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Home My WebLink About01232013 Agenda Packet�� '��1� HOME OF PELICAN ISIAND SEBASTIAN CITY COUNCIL AGENDA REGULAR MEETING WEDNESDAY, JANUARY 23, 2013 - 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL AGENDA ITEMS MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK 1225 MA/N STREET, SEBASTIAN, FLORIDA OR ON THE CITY WEBSITE Procedures for Public Input are Attached to the Back of the Agenda CALL TO ORDER 2. INVOCATION — Pastor Clifton Cooley, Calvary Baptist Church 3. PLEDGE OF ALLEGIANCE — Led by Council Member Coy 4. ROLL CALL 5. AGENDA MODIFICATIONS Modifications and additions require unanimous vote of City Council members 6. PROCLAMATIONS, AWARDS, BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. pg 5 A. Proclamation — Sebastian Purple Heart Community — Requested by Brian Heady pg 6 B. Proclamation — Harlem Ambassadors Basketball Game and Show Night at Sebastian River High School — February 21, 2013 — Accepted by Jim Davis, President, Indian River County NAMI C. Brief Announcements 1 of 159 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his✓her hand to be recognized. pgs 7-11 A. pgs 12-13 B. pgs 14-25 C. 8. 9. 10 Approval of Minutes — January 9, 2013 Regular Meeting Approve FY13/14 Budget Calendar (Administrative Services Department Transmittal, Calendar) Second Amendment to Sebastian River Area Chamber of Commerce Lease for Building Insurance Coverage (City Manager Transmittal, 2"d Amendment, Lease) COMMITTEE REPORTS 8� APPOINTMENTS City committee reports and Council Member regional committee reports. No public input or action except for City committee member nominations and appointments under this heading. PUBLIC HEARINGS - None UNFINISHED BUSINESS pgs 26-27 A. Update CavCorp Project — Frank Hickson, Infrastructure Engineers (City Manager Transmittal, Layout 13-1) 11 12 PUBLIC INPUT NEW BUSINESS pgs 28-52 A. Resolution No. R-13-01 Transfer NationAir Aviation Insurance Lease to Rud Aero (Community Development Transmittal, R-13-01, Letters of Intent, Lease, Consent) pgs 53-93 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, PERTAINING TO THE SEBASTIAN MUNICIPAL AIRPORT; AUTHORIZING THE TRANSFER OF LEASEHOLD ASSETS BETWEEN NATIONAIR INSURANCE AND RUD AERO; PROVIDING FOR THE REPEAL OF RESOLUTIONS IN CONFLICT AND PROVIDING FOR EFFECTIVE DATE. B. Authorize the Followinq Enqlar Street Improvements: (City Manager Transmittal, Bid Responses, Contract) i. Ranger Construction Overlay Contract in the Amount of $73,022 ii. Asphalt Recycling Rebuilding Contract in the Amount of $49,923 iii. Allocate $3,000 to CTI for Inspection Services iv. Transfer $36,173 from the General Fund to Local Option Gas Tax Fund pgs 94-144 C. Review Solid Waste Franchise Request For Proposal (City Manager Transmittal, Draft Ad, Specs, Ordinance, Agreement) 2 of 159 13. 14. pgs 145-156 pgs 157-159 CITY ATTORNEY MATTERS CITY MANAGER MATTERS A. L'-' Update — Credit Card Billing/Payment Process (Administrative Services Transmittal, F.S.501.0117, Proposal) Goal Setting Workshop Direction (City Manager Transmittal, Calendars) 15. CITY CLERK MATTERS 16. CITY COUNCIL MATTERS A. Council Member Adams B. Council Member Coy C. Council Member Hill D. Mayor McPartlan E. Vice Mayor Wright 17. ADJOURN (All meefings shall adjourn af 10:00 p.m, unless exfended for up fo one half hour by a majority vote of City Council) HEARING ASSISTANCE HEADPHONES ARE AVAILABLE IN THE COUNCIL CHAMBERS FOR ALL GOVERNMENT MEETINGS. All City Council Meetings are Aired Live on Comcast Channel 25. ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (F. S.286. 0105) IN COMPLIANCE WITH THE AMERICAN WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. Upcominq meetinqs: February 13, 2013 — Board of Adjustment Meeting — 6:00 pm February 13, 2013 — Regular City Council Meeting with inserted CRA Meeting — 6:30 pm February 27, 2013 — Regular City Council Meeting — 6:30 pm March 13, 2013 — Regular City Council Meeting — 6:30 pm March 27, 2013 — Regular City Council Meeting with inserted CRA Meeting — 6:30 pm 3 of 159 PROCEDURES FOR PUBLIC INPUT IN ACCORDANCE WITH RESOLUTION R-12-01 Reqular Citv Council Meetinqs Pubiic input is ALLOWED under the headinqs: ✓ Consent Agenda ✓ Public Hearings ✓ Unfinished Business ✓ New Business ✓ Public Input Public input is NOT ALLOWED under the headinqs: ✓ Proclamations, Awards, Brief Announcements (except for individuals giving or accepting proclamations or awards); ✓ Committee Reports and Appointments (except for committee members giving reports and applicants being interviewed for committee appointments); ✓ City Council Matters ✓ Charter Officer Matters Council may, by majority vote, call upon an individual to provide input if desired. Workshops and Special Meetinqs. Public input is limited to the item on the agenda Time Limit Input on agenda items where public input is permitted on agendas is FIVE MINUTES; however, City Council may extend or terminate an individual's time by majority vote of Council members present. Input Directed to Chair Speakers shall address the City Council IMMEDIATELY PRIOR TO CITY COUNCIL DELIBERATION of the agenda item and ALL INPUT SHALL BE DIRECTED TO THE CHAIR, unless answering a question of a member of City Council or City staff. Individuals shall not address City Council after commencement of City Council deliberation on an agenda item after public input has concluded, provided, however, the Mayor and members of City Council may recall an individual to provide additional information or to answer questions. Certain Remarks Prohibited Personal, impertinent, and slanderous remarks, political campaigning and applauding are not permitted and may result in expulsion from the meeting. The Chair shall make determinations on such remarks, subject to the repeal provisions below. Appealinq Decisions of Chair Any member of Council may appeal the decision of the Chair to the entire Council. A majority vote of City Council shall overrule any decision of the Chair. Public Input Headinq on Agenda The heading on Regular Meeting agendas "Public Input" provides an opportunity for individuals to bring NEW INFORMATION OR REQUESTS TO CITY COUNCIL NOT OTHERWISE ON THE PREPARED AGENDA. Individuals are asked to attempt to resolve matters with staff prior to meetings. Individuals are asked to provide copies of material for Council one week prior to the meeting if they intend to refer to specific material. City Council will not debate an issue during Public Input but may by consensus direct a Charter Officer in regard to the item if necessary or place a requested item on a future agenda. 4 of 159 s, m� �, �. ��': .t�c� , � =• ,�, �«. � s � �s� ; � ` � � �` � � 3` . � �F'� : �, __`°�=-..... �� -. :�.:;�� :, �� • • ' � � w.. �� PURPLE HEA�,Y C�N�M'�119VIT'Y WHEREAS, Sebastian is located on Florida's Treasure Coast and our resid�nts have always treas�red aur Military Veteran population in our city and our caunty, now numbering ouer 18,000 veterans; and WHEREAS, the Purp[e Heart is the o[dest military �ecoration i� �se taday which evo(ved from the Badge of Military Merit, created by General George Washington for tF�e common soldier in 1782; and WHEREAS, the Purple Heart is awarc[ed to members of the Uni#ed States Armed Forces who have been wound�d ar kiElec[ in combat with a dec(ared enemy of the United Siates of America; and WHEREAS, the mission of the Military Order of the Purple H�art is to foster an en�iro�men� of goodwill among the combat wounded veteran and their families, promot� patriotism, support legislative initiatives ar�d mast imporkantly ma�C� sure we never forget; anrl � � WHEREAS, Sebastian has a highly decoratec[ veteran population and on Ju[y 4, 2Qa7 by reqt��st of the Order of the Purple Heart, and funded by th� Sebas#ian VFW, Sebastian American Legion and Indian River Caunty Order af �he Purple Heart, a Purple Heart mon�mer�t was placed at the Veterans' Memariaf in the City's Riverview Park and reads: "My stone is red for the blood fhey shed. The medal 16ear is my Country's way to show fhey care. !f 1 could be seen by a!! mankind maybe peace will com� in my lifetrme.'; and WHEREAS, We appreciaie veter�ns and the sacrifices our Purple Heart recipients have made in defending our freedoms ar�d beiieve it is important that we acknow[edge them far their caurage and shaw them the support they have earned; ar�d NOW THEREFORE, !, Bob McPartlan, by virtue of the authority vested in me as Mayar o� the City of 5ebastiar�, and on behalf of the 5ebastian City Council do hereby proclaim 5ebastian as a Purpfe H�art Community. IN WITNESS WHEREOF, 1 have hereunto set my hand and caused the seal of the City of Sebastian, Flarida, to be affixed this 23�� day af January, 20'[3. �, ��'�� ;�� . ��.��:� i�� `��of`�� Bob McPartlan Mayor �r,��-e�'!�8��`�.��"'��.�'�� ; + 5 of 159 � s �� = A � �� ;� �� y � ��r '�., � .�#� :* ; y� ��,�� ".�,,,�.. � '� _ - � ��. • ! � � a � ��' �� ¢ �� ,� �,: "w�� r.,n ^`�"�`°. =�i� � �'�` �� ►�'� �'I�� i �.� � �� , �-� ��'�,��. ``��.�� IXG�. �z � ��`�:� � � �.� -�-�� €� � •��' � �� 1 �`�' 1 - ��; � 1 � .4. '.,l� .� �,,�� ,A. � ii� .l - .I� � 1 �,` .. ' . �. . i : • • *. i. . - • i 'r ;1 w: WHEREAS, 1,7� 3 persons were treated far mental illness at the BehavioraE Heafth Center in Indian River Caunty in 20� 1; and WHEREAS, tF�e National Alliance on Mental Illness (NAMI) in Indian Riv�r County is dedicated to improving tf�e lives of those s��fering from mer�taf illness and th�ir fami[ies; and WHEREAS, the Flarida Comets AAU Youth Baske#6a11 Organization is dedicated to empowering locai area youth with the discipline and skills n��ded to be college levef bas�Cetbal[ players and succ�ssful st�adents; and WHEREAS, NAMI ir� Indian River County and the �'lorida Comefs AAU Youth Basketball Organization, both 50'i-C-3 non-profit arganizations, are joining together to h�st the Harlem Ambassadors Basketball Game and Shaw at Sebastian River High 5chool Gymnasium on Thursday, �'ebruary 21, 2D'13, at 6:3Q �.m. to raise needed funds to help mentally iil and youth basketball; and WHEREAS, the internafionally acclaimed Harlem Ambassadors offer a uniqu� brand exhibition basketbafl featuring high-flying slam dunks, dazzling ball-handling tricks and hifarious comedy rautines, and have helped ta raise millions of dollars for lacal chari�ies; and WHEREAS, the lacal Flarida Comets All-Stars wifl play the Harlem Ambassadors in an exciting and entertaining basketbal[ game on February 21, 209 3 at the 5ebastian Ri�er High School Gym. NOW THEREFORE, I, Bob McPartlan, by vi�tue of the autharity uested in me as Mayor of the City of Sebastian and on beha[f of the City Council do hereby proclaim February 21, 2013 as Harlem Ambassadors Night ir� Sebastian and e�end b�st wishes for a succ�ssful event. IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the City of Sebastian, Florida, to i�e affixed th�s 23RD day af January, 20'f 3. °�.�, ��,� �;��n��:�=�� , ��' �`��`��`�� / : �%/� . �,' �`�� CI[1'OF�,'�� ` ��' � �U � /�',/ + �G � �t L•✓� �•• � S��9A�S�T�A'�Ai.� Bob McPartlan Mayor �_��-- � ;� � �.�� .��.,�- �,. ��. ;�., , CfiYC�F �� ,,:,., :: -,'�_� � ��, " � �� H4ME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL MINUTES REGULAR MEETING WEDNESDAY, JANUARY 9, 2013 - 6:30 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor McPartlan called the Regular Meeting to order at 6:30 p.m. 2. Pastor Richard Jones, Sebastian United Methodist Church, gave the invocation. 3. Council Member Adams led the Pledge of Allegiance. 4. ROLL CALL City Council Present: Mayor Bob McPartlan Vice-Mayor pon Wright Council Member Jerome Adams Council Member Andrea Coy Council Member Jim Hill Staff Present: City Manager, AI Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Records Program Manager, Donna Cyr Community Development Director, Joseph Griffin Administrative Services Director, Deb Krueger Building Director, Wayne Eseltine Business License Tax Specialist, Linda Lohsl Police Chief, Michelle Morris Police Officer, Steve Marcinik Recreation Leader, Kathy Falzone MIS Senior Systems Analyst, Barbara Brooke-Reese 5. AGENDA MODIFICATIONS — None. 6. PROCLAMATIONS AWARDS BRIEF ANNOUNCEMENTS Presentations of proclamations, certificates and awards, and brief timely announcements by Council and Staff. No public input or action under this heading. 13.001 A. Proclamation — National Human Trafficking Awareness Month — Requested by Governor Scott Mayor McPartlan read the proclamation. There was no recipient. 7 of 159 Regular City Council Meeting January 9, 2013 Page Two 13.002 13.003 13.004 13.005 13.006 B. Proclamation — Sebastian River Art Club — 75t" Anniversary — SRA Members Acceptinq Mayor McPartlan read the proclamation and presented it to Richard Gillmor, member of the Sebastian River Art Club. Mr. Gillmor invited the public to the Art Center's 75tn Anniversary to be held January 17th from 4-7 p.m. C. Announcement and Presentation of Plaque to EmploYee of the Year 2012 — Linda Lohsl, Business Tax Specialist Mayor McPartlan read a brief description of Ms. Lohsl's duties, congratulated her and presented her plaque. D. Presentation of Plaque and Pin to Donna Cyr, Records Program Manager, Cit rL Clerks Office — Attainment of Certified Municipal Clerk Certification Mayor McPartlan read a brief description of Ms. Cyr's attainment of her CMC, congratulated her and presented her certificate and pin. E. Frank Mannino — St. Baldrick's Cancer Organization for Kids Mr. Mannino introduced Missy Elward, Event Coordinator, who described past successful events and noted their next event will be held at Capt. Hiram's on March 2, 2013. She invited the public to show their solidarity for children undergoing cancer treatment by joining the Sebastian team by pre-registering at Suzi's Tiki Bar on January 12 and 13 or at Capt. Hiram's on January 25 and 16. Mr. Mannino said there are two Indian River County children that would be honored at the event. Mayor McPartlan and Mr. Hill volunteered to shave their heads. Ms. Coy asked that the event be advertised on Channel 25 and in the City Hall lobby. F. Solar Energy Loan Fund (SELF) Presentation b�q Coward Mr. Coward, Executive Director, said they have expanded their resources to the Treasure Coast and they are close to opening a part time office in Sebastian on February 1 St He presented a PowerPoint overview on what they have done to date and introduced Duanne Andrade, Clean Energy Specialist/Loan Officer. (see attached) He said information could be obtained at www.cleanenergyloanproaram.org or by calling (772) 468-1818. In response to Mr. Adams, Mr. Coward said the average loan size is about $8,500 with a term of five years; the program will be limited initially to residential customers but there is discussion underway to develop a commercial lending opportunity described as Property Assessed Clean Energy (PACE) that are currently being used by other governmental agencies. 2 8 of 159 Regular City Council Meeting January 9, 2013 Page Three Mr. Wright said the Clean Energy Fund hoped to introduce the PACE program to Council in the next couple of months. Mr. Coward said the initial focus will be for low to moderate income communities with program expansion as they raise capital. G. Brief Announcements i. Child Rescue Network Presentation in Council Chambers for Parents Only — How to Keep Children Safe from Child Predators/Molesters/Internet Safety Tips — 1/16/13 - 6:30 pm to 8 pm (no live broadcast) ii. Sebastian River Art Club Anniversary Celebration at Art Center — 1/17/13 — 4 pm to 7 pm iii. Sebastian Fine Art and Music Festival — 1/19/13 and 1/20/13 Mayor McPartlan read the brief announcements for the benefit of the viewing public. Mr. Wright announced the Chamber's Concert in the Park series will kick off Friday, January 11t" at 5:30 p.m. with the Bobby Owen Band with food refreshments and g ive-a-ways. Mr. Wright also said the Veterans Council of Indian River County would be holding a Community Blueprint Presentation on January 24t" at 10:00 a.m. at the County Administration Building to discuss services for returning veterans and said it would be a good opportunity for the City Manager to attend and anyone else interested. Ms. Coy asked the City Manager to invite Sebastian's Veterans Advisory Committee. Mr. Hill announced the Sebastian Police Department's 2013 Citizens Police Academy that will start next Thursday, January 17t" for twelve weeks. He said applications were available at the back of the room or at the Police Department. Ms. Coy said although the Indian River State College's Spring semester started, it was not too late to sign up for one of the 30 courses available at the Sebastian campus. She said more information could be obtained by going on-line. Mr. Adams announced the Electronics Recycling Event would be held January 19t" at the County Fairgrounds from 9 a.m. to 3 p.m. Ms. Coy asked the City Manager to include electronic recycling and paper shredding events in the re-negotiating of the soon to be expired solid waste contract. 7. CONSENT AGENDA All items on the consent agenda are considered routine and will be enacted by one motion. There will be no separate discussion of consent agenda items unless a member City Council so requests; in which event, the item will be removed and acted upon separately. If a member of the public wishes to provide input on a consent agenda item, he/she should request a Council Member to remove the item for discussion prior to start of the meeting or by raising his/her hand to be recognized. A. Approval of Minutes — December 12, 2012 Regular Meeting 3 9 of 159 Regular City Council Meeting January 9, 2013 Page Four 13.007 B. Approve Supervisor of Elections /City of Sebastian Municipal Election Agreement for November 5, 2013 General Election in FY 2013/2014 - Cost $2 Per Registered Voter (Approximately $32,000) — No Early Voting Unless SOE Ballot Question Added or City Council Authorizes Additional Funding to SOE (City Clerk Transmittal, Proposed Agreement) MOTION by Mr. Hill and SECOND by Mr. Wright to approve items A and B passed with a voice vote of 5-0. Result of the roll call vote: AYES: All NAYS: None Passed 5-0. 8. COMMITTEE REPORTS & APPOINTMENTS — None 9. PUBLIC HEARINGS - None 10. UNFINISHED BUSINESS - None 11. PUBLIC INPUT - None 12. NEW BUSINESS - None 13. CITY ATTORNEY MATTERS - None 14. CITY MANAGER MATTERS - None 15. CITY CLERK MATTERS - None 16. CITY COUNCIL MATTERS A. Vice Mayor Wright Mr. Wright wished everyone a happy new year and hoped for an improvement in the economy. B. Council Member Adams Mr. Adams also wished everyone a happy new year and said he looked forward to working with everyone to serve the residents. C. Council Member Cov Ms. Coy extended Port Orange a personal thank you for not selecting Mr. Minner as their City Manager. D. Council Member Hill — None. 4 10 of 159 Regular City Council Meeting January 9, 2013 Page Five E. Mavor McPartlan Mayor McPartlan invited players to sign up for the Sebastian River Little League baseball and soft ball teams tomorrow night, Friday and Saturday morning. He also said the Police Department's Citizens Academy is an excellent opportunity for the public to see how it and other government agencies operate. 17. Being no further business, Mayor McPartlan adjourned the regular meeting at 7:21 p.m. Approved at the January 23, 2013 regular City Council meeting. Bob McPartlan, Mayor ATTEST: Sally A. Maio, MMC — City Clerk 5 11 of 159 �a S�B'�s�7,�,j . � HOME OF PFllGN ISIAND Council Subject: Approval of Budget Calendar for Preparation of Fiscal Year 2013-2014 Annual Budget and Capital Improvements Program. da Item Agenda No. /3, O 1 0 Department Origin: � Administrative Services: � �� for Submittal by: City Manager I City Attorney � City Clerk: '�':°� Date Submittet�"�anuary 16, 2013 For Agenda oi January 23, 2012 TOTAL EXPECTED AMOUNT ADDITIONAL EXPENDITURES : N/A BUDGETED: N/A BUDGET REQUIRED: N/A Exhibits: Fiscal Year 2013-2014 Budget Calendar Draft SUMMARY Attached is Staff's draft of the budget calendar for preparation of the Fiscal Year 2013-2014 Annual Budget and Capital Improvements Program. Although we have not been formally notified of the dates planned for by the County and School Board, those meetings have been scheduled based on the days they have typically selected in past years. According to State Law, the City's public hearings can not be held at the same times as the County and School Board. RECOMMENDED ACTION Approve the Budget Preparation Calendar for Fiscal Year 2013-2014. 12 of 159 CITY OF SEBASTIAN FISCAL YEAR 2013-2014 BUDGET CALENDAR DATE DAY EVENT O1/23/13 Wednesday City Council @6:30pm — Budget Calendar Approval 02/04/13 Monday Budget Review Advisory Board — Review 4`� Quarter Budget Report 03/18/13 Monday Departments Receive Instructions for Capital Improvement Program 03/18/ 13 Monday Budget Review Advisory Board @6:OOpm — Review 1 st Quarter Budget Report 03/27/13 Wednesday City Council @6:30pm — Approve 151 Quarter Budget Report 04/17/13 Wednesday Departments Submit Capital Improvement Program Request to Finance Director 04/18/13 Thursday Departments Receive Instructions on Operating Budget Preparation OS/16/13 Thursday Departments Submit Operating Budget Request to Finance Director 06J03J13 Monday Estimate of Property Values Received from Property Appraiser 06/10/13 Monday Start City Manager Review of Capital Improvement Program and Operating Budget 06/17/13 Monday DR-420 Certified Property Values Received from Property Appraiser 06/17/13 Monday Finish City Manager Review of Capital lmprovement Program and Operating Budget 06/17/13 Monday Budget Review Advisory Board— Review 2°a Quarter Budget Report 06/24/13 Monday Parks and Recreation Board @5:30pm - City Manager Review of Capital Improvement Program 06/26/13 Wednesday City Council @6:30pm—Approve 2°a Quarter Budget ReportlReceive Preliminary Budget Review Advisory Board Report 07/O l/13 Monday Budget Review Advisory Board @6:OOpm — City Manager's Presentation of Budget Recommendations 07/10/13 Wednesday City Council @6:30pm - Approve Proposed Millage 07/15/13 Monday Budget Review Advisory Board @6:OOpm — Review and Discussion of Budget Recommendations 07J17J13 Wednesday City Council Receives Capital lmprovement Program and Operating Budget 07/17/13 Wednesday Planning and Zoning Board Receives Capital Improvement Program 07/24/13 Wednesday Send DR-420 Proposed Millage Form to Properiy Appraiser 08/O l/ 13 Thursday Planning and Zoning Board @7:OOpm — Approval of Capital Improvement Program 08/OS/13 Monday Budget Review Advisory Board @6:OOpm — Discuss Final Budget Report to City Council 08/12/13 Monday Budget Review Advisory Board @6:OOpm—Approve Final Budget Report to City Council 08/14/13 Wednesday City Council @6:30pm — Discussion of Capital Improvement Program 08/19/13 Monday City Council @6:OOpm—Special Meeting/Workshop on Budget Recommendations 09/09/13 Monday Budget Review Advisory Board @6:OOpm — Review 3`d Quarter Budget Report 09/OS/13 Thursday First Public Hearing on County Budget 09/11/13 Wednesday Final Adoption of School Board Budget 09/12/13 Thursday Final Adoption of County Budget 09/16/13 Monday City Council @6:OOpm — Special Meeting for First Public Hearing on Millage and Budget/Approval of Capital Improvement Program 09/21/13 Saturday Advertise the Tentative Millage and Proposed Budget 09/25/ 13 Wednesday CRA Meeting @6:OOpm — Approve Community Redevelopment Agency Budget � City Council @6:30pm — Final Public Hearing� on Millage and Budget � 09/26/13 Thursday Send Resolution Adopting Final Millage to Property Appraiser Draft As of January 15, 2013 13 of 159 �� SE :�T� Y �~�:, :74r�' r HOME OF PELIUN ISIAND AGENDA TRANSMITTAL •F ', ,l � Subject: Agenda No. �� , Second Sebastian River Area Chamber of Department Origin: Cit Mana er ommerce Lease Amendment Administrative S City Attorney: Ap v f r Submittal by: City Clerk: Date Submitted: 17 JAN 13 I i e, City Manager Council Date: 23 JAN 13 Ex its: N/A SUMMARY It has come to my attention that the existing Chamber lease has duplicate insurance requirements. The current lease requires that the Chamber carry property casualty insurance on the occupied facility. The building, however, is already insured by the City's property casualty insurance as a City-wide mitigation strategy. RECOMMENDATION Staff recommends that Council authorize the City Manager to execute a second lease amendment which releases the Chamber from the insurance provisions of paragraph XI and replaces it with a renter's insurance requirement. 14 of 159 SECOND AMENDMENT — SEBASTIAN RIVER CHAMBER OF COMMERCE LEASE THIS SECOND AMENDMENT of that certain Lease Agreement by and between the City of Sebastian (hereinafter called "landlord") and the Sebastian River Area Chamber of Commerce, Inc. (hereinafter called "tenant"0, dated December 8, 2005 provide as follows: WITNESSETH: WHEREAS, the Landlord is the owner of certain property located in the County of Indian River, Florida; and WHEREAS, the Landlord agreed to lease such property under the Lease to Tenant; and, WHEREAS, due to the certain provisions in the Lease, duplicate insurance requirements were created. NOW, THEREFORE, in consideration of the mutual covenants herein after provide, the receipt and sufficiency of which are hereby acknowledge, the parties have agreed as follows: Existing paragraph XI and XII of the lease shall be removed and deleted and in its place shall be new paragraph XI and XII which shall read as follows: XI. RENTER'S INSURANCE The Tenant shall, at its sole cost and expense, procure and keep in effect such standard renter's insurance to cover all contents in the facility. Said insurance shall be in amounts as may be deemed appropriate by the Tenant. In no such event will the Landlord be responsible for the tenanYs contents in the event that they are lost, stolen, damaged or destroyed. XII. DESTRUCTION OF THE PREMISES In the event the building and/or other improvements erected on the premises are destroyed or damaged by fire or other casualty, the Landlord's obligation to replace or rebuild such facility shall be limited to the value of insurance proceeds that may be received. All remaining terms and conditions of the Lease Agreement dated December 8, 2005 shall remain in full force and effect. This second option is executed on this 23�d day of January 2013. ATTEST Sally A. Maio, MMC Approved as to Form and Legality for Reliance by the City of Sebastian Only Robert A. Ginsburg City Attorney CITY OF SEBASTIAN AI Minner, City Manager SEBASTIAN RIVER AREA CHAMBER OF COMMERCE, INC. By Its: 15 of 159 FIR3T AMENDMENT - SEBASTIAN RNER AREA CHAMBER OF COMMERCE LEA3E THIS FIRST AMENDMENT of that certain Lease Agreement by and between the City of Sebastian (hereinafter called "Landlord°) and the Sebastian River Area Chamber of Commerce, Inc. (hereinafter called "TenanY'), dated 8 December 2005, provides as follows: WITNE33ETH: WHEREAS, the Landlord is the owner of certain property located in the County of Indian River, Florida; and, WHEREA3, the Landlord agreed to lease such property under the Lease to Tenant; and, WHEREA3, due to the current economy, certain provisions in the Lease were unattainable. NOW� THEREFORE, in consideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby acknowledged, the parties have agreed as follows: Section II of the Lease, titled - Renovation of Improvements, shall be amended as follows: 11. RENOVATION OF IMPROVEMENT3 Lessee may renovate the existing building and appurtenant improvements upon the premises in accordance with plans to be approved by Landlord, lncluding an expansion of the footprint of the building by addition of a ten foot deep, more or less, porch along the north, east and west frontages of the building. Landlord shall undertake reasonable accommodations in executing standard business documents required of a lender for construction upon a leased premise, but shall not allow its ownership interest to be subject of any security interest. Landlord shall also cooperate, as the owner, in permitting and in the applicant process for grant to finance these improvements. Notwithstanding the provis(ons of Article XXI, "rf renovations in accordance with the Composite Exhibit "1' are not permitted by January 22, 2015, or completed by January 22, 2017, the tertns of the 1997 lease between the parties, as exfended, shall go back into eHed. This Lease shall automaticaly exercise the renewal option spec�ed in paragraph 1 of the 1997 lease. This timeline shall be reasonably extended in the event of fnrice majeure or Act of God. Landlord agrees to maintain, at all times, no less than tweMe (12) public parking spaces within two hundred fifty (250) feet of the leased premises. All remaining terms and conditions of the Lease Agreement dated 8 December 2005 shall remain in full force and effect. This first option is executed on the � day if �v� 2010. ATTEST Q� .�---- Sally A. Maio MC City Clerk Approved as to Form and Legality for Reliance by the City of Sebastian Only Robert A. Ginsburg City Attorney CITY OF 3EBA3TIAN SEBA3TIAN RIVER AREA CHAMBER OF COMMERCE, INC. A Non-Profit Florida Corporation By �.J�./� � ics: �y,esidt�..�- 16 of 159 FIFTY YEAR LEASE The CTTY OF SEBASTIAN, a Florida mimicipal corporation, refernecl to in this lease as "Landlord", hereby leases to SEBASTTAN RNER AREA CHAMBER OF COMIv�RCE, INC., a non-profit Florida corporation, referred to as "Lessee", those certain premises, referred to as "the premises", lying and being in the county of Indian River, State of Florida, to-wit: See attached Schedule "A " The pazties agree to be legally bound as follows: L TERM The term of this lease shall be for a period of fiftY is�) Years, commencingat�2:(il _�4:It�Y-on -_ ___.... ___ January 1, 2006. II. RENOVATION OF IlVIPROVEMENTS Lessee may renovate the existing building and appurtenant improvements upon the premises in accordance with plans to be app�ved by Landlord, including an expansion of the footprint of the building by addition of a ten foot deep, more or less, porch along the north, east and west frontages of the building. Landlord shall undertake reasonable accommodations in executing standard business documents required of a lender for construction upon a leased premise, but shall not allow its ownership interest to be subject of any security interest. Landlord shall also cooperate, as the owner, in permitting and in the application process for grants to finance these improvements. Notwithstanding the provisions of Article XXI, if renovations in accordance with Composite Exhibit "I" are not permitted within five years hereof, or completed within seven years hereof, the terms of the 1997 lease between the parties, as extended, shall go back into effect. This timeline shall be reasonably extended in the event of force majeure or Act of God. Landlord ag�rees to maintain, at all times, no less than twelve (12) public parking spaces within two hundred fifty (250) feet of the leased premises. III. RE1VT L,essce agrees to pay the Landlord as rent for the use and occupancy of the premises the amount of $1 per year payable by the 15m day of January each and every year commencing in January 2006, at the Finance Department office of Landlord or such other place or places as Landlord may from time to time designaie by writt�n notice given to I.essee. IV. USE OF PREMISES The premises shall be used exclusively by Lessee for purposes associated with the traditional fimctions of a chamber of commerce, and for no other use or uses without the express written consent of Landlord. However, Lessee shall not commit or pennit the commission of any acts on the premises nor use nor permit the use of the premises in any way that: 17 of 159 (a) violatss or con8icts with any law, statute, ordinance, or governmental nile or regulatioq whether now in force or het+einai%r enacted, goveming tbe premises; or (b) constit�s the �pmmiecioII of waste on the p�emises or the commission or maintenance of a nuisance. V. ASSIGNMENT OR SUBLEASING Lessee may not assign, or otherwise bansfer this lease, or auy right or interest in this lease without the prior express written consent of Landlord. VI. SURRENDER OF PREMISES On expiraRion or sooner temnination of t�is Lxase, or any extensions, Lessee shall promptly surrender and deliver the premises to Landlord in good condition, subject to the demolition and replacement provisions of Article II, reasonable wear and tear excepted. VII. MAIl�i'I�NANCE AND REPAII2S I.essee acl�owledges that it will repair and renovate the premises to res�ilt in a good, clean, and safe condition and repair. Lessee shall, at all times during the term of this lease and any renewal or extension theraof, maintain, at Lessee's sole cost and expense, the premises, and every part of the premises, in a good, clean, and safe candition, fi+ee of pests, and shall on e,xpiration or sooner te�ination of t�is lease siurender the premises to Landlord in good condition aad repair rea.sonable vvear and tear and damage by the elements excepted Lessee shall be responsible for the pmvision of all utility and other services to the premises. Lessee hereby waives any right to make repairs to the premises at the expense of Landlord as provided by any law or stahrte now or hereaftet en�cted. In the event that a situation in the reasonable judgment of the I,andlord requires that immediate repairs be performad to any part of the Premises, Landlord may perform the same with or without notice to Lessee, and Lessee shall reimburse Landlord in a timely manner for expenses incurred thereby. VIII. INSPECI70N BY LANDLORD I.essee shall permit Landlord or Landlord's agents, representatives, or employces to enter the premises at all reasonable times for the p�pose of inspecting the p�ises to detennine whether I,essee is complying with the terms of this lease and for the purpose of doing other lawfiil acts that may be necessaiy to protect Landlord's interest in the premises tmder this lease. IX. PERSONAL PROPERTY TAI�S Lessee shall pay before they become delinquent all taxes, asse.ssments, or other charges levied or imposed by any governmental entity on the fittniture, trade fixtures, appli�ces, and other personal property placed by I.essee in, on, or about the premises including, without limiting the generality of t�e other teams used in this se�tion, auy shelves, counters, vaults, vault doors, wall safes, paititioas, fixttu�es, machinery, plant equipment, office equipment, television or radio antennas, or communication equipment brought on the premises by Lessee. X. REAL PROPERTY TAXES All real property taxes and assessnne,nts levied or asse.ssed again.st the pranises by any governmental entity, including any special assessments imposed on or against the premises for the 18 of 159 constzuction or improvement of public works in, on, or about the premises, shall be paid, before they become delinquent, by Lessee. XI. PROPERTY CASUALTY INSURANCE The Tenant shall, at its sole cost and expense, procure and keep in effect such standard policies of pmperty casualty, fire and extended coverage insurance in an amount equivalent to the appraised value of the impmvements to the premises. Upon request, the Tenant shall provide to the Landlord a certificate of such insutance with evidence of the payment of the premium therefor. The Landlord shall have no obligation to keep the buildings and improvements on the leaseci premises insured nor shall the Landlord have any obligation to insure any personal pmperty used in connection with the 1� premises. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies authorize� to engage in business in the State of Florida and which have a rating of at least A+ by A.M. Best and Company and at least an AA rating by both Moody's and Standard and Poors: Such shall contain a clause preventing cancellation of any coverage before thirly (30) days written notice to the Landlord and shall name the Landlord as an additional insured. Upon the request of the Landlord, the Tenant shall provide copies of said policies to the Landlord. Tn the event that the Tenant's use and occupancy of the premises causes any increase in the premium for any property casualty or fire ins�rance maintained by I.andlord on the Leased Premises or any portion thereof, Tenant shall reimburse Landlord for the amount of said increase within tlurty days of notice of the same. XII. DFSTRUCTION OF PRT.1V]QSI�'S In the event the building and/or other improvements erected on the premises are destroyed or damaged by fire or other casualty, the Landlord s}�all have no responsibility or obligation to make any expenditures toward the repair andlor replacement of the building and other improvements on the leased pr�mises. Tenant, at its option, shall either c,au.se said building and/or other improvements to be replaced or said damage to be repaired as rapidly as pzacticable, or shall elect not to repair the premises and terminate the lease. (a) In the event the Tenant elects to repair or repla+ce the improvements on the leased premises, the Landlord shall have no claims against any insurance proceeds paid to the Tenant on account of such damage; provided, however, that all repaired or replaced improvements are done so in a manner equal to or better tban the improvement being repaired or replaced. (b) In the event the Tenant, under its option, elects not to repair or replace the improvements upon the leasec3 premises, the Landlord shall be entided to such portion of any insurance proceeds equal to its good-faith estimate of the cost to remove all remaining portions of the damaged or destroyed improvements and all rubble or debris resulting from said casualty. I.andlord shall be entided to said amounts even if it decides to rehabilitate the improvements. Any remaining procceds shall be the sole property of Tenant. I�IIII. ALTERATIONS Except for renovations of the building as set forth in Article II, above, Lessee shall not make or permit any other person to make alterations to the premises tha�t wil expand the lot coverage of the Premises without the prior written consent of Landlord. Any alt�rations to the premises by Lessee shall be made at the sole cost and expen.se of Lessee. Any and all altezations or 19 of 159 _._ . _ _ . �... . _�.. ._. _ _ - - - - ----- improvements ma�de to the premises shall on expiration or sooner termination of this lease become the propeity of Landlord. XIV. INDENIIVITY Lessee s1�all indemnify and hold Lamdlord and the property of Iandlord, including the premises, free and harmless from any and all liability, claims, loss, damages or expense.s, including counsel fces and costs, arising by reason of the death or injiuy of any �son, including any person who is an employee or agent of Lessee, or by reason of damage to or des�uction of any property, including property owned by L,essee or any person who is an employee or agent of Lessee, caused by or connected with Lessee's occupation and use of the premises und�r this lease other than intentional torhwus acts of I.andlord or an employce or age�nt of Landlord. XV. LIABILI'I'Y INSURANCE I.essee shall, at its own oost and expense, secure within 10 days and maintain during the entire term of this lease and any renewals or extevsions of such term a bmAd form comprehensive coverage policy of public liability insarance issued by an insurance compaany �ble to Landlord and insuring Landlord against loss or liability caused by or connected with Lessee's occupation and use of the premises under this lease in amounts not less tt�: (a) 5200,000 for injiuy to or death of one person end, subject to such limita�ion for the injury or death to one person, of not less than $1,000,000 for injury to or death of two or more persons as a res�ilt of eny one accident or incide� and (b) $500,000 for damage to or destruction of any property of others; or such lugher amount as may be set as the liability limits under the waiver of sovereign immunity provisions of law. XVL UNREMOVED TRADE FIXTURES Any trade fixtut�es that are not removed from the p�ennises by Lessee 30 days afler this lease's expiration or sooner terniination, regardless of cause, shall be deemed abandoned by Lessee and shall automatically become the pmopezty of Landlord as owner of the real pn�perty to which they are affixed. XVII. ACTS CONS1'ITUTI1�iG BREACHFS BY LESSEE Lessee shall be guilty of a maierial default and bre�ch of this lease should: (a) Les.see default in the performaace of or breach any provision, covenant, or condition of this lease and such defauh or breach is not cured within thirty days after written notice thereof is given by Iandlord to Lessee; or (b) Lessee breach this lease and aband�on the premises before expiration of the term of this lease. XVIII. REMEDIES FOR DEFAULT Should either pariy be guilty of a material default and breach of this lease as defined in this lease, thet pazty shall have available the remedies given by law or equity, and a non-defautting party shall additionally be eatitled to aa award of court costs and aitorney's fees against the defaulting party. Landlord, in addition to any other remedies given by law or equity, may terminate Lessee's 20 of 159 right to possession of the premises and recover and regain possession of the premises in the manner provided by the laws of the State of Florida XIX. WAIVER OF BREACH The waiver by Landlord of any breach by Lessee of any of the provisions of this lease shall not constitute a corrtinuing waiver or a waiver of any subsequerrt breach by Lessee either of the same or another provision of this lease. XX. NOTICES � Any notice, report, statement, approval, consent designation, demand or request to be given and any option or election to be exercised by a party under the provisions of this Lease shall be ef%ctive only when made in writing and delivered (or mailed by registered or certified mail with postage prepaid) to the other party at the address given below: Landlord: City of Sebastian 1225 Main Street Sebastian, FL 32958 Attn: City Manager Tenant: Sebastian River Area Chamber of Commerce, Inc. 700 Main Street Sebastian, FL 32958 Attn: Executive Director provided, however, that either party may designate a different representative or address from time to time by giving to the other party notice in writing of the change. XXL PRIOR AGREEMENTS Except as otherwise specifically provided in this section or in the fall-back provisions of Article II, this lease shall supe�rcede all prior agreemerrts be�tween the parties as to use and occupancy of the properties at the eastern side of the intersection of US H'ighway 1 and Main Street in Sebastian. It is agreed that the parties hereby direct escrow agent Warren Dill, Esquire� to deliver to the City Clerk the Quit-Claim Deed held in escrow pursuazit to the Comprehensive Property Settlement and Fscrow Agreemerrt between the parties dated March 20, 2002. Escrow Agerrt is further directed to mark all remaining documerrts as "Void and Superceded" and delive�r the same to the City Cle�rk for recordkeeping in accordance with Florida Public Records law. EXECLTTED on this 8 th �y of December, 2005, at Sebastian, Florida 21 of 159 ATTEST : � Sally A. M ' , C City Cl Approved as to Form and Legality for Reliance by the City of Sebastian only: . \ Ric Stringer, Cdy Atto e SEBASTIAN RIVER AREA CHAMBER OF COMMERCE, iNC., a non-profit Florida corporation ' I�/ '/,i� � � . � i � � � , �/ 22 of 159 __� SCHEDULE "A" Begin at the southeasteinmostpoint at whieh US Highway 1 and Main Street in Sebastian, Florida, intersect, then run east 110 feet along the right-of-way for Main Street, thence run southward in a line parallel to the right-of-way of US Highway 1 for a distance of 100 feet, thence run west in a line parallel to the right- of-way for Main Street until intersecting with the right-of-way line for US Highway 1; thence run northward along said right-of-way line for US Highway 1 to the point of beginning. 23 of 159 d �1 \; �� Y�_ _� ,s'••1� �� .� . � i • r . � ,t 1, `�\ , ;� � � � �: Exhibit I � ��. � ��w �V�� • � � � y � . � � � � ;a � �� O N `I•� � l� � � � � � O � O 24 of 159 , � _. . ,. � I 7 � I ( � � � � � 1 � I ! I i I � � o� � ' �I I ; U I � c ; � � I i I i � l E ! ; � �� I 'l � �I � --�- .� i __�_� z--- � . .. _ . _.— .___._.__. __.__._._ __ .. /a-••n . _.._.. _. . - � �— - 4 ./ � . . .. . � . � � � � I.` -..�t��:__ �1J _� i _ .! . ��eo � //�A{ht 5TREET �LEVATf�N y,. �. �. 25 of 159 � �� S��T� �� , .-:� �. ,�:.....�.._ HOME OF PEUUN ISLAND AGENDA TRANSMITTAL Subject: Agenda No. f = , :.r '' - - CavCorp Update Department Origin: City Manager Administrative Srvc,• Ap ro d or Submittal by: City Attorney: -� —"" �� ' City Clerk: �� AI � , City Manager Date Submitted: 17 JAN 13 Council Date: 23 JAN 13 Exhibits: N/A SUMMARY Frank Hickson from Infrastructure Engineers will be making an up-date presentation to Council regarding the CavCorp Project. RECOMMENDATION Staff seeks Council review and direction. 26 of 159 � � � wd � a zx 4r � • t I �I� � "� r'� I ,.�' 1� I � _ � g I � itjr � � = j � �,,,y = �i\\�� a I � ti I _ �� ' !I'-I ��¢ � . - � c�.: ~ 'c 1, 'C i � �� ' �� ` �; �. r � s I � � .. A . . A , �1 �� . � � ' - . '� i 4 � — _ �`��`�� ' �� e, � �, � �� . ��1'��.., � .�- . � --� � ��.� . � � g # I � - I ��^�_� :.��, � _ � - �r -v '�� _ '� i � /'" R�Y � �.. - '�� F' � I i � - . R ikfl�� ,�� ..� . - ! `h'� �i.� �" - a _- . ,�� _� f' � � � e zi . �` �.� - " � �` A �� ,a°,� � - — *'� - ,'� � ;� �` _ ° '� ��, �, *� � �; r � ,''� K �� 9f ° ° � 9 � +R" � - +�' � � a � ��rrt . �, _ � �� - � � j �� q�"• �! � . c�..,, � i_ _- I� =m �,� -I ' r�� •• .'�+�� \'�. � `r- I I - � � N • '� �Y.. a _ � t, u� �'� ' ` � � �b # . . . v # #_ ^ � � �� ' _ � �+ �'. ' i' �� . • �� 'rll _ . '��.,� - .�.. �. .� . . ��.�;_ �'1 � r:i •- ¢� _ � �"�� F4' �� _ � 7 i �::; ' > ' . .: � -..''_ � ��. � - - _ ..�� '�� nz'. �'. �� s`� r�,� _ �_ ..z;. r . .. } _ �_ _. JI 'y� 3 �yy � Tt ' ' . . . . " _ "- i� ` _: _ ��y.,. �.�+V ( .' ' ''c+ � .� *� �'. '� - _ .,1 � � .i � . " _ _�,.1 � y � y _ - ' , . 4 �� ' �:�� I � � - t t + `1� j 1 � s � _ � � � �� i � ._ - '` �, - ` H � ' t � 1 - �.'� } _ � � • � V �p� ; . '` . � T' � n3� �. -s I 1; �,i� �'t, � � � � ` i '� 1 1 �s i � k Ti y � r I � M i • `�� _ l �" i �� k � � . r � � �<� � PQ �� a n :�,v ' � �, �� :, ;�;„. � • • . AGENDA TRANSMITTAL Subject: NationAir Insurance; Request Agenda No. 13, 0l3 for Lease Assignment Department Origin: Comm ' D elopment Director: J. Griffin ��`—' Ap rov for Submittal by: Admin Services: D. Kr � ger Q� ` Finance Director: K. Killg e �� f� �'�� City Clerk: S. Maio Al� n , City Manager City Attorney: R. A. Ginsburg Date Submitted: 15 January 2013 For Agenda of: 23 January 2013 Exhibit: A. Resolution; B. Corres ondence and LOIs; C. Lease; D. Consent EXPENDITURE AMOUNT BUDGETED: APPROPRIATION REQUIRED: REQUIRED: -0- -0- -0- SUMMARY NationAir Insurance (NationAir) owns a leasehold interest at the Sebastian Municipal Airport located in the administration building. Mr. Taras Rud, owner of Rud Aero (hereinafter RUD) operates a privately held aviation leasehold at the Sebastian Municipal Airport located at Hangar "B". Mr. Rud and the CEO of NationAir have entered into an agreement requesting the assignment of the NationAir leasehold interest to RUD, including Schedules "A" and "B". Both NationAir and RUD have provided staff a separate Letter of Intent requesting transfer of the referenced leasehold interest from NationAir to RUD. If consummated, the transfer would effect a lease assignment from NationAir to RUD and RUD would assume all rights, duties, and obligations under the lease. Airport staff supports this lease assignment as an economic development tool to solidify the RUD manufacturing efforts at the airport. If approved, staff will make necessary name changes to the appropriate documents. Lease agreements provide that any lease assignment requires notice to Council. ACTION Approve Resolution R-13-01 concerning lease assignment of the leasehold interest from NationAir to RUD. 28 of 159 RESOLUTION NO. R-13-01 A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, PERTAINING TO THE SEBASTIAN MUNICIPAL AIRPORT; AUTHORIZING THE TRANSFER OF LEASEHOLD ASSETS BETWEEN NATIONAIR INSURANCE AND RUD AERO; PROVIDING FOR THE REPEAL OF RESOLUTIONS IN CONFLICT AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Sebastian owns certain real property at the Sebastian Municipal Airport; and WHEREAS, NationAir Insurance is a bona fide leaseholder at the Sebastian Municipal Airport; and WHEREAS, NationAir Insurance and Rud Aero have signed a"Letter of Intent" requesting the transfer of the leasehold interest from NationAir Insurance to Rud Aero. NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF SEBASTIAN, as follows: SECTION 1. Consent. The City of Sebastian hereby consents to the assignment of that certain Lease, dated 08 October 2009, from NationAir Insurance to Rud Aero. SECTION 2. Time. The City Manager is authorized to grant 60 days for consummation of the lease assignment from NationAir Insurance to Rud Aero. SECTION 3. Conflicts. All resolutions, parts of resolutions, consent orders, or other documents in conflict are hereby repealed. SECTION 3. Effective Date. This resolution shall take effect immediately upon its adoption. A motion to adopt the foregoing Resolution was made by Council Member . The motion was seconded by Council Member and, upon being put to a vote, the vote was as follows: Mayor Bob McPartlan Vice Mayar Don Wright Council Member Andrea B. Coy Council Member Jerome Adams Council Member Jim Hill The Mayor thereupon declared this Resolution duly passed and adopted this 23rd day of January 2013. ATTEST: City of Sebastian, Florida By: Bob McPartlan, Mayor Approved as to form and legality for reliance by the City of Sebastian only: Sally A. Maio, MMC � City Clerk Robert A. Ginsburg � City Attorney 29 of 159 � � __ _ _. _. _..... .. . A V I A T I❑ N January 11, 2013 _ _ _ __ N S U R A N C E Mr. Joe Griffin Community Development Director City of Sebastian 1225 Main Street Sebastian, FL 32958 RE: Letter of Intent Lease Assignment to Rud Aero Mr. Griffin: Via Email 1525 Kautr Road Suite 100 West Chicago, IL 60185 630-584-7552 ■ fax 630.584-2099 nationair.com It is NationAir's intent to have the City of Sebastian assign our current lease on the office space located at Sebastian Municipal Airport, 200 Airport Drive East, to Rud Aero as soon as such assignment is approved by the Council and we are able to vacate the premises. This would release NationAir of all related liability for any and all lease terms upon the lease assignment efFective date. Pending the approval by the Council and the timing thereof, we expect to be out of the premises no later than February 1, 2013 and propose this date as the lease assignment date. We expect the related refund of prepaid rent will be handled appropriately shoufd this assignment be approved. Please contact me if you have any questions or need any additional information. Regards, �� ' Neal S. Johnson III Vice President and Chief Financial Officer �ohnson@nationair.com W: (630) 549-3612 C: (630) 688-5311 cc: Robert Schultz, Schultz & Associates LLC; Taras Rud, President, Rud Aero CHICAGO • MANCHESTER • ORLANDO • ST. LOUIS • MINNEAPOLIS • LINCOLN • LOS ANGELES • PORTLAND • 30 of 159 �� ,�.e. �;� � w.,�� ,�.�,_ '� ..,W„ ` "..'M,�,,, � � � . ,a� � Rud Aero 7756 130th Street Sebastian, FL 32958 January 4, 2013 Via email Joe Griffin Community Development Director City of Sebastian 1225 Main Street Sebastian, FL 32958 Re: Letter of Intent Nationair Lease assignment Dear Joe, Robert Schultz bob .rbschultz.com Cel. 303 521 1937 It is Rud Aero's intent to assume Nationair's lease on office space located at Sebastian Municipal Airport, 200 Airport Drive East as soon as such assignment is approved by the Council and Nationair is able to vacate the premises. Our intent is to operate an FAR Part 141 flight school and FAA computer test center. Please call me if you have any questions. Regards, � �� .� � Robert Schultz Cc: Neal S. Johnson, III, Vice President and Chief Financial Officer, Nationair Taras Rud, President, Rud Aero 31 of 159 i' (Y19.�t �ll��;�� /1�1��1\ l AIRPORT LEASE THIS LEASE, made and entered into tlus Sth day of October, 2009, by and between the CITY OF SEBASTIAN, a municipal corporation existing under the laws of the State of Florida, (hereinafter referred to as the "Landlord"), and NationAir Aviation Insurance Agency, Inc. (hereinafter referred to as "Tenant"). The Landlord and the Tena.nt are sometimes collectively referred to herein as the "parties". This document contains eighteen (].S) pages, plus Schedule Page(s) "A" and "B." WITNESSETH: WI-IEREAS, the Laildlord is the owner of certain property Iocated in the County of Indian River County, Florida; and WHEREAS, the certain property is being used for the operation of the Sebastian Municipal Airport (hereinafter referred to as the "Airport"); and WHEREAS, tlle certain property is also available for use for those activities consistent with or in support of aviation activity; and WHEREAS, tlie Laildlord has agreed to lease such property to the Tenant subject to certain terms and conditions consistent with, or in supgort of, tlie current aviation use of such properly; and W�IEREAS, the Tenant desires to lease the said property from the Landlord, and to that end and in consideration of the premises, and tlze covenants, tern�s and conditions to be performed as set forth hereinafter; and 32 of 159 i :; � ,1; NOW, THEREF�RE, in consideration of the mutual covenants hereinafter provided, the receipt and sufficiency of which are hereby acicnowledged, the parties have agreed as follows: 1. RECITALS. The stated recitals are hereby incorporated by reference in tlus Lease Agreement. 2. LEASED PREMISES. Subject to the tertns and conditions set forth hereinafter, and in accordance with the P�•incipal Guir�ing Documents for Sebastian Municipal Airport (ta include future amendnzents, clzanges, anr� deletia��s}, the Landlord hereby leases to the Tenant and the Tenant hereby rents from the Landlord that portion of the real property of the Landlord which is described more particularly on Schedule "A" affixed hereto and made a part hereof by reference (hereafter refened to as the "leased premises A"). In tlle event that any portion of the Leased Premises A is needed %r actual improvements to the Airport, any portion thereof rendered unusable to Tenant shall be released from tlus lease and the rental payments adjusted accordingly. Pending approval of the underlying lease by the City Council of the City Of Sebastian, it is understood that Tenant shall have access to the leased premises on November 1, 2009 for the purposes of configuration and `move-in' functions. It is understood t�iat Tenant's start date for rent payments on the leased premises is December 1, 2009. Tenant agrees to `hold harmless' the City Of Sebastian for any/alI claims, liability, and damages resulting from activities by Tenant. 3. TER.M OF LEASE. The term of this Lease shall be for a geriod of FNE (5) yeazs commencing December 1, 2009, and will end on the fifth {5�') anniversary of such date. The Tenant shall have the option to extend tiie lease for a period of THREE {3) years with agreement by the City Of Sebastian. Notice of intent to exercise said option by Tenant must be received by Landlozd no later than six (6) months prior to the expiration of the underlying lease. As stated in paragraph 2, Tenant shall have authorization to move into tiie leased space on November 1, 2009, however, any lease charges will begin to run on December 1, 2009. Other lease provisions will apply ;For the period November 1, 2009 through December 1, 2009 including provisions for utiliiy charges and hold harmless provisians. � 33 of 159 ' �. �_, ✓i' 4. RENT. The parties agree that tl�e rent, payable by the Tenant, during the term of this Lease shall be as follows: (a) For the leased gremises "A" and "B": 1576 sq ft@�8.50/year. Total: $13,39b per year gayable in quarterly instalhnents. The parties recognize that the purchasing power of the United States dollar is evidenced by t�1e United States Department of Labor, Bureau of Labor Statistics, Index of Consumer Prices. In 7anuary, 2010, the La��dlord will compare the most recent price index with t11e base grice index for 2009, and the yearly rent amount s11a11 be increased based upon changes in the price index, if appropr�ate, on February 1, 2010. Another sucli adjustment shali be undertalcen for February 1, 2011, and every year thereafter until the expiration date of the lease, including tlie option period if applicable. In no event, liowever, shall the yearly rent decrease below the sum of $13,396. (t�) Time of the essence. The Tenant agrees promptly to perform, comply witl� and abide by flus Lease, and agrees that timely payment is of the very nature and essence hereof. In tl�e event that any rentaI payment due hereunder shall not be paid witlun five days of when due, Tenant sliall pay Landlord a late payment fee of 5% of the amount af such late Rental Payment. This charge shaii be considered additianal rent and not interest. (c) Default in rent. If any of said sums of money herein, required to be paid by the Tenant to the Landlord, shall remain unpaid ten (10} days after written demand by Landlord, then the Landlord shall have the options and privileges as follows: (1) Total acceIeration. To accelerate the maturity of the rent installtnents for the balance of the term. 11us option shall be exercised by an instiument in writing signed by the Landlard, or i#s agent(s), and transmitted to tIie Tenant natifying lum of the intentian of the Landlord to declare aIl unmatured rent installments presently due and payable. 3 34 of 159 ;,� � (2} Partial acceleration. In lieu of the option in sub-paragraph (1} abave, the Landlord may, in Iilce manner, declare as presently due and payable �l�e unpaid rent installments for such a period of years as may be �ixed in the Landlord's said notice to the Tenant. Tl�e exercise of dus option shall not be constnzed as a splitting of a cause of action, nor shall it alter or affect the obligations of the Tenant fio pay rent under the terms of tlus Lease for the period unaffected by said notice. (3} Other remedies. In addition to the aption hereua granted above, the Landlord may exercise any and all odier options available to it liereunder or under law, which options may be exercised concurrently or separafiely witl� the exercise of the above options. (d) Default in provisions. Tf the Tenant shall default in the performance of any other term of this Lease {except the payment of zent}, the Landlord, or its agent or employee, shall send to tl�e Tenant a written notice of default, specifying die nature of the default, and the Tenant shall, within tl-iirty {30) days after the date of said nofiice, cure and remedy said default, whereupon tliis Lease sha11 continue as before. If tlie Tenant shall fail to cure and remedy such default within said time, the Landlord shaIl have the right to declare, by written notice to the Tenant, that fihe Lease is in default, and to use all remedies available to tl�e Landlord hereunder or under law, including, but not limited to, those remedies, procedures and zights speczfied in the other paragrapl�s of this Lease. (e) In addition to the rental amount, ihe Tenant shall pay Florida sales ta�z, if applicable. (f} The above rental for the leased premises shall be payable in advance, in quarterly instaIlments, commencing oi� January 1, 2009. Payments for November 2009 and December 2009 shall be due on November 1, 2009. Rental payments far leased premises as described in Section 3 will then be � 35 of 159 , `� � j due on a lilce day of every quarter thereafter during the term of this Lease. 5. IlVIPR(�VEMENTS TO THE PREMISES. The Landlord aclrnowledges that the Tenant is leasing the premises for the primary purpose of the operation of Tenant's insurance business. In order to utilize the leased premises for this purpose, it may be necessary to use unprovements previously constructed upon the leased premises. Tenant acicnowledges tliat �liese improvements are owned by Landlord. (a) The Tenant shall have the riglit to use �lie leased premises for any lawful purpose described in Section 6 hereof, and shall have the rigl�t to construct improvements upon the leased premises, provided any such improvements do not in any way curtail the use of the airport facilities in their usual operations and provided further that any such improvements are approved, in writing, by the City of Sebastian prior to commencement of any construction. Tlie Tenant covenants and agrees that all such constrvction shall be in accordance witli the local and state codes, regulations and requirements as well as in accordance with all requirements of t�ie Federal Aviation Administration (FAA) and the Florida Department of Transportation (FDOT). (b) The Tenant shall indemnify, defend and hold the Landlord harmless from any claims, losses, damages or liens arising out of the construction of any such improvements. (c) All improvements and fixtures of every lcind now or hereafter erected or placed on the leased pren�ises shall, at the end of the term or earlier termination of tlus Lease, for any reason, be and become the property of the Landlord and shall be left in good condition and repair, ordinary wear and damage by the elements excepted. In order to con.firm sale ownerslup in the Landtord, the Tenant shall, at Landlord's request, execute any and all documents of transfer wlucl� Landlord deems neeessary to perFect title to said improvements. The Tenant agrees that all improvements shall, upon the ternzination of this Lease for any reason, be free and clear of all � 36 of 159 ' } ;�- _,, encumbrances, liens, and title defects of any ltind. A fixture shall be defined as an article wlucli was a chattel, but which, by being physically annexed or affixed to the realiy by the Tenant and incapable of being removed wi�l�out structural or fi�nctianal dannage to tlie realty, becQmes a part and parcel of it. Non-fixture personalty owned by the Tenant at the expiration of the term or earlier termination of this Lease, for any reason, shall continue to be awned by Tenant anct, at its option, may remove all such personaliy, provided the Tenant is not then in default of any covenant or conditiQn of this Lease, otherwise all such property shall remain on the leased premises until �lie damages suffered by the Landlord from any such default have been ascertained and compensated. Any damage to t�ze leased premises caused by the removal by Tenant of any such personalty shall be repaired by Tenant forthwith at Tenant's expense. 6. USE �F' L�AS�D PREMISES. Tlze Tenant agrees that no use of the leased premises will be conducted u1 sucl� a manner as to constitute a nuisance or a hazard and that, in connection with the use of the leased premises, the Tenant will observe and comply with all applicable laws, ordinances, Qrders and regulations prescribed by Iawful authorifiies having jurisdiction over t�le leasect premises. Tenant will abide by the Principal Guidii�g Docunzents for Seb�rsti�rn Municipal Airport (to include futzrre amendments, clsa�zges, and deletions). Tenant agrees that the leased premises shall be used by the Tenant for t1�e purpose of the operation of an aviation insurance business. No other use may be conducted by the Tenant without the express written consent of the Landlord. Such consent may be witl�lield by the Landlord for any reason. All aeronautical businesses and activities must Ue certified and licensed by appropriate agencies, including the FAA, in t�ie approgriate categories of their specific operation, 7. REPAIRS AND ALTERA.TIONS. The Landlord shall not be obligated tQ maintain or repair the leased pren�ises or any improvements located thereon or any part thereof during filie lease term or any renewal thereof. The Tenant agrees, at its sole cost and expense, to maintain alI of the leased premises. The Tena.nt shall keep the leased premises in a good state of maintenance and repair and lceep the leased premises in a 37 of 159 G ,� �r clean, neat and orderly condition in accordance wit�l local ordinances, including bnt not limited to, the Sebastian Land llevelopment Code and all other community standards ordinances. It is an express condition of this Lease that the leased premises aze kept in an attractive manner at all tiznes. Upon obtaiiung tlle prior written consent of the Landlord, which consent may be withheld for any reason, il�e Tenant, at its sole cost and expense, may erect such additional improvements on �lie leased premises as it deems appropriate and may malce suclz alterations or majar renovations to the existing improvements as it deems appropriate, provided, however, that such alterations or renovations sl�all not disturb the structural integrity of such existing improvements, and provided that the altezations or renovations s1�a11 comply with all applicable governmental regulations. The Tenant shall indemnify, defend and hold �l�e Landlord harmless from any claims, losses, damages or liens arising out of or in any way connected with such additions or renovations. S. UTILI'1�5. The Tenant sl�all be responsible for all costs of electr-icity, lights, water, sewer, heat, phone, TV, internet, or any other utility or service constuned in connection with the leased premises. Relating to leased prernises `A', utility charges shall be assessed to Tenant by Landlord on a prarated basis according to the Tenant square foot usage. Relating to leased premises `B', there sl�all be no utility charges. It is understood that the Landlozd sl�all l�ave no liability for the failure to procure, or the interruption of, a.ny such services o�� utiIities. 9. SIGNS. T1ie Tenant shall liave the rigIrt to ezect and maintain such sign or signs on the premises as may be permitted by applicable law; provided, l�owever, the Landlord must approve any such signs in writing prioz to erection. The Landlord may impose any reasonable restrictions as, in flze sale discretion of the Landlord, are deemed necessary. 10. TAXES. The Tenant shall pay during the Lease term all ad valorem taxes, assessments or any other governmental cl�arge Ievied or assessed against the leased premises (incluc�ing tl�e T'enant's leaseI�old by tIle appropriate governmerztal authorities), together with all ad valarem taxes assessment ar other govemmental charge levied against any stocic of inerchandise, furnit�ue, fiunislungs, equipment and other properly 7 38 of 159 i �. � located in, or upon flie leased premises. AIl shaIl be paid by the Tenant on a timely basis and receipts therefore sliall be provided to the LandIord upon request. 11 _ LIABTLITY INSURANCE. The Tenant shall provide and l�eep in force, at its own expense, during the term of tlus Lease, comprehensive public liabiliiy insurance coverage with respect to the contents of �1Ze leased premises. Landlord shall insure the buildings occupied by Tenant. 7'he insurance coverage to be maintained by the Tenant shall contain limits of: {a} Bodily Injury and Properiy Damage -$1,OQO,QO� Combined Single Limits (b) Froducts and Cornpleted �perations Liabiliiy {if applicable) — $1,00�,00� Combined Siiigle Limit. (c) Aircraft Liability —$1,0�0,��0 Bodily Injury and Property Damage Combined Singie Limit. (d) Insurance in the full replacement value of all Personal Property, Equipment, and Trade Fixtures on the Leased Premises. (e} Ground and Hangar ICeeper's Liability {if applicable) — adequate coverage for any single aircraf-t ui storage or care and a limit covering the total value of tl�.ose aircraft but not less than $100,000 for damage to any one {1} aircraft and $SOO,Q00 per eacli occurrence. (� Chemical Liability Insurance (if applicable} — minimum of $400,Q00 Combined Single Limit. {g} For aircraft Fueling �perations (if applicable}— a Comprehensive .Aircraft Liability policy indicating tliat the coverage includes owner's fueling/defueling operations with fueling equipment owned and/or operated by the Tenant. The minimum sl�all be $1,00O,OOa Combined Single Limit for Bodily Injury and Property Damage. (h) Automobile Liabiliiy Tnsiva�ice: (1) Each service provider operating one or more motor velucles on tlie City's premises in the perforrnance of their worlc shall purchase and maintaiii Automobile Liability Insurance with policy limits of not less than $300,000 Combined Single Limit. (2} Service Providers havii�zg unescorted access to the AOA at the Sebas�iau 1Vlunicipal Airport shall purchase and maintain �lutomobile Liability Tnsurance with policy limits of not less than $1,ODU,000 Combined Single Limit. (a) Builder's Rislc (if applicable)— during any construction on a leased site, the service provider shall fiunish Buiider's Rislf Insurance insuring the contraci pri�e, with the City Iisted as the named insured. Any deductibles under the builder's rislc policy shall be the responsibility of the service provider. (b) Worlfers' Compensation Insurance: as required by Florida Statutes. 8 39 of 159 t , j +-' �� Tena.nt agrees that, should there Ue an expansion af the use or occupancy beyond the primary use set forth herein, Landlord may alter the minimum amounts stated in the preceding section during the term of tlus Lease by addendum or change in the Principal Guiding Documents for Sebastian Alarnicipal Airport (to include f�ture antendments, cha�sges, and deletions). Landlord wi11 give written notice of any such change to Tenant, and such changes will talce effect unmediately. Any policy or policies of insurance required pursuant to this Lease sha1l be issued by ane or mare insurance companies authorized to engage in business in t1�e State of Florida. The Tenant shall supply the Landlord with a certificate of such insurance with evidence oi the payment of the premium thereon. All policies described in this paragrapl�/section shall contain a clause preventing cancellation of any coverage before thirty (30} days written notiee to the Landlord and shall name tl�e Landlord as an additioiial insured. Upon the request of the Landlord, the Tenant sllall provide copies of said policies to the LandIord. 12. PROPERTY, rIRE t�ND EXTENDED COVERAGE INSURANCE, The Tenant shall, at its sole cost and expei�se, procure and Iceep in effect such standard policies of property casualty, fire and extended coverage insurance as the Landlord deems necessary and appropriate. Upon request, the Tenant shall pravide to the Landlord a certificate of such insurance with evidence of tl�e payment of the premium therefore. The Landlord shall have no obligation to Iceep the leased premises contents insured nor sha11 the Landlord have any obligation to insure aFiy personal property used in connection with the leased premises. Any policy or policies of insurance required pursuant to this Lease shall be issued by one or more insurance companies autharized to engage in business in the State of Florida. All po�icies described in tius Paragraph sha11 contain a clause preventing cancellation of any coverage before tlurty (30) days written notice to the LandIord and shall name t��e Landlord as a.0 additional insured. Upon the request of the Landlord, the Tenant shall provide copies of said policies to the Landlord. In the event that the Tenant's use and occupancy of the pre�nises causes any increase in the premium for any property casualty or fire insurance inaintained by Landlord on the Leased Premises or any portion thereof, Tenant shall reimbtuse Landlord for the amount of said increase within thirty days of notice of tl�e same. 9 40 of 159 . , � �--- -�-- 13. DAMAGE OR DESTRUCTION O�' IMPROVEMENTS BY FIRE OR OTHER CASUALTY. In the event the leased premises are destroyed or damaged by fire or other casualty, the Tenant, at its option, agrees that it will cause said premises and/or other improvements to be replaced or said da�nage to be repaired as rapidly as practicable. The Landlord may abate the Tenant's rent for the period of time more than 8(}% of the principal building, if any, is unusable. In the event the Tenant elects to repa.ir and/or replace the leased premises, the Landlord shall have no claims against any insurance proceeds paid to the Tenant on acco�uit of such dainage andlor destruction nor shall the Landlord have any responsibility or obligation to malce any expenditures toward the repair and/or replacement of the building and other improvements on tlie leased premises. (a) If the Tenant, under its option, elects not to repair the leased premises, the Landlord shall liave two options: (i} To continue to Lease; if the Landlord elects to continue the Lease, the Landlord shall be entitled to any of the insurance proceeds on account of such damage and/or destruction, such proceeds to be t�1e sole property of the Landlord; or (2} To cancel the Lease; if the Landlord elects to cancel the Lease, the Landlord sl�all be entitled to tllat portion of the insurance proceeds paid as a result of such damage and/or destruction to the building and other improvements on the leased premises, the Tenant s�iall be entitled to the remainder, if any, of the insurance proceeds. (b} In d1e event ti�e Tena�it, under its option, elects not to repair and/or replace the leased premises, the Tenant shall, at its sole expense, remove all remaining portions of the leased premises. '�f 14. INDEMNIFTCATION. The Tenant agrees hereby to defend, indemnify and save the Landlord hannless from any and all actions, demands, liabilities, claims, losses or litigation arising out of or connected witl� t�ie Tenant's occupancy ar use of the leased prerruses and the use of the leased premises by tenant's agents, employees, and 10 41 of 159 � ; `•._ � invitees, including a11 attorney's fees zncurred by the Landlord in defending any such claims. T�iis Paragraph shall survive the termination or cancella#ion of ttZe Lease. I S. ENVIRONMENTAL MATTERS. The Tenant hereby agrees to indemni_iy, defend and hoId the Landlord harmless from and against any and all claims, lawsuits, losses, liabilities, damages, and expenses (including, without limitation, clean-up costs and reasonaUle attomey's fees) resultuig directly or ind'ueetly from, out of or by reasan of any hazardous or toxic rriaterials, substances, pollutants, contaminants, petroleum products, hydrocarbons or wastes being located on the property and being caused by the Tenant, sub-Tenants, agents, assigns, or users of leased premises or fuel farm. The gresence of said substance or materials on the leased premises, or fitel farm, s�all raise tl�e presumption tl�at Tenant is the cause of such presence. Section 16 shall sutvive the termination, or cancellation, of the Lease. I6. PREVENTION OF USE �F THE PREMISES. Tf, after the effective date of this Lease, the Tenant is precluded or prevented from using the leased premises for those primary purposes identif ed in Section 6 of this Lease, by reason of any zoning law, ordinance or regvlation of any authority having jurisdiction over the leased premises and such prohibition shall continue for a period in excess of ninety (90) consecutive days, the Landlord may allow the Tenant to ierminate tlus Lease. The right to ternunate tlus Lease must be granted by the Laiidlord, in writing, before the Tenant shall be released from its obligations under the terms of tlus Lease. 17. AIRPORT U5� I'EES. Landing, tie down, or any other type of use of airport fees being charged by Tenant are specifcally prohibited by this Agreement as the use of the Aixport is for the general public. Nothing in this Lease shall act to prohibit the Landlord fzom charging such fees as it deems necessary or desirous. 18. GOVERNIVIENT SEIZURE. In the event the United States Government, or any agency or subdivision thereof, at any time during the term oithis Lease takes over ttie operation ar use of tlle airf eId and/or Airport wluch results in the Tenant being unable to operate under the terms of the Lease, then the Lease may be extended upon mutual agreement of the Tenant and tl�e Landlord for an additional period equal to the time the Tenant has been depi�ved of the value of this Lease. If the duration oi the 11 42 of 159 �.l � -.� �s seizure exceeds ninety (90) consecutive days, the Landlord, at the Landlord's sole discretion, may terminate tlus Lease. 19. EMINENT DOMAIN. If aIl or any part of the leased premises shall be talcen under a power of emineiit dornain, the compensation or proceeds awazded for the talcing of the leased premises shall belong to the Landlord. If the talting is to such an extent that it is impracticable for tlie Tenant to continue the operation of its business on the leased premises, the Lease, at the option of the Landlord, may be terminated. Notlung herein shall prevent the Landlord andlor the Tenant from seelcing any and all damages sustained from the condeinning authority by reason of the exercise of the power of eminent domain. 20. DEFAULT BY TENANT. As used in tlus Lease, the term, "event of default", shall mean any of the following: (a) The faillue of the Tenant to fulfill any duty or obligation imposed on the Tenant by the Lease; (b) The appoint�nent of a receiver or flie entry of an order declaring the Tenant banlcrupt or flie assigiunent by the Tenant for the benefit of creditors or the participation by the Tenant in any other insolvency proceeding; (c} The Tenant's failure to pay any consideration, to the Landlord, required by this Lease; (d) The talcing of flze leasehold interest of ti�e Tenant l�ereunder pursuant to an execution on a judgment; (e) 'T11e Tenants abandonment of any substantial por�an oi the leased premises. "Abandonment" shall be determined by t�le Landlord; (f} The Tenant or any guarantor of Tenant's obligations hereunder, filing a petition for banl�ruptcy or being adjudged banlcrapt, insoIvent, under any applicable federal or state banlcruptcy or insolvency law, or admit that i# cannat meet its financial obligations as they became due, or a receiver or trustee sha11 be appointed for all or substantially all of the assets of Tenant or any Tenant's obligations hereunder; 12 43 of 159 ) 'L � � (g) The Tenant or any guarantor of the Tenant's obligations hereunder shall malce a transfer in fraud of creditors or shall malce an assignment for the benefit of creditors; (h) The Tenant shall do or permit to be done any act which results in a iien being filed against the leased premises or the property wluch is not released of record within thirty {30) days of the date it is initially recorded in the PuUlic Records of Indian River County. Each party covenants and agrees that it has no power to incur any indebtedness giving a right to a lien of any lcind or character upon the right, title and interest of the other party in and to the property covered by tlus Lease, and that no third person shall ever be entitled to any lien, directly or indirectly, derived tlu'ough or under die other party, or its agents or servants, or on account of any act of omission of said other party. All persons contracting witl� the Tenant or furnislung materials or labor to said Tenant, or to its agents or servants, as well as all persons wliomsoever, shall be bound by this provision af this Lease. SlioL�Id any sucl� lien be f led, tl�e Tenant shall discharge the same by payinent or by filing a band, or otherwise, as permitted by law. The Tenant shall no# be deemed to be the agent of tl�e Landlord so as to confer upon a laborer bestowiiig labor upon the leased premises, a mechanic's lien upon the Landlord's estate under the provisions of the rlorida Staiutes, or any subsequent revisions �liereof; (i) The liquidation, ternunation, death or riissolution of the Tenant or all Guarantors of the Tenant's obligations hereunder; (j) The Tenant fails for more than one hundred twenty (120) consecutive days to continuously conduct and carry on in good faith the type of business for which the leased premises are leased; (k) The Tenant shall Ue in default of any other term, provision or covenant of this Lease, other tlian tliose specified in subparts a through 1 above. Upon the happening of any "event of default", ttie Landlord may, at its option, terminate this Lease and expel the Tenant therefrom without prejudice to any other remedy; 13 44 of 159 � ; ��`` i `i� provided, however, that before the exercise of such opt�on for failure to pay rent or failure to perfarm any condition iinposed herein upon t�le Tenant, the Landlord shall give written notice of such event of default to the Tenant, which thereafter shall have thirty (30) days, from the date notice is sent by the Landlord, witlun wluch to remedy or carrect such default, uniess such default is the failure to pay rent, in wluch case the Tenant sha11 have ten {10) days, from the date notice is sent by the Landlord, within which to remedy such default by paying all rent due. 21. IDENTITY OF 1NTEREST. The execution of this Lease or the perfarmance of any act �ursuant to t�ie provisions hereof shall not be deemed or conshved to have the effect of creating Uetween t11e Landlord and the Tenant the relationslup of principal and agent or of a partnerslup or of a joint venture and the relationship between them shall be and remain oi�ly �liat of landlord and tenant. 22. NOTTCES AND REPQRTS. Any notice, report, statement, approval, consent designation, demand or request to be given and any op�ion or election ta be exercised by a party tu�der the provisions of this Lease sliall be effective only when made in writing and delivered (or mailed by registered or certif ed mail with postage prepaid) to the other party at the address given below; Landlord: City of Sebastian Attn: City Manager 1225 Main Street Sebastian, FL 3295$ Tenant: Peter TorelI, CAIP NationAir Aviation Insurance 202 Airport Drive East Sebastian, FL 32958 provided, however, that either parly inay designate a different representa�ive or address from time to time by giving to the other party notice in writiilg of the change. Rental payments to the Landlord si�all be made by the Tenant at an address to be fiun.ished to the Tenant. 23. RIGHT TO INSPECT. The Landlord may enter the leased premises upon reasonable natice: 14 45 of 159 i ,,.� i (a) To inspect or protect the leased premises or any improvement to a properly location tliereon; (6) Ta determine whedler tlie Tenant is complying with the applicable laws, arders or regulations of any Iawful authority having jurisdiction over the leased �remises or any business conducted tlierein; or (c) To exhibit the leased premises to any prospective purcha.ser or tenant during the final sixty {60) days of tlle lease teiTn, or at any time after either party lias notified tIie otlier tl�at tl�e Lease will be terminated for any reason. No authorized entry by the Landlord shall consti#�zte an eviction of the Tenant or a deprivation of its rights or alter the obligation of fihe Landlord or create any right i.n the Landlord adverse to the interest of tlie Tenant Ilereunder. 24, OWNERSHIl' OF TF�.ADE FIXTURES, SIGNS ANll PERSONAL PR4PERTY. At the expiration oi tlle Lease, any and all trade fixtures, sig�s and personal property, used by the Tenant in the operation of its business, on the leased p�emises shall remain tlie Tenant's sole property and the Tenant shall 11ave the right to remove the same provided any danzages in remaval axe repaired by tl�e Tenant at Tenant's sole cost. In case of breach of tlais Lease by the Tenant, or the terminatian of the Lease, or any extension hereunder, that may be granted, the Tenant agrees ta immediately surrender possession of said facilities, and all the buildings, edifices, etc. that are constructed by or on behalf of Tenant. The facilities, buildings, edifices, etc. shall then vecome the property of the Landlord. 25. HEIGHT/IIAZARD It�CSTRICTIONS. Tlie Tenant expressly agrees for itself, its successors and assigns, to restrict t�ie height of structures, objects of natural growth and other obstri.ictions on the leased premises to sucli a height so as to comply with ail Federal Aviation Regulations, State laws and locai ordinances, rules and regulations now existing aud hereinafter promulgated. The Tenant expressly agrees for itself, its successors and assigns, to prevent any use of the Ieased premises which wauld interfere wi.th or adversely affect tlZe operation or ma.intenance of the Airport or otherwise constitute an airport liaza.rd. Tl�e Tena�lt covenants and acicnowledges that thie use of the 15 46 of 159 i� � : leased premises as proposed by the Tenant does not interfere with or adversely affect the operatian or maintenance of tl�e Airport or otlierwise constitute an Airport hazazd. The Landlord reserves unto itself, its successors and assigns, for the use and benefit of the public, a right af flight for the passage of aircraft in t�ie airspace above the surFace of the leased premises, together witIi tl�e riglit to cause in suclz airspace such noise as may be inherent in the operation of aircraft, now lrnown or hereafter used, for naviga�ion or flight in the airspace, and for use of said airspace for landing on, taking off from, ar operating on the Airport. 26. NONDISCRIMINATION. Tlie Tenant for itself, its personal representaiives, successors in interest and assigns, as part oi the consideration hereof, does hereby cavenant a.i1d agree as a covenant ruruiing witli the land that (i) no person on the grounds of religion, gender, marital status, race, color, age, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise sublect to discrimination zn the use of the Tenant's facilities; (ii} that in the construction of any improvements on, over or under the leased premises and the fiirnishing af services ihereon, no person on the grounds of religion, gender, marital status, race, color, age, or na�ional origin shall be excluded from participation ui, denied the benefits of, or otherwise be subjected ta discrimination; (iii) that the Tenant shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regu.lations, Department of Transportatian, Subtitle A, Office oithe Secretary, Part 21, Nondiscriminatian ui Federally Assisted Pragrams of the Department of Transportation - Effectuatian oi Title VI of the Civil Rights Act of 1964. In the event of the breach of any of the above non- discrimination covenants, the Landlord shaIl promptly notify �lie Tenant, in writing, of such breach and the Tenant shall unmediately commence curative action. Such action by the Tenant shall be diligently pursued to its conclusion, and ii the Tenant shall then fail to commence or diligently pursue action to cure said breach, the Landlord shall then have the right to tertninate this Lease and to re�enter and repossess said land and unprovements thereon. 27. ENTIRE AGREEMENT. Tl�is Lease contains all of the understandings by and between the parties hereto relative to the leasing of the preznises herein described, l6 47 of 159 �`� �1 � and aIl prior or contemporaneous agreements relative tIiereto have been merged herei.n or are voided by this 111StTt1Tri�Ilt, wlucli may be amended, rnodified, altered, changed, revolced or rescinded in whole or in part only by an instrument in writing signed by each of the parties hereto. 28. ASSIGNMENT AND S�(JBLETTING. The Tenant shall not assign this Lease or sublet the leased p�enlises or any portion thereof, or otherwise transfer any right or interest hereunder without tl�e prior written consent of the Landlord. If the Landlord consents, i.n writing, to fl�e assigmnefit, subletting or o�ller transfer of any rigl�t or interest hereunder by the Tenant, sucll approval shall be limited to the particular instance specified in the written consent and �lie Tenant shall not be relieved of a.ny duty, obligation or liability tulder the provisions of its Lease. 29. BINDING EFF�CT. The tenns and provisions of tlus Lease shall be binding on the parties hereto �1d their respective heirs, successors, assigns and personal representatives, and tlie tenns of any Addendvm attached hereto are incorporated herein. 30. APPLICABL� LAW/VENU�. In the event of litigation arising out of this writing, venue shall be in Indian River County, Florida and the terms of this Lease shall be construed and enforced according io the laws of the State of Florida except to the extent provided by Federal law. 31. ATTORNEYS FEES. In any action arising out of the enforcement of this writing, the prevailing party shall be entitled to an award of reasonable attomey fees and costs, both at trial and all appellate levels, based upon the prevailing rates of private attorneys in Indian River Caluity, Florida. 32. RECOR.DING. In no event shall the Lease or a copy thereof be recorded in the Public Records of Indian River County, Florida. 33. MISCELLANE�US. Ail delinquent payments to the Landlord shall bear interest at the rate of I 8% per year. from date the payments are due to the date of payment. Said interest shall be calculated on a daily basis and shall be due and payable when billed. The Tenant aclaiowledges that the Landlord is required by law to operate under an Airport Master i'lan and the Tenant covenants that he will use the leased premises consistent witl� tl�e Airport Master Plan. 17 48 of 159 � The Tenant shall nat allow its occupancy or use of the ?ease premises to constitute or became a public or private nuisance. 3�. CONTENGENCIES. The provisions in this lease are contingent on the Landlord providing the installation of Hi-Speed internet to tl�e space provided to Tenant. In addition, this lease is contingent on the Landlord installing a dry-wall `patch' on the pocicet door system from the executive office to the secondary oifice of t�ie leased space. IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year first aUove written. ATTEST: � � 4 v V ' i Sally Maio, C' Clerlc (seal) Approved as to Form and Legality for Reliance by the City of Sebastian only: Robert A. Ginsburg, ity Attomey NationAir Aviation Insurance Agency, Inc. By' . Peter Torel , Branch Manager Corporate Office: 1525 Kautz Rd., Suite 100 West Chicago, IL 60185 CITY OF A Mu�iicix i 0 , City Manager Corporate Seal: � ls � 49 of 159 �,� � Schedule "A" Lease Agreement between the City Of Sebastian and NationAir Aviation Tnsurance Group 1. Leased premises sha1l include a`wing' at the Sebastian Municipal Airport Adnunistration Building currently Icnowr� as tUe "Aixport Administration Wing." This space is appro�cimately 147b square feet, more or less. 2. An approximately 10' X 10' office adjoining the lobby area of the administration building is included. This area is identified as the "Mail/Copy room." Tota1 leased space is 1576 square feet. 3. Premises az'e un-furnished. 4. Utility charges shall be prorated according to square foot usage. 5. Common Area Maintenance (CAM) shall be at no charge to the Tenant. b. Lobby/reception area shall be considered a common/shared space with ofiher building tenants. 7. Tenarit sha1I have use of a locked Conference Raom/Library adjacent ta the lobby of the administration building with appropriate notice to the Landlard. 8. Tenant shall liave use of conference faciIities in the Emergency Operations Center (EOC) Wing of t�ie Airport Ad.ininistration Building with appropriate notice to t�ie Landlord. 50 of 159 '�� ` ScheduIe "B" Lease Agreement beiween the Ciiy Of Sebastian and NationAir Aviation Insurance Gz-oup 1. The City Of Sebastian sl�all lease to NationAir an a.ircraft Tie-Down position loca#ed on the airport administra#ion building ramp. T11e Tie-Down is Iocated on the eastern most portion of the ramp in front of the most eastern Iight stanchion. The position will be niarked with a"RESERVED" sign. Tt is understood that tl�e aircraft Tie--Down shall be used in conjunction with the insurance operations of NationAir. It is understood that the City Of Sebastian retains ownership of the Tie-Down tlaroughout the term of the Iease. 2. The lease rate shall be at a rate as describe in section 4 of the lease agreement. 3. It is understood t11at NationAir will provide adequate insurance on all aspects relating to its insurance and Tie-Down operations. In addition, Nation.Air will provide adequate liability and property damage insurance coverage on the city owned Tie-Down position. NationAir will hold IZarmless the City Of Sebastian of any claim or liability relating to NationAir's lease, or use of, the Tie-Down position. 51 of 159 Cm'oF �; � � �-�t�� HOME OF PELICAN ISLAND CONSENT TO FIRST ASSIGNMENT OF AIRPORT LEASE BETWEEN THE CITY OF SEBASTIAN AND NATIONAIR INSURANCE DATED 08 OCTOBER 2009 THE CITY OF SEBASTIAN hereby consents to the assignment to Rud Aero of that certain LEASE, made and entered into on 08 October 2009 with NationAir Insurance and hereby releases NationAir Insurance from further obligations under said lease. DONE this 23`d day of January 2013. ATTEST: CITY OF SEBASTIAN A Municipal Corporation Sally A. Maio � MMC Al Minner City Clerk City Manager Approved as to Form and Legality for Reliance by the City of Sebastian only: Robert A. Ginsburg City Attorney 52 of 159 �a 5��°�i _..... �� HOME OF PELIUN ISLAND City Council Agenda Item Subject: Agenda No. � :�. �- '"� FY 13 Street Paving — Englar Drive Department Origin: Ci Ma er — • Administrative Srv ": -�. App ove Submittal by: City Attorney: � �' City Clerk: I i r, ity Manager Date Submitted: 17 JAN 13 Council Date: 23 JAN 13 Exhibits: Contract Documents EXPENDITURE REQUIRED: BUDGETED REMAINING: APPROPRIATION REQUIRED: $129,946 $93,772 TRF $36,173 From GF to LOGT SUMMARY Public bids were opened for the paving of Englar Drive (between Barber Street and George Street) on January 4, 2013. The bids were solicited in a fashion to determine whether it was in the financial interest of the City to divide the project into two tasks — Task "A" Street Rebuilding; Task "B" Asphalt Overlay. The bids were as follows: COMPANY Roadway Management Asphalt Paving Community Asphalt Ranger Asphalt Recycling TASK A $58,465.88 $66,633.00 $63,725.00 $63,373.00 $49, 922.50 TASK B $81,480.00 $73,022.25 The bids revealed the City can save up to $13,450.50 by splitting the project into two tasks. The best option is to award the street rebuilding portion of the job to Asphalt Recycling, Inc. in the amount of $49,922.50 and the overlay portion of the job to Ranger Construction, Inc. in the amount of $73,022.25. The total estimated contact cost is $122,945. $93,772 remains in FY 13 for street improvements. However, staff is recommending that an expense of $129,946 be made to fund the entire project. This recommendation will leave the Local Option Gas Tax Fund (LOGT) over budget by $36,173. In an effort to minimize budget overruns, Staff offers the following expense breakdown and 53 of 159 revenue transfer. The following is a summary of the anticipated project costs and the recommended sources of funding: Ranger Construction Asphalt Recycling Neil-Scheafer CTI — Construction Test Inspection Estimated Project Costs Remaining Budget for Street Paving Funding Needed Available from Facilities Maintenance Division Additional projected FPL Franchise Revenue $ 73,022 49,923 4,000 3,000 $129,945 93,772 $ 36,173 22,694 $ 13,479 As show in the summary, the additional funding will be provided from (1) budget savings available from the Facilities Maintenance Division; and, (2) from additional FPL Franchise Fee revenues that are expected to increase beyond projected amount due to the increase in rates FPL was awarded by the Public Service Commission. RECOMMENDED ACTION Staff recommends that Council move to: ➢ Award Ranger Construction the Englar Overlay Contract in the Amount of $73,022; ➢ Award Asphalt Recycling the Englar Street Rebuilding Contract in the Amount of $49,923; ➢ Allocation CTI — Inspection Services $3,000; and, ➢ Transfer $36,173 from the General Fund to LOGT. 54 of 159 "Englar Drive Full Depth Reclamation Cement Treated Base and Asphalt Pavement" Bid Due: No Later Than 2:00 P.M. on Mondav, December 31, 2012 Bid Opening: Beginning at 2:00 P.M. on Mondav, December 31, 2012 BID PROPOSAL PRICE FORM The undersigned having become thoroughly familiar with all of the Bidding Documents incorporated herein and having attended a Pre-Bid Conference / Meeting, hereby proposes to perform everything required to be performed in strict conformity with the requirements of these documents, meeting or exceeding the specifications as set forth herein for the price(s) quoted below. The price(s) quoted is (are) inclusive of any Addenda which may have been issued prior to this submittal. By the signature below, the Vendor agrees that this Bid Proposal is made without any other understanding, agreement, or connection with any person, corporation, or firm submitting a bid for the same purpose and that the bid is in all respects fair and without collusion or fraud. If awarded any work under this bid proposal, the Vendor agrees to enter into said agreement within ten (10) consecutive calendar days notice by the City, and agrees to all the terms and conditions of all documents stated herein with the City of Sebastian for the below stipulated price which shall remain firm for sixty (60) days following bid opening date. Contractor has ontion to bid on Task A(onlv) or Task B(onlvl or Task C(bothl as stipulated in this agreement, and bidding documents. Bids with Task A and B or combination C is required for a bid to be awarded. Bid Items on the Project will be authorized for construction at the discretion of the City of Sebastian. BID ITEMS — GENERAL QUANTITY $/UNIT COST Task A 1. Traffic Control/MOT 1 LS 2. Remove grass from pavement edge 3,900 LF 3. Chemical treatment of vegetation 1 LS 4. Full Depth Reclamation (FDR) with Cement Treated Base (12" base w/compact subbase (LBR 40) 7,100 SY Task B 5. Traffic Control/MOT 6. Pavement Grinding (1 ft wide) 7. Hot Mix Asphalt Pavement (1.5" thick SP 9.5) 8. Striping and 11 stop bars Task C(does only item 1 or 6) 9. Both A and B combined Name 6f Firm (Please Type or 1 LS 255 LF 660 TON 1 LS Firm's Address: 3.�1-�'32- 6�SS� 3_,��-�3'�-�3�35 Telephone Number(s): Fax Number(s): T� e� �o r P l�/,� �;' �e . c 1c ; 1�G es ;'��%,�"� Name and Title of Authorized Representat e(Please Type o rint) Z� � j�� - � �' Signature of Authorized Representative Date Signed gS7 y 2s 'k�7� �U , � $S /LF / SG l. S6 � DD /LS � � (?, (��i S, � /SY �5�� f� t� Total A Bid �f '��SO /LS /LF /TON /LS Total B Bid Total C Bid 3 ,:� a.� '! Lt f,t i t' C�C, /�u� i h C (`� �✓�tQ �/ C 04'�'1 �� Email Address (es): - .. j .� P-! 55 of 159 .�� . {::'�ty�S,�9\:c�JUliL�.S�.v`�p�e�� x�.,l.-�.':; "Englar Drive Full Depth Reclamation Cement Treafed Base and Asphalt Pavement" Bid Due: No Later Than 2:00 P,1VI. on 1Vlondav. December 31. 2012 Bid Onening: Beginning at 2:00 P.M. on Mondav, December 31, 2012 BID PROPOSAL PRICE FORM The undersigned having become thoroughly familiar with all of the Bidding Documents incorporated herein and having attended a Pre-Bid Conference / Meeting, hereby proposes to perform everything required to be performed in strict conformity with the requirements of these documents, meeting or exceeding the specifications as set forth herein for the price(s) quoted below. The price(s) quoted is (are) inclusive of any Addenda which may have been issued prior to this submittal. By the signature below, the Vendor agrees that this Bid Proposal is made without any other understanding, agreement, or connection with any person, corporation, or firm submitting a bid for the same purpose and that the bid is in all respects fair and without collusion or fraud. If awarded any work under this bid proposal, the Vendor agrees to enter into said agreement within ten (10) consecutive calendar days notice by the City, and agrees to all the terms and conditions of all documents stated herein with the City of Sebastian for the below stipulated price which shall remain firm for sixty (60) days following bid opening date. Contractor has ontion to bid on Task A onlv) or Task B(only) or Task C(bothl as stipulated in this agreement, and bidding documents. Bids with Task A and B or combination C is required for a bid to be awarded. Bid Items on the Project will be authorized for construction at the discretion of the City of Sebastian. BID ITEMS – GENERAL OUANTITY $/LTNIT COST Task A 1. Traffic ControUMOT 1 LS 2. Remove grass from pavement edge 3,900 LF 3. Chemical treatment of vegetation 1 LS 4. Full Depth Reclamation (FDR) with Cement Treated Base (12" base w/compact subbase (LBR 40) 7,100 SY Task B 5. Traffic ControUMOT 6. Pavement Grinding (1 ft wide) 7. Hot Mix Asphalt Pavement (1.5" thick SP 9,5) 8. Striping and 11 stop bars Task C(does only item 1 or 6) 9. Both A and B combined 1 LS 255 LF 660 TON 1 LS �1��`��; �_'.: _ �/LS �, � /LF �.�S�ILS � � /SY Total A Bid �/LS /�"i /LF ��/TON s�s3v�2,s Total B Bid TotaH C Bid !0, !�0 � /' 7S,f` `� �' S.-_ ��,2G � o-o 3 7 — �t � `� �,3, P"63 -= 6� _ S�—� �7,��r- 6 9z � Name of Firm �plea/se T1ype or Print) {y.ir(_! `; 1�4(-ji-'J ��!/ c,t,,(� /�i`.f �'� �)�� ,i �i��1t�i t � P Firm's Address: . ;� ,., , , � ' ' �7 { �'�c) C- �,��({, . ��„�5.�) �{O _ �� Sc c. t�) �'St ,`�,` ' r- (�' n i �.� �, .,.,. �� Cr 5 tn ' , - `� �7.'-2. Z' � . � 4 C,Er`'SCI c� ( � .S J �: .`�-� r . l , t_�.:: � Telephone Number(s): Fax Number(s): Email Address (es): ,! �.� c�� '� �_.%.t.`1-.�_ t..�c��ltsi" Name and Titg horiyed-Re}�Y�seQtative (Please Type or Print) ^-%'"" / � / �'' �''�' ;�-�, ,�..; . Signatur�' A`utls ze epresentaHve Dete Signed P-I 56 of 159 CONSTRUCTION SERVICES AGREEMENT THIS AGREEMENT made this day of , 2013, by and between the CITY OF SEBASTIAN, a municipal corporation of the State of Florida, 1225 Main Street, Sebastian, Florida, 32958, and ("City") and ("Contractor.") authorized to do business in the State of Florida. WHEREAS, the City desires to engage a Florida licensed contractor who has special and unique competence and experience in providing construction services necessary to complete the Project hereunder; and, WHEREAS, the Contractor represents that it has such competence and experience in providing these services; and, WHEREAS, the City in reliance on such representation has selected the Contractor in accordance with its procedure for selection of Contractor; and, WHEREAS, the City and the Contractor desire to reduce to writing their understanding and agreements on such professional services. IT IS, THEREFORE, AGREED as follows: ARTICLE I- The Contractual Relationship 1.0 EMPLOYMENT OF CONTRACTOR The City hereby agrees that it may engage the Contractor and the Contractor hereby agrees to perform professional services for the City in accordance with this Agreement to PROVIDE MINOR PAVEMENT REPAIRS AND ASPHALT PAVEMENT OVERLAYS. This Agreement is not an exclusive agreement and the City may employ other contractors, professional or technical personnel to furnish services for the City as the City in its sole discretion finds is in the public interest. The Agreement shall not be construed to create a contractual relationship of any kind between the City and the Subcontractor(s), or, between any person or firm other than the City and Contractor. The Contractor shall not sell, transfer, assign or otherwise dispose of the Contract or any portion thereof, or of his right, title of interest therein or his obligations thereunder, or moneys due or to become due under this Contract. 2.0 AGREEMENT DOCUMENTS The Agreement Documents (also called CONTRACT DOCUMENTS) consist of this Agreement, Supplemental Agreement(s), Notice of Invitation to Bid, Instructions for Bidders, Bid Proposal, Bond Forms, Bid Specifications and Scope of Wark, Work Orders, Change Orders, Addenda if any, any other documents listed in the Agreement Documents, and written modifications issued after execution of this Agreement, if any. A-6 57 of 159 2.1 INTENT The Specifications are an integrated part of the Contract Documents and as such will not stand alone if used independently. The Specifications establish minimum standards of quality for this Project. They do not purport to cover all details entering into the design and construction of materials or equipment. The intent of the Agreement Documents is to set forth requirements of performance, type of equipment and structures, and standards of materials and construction. It is also intended to include all labor and materials, equipment, and transportation necessary for the proper execution of the Work, to require new material and equipment unless otherwise indicated, and to require complete performance of the Work in spite of omission of specific reference to any minor component part and to include all items necessary for the proper execution and completion of the Work by the Contractor. Performance by the Contractor shall be required only to the extent consistent with the Agreement Documents and reasonably inferable from them as being necessary to produce the intended results. 2.2 ENTIRE AND SOLE AGREEMENT Except as specifically stated herein, the Agreement Documents constitute the entire agreement between the parties and supersede all other agreements, representations, warranties, statements, promises, and understandings not specifically set forth in the Agreement Documents. Neither party has in any way relied, nor shall in any way rely, upon any oral or written agreements, representations, warranties, statements, promises or understandings not specifically set forth in the Agreement Documents. 2.3 AMENDMENTS The parties may modify this Agreement at any time by written agreement. Neither the Agreement Documents nor any term thereof may be changed, waived, discharged or terminated orally, except by an instrument in writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. 2.4 CONSTRUING TERMS This Agreement shall not be construed against the party who drafted the same, as both parties have obtained experts of their choosing to review the legal and business adequacy of the same. 2.5 GOVERNING LAW AND WAIVER OF TRIAL BY JURY This Agreement shall be governed by the laws of the State of Florida, and any venue for any action pursuant to the Agreement Documents shall be in Indian River County, Florida. The parties hereto egpressly waive trial by jury in any action to enforce or otherwise resolve any dispute arising hereunder. 2.6 TERM This Agreement shall commence on the day it is executed by both parties and the term of the Agreement shall extend until the Project is complete unless terminated in accordance with the terms hereunder. A-7 58 of 159 3.0 DEFIrTITION OF TERMS 3.1 GENERAL Whenever the following terms appear in these Agreement Documents, their intent and meaning shall, unless specifically stated otherwise, be interpreted as shown. 3.2 ACT OF GOD The words "Act of God" mean an earthquake, flood, hurricane (or other named tropical event), tornado or other cataclysmic phenomenon of nature. Rain, Wind or other natural phenomenon (including tropical waves and depressions) of normal intensity for the locality shall not be construed as an Act of God. 3.3 ADDENDUM (re: bid documents) A modification of the plans or other contract documents issued by the Owner and distributed to prospective bidders prior to the opening of bids. All Addenda shall be considered as part of the Contract Documents. 3.4 AGREEMENT A written agreement between the Contractor and Owner defining in detail the work to be performed. The words Agreement and Contract, are one and the same. 3.5 A.S.T.M. DESIGNATION Wherever the letters "A.S.T.M." are used in the Specifications, it shall be understood as referring to the American Society for Testing Materials. When reference is made to a certain Designated Number of a specification or test as set out or given by the American Society for Testing Materials, it shall be understood to mean the current, up-to-date standard specification or tentative specification for that particular process, material or test as currently published by that group. 3.6 BID The bid or proposal is the written offer of a Bidder to perform work described by the contract documents when made out and submitted on the prescribed proposal form properly sealed and guaranteed. The bid or proposal shall be considered as part of the Contract Documents. 3.7 BID BOND or PROPOSAL GUARANTEE Bidder shall submit a Bid Bond or Proposal Guarantee in the amount of 5% of the Base Bid, in the form of a Cashier's Check, Unconditional Irrevocable Letter of Credit drawn in favor of the City of Sebastian on a National Bank, or a bond from a surety company duly licensed in the State of Florida. A-8 59 of 159 3.8 BIDDER An individual, partnership, or corporation submitting a proposal for the work contemplated; acting directly or through a duly authorized representative. 3.9 CHANGE ORDER A written order issued to the Contractor by the City covering changes in the plans, specifications, or scope of work when the amount of work changed is not deemed sufficient to require a supplemental agreement, and/or to cover adjustments in the Contract Price or Contract Time. 3.10 CONTRACT ADDENDUM A special written provision modifying or clarifying the terms and conditions of the Contract. The Contract Addendum shall be considered as part of the contract documents. 3.11 CONTRACTOR The word "Contractor" shall mean an individual, partnership, or corporation, and its heirs, executors, administrators, successors and assigns, or the lawful agent of any such individual, firm, partnership, covenant ar corporation, or its surety under any contract bond, constituting one of the principals to the Contract and undertaking to perform the work herein. 3.12 DIRECTED, ORDERED, APPROVED & ETC. Wherever in the Agreement Document the words "directed", "ordered", "approved", "permitted", "acceptable", or words of similar import are used, it shall be understood that the direction, order, approval or acceptance of the Owner is intended unless otherwise stated. 3.13 ENGINEER A Professional Engineer duly licensed and registered in the State of Florida and designated by the City as the Engineer-of-Record. The City may designate a staff inember as Engineer who is not licensed. 3.14 GENERAL CONDITIONS The directions, provisions and requirements contained within the Agreement Documents, all describing the general manner of performing the Work including detailed technical requirements relative to labor, material equipment, and methods by which the Work is to be performed and prescribing the relationship between the City and the Contractor. 3.15 INSPECTOR A duly authorized representative of the City assigned to make official inspections of the materials furnished and of the work performed by the Contractor. 3.16 LABORATORY A-9 60 of 159 Any licensed and qualified independent laboratory designated by or acceptable to the Owner to perform necessary testing of materials. 3.17 OWNER City of Sebastian 3.18 PERFORMANCE AND PAYMENT BONDS Contractor shall submit bonds in the form prescribed by State Law, and generally as shown on sample forms herein, for Performance and Payment, no performance or payment bonds for this project. 3.19 PLANS The official, approved engineering plans, including reproduction thereof, showing the location, character, dimensions and details of the work to be done. All shop drawings submitted by the Contractor shall be considered as part of the contract documents. 3.20 PROPOSAL The proposal or bid is the written offer of a Bidder to perform the work described by the Contract Documents when made out and submitted on the prescribed proposal form, properly signed and guaranteed. The proposal or bid shall be considered as part of the contract documents. 3.21 SPECIAL CONDITIONS Special clauses or provisions, supplemental to the Plans, Standard Specifications and other contract documents, setting forth conditions varying from or additional to the Standard Specifications for a specific project. 3.22 SPECIFICATIONS The directions, provisions, and requirements together with all written agreements made or to be made, setting forth or relating to the method and manner of performing the Work, or to the quantities and qualities of materials, labar and equipment to be furnished under the Agreement. 3.23 SUBCONTRACTOR An individual, partnership or corporation supplying labor, equipment or materials under a direct contract with the contractor for work on the project site. Included is the one who supplies materials fabricated or formulated to a special design according to the plans and specifications for the particular project. A-10 61 of 159 3.24 SUPPLEMENTAL AGREEMENT A written understanding, or proposal and acceptance, executed between the City and the Contractor subsequent to execution of the Agreement herein with the written consent of the Contractor's Surety, relating to the wark covered by the Agreement and clarifying or furthering the terms thereo£ A modification to the Agreement shall be made by Contract Addendum. 3.25 SURETY Surety is a corporation qualified to act as surety under the laws of Florida, who executes the Contractor's Performance and Payment Bonds and is bound with the Contractor for the acceptable performance of the contracted work and for the payment of all debts pertaining thereto. 3.26 WORK, (The) or PROJECT, (Thel The public improvement contemplated in the Plans and Specifications, and all actions necessary to construct the same. 3.27 WORK ORDER Wark orders are wark instructions including specifications and plans that show the location, character, dimensions and details to the work to be done. Work orders are specific instructions, of limited scope, that will be a part of this contract. Work orders shall be considered as part of the contract documents. Any Work Orders considered to be Change Orders of any kind shall be in writing and address, at a minimum, any changes in the scope of work and the related impact on Contract Price / Cost and Time / Schedule. A-I l 62 of 159 ARTICLE II - Performance 4.0 PLANS. SPECIFICATIONS AND RELATED DATA 4.1 INTENT OF PLANS AND SPECIFICATIONS The intent of the Plans, Specifications, Work Orders and other Contract Documents is that the Contractor furnishes all labor and materials, equipment, supervision and transportation necessary for the proper execution of the Work unless specifically noted otherwise. The Contractor shall do all the work shown on the Plans and described in the Specifications and other Contract Documents and all incidental work considered necessary to substantially complete the Work ready for use, occupancy, or operation in a manner acceptable to the City. 4.2 CONFLICT In the event of any inconsistency, discrepancy or conflict between the Agreement, the Plans, Specifications, and other Contract Documents, the Agreement shall prevail and govern over all except a subsequently executed Contract Addendum; in the event of an inconsistency, discrepancy or conflict between the Plans and Specifications, the Specifications shall prevail and govern. 4.3 DISCREPANCIES IN PLANS Any discrepancies found between the Plans and Specifications and site conditions, or any errors ar omissions in the Plans or Specifications, shall be immediately reported to the Engineer and City. The Engineer shall promptly determine the validity and seriousness of the claimed condition and correct any such error or omission in writing, or otherwise direct Contractor. Any work done by the Contractor after his discovery of such discrepancies, errars or omissions shall be done at the Contractor's risk. Any correction or errors or omissions in Plans and Specifications may be made by the Engineer when such correction is necessary for the proper fulfillment of their intention as construed by the Engineer. Where said correction of errors or omissions, except as provided in the next two (2) paragraphs below, adds to the amount of work to be done by the Contractor, compensation for said additional work shall be made under the Paragraph 10.7 CHANGES IN THE WORK below, except where the additional work may be classed under some item of work for which a unit price is included in the proposal. The fact that specific mention of any part of work is omitted in the Specifications, whether intentionally or otherwise, when the same is clearly shown or indicated on the Plans, or is usually and customarily required to complete fully such work as is specified herein, will not entitle the Contractor to consideration in the matter of any claim for extra compensation, but the said work must be installed or done the same as if called for by both the Plans and Specifications. All work indicated on the Plans and not mentioned in the Specifications or vice versa, and all work and material usual and necessary to make the Work complete in all its parts, whether or not they are indicated on the Plans or mentioned in the Specifications, shall be furnished and executed the same as if they were called for by both the Plans and Specifications. The Contractor will not be allowed to take advantage of any errors or omissions in the Plans and Specifications. The Engineer will provide full information when errors or omissions are discovered. A-12 63 of 159 4.4 DRAWINGS AND SPECIFICATIONS AT JOB SITE One (1) complete set of all Plans, Specifications, Work Orders, Addenda, Change Orders, Shop Drawings and samples shall be maintained at the job site, in good order and annotated to show all changes made during the construction process, and shall be available to the Engineer and City at all times. A final copy thereof, along with "as-built" record drawings, operations and maintenance manuals, and data sheets, shall be delivered to the Engineer upon the completion of the Work. 4.5 DIMENSIONS Dimensions shown on the Plans will be used. Where the work of the Contractor is affected by finished dimensions, these shall be verified by the Contractor at site, and he shall assume the responsibility for their use. 4.6 SAMPLING AND TESTING Except as otherwise provided, sampling and testing of all materials, and the laboratory methods and testing equipment, required under the Specifications shall be in accordance with the latest standards or tenets of the American Society for Testing Materials. The testing of samples and materials shall be made at the expense of the Contractor, except where indicated otherwise. The Contractor shall furnish any required samples without charge. The Contractor shall be given sufficient notification of the placing of orders for materials to permit testing. As an exception to the above, when the Contractor represents a material or an item of work as meeting Specifications and under recognized test procedures it fails, any re-testing shall be at the Contractor's expense, billed at the Testing Laboratory's standard rate for individual tests. It is expected that all inspections and testing of materials and equipment will be done locally. If the Contractor desires that inspections for tests be made outside of the local area, all expenses, including per diem for the Engineer or Inspectors, shall be borne by the Contractor. 4.7 SHOP DRAWINGS The Contractor shall provide shop drawings, setting schedules, and other drawings as may be necessary for the prosecution of the Work in the shop and in the field as required by the Plans and Specifications or Engineer's instructions. Deviations from the Plans and Specifications shall be called to the attention of the City at the time of the first submission of shop drawings and other drawings. The City's approval of any shop drawings shall not release the Contractor from responsibility for errors, corrections of details, or conformance with the Contract. Shop drawings shall be submitted according to the following schedule: (a) Seven (7) copies shall be submitted to the City at least thirty (30) days before the materials indicated thereon are to be needed or earlier if required to prevent delay of work or to comply with subparagraph (b). A-!3 64 of 159 (b) The City shall, within fourteen (14) days of the submittal of any shop drawings, return three (3) copies to the Contractor marked with any corrections and changes required and noting if the drawings are acceptable as noted, or if resubmittal is required. (c) The Contractor shall then correct the shop drawings to conform to the corrections and changes requested by the City and resubmit six (6) copies to the City. (d) Three (3) copies of Approved Shop Drawings shall be returned to the Contractor by the City. 4.8 OUALITY OF EQUIPMENT AND MATERIALS In order to establish standards of quality, the Specifications may refer to certain products by name and catalog number. This procedure is not to be construed as eliminating from competition other products of equal or better quality by other manufacturers where fully suitable in design. The Contractor shall furnish to the City a complete list of his proposed desired substitutions prior to the signing of the Contract, together with such engineering and catalog data as the City may require. Further substitutions may be submitted during the course of work in accordance with Paragraph 4.10 SUBSTITUTION OF EQUIPMENT AND/OR MATERIAL below. The Contractor shall abide by the City's judgment when proposed substitution of materials or items or equipment are judged to be unacceptable and shall furnish the specified material or item of equipment in such case. All proposals for substitutions shall be submitted to the City in writing by the Contractor and not by individual trades or material suppliers. The City will advise of approval or disapproval of proposed substitutions in writing within a reasonable time. No substitute materials shall be used unless approved by City in writing. 4.9 EQUIPMENT APPROVAL DATA The Contractor shall furnish one (1) copy of complete catalog data for every manufactured item of equipment and all components to be used in the Work, including specific performance data, material description, rating, capacity, material gauge or thickness, brand name, catalog number and general type. This submission shall be compiled by the Contractor and submitted to the City for review and written approval before any of the equipment is ordered. Each data sheet or catalog in the submission shall be indexed according to specification section and paragraph for easy reference. After written approval is received by the Contractor, submission shall become a part of the Contract and may not be deviated from except upon written approval of the City. Catalog data for equipment approved by the City does not in any case supersede the Contract Documents. The acceptance by the City shall not relieve the Contractor from responsibility for deviations from Plans or Specifications, unless he has called the City's attention, in writing, to such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in the items submitted. The Contractor shall check the work described by the catalog data with the Contract Documents for deviations and errors. A-14 65 of 159 It shall be the responsibility of the Contractor to insure that items to be furnished fit the space available. He shall make necessary field measurements to ascertain space requirements, including those for connections, and shall order such sizes and shapes of equipment that the field installation shall suit the true intent and meaning of the Plans and Specifications. Where equipment requiring different arrangement of connections from those shown is approved, it shall be the responsibility of the Contractor to install the equipment to operate properly, and in harmony with the intent of the Plans and Specifications, and to make all changes in the Work required by the different arrangement of connections at his own expense. 4.10 SUBSTITUTION OF EOUIPMENT AND/OR MATERIAL After the execution of the Contract Agreement, the substitution of equipment and/or material far that specified will be considered if: (a) The equipment and/or materials proposed for substitution is determined by the City to be equal or superior to that specified in the Contract; (b) Unless determined to be of superior quality, the equipment and/or material proposed for substitution is less expensive than that specified and that such savings to the City, as proposed by the Contractor, are submitted with the request for substitution. If the substitution is approved, the Contract price shall be reduced accordingly; and (c) The equipment and/or material proposed for substitution is readily available and its delivery and use, if approved as a substitution, will not delay the scheduled start and completion of the specified work for which it is intended or the scheduled completion of the entire work to be completed under the contract. No request will be considered unless submitted in writing to the City and approval by the City must also be in writing. To receive consideration, requests for substitutions must be accompanied by documentary proof of the actual difference in cost to the Contractor in the form of quotations to the contractor covering the original equipment and/or material, and also equipment and/or material proposed for substitution or other proof satisfactory to the City. It is the intention that the City shall receive the full benefit of the saving in cost involved in any substitution unless the item is substituted for one designated in the Specifications by specific manufacturer's name and type, in which case one-third of the savings shall accrue to the benefit of the Contractor. In all cases, the burden of proving adequate proof that the equipment and/or material offered far substitution is equal or superior in construction and/or efficiency to that named in the Contract shall rest on the Contractor and the proof will be submitted to the City. Request for substitution of equipment and/or material which the Contractor cannot prove to the satisfaction of the City, at its sole discretion and judgment, to be equal or superior in construction and/or efficiency to that named in the Contract will not be approved. a-is 66 of 159 5.0 MATERIALS AND WORKMANSHIP 5.1 MATERIALS FURNISHED BY THE CONTRACTOR All materials and equipment used in the Work shall meet the requirements of the respective Specifications, and shall not be used until it has been approved in writing by the City. Wherever the specifications call for an item of material or equipment by a manufacturer's name and type, and additional features of the item are specifically required by the specifications, the additional features specified shall be provided whether or not they are normally included in the standard manufacturer's item listed. Wherever the specifications call for an item of material or equipment by a manufacturer's name and type, and the specified item becomes obsolete and is no longer available, the Contractor shall provide a substitute item of equal or superior quality and performance which is acceptable to the Engineer and City and is currently available, at no increase in Contract price. 5.2 STORAGE OF MATERIALS Materials and equipment shall be stored so as to incur the preservation of their quality and fitness for the Work. When considered necessary, they shall be placed on wooden platforms or other hard clean surfaces, and not on the ground, and/or they shall be placed under cover. Stored materials and equipment shall be located so as to facilitate prompt inspection. Private property zoned for or adjacent to land zoned for residential uses shall not be utilized far storage purposes without special prior arrangement. 53 REJECTED WORK AND MATERIAL Any materials, equipment or work which does not satisfactorily meet the Specifications may be condemned by the Engineer or City by giving a written notice to the Contractor. All condemned materials, equipment or work shall be promptly taken out and replaced. All materials and equipment which do not conform to the requirements of the Contract Documents, are not equal or superior to samples approved by the Engineer and City, or are in any way unsatisfactory or unsuited to the purpose, for which they are intended, shall be rejected. Any defective work whether the result of poor workmanship, use of defective materials, damaged through carelessness or from other cause shall be removed within ten (10) days after written notice is given by the City, and the work shall be re- executed by the Contractar. The fact that the Engineer or the City may have previously overlooked such defective wark shall not constitute an acceptance of any part of it. Should the Contractor fail to remove rejected work or materials within ten (10) days after written notice to do so, the City may remove them and may store the materials and equipment. Satisfaction of warranty work after final payment shall be in accordance with Paragraph 10.15. 5.4 MANUFACTURER'S DIRECTION Manufactured articles, materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned as directed by the manufacturer unless herein specified to the contrary. A-/6 67 of 159 5.5 SKILL AND CHARACTER OF WORKERS All workers must have sufficient knowledge, skill and experience to perform properly the work assigned to them. Any supervisor or worker employed by the Contractor or subcontractors who, in the opinion of the Engineer or the City does not perform his work in a skillful manner, or appears to be incompetent or to act in a disorderly or intemperate manner shall, at the written request of the City, be discharged immediately and shall not be employed again in any portion of the Work without the approval of the City. The Contractor shall at all times be responsible for the conduct and discipline of its employees and/or any subcontractor or persons employed by subcontractors. 5.6 CUTTING AND PATCHING The Contractor shall do all necessary cutting and patching of the Work that may be required to properly receive the work of the various trades or as required by the Plans and Specifications to complete the Work. Contractor shall restore all such cut or patched work as directed by the Engineer or the City. Cutting of existing structures that could endanger the Work, adjacent property, workmen or the public shall not be done unless approved by the Engineer and under Engineer's surveillance. 5.7 CLEANING UP The Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by its employees or work. At the completion of the Work, contractor shall remove all rubbish, tools, scaffolding and surplus materials and shall leave the Work "broom clean" or its equivalent, unless more exactly specified, and shall insure that all debris and other unsightly objects are removed and disposed of in a satisfactory manner. At no additional expense to the City, the Contractor will restore to their ariginal conditions or better, as nearly as practicable, those portions of the site not designated for alteration and all such property, structure, utilities, landscaping, etc., disturbed or damaged during the prosecution of the Work. Final payment will be withheld until such clean up and repairs are completed The Work will be considered complete only after all debris and unused material due to or connected with the Work have been removed and the surrounding area left in a condition satisfactory to the City. In the event the City finds that the Contractor has not complied in keeping the job site clean, the City may, after twenty-four (24) hours written notice to the Contractor to correct the situation, elect to have the job site cleaned by an independent labor force. The cost of cleaning by said independent labor force shall be deducted from moneys due the Contractor. 5.8 CITY'S OWNERSHIP OF MATERIALS Any and all materials, whether structural or natural, found within the limits of the project remain the property of the City unless City ownership is specifically conveyed to the Contractar. All material, equipment and work become the sole property of the City as installed. These provisions shall not be construed as relieving the Contractor from the sole responsibility for all materials and work for which payments have been made, for the restoration of damaged work, or as a waiver of right of the City to require the fulfillment of all the terms of the Contract. 5.9 GUARANTEE A-17 68 of 159 The Contractor shall warrant all its material and equipment furnished and work performed for a period of one (1) year from the date of final written acceptance of the Work by City. Satisfaction of warranty work after final payment shall be as per Paragraph 10.15. All equipment and material warranties or guarantees shall be drawn in favor of the City and the originals thereof furnished to the Engineer for review and acceptance prior to final payment. Such guarantee shall in no way limit or relieve the Contractor of liability from subsequent claims of beach of contract due to substandard materials or workmanship, nor shall such warranty period shorten the statute of limitations for bringing a breach of contract or other action based upon any such deficiencies. 6.0 CONSTRUCTION STAKING TO BE PERFORMED BY CONTRACTOR 6.1 PERSONNEL, EQUIPMENT AND RECORD REQUIREMENTS Adequate field notes and records shall be available for review by the City and Engineer as the Work progresses and copies shall be available if necessary. Any inspection or checking of the Contractor's field notes or layout work by the City and the acceptance of all or any part thereof, shall not relieve the Contractor the responsibility to achieve the lines, grades and dimensions shown in the Plans and Specifications. Prior to final acceptance of the project, the Contractor shall mark in a permanent manner on the surface of the completed Work all control points shown on the Plans. 6.2 CONTROL POINTS FURNISHED BY THE CITY The City will provide boundary or other control points and bench marks as shown on the Plans as "Contractor's Survey Control Point", if any is provided. The Contractor shall be responsible for all survey control of his work during construction. The Contractor shall preserve all reference points and benchmarks furnished by the City. 6.3 FURNISHING OF STAKE MATERIALS The Contractor shall furnish all stakes, templates and other materials necessary for establishing and maintaining the lines and grades necessary for control and construction of the Work. 6.4 LAYOUT OF WORK Utilizing the control points furnished by the City in accordance with Paragraph 6.2, the Contractor shall establish all horizontal and vertical controls necessary to construct the Work in conformance with the Plans and Specifications. The Work shall include performing all calculations required and setting all stakes needed such as grade stakes, offset stakes, reference point stakes, slope stakes, and other reference marks or points necessary to provide lines and grades for construction of all contract items. Survey notes indicating the information and measurements used in establishing locations and grades shall be kept in notebooks and furnished to the Engineer with the record drawings for the Project. A-18 69 of 159 6.5 SPECIFIC STAKING REOUIREMENTS Stakes to establish lines and grades shall be set at appropriate intervals to assure that the Project is constructed to meet the lines and grades shown on the Plans. For construction stakes and other control, references shall be set at sufficiently frequent intervals to assure that all components of a structure are constructed in accordance with the lines and grades shown in the Plans. 6.6 PAYMENT The cost of performing layout work as described above shall be included in the contract prices for the various items of work to which it is incidental. 6.7 COORDINATION WITH CITY The City's recorded subdivision plats shall be considered correct. The distance, bearing and curve information provided shall be used by the Contractor's surveyor to establish alignment throughout construction. All surveying activities will be coordinated with the City's surveyor as needed for proper completion of all work on the site. Primary control monuments, originally set by the City, that are disturbed or destroyed during construction shall be accurately replaced by the Contractor's surveyor to the satisfaction of the City's surveyor. 6.8 LOCATION OF EXISTING UTILITIES AND PIPING All existing underground utilities, such as telephone, cable television and electrical cables must be located by the Contractor prior to starting work. The Contractor shall contact the Utilities at least 48 hours prior to commencing any work within the project area. There may be other utilities within the project area. The cost of substantiating the location of utilities shall be borne by the Contractor and included in the bid price. The Contractor shall be responsible for the repair and/or replacement of any damage caused to utilities by Contractor forces during the course of construction. Utilities deemed to require relocation shall be identified by the Contractor prior to commencing wark. The Contractar shall notice the City of the conflict and seek direction from the City prior to proceeding with work. Directions from the City may be to proceed despite conflict, place work arder on hold and commence work at a different location, ar relocate utilities under separate contract with the utility or a change arder to be directed by the City. 7.0 PROGRESS AND COMPLETION OF WORK 7.1 CONTRACTOR'S OBLIGATION A-/9 70 of 159 Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract, unless the Contract Documents give other specific instructions concerning these matters. Unless otherwise provided in the Contract Documents, Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. Unless otherwise provided in the Contract Documents, Contractor shall pay all sales, use and other similar taxes. Contractor shall enforce strict discipline and good order among Contractor's employees and other persons carrying out the Work. Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. Contractor currently holds and shall maintain at all times during the term of this Contract all required federal, state and local licenses necessary to perform the Wark required under the Contract Documents. Contractor shall be responsible to the City for the acts and omissions of Contractor's employees, Subcontractors and their agents and employees, and other persons performing portions of the Work under a contract with Contractor. Contractor shall indemnify, defend and hold City harmless from all claims arising out of or related to its performance of the Work except for acts arising solely from the active negligence of the City. 7.2 START OF CONSTRUCTION The Contractor shall commence work on the date specified in the Notice to Proceed subsequently issued by the City, or as specifically noted in any Contract Addendum. However, in no case shall the Contractor commence work until the City has been furnished and acknowledges receipt of the Contractor's Certificates of Insurance and a properly executed performance and payment bond as required. 7.3 CONTRACT TIME The contractor shall complete, in an acceptable manner, all of the Wark in the time stated in the Contract Agreement and any Addenda or Change Orders thereto. The contract time is 120 consecutive calendar davs from start of work date. 7.4 SCHEDULE OF COMPLETION The Contractor's schedules are subject to the approval of the City, which shall not be unreasonably withheld, and shall reflect a logical sequence of the various components of work and the anticipated rates of production necessary to complete the Work on or before the completion date. Said schedules shall be submitted within ten (10) days of the execution of the agreement by the City except when requested otherwise and shall be updated and resubmitted to the City on the twenty-fifth (25th) day of every month with the Contractor's pay request. A-20 71 of 159 7.5 COORDINATION OF CONSTRUCTION/PRECONSTRUCTION CONFERENCE The Contractor shall coordinate its work with other contractors, the City, and utilities to assure orderly and expeditious progress of work. The City shall hold a pre-construction conference at Sebastian City Hall at a time and date mutually agreed upon with the Contractor after the Contract has been awarded and fully executed. 7.6 PROPERTY OF OTHERS A. Public Ownership The Contractor shall be responsible for the preservation of all public property, trees, monuments, etc., along and adjacent to the street and/or right-of-way, and shall use every precaution necessary to prevent damage or injury thereto. He shall use suitable precautions to prevent damage to pipes, conduits and other underground structures, and shall protect carefully from disturbance or damage all monuments and property marks until a land surveyor has witnessed or otherwise referenced their location and shall not remove them until so directed by the Engineer in writing. The City shall remove and relocate all traffic control signs as required. B. Private Ownership Mail and newspaper boxes, sprinkler systems, ornamental shrubs, lawn ornaments, house numbers, fences, etc. may be removed and relocated by the property owners. The City will not remove, relocate, or re-install mail boxes, sprinkler systems, ornamental shrubs, etc. belonging to a private property owner. However, should such items not be removed or relocated by the start of construction, the Contractor shall remove the objects, in a manner which does not damage or injure the objects at no extra cost to the City, which interfere with the construction of the Project and place them on the property owner's front lawn just outside the project limits. Otherwise, the Contractor shall not enter upon private property for any purpose without obtaining permission from the property Owner thereof. Where extensive intrusions upon private property are required for construction, the City and Contractor shall cooperate to obtain Temporary Construction Easements from the landowner. 7.7 PROTECTION OF EXISTING UTILITIES AND FACILITIES All utilities and all structures of any nature, whether below or above ground, that may be affected by the Work but are not required to be disturbed or relocated by the very nature of the project, shall be protected and maintained by the Contractor and shall not be disturbed or damaged by Contractor forces during the progress of the Work; provided that, should the Contractor disturb, disconnect or damage any utility or any structure, all expenses of whatever nature arising from such disturbance or the replacement or repair and testing thereof shall be borne by the Contractor. 7.8 CROSSING PUBLIC FACILITIES When new construction crosses highways, railroads, streets or similar public facilities under the jurisdiction of state, county, city, or other public agency or private entity, the City through the Engineer shall secure written permission prior to the commencement of construction of such crossing. The Contractor will be required to furnish evidence of compliance with conditions of the permit from the A-21 72 of 159 proper authority before final acceptance of the Work by City. Road closures are governed by Paragraph 8.3. 7.9 CHANGES IN THE WORK The City may order changes in the Work through additions, deletions or modifications without invalidating the Contract; however, any change in the scope of work or substitution of materials shall require the written approval of the City. Compensation and time of completion affected by the change shall be adjusted at the time of ordering such change. New and unforeseen items of work found to be necessary and which cannot be covered by any item or combination of items for which there is a contract price shall be classed as changes in the Work. The Contractor shall do such changes in the Work and furnish such materials, labor and equipment as may be required for the proper completion of construction of the work contemplated. In the absence of such written order, no claim for changes in the Work shall be considered. Changes in the Work shall be performed in accordance with the Specifications where applicable and work not covered by the specifications or special provisions shall be done in accordance with specifications issued for this purpose. Changes in the Work required in an emergency to protect life and property shall be performed by the Contractor as required. 7.10 EXTENSION OF CONTRACT TIME No extension of time shall be valid unless given in writing by the City. No monetary compensation shall be given for such delay. A delay beyond the Contractor's control occasioned by an "Act of God" may entitle the Contractor to an extension of time in which to complete the Work as determined by the City provided, however, the Contractor shall immediately give written notice to the City of the cause of such delay. "Rain day" extensions shall be granted upon written request of the Contractor to the City's Project Manager when said Project Manager determines that weather conditions make it counterproductive to work on said days. "Rain day" requests must be submitted at the end of each work week or be waived, and the cumulative "rain day" extensions granted shall be processed as a Change Order with each pay submittal. In the event that the City suspends the Work as provided in Paragraph 9.3, the Contractor shall be granted an extension of time to complete the Work for as many calendar days as the Work was suspended; except, however, that the Contractor will not be granted an extension of time to complete the Work if the suspension was caused by a fault of the Contractor. 7.11 CORRECTION OF WORK Contractor shall, at no cost to the City, promptly correct Work failing to conform to requirements of the Contract Documents, whether observed before or after completion of the Work and whether or not fabricated, installed or completed, and shall correct any Work found to be not in accordance with the requirements of the Contract Documents within a period of one (1) year from the date of completion of the Work or by the terms of an applicable special warranty required by the Contract Documents. The provisions of this Paragraph apply to the Work done by Subcontractors as well as to the Work done by direct employees of Contractor. A-22 73 of 159 Nothing contained in this Paragraph shall be construed to establish a period of limitation with respect to other obligations which Contractor might have under the Contract Documents. Establishment of the time period of one (1) year as described in Subparagraph 7.11(a) above relates only to the specific obligation of Contractor to correct the Work, and has no effect on the time within which the obligations of the Contract Documents may be enforced, nor to the time within which proceedings may be commenced to establish Contractor's liability with respect to Contractor's remaining contractual obligations. 7.12 LIQUIDATED DAMAGES In the event Contractor violates or fails to perform any provision of the Contract Documents, then the City may elect to receive, and Contractor agrees to pay, liQUidated damages in the amount of one hundred dollars ($100) per dav beyond the agreed completion date. Inspection of the Work by the City and the subsequent issuance of a notice by the City indicating substantial completion will be the date used to signify work completion. If completion is beyond the schedule agreed upon, liquidated damages may be imposed by the City on the Contractor and will be withheld from payment. It is expressly acknowledged by Contractor that said payment shall not be interpreted nor construed as a penalty but is in fact a good faith attempt to fix damages which the City will suffer in the event Contractor fails to perform as required hereunder or violates any provision of the Contract Documents. 8.0 PUBLIC HEALTH AND SAFETY 8.1 PROTECTION OF PERSONS AND PROPERTY The Contractor shall submit, for the City's approval, a project safety and security plan which describes the Contractor's plans and procedures to protect the safety and property of property owners, residents, and passers-by. The plan shall describe measures and precautions to be taken during working hours and non-working hours. A. Safety Precautions and Programs The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work in accordance with the U.S. Department of Labor Occupational Safety and Health Act and the laws of the State of Florida. This Contract requires that the Contractor and any and all subcontractors hired by the Contractor comply with all relevant standards of the Occupational Safety and Health Act. Failure to comply with the Act constitutes a failure to perform. The Contractor agrees to reimburse the City for any fines and/or court costs arising from penalties charged to the City for violations of OSHA committed by the Contractor or any and all subcontractors. B. Safety of Persons and Property The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to, all employees on the Work and all other persons who may be affected thereby; all the work materials and equipment to be incorporated therein, whether in storage on or off the project site, under the care, custody or control of the Contractor or any of his subcontractors; and other property on the project site or adjacent thereto, including trees, shrubs, lawns, walks, A-23 74 of 159 pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall be held fully responsible for such safety and protection until final written acceptance of the Work. Fire hydrants on or adjacent to the Work shall be kept accessible to fire fighting equipment at all times. Temporary provisions shall be made by the Contractor to insure the proper functioning of all swales, gutters, sewer inlets, drainage ditches and irrigation ditches, which shall not be obstructed except as approved by the City. The Contractor acknowledges that, in executing the Project, it will operate machinery and equipment that may be dangerous to the adjacent property owners and the general public. The Contractor will be required to conduct excavations for the Project that may be hazardous to person and property. The Contractor shall develop and implement a job safety and security plan that will adequately protect all property and the general public. Contractor shall rigorously prohibit the committing of nuisances on the site of the Work, on the lands of the City or an adjacent property. 8.2 TRAFFIC CONTROL All safety precautions, traffic control, and warning devices necessary to protect the public and workmen from hazards within the right-of-way shall be in strict accordance with SECTION 102, MAINTENANCE OF TRAFFIC, in the Florida Dept. of Transportation (FDOT) Std. The State of Florida Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations Specifications for Road and Bridge Construction, latest edition shall be used as minimum standards, as applicable. Further, the Contractor shall carry on the Work in a manner that will cause the least possible obstruction and interruption in traffic, and the least inconvenience to the general public and the residents in the vicinity of the work. 83 ROAD CLOSURE AND DETOURS Local traffic shall be maintained within the limits of the Project for the duration of the construction period. Closing to through travel of more than two (2) consecutive blocks, including the cross street intersected will not be permitted without specific authorization of the City. No road or street shall be closed to the public except with the permission of the City and proper governmental authority. When closing of roads is permitted, it shall require forty-eight (48) hours notification to the City. Traffic detours shall be pre-approved prior to closing. "Street Closed to through Traffic" signs and "Detour" routes shall be indicated and maintained by the Contractor when the job is located in a public or private street. 8.4 PROVISION OF ACCESS Where traffic must cross open trenches, the contractor shall provide adequate ingress and egress to dwellings, business facilities, utilities and service. Temporary provisions shall be made by the Contractor to insure the use of sidewalks. The Contractor shall provide suitable crossings at street intersections and driveways, and supply such aid as may be required for pedestrians and motorists, including delivery vehicles, to safely negotiate the construction areas. A-24 75 of 159 On completion of Work within any area, the Contractor shall remove all debris, excess materials, barricades and temporary Work leaving walkways and roads in said area clear of obstructions. WARNING SIGNS AND BARRICAD The Contractor shall provide adequate signs, barricades, warning lights and flagmen, as required, and all such other necessary precautions for the protection of the Work and the safety of the public. All barricades and obstructions shall be protected at night by regulatory signal lights which shall be kept in operation from sunset to sunrise. Barricades shall be of substantial construction and shall be reflective to increase their visibility at night. Suitable warning signs shall be so placed and illuminated at night as to show in advance where construction, barricades or detours exist. Unless so designated in the Bid Documents, no direct payment for this work will be made, but the cost of providing, erecting and maintaining such protection devices, including guards, watchmen and/or flagmen as required shall be considered as included and paid for in the various contract prices of the Work. Warning signs and barricades shall be in conformance with the State of Florida, Manual of Traffic Control and Safe Practices for Street and Highway Construction, Maintenance and Utility Operations, latest edition. The Contractor shall provide and maintain adequate barricades, construction signs, torches, flashers, guards and flagmen as required in pedestrian and vehicular traffic areas. Regulations of local authorities shall be compiled with. Advance warning signs are required on all streets where work is being conducted. Lane closures shall be signed and barricaded or coned as indicated in aforementioned FDOT Index. Flagmen may be required where traffic and length of lane closure warrant them. Where such a plan is needed, Contractor shall submit and obtain approval of their traffic control plan by the City. 8.6 OPEN TRENCHES The Contractor shall fully comply with Florida Statutes and OSHA regulations with regard to open trenches during construction. The Contractor shall be place construction hazard fencing along any open trenches during the construction work-day, and shall leave no open trenches or excavations over-night unless properly fenced and with the specific approval of the Engineer ar the City. 8.7 PLACEMENT OF HEAVY EOUIPMENT The Contractar shall not leave construction equipment parked in front of or on a residential lot overnight ar on weekends. At the close of work each day, the equipment shall be driven to and stored in a designated area so that the equipment will not become an"attractive nuisance" to neighborhood children. All equipment left unattended during the course of working day, such as during lunch hours or work breaks, shall not be left in a condition or location which would create a safety hazard to the general public. All keys shall be removed from the machines during those times. 8.8 TEMPORARY FACILITIES AND CONTROLS The Contractor shall provide controls for sanitary facilities, environmental protection and safety controls on site acceptable to the Florida Department of Health and Rehabilitative Services, Department of Environmental Protection, and St. Johns River Water Management District. A-25 76 of 159 8.9 SANITARY PROVISION The Contractor shall provide and maintain such sanitary accommodations adequate for the use of his employees and those of his subcontractors, and as may be necessary to comply with the requirements and regulations of the local and state departments of health. Such facilities shall be made available when the first employees arrive on site of the Work, shall be properly secluded from public observation, and shall be constructed and maintained during the progress of the Work in suitable numbers and at such points and in such manner as may be required or approved. The Contractor shall maintain the sanitary facilities in a satisfactory and sanitary condition at all times and shall enforce their use. The City shall have the right to inspect such facilities at all times to determine whether or not they are being properly and adequately maintained. Following the period of necessity for such accommodations, they and all evidence affixed thereto shall be removed. 8.10 WATER AND ELECTRIC SUPPLY The Contractor shall make all necessary applications and arrangements, and pay all fees and charges for water and electrical service necessary for the proper completion of the Project up to the time of final acceptance. The Contractor shall provide and pay for any temporary piping and connections. 8.11 NOISE CONTROL The Contractor shall provide adequate protection against objectionable noise levels caused by the operation of construction equipment, and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. 8.12 DUST CONTROL The Contractor shall provide for adequate protection against raising objectionable dust clouds caused by moving construction equipment, high winds or any other cause, and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. 8.13 WATER CONTROL The Contractor shall provide for satisfactory disposal of surplus water and shall submit a plan to the Engineer for review prior to initiation and implementation of the plan. Prior approval shall be obtained from the proper authorities for the use of public or private lands or facilities for such disposal. 8.14 POLLUTION, SILTATION AND EROSION CONTROL The Contractor shall provide for and take sufficient precautions to prevent pollution of private and public lands, reservoirs, ponds, rivers, streams, creeks, etc., by the disposal of surplus materials in the forms of A-26 77 of 159 solids, liquids or gases including, but not limited to, fuels, oils bitumen, calcium chloride or other harmful materials. Contractor shall conduct and schedule Work operations so as to avoid or otherwise minimize pollution or silting of streams, lakes and reservoirs and to avoid interference with movement of migratory fish where there is a high potential for erosion and subsequent water pollution. Erosion control features shall be constructed concurrently with other work and at the earliest practicable time. The Contractor shall prepare a detailed description of Contractor's plan for Erosion and Turbidity Control, including location of erosion control and turbidity control devices, marked on a plan set as needed for clarity. The erosion and turbidity control shall meet the requirements of the St. John's River Water Management District and the applicable NPDES program for control of discharge of Total Suspended Matter, and shall prevent water and wind erosion of open excavations and swales. A-z� 78 of 159 ARTICLE III - 5upervision and Administration 9.0 ENGINEER, CITY, CONTRACTOR RELATIONS 9.1 ENGINEER'S RESPONSIBILITY AND AUTHORITY All work done shall be subject to the construction review of the Engineer and City. Any and all technical questions which may arise as to the quality and acceptability of materials furnished, work performed, or work to be performed, interpretation of Plans and Specifications and all technical questions as to the acceptable fulfillment of the Contract on the part of the Contractor shall be referred to the Engineer who will resolve such questions. 9.2 ENGINEER'S DECISION All claims of a technical nature of the City or Contractar shall be presented to the Engineer for resolution. 9.3 SUSPENSION OF WORK The City shall have the authority to suspend the Work wholly or in part, for such periods as may be deemed necessary and for whatever cause, to include but not be limited to, unsuitable weather ar such other conditions as are considered unfavorable for prosecution of the Work, failure on the part of the Contractor to carry out the provisions of the Contract ar to supply materials meeting the requirements of the Specifications, or the action of a governmental agency, by serving written notice of suspension to the Contractar. In the event that the Engineer shall become aware of any condition which may be cause for suspension of the Work, the Engineer shall immediately advise the City of such condition. The Contractor shall not suspend operations under the provisions of this Paragraph without the City's permission. 9.4 CONSTRUCTION REVIEW OF WORK All materials and each part or detail of the Work shall be subject at all times to construction review by the Engineer and the City. The Engineer and the City may appoint inspectars. The Contractar will be held strictly to the true intent of the Specifications in regard to quality of materials, workmanship, and the diligent execution of the Contract. Such construction review may include mill, plant, or shop inspection, and any material furnished under the Specifications is subject to such inspection. The Engineer and the City shall be allowed access to all parts of the Wark and shall be furnished with such information and assistance by the Contractor as is required to make a complete and detailed review. The City shall not be responsible for the acts or omissions of the Contractor. 9.5 FIELD TESTS AND PRELIMINARY OPERATION The Contractor shall perform the work of placing in operation all equipment installed under this Contract, except as specifically noted hereinafter. The Contractor shall make adjustments necessary for proper operation. The Contractor shall provide construction labor required for preliminary operation of the equipment installed under this Contract. A-28 79 of 159 The Contractor shall notify the City when work is considered to be complete, in operating condition, and ready for inspection and tests. Further inspection requirements may be designated in the Technical Specifications. The City will conduct tests it deems necessary to determine if the Work functions properly. Arrangements for testing laboratory services will be made by the City. Payment for testing to show compliance with specified requirements will be paid for by the City. The cost of retesting when materials and workmanship fail to meet specified requirements will be deducted from moneys due the Contractor. 9.6 EXAMINATION OF COMPLETED WORK The City may request an examination of completed work of the Contractor at any time before acceptance by the City of the Work and shall remove or uncover such portions of the finished work as may be directed. After examination, the Contractor shall restore said portions of the Work to the standard required by the Specifications. Should the work thus exposed or examined prove acceptable, the uncovering or removing and the replacing of the covering or making good of the parts removed shall be paid for as extra work, but should the work so exposed or examined prove unacceptable, the uncovering, removing and replacing shall be at the Contractor's expense. 9.7 CONTRACTOR'S SUPERINTENDENT A qualified superintendent, who is acceptable to the City, shall be maintained on the project and give sufficient supervision to the Work until its completion. The superintendent shall have full authority to act on behalf of the Contractor, and all communications given to the superintendent shall be considered given to the Contractor. In general, such communications shall be confirmed in writing and always upon written request from the Contractor. 9.8 CITY'S RIGHT TO CORRECT DEFICIENCIES Upon failure of the contractor to perform the work in accordance with the Contract Documents, including any requirements with respect to the Schedule of Completion, and after five (5) days written notice to the Contractor, the City may, without prejudice to any other remedy he may have, correct such deficiencies. The Contractor shall be charged all costs incurred to correct deficiencies. 9.9 CITY'S RIGHT TO TERMINATE CONTRACT AND COMPLETE WORK In the event of any default by the Contractor, the City shall have the right to immediately terminate the Contract upon issuance of written notice of termination to the Contractor stating the cause for such action. This Agreement may be terminated by the City without cause provided at least thirty (30) days written notice of such termination shall be given to the Contractor. In the event of termination, the City may take possession of the Work and of all materials, tools and equipment thereon and may finish the Work by whatever method and means it may select. It shall be considered a default by the Contractor whenever Contractor shall: (a) Declare bankruptcy, become insolvent or assign his assets for the benefit of his creditors. A-29 80 of 159 (b) Disregard or violate the provisions of the Contract Documents or City's written instructions, or fail to prosecute the Wark according to the agreed schedule of completion including extensions thereof. (c) Fail to provide a qualified superintendent, competent warkmen or subcontractors, or proper materials, or fail to make prompt payment for same. 9.10 RIGHTS OF VARIOUS INTERESTS Wherever wark being done by the City's forces or by other contractors is contiguous to wark covered by the Contract, the respective rights of the various interests involved shall be established by the City, to secure the completion of the various portions of the Wark in general harmony. 9.11 SEPARATE CONTRACTS The City may let other contracts in connection with the Work of the Contractor. The Contractor shall cooperate with other Contractors with regard to storage of materials and execution of their work. It shall be the Contractor's responsibility to inspect all work by other contractors affecting Contractor's work and to report to the City any irregularities that will not permit completion of work in a satisfactory manner. Contractor's failure to notify the City of such irregularities shall indicate the work of other contractors has been satisfactorily completed to receive related work. It shall be the responsibility of the Contractor to inspect the completed work in place and report to the Engineer immediately any difference between completed wark by others and the Plans. 9.12 SUBCONTRACTS AND PURCHASE ORDERS Prior to signing the Contract or at the time specified by the City, the Contractor shall submit in writing to the City the names of the subcontractors proposed for the Work. Subcontractors may not be changed except at the request or with the approval of the City. The Contractor is responsible to the City for the acts and omissions of its subcontractors and their direct or indirect employees, to the same extent as he is responsible for the acts and omissions of its employees. The Contract Documents shall not be construed as creating a contractual relation between any subcontractors and the City. The Contractor shall bind every subcontractor by the terms of the Contract Documents. For convenience of reference and to facilitate the letting of contracts and subcontracts, the Specifications are separated into title sections. Such separations shall not, however, operate to make the Engineer or City an arbiter to establish limits to the contracts between the Contractor and subcontractors. 9.13 WORK DURING AN EMERGENCY The Contractor shall perform any work and shall furnish and install materials and equipment necessary during an emergency endangering life or property. In all cases, Contractor shall notify the Engineer and City of the emergency as soon as practicable, but shall not wait for instructions before proceeding to properly protect both life and property. 9.14 ORAL AGREEMENTS A-30 81 of 159 No oral order, objection, claim or notice by any party to the others shall affect or modify any of the terms or obligations contained in any of the Contract Documents, and none of the provisions of the Contract Documents shall be held to be waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing, and no evidence shall be introduced in any proceeding of any other waiver or modification. 9.15 NIGHT, SATURDAY AND/OR SUNDAY WORK No night or Saturday and Sunday work will be permitted, except in case of emergency, or with prior approval from City, and then only to such extent as is absolutely necessary to protect life or property. This clause shall not pertain to crews organized to perform restoration work which needs no verifying inspection, maintenance work on equipment, or to operate and maintain special equipment such as dewatering pumps which may be required to work 24 hours per day. All such night, Saturday and/or Sunday work must be authorized by the City. 9.16 UNAUTHORIZED WORK Work done without lines and grades having been established, work done without proper inspection, or any changes made or extra work done without written authority will be done at the Contractor's risk and will be considered unauthorized, and, at the option of the City, may not be measured and paid for. 9.17 USE OF COMPLETED PORTIONS OF THE WORK The City shall have the right to use, occupy, or place into operation any portion of the Work that has been completed sufficiently to permit safe use, occupancy, or operation, as determined by the Engineer. If such use, occupancy, or operation increases the cost of or delays the Work, the Contractor shall be entitled to extra compensation, or an extension of time, or both, as determined by the Engineer. However, if Contractor has failed to complete the Work in accordance with the time requirements of the Agreement, no compensation (including set-offs to liquidated damages) shall be allowed for such use or occupancy. 9.18 CONTRACTOR'S RESPONSIBILITY FOR WORK Until acceptance of the Work by the City, it shall be under the charge and care of the Contractor, and he shall take every necessary precaution against injury or damage to the Work by the action of the elements or from any other cause whatsoever, whether arising from the execution or from the non-execution of the Work. The Contractor shall rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the Work occasioned by any cause, other than the sole and active negligence of the City, before its completion and acceptance. 10.0 MEASUREMENT AND PAYMENT 10.1 DETAILED BREAKDOWN OF CONTRACT Except in cases where unit prices form the basis for payment under the Contract, the Contractor shall submit a complete breakdown of the contract amount showing the value assigned to each part of the A-31 82 of 159 Work, including an allowance for profit and overhead within ten (10) days of the execution of the Contract by the parties. Upon approval of the breakdown of the contract amount by the Engineer and the City, it shall be used as the basis for all requests for payment. 10.2 REQUEST FOR PAYMENT The Contractor may submit to the City not more than once each month a request for payment for work completed. Where applicable, the Contractor may choose to submit a request for payment at the substantial completion of each work order. The City may elect to provide its own form for the Contractor to submit progress payment requests. The standard form provided by the City, or a form presented by the Contractor having received prior approval from the City, can be used for the submittal of a progress payment. The Contractor shall furnish the Engineer and the City all reasonable facilities required for obtaining the necessary information relative to the progress and execution of the Work. In addition to each month's invoice, an updated project schedule shall be submitted. Each request for payment shall be computed from the work completed to date on all items listed in the detailed breakdown of the contract amount less previous payments and back charges. Progress payments on account of Unit Price Work will be based on the number of units completed at the time the payment request was dated by the Contractor. If payment is requested on the basis of materials and equipment not incorporated in the project but delivered and suitably stored at the site or at another location agreed to in writing, the payment request shall also be accompanied by a bill of sale, invoice or other documentation warranty that the City has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, all of which shall be satisfactory to the City. No payments shall be made for materials stored on site without approval of the City. An amount of 10% of each monthly pay request shall be retained until final completion and written acceptance of the Work by the City. Payment of the retainage shall be included in the Contractor's final pay request in accordance with Paragraph 10.14. Any deviation in the release or partial release of the 10% retainage shall be at the sole discretion of the City, but in no case earlier than completion of the Engineer's "punch list inspection". Any request for payment shall be accompanied by claim releases for work done or materials furnished in accordance with Paragraph 10.13. Prior to submission of any request for payment by the Contractor, the Engineer shall review the request for payment to determine the following: (a) That the work covered by the request for payment has been completed in accordance with the intent of the Plans and Specifications. (b) That the quantities of work have been completed as stated in the request for payment, whether for a unit price contract or for payment on a lump-sum contract. 10.3 CITY'S ACTION ON A REOUEST FOR PAYMENT Within thirty (30) days from the date of receipt of a request for payment the City shall do one of the following: A-32 83 of 159 (a) Approve and pay the request far payment as submitted. (b) Approve and pay such other amount of the request for payment in accordance with Paragraph 10.4 as the City shall decide is due the Contractor, informing the Contractor in writing of the reasons for paying the amended amount. (c) Disapprove the request far payment in accordance with Paragraph 10.4 informing the Contractor in writing of the reasons for withholding payment. 10.4 CITY'S RIGHT TO WITHHOLD PAYMENT OF A REQUEST FOR PAYMENT The City may withhold payment in whole or in part on a request for payment to the extent necessary for any of the following reasons: (a) Wark not perfarmed but included in the request for payment, or the contract Price has been reduced by written change order. (b) Work covered by the request for payment which is not in accordance with the Plans, Specifications and generally accepted construction practices, including if, in the opinion of the City, there is sufficient evidence that the Work has not been satisfactorily completed, or based upon tests and/or inspections the work is defective or has been damaged requiring correction or replacement. (c) In the event of a filing of a claim or lien, or information received by City of a potential filing of a claim or lien against the Contractor or City. (d) Failure of the Contractor to make payments to subcontractors, material suppliers or labor. (e) Damage to another contractar. ( fl The City has had to correct a defect in the Work, ar there are other items entitling the City to a set-off against the amount recommended. (g) Default of any of the provisions of the Contract Documents. A-33 84 of 159 10.5 PAYMENT FOR UNCORRECTED WORK Should the City direct, in writing, the Contractor not to correct work that has been damaged or that was not performed in accordance with the Contract Documents, an equitable deduction from the contract amount shall be made to compensate the City for the uncorrected work. 10.6 PAYMENT FOR REJECTED WORK AND MATERIALS The removal of work and materials rejected under Paragraph 5.3 and the re-execution of wark by the Contractor shall be at the expense of the Contractor and the Contractor shall pay the cost of replacing the destroyed or damaged work of other contractors by the removal of the rejected work or materials and the subsequent re-execution of that work. In the event that City incurs expenses related thereto, Contractor shall pay for the same within thirty (30) days after written notice to pay is given by the City. If the Contractor does not pay the expenses of such removal, after ten (10) days written notice being given by the City of its intent to sell the materials, the City may sell the materials and shall pay to the Contractor the net proceeds there from after deducting all the costs and expenses that are incurred by the City. If the proceeds do not cover the expenses incurred by the City, such additional amounts may be set-off against any payments due Contractor. 10.7 CHANGES IN THE WORK A. Chan�e Orders If conditions require a change in the scope of work or additional work varying from the original Plans or Specifications, such change shall be effected by the Contractor when the City issues a written Change Order. The Change Order shall set forth in complete detail the nature of the change, the change in the compensation to be paid the Contractor and whether it is an addition or a reduction of the original total contract cost. Should additional or supplemental drawings be required, they will be furnished by the Engineer. All Change Orders shall address the impact of the change on both Contract Price / Cost and Contract Time / Schedule. Compensation to be paid to the Contractor for accomplishing the wark of a Change Order shall be established in one of the following ways: (a) By lump sum proposed by the Contractor and accepted by the City. (b) By unit prices established and agreed to. (c) By unit prices established for additional kinds of work. (d) By other methods as may be mutually agreed upon. (e) By force account wherein the Contractor provides the labor and materials at Contractor's direct cost plus 15% for overhead and profit. When the force account method is used, the Contractor shall provide full and complete records of all costs for review by the City. A-34 85 of 159 B. Claims Claims arising from changes or revisions made by the Contractor at the City's request shall be presented to the City before work starts on the changes or revisions. If the Contractor deems that extra compensation is due for work not covered herein, or in Supplemental Agreement, the Contractor shall notify the City in writing of its intention to make claim for extra compensation before work begins on which the claim is based. If such notification is not given and the City is not afforded by the Contractor a method acceptable to the City for keeping strict account of actual cost, then the Contractor hereby waives its request for such extra compensation. The City is not obligated to pay the Contractor if the City is not notified as described above. The Contractor may refuse to perform additional work requested by the City until an appropriate agreement is executed by the parties. Such notice by the Contractor and the fact that the City has kept account of the costs as aforesaid shall not in any way be construed as proving the validity of the claim. 10.8 CANCELED ITEMS OF WORK The City shall have the right to cancel those portions of the contract relating to the construction of any item provided therein. Such cancellation, when ordered by the City in writing, shall entitle the Contractor to the payment of a fair and equitable amount covering all costs incurred by Contractor pertaining to the canceled items before the date of cancellation or suspension of the Work. The Contractor shall be allowed a profit percentage on the materials used and on construction work actually done, at the same rates as provided for "Changes in the Work", but no allowance will be made for anticipated profits. Acceptable materials ordered by the Contractor or delivered on the site before the date of such cancellation or suspension shall be purchased from the Contractor by the City at actual cost and shall thereupon become the property of the City. 10.9 PAYMENT FOR WORK SUSPENDED BY THE CITY If the Work or any part thereof shall be suspended by the City as provided in Paragraph 9.3, the Contractor will then be entitled to payment for all work done except as provided in Paragraph 10.4. 10.10 PAYMENT FOR WORK BY THE CITY The cost of the work performed by the City removing construction materials, equipment, tools and supplies in accordance with Paragraph 5.7 and in correcting deficiencies in accordance with Paragraph 9.8 shall be paid by the Contractor. 10.11 PAYMENT FOR WORK BY CITY FOLLOWING TERMINATION OF CONTRACT A. Termination bv Citv for Cause Upon termination of the contract by the City for cause, including abandonment or termination by Contractor, the City may enter into an agreement with others for the completion of the Work under this Agreement and the Contractor shall be held harmless for the work of others. No further payments shall be due the Contractor until the Work is completed and accepted by the City. If the unpaid balance of the contract amount shall exceed the cost of completing the Work including all overhead costs, Contractor shall be paid up to the amount of the excess balance on a quantum meruit basis for the work done prior to termination. If the cost of completing the Work shall exceed the unpaid balance, the Contractor or its A-35 86 of 159 Surety shall pay the difference to the City. The cost incurred by the City as herein provided shall include the cost of the replacement contractor and other expenses incurred by the City through the Contractor's default. In either event, all work done, tracings, plans, specifications, maps, computer programs and data prepared by the Contractor under this Agreement shall be considered property of the City. B. Termination by Citv Without Cause In the event the City without cause abandons, terminates or suspends this Agreement, the Contractor shall be compensated for services rendered up to the time of such termination on a quantum meruit basis and any work done or documents generated by the Contractor shall remain the property of the City. 10.12 TERMINATION OF CONTRACTOR'S RESPONSIBILITY The Contract will be considered complete when all work has been finished, the final construction review is made by the Engineer, and the project accepted in writing by the City. 10.13 RELEASE OF CLAIMS (,INTERIM/FINAL� The Contractor shall deliver, with each request for payment, a completed Affidavit and Release of Claim on a form supplied by the City. Also, from each supplier or subcontractor who has notified the City of his right to file a Claim (Notice to City) or who is listed in the Contractor's Affidavit and Release of Claim as an unpaid, potential Claimant, a Claimant's Sworn Statement of Account, executed by the supplier or subcontractor, must be attached to each request for payment. If the completed forms are not supplied with the request for payment, the City will notify Contractor of the outstanding claims of record and, if said completed form(s) are not supplied within thirty (30) days, the City shall make joint payments to the Contractor and outstanding claimants. 10.14 ACCEPTANCE AND FINAL PAYMENT When it is determined, as a result of a joint inspection of the Work by the Contractor, City, and Engineer that the Work has been completed in accordance with the terms of the Contract Documents, the Engineer shall certify completion of the Work to the City. At that time, the Contractor may submit the Contractor's final request for payment. The Contractor's final request for payment shall be the contract amount plus all approved written additions less all approved written deductions and less previous payments made. As a condition for Final payment, a Contractor's Final Affidavit must be received by the City along with his Final Payment Request and any as-built drawings which may be required. The Contractor shall furnish full and final releases of Claim for labor, materials and equipment incurred in connection with the Work, following which the City will release the Contractor except as to the conditions of the performance bond, any legal rights of the City, required guarantees and satisfaction of all warranty work, and shall authorize payment of the Contractor's final request for payment. 10.15 SATISFACTION OF WARRANTY WORK AFTER FINAL PAYMENT The making of the final payment by the City to the Contractor shall not relieve the Contractor of responsibility for faulty materials or workmanship. The City shall promptly give notice of faulty materials and workmanship and the Contractor shall promptly replace any such defects discovered within one (1) year from the date of final written acceptance of the Work by the City. A-36 87 of 159 11.0 PUBLIC CONTRACT REQUIREMENTS 11.1 COVENANT AGAINST CONTINGENT FEES The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this paragraph, the City shall have the right to terminate the Agreement without liability and, at its discretion, deduct from the Agreement price, or otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 11.2 INTEREST OF MEMBERS OF CITY AND OTHERS No officers, members or employees of the City and no member of its governing body, and no other public official of the governing body of the locality or localities in which services for the facilities are situated or carried out, who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this project, shall participate in any decision relating to this Agreement which affects such person's personal interest, or have any personal or pecuniary interest, direct or indirect, in this Agreement or the proceeds thereof. 11.3 CERTIFICATION OF RESTRICTIONS ON LOBBYING The Contractor agrees that no Federal appropriated funds have been paid or will be paid by or on behalf of the Contractor to any person for influencing or attempting to influence any officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal Grant, the making of any Federal loan, the entering into of any cooperative agreement and the extension, continuation, renewal, amendment or modification of any Federal contract, Grant, loan or cooperative agreement. If any funds other than Federal appropriated funds have been paid by the Contractor to any person for influencing or attempting to influence an officer or employee of any Federal agency, a member of Congress, an officer or employee of Congress or an employee of a member of Congress in connection with this Agreement, the undersigned shall complete and submit Standard Form- "Disclosure Form to Report Lobbying" in accordance with its instructions. 11.4 INTEREST OF CONTRACTOR The Contractor covenants that he presently has no interest and shall not acquire any interest, direct or indirect, which shall conflict in any manner or degree with the performance of services required to be performed under this Agreement. The Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed. The Contractor shall not undertake any professional work which conflicts with its duties as the City's Contractor without the prior written consent of the City during the term of this Agreement. Any work where the Contractor can reasonably anticipate A-37 88 of 159 that it may be called to testify as a witness against the City in any litigation or administrative proceeding will constitute a conflict of interest under this Agreement. 11.5 PUBLIC ENTITY CRIMES The Contractor shall file the attached sworn statement which is entitled PUBLIC ENTITY CRIMES, stating whether a person or affiliate as defined in Section 287.133 (1) Florida Statutes, has been convicted of a public entity crime subsequent to July 1, 1989, in accardance with the provisions of said statute. 11.6 DRUG-FREE WORKPLACE The Agreement documents also include the "Drug-Free Workplace Form" which is in accardance with Florida Statute 287.089 and must be signed and instituted. 11.7 COMPLIANCE WITH LAWS Contractor shall comply with all applicable federal laws that in any way regulate or impact the Work, including, but not limited to, The Clean Air Act (42 USC §7506(c)), The Endangered Species Act (16 USC §1531, et seq.), Executive Order No. 11593, Executive Order No. 11988, Executive Order No. 11990, The Fish and Wildlife Coordination Act (PL 85-624}, The Safe Water Drinking Act Section 1424(e) (PL 93-523, as amended), The Wild and Scenic Rivers Act (PL 90-542, as amended), The Demonstration Cities and Metropolitan Development Act of 1966 (PL 89-754), Section 306 of The Clean Air Act, Section 508 of The Clean Water Act, Executive Order No. 11738, The Civil Rights Act of 1964 (PL 88-352), The Age Discrimination Act (PL 94-135), Section 13 of The Federal Water Pollution Control Act (PL 92-500), Executive Order No. 11246, Executive Order No. 11625, Executive Order No. 12138, Executive Order No. 12549, The Davis Bacon Act (40 USC §276), the Occupational Safety and Health Act and applicable regulations, and the Americans with Disabilities Act (PL 101-336). 11.8 INSURANCE The Contractor agrees to carry insurance, of the types and subject to the limits as set forth below and maintain said insurance during the life of this agreement: (a) Warkers' Compensation - Contractor shall purchase workers' compensation insurance as required by law. (b) Commercial General Liabilitv - Contractar shall purchase Commercial General Liability insurance with a combined single limit of at least $1,000,000. (c) Commercial Auto Liabilitv - Contractar shall purchase Commercial Auto Liability insurance with a combined single limit of at least $1,000,000. Further, Contractor shall maintain such insurance as is reasonably required to satisfy its obligations under Paragraph 9.18 for the Work paid for by the City but not yet accepted. The insurance company selected shall be A+ or better per the Best's Key Rating Guide. The Contractor and the insurance company(s) shall agree to furnish the City thirty (30) days written notice of their intent A-38 89 of 159 to cancel or terminate said insurance. It is the full responsibility of the contractor to insure that all sub- contractors have full insurance coverage as stated above. The Contractor shall not commence the Work under this contract until Contractor has obtained all the insurance required under this paragraph and certificates of such insurance have been submitted to the City, nor shall the Contractor allow any subcontractor to commence work on a subcontract until all insurance required has been so obtained and approved by the City. The Contractor shall carry and maintain until acceptance of the Work, insurance as specified herein and in such form as shall protect Contractor and any subcontractor performing work under this Contract, or the City, from all claims and liability for damages for bodily injury, including accidental death, under this Contract, whether by Contractor or by any subcontractor or by any one directly or indirectly employed by either of them. The Contractor shall furnish to the City certificates of insurance in duplicate showing proof of insurance, naming the City as an additional insured party, prior to the start of construction as provided in the Contract. 11.9 BOND The Contractor shall provide Bonds in the form prescribed by State Law, and generally as shown in these Documents, for Performance and Payment, each in the amount of 100% of the total contract amount. 11.10 PERMITS All City and St. John's River Water Management District permits and other permits necessary for the prosecution of the Work shall be secured by the City, except for Contractor's licenses and registrations, and dewatering permits that may be required by St. Johns River Water Management District (SJRWMD). Contractor shall secure a building permit if required by the City's Building Official. 11.11 LAWS TO BE OBSERVED The Contractor shall give all notices and comply with all federal, state and local laws, ordinances, permit requirements and regulations in any manner affecting the conduct of the Work, and all such orders and decrees as enacted by bodies or tribunals having any jurisdiction or authority over the Work, and shall indemnify and save harmless the City and Engineer against any expense, claim or liability arising from, or based on, the violation of any such law, ordinance, regulation, permit requirements, order or decree, whether by Contractor or its employees. The failure of the Contractor to adhere to any known law or regulation pertaining to furnishing services under this Agreement shall constitute a material breach of this Agreement. The Contractor shall keep fully informed of all existing and pending state and national laws and municipal ordinances and regulations in any manner affecting those engaged or employed in the Work, or in any way affecting the conduct of tribunals having any jurisdiction or authority over the same. If any discrepancy or inconsistency is discovered in the Plans, Specifications, or Contract for this work in relation to any such law, ordinance, regulations, order or decree, Contractor shall forthwith report the same to the Engineer and City in writing. Contractor shall at all times himself observe and comply with and cause all its agents, subcontractors and employees to observe and comply with decrees; and shall protect and indemnify the City and Engineer, their officers, employees and agents against any expense, claim or liability arising from or based upon violation of any such law, ordinance, regulations, orders or decree, whether by Contractor or its employees. A-39 90 of 159 All building construction work alterations, repairs or mechanical installations and appliances connected therewith shall comply with the applicable building rules and regulations, restrictions and reservations of record, local ordinances and such other statutory provisions pertaining to this class of work. 12.0 MISCELLANEOUS 12.1 ADDRESSES FOR NOTICES All notices given under or in connection with any of the Contract Documents shall be delivered in person or by telegraph or email (confirmed) or registered or certified mail to the parties at the address as either party may by notice designate. 12.2 WRITTEN NOTICE Written notice shall be considered as served when delivered to the designated representative of the Contractor and receipt acknowledged or sent by registered mail to the individual, firm, or corporation to the business address stated in Bid Proposal. Change of Address: It shall be the duty of each pariy to advise the other parties to the Contract as to any changes in his business address until completion of the Contract. 12.3 TAXES Contractor shall pay all sales or other taxes of any type which may be incurred in connection with the Work hereunder, and shall reimburse the City for any such taxes paid by the City. 12.4 TIME IS OF VITAL IMPORTANCE It is agreed and understood that time is of vital importance with respect to the completion date for the Work and all other provisions of the Contract Documents. 12.5 NO WAIVER OF LEGAL RIGHTS Neither the payment for, nor acceptance of the whole or any part of the Work by the City or representatives of the City, nor any extension of time, nor the withholding of payments, nor any possession taken by the City, nor the termination of employment of the Contractor shall operate as a waiver of any portion of the Contract or any power therein reserved or any right therein reserved or any right therein provided, nor shall the waiver by the City of any of the Contractor's obligations or duties under this Agreement constitute a waiver of any other obligation or duty of the Contractor under this Agreement. 12.6 RIGHT TO WORK PRODUCT No reports, data, programs or other material produced in whole or in part under this Agreement shall be subject to copyright by the Contractor, in the United States or in any other country. The City or its A-40 91 of 159 assigns shall have the unrestricted authority to publish, disclose, distribute and otherwise use, in whole or in part, any reports, data, programs or other material prepared under this Agreement. All tracings, plans, specifications, maps, computer programs and data prepared or obtained under this Agreement shall remain the property of the City. Any use of any plans and specifications by the City except the use reasonably contemplated by the City at the time the City entered this Agreement will be at the City's risk and Contractor, its officers, directors and employees, will be held harmless from such use. A-41 92 of 159 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and year first above written. ATTEST: Sally A. Maio MMC (SEAL) Approved as to Form and Content for: Reliance by the City of Sebastian Only Robert Ginsburg, City Attorney Signed, sealed and delivered in the presence of: NAME: NAME: THE CITY OF SEBASTIAN : Name: A1 Minner Title: City Manager CONTRACTOR A-42 : Name: Title: 93 of 159 �a SE�TU°1�i _.�� . r �..� �� FfOME OF PELIUN ISWVD AGENDA TRANSMITTAL Subject: Agenda Na Review Solid Waste RFP Specifications Department Origin: City Manager Administrative S Ap rove, r Submittal by: City Attorney: �. ?'' ' City Clerk: AI n r, City Manager Date Submitted: 17 JAN 13 Council Date: 23 JAN 13 Exhibits: Drafts — Advertisement, Procurement Specifications, Ordinance, Franchise Agreement SUMMARY The City generates approximately $71,500 in solid waste franchise revenues, comprising almost 1% of all general fund revenues. On June 30, 2013, the City Franchise Agreement with Waste Management, Inc. will expire. This expiration marks the end of a ten year agreement, which requires a competitive procurement process to issue a new franchise to a qualified sanitation collection company. Toward the process of establishing a formal franchise selection process, I have enclosed initial Request for Proposal documents, draft ordinance and draft franchise agreement for Council review. RECOMMENDATION Staff seeks Council review and approval to commence Solid Waste Collection — Franchise Award RFP process on February 18, 2013. 94 of 159 SOLID WASTE RFP Draft — Advertisement 95 of 159 ADVERTISEMENT FOR FRP Notice is hereby given that the City of Sebastian, Florida ("City") is soliciting, from experienced firms, services for residential and commercial solid waste collection. Proposals will be accepted by the City of Sebastian at 1225 Main Street, Sebastian, Florida 32958 untii Wednesdav, April 3, 2013 at 2:00 PM. Sealed Envelopes are to be marked as follows: RFP: SOLID WASTE COLLECTION DEADLINE: TBA � 2:00 PM Detailed specifications for the above referenced Proposal are available by contacting Jean Tarbell at (772) 388-8203, by e-mail at jtarbell(c�cityofsebastian.org, or at City Hall 1225 Main Street, Sebastian, Florida 32958. All prospective proposers must provide the City with a signed, sea►ed, executed Specification Packet by the submission deadline to be considered. There is a MANDATORY pre-proposal conference scheduled for Thursday, March 14, 2013 at 2:00 PM in the City Council Chambers at City Hall. It is anticipated that the award of the Franchise Agreement will be made to one Contractor for all work to be completed. The City reserves the right to reject any or all proposals in whole or in part; to award by any item, group(s) or items, total proposal, or accept the proposal which is most advantageous and in the best interest of the City. By: City of Sebastian, Florida AI Minner, City Manager 96 of 159 SOLID WASTE RFP Draft — General Provisions 97 of 159 REQUEST FOR PROPOSAL SOLID WASTE COLLECTION SERVICES SPECIFICATIONS — INTRODUCTORY STATEMENT Request for Proposals are being solicited from experienced firms specializing in solid waste collection, both residential and commercial. Proposals will be accepted by the City of Sebastian 1225 Main Street, Sebastian, Florida 32958, until Wednesday, April 3, 2013 at 2:00 PM. Sealed envelopes are to be marked as follows: RFP: SOLID WASTE COLLECTION DEADLINE: WEDNESDAY, APRIL 3, 2013 — 2:00 P.M. It is the intent of this RFP solicitation to award an Exclusive Solid Waste Collection Franchise Agreement to one (1) firm for both residential and commercial solid waste collection services within the City of Sebastian corporate limits. The Specification packet outlines the details the prospective franchisee must follow to be considered for the Solid Waste Franchise Award Agreement. At a minimum, all applicants shall be able to be properly licensed in the City of Sebastian, possess the appropriate/capable equipment and show Proof of Insurance to conduct its business, with all licenses, permits and certificates as required by all local, State of Florida and Federal agencies. All forms and potential RFP addendums must be signed and included in the Proposer's RFP Specification packet. Any person or affiliate who has been placed on the convicted vendor list following conviction for a public entity crime may not submit a proposal as proscribed by Section 287.133, F.S. A form is provided and must be signed and submitted with your proposal. Firms interested in submitting a response to this RFP agree not to contact (lobby) City Council Members or any employee or agent of the City at any time during the solicitation period and selection process. All oral or written inquires must be directed through the City Manager's Office. Any other contact with the owner will be considered inappropriate and subject your response to rejection/disqualification. The City of Sebastian reserves the right to accept or reject any or all proposals, waive any irregularities, award the contract to any respondent whose proposal is determined by the City to be in the best interest of the City, cancel this invitation at will, and/or extend any date/time deadline stated herein with or without notice. 98 of 159 REQUEST FOR PROPOSAL SOLID WASTE COLLECTION SERVICES GENERAL INSTRUCTION I. GENERAL � MISCELLANEOUS INFORMATION The City of Sebastian issues an exclusive franchise for residential and commercial solid waste collection. Solid waste collection is conducted on a voluntary basis. The City of Sebastian's current Solid Waste Collection Franchise Agreement for residential and commercial coilection will expire at close of business on June 30, 2013. It will be required that the selected firm start collection services on Monday, July 1, 2013, with an initial term of five (5) years and one (1) option to extend for a second five (5) year term. General data about the City is as follows: ITEM Population Number of Households Area of Corporate Limits Total Miles of Streets Build-Out Percentage Current Solid Waste Hauling Customer Base PROXIMATE AMOUNT 9, 508 15 Square Miles 156 75% 4,500 It is the intent of this RFP to award a residential and commercial Exclusive Solid Waste Franchise Collection Agreement to the firm providing the best proposai for services. II. GENERAL OPERATIONAL GUIDELINES A. Exclusive franchise for both residential and commercial collection. B. The term of this franchise agreement shall be for an initial five (5) year period with one (1) option to extend for a second five (5) year period. C. All soiid waste, including yard trash, shall be hauled to those sites or facilities maintained by Indian River County, or other approved facilities within the County. D. Residentiai collection at least two (2) times per week, with collection at least three (3) days apart. E. In addition to solid waste collection, yard trash shall be picked up one time per week. F. Residential collection shall begin no earlier than 7:00 AM and cease no later than 5:00 PM, Monday through Friday. Commercial collection shall begin no earlier than 7:00 AM and cease no later than.5:00 PM Monday through Saturday. G. Collections of residential waste shall be at curbside or right-of-way. H. Special pickup service for solid waste (not including yard waste), at the "back door", for elderly and disabled residents sha�l be provided at no additional cost. I. All collection equipment shall be enclosed. At "start up" of the Franchise Agreement, all collection equipment shall not be more than two (2) years old and during the course of the Agreement shall not accumulate year by year to exceed seven (7) years old. J. A six percent (6%) franchise fee for both residential and commercial solid waste shall be charged upon ali revenues collected by the franchisee. K. The franchisee shall be required to provide, standard to the industry, payment and performance bonds and insurance coverage acceptable to the City in its sole discretion. 99 of 159 L. The franchisee shall comply with all applicable City, State and Federal laws as to wages, hours and all other applicable laws relating to the employment or protection of employees, now and hereafter in effect. M. The franchisee shall list a toll free number in the major telephone books distributed in the City of Sebastian for emergency and complaint calls seven days a week, finrenty-four hours a day. N. The franchisee shall provide, at its own expense, a suitable office located within Indian River County. III. PROPOSALS A. Proposal must be submitted in sealed envelope and shall be marked accordingly. B. Five (5) sets of proposals are required to be submitted at the date, time and location posted. C. For proposals to be considered, they shall include all documents and items specifically listed in the RFP titled -"Required Forms". D. A Solid Waste Franchise Committee will review and make a recommendation to the City Council on which proposal is best. The composition of the Committee will be determined at a later date, but will be comprised of inembers of the City's management team. In determining which proposal is best, the Committee will consider among other things, price, qualifications, special considerations, and ability to provide the required services. The finro (2) top ranked firms may then be invited to enter into discussions/negotiations leading to a best and final offer for the City to consider. The City Manager will then present to City Council the Committee's recommendation. City Council action is final. E. The Franchisee shall be responsible for all billing and service collections. A six percent (6%) franchise fee on all gross revenue shall be collected by the Franchisee and paid to City of Sebastian on a monthly basis. IV. TERMS AND CONDITIONS A. The City of Sebastian reserves the right to reject any and all proposals and/or re- advertise, to waive any irregularities, informalities or technicalities therein, to negotiate Contract terms and conditions with the successful Proposer, to disregard all non- conforming, non-responsive, unbalanced or conditional proposals, to accept any Proposal which in the City's sole judgment will best serve the public interest. The City reserves the right to cancel the award of any Contract at any time before the execution of the Contract by all the parties without any liability against the City. In consideration of the City's administrative review of Proposals, the Proposer, by submitting its Proposal, expressly waives any claim to damages, of any kind whatsoever, in the event the City exercises its rights provided for in this subsection. B. The City reserves the right to request clarification on information submitted from any respondent after the deadline for the receipt of responses, or to request additional information and conduct background checks as may be required. C. Any responses may be withdrawn until the date and time stipulated in the invitation for the submission of the responses. 100 of 159 D. Any respondent who submits in its Proposal any information that is determined by the City, in its sole opinion, to be substantially inaccurate, misleading, exaggerated, or incorrect may be disqualified from consideration. E. The Respondent warrants that it has not employed or retained any company or person, to solicit or secure this Franchise Agreement where the Respondent has agreed to pay a fee, commission, percentage, gift or other consideration upon or resulting from award of this Franchise Agreement. F. Late responses will not be accepted. V. INSURANCE REQUIREMENTS Prior to the time Franchisee is entitled to commence any part of the project, work, or services under this Agreement, Franchisee shall procure, pay for, and maintain at least the foliowing insurance coverage's and limits. Insurance shall be evidenced by delivery to the City of certificates of insurance. The insurance requirements shall remain in effect throughout the term of the contract. ➢ WORKER'S COMPENSATION. Worker's Compensation insurance under this Agreement shall be in place during the entire term of the Agreement. Coverage must be maintained in accordance with statutory requirements as well as Employer's Liability Coverage in an amount not less than $100,000.00 per each accident, $100,000.00 by disease and $500,000 aggregate by disease. ➢ LIABILITY INSURANCE. Commercial general liability insurance and automobile liability insurance, which specificaily covers all exposures incident to the Franchisee's operations under this Agreement, shall be in place during the entire term of the Agreement. Such policy shall be in an amount not less than $1,000,000.00 Combined Single Limit for personal bodily injury, including, without limitation, death, and property damage liability and the general liability shall include but not be limited to coverage for Premises/Operations, Products/Completed Operations, Contractual, to support the Franchisee's Agreement or indemnity and Fire Legal Liability. In addition, the Franchisee shall maintain a$5,000,000.00 umbrella and/or excess liability coverage. Each policy shall require that thirty (30) days prior to expiration, cancellation, nonrenewal, or any material change in coverage or limits, a notice thereof shall be given to the City by certified mail to: City of Sebastian, Office of the City Manager, 1225 Main Street, Sebastian, Florida 32958. Franchisee shall also notify City, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, nonrenewal, or material change is not in coverage received by said Franchisee from its insurer; and nothing contained herein shall absolve Franchisee of this requirement to provide notice. The City shall be listed as an additional insured. VI. TECHNICAL PROPOSAL Proposer should provide a complete and concise explanation of how they will conduct the process required in the RFP. At a minimum, the proposal should include the following: Financial Capability: The City will evaluate the relative financial strength of the Proposer through its abilities to provide the required insurance and demonstrate that the Proposer is financially capable of providing the services. Proposal should include a copy of the Proposer's recent financial statement to document the items below. A. Credit Rating B. Net Worth C. Leverage (long-term debt to total capital ration) 101 of 159 D. Historic profitability in relation to size E. Liquidity (current debt to current assets ratio) F. Overall financial stability G. Any filings for bankruptcy (under current name, or any former register and/or d/b/a or respondent, or any affiliate of the respondent. H. Evidence of ability to obtain required types and amounts of insurance I. Summary of financial position (assets, liabilities and corporate equity) for Contractor. If the firm is required to file reports with the SEC, then submit Form 10-K from the last 3 years and all quarterly reports on Form 10-Q since the last annual statement. If the respondent wishes this information to be confidential, please submit in a separate sealed envelope. J. If the Firm is not required to file reports with the SEC, then submit audited financial statements from the last 3 years. The audited financiai statement should include a statement of include, balance sheet, calculated net worth and statement of financial position change. If the respondent wishes this information to be confidential, please submit in a separate sealed envelope. VII. QUALIFICATIONS AND RESUMES Proposer should demonstrate its qualifications to successfully provide the required processing and marketing services as outlined in its technical proposal. At a minimum, proposai should include the following information: A. CORPORATE HISTORY: Proposal should provide a brief history of all entities involved in the proposal, including the types of solid waste services provided and period of time providing such services. B. KEY PERSONNEL: Proposal should include the names, titles, respective roles, location and resumes of key personnel and decision-makers who would be responsible for overseeing the solicited services. Resumes should not exceed two (2) pages in length and must detail the person's past experience as it relates to the RFP. C. LITIGATION HISTORY: Listing of any pending or settled lawsuits in which the Proposer was involved during the past five years (5) years. Also include an explanation of any operations work in Florida in which the contract was not completed or which was in default. VIII. EXPERIENCE AND REFERENCES Proposer should demonstrate its experience successfully providing processing and marketing services similar in scope to those requested in this RFP and as outlined in its technical proposal. At a minimum, proposal should include the following information: A. SIMILAR EXPERIENCE: Proposal should explain the Proposer's relevant experience, including MRF transfer operations, and the processing/marketing of recyclables. B. REFERENCES: Proposer should provide up to three (3) references, preferably public sector customers, for which the Proposer has provided services similar to those required in this RFP, preferably within the last five (5) years. Reference facilities should be located in the United States. Reference information should include a contact person, title, affiliation, address, telephone number, email address, and a summary of the operation. 102 of 159 IX. FINANCIAL PROPOSAL The proposer shall be required to provide prices for services. Service units and prices may vary. In any case, the City will compare prices as part of the selection matrix. The current solid waste hauling franchisee uses the following billing units. A. Residential Collection Service ➢ Article 9.0 Residential Units B. Commercial Collection Service ➢ Article 11.11 Commercial Container Rates ➢ Article 11.11 Extra Commercial pick up ➢ Article 11.11 Compactor Container ➢ Article 11.13 Roll Off X. BID BOND AND PERFORMANCE BOND A Bid Bond in the amount of $10,000 is required to accompany all proposals. No bid will be considered unless it is accompanied by the Bid Bond. The Bid Bond shall ensure the execution of the bid and award. A Payment and Performance Bond (payable to the City) in the amount of $70,000 shall be required at the time of execution of the Agreement. These bonds shall ensure that City of faithful performance of all the provisions of the Agreement. XI. NON-LOBBYING AGREEMENT Firms interested in submitted a response to this RFP agree not to contact (lobby) City Council Members, or any employee or agent of the City at any time during the solicitation period and selection process. All oral or written inquires must be directed through the Office of the City Manager. Any other contact with the owner will be considered inappropriate and subject your response to immediate rejection/disqualification. XII. DEBARMENT By submitting a proposal, the offeror certifies that it is not currently debarred from submitting proposals for contracts issued by any political subdivision or agency of the State of Florida or any municipal corporation. The offeror also certifies that it is not an agent of a person or entity currently debarred from submitted proposals for contracts issued by any political subdivision or agency of the State of Florida or any municipal corporation. XIII. INFORMALITIES AND IRREGULARITIES The City of Sebastian has the right to waive minor defects or variation of a proposal from the exact requirements of the specifications that do not affect the price, quality, quantity, and delivery or performance time of the services being procured. If insufficient information is submitted by an offeror with the proposal for the City of Sebastian to properly evaluate the proposal, the City has the right to require such additional information as it may deem necessary after the time set for receipt of proposals, provided that the information requested does not change the price, quality, quantity, delivery, or performance time of the services being procured. The City of Sebastian reserves the right to reject any or all proposals in whole or in part; to award by any item, group(s) of items, total proposal, or accept the proposal which is most advantageous and in the best interest of the City of Sebastian. 103 of 159 XN. VENUE The laws of the State of Florida shall govern this agreement. Venue for any lawsuit brought by either party against the other party or otherwise arising out of this agreement shall be in Indian River County, Florida, or in the event of federal jurisdiction, in the United States District Court for the Southern District of Florida. XV. INGlUIRIES Interested parties having question regarding this RFP shall address their questions to the following: TO: AI Minner, City Manager at: aminner(c�cityofsebastian.orq TO: Jean Tarbell, Executive Assistant at: jtarbell(c�cityofsebasitan.org XVI. EXPENSES INCURRED The City of Sebastian accepts no responsibility for any expenses incurred by the proposer in the preparation and presentation of a proposal. Such expenses shall be borne exclusively by the proposer. 104 of 159 REQUEST FOR PROPOSAL SOLID WASTE COLLECTION SERVICES SPECIAL CONSIDERATIONS As part of the Solid Waste Collection Services Request for Proposals, the City of Sebastian seeks additional service that may separate one service provider from another. Points will be awarded to proposers based on additional services that may be required. Such additional service the City seeks include: ➢ RECYCLING — The City would like to provide recycling bins in major parks. The parks inciude Riverview Park, Barber Street Sports Complex and Hardee Park. ➢ SHREDDING — On an annual basis, the City would like to provide a shredding event whereby residents and business can bring documents and files and have them shredded and recycled, rather than having them disposed. A collection point can be City Hall at 1225 Main Street. ➢ COMPUTER/ELECTRONIC COLLECTION — On an annual basis, the City would like to provide an event whereby residents and businesses can properly dispose of electronic and computer equipment. A collection point can be City Hall at 1225 Main Street. ➢ GREEN ENERGY — The City of Sebastian is interested in converting vehicles to natural gas and seeks a partner to help construct and locate a fueling station in Sebastian. Other partnerships may be formed between Florida City Gas, the City of Fellsmere, City of Vero Beach, Indian River County and the Indian River County School Board. Currently a 4" transmission line is installed at the intersection of C.R. 510 and C.R. 512. ➢ WHITE GOOD COLLECTION — The City would like to ensure that white goods are collected on a regular basis and is requesting that the provider make special plans to collect such waste. Other special consideration(s) not specially mentioned here, may be proffered by the proposer and will receive due consideration. 105 of 159 REQUESTFOR PROPOSAL SOLID WASTE COLLECTION SERVICES SELECTION PROCESS A Solid Waste Committee made up of key City staff will review all proposals. Members of the committee will be determined at a later date. Each Member will provide a numerical ranking of the proposals based on the following point system: CRITERIA Technical Proposal Qualifications and Resumes Experience and References Special Considerations Financial Proposal AL POINTS 1b 10 20 10 45 Numerical rankings from each committee member will be combined to provide a final ranking, which will form the basis of an award recommendation provided to City Council. The Committee will publicly review their rankings at a meeting preliminarily scheduled for Wednesday, April 24, 2013 at 10 A.M. in the Council Chambers. City Council will then review the Committee recommendation. The proposal selected best by City Council will be awarded the solid waste franchise. The Franchisee will enter into an Agreement which shall be adopted by Ordinance. The first reading of the Solid Waste Franchise Ordinance is tentatively scheduled for Wednesday, May 22, 2013 at 6:30 P.M. in Council Chambers. Second reading and Public Hearing for the Solid Waste Franchise Agreement is tentatively scheduled for Wednesday, June 12, 2012 at 6:30 P.M. in Council Chambers. A provisional summary of the Solid Waste RFP Award Process is as follows: MILESTONE APPROXIMATE DATE RFP Let Monday, February 18, 2013 Mandatory Pre-Bid Meeting Thursday, March 14, 2013 — 2:00 P.M. Last Day For Questions Thursday, March 28, 2013 — 4:30 P.M. Deadline For RFP Submittal — Public Reading Wednesday, April 3, 2013 — 2:00 P.M. RFP Selection Committee Meeting Wednesday, April 24, 2013 —10 A.M. Preliminary Review By City Council Wednesday, May 8, 2013 — 6:30 P.M. 15' Reading Franchise Award Ordinance Wednesday, May 22, 2013 — 6:30 P.M. 2"d Reading/Public Hearing Franchise Award Wednesday, June 12, 2013 — 6:30 P.M. Franchise to Start Work Monday, July 1, 2013 `Note: All times and dates are tentative and may be subject to change. 106 of 159 REQUEST FOR PROPOSAL SOLID WASTE COLLECTION SERVICES REQUIRED FORMS For a proposal to be considered, the following items must be included in the RFP and returned to the City prior to the RFP deadline of Wednesday, April 3, 2013 at 2:00 PM. ➢ TECHNICAL PROPOSAL To Be Completed and Submitted by the Proposer. ➢ QUALIFICATIONS 8� RESUMES To Be Completed and Submitted by the Proposer. ➢ EXPERIENCE 8� REFERENCES To Be Completed and Submitted by the Proposer. ➢ FINANCIAL PROPOSAL Attached is a Proposal Price Statement Form certifying the Proposer's price. Attached this form to the Proposer's price submittal. ➢ RESPONSE TO SPECIAL CONSIDERATION Proposer is required to respond to the Special Requests Section of the RFP. ➢ DRUG FREE WORK PLACE FORM Complete and Sign Attached Form. ➢ FORM OF NONCOLLUSION AFFIDAVIT Complete and Sign Attached Form. 107 of 159 SOLID WASTE RFP Draft — Proposal Forms 108 of 159 PROPOSAL PRICE STATEMENT FORM The undersigned having become thoroughly familiar with all of the proposal/contract documents incorporated herein, the project side and the ►ocation conditions affecting the work, hereby proposes to perform everything required to be performed in strict conformity with the requirements of these documents, and to provide and furnish all the equipment, labor and materials necessary to provide residential and commercial solid waste coliection and disposal services meeting or exceeding the specification as set forth herein for the unity prices proposed by our firm. The rates provided by our firm DO NOT include the six percent (6%) franchise fee. By the signature below, the proposer agrees that this proposal is made without any other understanding, agreement, or connection with any person corporation or firm submitting a proposal for the same purpose and that the proposal is in all respects fair and without collusion or fraud. If awarded this franchise agreement, I agree to execute/enter into said agreement within the time parameters specified in the proposal documents and agree to the terms and conditions of all document stated herein for the stated price. Failure to execute the agreement as stipulated above may result in the forfeiture of the Bid Bond in its entirety. Firm Name Firm Address Printed Name of Authorized Signature Authorized Signature Title Date 109 of 159 DRUG-FREE WORKPLACE COMPLIANCE FORM Preference shall be given to business with drug-free workplace programs. Whenever two or more bids which are equal with respect to price, quality, and service are received by the City of Sebastian for the procurement of commodities or contractual services, a bid received from a business that certifies that it has implemented a drug-free work place program shall be given preference in the award process. Established procedures for processing tie bids will be followed if none of the tied vendors have a drug-free workplace program. In order to have a drug-free workplace program, a business shall: 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing possession, or use of a control►ed substance is prohibited in the workpiace and specifying the actions that will be taken against employees for violations of such prohibition. Inform employees about the dangers of drug abuse in the workplace, the business policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in Subsection 1. 4. In the statement specified in Subsection 1, notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 or of any controlled substance law of the United States or any State, for a violation occurring in the workplace no later than five days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is availabie in the employer's community, by any employee who is so convicted. 6. Make good faith effort to continue to maintain a drug-free workplace through implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements. Proposer's Signature Title Date 110 of 159 FORM OF NONCOLLUSION AFFIDAVIT (This Affidavit is Part of RFP) STATE OF ) SS. COUNTY OF being first duly sworn, deposes and says that he is (Sole owner, a partner, president, secretary, etc.) of the party making the foregoing Proposal that such Proposal is genuine and not collusive or sham; that said Proposer has not colluded, conspired, connived, or agreed, directly or indirectly, with any Proposer or person, to put in a sham Proposal, or that such other person shall refrain from submitting a proposal, and has not in any manner, directly or indirectly sought by agreement or collusion, or communication or conference, with any person, to fix the RFP of affiant or any other Proposer, or to fix any overhead, profit or cost element of said Price, or of that of any other Proposer, or to secure any advantage against OWNER any person interested in the proposed Agreement; and that all statements in said Proposal are true; and further, that such Proposer has not, directly or indirectly submitted this Proposal, or the contents thereof, or divulged information or date relative thereto to any association or to any member or agent thereof. (Proposer) Sworn to an subscribed before me this day of , 2013. County My Commission expires (SEAL) Notary Public in and for r� 111 of 159 SOLID WASTE RFP Draft — Ordinance 112 of 159 REQUEST FOR PROPOSAL SOLID WASTE COLLECTION SERVICES DRAFT FRANCHISE ORDINANCE/AGREEMENT This section of the RFP provides a draft copy of the Franchise Ordinance and Agreement terms that will be negotiated with the successful proposer. 113 of 159 ORDINANCE NO. o-o. AN ORDTNANG`E OF T'HE CITY OF SESASTIA.N, FLORIDA, GRA,NTING AN EXCLUSNE FRANCH�SE FOR RESIDENTIAL AND COM11'LERCIAL SOLID WASTE COLLECTION TO . _ ; PROVIDING PENALTIES FOR VIOLATION; PROVIDING FOR SUNSET OF EXISTING COMMERCIAi� PROVIDERS; PROVIDING FOR CONFLICTS AND EFFECTIV� DATE. 'WHEREAS, the existing residential solid waste collection as approved under Qrdinance 0-98-09 expires on 7une 30, 2003; and WHEREAS, the Council has determined that it is in the best interest of the public that a single provider have an exclusive franchise for both residential and commercial solid waste collection; and WHEREAS, pursuant to a competitive proposal process it has been detertnined that the public will best be served by granting said franchise to _ NOW, THEREFORE, BE TT ORDAINED BY T"� CTY"i' COUNCII� OF THE CTTY OF SEBASTxAN, FLORIDA, as follows: Section 1. is hereby granted an exclusive franchise to provide residentia] and commercia] salid waste within the City of Sebastian pursuant to the provisions of the FRANCHISE AGREEMENT BE'I'WEEN CITY OF SEBASTIAN AND attached hereto. Section 2. It shalI be a violation of the City Code, punishable as provided in City Code section 1-10, for any person or entity to provide solid wa.ste collection within the City except in accordancs with the terms and conditions of the Franchise granted hereunder. Service standards and franchise fee reqnirements shal] apply to providers continuing service in accordance with state law under pre-existing contracts. . ection 3. City staff is directed to invoke the procedures provided under Florida Statutes to sunset the existing contractual rights of any person or other entity otherwise providing Commercial Solid Waste within the City as of the effective date of this Ordinance. Any person or other entity providing such service must subnnit copies of aIl such contracts to the Office of 114 of 159 the City Manager within fifteen (15) days of the effective date hereof. Upon a showing of notice of the requirements of this secNon, the failure to submit any such contract shall create an irrebuttable presumption that no such agreement for service existed. Section 4. are hereby repealed. Section S. CONFI,ICT. All ordinances or parts of ordinances in conflict herewith EFFECTIVE DATE. This ordinance shall take effect upon adoption. The foregoing Ordinance was moved for adopdon by Councilmember coniglio, The motion was seconded by Councilmember Barczyk and, upon being put to a vote, the vote was as follows: Mayor Walter Barnes Vice-Mayor Ray Coniglio Councilmember Joe Barczyk Councilmember Nathan McCollum Councilmember James Hill aye _aye �� aye aye The Mayor thereupon declared this Ordinance duly passed and adopted this 25�' day of June, 2003. ATTEST: l _ �; C� � Sally A. M ' , CMC City Clerk CTTY OF SEBASTIAN, FLORIDA By: ��i c� P G� Ut�,ri� Mayor alter Barnes Approved as to form and legality for reliance by the City of Sebastian only: Rich Stringer, City Attorne 115 of 159 SOLID WASTE RFP Draft — Franchise Agreement 116 of 159 Franchise Agreement Between City of Sebastian and � 117 of 159 This Franchise Agreement ("Agreement") is hereby made and entered into this day of June, 2013, between CITY OF SEBASTIAN, FLORIDA, ("City") and , a Florida corporation, whose address is 2700 NW 48tn Street, Pompano Beach, FL 33073 ("Franchisee"). WITNESSETH WHEREAS, the City desires to engage Franchisee to perForm certain solid waste and recycling services with the boundaries of the City; and WHEREAS, Franchisee desires to perform such services pursuant to the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein and other good and valuable cansideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Franchisee agree as follows: Article 1. Background Recitals 1.0. The recitals set forth above are true and :correct and form a material part of this Agreement. Article 2. Term of the Agreement 2.0. The term of this Agreement shall be for a period of five (5) years, which shall begin July 1, 2013. This Agreement sh'al1 automatically renew for an additional term ending June 30, 2023, unless either party shall notify the other ta the contrary in writing pursuant to Sec. 16.11 not later than July 1, 2017. Aracle 3. Definitions and Interpretations 3.0. General. To the extent that any definition contained herein conflicts with any similar definition contained in any federal, state, or local law, the definition herein shall prevail. However, nothing contained herein shall be interpreted to require the Franchisee to undertake any conduct that is prohibited by Applicable Law. Whenever the context may require, any pronoun which is used in this Agreement shall include the corresponding masculine, feminine and neuter forms and the singular shall include the plural and vice versa. 2 118 of 159 3.1. Agreement shall mean this Franchise Agreement between the City and the Franchisee, together with all exhibits and other documents that are expressly incorporated by reference. 3.2. Applicable Law means any local, state or federal statute, law, constitution, charter, ordinance, judgment, order, decree, permit, rule, regulation, directive, policy, standard or similar binding authority, or a judicial or administrative interpretation of any of the same, which are in effect or are enacted, adopted, promulgated, issued or enforced by a governmental body during the term of this Agreement, and rela#e in`any manner to the performance of the City or Franchisee under this Agreement. . 3.3. Biological Waste shall mean solid waste that causes or has the capability of causing disease or infection and includes, but is not limited to, biomedical waste, diseased or dead animals, and other wastes capable of transmitting pathogens to humans or animals. The term does not include human remains that are disposed of by persons licensed under chapter 470, Florida Statutes. 3.4. Biomedical Waste shall mean any Solid Waste ar:liquid waste which may present a threat of infection to humans. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste which contain human- disease-causing agents; discarded disposable sharps; human blood, and human blood products and body fluids; and other materials which in the opin'ion of the Florida Department of Health represent a significant risk of infection to persons outside the generating facility. The term does not include human remains that are disposed of by persons licensed under Chapter 470, Florida Statutes. 3.5. Council shall mean the City's governing body, which currently is comprised of the City Council of the City of Sebastian, Florida. " 3.6. BuCk Trash shall mean any non-vegetative item that cannot be containerized, bagged or bundled, or whose large size or weight precludes its handling by normal, Collection, processing or disposal methods. Bulk Trash includes but is not limited to discarded White Goods that are not Freon-Containing Devices, toilets, pool heaters, water softeners, pianos, bath tubs, sinks, bicycles, and similar household goods, appliances, fixtures and furniture. 3.7. Collect and Collection shall mean the process whereby Solid Waste is picked-up and removed from the location where it is generated, and then transported to the County Landfill. 3.8. Commercial Collection Franchise Area shall mean the City limits of Sebastian. 3.9. Commercial Collection Service shall mean the Collection of (a) Commercial Solid Waste; and (b) Recyclable Materials generated on Commercial Property and from Mobile Home Parks. 3 119 of 159 3.10. Commercial Container shall mean any container which: (a) consists of four permanently attached sides and a bottom; (b) is made of inetal, durable plastic or other non-absorbent material; (c) is free-standing; (d) is emptied or transported by mechanical means; and (e) is used to Collect or store Solid Waste. Commercial Containers include, but are not limited to roll-on/roll-off boxes, dumpsters, Compactors, and similar receptacles used to Collect Solid Waste 3.11. Commercial Property shall mean all of the improved property in the City that is used for: (a) Multiple Dwelling Units; or (b) commercial, institutional, church, not-for- profit, governmental, nonresidential or industrial purposes. 3.12. Commercial Solid Waste shall mean Garbage, Bulk Trash, Trash, and Yard Trash that is not Residential Solid Waste. Commercial Solid Waste inc(udes the Garbage, Bulk Trash, Trash, Yard Trash, and Industrial Solid Waste generated by or at: (a) commercial business, including, without limitafion, retail stores, offices, restaurants, and warehouses; (b) govemmental and institutional offices and buildings, including, without limitation, schools and hospitals; (c) churches and not-for-profit organizations; (d) hotels and motels; (e) Multiple Dwelling Units thaf _use Commercial Containers; (fl Mobile Home Parks that use Commercial Containers; (g) agricultural and industrial facilities; and (h) Construction and Demolition Debris collection in volumes greater than fifteen (15) cubic yards. 3.13. Compactor shall mean any Solid Waste container that has a stationary or mobile compaction mechanism. 3.14. Construction �;and Demolition Debris shall mean discarded materials generally considered to be not water-soluble and nonhazardous in nature, inc(uding, but not limited to, steel,,, glass, brick, concrete,"asphalt roofing material, pipe, gypsum wallboard, and lumber, frorn the construction or destruction of a structure as part of a construction or dernolition projecf'or from the renovation of a structure, and including rocks, soils, tree remains, trees, and other vegetative matter that normally results from land clearing or land development operations for:a construction project, including such debris from construction of structures at a site remote from the construction or demolition project site. Mixing af construction' and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The term also includes: (a) Clean cardboard, paper, plastic, wood, and metal scraps from a construction project; (b) Unpainted, nontreated wood scraps from facilities manufacturing materials used for construction of structures or their components and unpainted, nontreated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and 4 120 of 159 (c) De Minimis Amounts of other nonhazardous wastes that are generated at construction or destruction projects, provided such amounts are consistent with best management practices of the industry. For purposes of this Agreement, the term does not include "Roll-on, roll-off' service at volumes less than fifteen (15) cubic yards. 3.15. Construction and Demolition Debris Commercial Container shall mean a Commercial Container that is used to hold Construction and Demolition Debris. 3.16. Construction and Demolition Debris Service shall mean the Collection and transport of Construction and Demolition Debris in a Commercial Container or a Construction and Demolition Debris Commercial Container in the City by Franchisee. 3.17. Contract Manager shall mean the person designated by the City to act as the City's representative during the term of this Agreernent. 3.18. County shall mean Indian River County, Florida. It shall also include the Indian River County Solid Waste Disposal District, a dependent special district of Indian River County, Florida. 3.19. Curbside Collection Point shall mean the location where the Franchisee shall pick up the Residential Solid Waste and Recyclable Materials discarded by a Customer. 3.20. Customer shall mean a Person having a contractual relationship with the Franchisee for Residential Solid Waste Collection Service or Commercial Collection Service pursuant to the terms of this Agreement and the City Code. 3.21. De Minimis Amount shall mean the:amount of Solid Waste that lawfully may be included in a container of Recovered Materials or Construction and Demolition Debris. A De Minimis Amount of Solid Waste is three (3) percent, by volume or weight, whiche�er is more restrictive, as determined by a measurement or visual inspection by the Contract Manager 3.22. County Landfill shall mean the Solid Waste Disposal Facility or Facilities owned or operated by the County. 3.23. Freon-Contai'ning Devices shall mean White Goods, appliances or other devices that contain or may release Freon, such as refrigerators, freezers, air conditioners, and dehumidifiers. 3.24. Garbage shall mean all kitchen and table food waste, and any animal, vegetative, food or other organic waste that is attendant with or results from the storage, preparation, cooking or handling of food materials. 5 121 of 159 3.25. Garbage Receptacle shall mean any commonly available light gauge steel, plastic, or galvanized receptacle of a non-absorbent material, closed at one end and open at the other, furnished with a closely fitted top or lid and handle(s), and includes a heavy duty, securely tied, plastic bag designed for use as a garbage receptacle. 3.26. Hazardous Waste shall mean any Solid Waste regulated as a hazardous waste by the Florida Department of Environmental Protection or the U.S. Environmental Protection Agency pursuant to Applicable Law. 3.27. Industrial Solid Waste shall mean Solid Waste generated by manufacturing or industrial processes that is not a Hazardous Waste. Such waste many include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products or by- products; inorganic chemicals; iron and steel manufacturing; leather ar leather products; nonferrous metals manufacturing or foundries; organic chemicals; plastic products and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not 'include mining waste or oil and gas waste. 3.28. Materials Recycling Facility (MRF) shall mean any facility operated or managed by, for, or on behalf of the County for the purpose of receiving, sorting, processing, storing, or preparing Recyclable Materials for sale. 3.29. Mobile Home:Park shall mean any improved real property divided into spaces for the placement of mobile or modular homes or trailers. 3.30. Multiple Dwelling Units shall mean any building containing five (5) or more permanent living units. Multiple Dwelling Units include condominiums, but do not include hotels or motels. 3.31. [Left intentionally blank] 3.32. [Left intentionally bfank] 3.33. Person shall;mean any and all persons, natural or artificial, including, without limitation, any individual, firm, partnership, corporation, company, association, social club, fraternal organization, church, religious sect, religious denomination, society, organization or league, estate, trust, receiver, executor, administrator, trustee, or syndicate, municipal corporation, municipality, district or county of Florida and any other state; any governmental agency or political subdivision of any state or the federal government; or any other legal entity, and any group or combination of the above acting as a unit. 3.34. [Left Intentionally Blank] 6 122 of 159 3.35. Recovered Materials shall mean metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but does not include materials destined for any use that constitutes disposal. Recovered materials are not Solid Waste. 3.36. [Left Infientionally Blank] 3.37. [Left Infientionally Blank] 3.38. [Left Intentionally Blank]. 3.39. [Left Intentionally Blank] 3.40. [Left Intentionally Blank] 3.41. Residential Solid Wasfie shall mean Garbage, Trash, Yard Trash, and Bulk Trash resulting from the normal housekeeping activities of a Residential Unit or Mobile Home Park that has elected to receive Reside'ntial Solid Waste Collection Service. 3.42. Residential Solid Waste Collection Service shall mean the Collection and disposal of Residential Solid Waste generated within the Residential Franchise Area. 3.43. Residential Solid Waste Franchise Area shall mean the geographical area comprising the City. 3.44. Residential Unit shall mean each and every lot or parcel of land that is improved for occupancy as a single-family residence, duplex, triplex, or quadraplex, and any other residence, except a Multiple Dwelling Unit. The term also includes individually-owned mobile or modular homes or trailers that: have residential permanent license tags; are erected on a separate parcel of property; are within the Residential Franchise Area or the Residential Recyclables Franchise Area; and do not receive Commercial Collection Service. 3.45. Sludge shatl mean the accumulated solids, residues, and precipitates generated as a result of waste treatment or processing, including wastewater treatment, water supply treatment, or operation of an air pollution control facility, and mixed liquids and solids pumped from septic tanks, grease traps, privies, or similar waste disposal appurtenances. 3.46. Solid Waste shall mean Sludge unregulated under the federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or garbage, rubbish, refuse, Special Waste, or other discarded material, including solid, liquid, semisolid, or contained gaseous material 7 123 of 159 resulting from domestic, industrial, commercial, mining, agricultural, or governmenta! operations. Recovered Materials are not Solid Waste. 3.47. Solid Waste Disposal Facility means any solid waste management facility which is the final resting place for solid waste, including landfills and incineration facilities that produce ash from the process of incinerating municipal solid waste. 3.48. Special Waste shall mean Solid Wastes that can require special handling and management, including, but not limited to, White Goods, waste #ires, used oil, lead-acid batteries, Construction and Demolition Debris, ash residue, Yard Trash, and Biological Wastes. 3.49. Trash shall mean all accumulations of refuse, rags, paper, paper boxes and containers, sweepings, other accumulations of a similar nature, and broken toys, tools, equipment and utensils. Trash does not include Garbage or Yard Trash. 3.50. Uncontrollable Force shall mean any event that results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the non-performing party. It includes, but is not limited to fire, flood, hurricanes, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, terrorism, sabotage, and governmental actions. Labor disputes, including, without limitation, strikes and slowdowns, are not an Uncontrollable Force. 3.51. White Goods includes inoperative and discarded refrigerators, ranges, water heaters, freezers, and other similar domestic and commercial large appliances. White Goods do not include freon-Containing Devices. 3.52. Yard Trash shall mean vegetative matter resulting from yard and landscaping maintenance, including grass clippings, palm fronds, tree branches and other similar matter. Section.4. Grant of Franchise 4.0. Exclusive Franchise. Subject to the conditions and limitations contained in this Agreement, the Franchisee is hereby granted an exclusive franchise and sole authority to provide (a) Residential Solid''Waste Collection Service in the Residential Solid Waste Franchise Area and (b) Commercial Collection Service. 4.1. Recvclables. The collection of residential recyclables is not a part of this Agreement. 4.2. Limited Grant of Rights. This Agreement does not grant any rights or remedies to the Franchisee except those that are expressly identified and conveyed by the specific terms of this Agreement. 4.3. Minimum Requirements for Franchisee's Services. This Agreement establishes minimum requirements and performance standards for the Franchisee. Any services $ 124 of 159 provided by the Franchisee pursuant to Section 4.0 shall fully and strictly comply with the requirements in this Agreement and any Applicable Law. 4.4. Recovered Materials. This Agreement does not prohibit any Person from gathering, conveying, or processing Recovered Materials, provided such Person otherwise complies with applicable Florida law. No franchise or permit shall be required with respect to Recovered Materials. Containers of Recovered Materials may include a De Minimis Amount of Solid Waste. Containers holding more than a De Minimis Amount of Solid Waste shall be handled and regulated as Solid Waste. Article 5. Title to Solid Waste and Recyclabie Mafierials 5.0. Title. After Residential Solid Waste, Commercial Solid Waste, Recovered Materials, and Recyclable Materials are placed at a Curbside Collection Point or any other approved location for Collection by the Franchisee within the City, the City shall hold title and ownership to all such materials. The Franchisee shall have no right to take, keep, process, alter, remove or otherwise dispose of any such materials, except as set forth herein. However, the Franchisee shall have the sole responsibility and liability for the lawful disposal of any Biological Waste, Biomedical Waste, or Hazardous Waste that the Franchisee Collects. Article 6. Processing and Disposal 6.0. Processinq. Recovered Materials collection, processing and marketing are outside the scope of this Agreement. 6.1. Solid Waste Disposal. The:Franchisee shaJl dispose of Residential Solid Waste and Commercial Solid Waste Coilected from within the City at the County Landfill. Article 7. Franchise Fee 7.0. Franehise Fee. A Franchise Fee in the amount of 6% of gross revenues collected pursuant to the Franchise granted herein shall be paid to the City, by check, by the Franchisee on or.before the fifteenth (15th) day of each month for all services collected by the Franchisee during the immediately preceding month. Article 8. Residential Services 8.0. Hours of Residential Service- General. Residential Solid Waste Collection Service, shall be provided Monday through Friday, beginning no earlier than 7:00 a.m. and ending no later than 5:00 p.m, unless previously authorized in writing by the Contract Manager in response to an Uncontrollable Force. 8.1. Days of Residential Service. Residential Solid Waste shall not be Collected by the Franchisee on Sundays or the holidays of July 4th, Labor Day, Thanksgiving, Christmas, 9 125 of 159 or New Year's Day, unless necessary to respond to an Uncontrollable Force. Residential Solid Waste does not need to be Collected by the Franchisee on any holiday when the County Landfill is closed. If Residential Solid Waste Collection Service is scheduled to be provided on a holiday, the Franchisee shall collect the Residential Solid Waste on the Wednesdav followina such holidav if it occurs on a Mondav or Tuesdav. or precedinq such holidav if it occurs on a Thursdav or Fridav. 8.2 Frequencv of Residential Solid Waste Collection Service—Garbage and Trash. At least two (2) times each week, the Franchisee shall Collect Garbage and Trash from those Customers that requested Residential Solid Waste Collection Service. The Collections of Garbage and Trash shall be at least three (3) days apart. 8.3. Frequencv of Service---Yard Trash, Yard Trash shall be collected from Residential Units receiving Residential Solid Waste Collection Service at least one (1) time per week. Yard Trash shall not be commingled with Garbage. ' 8.4. Frequency of Service--Bulk Trash. The Franchisee shall collect all Bulk Trash and Freon-Containing Devices placed at the Curbside Collection Point within four (4) calendar days after receiving a Customer's request to Collect such materials. There shall be no additional charge to the Customer or the City for Collecting Bulk Trash. Notwithstanding the provisions of Section 6.1, the City may direct delivery of bulk trash to an alternative location within the County for processing. 8.5. Obligations Of Franchisee 7o Residential Customers - General. For Residential Units, the Curbside Gollection Point shall be focated within five (5) feet of the curb, the paved surFace of a public roadway, the closest accessible public right-of-way, or other location agreed to by the Franchisee and Customer that provides safe and efficient access for the Collection crew and vehicle. If a Customer is physically unable to deliver their Residential Solid Waste or Recyclable Materials to the Curbside Collection Point, or the Residential Unit is not readily accessible to the Collection crew or vehicle, an altemative locatian shall be designated by the Customer and Franchisee, at no extra cost to the Customer. 8.5.1. Yard Trash Obiiqations. All Yard Trash, except palm fronds, must be bundled, bagged in a biodegradable bag, or containerized by Customer. All Yard Trash must be: separated from Garbage, Trash, and Bulk Trash; no more than four (4) feet in length and no more than three (3) inches in diameter; less than fifty (50) pounds; shall not exceed four (4) cubic yards per collection and shall be placed neatly at the Curbside Collection Point by Customer. Natural Christmas trees will be collected as Yard Trash, provided that the sections of the tree are not more than eight (8) feet in length or more than fifty (50) pounds. The Franchisee shall not co-mingle Yard Trash and other types of Solid Waste in the Franchisee's Collection vehicles. 8.5.2. Bulk Trash Obliqations. Bulk trash shall not be commingled with Yard Trash. A Customer's Bulk Trash may not be collected if determined by the Contract Manager and the Franchisee, in writing, to be incompatible either with the Franchisee's collection � � 126 of 159 equipment or the County's Solid Waste management system, or of such weight or quantity as would significantly hinder the effectiveness of the Collection or Solid Waste disposal system. 8.6. Manner of Collection . The Franchisee shall Collect Garbage, Trash, Yard Trash, and Bulk Trash with a minimum of noise and disturbance to the Customer and the public. The Franchisee shall empty the Customer's Garbage Receptacles and then the Franchisee shall return them to the same location where they were placed by the Customer or the Curbside Collection Point. Throwing or damaging Garbage Receptacles is prohibited. The Franchisee shall Collect all of the Residential Solid Waste placed at a Curbside Collection Point by a Customer. There shall be :no limit on the number of Garbage Receptacles placed at the Curbside Collection Point by a Customer. A Garbage Receptacle and the Solid Waste placed therein shall not exceed thirty,-finro (32) gallons in capacity or fifty (50) pounds in weight. 8.7. Routes and Schedules. On or before March 31 of each year, the Franchisee shall, in a format acceptable to the Contract Manager, provide the Contract Manager with a map of each route and the scheduled days for Collection of Garbage, Trash, Bulk Trash, and Yard Trash in the Residential Solid Waste Franchise Area. The Franchisee shall keep route maps, schedules, and Customer counts current at all times and shall strictly follow the schedules and routes filed with the Contract Manger. The Franchisee shall provide updated maps and schedules to the Contract Manager no later than three (3) calendar days after any change. 8.7.1. Chanqes to Schedules. The Franchisee shall not change the scheduled days for its Collection services until the Franchisee receives the Contract Manager's prior written authorization.' The Contract Manager's approval of such changes shall not be unreasonably withheld. !n the event that the Contract Manager authorizes a change in schedules that alters the C'ollection day for any Customer, the Franchisee shall, at its expense, notify each affected Customer by mail or other manner approved by the Contract Manager not less than one (1) week prior to the change. Article 9. Residential Rates and Billing 9.0. Residential Solid Waste Collection Service Rates. The total rate per Residential Unit for Residential Solid Waste Collection Service charged by Franchisee shall be $ per month. The foregoing is the total rate that may be charged by the Franchisee for Residential Solid Waste Collection Service and it includes all franchise fees, collection costs, disposal costs and other fees and expenses. Notwithstanding the foregoing, the Franchisee and the City acknowledge and agree that the total rate for Residential Solid Waste Collection Service is subject to adjustment as set forth in this Agreement. The Franchisee shall not separately state the amount of the franchise fee on any bill to any residential Customer. 11 127 of 159 9.1. Residential Solid Waste Collection Service Billinq. Billing for Residential Solid Waste Collection Service shall be the sole responsibility of the Franchisee. Article 10. Commercial Collection Service 10.0. General. The Franchisee shall provide all Commercial Collection Service within the City. 10.1. Frequencv of Collection. Commercial Collection Service shall be provided at least once per week, except that the Collection of Recyclable Materials may be provided as agreed by the Customer and Franchisee. In any event, Commercial Collection Service shall be provided frequently enough to prevent the creation of a public nuisance or a threat to the public health, safety, or welfare. The Contract Manager shall assist the Franchisee and Customer in confirming that the size of the Commercial Container and the frequency of the Coflection service are sufficient to ensure that Commercial Solid Waste is not routinely placed or stored outside the Commercial Container. 10.2. Location of Collection of Commercial Containers. Commercial Containers for Commercial Solid Waste or Recyclable Materials shall be ptaced at locations that are mutually acceptable #o the Franchisee and the Customer, and in compliance with the City's land use ordinances. If a dispute should arise between a Customer and the Franchisee regarding the iocation of the Commercial Container, the Contract Manager shall designate the location. 10.3. Commercial Containers :Required. Construction and Demolition Debris generated or accumulated at the site of a construction, demolition or renovation project shall be stored in a Commercia( Container until removed from the site. All other Solid Waste generated or accumulated at the site of a construction, demolition or renovation project shall be stored in a separate Commercial Container or Garbage Receptacle. 10.4. Non-Conforming Containers Prohibited. The use of any container or receptacle other than a Commercial Container or a Construction and Demolition Debris Commercial Container to store Construction and Demolition Debris at a construction, demolition or renovation site is prohibited. The City may prohibit the use of any Commercial Container or Construction and Demolition Debris Commercial Container that is found to be unsuitable or undersized. 10.5. Adiacent Areas. Construction and Demolition Debris or other Solid Waste which is cast, blown, or scattered upon any adjacent property as a result of construction, demolition, or renovation activities shall be removed by the Person responsible for the � 2 128 of 159 construction, demolition or renovation activities no later than the end of the day on which the activities occur or earlier if the waste material causes littering. Article 11. Commercial Collection Service and Construction and Demolition Debris Service Rates and Billing 11.0. Rates — General. The Commercial Collection Service rates set forth in this Agreement are maximums, and volume discounts may be negotiated between the Franchisee and the Customer. Notwithstanding the foregoing, the`Franchisee and the City acknowledge and agree that the Commercial Collection Service rates are subject to adjustment as set forth in this Agreement. 11.1. Rates. All Customers receiving Commercial Collection Service and Construction and Demolition Debris Service will be charged on a per cubic yard basis. Charges will be billed monthly in advance by the Franchisee as follows: To Be Determined By RFP 11.2. Other Charaes. The rates for Commercial Collection Service and Construction and Demolition Debris Collection Service do not include d,isposal fees, maintenance fees, franchise fees, and other extra charges. Such fees shall not be added to a Customer's invoice unless they are indi�idually listed and itemized. 11.3. Billinq. Billing for Commercial Collection Service,'and for Construction and Demolition Debris Service shall be the sole responsibility of the Franchisee. Article 12. Adjustments to Rates 12.0. CPI Changes in Rates. Compensation payable to the Franchisee for services provided hereunder shall be adjusted upward or downward annually to reflect changes in the consumer price index for all urban consumers for the Southeastem US, all items, 1982-84 equals 100, as published'by the U.S. Department of Labor, Bureau of Labor Statistics ("CPI"). Should the CPI be discontinued or substantially modified, then an alternate index shall be chosen by mutual agreement of the City and the Franchisee. Beginning on Oc#ober 1, 2014, and on each October1 thereafter, the foregoing rates shall be adjusted to refleet the increase or decrease in the CPI for the immediately preceding twelve (12) month period of June to June, but no increase or decrease shall exceed percent (3%) pe� annum. The Franchisee shall notify the City in writing of increases that are based on the CPI, as provided in this section, no less than thirty (30) days prior to their implementation. 12.1. Chan�ge of Law. The parties understand and agree that the Florida Legislature from time to time has made comprehensive changes in Solid Waste management legislation and that these and other changes in law in the future, whether federal, state or local, which mandate certain actions or programs that may require changes or modifications in some of the terms, conditions or obligations under this Agreement. Nothing contained in this 13 129 of 159 Agreement shall require any party to perform any act or function contrary to law. To the extent that any law effective after the effective date of this Agreement is in conflict with, or requires changes in, the provisions of services to be provided under this Agreement, the parties agree to enter into good-faith negotiations to determine whether the Franchisee's rates should be adjusted as a result of a change in law. 12.2. Limitation on Rate Changes. The Franchisee shall not be allowed a rate increase for any reason other than those expressly specified in this Agreement. Notwithstanding the foregoing, in the event that a federal, state or local entity imposes a fee, charge or tax after the date of this Agreement that applies to Franchisee's operations per se, such fee, charge or tax shal� be treated as a change in law and shall be passed through as a separate billed item after notice and confirmation by the City 12.3. Rate Adiustment Procedure. Should the Franchisee seek an'adjustment of any charges established and approved by the Council, other than the CPI Chanqes in Rates set forth in section 12.0 of this Agreement, then Franchisee shall notify the �ity in writing, setting forth the schedule of rates and charges which'it proposes and a written justification for the request. A public hearing shall'be held on the request. The request for a public hearing shall be submitted to the City with supporting data for review and presentation to the Council. The hearing may thereafter be continued from time to time as determined by the Council. The Council shall make a determination whether the adjustment in charges is necessary and justified under the circumstances provided herein and set forth in Franchisee's justification for rate adjustment. Article 13. General Obligations Of Franchisee 13.0. Prohibitions on Bioloqical, Biomedical, and Hazardous Waste. The Franchisee shall not Collect Biological Waste, Biomedical Waste, or Hazardous Waste and the Franchisee shall not deliver or dispose of any of the foregoing wastes at the County Landfill. Franchisee shall not Collect any Solid Waste that the Franchisee reasonably believes is Biological Waste, Biomedical Waste, or Hazardous Waste. The Franchisee shall immediately notify the Contract Manager if any Customer attempts to deliver such material to the Franchisee or the City. The City shall have the right to inspect the Solid Waste and Recyclable Materials Collected by the Franchisee at any time to determine whether the Solid Waste or Recyclable Materials contain Biological Waste, Biomedical Waste, or Hazardous Waste, and to require the Franchisee take appropriate action to ensure that the Franchisee's Customers do not deliver such materials to the Franchisee. The Franchisee shall promptly arrange and pay for the lawful removal and disposal of any Biological Waste, Biomedical Waste or Hazardous Waste that the Franchisee delivers to the County Landfill. 13.1. S illa e. The Franchisee shall not litter, and shall not spill Solid Waste or Recyclable Materials, anywhere in the City. Whenever the Franchisee is hauling Solid Waste or Recovered Materials, in the City, the Franchisee shall take all necessary steps to ensure that the material is contained, tied, or enclosed so that leaking, spilling and blowing of such material is prevented. In the event that any material or liquid spills, blows or leaks 14 130 of 159 from the Franchisee's vehicle, the Franchisee shall immediately clean up the spillage, leakage and litter at no cost to the City or the Customer. If a Customer or the Contract Manager notifies the Franchisee that its actions have caused litter, spillage, or leakage within the City, the Franchisee shall remedy such problem within 24 hours after being notified. In all such cases, the cost of any cleanup, remediation or damages shall be the sole responsibility of the Franchisee. 13.2. Financial Reports. Franchisee shall provide to the City annually a financial statement and report that includes an income statement showing the gross revenue received by the Franchisee from the Collection of Solid Waste and other services provided by the Franchisee under this Agreement. The,,report must include the opinion of a Certified Public Accountant, who has conducted an audit of the Franchisee's books and records in accordance with generally accepted accounting standards which include tests and other necessary procedures, that the financial statements are fairly presented in all material aspects and in conformity with generally accepted accounting procedures. The report also must include the Certified Public Accountant's opinion that t�te Franchisee has properly calculated and fully paid the franchise.fees that are due and owing to the City pursuant to the provisions of this Agreement. The annual audit shall be delivered to the City within one hundred and twenty days after the end of the Franchisee's fiscal year. The City may waive the requirement of an audited financial statement upon good cause. 13.3. Customer Complaints. If the City receives a complaint regarding the Franchisee's service under this Agreement, the complaint shall be immediately forwarded to the Franchisee by telephone or facsimile. The Franchisee shall respond to the complaint within twenty-four hours after the Franchisee receives the complaint. When the complaint is receiued after twelve o'clock noon on a Saturday or on a day preceding an approved holiday the Franchisee shall respond #o the complaint no later than the next day that is not a holiday or a Sunday. Upon resolution of the complaint, the Franchisee shall notify the City within twenty-four hours, by telephone or facsimile, of the action taken to resolve the complaint. 13.3.1 Record. The Franchisee shall keep a written record of all complaints it receives regarding the Franchisee's service under this Agreement. The Franchisee shall use a standard form.to record the pertinent facts regarding each complaint and how it was resolved. The form shall identify the time and date when a complaint was received, when the Franchisee responded to the complaint, and when the complaint was resolved. The Franchisee's records and forms shall be kept up to date and shall be maintained throughout the term of this Agreement. Copies of the complaints and forms shall be kept at the Franchisee's office and shall be available for inspection by the Contract Manager during normal business hours. 13.3.2. Notice of Certain Tvpes of Complaints. The Franchisee shall immediately notify the Contract Manager if the Franchisee receives a complaint involving a claim of personal injury, death, or property damage resulting from the Franchisee's actions in the City. The Franchisee shall provide the Contract Manager with a written report about 15 131 of 159 any such matters within three calendar (3) days after the Franchisee receives the complaint. 13.4. Customer Noncompliance. If the Franchisee refuses to Collect Solid Waste from a Customer because the Customer failed properly to prepare or place the Solid Waste for Collection, the Franchisee shall provide written notification to the Customer explaining why the Solid Waste was not Collected and what the Customer must do to properly prepare or place the Solid Waste for Collection. The Franchisee's initial notice may consist of the Franchisee's Collection crew leaving a written notice or tag on the Garbage Receptacle or Solid Waste in question. 13.5. Community Cleanups. The Franchisee shall perform at feast two community cleanups within the Residential Sofid Waste Franchise Area each calendar year. The times and locations of the community cleanup shaJl be selected by the Contract Manager after coordinating with the Franchisee. The Franchisee shall �rovide appropriate containers during each community cleanup at no cost to the City or to the sponsor. During the community cleanup, the Franchisee shall Collect only Garbage, Trash, Yard Trash, and Bulk Trash. The Franchisee shall transport these materials to the County Landfill for disposal at no cost to the Franchisee. 13.6. Collection for City Facilities. Franchisee shall provide collection services at City facilities at no charge, including special service for the four major City-sponsored festivals held annually at Riverview Park: 13.7. Uncontrollable Forces. Neither the County nor Franchisee shall be in default of this Agreement, nor shall the Franchisee be subject to the administrative charges set forth in Section 14 of this Agreement, if delays in or failure of performance are due to Uncontrollable Forces, the effect of which the-non-performing party could not avoid by the exercise of reasonable diligence. Neither party shall, however, be excused from performance if nonperformance is due to forces or events that are preventable, removable, or remediable and which the non=performing party could have, with the exercise of reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The non-performing party shall, within a reasonable time of being prevented or delayed from performance by an Uncontrollable Force, give written notice to the other party describing the circumstances and Uncontrollable Forces preventing continued performance of the obligations of this Agreement, and the expected time when performance in compliance with this Agreement will resume. 13.8. Contract Chanqes for Public Welfare. The City shall have the authority to make changes in this Agreement when such changes are deemed necessary and desirable for the public welfare. The City shall give the Franchisee reasonable notice of any proposed change and an opportunity to be heard concerning the proposed change. The Franchisee shall be reasonably and appropriately compensated for any additional services required of the Franchisee due to any modification in this Agreement under this paragraph. 16 132 of 159 13.9. Office. The Franchisee shall maintain an office in Indian River County. The Franchisee shall maintain two or more toll free telephone number(s) where service inquiries and complaints can be received by the Franchisee. The Franchisee's office shall be staffed with trained, responsible persons on duty during the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, except holidays. The Franchisee shall use either a telephone answering service or answering machine to receive service inquiries and complaints during those times when the office is closed. The Franchisee also shall develop a system, subject to the Contract Manager's approval, for receiving emergency calls from the public at anytime, and for communicating with the City regarding emergency matters. 13.10. Vehicles and Equipment. At all times the Franchisee shall have a sufficient number of trucks, Commercial Containers, and other equipment available and in good working condition so that the Franchisee can efficiently perform its contractua! duties under this Agreement. The Franchisee shall also have available reserve vehicles and equipment that can be put into service within �welve (12) hours of any breakdown or malfunction that can provide similar service to the Franchise Area. Vehicles used by the Franchisee in the performance of this Agreement shall`be clearly identified with the Franchisee's name, local phone number, truck number, and tare weight. Letters and number shall be at least four (4) inches high. 13.10.1 List. On or before March 31 of each year, the Franchisee shall provide the Contract Manager with a list of the trucks and other Colfection equipment that will be used by the Franchisee to provide services under this Agreement. The list shall include the license tag number #or each truck and the identification number (if any) for each Commercial Container. The Franchisee shall :revise and resubmit the list to the Contract Manager during the term of this Agreement if there are any changes to the list of the trucks, other Collectior� equipment, or_Commercial Containers. The requirements of this paragraph do not apply to: (a) trucks �nd other Collection equipment used in the City for 30 days or less; or (b) bona fide demonstration trucks and other Collection equipment. 13.10.2. Condition of Equ'ipment. At initiation of the Franchise all equipment must be no more than two (2) years old, and at no time in the Franchise shall equipment in excess of seven,(7) years old be utilized except on an emergency basis. All of the Franchisee's vehicles shall be kept in a clean, sanitary condition and in good repair. Any vehicle emitting excessive odor shall be taken out of service and washed prior to being placed back in service. All vehicles and auxiliary equipment shall be regularly maintained in a manner necessary to prevent the release or discharge of Solid Waste, Recyclable Materials, oil, hydraulic fluids, or other fluids into the environment. The Franchisee's vehicles shall not emit visible air emissions during normal operation. The Franchisee's vehicles shall be in compliance with all Applicable Laws, including, without limitation, laws concerning noise, air pollution, and traffic safety. � 7 133 of 159 13.10.3. Equipment Required on Vehicles. All collection vehicles shall carry a broom, a shovel, a fire extinguisher, absorbent materials and other equipment necessary to clean up any spilled materials. 13.10.4. Inspection of Vehicles and Equipment. The Contract Manager may inspect the operations, vehicles, and equipment of Franchisee at any reasonable time upon giving of reasonable notice and the Franchisee shall allow the Contract Manager to make such inspections. 13.11. Franchisee's Operations Manaqer. The Franchisee shall assign a qualified person or persons to be in charge of the Franchisee's operations within the County. Within three (3) days after the City signs this Agreement, the Franchisee"shalf provide the Contract Manager with a written list containing the names and telephone numbers of the Franchisee's operations manager and other key personnel, and the telephone numbers that are to be used to contact the Franchisee in the''event of an emergency. 13.12. Personnel. All of the Franchisee's emptoyees shall be properly trained and qualified to perform the tasks assigned to them. The Franchisee shall provide routine training in operating and safety procedures for all of the Franchisee's employees that are directly involved in the Collection or processing of Solid Waste or Recyclable Materials in the County. Each driver of the Franchisee's vehicles shaft at all times carry a valid Florida driver's license for the type of vehicle that is being driven. The Franchisee's employees shall wear a uniform, shirt, or vest bearing the Contractor's name whenever they are Collecting or transporting 5olid Waste or Recyclable Materials in the City. The Franchisee's personnel=shall not scavenge for:Solid Waste or Recyclable Materials. 13.12.1. Polite and Courteous Behavior. The Franchisee's employees shall treat all Customers in a polite and courteous manner. All personnel of Franchisee shall refrain from belligerent behavior and profanity. Franchisee's personnel shall not request tips or payment of any kind from Customers. The Franchisee shall promptly take appropriate action to correct any such behavior or language. 13.13. Employee Waqes and Benefits. The Franchisee shall comply with all Applicable Laws relating to wages, hours, overtime, disability, and all other matters relating to the employment and ;protection of employees, now or hereafter in effect. 13.14. Permits and Licenses. The Franchisee shall obtain, at its sole expense, any and all permits and licenses required by Applicable Law in connection with this Agreement and Franchisee shall maintain the same in full force and effect throughout the term of this Agreement. Any revocation of the Franchisee's licenses or permits shall be reported to the City within three (3) calendar days. 13.15. Public Entitv Crimes. No Franchisee may be a person or affiliate identified on the Florida Department of General Services "convicted vendor" list. This list is defined as consisting of persons and affiliates who are disqualified from the public contracting and purchasing process because they have been found guilty of a public entity crime. The � $ 134 of 159 Franchisee is required to comply with Florida Statutes Section 287.133, as amended, or its successor. The Franchisee shall notify the Contract Manager within three (3) days if the Franchisee is found guilty of public entity crime or placed on the convicted vendor list. 13.16. Non-Discrimination. The Franchisee, in performing under this Agreement, shall not discriminate against any worker, employee, or applicant or any member of the public because of race, creed, religion, color, sex, age, marital status, disability, or national origin, or otherwise commit an unfair unempioyment practice on such basis. 13.17. Natural Disasters and Other Emerqencv Conditions - Variances from Normal Services. In the event of a natural disaster or other emergency, the Contract Manager may grant a variance from the normal requirements of this Agreement. Among other things, the Contract Manager may allow the Franchisee'to use other routes, schedules, and disposal sites during the time period in which an Uncontrollable'Force prevents the Franchisee from complying with the normal requirements in this Agreemen�: Jn such circumstances, the City shall ask the local med�a to inform the public about the changes in the Franchisee's services As soon as practicable after such natural disaster or Uncontrollable Force, the Franchisee shall resume normaf operations. In such cases, the Franchisee shall make the City a priority. 13.17.1. Franchisee Unable to Provide Contracted Services. In the event that the Franchisee is unable to provide adequate services during an emergency or other event involving an Uncontrollable Force, the City may hire other Contractors to provide those services. In such case, the City reserves the right to charge the Franchisee for all costs and expenses that the City incurs while providing the services that the Franchisee is obligated to provide pursuant to the requirements of this Agreement, subject to setoff for the amounts that would have been paid to Franchisee for the services. 13.17.2. Rapid Recovery from Disaster. The clean-up from some natural disasters may require that the Franchisee hire additional equipment, employ additional personnel, or work existing personnel on overtirne hours to clean debris resulting from the natural disaster. The Franchisee shall not receive any extra compensation (i.e., above the normal compensation provided in th`is Agreement) to recover the costs of rental equipment, additional personnel, overtime hours, or other expenses unless the Franchisee has received written authorization and approval from the Contract Manager prior to the work being performed. All such costs may be audited by the City prior to payment. 13.18. Disaster Response Plan. The Franchisee shall develop and provide to the City a disaster preparedness and response plan by March 31 of each year. This plan shall include provisions for additional personnel and equipment and shall establish a reasonable, verifiable basis for any charges. In the event that excess work resulting from a natural disaster is compensable by the Federal Emergency Management Agency, or any other local, state, or federal agency, any compensation to the Franchisee shall be subject to such agency's prior approval. The Franchisee shall be familiar with Federal Emergency Management Agency documentation requirements and shall provide the necessary documentation for submission of cost reimbursement requests. The � 9 135 of 159 Franchisee shall be required to submit its Federal Emergency Management Agency documentation of costs as a condition of payment for additional personnel and equipment pursuant to this section. 13.19. Insurance. 13.19.1. Workers' Compensation Insurance. Workers' Compensation coverage must be maintained in accordance with statutory requirements as well as Employer's Liability Coverage in an amount not less than $100,000.00 per each accident, $100,000.00 by disease and $500,000.00 aggregate by disease. 13.19.2. Liabilitv Insurance. The Franchisee shall, during the term of this Agreement, maintain in full force and effect commercial general fiability insurance and automobile liability insurance, which specifically covers all exposures incident to the Franchisee's operations under this Agreement. Such insurance shall be with a company;authorized to do business in the State of Florida and which possesses a minimum, current rating of B+ Class VIII in "Best's Key Rating Guide." Each;policy,shall be in an amount of not less than $1,000,000.00 Combined Single Limit for personal bodily injury, including, without limitation, death, and property damage liability and the general liability shall include but not be limited to coverage for Premises/Qperations, Products/Compieted Operations, Contractual, to support the Franchisee's Agreement or indemnity and Fire Legal Liability. In addition to the above liability limits, the Franchisee shall maintain a$5,000,000.00 umbrella and/or excess liability coverage. Liability: policy(ies) shall be endorsed to show the City as an additional named insured as its interests may appear, and shall also provide that insurance shall not be canceled, limited, or non-renewed until after thirty (30) days written notice has been given to the' City. Franchisee shall provide the City with copies of current certificates of afl required'insurance concurrently with execution of this Agreement by Franchisee. Franchisee expressly understands and agrees that any insurance protection fumished.by Franchisee shall in no way limit its liability to the City or its responsibility to indemnify and save harmless City and the officials, officers, and employees of the City under the provisions of this Agreement. 13.20. Indemnification. The Franchisee agrees to hold the City and the officials, officers, and employees of the City harmless from any and all liabilities, losses, penalties, costs or damages the City, its officials, officers, and employees may suffer as a result of any claims, demands, suits, or judgments against the City, its officials, officers, and employees arising out of or in any way related to the acts or omissions of the Franchisee or its'employees under this Agreement. The Franchisee shall not be required to indemnify or hold the City harmless for any act or omission caused by the sole negligence or willful misconduct of the City or its officials, officers, or employees. This indemnification and hold harmless agreement shall survive the termination or expiration of this Agreement. 13.21. Damaqe. The Franchisee including, without limitation, its agents, employees and subcontractors, shall perform all services under this Agreement in such a manner so as 20 136 of 159 to avoid damage to public and private property and shall promptly repair or pay for any such damage in conjunction with its insurance adjustment procedures. Article 14. Administrative Charges to Franchisee for Failure to Pertorm 14.0. Failure to Pay Franchise Fee. Franchise fee payments received after the fifteenth (15th) day of the month shall bear interest at 18% per year. Except for an Uncontrollable Force, franchise fee payments received more than twenty_ (20) days after the due date shall be subject to an administrative fee of $500 for the frst nanpayment; $1,500 for the second nonpayment; and $5,000 for the third nonpayment: Three late payments in any one calendar year, or failure to make payment within thirty (30) days..after the due date, unless due to an Uncontrollable Force shall result in termination of this Agreement. 14.1. Customer Service Complaints. All Customer service complaints received by the Franchisee or Contract Manager and reported to the Franchisee shall be promptly resolved pursuant to applicable terms of this Agreernent. 'Customer service Complaints shall not include Customer informatianal requests or Recycling Container requests. Customer service complaints may include, but are not limited to, the following: .1 Commingling Solid Waste with Yard Trash .2 Throwing of Garbage, Receptacles .3. Failure to collect Solid Waste on schedule .4 Failure to replace Garbag:e Receptacles or Commercial Containers to the point of collection. 14.1.1. In the event Customer service complaints received from Residential Solid Waste Collection Service customers exceed any of the following percentage(s): Complaint Tvpe Annual % Monthly % Garbage, Trash and Damage 4% 0.5% Yard Trash 2.5% 0.35% of the Customers in the Franchise Area served by the Franchisee as determined on the first day of each calendar year, the Contract Manager may levy $100.00 administrative charges for each incident exceeding these percentages, on a calendar year or monthly basis as is appropriate. 14.2. jLeft Intentionallv Blank� 14.3. [Left Intentionally Blankl 14.4. Changing Scheduled Collection Days without Approval. Changing scheduled Collection days without approval will result in a$2000.00 administrative charge per incident. 2 � 137 of 159 14.5. Failure to Clean Up Spillaqe. Failure to clean up spillage of any substance required to be cleaned up by and in accordance with the City of Sebastian requirements will result in a$200.00 administrative charge per day, per incident. 14.6. Failure to Complete Route. Failure to complete, either partially or totally, a route on the regular scheduled collection day shall result in an administrative charge of $1,000 for each route per day not completed, provided that no such fine will be charged due to an Uncontrollable Force or if the route is more than ninety percent (90%) complete and is thereafter completed within five (5) hours. 14.7. Other Performance Standards and Administrative Cnarqes. The Contract Manager may also levy administrative charges for all other infractions of this Agreement at $100.00 per day per incident, beginning with the third reported incident, without regard to the percentage of customer complaints including, without limitation: .1. Failure to provide clean, safe, sanitary Collection equipment .2. Failure to maintain office hours as required .3. Operator not licensed .4. Collection Vehicle not licensed - .5. Failure to provide documents and reports in a tirnely and accurate manner .6. Failure to cover materials on Collection vehicle .7 Collection vehicles left standing on street'unnecessarily .8. Collection employees out of uniforrn .9. Not providing schedule and route maps .10. Speeding,'upon conviction .11. Failure to Collect Solid Waste or Commercial Solid Waste for any Customer who has been missed more than three times per calendar year .12. Fai(ure to respond to Customer calls in a timely and appropriate manner 14.9. City Repair of DarnacZe. In'the event the Franchisee fails to repair damages caused by Franchisee pursuant to fhis Agreement, the Contract Manager may arrange for the repairs and impose an administrative charge to the Franchisee for the cost of the repairs and any applicable administrative expenses. 14.10. Pavment of Administrative Charqes by Franchisee. The Contract Manager shall notify the Franchisee' in writing of the County's intent to assess any administrative charges provided under this Agreement. The Contract Manager shall provide to Contractor an itemized written list of each instance in which Franchisee failed to meet the performance standards specified in this Agreement, including the nature of the failure, date, time, location, and any other available and applicable information, with a reasonable degree of specificity as allowable under the circumstances. Such itemized list will be provided to the Franchisee monthly, on or before the tenth (10th) calendar day of each month. The Franchisee shall have two (2) weeks following receipt of such list to pay the entire amount of the Administrative Charges or to contest same as set forth 22 138 of 159 herein. In the event the Franchisee wishes to contest such assessment it shall, within ten (10) calendar days after receiving such notice, request in writing an opportunity to be heard by the Contract Manager and present its explanation and any basis on which the Franchisee believes any recorded failure to perForm within the standards of this Agreement is inaccurate. The Contract Manager shall notify the Franchisee in writing of any action taken with respect to the Franchisee's claim. Franchisee may further appeal, in writing, the decision of the Contract Manager to the City Manager, who shall conduct a review of all of the facts and circumstances, and make a determination in writing. The decision of the City Manager will be final. Article 15. Default 15.0. Causes of Default . The City may terminate this Agreement, except as otherwise provided below in this section, by giving Franchisee thirty (30) days ad�ance written notice, to be served as hereafter provided, upon the happening of any one of the following events: .1. Filinq of Insolvency or Bankruptcy. Franchisee shall take the benefit of any present or future insolvency statute, or shall make a general assigr�ment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement for its reorganization or the re-adjustment of its indebtedness' under the federal bankruptcy laws or under any other law or state of the United States or any;state thereof, or consent to the appointment of a receiver, trustee or liquidator of al1 or substantially all of its property; .2. Declaration of Bankruptcy. By order or decree of a Court, Franchisee shall be adjudged bankrupt or an order shall'be made approving a petition filed by any of its creditors or by any of the stockholders of the Franchisee, seeking its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any law or statute of the United States or of any state thereof, provided that if any such judgment or order is stayed or vacated within sixty (60) days after the entry thereof, any notice of cancellation shall be and become null, void, and of no effect; unless such stayed judgment or order is reinstated in which case, ;said default shall be deemed immediate; .3. Control by Receiver, Trustee, or Liquidator. By or pursuant to or under authority of any legislative act, resolution or rule or any order or decree of any Court or governmental board, agency or officer having jurisdiction, a receiver, trustee or liquidator shall take possession or control of a11 or substantially all of the property of the Franchisee, and such possession or control shall continue in effect for a period of sixty days; or .4. Failure to PerForm Services under Aqreement. The Franchisee has defaulted, by faifing or refusing to perform or observe the terms, conditions or covenants in this Agreement or has wrongfully failed or refused to comply with the instructions of the Contract Manager relative thereto, whether such default is considered minor or major, and such default is not cured within thirty (30) days of receipt of written notice by City to do so, or if by reason of the nature of such default, the same cannot be remedied within thirty (30) days following receipt by Franchisee of written demand from City to do so, Franchisee fails 23 139 of 159 to commence the remedy of such default within said thirty (30) days following such written notice or having so commenced shall fail thereafter to continue with diligence the curing thereof (with Franchisee having the burden of proof to demonstrate that the default cannot be cured within thirty (30) days, and that it is proceeding with diligence to cure such default, and such default will be cured within a reasonable period of time). Failure to make timely payment of the Franchise Fee shall not be considered a curable default. .5. Repeated Unauthorized Collection. Franchisee has on four (4) occasions during the term of this Agreement been found to have Collected Residential Solid Waste generated from outside the Residential Solid Waste Franchise Area from non-Customers without the prior written approval of the Contract Manager. 15.1. Interim Collection Services. Notwithstanding anything contained herein to the contrary, if Franchisee fails to provide Residential Solid Waste Collection Service for a period of three (3) consecutive scheduled Collection days, the City may obtain the Franchisee's Collection records on the fourth Collection day to provide applicable interim Collection services until such time as the Franchisee is again able to perform pursuant to this Agreement; provided, however, if the Franchisee is unable for any reason or cause to resume perFormance at the end of ten (10) working days, all liability of the City under this Agreement to the Franchisee shall cease and this Agreement may be deemed immediately terminated by the City. 15.2. Habitual Violator. Notwithstanding the foregoing and as supplemental and additional means of termination of this Agreement under this`section, in the event that Franchisee's record of perFormance shows that Franchisee has frequently, regularly or repetitively defaulted in the performance of any of the covenants and conditions required herein to be kept and perFormed by Franchisee, in the reasonable opinion of the Clty and regardless of whether Franchisee has corrected each individual default, Franchisee shall be deemed a"habitual viofator," shall forFeit the right to any further notice or grace period to correcf or cure future defaults, and all of such defaults shall be considered cumulative and, collectively, shall constitute a condition of irredeemable default. The City shall thereupon issue a final warning letter to Franchisee, setting forth in detail all of the facts and circumstances constituting the determination of "habitual violator." Thereafter, any single defauit by Franchisee of whatever nature shall be grounds for immediate termination of this Agreement. In the event of any such subsequent default, the City may terminate this Agreement upon the giving of written final notice to Franchisee, such termination to be effective on the date set forth in the final notice, and all contractual fees due under this Agreement plus any and all charges and interest shall be payable to such date, and Franchisee shall have no further rights under this Agreement. Immediately upon receipt of such final notice, Franchisee shall proceed to cease any further perFormance under this Agreement. 15.3. Date of Aqreement Termination for Default. Except as otherwise provided in this section, termination shall be effective upon the date specified in City"s written notice to Franchisee and upon such date this Agreement shall be deemed immediately terminated and upon such termination all liability of the City under this Agreement to the Franchisee 24 140 of 159 shall cease, and the City shall be free to negotiate with any Person for Collection services. The Franchisee shall reimburse the City for all direct and indirect costs of providing interim Collection service. Article 16. General Provisions 16.0. Survival. Except as otherwise expressly provided herein, each obligation in this Agreement to be perFormed by Franchisee shall survive the terrnination or expiration of this Agreement. 16.1. Waiver. The failure of the City at any time to require perFormance by the Franchisee of any provision hereof shall in no way affect the right of the City thereafter to enforce the same. No waiver by the City of any breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 16.2. Remedies. No remedy herein conferred upon any party is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every such remedy giver� under this Agreement or now or hereafter existing at law or in equity or by statute or otherwise. No single or partial exercise by any party or any right, power, or -remedy under this Agreement shall preclude any other or further exercise thereof. If any legal action or other proceeding is brought for the enforcement of #his Agreement or because of an alleged dispute, breach, -default, or misrepresentation in connection with any provisions of this Agreement, each party shall bear its own costs. 16.3. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Florida. Any and all legal action necessary to interpret or enforce the Agreement will be held in Indian River Gounty and the Agreement will be interpreted according to the laws of Florida. The parties hereto expressly waive all right to trial by jury of any dispute relating to this Agreement. 16.4. Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement, or the occurrence of any event rendering any portion or provision of this Agreement void, shall in no way affect the validity or enforceability of any other portion or provision of the Agreement: Any void provision shall be deemed severed from the Agreement and the balance of the Agreement shall be construed and enforced as if the Agreement did not contain the particular portion or provision held to be void. The parties further agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Section shall not prevent the entire Agreement from being void should a provision which is of the essence of the Agreement, at the option of the City, be determined to be void. 25 141 of 159 16.5. Assignment and Subcontractinq. 16.5.1 Assignment of Entire Aqreement. No assignment of this Agreement or any right occurring under this Agreement shall be made in whole by the Franchisee without the express prior written consent of the City. The City shall have full discretion to approve or deny, with or without cause, any proposed assignment by the Franchisee. Any assignment of this Agreement made by the Franchisee without the express prior written consent of the City shall be null and void and shall be grounds for the City to declare a default of this Agreement and immediately terminate this Agreement by giving written notice to the Franchisee. Upon the date of such notice, this Agreement shall be deemed immediately terminated, and upon such termination all liability of the City under this Agreement to the Franchisee shall cease, and the City shall be free to negotiate with any Person for the services that are the subject of this Agreement. In the e�ent of any permitted assignment, assignee shall fully assume all the liabilities of the Franchisee under this Agreement. 16.5.2. [Left Intentionally Blankl 16.6. Modification of the Agreement. This Agreement constitutes the entire agreement and understanding befinreen the parties hereto and supersedes all prior and contemporaneous agreements and understandings, representations and warranties, matters, whether oral or written, relating to such matters and this Agreement shall not be considered modified, altered, changed, or amended in any respect unless in writing and signed by the parties hereto. Such modification shall be in the form of an Amendment executed by both parties. 16.7. Independence of Parties. 1t is understoad and agreed that nothing herein contained is intended or should be construed:as in any way establishing the relationship of co-partners or joint venturers between the parties hereto, or as constituting the Franchisee as the agent, representative, or. employee of the City for any purpose whatsoever. The Franchisee is to be and shall remain an independent contractor with respect to all services perFormed under this Agreement. 16.8. Resolution of Disputes. Except as specifically provided herein, any and all disputes or disagreements arising out of this Agreement shall be subject to the decision of the Contract Manager, with right of the Franchisee to appeal to first the City Manager, and thereafter to the Council, whose decision shall be final and binding. During any dispute, the Franchisee shall continue to render full compliance with this Agreement regardless of the nature of the dispute, unless the City specifically notifies the Franchisee otherwise. 16.9. Representations of the Franchisee. The Franchisee represents that: (a) it is a corporation duly organized under the laws of the State of Florida; (b) this Agreement has been duly authorized, executed, and delivered in the State of Florida; and (c) it has the required power and authority to perForm this Agreement. 26 142 of 159 16.10. Informed Consent. The Franchisee agrees that the terms of this Agreement have been completely read, are fully understood, and are voluntarily accepted; that Franchisee affirmatively states that it has had the benefit of advice from counsel of its own choosing before executing this Agreement; that Franchisee has voluntarily and with full understanding executed this Agreement and accepted its terms and conditions. The terms of the Agreement shall not be construed against either party as the "drafter" of the document. 16.11. Notices. All dealings, contacts, notices, and payments between the Franchisee and the City shall be directed by the Franchisee to the Contr�ct Manager and by the City to the Franchisee's Project Manager, each of whom shail be designated and identified to the other party, in writing, upon execution of this Agreement. Any notice, demand, communication, or request required or permitted under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid as follows: As to the City: City of Sebastian 1225 Main, Street Sebastian, FL 32958 Attention: City Manager eopy to: City Attorney As to the Franchisee: Notices shall be effective when received at the address as specified above. Changes in the respective address to which such notice is to be directed may be made from time to time by written notice. Facsimile transmission is acceptable notice effective when received, provided, however, that facsimile transmissions received (i.e.; printed) after 4:30 p.m. or on weekends or holidays, will be deemed received on the next day that is not a weekend day or a holiday. The original of the notice must additionally be mailed. 27 143 of 159 16.12. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original copy and all of which shall constitute but one and the same instrument. 16.13. Headinqs. Captions and headings in this Agreement are for ease of reference only and shall not constitute a part of this Agreement nor affect its meaning, construction, or effect. IN WITNESS WHEREOF, the parties date and year above written. Attest: : Witness Signature:. Print Name: hereto have executed this Agreement as of the CITY OF SEBASTIAN By: Date: ; FRANCHISEE: By: Name and Title: - Witness Signature: Print Name: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged (AFFIX CORPORATE SEAL) before me this day of , 2002 by as MANAGEMENT INC. OF'FLORIDA., a Florida corporation, is personally known to me or has produced identification. (NOTARY SEAL) of WASTE on behalf of same. He/she as NOTARY SIGNATURE: PRINTED NOTARY SIGNATURE Notary Public, State of Commission Number: My Commission Expires: 28 144 of 159 �� SEs�sr�A�l _ �. HOINE OF PELJUN ISWVD Citv Council Subject: Advisory Regarding Acceptance of Credit Card Payments at City Hall. City Manager da Item Agenda No. 1.3. (� � 7 Department Orig � : Administrative Services _� City Attorney: >' ;� City Clerk: ��'`a��Vv� Date Submitted: January 16, 2013 For Agenda of: January 23, 2013 Exhibits: • Flarida Statutes Section 501.0117 • Proposal bv Point and Pay LLC with Attachments SUMMARY For some time, we have often been asked to allow the use of credit cards to pay building permits, cemetery charges and other payments we collect at the main cashier window at City Hall. We have just recently been able to devote our energy toward researching the best available method to accomplish this. An overriding concern was that there are substantial fees charged by the bank/institution that is used to process the charges back to the credit card companies and initiate a deposit to the City's bank account. (The Golf Course pays about $25,000 for these charges.) Our initial thinking was that we would establish a"convenience fee" based on a percentage of the transaction, such that the City's cost would be neutralized. However, State law does not allow the City to collect a fee that exceeds the credit card company's charge and the fees vary between American Express, Visa, Master Card and other cards that could be used. The credit card companies also have rules that seem to prohibit more that a flat charge of $3.95 on any transactions. We found that most other surrounding Cities and Counties (Brevard County, Melbourne, Palm Bay) use a third party vender known as Point and Pay LLC and avoid these issues. Other companies service Vero Beach and Indian River County Tax Collector but their charge is 2.5%, which will result in a higher fee to the customer than Point and Pay LLC. The arrangement we are making with the firm "Point & Pay LLC" will be at no cost to the City. The credit card user will be charged a convenience fee of $2.95 on the first $100 and another $2.00 for every $100 increment above that. Thus, if they are making a$200 payment they will pay $4.95; a$1,000 payment they will pay $20.95; $3,000 will pay $60.95. The contract is for a one year term and they provide the additional equipment, training and reporting. We expect to have this process in place within the next few weeks for collections made at the cashier window at City Hall. We may want to eventually offer this for internet payments but will need further study to adequately address the more complex accounting issues this will involve. RECOMMENDED ACTION Informational only. 145 of 159 Statutes & Constitution :View Statutes : Online Sunshine Page 1 of 1 Select Year: 2012 �► Go The 2oi2 Florida Statutes Title XXXIII Chapter 501 View Entire REGULATION OF TRADE, COMMERCE, INVESTMENTS, CONSUMER Cha ter AND SOLICITATIONS PROTECTION 501.0117 Credit cards; transactions in which seller or lessor prohibited from imposing surcharge; penalty.— (1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card. A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment. Charges imposed pursuant to approved state or federal tariffs are not considered to be a surcharge, and charges made under such tariffs are exempt from this section. A convenience fee imposed upon a student or family paying tuition, fees, or other student account charges by credit card to a William L. Boyd, IV, Florida resident access grant eligible institution, as defined in s. 1009.89, is not considered to be a surcharge and is exempt from this section if the amount of the convenience fee does not exceed the total cost charged by the credit card company to the institution. The term "credit card" indudes those cards for which unpaid balances are payable on demand. This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, if the discount is offered to all prospective customers. (2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. History.—ss. 1, 2, ch. 87-43; s. 3, ch. 2010-219. Copyright O 1995-2013 The Florida Legislature • Privacy Statement • Contact Us 146 of 159 http://www.leg.state.fl. us/statutes/index.cfm?App_mode=Display_Statute& Search_String=... 1 /8/2013 Page 1 of 2 Kenneth Killgore _ _ __ _ From: Cindy Bogacki [cbogacki@pointandpay.com] Sent: Monday, January 14, 2013 2:15 PM To: Kenneth Killgore Subject: RE: Estimated Volumes Attachments: e-services agreement-City of Sebastian.docx; Point and Pay Client Application-City of Sebastian.docx; Point and Pay Banking Information-City of Sebastain.docx Hello Mr. Killgore, Thank you for the information. Based on the number, I can offer the City of Sebastian: • Convenience fee: $2.95 for the first $100 payment, $2 additional for every $100 thereafter. Ex. $1-$100= $2. 95 $101-$200=$4. 95 $201-$300=$6.95 • All card types are accepted: Visa, MasterCard, Discover and American Express. Please note that we can revisit the fee structure in a year to see how many payments are collected. The City of Sebastian will not pay anything for this service because the fee is passed on to the customer. Included in this service is application set-up, training, maintenance, 24/7 customer service, client service, customizable reporting and many other features. I've attached: 1. E-service Agreement 2. Banking Information 3. ClientApplication Please feel free to contact me with any further questions. Have a great day! Cindy Bogacki Sales Executive (�d� Point� Pay 110 State Street E, Suite D Oldsmar, FL 34677 Office: 888.891.6064 x 1509 Mobile: 954.444.2208 cbogacki@pointandpay.com www.pointandpay.com CONFIDENTIALITY NOTICE This e-mail message and any attachments are only for the use of the intended recipient and may contain information that is privileged, confidential or exempt from disclosure under applicable law. If you are 147 of 159 1/17/2013 POINT AND PAY E-PAYMENT SERVICES AGREEMENT Parties: Point and Pay LLC ("PNP") A subsidiary of NAB, doing business in North Carolina Terms SECTION 1 E-PAYMENT SERVICES 1.1 Access to Payment Modules 1.1.1 Pursuant to this E-Payment Services Agreement (this "AgreemenY'), PNP grants Client a limited, non-exclusive, non- transferable and terminable license for the duration of the Term to use the electronic payment services (the "Services") and payment modules (each, a"Module") chosen in the attached client application ("Client Application") to enable Client's customers ("Customers") to make payments to Client using a Payment Device. "Payment Device" means the payment type(s) chosen by Client on the Client Application. A description of all Modules, Services, training and support offered by PNP is attached as Exhibit A(the "Services Description"). 1.1.2 At the time of ClienYs execution of this Agreement, Client shall also return the completed Client Application to PNP. Subject to the terms and conditions of this Agreement, the Services may be also be used by the affiliated offices, bureaus, agencies or departments of Client ("Affiliates"). Each Affiliate shall complete a Client Application prior to commencement of the Services. 1.2 Client Representatives PNP will provide ClienYs authorized representatives with a logon and password to access the Counter Module. Client shall be solely responsible for maintaining the confidentiality and security of the logons and passwords provided by PNP. Client will cause each of its representatives to change the initial password, keep the passwords confidential, refrain from sharing passwords andlor logon information with any unauthorized user, and use no other password to access the Counter Module. PNP shall be entitled to rely on any communications it receives under Client's passwords, logon information, andlor account number as having been sent by Client, without conducting any further checks as to the identity of the user of such information. PNP will not be responsible for the operability or functionality of any of ClienYs computer equipment, system, browser or Internet connectivity. 1.3 Payment Device Transactions All Payment Device transactions using the Services will be processed through a secured link. The parties to each Payment Device transaction will be the Customer cardholder, the Client and PNP. City of Sebastian, FL]("ClienY') 1.4 Service Promotion Client will use reasonable efforts to promote the Services and build awareness of the Services with its customers through various media including, but not limited to: • Print: Bill inserts, counter displays, and announcements in ClienYs newsletter Online: Home page announcements with an easily accessible, one-click link to payments page. PhonellVR: Pre-recorded message with the ability to transfer to payments IVR (e.g., "Press 2 to make a paymenY') or provide the IVR phone number to call. Joint Press Releases: The parties shall mutually agree upon press releases announcing the availability of electronic payment services and the partnering of Client and PNP. 1.5 Trademark License PNP grants Client a limited, non-exclusive, non-transferable license to use the PNP trademarks, service marks and logos provided by PNP to Client (the "Trademarks") solely in connection with Client's promotion of the Services to Customers. Client shall not alter the Trademarks nor use the Trademarks in any way which is disparaging, dilutive or otherwise adversely affects the reputation of PNP. 1.6 Client Logo License Client grants PNP a limited, non-exclusive, non-transferable license to use its applicable logos, copyrighted works and trademarks ("Client Marks") solely in connection with the Services provided to Client. Client shall provide the Client Marks to PNP for use with the Services. Client represents that it has all intellectual property rights required for ClienYs and PNP's use of Client Marks, and shall indemnify PNP against any third party claims that the Client Marks infringe the intellectual property rights of a third party. PNP E-Payment Services Agreement v2.0 rev 071008 148 of 159 SECTION 2 COMPENSATION 2.1 Services Transaction Fee PNP will charge the transaction fee to use the Services set forth on the Client Application. If Services fees are charged directly to Customers by PNP, Customers will receive a notice each time they use the Services stating that the Services are provided by PNP and that a convenience fee is charged for use of the Services. PNP may change the amount of such fee by notifying Client of such new amount at least thirty (30) days prior to such change. 2.2 Activation Fee If applicable, Client shall pay the one-time Activation Fee set forth on the Client Application. If the Activation Fee or any portion of the Activation Fee is waived by PNP and the Client does not implement the Service under this Agreement within six months after the Effective Date, other than due to a material breach by PNP, the waived portion of the Activation Fee shall become immediately due and payable. 2.3 Charge-backs and Returns Unless otherwise specified in the Client Application, PNP will set off (a) the amount of any charge-backs, refusals to pay and returns from any amounts otherwise owing by PNP to Client and (b) a transaction handling fee for charge-backs and non- sufficient funds (NSF) as specified in the Client Application 2.4 ACH Debit of Fees Client hereby authorizes PNP, and any subsidiary or successor thereof, solely with respect to amounts due pursuant to this Agreement antl any subsequent agreements between Client and PNP, including but not limited to service fees, transaction fees, charge-backs and returns as set forth in Sections 2.1 and 2.3 of this Agreement, to initiate Automated Clearing House ("ACH") Authorizations to credit and debit ClienYs bank account as set forth on the Banking Authorization Form attached hereto as Exhibit B or otherwise provided by Client. Client acknowledges that it will be subject to a$25 reject fee if items are returned for insufficient funds. SECTION 3 INTELLECTUAL PROPERTY; CONFIDENTIALITY 3.1 No Transfer or License Except for the rights expressly granted to Client in this Agreement, no PNP Intellectual Property Right is transferred or licensed to Client pursuant to this Agreement, by implication or otherwise. PNP reserves and retains all rights, title and interests in and to the PNP Intellectual Property Rights, and all copies, revisions, modifications, updates, and upgrades thereof. Client agrees not to remove, alter or destroy any copyright, patent notice, trademark or other proprietary markings or confidential legends placed on or within any portion of the PNP lntellectual Property Rights. For purposes of this Agreement, "Intellectual Property Rights" means all the inteilectual property, intlustrial and other proprietary rights, protected or protectable, under the laws of the United States, any foreign country, or any political subdivision thereof, including (a) ali trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers, (b) copyrights, moral rights (including rights of attribution and rights of integrity), (c) all trade secrets, inventions, discoveries, devices, processes, designs, techniques, ideas, know-how and other confidential or proprietary information, whether or not reduced to practice, (d) all domestic and foreign patents and the registrations, applications, renewals, extensions and continuations (in whole or in part) thereof, and (e) all goodwill associated with any of the foregoing and (fl all rights and causes of action for infringement, misappropriation, misuse, dilution or unfair trade practices associated with (a) through (d) above. 3.2 Ownership and Use of PNP Materials Any software developed by or on behalf of PNP for use in connection with the Services remains the exclusive property of PNP. Ciient will not seil, transfer, barter, trade, license, modify or copy any such software. Web pages accessible through use of the Services are the copyrighted intellectuai property of PNP and may not be copied in whole or part by anyone. Any training materials (including, but not limited to, webinars and manuals) provided to Client by PNP shall remain the exclusive property of PNP. PNP grants Client and ClienYs personnel a limited, non- exclusive, non-transferrable license to use and to make copies of the training materials with its personnel solely in connection with the Services. Training materiais may not be modified by Client or its personnel or disclosed to any third party, including ClienYs end-user customers. Client shall ensure all personnel shall complete and review all training materials prior to using the Services. 3.3 Reverse Engineering Client will not reverse engineer, reverse assemble, decompile or disassemble any of PNP's intellectual property, nor will Client attempt to do so or enabie any third party to do so or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. Client is expressly prohibited from sublicensing use of the Service to any third parties. If Client becomes aware that any person has engaged or is likely to have engaged in any of the activities described in this Section 3.3, Client will promptly notify PNP. PNP E-Payment Services Agreement v2.0 rev 071008 149 of 159 2 3.4 Confidentiallnformation 3.4.1 Any Confidential Information provided by PNP to Client pursuant to this Agreement will remain the exclusive property of PNP. Client will disclose such Confidential Information only to those of its representatives and employees who need to know such Confidential Information for purposes of performing this Agreement, who are informed of the confidential nature of the Confidentia� Information and who agree, for the benefit of PNP, to be bound by the terms of confidentiality in this Agreement. Client will, and will cause each of its representatives and empioyees, to keep confidential and not to disclose in any manner whatsoever any Confidential Information provided by PNP pursuant to this Agreement, and not to use such Confidential Information, in whole or in part, directiy or indirectly, for any purpose at any time other than for the purposes contemplated by this Agreement. Notwithstanding the foregoing, if Client is a city, county, township or similar entity, or government agency or department thereof, Client may disclose Confidential Information as necessary to comply with applicable public records laws. 3.4.2 For purposes of this Agreement, "Confidential Information" means all nonpublic or proprietary information of PNP, including proprietary, technical, development, marketing, sales, operating, performances, cost, know-how, business and process information, computer programs and programming techniques, security features (including, without limitation, multi- level access and log-in features, audit trail setup, interfaces between the Counter Module and the Internet or IVR Modules), all record bearing media containing or disclosing such information and techniques, and anything marked confidential, that is disclosed by PNP to Client pursuant to this Agreement. Confidential Information also includes the terms and conditions of this Agreement. 3.5 Exclusions The term Confidential Information will not apply to information that: (a) is or becomes generally available to the public other than as a result of a disclosure by Client in breach of this Agreement; (b) was within Client's possession prior to its disclosure by or on behalf of PNP, provided that the discloser of such information was not known by Client to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, PNP with respect to such information; (c) becomes available to Client on a non- confidential basis from a source other than PNP, provided that such source is not known by Client to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, PNP with respect to such information; or (d) is developed independently by Client, as demonstrated by the written records of Client, without use of such information. The confidentiality obligations of Client pursuant to this Agreement will not apply to any Confidential Information of PNP that Client is legally compelled to disclose. In the event Client becomes legally compelled to disclose any Confidential Information provided pursuant to this Agreement, Client will provide PNP with prompt written notice so that PNP may seek a protective order or other appropriate remedy or waive compliance with the confidentiality provisions of this Agreement. 3.6 Failure to Comply If Client fails to comply with any of its obligations pursuant to this Section 3, PNP will have the right to immediately terminate this Agreement by providing written notice of such termination to Client. 3.7 Survival The rights and obligations of the parties provided for in this Section 3 will survive any expiration or termination of this Agreement or its term. SECTION 4 WARRANTIES; DISCLAIMER 4.1 Warranties 4.1.1 Each party represents and warrants that it has the full legal right, authority and power to enter into this Agreement and perform its obligations hereunder. 4.1.2 PNP represents and warrants that the Services will be provided in a professional, workman-like manner consistent with industry standards. 4,2 Disclaimers 4.2.1 PNP does not represent that ClienYs or its Customers use of the Services will be uninterrupted or error-free, or that the system that makes the Services available will be free of viruses or other harmful components resulting from the Internet or any third party providers or products outside the control of PNP. 4.2.2 EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 4, PNP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED TO CLIENT ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. PNP E-Payment Services Agreement v2.0 rev 071008 150 of 159 SECTION 5 LIMITATIONS OF LIABILITY AND OBLIGATION 5.1 Damages and Liability Limit IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS. EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY RELEASES THE OTHER PARTY AND ALL OF THE OTHER PARTY'S AFFILIATES, EMPLOYEES, AND AGENTS FROM ANY SUCH DAMAGES. IN NO EVENT WILL PNP HAVE OR INCUR ANY LIABILITY TO CLIENT OR ANY THIRD PARTY IN EXCESS OF THE AGGREGATE COMPENSATION RECEIVED BY PNP FOR THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM FOR SUCH LIABILITY. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. 5.2 Refusals of Payment PNP will not be liable for charge-backs or other refusals of payment initiated by any Customer. All such charge-backs and other refusals of payment will be refunded by PNP to the Customer and Client will mark and otherwise treat the related Customer account as "unpaid." 5.3 Errors and Omissions PNP will not be liable for any errors or omissions in data provided by Client or Customers. Client will be responsible for the accuracy of data provided to PNP for use in providing the Services. 5.4 Bank Actions PNP will not be liable for any errors, omissions or delays attributable to the acts or omissions of any bank or other third party involved in the processing of any Payment Device payment. SECTION 6 CARDHOLDER DATA SECURITY To the extent applicable, each of the parties shall be required to comply at all times with the Payment Card Industry Data Security Standard Program ("PCI-DSS") in effect and as may be amended from time to time during the term of the Agreement. The current PCI-DSS specifications are available on the PCI Security Standards Council website at https:llwww. pcisecu ritystan d ards. org . SECTION 7 EXCLUSIVITY Client agrees that PNP will be the exclusive provider of fee- based electronic payment services and that Client will not procure similar such services from any other party. SECTION 8 TERM AND TERMINATION 8.1 Term The initial term of this Agreement will commence on the Effective Date and will end on the first (1st) anniversary of the Effective Date (the "Initial Term"). This Agreement will automatically renew for successive one (1)-year terms (each, a "Renewal Term," and the Initial Term and any Renewal Term may be referred to as a"Term"). The term of this Agreement will terminate at the end of the Initial Term or any subsequent Renewal Term if either party provides written notice of such termination to the other party at least sixty (60) days prior to the expiration of the applicable Term. 8.2 In the Event of Breach; Effect on Affiliates 8.2.1 Subject to the opportunity to cure set forth below, either party may terminate this Agreement upon sixty (60) days written notice to the other party in the event of a material, uncured breach of any provision of this Agreement by the other party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach ("Notice°). 8.2.2 Following receipt of Notice, the alleged breaching party shall have sixty (60) days to cure such alleged breach. Upon termination or expiration of this Agreement, Client shall have no rights to continue use of the Service or the Modules. Expiration or termination of the Agreement by Client or PNP shall also terminate the Affiliates' rights under the Agreement unless otherwise agreed by the parties in writing. PNP may terminate the Agreement solely with respect to an individual Affiliate without affecting the rights and obligations of Client and other Affiliates under the Agreement. 8.3 Modification to or Discontinuation of the Service PNP reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereofl. In addition, PNP will have the right to discontinue accepting any Payment Device by providing not less than ten (10) days' written notice to Client. In the event that PNP modifies the Service in a manner which removes or disables a feature or functionality on which Client materially relies, PNP, at ClienYs request, shall use commercially reasonable efforts to substantially restore such functionality to Client. In the event that PNP is unable to substantially restore such functionality within sixty (60) days, Client shall have the right to terminate the Agreement. Client acknowledges that PNP reserves the right to discontinue offering the Service and any support at the conclusion of ClienYs then-current Term. Client agrees that PNP shall not be liable to Client nor to any third party for any modification of the Service as described in this Section. PNP E-Payment Services Agreement v2.0 rev 071008 151 of 159 SECTION 9 PAYMENT DEVICE TRANSACTION DEPOSITS The exact amount of each approved Payment Device transaction wiil be electronically deposited into the Client bank account identified on the Client Application. PNP shall initiate such deposits as specified on the attached Client Application. PNP will provide Client's authorized employees with access to PNP's online transaction reports for reconciliation purposes. SECTION 10 FORCE MAJEURE PNP will not be responsible for its failure to perform under this Agreement due to causes beyond its reasonable control, including acts of God, wars, riots, revolutions, acts of civil or military authorities, terrorism, fires, floods, sabotage, nuclear incidents, earthquakes, storms, or epidemics. If the provision of Services under this Agreement is delayed by such an event or condition, PNP will promptly notify Client thereof. PNP will use commercially reasonable efforts to overcome any such cause for delay as soon as is reasonably practicable. SECTION 11 GOVERNING LAW This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Florida without reference to its conflicts of law principles. SECTION 12 NOTICES All notices or other communications required or permitted by this Agreement must be in writing and will be deemed to have been duly given when delivered personally to the party for whom such notice was intended, or upon actual receipt if sent by facsimile or delivered by a nationally recognized overnight delivery service, or at the expiration of the third day after the date of deposit if deposited in the United States mail, postage pre-paid, certified or registered, return receipt requested, to the respective parties at: If to Client: See Merchant Application If to PNP: Point and Pay LLC 110 State Street E, Suite D Oldsmar, FL 34677 Fax: 863-248-1891 SECTION 13 MISCELLANEOUS The headings of sections and subsections of this Agreement are for convenience of reference only and will not be construed to alter the meaning of any provision of this Agreement. PNP is an independent contractor and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, franchise or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have, or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party. Each of the parties will have any and all rights and remedies available to them under all applicable laws. The remedies provided for in this Agreement will be deemed to be non-exclusive and in addition to any other available remedy at law or in equity. All rights and remedies are cumulative and may be exercised singularly or concurrently. Client may not assign or transfer any of its rights or delegate any of its obligations under this Agreement to any third party, by operation of law or otherwise, without the prior written consent of PNP. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. Client shall comply with all applicable laws, rules, treaties, and regulations in its performance of this Agreement. If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable, the remaining provisions of this Agreement will not be affected and the illegal, invalid, or unenforceable provision will be deemed modified such that it the intention of the parties to the fullest extent possible. No amendment or modification of this Agreement will be effective unless it is in writing and executed by both of the parties. Nothing contained in this Agreement establishes, creates, or is intended to or will be construed to establish or create, any right in or obligation to any third party. This Agreement, the Exhibit(s) and the Client Application set forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the parties with respect to such subject matter. The parties have duly executed this Agreement as of the date of the last signature below (the "Effective Date"). Point and Pay LLC By: Name: Title: Date: City of Sebastian, FL By: Name: Title: Date: PNP E-Payment Services Agreement v2.0 rev 071008 152 of 159 Exhibit A Services Description The following is a description of all Services and Modules offered by PNP. PNP shall provide the Services to Client and its end-user customers via the specific Modules and Payment Devices chosen by Client in the Client Application. Applicable fees, if any, for Client's elections are set forth on the Client Application. The Services include support and training outlined below at no additional charge to Client. Service Modules • Counter Module. The Counter Module allows customers to make payments to Client in a face-to-face environment or over the phone using a Payment Device. PNP will issue unique confirmation numbers to customers who have completed a payment transaction using the Counter Module. The Counter Module also enables ClienYs staff to access reports via the web. The Counter Module is required to access the PNP Services. The Counter Module may be used in conjunction with or independently of point-of-sale (POS) terminals. Web Module. The Web Module allows customers to make payments to Clients online using a Payment Device via a secure website hosted by PNP. Customers who elect to make payments via the Internet can follow a link from the Client website to the Client-brantled, PNP-hosted web pages to submit a payment. PNP will issue unique confirmation numbers to customers who have completed a payment transaction using the Web Module. PNP shall create the Client-branded, PNP-hosted web pages at no additional charge. Client may elect bill presentment and account validation functionality for the one-time set-up fee set forth on the Client Application under "Data File Integration." Interactive Voice Response (IVR) Module. The IVR Module allows Customers to make payments to Clients over the phone using a Payment Device. The Customer calls a toll-free phone number provided and managed by PNP to access the Client branded IVR. The IVR system recognizes Customer instructions through making a payment; the phone keypad is used to enter Payment Device numbers. The IVR system is configured and tested by PNP. PNP will issue unique confirmation numbers to customers who have completed a payment transaction using the IVR Module. Election of the IVR Module includes a Client- branded IVR environment and, if applicable, Client shall pay the one-time IVR set-up fee for the IVR Module set forth on the Client Application. In addition, Client may elect to have bill presentment and account validation functionality enabled through the IVR for the one-time set-up fee on the Client Application under "Data File Integration." Customer Pavment Devices Each of the Modules can provide the Customer with the ability to pay by Credit Card, Debit Card and/or Electronic Check. Traininq PNP shall provide instruction manuals and up to four (4) hours of webinar training to Client and Client personnel in connection with the Modules chosen by Client. Sunnort The following support shall be provided to Client and Client's customers at no additional charge during the term of the Services: First Level Support. PNP shall provide first-level support to Customers via PNP's call center. Customer service representatives shall be available 8 a.m. EST to 10 p.m. EST M-F, to handle customer inquiries. Second Level Support. PNP shall provide first-level support to Client via telephone. Second level support shall be available Monday through Friday during normal business hours. Support availability shall be exclusive of downtime due to scheduled maintenance or events out of PNP's control. Support for the Products may be modified, suspended or terminated in PNP's sole discretion upon prior written notice. PNP E-Payment Services Agreement v2.0 rev 071008 153 of 159 6 Exhibit B Client Banking Application, Client Application, Product Worksheets PNP E-Payment Services Agreement v2.0 rev 071008 154 of 159 (Internal Use Only) �� OICIr �°�P71.� Client Application Partner Code: Partner Hierarchy: ❑ This is a Super Partner ❑ This is a Sub-Partner. SP Name and Code are: Account Re resentative: Cind Bo acki Submission Date: ��f ��' �� _��` �`� ��_=`- Card Readers: Quantity: 1 Target Live Date: �_�� r� �� Price er Reader:$ 0 ,,, ;':Client �rsa�Nle �y . �!i, ;� . �'�� "' % � � . ;' �" "� s,��,,, ; ! �� ' � � ��;; � � ,., ;,�� v�.�t�� „ „�,,,,� �/,,,;'�� y:% ��/�i,Gy�� <;/ �,,,,,,?� ��yr�,,.;��i�%��„ � �aS��`� �r�,��%G „�,�..,�c��//�'��/�',,, Client Legal Name as filed with the IRS: Federal Tax ID: City of Sebastian DBA: City of Sebastian Address: 1225 Main Street City: Sebastian State: FL Zip: 32958 Website Address: www.cit ofsebastian.or , . � /o� � ; /�, / r y� i� � � ,�' '� � {� � ,//�i% `�� ,� i�?�#K1�I� ��;�y. c�ri i, � /„ = i�a�„ s.. ti,v, ,� i Prima Contact Name: Prima Phone #: Prima Email: Kenneth Kill ore 772 589-5330 kkill ore cit ofsebastian.or Technical Contact: Technical Phone #: Technical Email: Accountin Contact: Accountin Phone #: Accountin Email: Customer Service Contact: Customer Service Phone: Customer Service Email: ' �QtG'".3�i.''v y�� a;, , , r � , ' �c� �r i'', � � �„ '�si€��'"��%�',� .a �� Y .ii%?iz n�y�,''�' � A,z��"" .��r� , ,.,, � ' ..�.>: . . ,.iia. ,/l/,,,,.,. , , , . ...,� .�„ ,.;-;./ ,;, �r„�.�//...,,, , .� i i �� , -: x...,. ,.,,,.,:.,,. �� . �c � .^i i a,�-. ::,,� l /"yi �%%ili.��i.. y/��'�/ � r , ��/%/� ,t.;�' p.¢., ': j�� :: /%�S � �, , ��{"'� y,z�� '' ,.��%%i�/��//��5�� +�'!. „�„ '.�.,,�� . , /�'��.z:�� y „�...... ��,,/��"//�',! ,,.��✓..%�i//1.i%//�%��.�'�� ;,�;%/y//'e�' �..,. The undersigned agrees to abide by the Terms and Conditions of the Global Merchant Services Agreement, viewable at www.pointandpay.com/agreement Signature Title ��,�?i".� �1(..ilr �(j t'iil>'i �k C��iE:'.. Name (Print) Date 155 of 159 � �\ �� \ L �� ? 0 7p � _ � � x C f„) �� U %i,� � N f9 $°\ EY � � � � ��' a� � � ` �r �� U � �a N f9 " � tn N 7 ' � �� w ° d �: �. � -�o cYi ' � �� o t d �'<'. �: nV E ��'' ��:: � 0 y ,: � 0 w �i O ` > '� � � _. �� y awi ;� ' N- �O 4J L L .. \�e L .� Q Q > G> �� 3 O — — � � N fl" � g (0 LL �� (� �� t� N LL � (0 N Y �`'x-: �' Y � "�. •� �'f� L � � ��, p� � �.�'"�`. � �� N a m m C � � � � r� � �p � � � � • � m o1 � 01 01 , � � \ Z fA C�j v`0i °. (% cn (% cn cn �� 3 fl. > �' m a`�i H : � H v) �� = � O � a� a�i � ❑ ❑ ❑ ❑ ❑ �\ � c � �;' � �' � C 3 Y Y Y Y Y � � �� '�. U�i V � O N N N N N y f) � �,: L a ❑ ❑ ❑ ❑ ❑ '� � a � ��: � � � : �� ; °� o` �°' �, � : a�i �� o . � N �" N �% � � � �\ j, # � � # .: � �O� � C d C � � � � � \� �'�\\ �tS � �:: N� U r C c�.� �' s O c� o� � _' `� lA � .O Q L � Q \\�' a �• a o � �'. r � ,� •-' �a*,:. 3 EN � � �' � � �. w� � c �� M � � d M •- � �: , �� O F L M � �� r � Q' w M Q' a i � L1 � \ O i� L L S � � 0 '�. O O \: . ++ :: � � �`' E �. ;�� " C C j. �: C � � � ' 0 s0 .�1 � � 3�,s; V V L n: U U 0 � Y L �, ;g � � - �YY��. � � ti��' Y Y a . (a � n C i a s�xti W � 0 � � � C1 �. � L d \� � �' f � A \ti3� � d d � � � 0 � Gi a � Y �' � U� Y V a�i � � �' � a- � � \�� N m F- �y � � Q- m �: z�� V � � d � \� � LLJ Q U �,L., C � � ; �p a, _ � � � U X � C � y ��'�. � ' U W c0 N � �'�, O � C � � ': \ Y � ~ �r� f9 "O � @ � Z Vf yj,', � d L ��' �j �' � a � � � �d > �`�' 0 o W � `° � w �o \ �g n i c a � 4�; .c m i� Q �.:.. N LL '�+� O � � � LL � � a� � Q tJ,. � _ � � � � � �v h � �; c . p � ;. � ' ��, � z � W : a� ai 3 � � � [ ani - � � c mC � � � o a .. `° �� ^ �- a Q N @ co N Z 'C m l� �'� . � - U .. G ; � C� x.m N o �. � � � .� � U = � � "' � � '`. � � — V7 z 1� . �3 a�i � d U � � �3: a� a� ' d �w a p �n � a Q y Z p w � � �6 a� `::j' a� ; � � o '� ❑ ❑ d � 1 �' f 15 � ��. LL d;k N M � � I"' � � O. � Z :..•..;.,',. _ ; '�\\\°��. �a k� � ��, td:. � � .fi}'Iw U� , �'" v. � , HOME OF PELICAN �ISIJWD City of Sebastian 1225 Main Street Sebastian, Florida 32958 Subject Annual Goals Workshop Direction Ap Gll Submittal by: r; City Manager Exhibits: Calendars Agenda No: / �'. � ;� �s' Department Origin: City Manager Date Submitted: 1/17/13 For Agenda of: 1 /23/17 City Attorney: � SUMMARY STATEMENT Last year City Council amended its goals and charter evaluation procedures by adoption of Resolution R-12-08. One of the provisions of the resolution is to conduct an annual goals workshop following the general election and prior to the start of the budget presentation process to discuss and review goals and objectives for the City and convey those goals to the Charter Officers. The other resolution provision is to publicly evaluate the Charter officers at a regular meeting in June of each year under Council Matters. The FY 13/14 budget process gets started in April, therefore Council could conduct the goals workshop any time in February or March. Calendars have been provided showing available dates. The City Clerk respectfully requests that it not be held on February 20th due to her anticipated absence on that date. RECOMMENDED ACTION Direct the scheduling of a goals workshop prior to the start of the FY budget process. � N � �� M � Z Q � C•i C•7 ti CC M � N �A N � N � Q � 2 J � J � QI� ' W � � 0 ' � — --� `;�UU � � 00 � N N �s a �s a a� a� a o cc c� � o ti N �"� � �y N N � Z � J J � Z U� U �w za z a p� 0� �� v� va cJi� Ooaw� w° � mQca�U �ia N rn ' � N O� tC �N V� � � N Z � �� w � J Q a��a �� Qc~i� �O� U— ��w'� �cnQa wc7� �2� W � Z�[OCp (n�N � a0 � > � OO � �A � N Q Z � � Q N Z U � U Q w w w � w '� . � Z � Q Z J . �. � � 0 W�� a W � a� _ g g ca C� a a = � acD >Omch?mv aUO �cD � M O 1� � � � � N � � N � I� � `L � OO � � ti � � � M N N N � Q � = J � J � Q � W ��O � _ J tL U U � N �a �a a � a � � � � � N a 0 M (D � J �U � Z � � w0 �U O M O� �N � N ti � N a 0 M (D � �U � Z C� � wO �U � ' � N O� t0 � � � N � � w Q� Q' � � Q O � � Z�mcD � � � � M O � w � Q J � Q ~ � fn � N 00 w Q N U ��Q � w0� � �� 0>d� �� 0� a Q� mQ�cD �cD r N M