HomeMy WebLinkAbout25-17-ITB - Dickerson Infrastructure, Inc. Agreement - SignedCITY OF SEBASTIAN AGREEMENT FOR
SEBASTIAN MUNICIPAL AIRPORT TAXIWAY G CONSTRUCTION WITH
DICKERSON INFRASTRUCTURE, INC.
THIS AGREEMENT made and entered into the _______ day of
________________, 2025 by and between the City of Sebastian, Florida, whose
address is 1225 Main Street, Sebastian, FL 32958, a municipal corporation of the State
of Florida, hereinafter referred to as the (CITY) and DICKERSON INFRASTRUCTURE,
INC., DBA DICKERSON FLORIDA, INC. (FEIN: 56 -1327509), whose principal and local
address is 3122 North 25th Street, Fort Pierce, FL 34946 hereinafter referred to as the
(CONTRACTOR). The City and the Contractor are collectively referred to herein as the
WHEREAS, the CITY desires to retain the CONTRACTOR for the project as
expressed in its Invitation to Bid 25-17, which was opened on July 17, 2025; 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.
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 the 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,,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
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.
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
Thanksgiving Day, the day after Thanksgiving Day, Christmas Eve, Christmas
Day, or any other holidays approved by the City Council.
1.23 Inspection of inspecting means the
examination of the construction of the Work by the Project Manager or the Project
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 involved 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.
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 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 - 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:
25-17-ITB
Sebastian Municipal Airport Taxiway G Construction
2.2 All Work for the Project shall be constructed per the Drawings and Specifications.
2.3 Brief Description of Project: The City of Sebastian seeks bids from licensed
contractors for the Taxiway G Construction at the Sebastian Municipal Airport for
the city of Sebastian, Florida, located at 202 Airport Drive E, Sebastian, FL 32958.
The Licensed Contractor shall furnish all labor, materials, supervision, equipment,
tools, transportation, supplies and expertise necessary for providing services.
ARTICLE 3 PROJECT MANAGER
3.1 The CITY hereby designates the Project Managers to be:
Jeffrey Sabo
Airport Manager
1225 Main Street
Sebastian, FL 32958
E:Jsabo@cityofsebastian.org
P: 772-228-7013
Engineer of Record
Infrastructure Consulting & Engineering, LLC
Doug Hambrecht
E:doug.hambrecht@ice-eng.com
P: 813-330-2701
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 one through three 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:
4.2.1 Priority 1: Specific direction from the City Manager (or designee).
4.2.2 Priority 2: This Agreement, dated ______________________, and any
attachments.
4.2.3 Priority 3:25-17-ITB, Sebastian Municipal Airport Taxiway G
Construction prepared by the CITY.
4.2.4 Priority 4:25-17-ITB, Sebastian
Municipal Airport Taxiway G Construction dated July 17,
2025.
4.2.5 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 be:
5.1.1 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
Completion of Phase 1 - 53 Calendar Days
Completion of Phase 2 - 7 Calendar Days
5.1.2 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.
5.1.3 Punch list and permanent markings 30 Consecutive Calendar Days from
the completion of Phases 1 & 2
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 EIGHT HUNDRED EIGHTY-TWO
THOUSAND DOLLARS AND ZERO CENTS ($882,000.00). 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.
6.2 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
Contract Price.
ARTICLE 7 - PAYMENT PROCEDURES
7.1 CONTRACTOR shall submit Applications for Payment in accordance with the
Contract Documents. Applications for Payment will be processed by CITY as
provided in the General Terms and Conditions (see Section 4.23 of the Bid).
7.2 Progress Payments. The 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 project managers listed in Section 3.1 for its review and
approval:
A.A schedule of values based upon the firm/fixed GMP, listing the
significant elements of the Work and the dollar value of each
component.
B.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.
C. 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 project managers listed in Article 3 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:
A.Indicate approval of the requested payment.
B.Indicate approval of only a portion of the requested payment, stating
in writing the reasons therefore.
C. 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.
D. Monthly payments to the Contractor shall not imply approval or
acceptance of the 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 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
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
rom a
contractor for labor, services, or materials furnished by subcontractors and
suppliers hired by the subcontractor, the subcontractor shall remit payment due to
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
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,
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 o
the City reserves the right to make direct purchases of any materials and
equipment included in the project to achieve sales tax savings. 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
Price (GMP), the GMP will be reduced by
the amount included for each item.
ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS
8.1 In order to induce the CITY to enter into this Agreement, CONTRACTOR makes
the following representations upon which the CITY has relied:
8.1.1 CONTRACTOR is qualified in the field of public construction and in
particular to perform the Work and services outlined in this Agreement.
8.1.2 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
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.
8.2 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.
8.3 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 8.1.1 and 8.1.2, 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.
8.4 CONTRACTOR has correlated the results of all such tests, investigations, reports,
observations, examinations investigations, tests, reports and data conducted and
and conditions of the Contract Documents.
8.5 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.
8.6 Labor:
8.6.1 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.
8.6.2 The CONTRACTOR shall, at all times, have a competent superintendent,
capable of reading and thoroughly understanding the drawings and
agent on the Project, who shall, as
the , and otherwise conduct the
Work.
8.6.3 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
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.
8.6.4 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.
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.
8.6.5 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.
8.7 Materials:
8.7.1 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.
8.7.2 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.
8.8 Work Hours:
8.8.1 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 Sebas
consent at least seventy-two (72) hours in advance of starting such Work.
8.8.2 If the Project Manager permits overtime Work, the CONTRACTOR shall pay
for the additional charges to the CITY, as described herein, with respect to
such overtime Work. Such additional charges shall be an additional cost
and obligation of the CONTRACTOR and no extra payment shall be made
to the CONTRACTOR for overtime Work. The cost to the CONTRACTOR
to reimburse the CITY for overtime inspection is established at direct- labor
and overtime costs for each person or inspector required. Incidental
overtime costs for engineering, testing, and other related services will also
be charged to the CONTRACTOR at the actual rate accrued.
8.9 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.
8.10 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
8.11 Laws and Regulations:
8.11.1 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.
8.11.2 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;
make certain that the specifications and plans are in accordance with such
laws, ordinances, rules and regulations.
8.12 Taxes: The CONTRACTOR shall pay all sales, consumer, use, and other similar
taxes required to be paid by him in accordance with all laws.
8.13 CONTRACTOR Use of Premises:
8.13.1 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.
8.13.2 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.
8.13.3 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 CONTRACTO ,
and no cost to the CITY.
8.13.4 The CONTRACTOR will preserve and protect all existing vegetation such
as trees, shrubs, and grass on or adjacent to the site which do not interfere
with the Work, as determined by the Project Manager. The CONTRACTOR
will be responsible for repairing or replacing anything damaged by the
CONTRACTOR including but not limited to any trees, shrubs, lawns,
landscaping, and structures that may be damaged due to operation of
equipment, stockpiling of materials, tracking of grass by equipment or other
Work activity. The CONTRACTOR will be liable for and will be required to
replace or restore at no expense to the CITY all structures and vegetation
not protected or preserved as required herein that may be destroyed or
damaged.
8.13.5 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.
8.14 Project Coordination:
8.14.1 The CONTRACTOR shall provide for the complete coordination of the
construction effort. This shall include, but not be limited to, coordination of
the following:
A. Flow of material and equipment from suppliers.
B. The interrelated Work with affected utility companies.
C. The interrelated Work with the CITY where tie-ins to existing facilities
are required.
D. The effort of independent testing agencies.
E. Notice to affected property owners as may be directed by the Project
Manager.
8.14.2 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 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.
8.15 Project Record Documents and As-Builts (Record Drawings): The CONTRACTOR
shall keep one record copy of all specifications, plans, addenda, modifications,
shop drawings, and samples at the site, in good order and annotated to show all
changes made during the construction process. These shall be available to the
Project Manager for examination and shall be delivered to the Project Manager
upon completion of the Work. Upon completion of the project and prior to final
payment, an as-built (record drawings) of the Project shall be submitted to the
Project Manager. The as-built drawings shall be signed and sealed by a Florida
Registered Professional Surveyor and Mapper.
8.16 Safety and Protection:
8.16.1 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:
A. All employees working on the project and other persons who may be
affected thereby.
B. All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the site.
C. 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.
8.16.2 The CONTRACTOR shall comply with all applicable laws, ordinances,
rules, regulations, and orders of any public body having jurisdiction for the
safety of persons or property or to protect them from damage, injury, or
loss; and shall erect and maintain all necessary safeguards for such safety
and protection. The CONTRACTOR shall notify owners of adjacent
property and utilities when prosecution of the Work may affect them at least
seventy-two (72) hours in advance of commencing said Work (unless
otherwise required). All damage, injury, or loss to any property caused,
directly or indirectly, in whole or in part by the CONTRACTOR, any
subcontractor, or anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable, shall be remedied by the
C 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.
8.16.3 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.
8.16.4 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.
8.16.5 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.
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 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.
8.17 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.
8.18 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.
8.19 Environmental:
8.19.1 thoroughly
examined and inspected the Premises and agree to accept the Premises
in an 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
removal, transport, decontamination, cleanup, disposal and presence of
any hazardous substances including asbestos on, under, from or about the
Premises.
8.19.2 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.
8.19.3 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.
8.19.4 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 attributable to, in
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.
8.19.5
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.
8.20 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.
8.21 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 thereof, or be deemed to have waived any right
which Contractor may have had to request a time extension. Notwithstanding the
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.
8.21.1 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.
8.21.2 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.
8.22 All of the
Contract Documents shall flow down and apply equally to all the Cont
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
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 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 under or by reason of
this Agreement, or the quality, amount, and value of the Work,
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
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 bility 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
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 compensation, disability benefits, and
other similar employee benefit acts;
10.3.2 Claims for damages because of bodily injury, occupational sickness or
10.3.3 Claims for damages because of bodily injury, sickness or disease, or death
of any person
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
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
liability 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
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 Compensation: The CONTRACTOR shall provide and maintain
Coverage for all employees for statutory limits as required by the State of
ral
laws. The policy(ies) must include the
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
Liability.**This coverage is optional if the CONTRACTOR carries
$2,000,000 Commercial General Liability Insurance with a $2,000,000
general aggregate**
10.4.5 The CONTRACTOR shall further ensure that all of its sub-contractors
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 ntly
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.
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
fabricator, supplier, or distributor of
materials or equipment proposed to be incorporated in the Work, or of
materials or equipment submitted for approval before
purchase thereof for incorporation in the Work.
11.2.1.1 All inspections, tests, or approvals are the CONTRACTOR's
responsibility.
11.2.2 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
CONTRACTOR has given the Project Manager timely notice of the
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
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.
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,
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
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
services related to it, and take possession of
construction equipment and materials stored at the site or elsewhere. The
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
not be allowed an extension of the Contract Time because of any delay in the
performance of the Work attributable to the exercise
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
12.2 Indemnification: For other and additional good and valuable consideration, the
receipt and 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 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.
12.2.2 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
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.
12.2.3 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.
12.2.4 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.
12.2.5 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 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
article, paragraph, or section of this Agreement, the CONTRACTOR shall
be liable for the deficiency due the CITY.
12.2.6 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 CO 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.
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
Florida Power and Light Company.
ARTICLE 16 - LIQUIDATED DAMAGES
16.1 The contractor agrees to the use of liquidated damages in the event the contractor
fails to perform by the provisions herein. The Contractor hereby agrees, as part
consideration for awarding the Agreement, to pay the City the sums outlined in
section 16.2 for each and every calendar day that the Contractor shall be in default
after the time stipulated in the Agreement for completing the Work. The Contractor
and City acknowledge and agree that said sum is not a penalty but liquidated
damages for breach of contract
16.2 Liquidated Damages:
Task Consecutive Calendar Days
from Notice to Proceed
Liquidated
Damages
Completion of Phase 1 53 $500 PER DAY
Completion of Phase 2 7 $500 PER DAY
Contract Time 60
Task
Consecutive Calendar Days
from the completion of
Phases 1 & 2
Liquidated
Damages
Punch list and permanent
markings 30 $500 PER DAY
16.3 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.
16.4 On the occasion where the contractor is in default of the Agreement, or any material
provision thereof, or fails to remedy any deficiency in performance, the City may procure
the necessary supplies or services from an alternative source and hold the 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, without cause, with thirty (30) days prior written notice. In the
event of such termination for convenience, the 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
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
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 ause:
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
, 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 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 Con
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:
A.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.
B. 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.
C. 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
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:
A. 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 , 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
P: 772-388-8231
E:Procurement@cityofsebastian.org
TO THE CONTRACTOR:
Michael Bryant, President
Dickerson Infrastructure, Inc. dba Dickerson Florida, Inc.
3122 N. 25th St
Ft Pierce, FL 34946
P: 772-429-4444
E:MBryant@dfifl.com
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
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
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 outlined in Section
768.28, Florida Statutes,
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 Sebastian 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 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
Contractor shall:
21.7.1 Keep and maintain public records required by the public agency to perform
the service.
21.7.2
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
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
JEANETTE WILLIAMS, THE CUSTODIAN OF PUBLIC
RECORDS AT:
CITY CLERK
PHONE: 772-388-8215
EMAIL:JWILLIAMS@CITYOFSEBASTIAN.ORG.
ADDRESS: 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.
IN WITNESS WHEREOF, the parties hereto have made and executed this
agreement on the respective dates under each signature: the City through its City Council
taking action on the ______ day of ______________ 2025, and the Contractor signing
by and through its duly authorized corporate officer having the complete authority to
execute same.
ATTEST:DICKERSON INFRASTRUCTURE, INC.
DBA DICKERSON FLORIDA, INC.
By:
____________________________________________________
Witness Name Michael B. Bryant, President
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
August12th
EXHIBIT A
EVIDENCE OF AUTHORITY