HomeMy WebLinkAbout2024 P.A.V.C.O. Agreement24-19-ITB, Hangar D Build Out – South Offices Page 1 of 31
CITY OF SEBASTIAN AGREEMENT FOR
CONSTRUCTION SERVICES WITH
P.A.V.C.O CONTRACTING GROUP, LLC
THIS AGREEMENT made and entered into September 25, 2024, by and between the City of
Sebastian, 1225 Main Street, Sebastian, FL 32958, a Florida municipal corporation (CITY) and P.A.V.C.O
Contracting Group, LLC (FEIN: 27-0423311) located at 505 East New Haven Avenue, Melbourne, FL
32901, (CONTRACTOR), (Parties);
WHEREAS, the CITY desires to retain the CONTRACTOR for the project as expressed in its ITB
24-19-ITB, Hangar D Build Out – South Offices, which was opened on September 12, 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 other Contract Documents, the following terms have the meanings
indicated which apply to both the singular and plural forms:
1.1 Agreement – This written agreement between the CITY and the CONTRACTOR covers the Work
to be performed at the proposed cost, including other Contract Documents attached to or
incorporated in the Agreement.
1.2 Application for Payment –The form the CONTRACTOR uses to request progress or final payment.
It must include such supporting documentation as is required by the Contract Documents.
1.3 Approve – The word approve means review of the material, equipment, or methods for general
compliance with the design concepts and the information 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
Contract Price or the Contract Time issued on or after the Agreement's Effective Date.
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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 authorized 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 money 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 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, 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 per
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 before 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 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 completed, including the completion of the final
punch list, 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 reactive, or unstable upon prolonged storage in quantities that
could pose a threat to life, property, or the environment defined in Section 101(14) of
Comprehensive Environmental Response, Compensation and Liability Act of 1980 and in 40 CFR
300.6). It is 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 the definition of hazardous
substance.
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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; any 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 fraction thereof, which is not
otherwise specifically listed or designated as a hazardous substance in the first sentence of this
paragraph. 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 per 40 CFR 261 due to the properties
of ignitability, corrosivity, reactivity, or toxicity. Any material subject to the Hazardous Waste
Manifest requirements of the EPA specified in 40 CFR Part 262.
1.22 Holidays – Those designated non-workdays 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, the day after Thanksgiving Day,
Christmas Eve, Christmas Day, or any other holidays approved by the City Council.
1.23 Inspection – The term “inspection” and the act of inspecting means the examination of the
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 as supervision, superintending, and overseeing.
1.24 Notice of Award – The written notice by the CITY to the CONTRACTOR stating that upon
compliance by the CONTRACTOR with the conditions precedent enumerated therein, within the
time specified, 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 Contract 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 the 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 invol ved
parties. In addition, the CONTRACTOR will discuss the schedule of operation, type, and adequacy
of equipment, sources of labor and labor requirements, maintenance of traffic, and precautions for
the safety 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 (otherwise 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.
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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 the
completion of the Work per 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 set 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 that 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 State 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 and 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:
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Hangar D Build Out – South Offices
2.2 All Work for the Project shall be constructed per the Drawings and Specifications.
2.3 Brief Description of Project: The contractor will provide general/residential contracting services
for the south office in Hangar D at Sebastian Municipal Airport. The contractor shall provide all
necessary labor, materials, equipment, transportation, supervision, etc.
ARTICLE 3 – PROJECT MANAGER
3.1 The CITY hereby designates the Project Manager to be:
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Jeff Sabo, Airport Manager
505 Airport Drive W
Sebastian, FL 32958
Office: 772-228-7013
Cell: 772-633-0897
Email: Jsabo@cityofsebastian.org
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 3 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 the execution of the Agreement.
4.1.11 Schedule of Completion and Schedule of Values.
4.1.12 Permits on file with the CITY and or those permits 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 before 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
Documents may only be altered, amended, or repealed per 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 September 25, 2024, and any attachments.
Priority 3: Invitation to Bid #24-19-ITB, Hangar D Build Out – South Offices prepared by
the CITY.
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Priority 4: CONTRACTOR’s response to the Invitation to Bid #24-19-ITB, Hangar D Build
Out – South Offices prepared by the CITY dated September 12, 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, the Contractor shall obtain a written
interpretation or clarification from the CITY.
4.4 The intent of the specifications and plans is 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 association, or the code of any governmental authority, whether such
reference is 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 explicitly stated. No
provision, however, of any referenced standard specification, manual, or code (whether or not
explicitly incorporated by reference in the Contract Documents) shall change the duties and
responsibilities of the CITY, the CONTRACTOR, or any of their agents, any subcontractors or
employees from those outlined in the Contract Documents.
ARTICLE 5 – CONTRACT TIME
5.1 The CONTRACTOR recognizes that TIME IS OF THE ESSENCE. The Contract Time shall
commence on the date outlined in a Notice to Proceed issued by the City to the Contractor. The
Work shall:
Substantially Completed within Sixty (60) calendar days after the date when the Contract Time
commences to run as provided for in the Notice to Proceed, and
Final Completion and ready for final payment in accordance with this Agreement within Ninety
(90) calendar days after the date when the Contract Time commences to run as provided in the
Notice to Proceed.
ARTICLE 6 – GUARANTEED MAXIMUM PRICE
6.1 CITY shall pay CONTRACTOR for the performance of the Work in accordance with Article 7,
subject to additions and deletions by Change Order as provided for in this Agreement, the sum, not
to exceed NINETY-THREE THOUSAND EIGHT HUNDRED DOLLARS AND NO CENTS
($93,800.00). The parties expressly agree that the Contract Price is a lump sum price, in accordance
with those items in the Bid, that are subject to unit prices.
The Contract Price constitutes the compensation payable to the 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.
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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 based on 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. Before 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 significant
elements of the Work and the dollar value of each component.
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 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 following 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.
7.2.2.3 Return the Application for Payment to the Contractor indicating, in writing,
the reason for refusing to approve the 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 days of receiving notice of refusal.
7.2.2.4 Monthly payments to the Contractor shall not imply approval or acceptance of
the Contractor’s work.
7.3 Retainage. Per Florida Statutes 255.078, the 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 before final completion of
the Project shall not 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
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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 same 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 portion 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 manuals are delivered to and accepted by the CITY.
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.
7.8 Direct Purchases. As a holder of a current Consumer’s Certificate of Exemption, the City reserves
the right to make direct purchases of any materials and equipment included in the project to achieve
sales tax savings. The City shall purchase the Pre-Engineered Buildings and all doors as described
in 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 delivery,
safekeeping, protection, insuring (as to those items that will be installed by the 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
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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 outlined in this Agreement.
8.2 CONTRACTOR has visited the Worksite, has conducted extensive tests, examinations, and
investigations and represents and warrants a thorough and complete familiarization with the nature
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 confirms that it is 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 If applicable, 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.
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 conditions 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
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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 CONTRACTOR to stop Work or terminate the Contract in accordance with Article
17.
8.7.4 If applicable, 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 a Notice to Stop Work or terminate the Contract in accordance with Article
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 limited 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 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
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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, rules, 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, ordinances, 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 regulations.
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.
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 cost to the CITY.
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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, shrub s,
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.
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, the 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". The 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. The contractor shall schedule and coordinate its Work around
any such relocation or temporary service interruption. Contractor shall be responsible for
adequately 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.
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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 protection needed 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 per sons 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 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
performance 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; and 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 that 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.
When delivered to the CONTRACTOR or the CONTRACTOR’s representative at the
Premises, this notice 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
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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 CONTRACTOR until
acceptance of the Work by the CITY. Title to the Work shall pass to the CITY upon approval of
the Work by the CITY.
8.20 Environmental:
8.20.1 The CONTRACTOR and CONTRACTOR’s experts have thoroughly 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
Worksite. Further, the CONTRACTOR and all entities claiming by, through, or under the
CONTRACTOR, release and discharge 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 presence
of any hazardous substances including asbestos on, under, from or about the Premises.
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 possible 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 (hereafter 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 law 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
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attributable to, in whole or in part, the CONTRACTOR’s use, handling, storage, 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 of the
CONTRACTOR in connection with the use, handling, storage, release, threatened release,
discharge, treatment, mitigation, natural resource restoration, removal, transport,
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 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. The contractor expressly
acknowledges and agrees that it shall receive no damages for delay. The contractor's sole remedy,
if any, against the 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 the 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 which 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 t hereof, or be deemed to
have waived any right which Contractor may have had to request a time extension. Notwithstanding
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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. The contractor and City acknowledge
that any Project site rain gauge measurements will not be relied upon to determine rainfall amounts.
8.22.1 Notwithstanding the foregoing, the City shall have the right, at any time, whether or not
the Contractor is behind schedule, to order the Contractor to accelerate its Work. In the
event that the City orders the Contractor to expedite its Work and Contractor (i) is not
behind schedule and (ii) believes that acceleration will increase the cost of performance,
the Contractor shall be required to submit a Claim for an increased 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, material men, suppliers, or their
subcontractors shall not be considered acts of force majeure.
8.23 All of the 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.
ARTICLE 9 – CITY’S RESPONSIBILITIES
9.1 The CITY shall furnish the data required of the CITY under the Contract Documents promptly 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 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 issues in question. Written notice of each claim, dispute, or other matter will be
delivered by the 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 accordance 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 that may arise
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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 a certified copy of the recorded Performance Bond
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 pay the CONTRACTOR until the CONTRACTOR has
complied with this requirement. All Bonds shall be furnished and supplied 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 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.
10.3 CONTRACTOR’s Liability Insurance: The CONTRACTOR shall purchase and maintain such
comprehensive general liability and other insurance as will protect 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.
10.3.1 Claims under workers’ or worker’s compensation, disability benefits, and other similar
employee benefit acts;
10.3.2 Claims for damages because of bodily injury, occupational sickness or disease, or death
of the CONTRACTOR’s employee;
10.3.3 Claims for damages because of bodily injury, sickness or d isease, or death of any person
other than the CONTRACTOR’s employee;
10.3.4 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;
10.3.5 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
10.3.6 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
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10.3.7 Claims for losses arising out of or related to the indemnification and hold harmless clauses
of the Agreement.
10.3.8 The insurance required by Paragraph 10.5 shall include the specific coverage set forth
herein and be written for not less than the limits of li ability and coverage provided 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 refused renewal 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 Work in accordance
with Article 11. In addition, the CONTRACTOR shall maintain such completed operations
insurance for at least one (1) year after final payment and furnish CITY with evidence of
continuation of such insurance at final payment and one (1) year thereafter. All insurance
required by this Paragraph 10.5 will name the CITY OF SEBASTIAN as additional insured
for both ongoing 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.
10.4 Minimum insurance coverage, with limits and provisions, are as follows:
10.4.1 Comprehensive General Liability: The CONTRACTOR shall provide minimum
combined single limits of $1,000,000.00 for 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, and
contractual liability, specifically confirming and insuring the contract's indemnification
and holding harmless clause. This insurance policy shall be considered primary to and not
contributing to any insurance the City maintains. It shall name the City as an additional
insured with a waiver of subrogation noted on the Certificate of Liability. The policy of
insurance shall be written on an “occurrence” form.
10.4.2 Automobile: The CONTRACTOR shall provide minimum liability limits of
$1,000,000.00 for each accident and a single limit for bodily injury and property
damage. This shall include coverage for:
10.4.2.1 Owned Automobiles
10.4.2.2 Hired Automobiles
10.4.2.3 Non-Owned Automobiles
10.4.3 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 the
Employer’s Liability with minimum limits of $1,000,000 each accident and a waiver
of subrogation.
10.4.4 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**
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10.4.5 The CONTRACTOR shall further ensure that all of its sub-contractors maintain
appropriate levels of workers’ compensation insurance.
10.4.6 Other Insurance Provisions: The CITY is to be specifically included on all Certificates of
Insurance as an additional insured (with the exception of Worker's Compensation). Waiver
of subrogation is required for Commercial General Liability and Automobile Liability
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 thirty (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.
10.4.7 Deductible Clause: The CONTRACTOR shall declare all self-insured retention and
deductible amounts.
10.4.8 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.
10.4.9 All Certificates of Insurance shall be approved by the CITY before 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 defects 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
supplies, materials, and equipment to be supplied under 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 notice (a
minimum of thirty-six (36) hours) for all required inspections, tests, or approvals.
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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 be inspected, tested, or approved specifically, the
CONTRACTOR shall assume full responsibility, pay all costs in connection in addition to
that, and furnish the Project Manager the required certificates of inspection, testing or
approval. The CONTRACTOR shall also be responsible for and 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 before the CONTRACTOR’s purchase thereof for incorporation in the Work.
11.2.2 All inspections, tests, or approvals are the CONTRACTOR's responsibility.
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 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 Paragraphs 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 CITY has rejected the Work, remove it from the site and replace it with non-
Defective Work.
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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 prescribed by law or by the terms of 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 correct such Defective Work, or, if the CITY has rejected it, remove it
from the site and replace it with non-Defective Work. Concerning the correction of any Defective
or nonconforming Work, the Contractor shall be liable for all damage to any part of the Work itself
and any adjacent or other property caused by the Defective Work or 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 before the Project Manager recommends final
payments, a Change Order shall be issued incorporating the necessary revisions in the contract
documents, including an appropriate reduction in the Contract 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 to it, 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 access to the site as
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 the 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
the 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 arising from the 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 at this moment 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 (from now on the “City”) from any
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 performance of the Work
on the Project.
The duty to defend under this Section is independent and separate from the duty to
indemnify, and the duty to protect 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 being 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 a 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 suits and causes of actions of every name, or
description that may be brought against CITY, on account of any claims, expenses,
royalties, or costs for any invention or patent and the infringement of any 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 preceding 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 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 otherwise 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
fails to do so, CITY shall have the right, in addition to all other rights and remedies
provided by this Agreement or by law, to satisfy, remove, or discharge such lien or claim
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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. If the amount due
CONTRACTOR is less than the amount required to satisfy the 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 run 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 proceed 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 Price or an extension or shortening of the
Contract Time, an equitable adjustment will be made as provided in Article 14 or Article 15 based
on a claim made by either Party.
13.2 The Project Manager may authorize minor changes in the Work that do not involve an adjustment
in the Contract Price or the Contract Time and 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 CONTRACTOR’s
responsibility to notify so 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 claim amount with supporting data shall be provided in writing and delivered within twenty
(20) days of such occurrence unless the Project Manager allows an additional period to ascertain
accurate cost data. Any change in the Contract Price resulting from any such claim shall be
incorporated in the City's Change Order.
14.2 Cost Breakdown Required: Whenever the Cost of the Work is to be determined under this Article,
the CONTRACTOR, upon request of the CITY, will submit in a 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, equipment,
and other cost items.
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14.2.2 Whenever a change involves the CONTRACTOR and one (1) or more
subcontractors and increases 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 If a claim is made as provided in Paragraph 15.1, the Contract Time will be extended in an amount
equal to the time lost due to delays more fully described in Section 8.22 of this Agreement.
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 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 every
calendar day until the Work reaches the 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 number of damages the City will sustain if the Contractor fails to achieve
the Substantial Completion Date timely.
When the contractor defaults on 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 contractor 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 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 resume the work on the fixed date. The CONTRACTOR will be allowed an extension of the
Contract Time directly attributable to any suspension if the CONTRACTOR makes a claim as
provided in Article 15; provided, however, the CONTRACTOR shall not be entitled to any
extended or delay damages as outlined in Paragraph 8.21.
17.2 CITY May Terminate for Convenience: The CITY retains the right to terminate this Agreement,
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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 termination date, 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
explicitly 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 receivables 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 the
property of the CONTRACTOR is to enforce a lien against such property or for the 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 as required by 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 progress schedule as it may be
revised from time to time.
17.3.5 If the CONTRACTOR repeatedly fails to promptly pay 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 local, state, or federal laws or regulations.
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.
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 incorporate them in the Work, and all
materials and equipment stored at the site or for which the 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 termination for cause shall extend to and include
the total amount of any sums paid, expenses and losses incurred, damages sustained, and
obligations assumed by the City in good faith under the belief that such payments or
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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 about
or arising out of the Work hereunder.
17.4.3 If, after notice of termination of Contractor for default under 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. The Contractor’s remedies
shall be the same 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 under 11 U.S.C. 362. The City shall be entitled to relief from the automatic
stay under 11 U.S.C. 362(d)(1) or (d)(2), and the Contractor agrees to waive
the notice provisions in effect under 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, if the City does not seek stay relief or 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 by 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 preceding 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. 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 oversecured
and, therefore, entitled to interest and attorney’s fees under 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 payments remaining on
the Note, the Contractor agrees 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 the Contractor, the following shall occur:
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17.5.2.1 In the event the Contractor files a voluntary petition under 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 Agreement. Further, the Contractor
acknowledges that this Agreement constitutes an executory contract within 11
U.S.C. 365. The Contractor acknowledges that this Agreement cannot be
assumed under 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 permission 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
cannot be assigned under 11 U.S.C. 365(b)(1).
17.6 Should the CITY terminate the CONTRACTOR’s services, the termination shall not affect any
rights of the CITY against the CONTRACTOR then existing or which may after that accrue. Any
retention or payment of money due to the CONTRACTOR by the CITY will not release the
CONTRACTOR 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 occurs concerning 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 to 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:
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:
P.A.V.C.O Contracting Group, LLC
Michael Fischer, Managing Member
505 East New Haven Avenue
Melbourne, FL 32901
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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 limit 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 sufficiency of which is at this moment
acknowledged, the 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 paid
by the City to Contractor under 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 outlined in Section 768.28, Florida Statutes, or to extend the City’s liability
beyond the limits established in said Section. No claim or award against the City shall include
attorney fees, investigative costs, expert 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 by 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. The 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, guarantees, 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 exceptional
warranty or guarantee or by other provisions of the Contract Documents. Furthermore, the
provisions of this Paragraph will be as effective as if explicitly repeated 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 have received
payment for services due relating to the Project and indemnify the 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 Seb astian to procure
construction-related services. The Contractor shall use reasonable 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 under 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 the 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
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immediately cease and terminate.
21.5 The CONTRACTOR and its employees, agents, representatives, officers, volunteers, and agents
shall be and remain independent contractors and not agents or employees of the CITY
concerning all of the acts and services performed by and under the terms of this Agreement. This
Agreement shall not 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 under this Agreement at any time during the performance and term of this
Agreement and for 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 time during regular
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 documents or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the price 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 confidential 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 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 compatible with the public
agency's information technology systems.
21.7.5 The failure of the Contractor to comply with the provisions outlined in this section shall
constitute a material breach of the Agreement and cause 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
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JEANETTE WILLIAMS, THE CUSTODIAN OF PUBLIC
RECORDS AT 772-388-8215 OR EMAIL
jwilliams@cityofsebastian.org. CITY OF SEBASTIAN, 1225
MAIN STREET, SEBASTIAN, FLORIDA 32958
21.7.6 The remedies expressly provided in this Agreement to the CITY shall not be exclusive .
Still, they 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.
[Remainder Of Page Intentionally Left Blank; Signature Page To Follow
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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 September 25,
2024, and the Contractor signing by and through its duly authorized corporate officer having the complete
authority to execute same.
ATTEST: P.A.V.C.O CONTRACTING GROUP, LLC
By:
________________________________ ________________________________
Kelly Brothers Michael Fischer, Managing Member
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
Docusign Envelope ID: D9C51E91-6A7F-47CF-B542-6B937A1774AD
9/23/2024 | 10:18:10 AM PDT
Approved by City Council on September 25, 2024.
9/26/2024 | 12:56:52 PM EDT