HomeMy WebLinkAbout2024 AgreementITB #24-05
Construction of Pre-Engineered Metal Buildings for Sebastian Municipal Airport Page 1 of 32
AGREEMENT
THIS AGREEMENT made and entered into this 10th day of April, 2024, by and between the
City of Sebastian, 1225 Main Street, Sebastian, FL 32958 a Florida municipal corporation (CITY) and
Island Harbor Custom Builders, LLC (FEIN: 83-2289484) located at 8800 US Hwy 1, STE 1, Sebastian,
FL 32958, (CONTRACTOR), (Parties);
WHEREAS, the CITY desires to retain the CONTRACTOR for the Project as expressed in its
Invitation to Bid No. 24-05, Construction of Pre-Engineered Metal Buildings for Sebastian
Municipal Airport, which was opened on March 14, 2024; and
WHEREAS, the CONTRACTOR has expressed its willingness, ability, capability, experience
and time to perform the necessary Work to accomplish the Project at the cost proposed by the
CONTRACTOR.
NOW, THEREFORE, the CITY and the CONTRACTOR, in consideration of the mutual
covenants and conditions contained herein and for other good and valuable consideration, the receipt and
sufficiency is hereby acknowledged, agree as follows:
ARTICLE 1 – DEFINITIONS
Wherever used in this Agreement or in other Contract Documents, the fol lowing terms have the meanings
indicated which are applicable to both the singular and plural forms:
1.1 Agreement – This written agreement between the CITY and the CONTRACTOR covering the
Work to be performed at the cost proposed, including other Contract Documents that are attached
to or incorporated in the Agreement.
1.2 Application for Payment – The form accepted by the CITY which is to be used by the
CONTRACTOR in requesting progress or final payment and which is to include such supporting
documentation as is required by the Contract Documents.
1.3 Approve – The word approve is defined to mean review of the material, equipment or methods
for general compliance with the design concepts and with the information g iven in the Contract
Documents. It does not imply a responsibility on the part of the CITY to verify in every detail
conformance with plans and specifications.
1.4 Bid – The offer or Bid of the CONTRACTOR submitted on the prescribed form setting forth the
total prices for the Work to be performed.
1.5 Bid Documents – The Advertisement for Invitation for Bids, the Instructions to Bidders, the Bid
Form (with supplemental affidavits and agreements), the Contract Forms, these General
Conditions, the Supplementary Conditions, the Specifications, and the Plans, which documents
all become an integral part of the Contract Documents.
1.6 Certificate of Substantial Completion – Certificate provided by the CITY certifying that all Work,
excluding the punch list items, has been completed, inspected, and accepted by the CITY.
1.7 Change Order – A written order to the CONTRACTOR, signed by the CITY and the
CONTRACTOR authorizing an addition, deletion or revision in the Work, or an adjustment in the
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Contract Price or the Contract Time issued on or after the Effective Date of the Agreement.
1.8 CITY – The City of Sebastian, Florida, including but not limited to its employees, agents,
officials, representative, contractors, subcontractors, volunteers, successors and assigns, with
whom the CONTRACTOR has entered into the Agreement and for whom th e Work is to be
provided. The Project Manager, or designee, shall be the aut horized agent for the CITY unless
otherwise specified.
1.9 Contract Documents – The Contract Documents shall consist of the Drawings, Plans and
Specifications, Notice of Award, Bid documents, Notice to Proceed, Certificate(s) of Insurance,
Payment and Performance Bonds and any additional documents that are required to be submitted
under the Agreement, and all amendments, modifications and supplements, change orders and
Work directive changes issued on or after the Effective Date of the Agreement; and as further
determined in Article 4 of this Agreement.
1.10 Contract Price – The moneys payable by the CITY to the CONTRACTOR in the Agreement
submitted by the CONTRACTOR to complete the Work and as stated in this Agreement.
1.11 Contract Time – The number of calendar days stated in the agreement for the completion of the
Work. The dates on which the Work shall be started and shall be completed as stated in the
Notice to Proceed.
1.12 CONTRACTOR – The person, firm or corporation with whom the CITY has entered into the
Agreement, including but not limited to its employees, agents, representatives, contractors,
subcontractors, their subcontractors and their other successors and assigns.
1.13 Cost of the Work – means the sum to be paid for the construction and completion of the Work in
accordance with this Agreement. (See Contract Price)
1.14 Day – A calendar day of twenty-four (24) hours ending at midnight.
1.15 Defective – An adjective which when modifying the word “Work” refers to Work that is
unsatisfactory, faulty, or deficient, or does not conform to the Contract Documents or does
not meet the requirements of any inspection, test or approval referred to in the Contract
Documents, or has been damaged prior to the Project Manager’s recommendation of final
payment.
1.16 Effective Date of the Agreement – The date indicated in the Agreement on which it becomes
effective, but if no such date is indicated, it means the date on which the Agreement is signed and
delivered by the last of the Parties to sign and deliver.
1.17 Engineer of Record – A professional engineer who seals drawings, reports, or documents for the
Work.
1.18 Final Completion Date – The date the Work is actually and finally completed, including
completion of the final punch list, and delivered along with those items specified in the
Agreement and the Work is inspected and accepted by the CITY.
1.19 Hazardous Materials (HAZMAT) – Any solid, liquid, or gaseous material that is toxic,
flammable, radioactive, corrosive, chemically r eactive, or unstable upon prolonged storage in
quantities that could pose a threat to life, property, or the environment defined in Section
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101(14) of Comprehensive Environmental Response, Compensation and Liability Act of 1980
and in 40 CFR 300.6). Also defined by 49 CFR 171.8 as a substance or material designated by the
Secretary of Transportation to be capable of posing an unreasonable risk to health, safety, and
property when transported in commerce and which has been so designated. See definition of
hazardous substance.
1.20 Hazardous Substance – As defined by Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act; any substance designated pursuant to Section 311(b)
(2) (A) of the Clean Water Act; a ny element, compound, mixture, solution or substance
designated pursuant to Section 102 identified under or listed pursuant to Section 3001 of the Solid
Waste Disposal Act (but not including any waste listed under Section 307[a] of the Clean Water
Act); any hazardous air pollutant listed under Section 112 of the Clean Air Act; and any
imminently hazardous chemical substance or mixture pursuant to Section 7 of the Toxic
Substances Control Act. The term does not include petroleum, including crude oil or any f raction
thereof, which is not otherwise specifically listed or designated as a hazardous substance in the
first sentence of this paragraph, and the term does not include natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such
synthetic gas).
1.21 Hazardous Waste – Those solid wastes designated by OSHA in accordance with 40 CFR 261 due
to the properties of ignitability, corrosi vity, reactivity, or toxicity. Any material that is subject to
the Hazardous Waste Manifest requirements of the EPA specified in 40 CFR Part 262.
1.22 Holidays – Those designated non-workdays as established by the City Council of the City of
Sebastian. Includes New Year’s Day, Martin Luther King Jr. Day, President’s Day, Memorial
Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day, day after Thanksgiving
Day, Christmas Eve, Christmas Day, or any other holidays as approved by City Council.
1.23 Inspection – The term “inspection” and the act of inspecting means the examination of
construction of the Work by the Project Manager or the Project Manager’s designated
representative to ensure that it conforms to the design concept and quality expressed in the plans
and specifications. This term shall not be construed to mean supervision, superintending and/or
overseeing.
1.24 Notice of Award – The written notice by CITY to the CONTRACTOR stating that upon
compliance by the CONTRACTOR with the conditions precedent enumerated therein, within the
time specified that the CITY will sign and deliver this Agreement.
1.25 Notice to Proceed – A written notice given by the CITY to the CONTRACTOR fixing the date on
which the Contract Time will commence to run and on which the Contr act Time will end.
1.26 Plans – The drawings which show the character and scope of the Work to be performed and
which have been prepared or approved by the CITY and are referred to in the Contract
Documents.
1.27 Pre-Construction Meeting – A meeting scheduled by the Project Manager following issuance of
the Notice to Proceed. The purpose of the meeting is to discuss the project plans and
specifications, any unusual conditions, federal or state requirements, permit requirements,
training (if applicable), and any other items that will result in a better understanding among the
involved parties. In addition, the CONTRACTOR will discuss the schedule of operation, type and
adequacy of equipment, sources of labor and labor requirements, maintena nce of traffic, and
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precautions for the safet y of employees and the public. This meeting must be attended by the
Project Manager, the CONTRACTOR, key subcontractors, the CITY inspector, and others as
deemed necessary by the Project Manager.
1.28 Premises (ot herwise known as Work Site) – means the lands, buildings, facilities, etc. upon which
the Work is to be performed.
1.29 Project – The total construction of the Work to be provided as defined in the Contract
Documents.
1.30 Project Manager – The employee of the City, or other designated individual who is herein
referred to as the Project Manager, will assume all duties and responsibilities and will have the
rights and authorities assigned to the Project Manager in the contract Documents in
connection with completion of the Work in accordance with this Agreement.
1.31 Proposed Price – The amount proposed by the CONTRACTOR to complete all the Work, which
amount induced the CITY to select the CONTRACTOR as the successful Bidder and to whom
the Notice of Award will be delivered who be known and considered the successful Bidder.
1.32 Punch List – The CITY’s list of Work yet to be done or be corrected by the CONTRACTOR
before the Final Completion date can be determined by the CITY
1.33 Record Documents – A complete s et of all specifications, drawings, addenda, modifications, shop
drawings, submittals and samples annotated to show all changes made during the construction
process.
1.34 Record Drawings or “As-Builts” – A set of drawings which show significant changes in the work
made during construction and which are usually based on drawings marked up in the field and
other data furnished by the contractor. These documents will be signed and sealed by the
Engineer of Record or a Professional Land Surveyor licensed in the S tate of Florida.
1.35 Substantially Completed Date – A date that the CITY determines, after the CONTRACTOR has
requested in writing, that the Work is ready for an inspection and issuance of a punch list for the
Project.
1.36 Work – The entire, completed, delivered product or the various separately- identifiable parts
thereof, required to be furnished under the Contract Documents. Work is the result of performing
services, furnishing labor and furnishing and incorporating materials a nd equipment into the
product, all as required by the Contract Documents.
ARTICLE 2 - SCOPE OF WORK
2.1 The CONTRACTOR shall furnish and pay for all management, supervision, financing, labor,
materials, tools, fuel, supplies, utilities, equipment, and services of any kind or type necessary to
diligently, timely, and fully perform and complete all Work as specified or indicated in the
Contract Documents in a good and workmanlike manner. The Project for which the Work under
the Contract Documents may be the whole or only part is generally described as follows:
ITB #24-05
CONSTRUCTION OF PRE-ENGINEERED METAL BUILDINGS FOR SEBASTIAN
MUNICIPAL AIRPORT
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2.2 All Work for the Project shall be constructed in accordance with the Drawings and
Specifications.
2.3 Brief Description of Project: Contractor to build and construct pre-engineered metal buildings
(PEB) for the Sebastian Municipal Airport located at 70 Airport Drive, West, Sebastian, FL
32958. The project site has already been cleared and prepared. Buildi ng pads are cleared and
ready for minor grading to prepare for concrete slab forming, drainage work is in place and the
SJRWM District Permit has been obtained for the new impervious requirements.
ARTICLE 3 – PROJECT MANAGER
3.1 The Project Manager is hereby designated by the CITY to be:
Jeff Sabo
Airport Director
505 Airport Drive W
Sebastian, FL 32958
ARTICLE 4 - CONTRACT DOCUMENTS
4.1 The Contract Documents, which comprise the entire Agreement between the CITY and
CONTRACTOR, are attached to this Agreement, are made a part hereof and consist of the
following:
4.1.1 This Agreement.
4.1.2 Exhibits to this Agreement.
4.1.3 Performance Bond, Payment Bond and Certificates of Insurance.
4.1.4 Notice of Award and Notice to Proceed.
4.1.5 General Conditions as amended by the Supplementary Conditions.
4.1.6 Technical Specifications.
4.1.7 Plans
4.1.8 Addenda number 1 through 2, inclusive.
4.1.9 Bid documents.
4.1.10 All applicable provisions of State and Federal Law and any modification, including
Change Orders or written amendments duly delivered after execution of Agreement.
4.1.11 Schedule of Completion and Schedule of Values.
4.1.12 Permits on file with the CITY and or those p ermits to be obtained shall be considered
directive in nature and will be considered a part of this Agreement. A copy of all
permits shall be given to the CITY for inclusion in the Contract Documents. Terms of
permits shall be met prior to acceptance of the Work and release of the final payment.
4.1.13 There are no Contract Documents other than those listed in this Article 4. The Contract
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Documents may only be altered, amended, or repealed in accordance with the provisions
of the terms of this Agreement.
4.2 In the event of any conflict between the documents or any ambiguity or missing specification or
instruction, the following priority is established:
Priority 1: Specific direction from the City Manager (or designee).
Priority 2: This Agreement dated _____________________and any attachments.
Priority 3: Invitation to Bid #24-05, Construction of Pre-Engineered Metal Buildings for
Sebastian Municipal Airport and the specifications prepared by the CITY.
Priority 4: CONTRACTOR’s response to the Invitation to Bid #24-05, Construction of Pre-
Engineered Metal Buildings for Sebastian Municipal Airport dated March 14,
2024.
Priority 5: Schedule of Completion.
4.3 If during the performance of the Work, CONTRACTOR finds conflict, error, or discrepancy in
the Contract Documents, CONTRACTOR shall report it to the Project Manager, in writing,
within forty- eight (48) hours of the discovery of the conflict, error, or discrepancy. Before
proceeding with the Work affected by the conflict, error, or discrepancy, Contractor shall obtain a
written interpretation or clarification from the CITY.
4.4 It is the intent of the specifications and plans to describe a complete Project to be constructed in
accordance with the Contract Documents. Any Work that may be reasonably inferred from the
specifications or plans as being required to produce the intended result shall be supplied whether
or not it is specifically called for. When words that have a well-known technical or trade meaning
are used to describe Work, materials, or equipment, such words shall be interpreted in accordance
with such meaning. Reference to standard specifications, manuals, or codes of any technical
society, organization, or associations, or to the code of any governmental authority, whether such
reference be specific or implied, shall mean the latest standard specification, manual, or code in
effect as of the Effective Date of this Agreement, except as may be otherwise specifically stated.
No provision, however, of any referenced standard specification, manual, or code (whether or not
specifically incorporated by reference in the Contr act Documents) shall change the duties and
responsibilities of the CITY, the CONTRACTOR, or any of their agents, any subcontractors or
employees from those set forth in the Contract Documents.
ARTICLE 5 – CONTRACT TIME
5.1 The CONTRACTOR recognizes t hat TIME IS OF THE ESSENCE. The Contract Time shall
commence on the date set forth in a Notice to Proceed issued by the City to the Contractor. The
Work shall be:
Substantially Completed within one hundred and fifty (150) calendar days after the date when
the Contract Time commences to run as provided for in the Notice to Proceed, and
Finally completed on the Final Completion Date and ready for final payment in accordance with
this Agreement within one hundred and eighty (180) calendar days after the date when the
Contract Time commences to run as provided in the Notice to Proceed.
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ARTICLE 6 – GUARANTEED MAXIMUM PRICE
6.1 CITY shall pay CONTRACTOR for performance of the W ork in accordance with Article 7, subject
to additions and deletions by Change Order as provided for in this Agreement, the sum, not to
exceed ONE MILLION THREE HUNDRED FORTY THOUSAND DOLLARS AND NO
CENTS ($1,340,000.00)
The parties expressly agree that the Contract Price is a lump sum price, in accordance with those
items in the Bid, which are subject to unit prices.
The Contract Price constitutes the compensation payable to CONTRACTOR for performing the
Work plus any Work done pursuant to a Change Order. All duties responsibilities and obligations
assigned to or undertaken by CONTRACTOR shall be at CONTRACTOR’S expense without
change in the Contract Price.
ARTICLE 7 - PAYMENT PROCEDURES
7.1 CONTRACTOR shall submit Applications for Payment in accordance with the Contract
Documents. Applications for Payment will be processed by CITY as provided in the General
Terms and Conditions (see Section 2.23 of the Bid).
7.2 Progress Payments. CITY may make progress payments on account of the Contract Price. All
progress payments will be made on the basis of the progress of the Work completed and
consistent with §218.735 Florida Statutes.
7.2.1 First Application for Payment. The first Application for Payment shall be submitted no
earlier than thirty (30) days following the issuance of the NTP. Prior to submitting its first
Application for Payment, the Contractor shall submit to the City, for its review and
approval:
7.2.1.1 A schedule of values based upon the firm/fixed GMP, listing the major
elements of the Work and the dollar value for each element; and
7.2.1.2 A complete list of all its proposed subcontractors showing the work and
materials involved and the dollar amount of each proposed subcontract and
purchase order.
7.2.1.3 These submittals will be used as the basis for the submitted Applications for
Payment.
7.2.2 Monthly Applications for Payment. The Contractor shall submit each of its Applications
for Payment to the City on or before the 25th day of each month for work performed
during the previous month. Invoices received after the 25th day of each month shall be
considered for payment as part of the next month's application. Within ten (10) calendar
days after receipt of each Application for Payment, the City shall either:
7.2.2.1 Indicate approval of the requested payment;
7.2.2.2 Indicate approval of only a portion of the requested payment, stating in
writing the reasons therefore; or
7.2.2.3 Return the Application for Payment to the Contractor indicating, in writing,
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the reason for refusing to approve payment. In the event of a total or partial
denial of the Application for Payment, the Contractor may make the
necessary corrections and resubmit the Application for Payment for
reconsideration within ten (10) calendar da ys of receiving notice of refusal.
7.2.2.4 Monthly payments to the Contractor shall in no way imply approval or
acceptance of the Contractor’s work.
7.3 Retainage. Per Florida Statutes 255.078, City shall retain five percent (5%) of each monthly
payment as retainage. Such sum shall be accumulated and not released to the Contractor until
final payment is due. Release of any portion or percentage of sums retained pr ior to final
completion of the Project shall in no way imply approval or acceptance of work.
7.4 Withheld Payments. The City may decline to approve any Application for Payment, or portions
thereof, because of subsequently discovered evidence or subsequent inspections. The City may
nullify the whole or any part of any approval for payment previously issued and withhold any
payments otherwise due the Contractor under this Agreement, to such extent as may be necessary
in the City's opinion to protect it from loss because of: (a) defective Work not remedied; (b) third
party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of
the Contractor to make payment properly to subcontractors or for labor, materials or equipment;
(d) reasonable doubt that the Work can be completed for the unpaid balance of the GMP; or (e)
any other material breach of the Contract Documents. If these conditions are not remedied or
removed, the City may, after three (3) days written notice, rectify the s ame at the Contractor’s
expense. City also may offset against any sums due the Contractor the amount of any liquidated
or un-liquidated obligations of the Contractor to the City, whether relating to or arising out of this
Agreement
7.5 Payments to Subcontractors. Per Florida statute, 255.073, “When a contractor receives payment
from a public entity for labor, services, or materials furnished by subcontractors and suppliers
hired by the contractor, the contractor shall remit payment due to those subcontractors and
suppliers within 10 days after the contractor’s receipt of payment. When a subcontractor receives
payment from a contractor for labor, services, or materials furnished by subcontractors and
suppliers hired by the subcontractor, the subcontractor shall remit payment due to those
subcontractors and suppliers within 7 days after the subcontractor’s receipt of payment. This
subsection does not prohibit a contractor or subcontractor from disputing, pursuant to the terms of
the relevant contract, all or any p ortion of a payment alleged to be due to another party if the
contractor or subcontractor notifies the party whose payment is disputed, in writing, of the
amount in dispute and the actions required to cure the dispute. The contractor or subcontractor
must pay all undisputed amounts due within the time limits imposed by this subsection.”
7.6 Final Payment. Upon achieving Final Completion of the Work in accordance with the Contract
Documents, as they may be supplemented, the CITY shall pay CONTRACTOR an amount
sufficient to increase total payments to one-hundred percent (100%) of the Contract Price as may
be adjusted by liquidated damages and inspection fees owed by the CONTRACTOR, or other
additional charges in accordance with the Contract Documents, unless the City has grounds,
pursuant to §218.735(8)(c), Fla. Stat. for withholding all or a portion of the retainage payment;
provided, however, not less than five percent (5%) of the Contract Price shall be retained until
Record Drawings (as-builts), specifications, addenda, modifications and shop drawings, including
all manufacturers’ instructional and parts ma nuals are delivered to and accepted by the CITY.
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7.7 The CITY shall make payment to the CONTRACTOR in accordance with the Local Government
Prompt Payment Act, Chapter 218, Florida Statutes, to the extent outlined above and incorporated
by reference herein, in its entirety.
7.1 Direct Purchases. The City, as a holder of a current Consumer’s Certificate of Exemption,
reserves the right to make direct purchases of any materials and/or equipment included in the
project to achieve sales tax savings. The City sha ll purchase the Pre-Engineered Buildings and all
doors as described Section 1.2 of ITB #24-05. The City will coordinate such purchases with the
Contractor. To the extent requested by the City, the Contractor will be responsible for
coordinating the deliver y, safekeeping, protection, insuring (as to those items that will be installed
by Contractor), inspection, installation and testing of any materials purchased by the City, and for
the management and administration of any warranty claims pertaining to such materials and
equipment. Furthermore, to the extent that any furnished and installed materials directly
purchased by the City were included in the Contractor’s Guaranteed Maximum Price (GMP), the
GMP will be reduced by the amount included for each item.
ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS
In order to induce the CITY to enter into this Agreement, CONTRACTOR makes the following
representations upon which the CITY has relied:
8.1 CONTRACTOR is qualified in the field of public construction and in particular to perform the
Work and services set forth in this Agreement.
8.2 CONTRACTOR has visited the Work site, has conducted extensive tests, examinations and
investigations and represents and warrants a thorough and complete familiarization with the
na ture and extent of the Contract Documents, the Work, locality, soil conditions, moisture
conditions and all year-round local weather and climate conditions (past and present), and, in
reliance on such tests, examination, and investigations conducted by CONTRACTOR and the
CONTRACTOR’s experts, has determined that no conditions exist that would in any manner
affect the Proposed Price and that the Project can be completed for the Proposed Price submitted.
Furthermore, CONTRACTOR warrants and confir ms that it is totally familiar with, understands,
and obligates CONTRACTOR to comply with all federal, state and local laws, ordinances, rules,
regulations and all market conditions that affect or may affect the cost and price of materials and
labor needed to fulfill all provisions of this Agreement or that in any manner may affect cost,
progress or performance of the Work.
8.3 CONTRACTOR has also studied carefully all reports of investigations and tests of subsurface
and latent physical conditions at the site or otherwise affecting cost, progress or performance of
the Works, and finds and has further determined that no conditions exist that would in any
manner affect the Proposed Price and that the Project can be completed for the Proposed Price
submitted.
8.4 CONTRACTOR, on its own, has made or caused to be made examinations, investigations, tests
and studies of reports and related data in addition to those referred to in Paragraphs 8.2 and 8.3,
above, as CONTRACTOR deemed necessary to perform the Work at the Contract Price set by the
CONTRACTOR, within the Contract Time and in accordance with the other terms and conditions
of the Contract Documents and the Bid made by the CONTRACTOR; and no additional
examinations, investigations, tests, reports or similar data are, or will be, required by
CONTRACTOR to assure that the Work can be done at the Contract Price set by the
CONTRACTOR.
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8.5 CONTRACTOR has correlated the results of all such tests, investigations, reports, observations,
examinations, investigations, tests, reports and data conducted and compiled by the
CONTRACTOR and the CONTRACTOR’s experts with the terms and c onditions of the Contract
Documents.
8.6 CONTRACTOR has given CITY written notice of all conflicts, errors, or discrepancies
discovered in the Contract Documents and the written resolution of them by CITY is acceptable
to the CONTRACTOR.
8.7 Labor:
8.7.1 The CONTRACTOR shall provide competent, suitable, qualified personnel to survey and
lay out the Work and perform construction as required by the Contract Documents. The
CONTRACTOR shall at all times maintain good discipline and order at the site.
8.7.2 The CONTRACTOR shall, at all times, have a competent superintendent, capable of
reading and thoroughly understanding the drawings and specifications, as the
CONTRACTOR’s agent on the Project, who shall, as the CONTRACTOR’s agent ,
supervise, direct and otherwise conduct the Work.
8.7.3 The CONTRACTOR shall designate its superintendent on the job to the CITY, in
writing, immediately after receipt of the Notice to Proceed, but no later than at the Pre-
Construction Meeting. The CONTRACTOR understands and agrees that the
superintendent’s physical presence on the job site is indispensable to the successful
completion of the Work. If the superintendent is absent from the job site, the Project
Manager may deliver written notice to the CONTR ACTOR to stop Work or terminate the
Contract in accordance with Article 17.
8.7.4 The CONTRACTOR shall assign personnel to the job site that have successfully
completed training programs certified relative to trench safety, confined space and
maintenance of traffic on all roadways and streets, public or private. A certified
“competent person” shall be assigned to the job site daily and at all times. Personnel
certified by the International Municipal Signal Association with Florida Department of
Transportation qualifications are required to maintain traffic on all roadways and streets,
public or private. Failure to pursue the Work with the properly-certified supervisory staff
may result in notice to stop Work or terminate the Contract in accordance with Articl e 17.
8.7.5 The CONTRACTOR will designate in writing all Certified personnel immediately after
receipt of the Notice to Proceed, but no later than at the Pre-Construction Meeting.
8.8 Materials:
8.8.1 The CONTRACTOR shall furnish all materials, including but not l imited to, equipment,
labor, transportation, construction equipment and machinery, tools, appliances, fuel,
power, light, heat, telephone, water and sanitary facilities, and all other facilities and
incidentals necessary for the execution, testing, initial operation and completion of the
Work.
8.8.2 All materials and equipment shall be new and of good quality, except as otherwise
provided in the Contract Documents. Suppliers shall be selected and paid by the
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CONTRACTOR; the CITY reserves the right to approve all suppliers and materials.
8.9 Work Hours:
8.9.1 Except in connection with the safety or protection of persons, or the Work, or property at
the site or adjacent thereto, all Work at the site shall be performed during regular working
hours between 8:00 a.m. and 4:30 p.m., Monday through Friday. The CONTRACTOR
will not permit overtime Work or the performance of Work on Saturday, Sunday or any
legal holiday (designated by the City of Sebastian) without the Project Manager’s written
consent at least seventy-two (72) hours in advance of starting such Work.
8.9.2 If the Project Manager permits overtime Work, the CONTRACTOR shall pay for the
additional charges to the CITY, as described herein, with respect to such overtime Work.
Such additional charges shall be an additional cost and obligation of the CONTRACTOR
and no extra payment shall be made to the CONTRACTOR for overtime Work. The cost
to the CONTRACTOR to reimburse the CITY for overtime inspection is established at
direct- labor and overtime costs for each person or inspector required. Incidental overtime
costs for engineering, testing and other related services will also be charged to the
CONTRACTOR at the actual rate accrued.
8.10 Patent Fees and Royalties: The CONTRACTOR shall pay all license fees and royalties and
assume all costs incident to the use in the performance of the Work or the incorporation into the
Work, or any invention, design, process, product or device which is the subject of patent rights or
copyrights held by others.
8.11 Permits: The CONTRACTOR shall obtain and pay for all permits and licenses.The
CONTRACTOR shall pay all government charges which are applicable at the time of opening of
Bids. It shall be the responsibility of the CONTRACTOR to secure and pay for all necessary
licenses and permits of a permanent or temporary nature necessary for the prosecution and
completion of the Work
8.12 Laws and Regulations:
8.12.1 The CONTRACTOR shall give all notices and comply with the terms of this Agreement
and all laws, ordinances, r ules and regulations applicable to the Work. If the
CONTRACTOR observes that the specifications or plans are at variance therewith, the
CONTRACTOR shall give the Project Manager prompt written notice thereof, and any
necessary changes shall be adjusted by an appropriate modification by Change Order.
8.12.2 If the CONTRACTOR performs any Work knowing or having reason to know that it is
contrary to this Agreement and such laws, ordinance, rules and regulations, and without
such notice to the Project Manager, the CONTRACTOR shall bear all costs, fees and
penalties arising therefrom; and, it shall also be one of the CONTRACTOR’s primary
responsibilities to make certain that the specifications and plans are in accordance with
such laws, ordinances, rules and regula tions.
8.13 Taxes: The CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to
be paid by him in accordance with all laws.
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8.14 CONTRACTOR Use of Premises:
8.14.1 The CONTRACTOR shall confine construction equipment, the storage of materials and
equipment and the operations of workmen to areas permitted by law, ordinances, permits
and/or the requirements of the Contract Documents, and shall not encumber the premises
with construction equipment or other materials or equipment.
8.14.2 The CONTRACTOR shall not enter upon private or public property for any purpose
without first securing the written permission of the property owner, furnishing the Project
Manager with a copy of said permission. This requirement will be strictly enforced,
particularly with regard to such properties as may be utilized for storage or staging by the
CONTRACTOR.
8.14.3 The CONTRACTOR shall conduct all Work in such a manner as to avoid and prevent
damage to adjacent private or public property. Any damage to existing structures or
property of any kind, including permanent reference markers or property corner markers,
or the interruption of a telephone, telecommunications or utility service, shall be
immediately repaired or restored by the CONTRACTOR promptly, at CONTRACTOR’s
expense and no expense to the CITY.
8.14.4 The CONTRACTOR will preserve and protect all existing vegetation such as trees,
shrubs and grass on or adjacent to the site which do not interfere with the Work, as
determined by the Project Manager. The CONTRACTOR will be responsible for
repairing or replacing anything damaged by the CONTRACTOR including but not
limited to any trees, shrubs, lawns, landscaping and structures that may be damaged due
to operation of equipment, stockpiling of materials, tracking of grass by equipment or
other Work activity. The CONTRACTOR will be liable for and will be required to
replace or restore at no expense to the CITY all structures and vegetation not protected or
preserved as required herein that may be destroyed or damaged.
8.14.5 During the progress of the Work, the CONTRACTOR shall keep the premises free from
accumulations of waste materials, rubbish and debris resulting from the Work. Upon the
completion of the Work, or more frequently if so directed by the Project Manager, the
CONTRACTOR shall remove all waste materials, rubbish and debris from and about the
premises as well as all tools, appliances, construction equipment and machinery, and
surplus materials, and shall leave the site clean and ready for occupancy by the CITY.
The CONTRACTOR shall restore to their original condition those portions of the site not
designated for alteration by the Contract Documents at no cost to the CITY.
8.15 Project Coordination:
8.15.1 The CONTRACTOR shall provide for the complete coordination of the construction
effort. This shall include, but not be limited to, coordination of the following:
8.15.1.1 Flow of material and equipment from suppliers.
8.15.1.2 The interrelated Work with affected utility companies.
8.15.1.3 The interrelated Work with the CITY where tie-ins to existing facilities are
required.
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8.15.1.4 The effort of independent testing agencies.
8.15.1.5 Notice to affected property owners as may be directed by the Project
Manager.
8.15.2 Included with its coordination obligations, Contractor shall locate all existing roadways,
railways, drainage facilities and utility services above, upon, or under the Project site,
said roadways, railways, drainage facilities and utilities being referred to in this Section 2
as the "Utilities". Contractor shall contact the owners of all Utilities to determine the
necessity for relocating or temporarily interrupting any Utilities during the construction
of the Project. Contractor shall schedule and coordinate its Work around any such
relocation or temporary service interruption. Contractor shall be responsible for properly
shoring, supporting and protecting all Utilities at all times during the course of the Work.
8.16 Project Record Documents and As-Builts (Record Drawings): The CONTRACTOR shall keep
one record copy of all specifications, plans, addenda, modifications, shop drawings and samples
at the site, in good order and annotated to show all changes made during the construction process .
These shall be available to the Project Manager for examination and shall be delivered to the
Project Manager upon completion of the Work. Upon completion of the project and prior to final
payment, an as-built (record drawings) of the Project shall be submitted to the Project Manager.
The as-built drawings shall be signed and sealed by a Florida Registered Professional Surveyor
and Mapper.
8.17 Safety and Protection:
8.17.1 The CONTRACTOR shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the Work. The CONTRACTOR
shall take all necessary precautions for the safety of, and shall provide the necessary
protect ion to prevent damage, injury or loss to:
8.17.1.1 All employees working on the project and other persons who may be
affected thereby.
8.17.1.2 All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the site.
8.17.1.3 Other property at the site or adjacent thereto, including but not limited to
trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not
designated for removal, relocation or replacement in the course of
construction.
8.17.2 The CONTRACTOR shall comply with all applicable laws, ordinances, rules, regulations
and orders of any public body having jurisdiction for the safety of persons or property or
to protect them from damage, injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. The CONTRACTOR shall notify owners of
adjacent property and utilities when prosecution of the Work may affect them at least
seventy-two (72) hours in advance of commencing said Work (unless otherwise
required). All damage, injury, or loss to any property caused, directly or indirectly, in
whole or in part by the CONTRACTOR, any subcontractor or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable,
shall be remedied by the CONTRACTOR. The CONTRACTOR’s duties and
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responsibilities for the safety and protection of the Work shall continue until such time as
all the Work is completed and accepted by the CITY.
8.17.3 The CONTRACTOR shall provide and maintain Work environments and procedures
which will (1) safeguard the public and CITY personnel, property, materials, supplies,
and equipment exposed to CONTRACTOR operations and activities; (2) avoid
interruptions of CITY operations and delays in project completion dates; and (3) control
costs in the perfor mance of this Contract.
8.17.4 The CONTRACTOR shall provide appropriate safety barricades, signs, and signal lights;
comply with the standards established by the Secretary of Labor for OSHA; ensure that
any additional measures the Project Manager determines to be necessary.
8.17.5 Whenever the Project Manager becomes aware of any noncompliance with the
requirements of this Agreement or any conditions which pose a serious or imminent
danger to the health or safety of the public or CITY personnel, the Project Manager shall
notify the CONTRACTOR orally, with written confirmation, and request immediate
corrective action.
This notice, when delivered to the CONTRACTOR or the CONTRACTOR’s
representative at the Premises, shall be deemed sufficient notice of the noncompliance and
the corrective action required. After receiving the notice, the CONTRACTOR shall
immediately take corrective action. If the CONTRACTOR fails or refuses to take
corrective action promptly, the Project Manager may issue an order stopping all or part of
the Work until satisfactory corrective action has been taken. The CONTRACTOR shall
not be entitled to any equitable adjustment of the contract price or time because of any
stop Work order issued under this Section.
8.18 Emergencies: In emergencies affecting the safety or protection of persons or the Work or property
at the site or adjacent thereto, the CONTRACTOR, without special instruction or authorization
from the CITY is obligated to act to prevent threatened damage, injury or loss. The
CONTRACTOR shall give the Project Manager prompt written notice of any significant changes
in the Work or deviations from the Contract Documents caused thereby.
8.19 Risk of Loss : The risk of loss, injury or destruction shall be on the CONTRAC TOR until
acceptance of the Work by the CITY. Title to the Work shall pass to the CITY upon acceptance
of the Work by the CITY.
8.20 Environmental:
8.20.1 The CONTRACTOR and CONTRACTOR’s experts have fully examined and inspected
the Premises and agree to accept the Premises in an “as is” physical condition. The
CITY makes no representation or warranty of any kind, including but not limited
to, any environmental problems or issues, pollution or contamination on, in or about the
Work site. Further, CONTRACTOR and all entities claiming by, through or under the
CONTRACTOR, releases and discharges the CITY from any claim, demand, or cause of
action arising out of or relating to the CONTRACTOR’s use, handling, storage, release,
discharge, treatment, removal, transport, decontamination, cleanup, disposal and/or
presence of any hazardous substances including asbestos on, under, from or about the
Premises.
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8.20.2 The CONTRACTOR shall not use, handle, store, discharge, treat, remove, transport, or
dispose of Hazardous Substances including but not limited to asbestos at, in, upon, under,
to or from the Premises until receipt of instructions from the CITY. At such time, a
CITY- approved Change Order, which shall not include any profit to the
CONTRACTOR, shall authorize the CONTRACTOR to perform such services
needed to resolve any such hazardous substance issues.
8.20.3 The CONTRACTOR shall immediately deliver to the Project Manager complete copies
of all notices, demands, or other communications received by the CONTRACTOR from
any governmental or quasi-governmental authority or any insurance company or board of
fire underwriters or like or similar entities regarding, in any manner, alleged
violations or potential violations of any Environmental Law or otherwise asserting
the existence or potential existence of any condition or activity on the Premises
which is or could be dangerous to life, limb, property, or the environment.
8.20.4 For other and additional consideration, the CONTRACTOR hereby agrees, at its sole cost
and expense, to indemnify and protect, defend, and hold harmless, the CITY, including
but not limited to its respective employees, agents, officials, officers, volunteers,
representatives, contractors and subcontractors, successors, and assigns (herea fter the
CITY) from and against any and all claims, demands, losses, damages, costs, expenses,
including but not limited to mitigation, restoration, and natural restoration expenses,
liabilities, assessments, fines, penalties, charges, administrative and judicial proceedings
and orders, judgments, causes of action, in la w or in equity, remedial action requirements
and/or enforcement actions of any kind, including, without limitation, attorneys' fees,
expert fees and suit costs for trials and appeals directly or indirectly arising out of or
attributable to, in whole or in part, the CONTRACTOR’s use, handling, st orage, release,
threatened release, discharge, treatment, removal, transport, decontamination, cleanup,
disposal and/or presence of a Hazardous Substance on, under, from, to, or about the
Premises or any of its employees, agents, invitees, contractors or subcontractors, or any
other activity carried on or undertaken on or off the Premises by or on behalf o f the
CONTRACTOR in connection with the use, handling, storage, release, threatened
release, discharge, treatment, mitigation, natural resource restoration, removal, transp ort,
decontamination, cleanup, disposal and/or presence or any Hazardous Substance
including asbestos located, transported, or present on, undue, from, to, or about the
Premises. This indemnity is intended to be operable under all laws that apply to this
Agreement.
8.20.5 The scope of the CONTRACTOR’s indemnity obligations includes, but is not limited to:
(a) all consequential damages; (b) the cost of any required or necessary repair, cleanup, or
detoxification of the applicable real estate and the preparation and implementation of any
closure, remedial or other required plan, including without limitation; (i) the costs of
removal or remedial action incurred by the United States government or the State of
Florida or response costs incurred by any other person, or damages from injury to,
destruction of, or loss of, natural resources, including the cost of assessing such injury,
destruction, or loss, incurred; (ii) the clean-up costs, fines, damages, or penalties incurred
pursuant to any applicable provisions of law; and (iii) the cost and expenses of
abatement, correction or cleanup, fines, damages, response costs, or penalties which arise
from the provisions of any other statute, law, regulation, code, ordinance, or legal
requirement, state or federal; and (c) liability for personal injury or property damage
arising under any statutory or common law tort theory, including damages assessed for
the maintenance of a public private nuisance, response costs, or for the carrying on of an
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abnormally dangerous activity.
8.21 No Damages for Delays: No interruption, interference, inefficiency, suspension or delay in the
commencement or progress of the Work from any cause whatsoever, including those for which
City may be responsible, in whole or in part, shall relieve Contractor of its duty to perform or
give rise to any right to damages or additional compensation from City. Contractor expressly
acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if
any, against City will be the right to seek an extension to the Contract Time; provided, however,
the granting of any such time extension shall not be a condition precedent to the aforementioned
"No Damage for Delay" provision. This paragraph shall expressly apply to claims for early
completion, as well as to claims based on late completion. In no event shall City be liable to
Contractor whether in contract, warranty, tort (including negligence or strict liability) or
otherwise for any extended corporate overhead impact, extended project overhead impacts,
project support services, mobilization, demobilization, soft costs, lost profits, special, indirect,
incidental, or consequential damages of any kind or nature whatsoever, related to or arising out of
any interruption, interference, inefficiency, suspension, or delay in the commencement or
progress of the Work.
8.22 Force Majeure and Extensions of Time: Should Contractor be obstructed or delayed in the
prosecution of or completion of the Work as a result of unforeseeable causes beyond the control
of Contractor, and not due to its fault or neglect, including, but not restricted to, acts of God or of
the public enemy, acts of government, fires, floods, epidemics, quarantine regulation, strikes,
lockouts, or weather conditions that are abnormal for the period of time in wh ich the Contractor is
seeking an extension, which could not have been reasonably anticipated and had an adverse
impact on the critical path of the scheduled Work, Contractor shall notify City in writing within
forty- eight (48) hours after the commencement of such delay, stating the cause or causes thereof,
or be deemed to have waived any right which Contractor may have had to request a time
extension. Notwithstanding the foregoing, the Contractor’s schedule shall allow the number of
days it deems necessary for rain and bad weather when the Contractor prepares its schedule.
Contractor and City acknowledge that any Project site rain gauge measurements will not be relied
upon for determining rain fall amounts.
8.22.1 Notwithstanding the foregoing, the City shall have the right, at any time, whether or not
Contractor is behind schedule, to order Contractor to accelerate its Work. In the event
that the City orders Contractor to accelerate its Work and Contractor (i) is not behind
schedule and (ii) believes that acceleration will increase the cost of performance,
Contractor shall be required to submit a Claim for an increase Contract Time and Price
pursuant to the Contract Documents. Any such Claim shall be based exclusively and
solely on actual and direct increased field costs associated with such acceleration only.
8.22.2 Inclement weather, continuous rain for less than three (3) consecutive days or the acts or
omissions of subcontractors, third-party contractors, materialmen, suppliers or their
subcontractors, shall not be considered acts of force majeure.
8.23 All of Contractor’s duties, obligations, and responsibilities set forth in the Contract Documents
shall flow down and apply equally to all the Contractor’s subcontractors and suppliers in the same
manner as the Contractor is bound to the City. CONTRACTOR shall be obligated to inform all
subcontractors of all the provisions of this Agreement, provide them with a copy of this
Agreement, obtain written proof thereof, and ensure that all subcontracts contain a similar flow
down provision binding the subcontractor to the Contractor in the same way that the Contractor is
bound to the City.
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ARTICLE 9 – CITY’S RESPONSIBILITIES
9.1 The CITY shall furnish the data required of the CITY under the Contract Documents promptl y
and shall make payments to the CONTRACTOR after they are due as provided in Article 7.
9.2 The CITY’s duties in respect of providing lands and easements and providing engineering
surveys to establish reference points are set forth in the Contract Documents.
9.3 Technical Clarifications and Interpretations:
9.3.1 The CITY shall issue such written clarifications or interpretations of the Contract
Documents as it may determine necessary, which shall be consistent with or reasonably
inferable from the overall intent of the Contract Documents. Should the CONTRACTOR
fail to request interpretation of questionable items in the Contract Documents, the CITY
shall not entertain any excuse for failure to execute the Work in a satisfactory manner.
9.3.2 The CITY shall interpret and decide matters concerning performance under the
requirements of the Contract Documents, and shall make decisions on all claims, disputes
or other matters in question. Written notice of each claim, dispute or other matter will be
delivered by claimant to the other Party but in no event later than five (5) days after the
occurrence of the event and written supporting data will be submitted to the other Party
within five (5) days after such occurrence. All written decisions of the CITY on any
claim or dispute will be final and binding.
9.4 The CONTRACTOR shall perform all Work to the satisfaction of the CITY in accord with the
Contract Documents and not to exceed the Contract Price. In cases of disagreement or ambiguity,
the CITY shall decide all questions, difficulties, and disputes of whatever nature, which may arise
under or by reason of this Agreement, or the quality, amount and value of the Work, and the
CITY’s decisions on all claims, questions and determination are final.
ARTICLE 10 - BONDS AND INSURANCE
10.1 Bonds: The CONTRACTOR shall furnish certified copy of the recorded Performance Bond and a
certified copy of the recorded Labor and Materials Payment Bonds (“Bonds”) meeting the
approval of the CITY, each in an amount at least equal to the Contract Price as security for the
faithful performance and payment of all the CONTRACTOR’s obligations under the Contract
Documents. The CITY will not make a payment to the CONTRACTOR until the
CONTRACTOR has complied with this requirement. These Bonds shall remain in effect one (1)
year after the date of final payment, except as otherwise provided by law. All Bonds shall be
furnished and provided by the surety and shall be in substantially the same form as prescribed by
the Contract Documents and be executed by such sureties as (i) are licensed to conduct business
in the State of Florida, and (ii) are named in the current list of Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies as
published in Circular 570 (as amended) by the Audit Staff Bureau of Accounts, U.S. Treasury
Department and (iii) otherwise meet the requirements of the CITY and as set forth herein that
apply to sureties. All Bonds and other documents signed by an agent must be accompanied by a
certified copy of the authority to act on behalf of the surety.
10.2 Maintenance Bond: A Surety Bond legally issued, meeting the approval of the CITY, with the
CITY named as owner and the CONTRACTOR as principal in an amount not less than the
Contract Price of such improvements, that contains the condition that the CONTRACTOR shall
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maintain and make all repairs to the improvements constructed by him, at his own expense and
free of charge to the CITY, for the period of one (1) year after the date of acceptance of the Work
by reason of any imperfection of the material used or by reason of any defective workmanship, or
any improper, imperfect or defective preparation of the base upon which any such improvements
shall be laid; provided that the Performance Bond and Payment Bond and Maintenance
Bond may be incorporated into one Bond, at the option of the CONTRACTOR and subject to
approval of the CITY.
10.3 Disqualification of Surety: If the Surety on any Bond furnished by the CONTRACTOR is
declared bankrupt or becomes insolvent or its right to conduct business in the State of Florida is
terminated or it ceases to meet the requirements of clauses (i) and (ii) of Paragraph 10.1, the
CONTRACTOR shall within five (5) days thereafter substitute another Bond and surety, both of
which shall be acceptable to the CITY.
10.4 CONTRACTOR’s Liability Insurance: The CONTRACTOR shall purchase and maintain such
comprehensive general liability and other insurance as will provide protection from claims set
forth below which may arise out of or result from the CONTRACTOR’s performance of the
Work and the CONTRACTOR’s other obligations under this Agreement, whether such
performance is by the CONTRACTOR, by any subcontractor, by anyone directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable.
10.4.1 Claims under workers’ or workmen compensation, disability benefits and other similar
employee benefit acts;
10.4.2 Claims for damages because of bodily injury, occupational sickness or disease, or death
of the CONTRACTOR’s employee;
10.4.3 Claims for damages because of bodily injury, sickness or disease, or death of any person
other than the CONTRACTOR’s employee;
10.4.4 Claims for damages insured by personal injury liability coverage which are sustained (i)
by any person as a result of an offense directly or indirectly related to the employment of
such person by the CONTRACTOR, or (ii) by any other person for any other reason;
10.4.5 Claims for damages, other than to the Work itself, because of injury to or destruction of
tangible property, including loss of use resulting therefrom; and
10.4.6 Claims for damages because of bodily injury or death of any person or property damage
arising out of the ownership, maintenance or use of any motor vehicle; and
10.4.7 Claims for losses arising out of or related to the indemnification and hold harmless
clauses of the Agreement.
10.4.8 The insurance required by this Paragraph 10.4 shall include the specific coverage set
forth herein and be written for not less than the limits of liability and coverage provided
in Paragraph 10.6, or required by law, whichever is greater. The comprehensive general
liability insurance shall include completed operations insurance. All such insurance shall
contain a provision that the coverage afforded cannot be canceled, materially changed or
renewal refused until at least thirty (30) days prior written notice has been given to the
CITY. All such insurance shall remain in effect until final payment and at all times
thereafter when the CONTRACTOR may be correcting, removing or replacing defective
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Work in accordance with Article 11. In addition, the CONTRACTOR shall maintain such
completed operations insurance for at least five (5) years after final payment and furnish
CITY with evidence of continuation of such insurance at final payment and five (5) years
thereafter. All insurance required by this Paragraph 10.4 will name the CITY of Palm
Bay as additional insured for both on-going and completed operations, shall be
primary and non- contributory, shall not contain an endorsement prohibiting suits
against or amongst named insureds, and shall contain or allow a waiver of subrogation.
10.5 Contractual Liability Insurance: The comprehensive general liability insurance required by
Paragraph 10.4 will include contractual liability insurance applicable to the CONTRACTOR’s
obligations under Paragraph 10.6.
10.6 Minimum insurance coverage, with limits a nd provisions, are as follows:
10.6.1 Comprehensive General Liability: The CONTRACTOR shall provide minimum
combined single limits of $1,000,000.00 each occurrence / $2,000,000.00 general
aggregate for bodily injury and property damage liability. This shall include
premises/operations, personal & advertising injury, products & completed operations,
broad form property damage, personal and advertising injury and contractual liability
coverage, and otherwise comply with the requirements set f orth in Paragraph 10.4 above.
10.6.2 Automobile: The CONTRACTOR shall provide minimum limits of liability of
$1,000,000.00 each accident, combined single limit for bodily injury and property
damage. This shall include coverage for:
10.6.2.1 Owned Automobiles
10.6.2.2 Hired Automobiles
10.6.2.3 Non-Owned Automobiles
10.6.3 Umbrella/Excess Liability: The CONTRACTOR shall provide umbrella/excess coverage
with limits of no less than $1,000,000.00 excess of Comprehensive General Liability,
Automobile Liability and Employers’ Liability. **This coverage is optional if the
CONTRACTOR carries $2,000,000 Commercial General Liability Insurance with a
$2,000,000 general aggregate**
10.6.4 Workers’ Compensation: The CONTRACTOR shall provide and maintain Coverage for
all employees for statutory limits as required by the State of Florida’s Statutory Workers’
Compensation Law and all applicable Federal laws. The policy(ies) must include
Employer’s Liability with minimum limits of $1,000,000 each accident and a waiver
of subrogation.
10.6.5 The CONTRACTOR shall further ensure that all of its sub -contractors maintain
appropriate levels of workers’ compensation insurance.
10.6.6 Property Insurance (Installation Floater): The CONTRACTOR shall purchase and
maintain in force, at its own expense, an Installation Floater covering contractor’s
materials and equipment, both during transit and while stored at the work site.
10.6.7 Other Insurance Provisions: The CITY is to be specifically included on all Certificates of
Insurance as an additional insured (with exception to Workers Compensation). Waiver of
subrogation is required for Commercial General Liability and Automobile Liability
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coverages. All certificates must be received prior to commencement of the Work. In the
event the insurance coverage expires prior to the completion of this Agreement, a renewal
certificate shall be issued thir ty (30) days prior to the expiration date. The certificate shall
provide a thirty (30) day notification clause in the event of cancellation or modification to
the policy.
10.6.8 Deductible Clause: The CONTRACTOR shall declare all self-insured retention and
deductible amounts.
10.6.9 All insurance carriers shall be rated “A” or better by the most recently published A.M.
Best Rating Guide. Unless otherwise specified, it shall be the responsibility of the
CONTRACTOR to ensure that all subcontractors comply with the same insurance
requirements spelled out above. The CITY may request a copy of the insurance policy
according to the nature of the project. CITY reserves the right to accept or reject the
insurance carrier.
10.6.10 All Certificates of Insurance shall be approved by the CITY prior to the
commencement of any Work.
ARTICLE 11 - WARRANTY AND GUARANTEE, TESTS AND INSPECTIONS, CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
11.1 Warranty: The CONTRACTOR warrants and guarantees to the CITY that all Work will be of
good quality, free from all defects, and will be performed in accordance with the Contract
Documents and the Contract Price proposed by the CONTRACTOR. Prompt notice of all defect s
shall be given to the CONTRACTOR. All Defective Work, whether or not in place, may be
rejected, corrected, or accepted as provided in this Article.
11.1.1 Warranty of Title: The CONTRACTOR warrants to the CITY that it possesses good,
clear, and marketable title to all equipment and materials provided and that there are no
pending liens, claims or encumbrances against the equipment and materials.
11.1.2 Warranty of Specifications: The CONTRACTOR warrants that all equipment, materials
and workmanship furnished, whether furnished by the CONTRACTOR its subcontractors
or suppliers will comply with the specifications, drawings and other descriptions supplied
or adopted and that all services will be performed in a workmanlike manner.
11.1.3 Warranty of Merchantability (if applicable): The CONTRACTOR warrants that any and
all supplies, materials, and equipment to be supplied pursuant to this Agreement is
merchantable, free from defects, whether patent or latent in material or workmanship, and
fit for the ordinary purposes for which it is intended.
11.2 Tests and Inspections: The CONTRACTOR shall give the Project Manager timely (minimum of
thirty-six (36) hours) notice of readiness of the Work for all required inspections, tests or
approvals.
11.2.1 If any law, ordinance, rule, regulation, code or order of any public body having
jurisdiction requires any Work (or part thereof) to specifically be inspected, tested or
approved, the CONTRACTOR shall assume full responsibility, pay all costs in
connection therewith, and furnish the Project Manager the required certificates of
inspection, testing or approval. The CONTRACTOR shall also be responsible for and
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shall pay all costs in connection with any inspection or testing required in connection
with the CITY’s acceptance of a manufacturer, fabricator, supplier or distributor of
materials or equipment proposed to be incorporated in the Work, or of materials or
equipment submitted for approval prior to t he CONTRACTOR’s purchase thereof for
incorporation in the Work.
11.2.2 All inspections, tests or approvals are the responsibility of the
CONTRACTOR.
11.2.3 Neither observations by nor inspections, tests or approvals by the Project Manager or
others shall relieve the CONTRACTOR from his obligations to perform the Work
in accordance with the Contract Documents.
11.3 Uncovering Work: If any Work that is to be inspected, tested or approved is covered without
approval or consent of the Project Manager, it must, if requested by the Project Manager, be
uncovered for observation and/or testing. Such uncovering and replacement shall be at the
CONTRACTOR’s sole expense unless the CONTRACTOR has given the Project Manager
timely notice of the CONTRACTOR’s intention to cover such Work and the Project Manager has
not acted with reasonable promptness in response to such notice.
11.3.1 If the Project Manager considers it necessary or advisable that Work covered in
accordance with Paragraph 11.2.1, 11.2.2 and 11.2.3 be observed by the CITY or
inspected or tested by others, the CONTRACTOR at the CITY’s request, shall uncover,
expose or otherwise make available for observation, inspection or testing as the Project
Manager may require, that portion of the Work in question, furnishing all necessary
labor, material and equipment. If it is found that such Work is defective, the
CONTRACTOR shall bear all the expenses of such uncovering, exposure, observation,
inspection and testing and of satisfactory reconstruction, including compensation for
additional professional services, and an appropriate deductive Change Order shall be
issued. If, however, such Work is not found to be defective, the CONTRACTOR shall be
allowed an increase in the Contract Price or an extension of the Contract Time, or both,
directly attributable to such uncovering, exposure, observation, inspection testing and
reconstruction if he makes a claim therefore as provided in Articles 14 and 15.
11.4 CITY May Stop the Work: If the Work is defective, or the CONTRACTOR fails to supply
sufficient skilled supervisory personnel or workmen or suitable materials or equipment or the
Work area is deemed unsafe, the CITY may order the CONTRACTOR to stop the Work, or any
portion thereof, until the cause for such order has been eliminated; however, this right of the
CITY to stop the Work shall not give rise to any duty on the part of the CITY to exercise this
right for the benefit of the CONTRACTOR or any other party. The CITY will not award any
increase in Contract Price or Contract Time if the Work is stopped due to the circumstances
described herein.
11.5 Correction or Removal of Defective Work Before Final Payment: If required by the Project
Manager, the CONTRACTOR shall promptly, without cost to the CITY and as specified by the
Project Manager, either correct any Defective Work, whether or not fabricated, installed or
completed, or, if the Work has been rejected by the CITY, remove it from the site and replace it
with non-Defective Work.
11.6 One Year Correction Period After Final Payment: If within one (1) year after the Final
Completion Date, or such longer period of time as may be prescr ibed by law or by the terms of
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any applicable special guarantee required by the Contract Documents, any Work is found to be
Defective, the CONTRACTOR shall promptly, without cost to the CITY and in accordance with
the CITY’s written instructions, either c orrect such Defective Work, or, if it has been rejected by
the CITY, remove it from the site and replace it with non-Defective Work. With respect to the
correction of any Defective or nonconforming Work, the Contractor shall be liable for all damage
to any part of the Work itself and to any adjacent or other property which is caused by the
Defective Work or by such corrective work.
If the CONTRACTOR does not promptly comply with the terms of such instructions or in an
emergency where delay would cause serious risk of loss or damage, as determined by the CITY,
the CITY may have the Defective Work corrected or the rejected Work removed and replaced,
and all direct and indirect costs for such removal and replacement, including compensation
for additional professional services, shall be paid by the CONTRACTOR.
11.7 Acceptance of Defective Work, Deductions: If, instead of requiring correction or removal and
replacement of Defective Work, the CITY, at the CITY’s sole option, prefers to accept it, the
CITY may do so. In such a case, if acceptance occurs prior to the Project Manager’s
recommendation of final payments, a Change Order shall be issued incorporating the necessary
revisions in the Contracts Documents, including appropriate reduction in the Co ntract Price; or if
the acceptance occurs after such recommendation, an appropriate amount shall be paid by the
CONTRACTOR to the CITY.
11.8 CITY May Correct Defective Work: If the CONTRACTOR fails within a reasonable time
determined by the CITY after written notice of the Project Manager to proceed to correct
Defective Work or to remove and replace rejected Work as required by the Project Manager in
accordance with Paragraph 11.5, or if the CONTRACTOR fails to perform the Work in
accordance with the Contract Documents, the CITY may, after seven (7) days written notice to
the CONTRACTOR, correct and remedy any such deficiency. In exercising its rights under this
paragraph, the CITY shall proceed expeditiously. To the extent necessary to complete corrective
and remedial action, the CITY may exclude the CONTRACTOR from all or part of the site, take
possession of all or part of the Work, suspend the CONTRACTOR’s services related t hereto and
take possession of the CONTRACTOR’s tools, construction equipment and materials stored at
the site or elsewhere. The CONTRACTOR shall allow the CITY’s representative agents and
employees such access to the site as may be necessary to enable the CITY to exercise its rights
under this paragraph. All direct and indirect costs of the CITY in exercising such rights shall be
charged against the CONTRACTOR in an amount verified by the Project Manager, and a Change
Order shall be issued incorporating the necessary revisions in the Contract Documents and a
reduction in t he Contract Price. Such direct and indirect costs shall include, in particular but
without limitation, compensation for additional professional services required and costs of repair
and replacement of Work of others destroyed or damaged by correction, removal or replacement
of the CONTRACTOR’s defective Work. The CONTRACTOR shall not be allowed an extension
of the Contract Time because of any delay in performance of the Work attributable to the exercise
by the CITY of the CITY’s rights hereunder.
ARTICLE 12 – INDEMNIFICATION
12.1 Disclaimer of Liability: The CITY shall not at any time, be liable for injury or damage occurring
to any person or property from any cause, whatsoever, arising out of CONTRACTOR’s
fulfillment of this Agreement.
12.2 Indemnification: For other and additional good and valuable consideration, the receipt and
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sufficiency of which is hereby acknowledged, the CONTRACTOR agrees as follows:
12.2.1 To the maximum extent permitted by Florida law, the Contractor shall defend, indemnify,
and hold harmless the City and its officers, agents, representatives, council members,
volunteers, employees, successors, and assigns (hereinafter the “City”) from any and all
liabilities, claims, damages, penalties, demands, judgments, actions, proceedings, losses,
or costs, including, but not limited to, reasonable attorney fees and court costs, whether
resulting from any claimed breach of this Agreement by Contractor or from personal
injury, property damage, direct or consequential damages, or economic loss, to the extent
caused by the negligence, recklessness, or intentional wrongful misconduct of Contractor
or its subcontractors, or anyone employed or utilized by them in the performan ce of the
Work on the Project.
The duty to defend under this Section is independent and separa te from the duty to
indemnify, and the duty to defend exists regardless of any ultimate liability of the
Contractor, City, or any indemnified party. The duty to defend arises immediately upon
presentation of a claim by any party and written notice of such claim bei ng provided to
the Contractor. The Contractor’s obligations to defend and indemnify under this
Agreement will survive the expiration or earlier termination of this Agreement until it is
determined by final judgment that an action against the City or an indemnified party for
the matter indemnified hereunder is fully and finally barred by the applicable statute of
limitations.
12.2.2 CONTRACTOR agrees to indemnify, defend, save and hold the CITY harmless from any
type whatsoever, including but not limited to damages, liabilities, losses, claims, fines,
costs, expenses and fees, and from any and all suits and causes of actions of every name,
or description that may be brought against CITY, on account of any claims, fees,
royalties, or costs for any invention or patent and/or for the infringement of any and all
copyrights or patent rights claimed by any person, firm, or corporation.
12.2.3 CONTRACTOR shall pay all claims, losses, liens, settlements or judgments of any
nature in connection with the foregoing indemnifications including, but not limited to,
reasonable attorney's fees and suit costs for trials and appeals.
12.2.4 If any Subcontractor, supplier, laborer, or materialmen of CONTRACTOR or any other
person directly or indirectly acting for or through CONTRACTOR files or attempts to
file a mechanic's or construction lien against the real property on which the Work is
performed or any part thereof or against any personal property or improvements thereon
or make a claim against any monies due or to become due from the CITY to
CONTRACTOR or from CONTRACTOR to a Subcontractor, for or on account of any
Work, labor, services, material, equipment, or other items furnished in connection with
the Work or any change order, CONTRACTOR agrees to satisfy, remove, or discharge
such lien or claim at its own expense by transfer to bond, payment, or otherwise within
five (5) days of the filing or from receipt of written notice from the CITY.
Additionally, until such time as such lien or claim is satisfied, removed or discharged by
CONTRACTOR, all monies due to CONTRACTOR, or that become due to
CONTRACTOR before the lien or claim is satisfied, removed or ot herwise discharged,
shall be held by CITY as security for the satisfaction, removal and discharge of such lien
and any expense that may be incurred while obtaining the discharge. If CONTRACTOR
shall fail to do so, CITY shall have the right, in addition to all other rights and remedies
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provided by this Agreement or by law, to satisfy, remove, or discharge such lien or claim
by whatever means CITY chooses at the entire and sole cost and expense of
CONTRACTOR which costs and expenses shall, without limitation, include attorney's
fees, litigation costs, fees and expenses and all court costs and assessments, and which
shall be deducted from any amount owing to CONTRACTOR. In the event the amount
due CONTRACTOR is less than the amount required to satisfy CONTRACTOR’s
obligation under this, or any other article, paragraph or section of this Agreement, the
CONTRACTOR shall be liable for the deficiency due the CITY.
12.2.5 The CONTRACTOR and the CITY agree that they waive any defects in the wording of
this Article that runs afoul of any Florida statutory section.
ARTICLE 13 - CHANGES IN THE WORK
13.1 Without invalidating this Agreement, the CITY may, at any time or from time to time, order
additions, deletions or revisions in the Work through the issuance of written Change Orders.
Upon receipt of a written Change Order, the CONTRACTOR shall p roceed with the Work
involved. All Work shall be executed under the applicable conditions of the Contract Documents.
If any Change Order causes an increase or decrease in the Contract Pr ice or an extension or
shortening of the Contract Time, an equitable adjustment will be made as provided in Article 14
or Article 15 on the basis of a claim made by either Party.
13.2 The Project Manager may authorize minor changes in the Work not involving a n adjustment in
the Contract Price or the Contract Time, which are consistent with the overall intent of the
Contract Documents. Such changes must be in writing and signed by both the CITY and the
CONTRACTOR.
13.3 If notice of any change affecting the general scope of the Work or change in the Contract Price is
required by the provisions of any Bond to be given to the Surety, it will be the CO NTRACTOR’s
responsibility to so notify the Surety, and the amount of each applicable Bond shall be adjusted
accordingly. The CONTRACTOR shall furnish proof of such adjustment to the CITY.
ARTICLE 14 - CHANGE OF CONTRACT PRICE
14.1 The Contract Price may only be increased by a Change Order when Work is modified in
accordance with Article 13 and approved by the CITY in writing. Any claim for an increase in the
Contract Price resulting from a Change Order shall be based on written notice delivered to the
Project Manager within ten (10) days of the occurrence of the Change Order giving rise to the
claim. Notice of the amount of the claim with supporting data shall be provided in writing and
delivered within twenty (20) days of such occur rence unless Project Manager allows an additional
period of time to ascertain accurate cost data. Any change in the Contract Price resulting from
any such claim shall be incorporated in the Change Order that was originally issued by the City.
14.2 Cost Breakdown Required: Whenever the Cost of the Work is to be determined pursuant to this
Article, the CONTRACTOR, upon request of the CITY, will s ubmit in form acceptable to the
CITY an itemized cost breakdown together with supporting documentation. Whenever a change
in the Work is to be based upon mutual acceptance of a lump sum, whether the amount is an
addition, credit, or no-change-in-cost, the CONTRACTOR shall, upon request of the CITY,
submit an estimate substantiated by a complete itemized breakdown:
14.2.1 The breakdown shall list quantities and unit prices for materials, labor,
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equipment and other items of cost.
14.2.2 Whenever a change involves the CONTRACTOR and one (1) or more
subcontractors and the change is an increase in the agreed compensation, the
overhead and profit percentage for the CONTRACTOR and each subcontractor
shall be itemized separately.
ARTICLE 15 - CHANGE OF THE CONTRACT TIME
15.1 The Contract Time may only be changed by a Change Order. Any claim for an extension in the
Contract Time shall be based on written notice delivered to the Project Manager within five (5)
days of the occurrence of the event giving rise to the claim. Any change in the Contract Time
resulting from any such claim shall be incorporated in a Change Order.
15.2 The Contract Time will be extended in an amount equal to time lost due to delays that are more
fully described in Section 8.22 of this Agreement if a claim is made therefore as provided in
Paragraph 15.1.
15.3 All time limits stated in the Contract Documents are of the essence. The provisions of this Article
15 shall not exclude recovery for damages by the CITY for delay caused by the CONTRACTOR.
15.4 Delays caused by or resulting from entities, contractors or subcontractors who are not affiliated
with the CONTRACTOR (non-affiliated Contractors) shall not give rise to a claim by the
CONTRACTOR for damages for increases in material and/or labor costs. Such entities,
contractors and subcontractors include, but are not limited to, the CITY’s contractors and
subcontractors, Florida Power and Light Company.
ARTICLE 16 - LIQUIDATED DAMAGES
16.1 Upon failure of the CONTRACTOR to complete the Work by the Substantial Completion Date
the CONTRACTOR shall pay to the CITY the sum of One Hundred Dollars ($100) for each and
every calendar day until the Work reaches Substantial Completion Date, as fixed and agreed
liquidated damages and not as a penalty. The Parties agree and recognize the impossibility of
precisely ascertaining the amount of damages that the City will sustain in the event that
Contractor fails to timely achieve the Substantial Completion Date.
On the occasion where the contractor is in default of the Agreement, or any material provision
thereof, or fails to remedy any deficiency in performance, the City may procure the necessary
supplies or services from an alternative source and hold the contra ctor financially responsible for
any excess costs incurred. The difference between the Bid price of the product or service and the
actual price paid may be deducted from any current or future obligations owed to the contractor
as liquidated damages.
ARTICLE 17 - SUSPENSION OF WORK AND TERMINATION
17.1 CITY May Suspend Work: The CITY may, at any time and without cause, suspend the Work or
any portion of the Work for a period of not more than ninety (90) days by notice in writing to the
CONTRACTOR which shall fix the date on which Work shall be resumed. The CONTRACTOR
shall resu me the Work on the date fixed. The CONTRACTOR will be allowed an extension of
the Contract Time directly attributable to any suspension, if the CONTRACTOR makes a claim
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as provided in Article 15; provided, however, CONTRACTOR shall not be entitled to any
extended or delay damages as set forth in Paragraph 8.21.
17.2 CITY May Terminate for Convenience: The CITY retains the right to terminate this
Agreement, without cause, with thirty (30) days prior written notice. In the event of such
termination for convenience, the Contractor’s recovery against the City shall be limited to
that portion of the Contract Price earned through the date of termination, together with any
retainage withheld and demobilization costs incurred. The Contractor, however, shall not be
entitled to any other or further recovery against the City, including, but not limited to, any other
form of payment or damages not specifically set forth herein or any anticipated or lost profits on
portions of Work not performed.
17.3 CITY May Terminate for Cause: The City may terminate this Agreement following fifteen (15)
days’ notice and an opportunity to cure upon the occurrence of any one or more of the following
default events:
17.3.1 If the CONTRACTOR commences a voluntary bankruptcy action or a bankruptcy
petition is filed against the CONTRACTOR under any chapter of any Bankruptcy Code,
or if the CONTRACTOR takes any equivalent or similar action by filing a petition under
any federal or state law relating to the bankruptcy or insolvency.
17.3.2 If the CONTRACTOR makes a general assignment of its assets or receivable for the
benefit of creditors.
17.3.3 If a trustee, receiver, custodian or agent of the CONTRACTOR is appointed under
applicable law or under Contract, whose appointment or authority to take charge of
property of the CONTRACTOR is for the purpose of enforcing a lien against such
property or for the purpose of general administration of such property for the benefit of
the CONTRACTOR’s creditors.
17.3.4 If the CONTRACTOR persistently fails to perform the Work in accordance with the
Contract Documents, including but not limited to, failure to supply sufficient skilled
workers or suitable materials or equipment or failure to adhere to the progr ess schedule as
same may be revised from time to time.
17.3.5 If the CONTRACTOR repeatedly fails to make prompt payments to subcontractors or for
labor, material or equipment.
17.3.6 If the CONTRACTOR repeatedly disregards proper safety procedures.
17.3.7 If the CONTRACTOR disregards any local, state or federal laws or regulations. 17.3.8
17.3.8 If the CONTRACTOR otherwise violates any provisions of this Agreement.
17.4 CITY’s Rights After Termination for Cause:
17.4.1 Following termination for cause, the CONTRACTOR may be excluded from the
Premises and the CITY may take possession of the Work and of all the
CONTRACTOR’s tools, appliances, construction equipment and machinery at the site
and use them without liability to the CITY for trespass or conversion and incorp orate
them in the Work, and all materials and equipment stored at the site or for which the
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CITY has paid the CONTRACTOR but which are stored elsewhere, and finish the Work
as the CITY may deem expedient. In this instance, the CONTRACTOR shall not be
entitled to receive any further compensation until the Work is finished.
17.4.2 The liability of the Contractor following a termination for cause shall extend to and
include the full amount of any and all sums paid, expenses and losses incurred, damages
sustained, and obligations assumed by the City in good faith under the belief that such
payments or assumptions were necessary or required in completing the Work and
providing labor, materials, equipment, supplies, and other items therefor or re-letting the
Work, and in settlement, discharge or compromise of any claims, demands, suits, and
judgments pertaining to or arising out of the Work hereunder.
17.4.3 If, after notice of termination of Contractor for default pursuant to Section 17.3 above, it
is determined for any reason that Contractor was not in default, or that its default was
excusable, or that the City did not have the right to terminate the Contractor, then such
termination shall be deemed a termination for convenience and the Contractor’s remedies
shall be the same as and limited to those afforded under Section 17.2 above.
17.5 If the Contractor commits a default due to its insolvency or bankruptcy, the following shall apply:
17.5.1 Should this Agreement be entered into and fully executed by the parties, and funds have
been released to the Contractor by the City (Debtor) files for bankruptcy, the following
shall occur:
17.5.1.1 In the event the Contractor files a voluntary petition under11 U.S.C. 301 or
302, or an order for relief is entered under 11 U.S.C. 303, the Contractor
shall acknowledge the extent, validity, and priority of the lien recorded in favor
of the City. The Contractor further agrees that in the event of this default, the
City shall, at its option, be entitled to seek relief from the automatic stay
provisions in effect pursuant to 11 U.S.C. 362. The City shall be entitled to
relief from the automatic stay pursuant to 11 U.S.C. 362(d)(1) or (d)(2), and
the Contractor agrees to waive the notice provisions in effect pursuant to
11 U.S.C. 362 and any applicable Local Rules of the United States
Bankruptcy Court. The Contractor acknowledges that such waiver is done
knowingly and voluntarily.
17.5.1.2 Alternatively, in the event the City does not seek stay relief, or if stay relief is
denied, the City shall be entitled to monthly adequate protection payments
within the meaning of 11 U.S.C. 361. The monthly adequate protection
payments shall each be in an amount determined in accordance with the Note
and Mortgage executed by the Contractor in favor of the City.
17.5.1.3 In the event the Contractor files for bankruptcy under Chapter 13 of Title 11,
United States Code, in addition to the foregoing provisions, the Contractor
agrees to cure any amounts in arrears over a period not to exceed twenty-four
(24) months from the date of the confirmation order, and such payments shall
be made in addition to the regular monthly payments required by the Note and
Mortgage. Additionally, the Contractor shall agree that the City is over
secured and, therefore, entitled to interest and attorney’s fees pursuant to 11
U.S.C. 506(b). Such fees shall be allowed and payable as an administrative
expense. Further, in the event the Contractor has less than five (5) years of
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payments remaining on the Note, the Contractor a grees that the treatment
afforded to the claim of the City under any confirmed plan of reorganization
shall provide that the remaining payments shall be satisfied in accordance with
the Note, and that the remaining payments or claim shall not be extended or
amortized over a longer period than the time remaining under the Note.
17.5.2 Should this Agreement be entered into and fully executed by the parties, and the funds
have not been forwarded to Contractor, the following shall occur:
17.5.2.1 In the event the Contractor files a voluntary petition pursuant to 11 U.S.C. 301
or 302, or an order for relief is entered under 11 U.S.C. 303, the Contractor
acknowledges that the commencement of a bankruptcy proceeding constitutes
an event of default under the terms of this Agr eement. Further, the Contractor
acknowledges that this Agreement constitutes an executory contract within the
meaning of 11 U.S.C. 365. The Contractor acknowledges that this Agreement
is not capable of being assumed pursuant to 11 U.S.C. 365(c)(2), unless the
City expressly consents in writing to the assumption. In the event the City
consents to the assumption, the Contractor agrees to file a motion to assume
this Agreement within ten (10) days after receipt of written consent from the
City, regardless of whether the bankruptcy proceeding is pending under
Chapter 7, 11, or 13 of Title 11 of the United States Code. The Contractor
further acknowledges that this Agreement is not capable of being assigned
pursuant to 11 U.S.C. 365(b)(1).
17.6 Should the CONTRACTOR’s services be terminated by the CITY, the termination shall not
affect any rights of the CITY against the CONTRACTOR then existing or which may thereafter
accrue. Any retention or payment of moneys due the CONTRACTOR by the CITY will not
release the CONT RACTOR from liability.
17.7 CONTRACTOR understands and agrees that the CITY may immediately terminate this contract
upon written notice if the CONTRACTOR is found to have submitted a false certification or any
of the following occur with respect to the CONTRACTOR or a related entity: (i) for any contract
for goods or services in any amount of monies, it has been placed on the Scrutinized Companies
that Boycott Israel List, or is engaged in a boycott of Israel, or (ii) for any contract for goods or
services of one million dollars ($1,000,000) or more, it has been placed on the Scrutinized
Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran
Petroleum Energy Sector List, or it is found to have been engaged in business operations in Cuba
or Syria.
17.8 The CONTRACTOR has no right, authority or ability to terminate the Work except for wrongful
withholding of any payments due the CONTRACTOR from the CITY.
ARTICLE 18 – NOTICES
18.1 All notices required by any of the Contract Documents shall be in writing and shall be deemed
delivered upon mailing by certified mail, return receipt requested to the following:
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TO THE CITY:
City Manager Procurement/Contracts Manager
City of Sebastian City of Sebastian
1225 Main Street 1225 Main Street
Sebastian, FL 32958 Sebastian, FL 32958
TO THE CONTRACTOR:
Island Harbor Custom Builders, LLC
Attn: Brian Neu, Owner
6285 Riverfront Center Blvd
Titusville, FL 32780
ARTICLE 19 – LIMITATION OF LIABILITY
19.1 Limitation of Liability: The City desires to enter into this Agreement only if in so doing the City
can place a limit on the City’s liability for any cause of action arising out of this Agreement. For
other and additional good and valuable consideration, the receipt and sufficien cy of which is
hereby acknowledged, Contractor expresses its willingness to enter into this Agreement
with the knowledge that the Contractor’s recovery from the City to any action or claim arising
from the Agreement is limited to a maximum amount of the contract value less the amount of all
funds actually paid by the City to Contractor pursuant to this Agreement. Nothing contained in
this paragraph or elsewhere in this Agreement is in any manner intended either to be a waiver of
the limitation placed upon the City’s liability as set forth in Section 768.28, Florida Statutes, or to
extend the City’s liability beyond the limits established in said Section; and no claim or award
against the City shall include attorney fees, investigative costs, exper t fees, suit costs or pre-
judgment interest. This section shall not prevent the City from taking corrective action against the
Contractor.
ARTICLE 20 - GOVERNING LAW / VENUE / WAIVER OF JURY TRIAL
20.1 The rights of the Parties hereto shall be construed, subject to, and in accordance with the laws of
the State of Florida. THE PARTIES HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT OR FILED BY EITHER
OF THEM AGAINST THE OTHER. Venue for any suit filed arising out of or related to this
Agreement shall be in a court of competent jurisdiction in Indian River County, Florida.
ARTICLE 21 – MISCELLANEOUS
21.1 The duties and obligations imposed by this Agreement and the rights and remedies available to
the parties and, in particular but without limitation, the warranties, guaranties and obligations
imposed upon the CONTRACTOR and all of the rights and remedies available to the CITY, are
in addition to, and are not to be construed in any manner as a limitation of any rights and
remedies available to any or all of them that are otherwise imposed or available by laws or
regulations, by special warranty or guarantee or by other provisions of the Contract Document s.
Furthermore, the provisions of this Paragraph will be as effective as if repeated specifically in the
Contract Documents, and the provisions of this Paragraph will survive final payment and
termination or completion of this Agreement.
21.2 Liens for Materials and Subcontractors: The Contractor agrees to ensure that no liens for
materials or materialmen shall exist upon completion of the Project and that all subcontractors
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have received payment for services due relating to the Project and indemnify City for same.
21.3 Disadvantage Business Enterprise (DBE): The DBE requirements of applicable federal and state
laws and regulations apply under this agreement, as defined in 49 C.F.R. Part 26. DBEs should
have a fair and equal opportunity to compete for dollars spent by the City of Sebastian to procure
construction-related services. The Contractor shall use good faith efforts to ensure opportunities
to compete for and perform contracts are available on the Project.
21.4 The CONTRACTOR shall not assign or transfer this Agreement or its rights, title or interests.
The obligations undertaken by the CONTRACTOR pursuant to this Agreement shall not be
delegated or assigned to any other person or firm. Violation of the terms of this Paragraph shall
constitute a material breach of Agreement by the CONTRACTOR and the CITY may, at its
discretion, cancel this Agreement and all rights, title and interest of the CONTRACTOR which
shall immediately cease and terminate.
21.5 The CONTRACTOR and its employees, agents, representatives, officers, volunteers and agents
shall be and remain an independent contractor and not agents or employees of the CITY with
respect to all of the acts and services performed by and under the terms of this Agreement. This
Agreement shall not in any manner be construed to create a partnership, association or any other
kind of joint undertaking or venture between the Parties.
21.6 The CITY reserves the right to audit the records of the CONTRACTOR relating in any way to the
Work to be performed pursuant to this Agreement at any time during the performance and term of
this Agreement and for a period of five (5) years after completion and acceptance by the CITY.
If required by the CITY, the CONTRACTOR agrees to submit to an audit by an independent
certified public accountant selected by the CITY. The CONTRACTOR shall allow the CITY
to inspect, examine and review the records of the CONTRACTOR at any and all times during
normal business hours during the term of this Agreement.
21.7 The City is a public agency subject to Chapter 119, Florida Statutes. The Contractor shall comply
with Florida’s Public Records law. Specifically, the Contractor shall:
21.7.1 Keep and maintain public records required by the public agency to perform the service.
21.7.2 Upon request from the public agency’s custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law.
21.7.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if the contractor
does not transfer the records to the public agency.
21.7.4 Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the contractor or keep and maintain public records required by
the public agency to perform the service. If the contractor transfers all public records to
the public agency upon completion of the contract, the contractor shall destroy any
duplicate public records that are exempt or confident ial and exempt from public
records disclosure requirements. If the contractor keeps and maintains public records
upon completion of the contract, the contractor shall meet all applicable requirements for
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retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency’s custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
21.7.5 The failure of the Contractor to comply with the provisions set forth in this section shall
constitute a material breach of Agreement and shall be cause for immediate termination
of the Agreement.
IF THE 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 PUBLIC
RECORDS AT 772-388-8215 OR EMAIL
jwilliams@cityofsebastian.org. CITY OF SEBASTAIN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
21.7.6 The remedies expressly provided in this Agreement to the CITY shall not be deemed to
be exclusive but shall be cumulative and in addition to all other remedies in favor of the
CITY now or later existing at law or in equity.
21.7.7 Should any part, term, or provision of this Agreement be decided by the courts to be
invalid, illegal or in conflict with any state or federal law, such part, term, or provision
shall be severed and the validity of the remaining portions or provisions of this
Agreement shall not be affected.
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IN WITNESS WHEREOF, the parties hereto have made and executed this agreement on the
respective dates under each signature: the City through its City Council taking action on the day of
__________________, 2024, and the Contractor signing by and through its duly authorized corporate
officer having the full and complete authority to execute same.
ATTEST: ISLAND HARBOR CUSTOM BUILDERS,
LLC
By:
_____________________________ _______________________________
Brian Neu, Owner
Date: _____________________
ATTEST: CITY OF SEBASTIAN, FL
By:
__________________________ ________________________________
Jeanette Williams, MMC Brian Benton, City Manager
City Clerk
Date: ______________________
For the use and reliance of the City of
Sebastian only. Approved as to form
and legal sufficiency.
______________________________
Jennifer D. Cockcroft, Esq.
City Attorney
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April
10th
4/22/2024 | 12:26:07 PM EDT