control and warning devices necessary to protect the public and workers from hazards within the right-of-way shall be in strict accordance with Section 102, Maintenance of Traffic, in the Florida Department of Transportation ) (FDOT) Std. The State of Florida Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations Specifications for Road and Bridge Construction, latest edition shall be used as minimum standards, as applicable. Further, the CONTRACTOR shall carry on the Work in a manner that will cause the least possible obstruction and interruption in traffic, and the least inconvenience to the general public and the residents in the vicinity of the Work. (k) Road Closures and Detours: Local traffic shall be maintained within the limits of the project for the duration of the construction period. Closing to through travel of more than two (2) consecutive blocks, including the cross street intersected will not be permitted without specific authorization of the CITY. No road or street shall be closed to the public except with the permission of the CITY and proper governmental authority. When closing of roads is permitted, it shall require forty-eight (48) hours notification to the CITY. Traffic detours shall be pre -approved prior to closing. "Street Closed to through Traffic" signs and "Detour" routes shall be indicated and maintained by the CONTRACTOR when the job is located in a public or private street. (1) Provisions for Temporary Access - Where traffic must cross open trenches, the CONTRACTOR shall provide adequate ingress and egress to dwellings, business facilities, utilities and service. Temporary provisions shall be made by the CONTRACTOR to insure the use of sidewalks. The CONTRACTOR shall provide suitable crossings at street intersections and driveways, and supply such aid as may be required for pedestrians and motorists, including delivery vehicles, to safely negotiate the construction Work areas. On completion of Work within any area, the CONTRACTOR shall remove all debris, excess materials, barricades and other temporary measures, leaving walkways and roads in said area clear of obstructions. (m) Traffic Control — When the Work requires the crossing of highways, railroads, streets or similar public facilities under the jurisdiction of the State, County, CITY, or other public agency or private entity, the CITY shall secure written permission prior to the commencement of the intended Work, that may require compliance with certain conditions. The CONTRACTOR will be required to furnish evidence of compliance with the stipulated conditions from the Page I I of 26 authorizing authority, before final acceptance of the Work by the CITY. The CONTRACTOR shall provide adequate signs, barricades, warning lights, guards and flagmen, as required in pedestrian and vehicular traffic areas, and all such other necessary precautions for the protection of the Work and the safety of the public. Warning signs and barricades shall be in conformance with the State of Florida FDOT, Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations, latest edition. All barricades and obstructions shall be protected at night by regulatory signal lights which shall be kept in operation from sunset to sunrise. Barricades shall be of substantial construction and shall be reflective to increase their visibility at night. Suitable warning signs shall be so placed and illuminated at night as to show in advance where construction, barricades or detours exist. Lane closures shall be signed and barricaded or coned as indicated in the FDOT Manual. Unless so designated in the Bid Documents, no direct payment for this Work will be made, but the cost of providing, erecting and maintaining such protection devices, including guards, watchmen and/or flagmen as required shall be considered as included and paid for in the various contract prices of the Work. (n) Open Trenches - CONTRACTOR may be required to conduct excavation for the Project that may be hazardous to person and property, The CONTRACTOR shall fully comply with Florida Statutes and OSHA regulations with regard to open trenches during construction. The CONTRACTOR shall place construction hazard fencing along any open trenches during the construction work -day, and shall leave no open trenches or excavations over -night unless properly fenced and with the specific approval of the CITY. (o) Parking of Construction Equipment - The CONTRACTOR shall not leave construction equipment parked in front of or on a residential lot overnight or on weekends. At the close of work each day, the equipment shall be driven to and stored in a designated area so that the equipment will not become an "attractive nuisance" to neighborhood children. All equipment left unattended during the course of a working day, such as during lunch hours or work breaks, shall not be left in a condition or location which would create a safety hazard to the general public. All keys shall be removed from the machines during those times. (p) Sanitary Facilities - The CONTRACTOR shall provide and maintain such sanitary accommodations adequate for the use of his employees and those of his sub -contractors, and as may be necessary to comply with the requirements and regulations of the local and state departments of health, including the Florida Department of Health and Rehabilitative Services, Department of Environmental Protection, and St. Johns River Water Management District. Such facilities shall be made available when the first employees arrive at the site of the Work, shall be properly secluded from public observation, and shall be constructed and maintained during the progress of the Work in suitable numbers and at such points and in such manner as may be required or approved. The CONTRACTOR shall maintain the sanitary facilities in a satisfactory and sanitary condition at all times and shall enforce their use. The CITY shall have Page 12 of 26 the right to inspect such facilities at all times to determine whether or not they are being properly and adequately maintained. Following the period of necessity for such accommodations, they and all evidence affixed thereto shall be removed. (q) Water and Electrical Service - The CONTRACTOR shall make all necessary applications and arrangements, and pay all fees and charged for water and electrical service necessary for the proper completion of the Work up to the time of final acceptance. The CONTRACTOR shall provide and pay for any temporary piping and connections. (r) Objectionable Noise Levels - The CONTRACTOR shall provide adequate protection against objectionable noise levels caused by the operation of contraction equipment, and shall submit a plan to the CITY for review prior to initiation and implementation of the plan. (s) Objectionable Dust Clouds - The CONTRACTOR shall provide for adequate protection against raising objectionable dust clouds caused by moving construction equipment, high winds or any other cause, and shall submit a plan to the CITY for review and approval prior to initiation and implementation of the plan. (t) Surplus Water Disposal - The CONTRACTOR shall provide for satisfactory disposal of surplus water and shall submit a plan to the CITY for review prior to initiation and implementation of the plan. Prior approval shall be obtained from the proper authorities for the use of public or private lands or facilities for such disposal. (u) Pollution Prevention - The CONTRACTOR shall provide for and take sufficient precautions to prevent pollution of private and public lands, reservoirs, ponds, rivers, streams, creeks, etc., by the disposal of surplus materials in the forms of solids, liquids or gases including, but not limited to, fuels, oils, bitumen, calcium chloride or other harmful materials. CONTRACTOR shall conduct and schedule Work operations so as to avoid or otherwise minimize pollution of silting of streams, lakes and reservoirs and to avoid interference with movement of migratory fish, where there is a high potential for erosion and subsequent water pollution. Erosion control features shall be contracted concurrently with other Work and at the earliest practicable time. The CONTRACTOR shall prepare a detailed description of CONTRACTOR's plan for erosion and turbidity control, including location of erosion control and turbidity control devices, marked on a plan set as needed for clarity. The erosion and turbidity control shall meet the requirements of the St. John's River Water Management District and the CITY's NPDES program for control of discharge of total suspended matter, and shall prevent water and wind erosion of open excavations and swales. Page 13 of 26 (v) Maintenance of Lines and Grades - The CONTRACTOR shall furnish all stakes, templates and other materials or equipment necessary for establishing and maintaining the lines and grades necessary for complete control over the Work, at the CONTRACTOR's expense (w) Sampling and Testing - Except as otherwise provided, sampling and testing of all materials, and the laboratory methods and testing equipment, required under the Specifications shall be in accordance with the latest standards or tenets of the American Society for Testing Materials. All sampling and testing shall be the CONTRACTOR's responsibility. The price for the sampling and testing, including travel and per diem costs, are included in various bid items and shall be made at the expense of the CONTRACTOR, except where indicated otherwise. The CONTRACTOR shall furnish any required samples without charge. Any re -testing required as a result of failure of the prior testing shall also be at the CONTRACTOR's expense. (x) Taxes and Governmental Fees - Unless otherwise provided in the Agreement, CONTRACTOR shall pay all sales, use and other similar taxes and shall secure and pay for all permits and governmental fees, licenses and inspections necessary for proper execution and completion of its obligations hereunder. Should payment be made by the CITY, the CONTRACTOR shall promptly make reimbursement to the CITY. (y) Time is of Vital Importance — It is agreed and understood that time is of vital importance with respect to the completion date for the Work and all other provisions of the Contract Documents. (z) Coordination and Scheduling - The CONTRACTOR shall coordinate its work with other contractors, the CITY, and utilities to assure orderly and expeditious progress of the Work. The CONTRACTOR's schedules are subject to the approval of the CITY, which shall not be unreasonably withheld, and shall reflect a logical sequence of the various components of work and the anticipated progress necessary to complete the Work on or before the completion date. Said schedules shall be submitted prior to the start of the Work and shall be updated and resubmitted each month with the CONTRACTOR's pay request. The CONTRACTOR shall complete, in an acceptable manner, all of the Work in the time stated in the Contract Agreement and any Addenda or Change Orders thereto. 10. Quality of Equipment and Materials - The Specifications may refer to certain products by name and catalog number. This is not to be construed as eliminating from competition other products of equal or better quality by other manufactures where fully suitable in design. All proposals for substitutions shall be submitted to the CITY in writing by the CONTRACTOR and not by individual trades or material suppliers. Any substitutions must be equal or superior to that specified in the Contract and in all cases the burden of providing adequate proof to the CITY shall rest with the Page 14 of 26 CONTRACTOR. The CITY, at its sole discretion and judgement, will advise of approval or disapproval of proposed substitutions in writing within a reasonable time. The CONTRACTOR shall abide by the CITY's judgement when proposed substitutions are judged to be unacceptable. The CITY shall receive the full benefit of any savings in cost involved in any acceptable substitution. 11. Laws to be Observed — The CONTRACTOR shall give all notices and comply with all Federal, State and local laws, ordinances, permit requirements and regulations in any manner affecting the conduct of the Work, and all such orders and decrees as enacted by bodies or tribunals having any jurisdiction or authority over the Work, and shall indemnify and save harmless the CITY against any expense, claim or liability arising from, or based on, the violation of any such law, ordinance, regulation, permit requirements, order or decree, whether by CONTRACTOR or its employees. The failure of the CONTRACTOR to adhere to any known law or regulation pertaining to furnishing services under this Agreement shall constitute a material breach of this Agreement. The CONTRACTOR shall keep fully informed of all existing and pending state and national laws and municipal ordinances and regulations in any manner affecting those engaged or employed in the Work, or in any way affecting the conduct of tribunals having any jurisdiction or authority over the a same. If any discrepancy or inconsistency is discovered in the Plans, Specifications, or Contract for this work in relation to any such law, ordinance, regulations, order or decree, CONTRACTOR shall forthwith report the same to the CITY in writing. CONTRACTOR shall at all times himself observe and comply with and cause all its agents, Sub -contractors and employees to observe and comply with decrees; and shall protect and indemnify the CITY, its officers, employees and agents against any expense, claim or liability arising from or based upon violation of any such law, ordinance, regulations, orders or decree, whether by CONTRACTOR or its employees. All building construction work alterations, repairs or mechanical installations and appliances connected therewith shall comply with the applicable building rules and regulations, restrictions and reservations of record, local ordinances and such other statutory provisions pertaining to this class of work. 12. General Indemnification — For other and additional good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR shall and does hereby indemnify, hold harmless and defend the CITY of Sebastian, its officers, agents, officials, representatives and employees against any and all liability, loss, cost, damages, expenses, claim or actions, or whatever type, including but not limited to attorney's fees and suit costs, for trial and appeal which the CITY of Sebastian, its officers, officials, agents, official representatives or employees or any other person(s) or business entity(ies) who may hereafter sustain, incur or be required to pay, arising wholly or in part due to any act or omission of CONTRACTOR, its agent(s), vendors, Sub-contractor(s), representatives, servants, or employees in the execution, performance or nonperformance or failure to adequately perform CONTRACTOR's obligations pursuant to this Contract. Nothing is this Agreement shall be construed to affect in any way CITY's sovereign or other governmental immunity as set forth in Florida Statute 768.28, or otherwise provided by law. Page 15 of 26 13. Supervision and Administration: (a) Review by CITY - All work done shall be subject to the review of the CITY. Any and all technical questions which may arise as to the quality and acceptability of materials furnished, Work performed, or Work to be performed, specification interpretations and all technical questions as to the acceptable fulfillment of the Contract on the part of the CONTRACTOR shall be determined by the CITY. (b) Use of Inspectors - All materials and each part or detail of the Work shall be subject at all times to review by the CITY. The CITY may appoint Inspectors. The CONTRACTOR will be held strictly to the true intent of the Specifications in regard to quality of materials, workmanship, and the diligent execution of the Contract. Any material furnished under the Specifications is subject to such inspection. The CITY or Inspectors may give written notice to the CONTRACTOR of any materials, equipment or Work which does not satisfactorily meet the Specifications. Any defective Work, whether the result of poor workmanship, use of defective materials, damaged through carelessness or from other cause, shall be promptly removed and or corrected by the CONTRACTOR at the CONTRACTOR's expense. The fact that the CITY may have previously overlooked such defective Work shall not constitute and acceptance of any part of it. (c) Suspension of Work - The CITY shall have the authority to suspend the Work wholly or in part, for such periods as may be deemed necessary and for whatever cause, to include but not be limited to, unsuitable weather or such other conditions as are considered unfavorable for prosecution of the Work, failure on the part of the CONTRACTOR to carry out the provisions of the Contract or to supply materials meeting the requirements of the Specifications, or the action of a governmental agency, by serving written notice of suspension to the CONTRACTOR. The CONTRACTOR shall not suspend operations under the provisions of this Paragraph without the CITY's permission. (d) CITY Correction of Deficiencies - Upon failure of the CONTRACTOR to perform the work in accordance with the Contract Documents, including any requirements with respect to the Schedule of Completion, and after five (5) days written notice to the CONTRACTOR, the CITY may, without prejudice to any other remedy the CITY may have, correct such deficiencies. The CONTRACTOR shall be charged all costs incurred to correct deficiencies. (e) Termination Without Cause by CITY - This Agreement may be terminated by the CITY without cause provided at least thirty (30) days written notice of such termination shall be given to the CONTRACTOR. In the event the CITY without cause abandons, terminates or suspends this Agreement, the CONTRACTOR shall be compensated for services rendered up to the time of such termination and any Work completed by the CONTRACTOR shall remain the property of the CITY. Acceptable materials ordered by the CONTRACTOR Page 16 of 26 or delivered on the site before the date of cancellation or suspension of the Work shall be purchased from the CONTRACTOR by the CITY at actual cost and shall thereupon become the property of the CITY but no allowance will be made for the CONTRACTOR's anticipated profits. (f) Termination With Cause by the CITY - In the event of any default by the CONTRACTOR, the CITY shall have the right and cause to immediately terminate the Contract upon issuance of written notice of the CITY's intention to immediately terminate the Contract in ten (10) days to the CONTRACTOR, stating the cause(s) for such action and the CITY's intention to terminate the Contract unless the CONTRACTOR cures the cause(s) prior to that time. It shall be considered a default by the CONTRACTOR whenever CONTRACTOR shall: (1) Declare bankruptcy, become insolvent or assign his assets for the benefit of his creditors. (2) Disregard or violate the provisions of the Contract Documents or CITY's written instructions, or fail to prosecute the Work according to the agreed schedule of completion including extensions thereof. (3) Fail to provide a qualified superintendent, competent workers or sub- contractors, or proper materials, or fail to make prompt payment for same. (4) In the event of termination for cause, including abandonment or termination, the CITY may take possession of the Work and of all materials, tools and equipment thereon and may finish the Work by whatever methods and means it may select. The CITY may enter into an agreement with others for the completion of the Work under this Agreement and the CONTRACTOR shall be held harmless for the work of others. No further payments shall be due the CONTRACTOR until the Work is completed and accepted by the CITY. If the unpaid balance of the contract amount shall exceed the cost of completing the Work including all overhead costs, CONTRACTOR shall be paid up to the amount of the excess balance on a quantum merit basis for the actual cost of materials, tools and equipment that the CITY had taken possession, but with no allowance made for the CONTRACTOR's anticipated profits, and for the Work done up to the time of the termination. If the cost of completing the Work, including other expenses incurred by the CITY through the CONTRACTOR's default, shall exceed the unpaid balance, the CONTRACTOR or its Surety shall pay the extra amount to the CITY. (g) Cooperation With Other CONTRACTORS - The CITY may let other contracts in connection with the Work of the CONTRACTOR. The CONTRACTOR shall cooperate with other CONTRACTORS with regard to storage of materials and execution of their work. It shall be the Page 17 of 26 CONTRACTOR's responsibility to inspect all work by other CONTRACTORS affecting CONTRACTOR's work and to report to the CITY any irregularities that will not permit completion of Work in a satisfactory manner. CONTRACTOR's failure to notify the CITY of such irregularities shall indicate the Work of other CONTRACTORs has been satisfactorily completed. It shall be the responsibility of the CONTRACTOR to inspect the completed Work in place and report to the CITY immediately any difference between completed Work by others and the Plans. Whenever work being done by the CITY's forces or by other CONTRACTORS is contiguous to Work covered by the Contract, the respective rights of the various interests involved shall be established by the CITY, to secure the completion of the various portions of the Work in general harmony. (h) Use of Sub -contractors - Prior to signing the Contract or at the time specified by the CITY, the CONTRACTOR shall submit in writing to the CITY the names of the Sub -contractors proposed for the Work. Sub -contractors may not be changed except at the request or with the approval of the CITY. The CONTRACTOR is responsible to the CITY for the acts and omissions of its Sub -contractors and their direct or indirect employees, to the same extent as he is responsible for the acts and omissions of its employees. The Contract Documents shall not be construed as creating a contractual relation between any Sub -contractors and the CITY. The CONTRACTOR shall bind every Sub- contractor by the terms of the Contract Documents. For convenience of reference and to facilitate the letting of contracts and subcontracts, the Specifications are separated into title sections. Such separations shall not, however, operate to make the CITY an arbiter to establish limits to the Contracts between the CONTRACTOR and Sub -contractor. (i) Emergency Work - The CONTRACTOR shall perform any work and shall furnish and install materials and equipment necessary during an emergency endangering life or property. In all cases, CONTRACTOR shall notify the CITY of the emergency as soon as practicable, but shall not wait for instructions before proceeding to properly protect both life and property. (j) Night or Weekend Work - No night or Saturday and Sunday work will be permitted, except in case of emergency, or with prior approval from the CITY. This clause shall not pertain to crews organized to perform restoration work which needs no verifying inspection, maintenance work on equipment, or to operate and maintain special equipment such as dewatering pumps which may be required to work twenty four (24) hours per day. All such night, Saturday and/or Sunday Work must be authorized by the CITY. (k) Unauthorized Work - Work done without lines and grades having been established, work done without proper inspection, or any changes made or extra work done without written authority will be done at the CONTRACTOR's risk Page 18 of 26 and will be considered unauthorized, and, at the option of the CITY, may not be measured and paid for. (1) Cleaning Up — At all times, the CONTRACTOR shall keep the Work site free from accumulation of waste materials or rubbish caused by its employees or Work. At the completion of the Work, CONTRACTOR shall remove all rubbish, tools, and surplus materials and shall leave the Work "broom clean" or its equivalent, unless more exactly specified, and shall insure that all debris and other unsightly objects are removed and disposed of in a satisfactory manner. At no additional expense to the CITY, the CONTRACTOR will restore to their original conditions or better, as nearly as practicable, those portions of the Work site not designated for alteration and all such property, structure, utilities, landscaping, etc. disturbed or damaged during the prosecution of the Work. Final payment will be withheld until such clean up and repairs are completed. In the event the CITY finds that the CONTRACTOR has not complied in keeping the job site clean, the CITY may, after twenty-four (24) hours written notice to the CONTRACTOR to correct the situation, elect to have the Work site cleaned by an independent labor force, with the cost of cleaning deducted from moneys due the CONTRACTOR. (m) Use of Completed Portions of Work - The CITY shall have the right to use, occupy, or place into operation any portion of the Work that has been completed sufficiently to permit safe use, occupancy, or operation. If such use, occupancy, or operation increases the cost of or delays the Work, the CONTRACTOR shall be entitled to extra compensation, or an extension of time, or both as detemrined by the CITY. However, if CONTRACTOR has failed to complete the Work in accordance with the Time requirements of the Agreement, compensation (including set -offs for liquidated damages) shall be allowed for such use or occupancy. (n) CONTRACTOR's Responsibility Until Acceptance - Until acceptance of the Work by the CITY, it shall be under the charge and care of the CONTRACTOR, and he shall take every necessary precaution against injury or damage to the Work by the action of the elements or from any other cause whatsoever, whether arising from the execution or from the non -execution of the Work. The CONTRACTOR shall rebuild, repair, restore andmake good, without additional compensation, all injury or damage to any portion of the Work occasioned by any cause, other than the sole and active negligence of the CITY, before its completion and acceptance. 14. Extension of Time - No extension of time shall be valid unless given in writing by the CITY. No monetary compensation shall be given for such delay. A delay beyond the CONTRACTOR's control occasioned by an "Act of God" may entitle the CONTRACTOR to an extension of time in which to complete the Work as determined by the CITY provided, however, the CONTRACTOR shall immediately give written notice to the CITY of the cause of such delay. "Rain Day" extensions shall be granted upon written request of the CONTRACTOR to the CITY's Project Manager when said Page 19 of 26 Project Manager determines that weather conditions make it counterproductive to work on said days. "Rain Day" request must be submitted at the end of each work week or be waived, and the cumulative "Rain Day" extensions granted shall be processed as a Change Order with each pay submittal. 16. Correction of Work and Guarantee - CONTRACTOR shall, at no cost to the CITY, promptly correct Work failing to conform to requirements of the Contract Documents, whether observed before or after completion of the Work and whether or not fabricated, installed or completed, and shall correct any Work found to be not in accordance with the requirements of the Contract Documents within a period of three (3) years from the date of completion of the Work or by the terms of an applicable special warranty required by the Contract Documents. The provisions of this paragraph apply to the Work done by Subcontractors as well as to the Work done by direct employees of the CONTRACTOR. Nothing contained in this Paragraph shall be construed to establish a period of limitation with respect to other obligations which the CONTRACTOR might have under the Contract Documents. Establishment of the time period of three (3) years as described above relates only to the specific obligation of the CONTRACTOR to correct the Work, and has no effect on the time within which the obligations of the Contract Documents may be enforced, nor to the time within which proceedings may be commenced to establish CONTRACTOR's liability with respect to the CONTRACTOR's remaining contractual obligations. 17. Liquidated Damages - In the event the CONTRACTOR violates or fails to perform any provision of the Contract Documents, then the CITY may elect to receive, and CONTRACTOR agrees to pay, liquidated damages in the amount of three hundred dollars ($300) per day beyond the agreed completion date. Inspection of the Work by the CITY and the subsequent issuance of a notice by the CITY indicating substantial completion will be the date used to signify work completion. If completion is beyond the schedule agreed upon, liquidated damages may be imposed by the CITY on the CONTRACTOR and will be withheld from payment. It is expressly acknowledged by CONTRACTOR that said payment shall not be interpreted nor construed as a penalty but is in fact a good faith attempt to fix damages which the CITY will suffer in the event CONTRACTOR fails to perform as required hereunder or violates any provision of the Contract Documents. 18. Failure to Require Performance - The failure of any of the parties at any time to require performance of any provision of the Agreement shall in no manner affect the right of such party at any later time to enforce or require the same unless waived in writing. No waiver by any party of any condition or breach shall be construed or deemed to be a waiver of any other condition or any other breach of any term, covenant or warranty contained in the Agreement. 19. CONTRACTOR Assurances: (a) The CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement and that it has not paid or Page 20 of 26 agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this paragraph the CITY shall have the right to terminate the Agreement without liability and, at its discretion, deduct from the Agreement price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. (b) No officers, members or employees of the CITY and no member of its governing body, and no other public official of the governing body of the CITY, who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreement which affects such person's personal interest, or have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. (c) The CONTRACTOR agrees that no Federal appropriated funds have been paid or will be paid by or on behalf of the CONTRACTOR to any person for influencing or attempting to influence any officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal Grant, the making of any Federal loan, the entering into any cooperative agreement and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan or cooperative agreement. If any funds other than Federal appropriated funds have been paid by the CONTRACTOR to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with this Agreement, the undersigned shall complete and submit Standard Form — "Disclosure Form to Report Lobbying" in accordance with its instructions. (d) The CONTRACTOR covenants that he presently has no interest and shall not acquire any interest, direct or indirect, which shall conflict in any manner or degree with the performance of services required to be performed under this Agreement. The CONTRACTOR further covenants that in the performance of this Agreement, no person having any such interest shall be employed. The CONTRACTOR shall not undertake any professional work which conflicts with his duties as the CITY's CONTRACTOR without the prior written consent of the CITY during the term of this Agreement. Any Work where the CONTRACTOR can reasonably anticipate that it may be called to testify as a witness against the CITY in any litigation or administrative proceeding will constitute a conflict of interest under this Agreement. 20. Public Entity Crimes - The CONTRACTOR shall have submitted the sworn statement entitled PUBLIC ENTITY CRIMES with the Bid, stating whether a person or affiliate Page 21 of 26 as defined in Section 287.133 (1) Florida Statutes, has been convicted of a public entity crime subsequent to July 1, 1989, in accordance with the provisions of said statute. 21. Drug -Free Workplace - The CONTRACTOR shall have submitted the sworn statement entitled DRUG-FREE WORKPLACE with the Bid, in accordance with Florida Statute 287.089. 22. Compliance with Other Laws - The CONTRACTOR shall comply with all applicable Federal laws that in any way regulate or impact the Work, including, but not limited to, The Clean Au Act (42 USC §7506©, The Endangered Species Act (16 USC §1531, et seq.), Executive Order No. 11593, Executive Order No. 11988, Executive Order No. 11990, The Fish and Wildlife Coordination Act (PL 85-624), The Safe Water Drinking Act Section 1424(e) (PL 93-523, as amended), The Wild and Scenic Rivers Act (PL 90- 542, as amended), The Demonstration Cities and Metropolitan Development Act of 1966 (PL 89-754), Section 306 of the Clean Air Act, Section 508 of the Clean Water Act, Executive Order No. 11738, The Civil Rights Act of 1964 (PL 88-352), The Age Discrimination Act (PL 94-135), Section 13 of The Federal Water Pollution Control Act (PL 92-500), Executive Order No. 11246, Executive Order No. 11625, Executive Order No. 12138, Executive Order No. 12549, The Davis Bacon Act (40 USC §276), the Occupational Safety and Health Act and applicable regulations, and the American with Disabilities Act (PL 101-336). 23. Insurance - The CONTRACTOR agrees to carry insurance, of the types and subject to the limits as set forth below and maintain said insurance during the life of this Agreement: (a) Workers' Compensation shall be maintained as required by law. (b) Commercial General Liability shall be maintained with a combined single limit of at least $3,000,000. (c) Commercial Auto Liability shall be maintained with a combined single limit of at least $1,000,000. (d) Such insurance shall also be maintained as is reasonably required to satisfy the CONTRACTOR's obligations to rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the Work before its completion and acceptance by the CITY. The Insurance Company selected shall be A+ or better per the Best's Key Rating Guide. The CONTRACTOR shall not commence the Work under this Contract until the CONTRACTOR has obtained all the insurance required and certificates proving such insurance has been obtained. The Insurance Policies must name the CITY as an additional insured party. It is the full responsibility of the CONTRACTOR to insure that all Sub -contractors also have the full insurance coverages as stated above. The CONTRACTOR and the Insurance Company(s) shall agree to furnish the CITY thirty (30) days written notice of their intent to modify and/or cancel or otherwise terminate Page 22 of 26 the above coverages. It is the intent that the specified Insurance Policies and coverages shall protect the CITY and the CONTRACTOR and any Sub -contractor performing work under this Contract from all claims and liability for damages for bodily injury, including accidental death, whether by the CONTRACTOR or any Sub -contractor or by any one directly or indirectly employed by either one of them. 24. Bond: The CONTRACTOR shall provide Bonds in the form prescribed by State Law, and generally as shown in these Documents, for Performance and Payment, each in the amount of 100% of the total Contract amount. 25. Indemnification and Hold Harmless: The CONTRACTOR shall indemnify and hold the CITY harmless from any and all personal injury or property damage claims, liabilities, losses or causes of action which may arise out of the use and occupancy of the property by the CONTRACTOR, its family, associates, Sub -contractors, agents, employees, customers and attendees. Nothing in this agreement shall be construed as the CITY waiving its immunity pursuant to §768.28, et seq., Florida Statutes, or any other sovereign or governmental immunity. The Agreement shall not be construed to create a contractual relationship of any kind between the CITY and the Sub- contractor(s), or between any person or firm other than the CITY and CONTRACTOR. 26. Notices: All notices given under or in connection with any of the Contract Documents shall be delivered in person or by telegraph or email (confirmed) or registered or certified mail to the parties at the address as either party may by notice designate. Written notice shall be considered served when delivered to the designated representative of the CONTRACTOR and receipt acknowledged or sent by registered mail to the individual, firm, or corporation to the business address stated in the Bid Proposal. It shall be the duty of each party to advise the other parties to the Contract as to any changes in his business address until completion of the Contract. 27. No Waiver of Legal Rights — Neither the payment for, nor acceptance of the whole or any part of the Work by the CITY or representatives of the CITY, nor any extension of time, nor the withholding of payments, nor any possession taken by the CITY, nor the termination of employment of the CONTRACTOR shall operate as a waiver of any portion of the Contract or any power therein reserved or any right therein reserved or any right therein provided, nor shall the waiver by the CITY of any of the CONTRACTOR's obligations or duties under this Agreement constitute a waiver of any other obligation or duty of the CONTRACTOR under this Agreement. 28. Right to Work Product — No reports, data, programs or other material produced in whole or in part under this Agreement shall be subject to copyright by the CONTRACTOR, in the United States or in any other country. The CITY or its assigns shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, programs or other material prepared under this Agreement. All tracings, plans, specifications, maps, computer programs and data prepared or obtained under this Agreement shall remain the property of the CITY. Any Page 23 of 26 use of any plans and specifications by the CITY except the use reasonably contemplated by the CITY at the time the CITY entered this Agreement will be at the CITY's risk and CONTRACTOR, its officers, directors and employees will be held harmless from such use. 29. Term of Contract: (a) Contract term is for six (6) years, commencing on April 24, 2019 and ending on April 23, 2025. At its discretion, The CITY of Sebastian may offer and with mutual agreement of the Parties, two (2) additional three (3) year extensions to this Agreement under the same terms and conditions. (b) Rate adjustments may be requested one time each year of the agreement based on the Consumer Price Index for all urban consumers for the Southeastern US, all items, 1982-84 equals 100, as published by the U.S. Department of Labor, Bureau of Labor Statistics ("CPI"). Should the CPI be discontinued or substantially modified, then an alternate index shall be chosen by mutual agreement of the CITY and CONTRACTOR. The CONTRACTOR may request additional rate changes based on extreme circumstances beyond the CONTRACTORS control. The CITY in its sole discretion may approve or deny such request. 30. Public Records Form: In accordance with the requirements of Chapter 119 Florida Statutes, as amended, the Contract between the CITY of Sebastian and the CONTRACTOR shall require the CONTRACTOR to: a) Comply with the public records law of the State of Florida, as the same may be amended from time to time. b) Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform services, and c) Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in Chapter 119 Florida Statues or as otherwise provided by law, and d) Meet all requirements of retaining public records and transfer, at no cost, to the CITY all public records in possession of the CONTRACTOR upon termination of the contact and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY. e) IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119 , FLORIDA STATUTES TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT JEANETTE WILLIAMS, THE CUSTODIAN OF Page 24 of 26 PUBLIC RECORDS AT PHONE 1-772-388-8215 OR EMAIL TO JWILLIAMS@CITY OF SEBASTIAN.ORG OR NORMAL MAIL AT CITY- OF ITYOF SEBASTIAN, 1225 MAIN STREET SEBASTIAN, FLORIDA. 31. Governing Law/Venue: This Agreement shall be governed and construed in accordance with Florida Law. In the event that litigation arises involving the parties to this Agreement, venue for such litigation shall be in Indian River County, Florida. The parties hereto shall, and they hereby do, waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way related to this Agreement. 32. Conflict and Discrepancies: In the event of any conflict between the provisions of this Agreement and any other Contract Documents, the provisions of this Agreement shall prevail and govern over all except a subsequently executed Contract Addendum. Any discrepancies found, or any errors or omissions in the Specifications, shall be immediately reported to the CITY. The CITY shall promptly determine the validity and seriousness of the claimed condition and correct any such error or omission in writing, or otherwise direct the CONTRACTOR. Any work done by the CONTRACTOR after his discovery of such discrepancies, errors or omissions shall be done at the CONTRACTOR's risk. CONTRACTOR shall not be allowed to take advantage of any errors or omissions in the technical provisions of the Specifications. The CITY will provide full information when errors or omissions are discovered. 33. Integration: The drafting, execution and delivery of this Agreement by the parties have been induced by no representations, statements, warranties or agreements other than those expressed in it. This Agreement including the CONTRACTORS Bid Proposal contains the entire agreement between the parties and there are no further or other agreements or understandings written or oral in effect between the parties relating to its subject matter. This Agreement cannot be changed or modified except by written instrument executed by all parties hereto. This Agreement and the terms and conditions hereto apply to, and are binding upon, the legal representatives, successors, and assigns of both parties. 34. Severability: If any term of this Agreement or the application thereof to any person or circumstances shall be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Page 25 of 26 F-TeTIN&M Asphalt Paving Systems, Inc. 9021 Wire Road ZephyrhMs, FL 33540 Paul Carlisle, CITY Manager City of Sebastian, FL y Siaure Date ,�g�amre Rd 4rriAres�µ�— Printed � Name/Title I IN WITNESS WHEREOF, the CITY has hereunto subscribed and CONTRACTOR has affixed its name on the date first set forth above. ATTEST: ,t�rne�e Je tte Williams, MMC CI Clerk Approved as to Form and Legality for Relianc e CITY of Sebastian only: Ja b. Stokes, Attorney Page 26 of 26