HomeMy WebLinkAbout2019 AgreementAGREEMENT
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 Pavement Technoloev. 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 finds 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.
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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 party
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;
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(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.
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(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 furnished 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
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(1) 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 terns 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
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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.
7. 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. Ih 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 Sworn 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 form(s) 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
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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 subcontractor'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.
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(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
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concerting 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
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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.
(p) 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
borne 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
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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.
0) 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
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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 fust 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
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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 famish 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 hamdess 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 famished, 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 cant' 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:
(I) 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 determined
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 and make 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 Sub -contractors 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 Air Act (42 USC §75060, 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
atleast$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
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PUBLIC RECORDS AT PHONE 1-772-388-8215 OR EMAIL TO
JWILLIAMS@CITY OF SEBASTIAMORG OR NORMAL MAIL AT CITY
OF 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
AGREED:
Pavement Technology, Inc.
24144 Detroit Road
Westlake, OH 44145
(C�
S azure Date
S5SGn DUruv�te
LrctGyU I Trtasurrr
Printed Name/Title
Paul Carlisle, CITY Manager
City of Sebastian, FL - - - - - -
gnamre Date
IN WITNESS WHEREOF, the CITY has hereunto subscribed and CONTRACTOR has
affixed its name on the date fast set forth above.
ATTEST:
nette William MMC
ITP Clerk
Approved as to Form and Legality for
Reliance by the CITY of Sebastian only:
James D,Xt6kes, CITY ttomey
Page 26 of 26
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. In 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 (1), 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
wil I notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of chapter 893
or of any 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 a tatement, I ce '£y -that this firm complies fully with the above requirements.
t
Proposer'ture
Susan J. OumnS etaryrrmasurer
HHH
SWORN STATEMENT PURSUANT TO SECTION 287.133(31(aL
FLORIDA 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 Susan J. Durante, Secreta(`(/Treasurer
(print individual's name and title)
for Pavement Technology, Inc.
(print name of entity submitting sworn statement)
2. Whoseaddressis
24144 Detroit Road
Westlake, Ohio 44145
and (ifapplicable) its Federal Employer Identification Number (FEIN) is
(ifthe 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(I)(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, fraud, theft, bribery, collusion, racketeering, conspiracy, or material
misrepresentation.
4. I understand that "convicted" or "conviction as defined in paragraph 287.133(I)(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 federal or state trial court of record relating to charges brought by indictment or
information after July I, 1989, as a result of ajury verdict, non -jury trial or entry of a plea of guilty or
nolo contendere.
5. 1 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 term "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.
I understand that a "person" as defined in Paragraph 287.133(1)(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 1 have marked below, is true in relation to the
entity submitting this sworn 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 cut ity, nor any
affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July
I, 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 Hearing Officer of the State of
Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer
determined that it was not in the public interest to place the entity submitting this sworn statement on
the convicted vendor list. (Attach a copy of the final 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 31 OF THE CALENDAR
YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM RE D TO INFORM THE
PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXC SS F THE THRESHOLD
AMOUNT PROVIDED IN SECTION 287.017, F .�tDA STATUTES FOR AT GORY TWO OF ANY
CHANGE IN THE INFORMATION CONTAIN Er IN T IS FORM.
STATE OF $$ U%1/D an J. Dura ermasumr
COUNTY 6y/?17'99
The foregoin . strume t was acknowledged efore me this ��:Fz22 day of �p�i/ 20& by
.�' saa , _I . {+� as of irnv.14' Na�/vwrli� �! . who is personally known
to me or has pro ed r —JC� as identification. ,--�� /�����
SEAL: Notary Signature:
Notary Name LISA A. TRIFILETTI-PALOS
Notary Public, State of Ohio
My Commission Eapirm Jan. 17, 20a�
10 10 10J