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HomeMy WebLinkAboutR-2024-178 Award of Lift Station 12 Rehab Project to SUI ITB #24-030RESOLTTTION NO. 202{- l -}'i A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZINC THE AWARD OF INVITATION TO BID ('1T8") NO. 24-030. ENTTTLED "REHABILTTATION OF LrF'T STATTON l2- PROJECT TO SOUTHERN L]NDERGROLN{D INDUSTRIES. INC. IN THE AMOUNT OF THREE MILLION SIX HIINDRED NINETY.NINE THOUSAND NINE HLINDRED DOLI-ARS ($3,699,900.00): PROVIDtNG FOR CONFLICTS; FURTHER. PROVIDINC FOR AN EFFECTIVE DATE. WHEREAS, the City intends to fully refurbish sewer Lift Station 12 and add an emergency generator to make the sanitary sewer system more resilient; and WHEREAS, the Public Services Department engaged Kimley-Hom & Associates to provide engineering services to design, survey, permit. bidding support, and design services during construction for the Rehabilitation of Lift Station l2; and WHEREAS, the City issued ITB No. 2023-010 for the "Rehabilitation of Lift Station l2 on November I ,2024": and WHEREAS, the ITB was opened on December 2, 2024, and the City received one response to ITB No. 2024-030 as shown belou': l. Southem Underground Industries, Inc. (SUI)s3,699,900.00 WHEREAS, the City only received one bid from SUI and the respondent provided all necessary contract forms, a bid bond, and demonstrated similar project experience and good references: and WHEREAS, the consultant engineer. Kimley-Hom and Associates. Inc.. has worked with this contractor on multiple projects and has received positive references from previous clients that would continue to utilize the services of SUI. and the bid amount is w-ithin a reasonable margin of the $3.400.000.00 project estimate based on current workload and supply chain concems: and WHEREAS, the Bid Commiftee's assessment of the bid package provided by the respondent, reviewed by the consultant project engineer. resulted in the selection of Southem Underground Industries. Inc. as the most responsive. responsible bidder. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section l That the above ''Whereas" clauses are ratified and confirmed, and they are made a part ofand incorporated into this Resolution by this reference. Section 2. That the City Commission authorizes the proper City officials to execute an agreement with for the Rehabilitation of Lift Station Project in an amount not to exceed Three Miltion Six Hundred Ninety-Nine Thousand Nine Hundred Dollars ($3,699.900.00) Section 3. That American Rescue Plan Act funds in the amount of One Million Eight Hundred Thousand Dotlars ($ 1.800,000.00) supplemented by Sewer Fund Net Assets in the amount of One Million Eight Hundred Ninety-Nine Thousand Dollars ($ 1.899,900.00). plus a ten percent (10%) contingency, will be appropriated to the Sewer Fund Infrastructure other than Buildings Account No. 402-35-30-535-63- I 0. Section 4. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent ofsuch conflict. Section 5. That this Resolution shall be effective l0 days after passage. PASSED AND ADOPTED on bc( l0 201.+ VrL[ N[rrr ,-S0\VinD ,T. secon Unanimous Yes No Commissioner Lori Lewellen Commissioner Luis Rimoli Commissioner Archibald J. Ryan IV Vice Mayor Marco Salvino Mayor Joyce L. Davis SIGNATURES ON THE FOLLOWING PAGE ft d!r FINAL VOTE ON ADOPTION 1 RESOLUTION #202,I I[ Motion b1 ATTEST: ELORA CITY CI-ERK APPROVED AS TO FORM AND CORRECTNESS E o SIS TTORNF,Y C Y RESOLUTION #20 24- I.IYJ THIS IS AN AGREEMENT ("Agreement") dated 202 . between the City of Dania Beach, Florida, a Florida municipal corporation ("City"), with its principal place ol business located at 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 and Southem Underground Industries. Inc. ("Contractor"), a Florida corporation. with a mailing address of 794 S. Military Trail, Deerfield Beach, Florida 33321, contact information E. Michael Sweeney, mikesia,lsouthermrndersroundindustries.com In consideration ol the mutual covenants, terms and conditions contained in this Agreement, and for other good and valuable consideration. the adequacy and receipt of which are acknowledged and agreed upon, the parties agree as follows: l. Definitions. Cify-. The City of Dania Beach. Florida. City Code. The City of Dania Beach Code of Ordinances. Force Majeure: Any event which results in the prevention or delay of performance by a part-v of its obligations under this Agreement and which is beyond the reasonable control of such party including, but is not limited to fire. earthquakes, hurricanes, tomadoes. storms, lightning, epidemic, pandemic, war, riot, civil disturbance, sabotage, and govemmental actions. "Force majeure" does not include where the City's actions or inactions or lack of compliance with the Agreement delay the Contractor. Governmental Approvals: All govemmental and quasi-governmental approvals lrom applicable city, county and other agencies and authorities required to develop the Property. including. but not limited to, development ol regional impact approvals. site plan approvals, comprehensive land use plan approvals, plat approvals and recordation, public dedications, environmental approvals, zoning approvals. building permits and all other govemmental approvals required in connection with the development ol an1 Improvements at the Property (and the expiration of all appeal periods with respect thereto), modification or vacation of easements or both, and other matters pertaining to the Propert"v. Governmental Authority. An1' federal. state, county. mLrnicipal or other govemmental department. entit,v, authority, commission board, bureau. coufi, agency, or any instrumentalit-v ofan1-ofthem now existing or hereafter created, having jurisdiction over the Propeg or any portion thereoL Governmental Requirement. Any law. enactment, statute. code. ordinance, rule. regulation, judgment. decree, writ, injunction. order, permit, certificate. license. authorization, agreement. or other direction or requirement of any Covemmental Authority now existing or hereafter enacted, adopted. promulgated. entered, or issued. Contractor shall comply w'ith all Govemmental Requirements applicable to the operations and Property, including, without limitation, those prohibiting discrimination bl reason of race. color. religion. sex, marital status, sexual orientation, gender identity. national origin. I AGREEMENT or handicap in the development, construction, management, Agreement, use, occupancy ofthe operation and Property or any portion thereof. Work. The labor and materials required to complete the construction of the Improvements on the Property, and any related buildings or structures not located on the Property. in a good and workmanlike manner in accordance w'ith the Plans and all appticable Govemmental Requirements. 2. Scope of Services. The Contractor agrees to provide construction services ("Services" or "Work") associated with the City's ITB (lnvitation to Bid) No. 24-030 entitled, "Rehabilitation of Lift Station 12". u.hich ITB is incorporated bl this reference into this Agreement as Exhibit "A". The Technical Specifications and Plans are also considered a part of Exhibit "A" but due to the size of the files, they are not physicall-v made a part of Exhibit "A". This Agreemenl encompasses the Contractor's response: provided. hon'ever that il there is any conflict betn'een the terms of the Agreement and the Contractor's response to Cit1,, the Agreement is controlling. The Serv'ices are identit'ied and described in the Contractor's response as Exhibit "B" n'hich exhibit is incorporated by relbrence into this Agreement. 3. Subcontracts. It is expressly agreed to by the parlies that the City shall approve in advance in writing any Subcontractors and the t-ees to be paid them by Contractor. prior to any such Subcontractor proceeding w'ith any such work. Contractors shall only designate emplo.vees who are sufficiently skilled to provide the required services specified in this Agreement. Any person employed to provide the seruices who fails. refuses or neglects to obey the instructions of the City's representative in anything relating to these services, or who appears to be disorderll. insubordinate. or incompetent shall upon the order of City's representative, be immediately relieved by the Contractor lrom the Project Work. Any interl'erence with, or any abusile or threatening conduct to$,ard any City representative, its assistants or inspectors by the Contractor, its employ-ees or agents. or any member of the public shall be grounds for the City to terminate the agreement and re-let the nork. The Contractor shall furnish all labor. materials. supplies and equipment necessary to properl.v maintain all Project Work areas in an acceptable and safe condition. It is expressly agreed to by the parties that the City shall approve in advance in rriting an)' subcontractors and the fees to be paid them by Contractor. prior to any such subcontractor proceeding with anl such work. 4. Contractor agrees that it and its officers shall be held ful1.v responsible. except as otheru ise prohibited by law. lor all acts of their employees w-hile in their employ. 4.1 Code Related Inspections. The Contractor reco gnizes that the City of Dania Beach, Development Services Department, is a department within the Cit-v of Dania Beach. separate and apart l'rom the Citv of Dania Beach's Engineering Department. that is charged with the inspection of improvements to real properly fbr code compliance. The Conlractor agrees that it will not assert, as a City caused delay. or as a def'ense ofany delay on the part ofthe Contractor. any good-faith action or series of actions on the part ofthe Development Services Department. including. but no1 limited to, the Development Services Deparlment's refusal to accept any portion of the Contractor's Work. If it is ultimately determined by the Architect and Citv that such delay was not the result of Contractor's failure to comply with the Agreement Documents, the Contractor may be entitled to make a claim for extension of Agreement Time onll as its exclusive remedy. in accordance with the terms of the Agreement. ,) 4.2 Commercial Activities. Contractor shall not establish an y commercial activity or issue concessions or permits ofany kind to third parties for establishing commercial activities on lands owned or controlled by City. Contractor shall not allow its employees to engage in any commercial activities on the site. 4.3 Cooperation With Others. Ci ty and other contractors may be working at the site during the perlormance of this Agreement. Contractor shall full.v cooperate with the City. City's designated Representative. and other separate contractors to avoid any delay or hindrance of their work. Ciq, may require that certain lacilities be used concurrently by Contractor and other parties. and Contractor shall comply with such requirements. The City shall provide for coordination ol the activities of the City's onn forces, and of each separate contractor, with the Work ol the Contractor, who shall cooperate and parlicipate u'ith other separate contractors and the City in review-ing their construction schedules. 1.3 The belon' listed documents are to be used by the Contractor and Cit-v during the administration ofthis Agreement. Additional administrative forms may supplement this list upon written notice by the City (or Citl's Project representative). Cit)'reserves the right to modif;, these tbrms as it deems necessar-\'. Contactor shall maintain logs for Items A-K and provide to City monthly. Request lbr Inlbrmation Field Instruction Field Bulletin Construction Change Proposal Change Order Construction Change Directive Submittal Transmittal Deficiency Report Non-Conformance Report Contractor's Daily Report Substitution Report 4.4 Contractor shall provide and maintain all utilities in work areas to meet the requirements of the Agreement. Such utilities shall be fumished by the Contractor and shall include. but not be limited to. the following: 4.5 Prior to final acceptance ol the Work. the Contractor shall, at its expense, satisfactorily remove and dispose ol all temporary utilities developed to meet the requirements of the Agreement. The City w'ill assume the utility-costs directly related to its usage of areas in which the Work has been certified as Substantially Complete. A B C D E, F. G H I. J. K J A. Public telephone service lor the Contractor's use. B. Construction pow'er as required at each point ofconstruction. C. Water as required throughout the construction. 4.7 Asre zl.6 Coordination And Correlation Of Drawings And Sp9cifica1ien!. The Contractor represents that the Contractor, its Subcontractors, material and equipment suppliers have carefully and diligently compared Phasing, Demolition, Landscaping, Architectural, Structural. Electrical. Underground. Civil and Site Draw-ings and Specifications. and have compared and reviewed all general and specific details on the Drawings. Contractor shall not be liable to the City lor damages or costs resulting fiom erors. omissions, or inconsistencies in the Agreement Documents, or lor dil}'erences between field conditions and the Agreement Documents, unless the Contractor recognized, or in the exercise olits due diligence, should have reoognized the issue and know-ingly tailed to repofi it to the Ciq/. Contractor shall have the right to rely on the completeness and accuracy of information, Drawings, Specifications. and other Agreement Documents provided b1- the Citl or Design Consultants. ement lnterpretation. All claims of Contractor , and all questions the Contractor may have relating to interpretation or clarification ofthis Agreement. or its acceptable fulfillment shall be submitted immediately, in w-riting, to Citv for resolution. City. or its representatives. will render its determination conceming such resolution within an appropriate period, not to exceed live (5) calendar days. unless additional time is needed due to the novelty or complexity of the interpretation or clarification requested, which determination shall be considered final and conclusive unless Contractor files a timely written protest pursuant. as a Dispute. The Contractor's w tten protest shall state clearly and in detail the basis thereof, and the relief it seeks, ilany. City will consider Contractor's protest and render its decision thereon within five (5) calendar days lf Contractor does not agree with the Cit-v's decision. the Contractor shall immediately deliver written notice to that eflect to the Cit)'. lfquestions of interpretation are not responded to by the Architect or Cit-"- within the time t-rame above, and in a manner so as not to impede the natural progress ofthe Workas scheduled, and such delay impacts the critical path ofthe Work. Contractor shall be entitled to adjustment in the perlormance time as its exclusive remedy. Contractor is solely responsible lbr requesting instructions or interpretations and is solely liable lbr anv cost and/or expenses arising lrom its failure to do so. Contractor's t'ailure to protest Citv's determinations. instructions, claritications or decisions within five (5) calendar days after receipt thereol shall constitute a waiver by Contractor of all its rights to lurther protest. judicially or otherwise. 5. Date Of Commencement And Substantial Com letion 5.1 The Date olCommencement is the date from rvhich the Agreement Time is measured and shall be the date set forth in the Notice to Proceed as issued hy'the Citv. Should the Contractor incur costs prior to the issuance of the Notice to Proceed, an1' such costs shall be incurred at the Contractor's risk, and the City shall not reimburse the Contractor for any such costs under any circumstances. Notr.vithstanding the floregoing. City may reimburse Contractor for actual costs incuned relating to performance and payment bonds and insurance. with submittal olinvoices, in the event that City teminates this Agreement for convenience. as provided in the General Conditions. If Contractor fails to commence the Work within one (1) week of the date set fbrth in the Notice to Proceed. City may terminate the Agreement immediately. without providing an opportunity to cure. I 5.2 The Contractor shall achieve Substantial Completion not later than one hundred eightl' (180) calendar days and Final Completion of the entire Work not later than two hundred ten (210) calendar days or. each commencing with the date set lbrth in the Notice to Proceed as issued by the City" subject to adjustments of this Agreement Time as provided in the Agreement Documents. 5.3 Term. The term of this Agreement shall be through and including or completion ofthe Services, whichever date is sooner. December 3l 2025 6- Pavment fbr Services. 6.1 City agrees to pay Contractor a not-to-exceed fee olThree Million Six Hundred Ninety Nine Thousand Nine Hundred Dollars ($3,699,900.00), plus a ten percent (10%) contingency, based on the tasks and associated fees attached as Exhibit "B" and incorporated into the Agreement by this reference 6.2 No travel and meal costs will be reimbursable unless incurred outside of Miami-Dade, Brow'ard and Palm Beach Counties, which costs shall be approved in writing in advance b.v the City. Ani,' such costs are payable at the City reimbursement rate. 6.1. The Agreement Sum is based upon the cost agreed upon by the parties. fbr the satist'actory performance of the Work in accordance with the Agreement Documents. 6.4 The value of any construction Work covered by a Change Order or of any claim for an increase or decrease in the Agreement Sum shall be determined in one of the lollowing ways at the City's option: (A) Where the Work involved is covered by unit prices contained in the Agreement Documents, by application of turit prices to the quantities of items involved without additional fees. (B) By mutual acceptance ofa lump sum price. 6.5 Contractor may expend funds only for allowable costs resulting from obligations incurred during the specified Agreement period. 6.6 Any balance olunobligated funds which have been advanced or paid must be refunded to the City. 6-7 Any funds paid in excess ol the amount to w'hich the Contractor or sub-contractor is entitled under the terms of the Agreement must be retunded to the City. 6.8 Any additional information as required in Section 215.97, Florida Statutes 6.9 Any necessary additional work, as determined by City, rvhich is not covered by the approved written proposal, shall not be undertaken vr.ithout a written amendment to this Agreement executed by both parties in advance of an1.- work- ) 7.Billing Procedure. 7.1 The prefened method for invoices is to send via email to ap@ldaniabeachfl.sor'. A copy may also be mailed to City Hall. Ciry- of Dania Beach Finance Department Attn: Accounts Payable 100 West Dania Beach Boulevard Dania Beach. Florida 33004 r.vith a copy to: Cirx* of Dania Beach Public Sen"ices Department Attn: Femando Rodriguez. Director 100 West Dania Beach Boulevard Dania Beach. Florida 33004 7 .2 The Clitv n'ill pay to the Contractor lbr the faithful pertbrmance of the Agreement. in lawful mone1. ol the United States. and subject to adjustments as provided in the Agreement Documents. the amounts equal to the sum ofthe unit, Iump sum price or both established for each separately identifred work item. times the estimated quantity of that item" as indicated in the Schedule ofPrices. 7.2.1 Taxes: The City is exempt from anv taxes related to the requested services, which may otherwise be imposed by the state or t'ederal govemment. This exemption does not transmit to suppliers in their purchases ofgoods or services, used in u,ork or goods supplied to the City. The Contractor shall pay all applicable sales. consumer, use and other similar taxes required by law'. The Contractor is responsible for review'ing the pertinent state statutes involving the sales tax and complying with all requirements.. 7.3 As provided in the Bid, the quantities entered in the Schedule ofPrices lbr each item of r.vork is an estimate onl,v and the final Agreement amount and the total payment made to the Contractor will be based on the actual number of units oleach work item incorporated in the Work of the Agreement. It is understood that the unit prices quoted or established for nork items will be used for computing the amount to be paid to the Contractor, based on the quantities actually constructed as determined by the applicable measurement and payment portion of the Specifications. 7.4 Based upon Applications for Payment submitted to the City by the Contractor and Certifications of Payment issued by the City. the City shall make progress payments on account ol the Agreement Sum to the Contractor as provided below. elsewhere in the Agreement Documents and in accordance with Part VII of Chapter 218, Florida Statutes, as i1 mal be amended fiom time to time, entitled the "Local Govemment Prompt Payment Act." 7.5 The period covered by each Application fbr Payment shall be one calendar month ending 6 6.10 Contractor shall submit its invoices in the format and with supporting documentation as may be required by City on the last da)' olthe month. or as follows: (A) Each Application tbr Pa1'ment shall be based upon the Schedule of Values submitted bl the Contractor in accordance uith the Agreement Documents. The Schedule of Values shall allocate the entire Agreement Sum among the various portions olthe Work and be prepared in such form and supported by such data to substantiate its accuracy as the City may require. This Schedule. unless objected to by the City. shall be used as a basis lor reviewing the Contractor's Applications tbr Payment. (B) Applications for Payment shall indicate the percentage of completion of cach portion of the Work as of the end olthe period covered by the Application for Payment. 7.6 Subject to the provisions ofthe Agreement Documents. the amount ofeach progress payment shall be computed as follows: (A) Palment for sen'ices pertbrmed mal be made on a monthl)'basis upon approval of the Application tbr Payment by the designated oflicial of the Ciry'. The Agreement mal include phases of performance to be negotiated. There uill be separate phases for design responsibilities and fbr construction responsibilities. Retainage u'ill be r,,, ithheld on all payments as authorized b1 state law until Cit) acceptance of the Proiect and City has received evidence of satisfacrorl completion of the Agreement. (B) Five percent (5%) of monies eamed by'the Contractor shall be retained by City until Substantial Completion and acceptance by City. except fbr the folloning items: General Conditions and self-performed work perfbrmed on a cost reimbursement basis, if any. Retainage will be released when the project has reached substantial completion as agreed upon by the City and contractor. (C) Cit_v may withhold, in whole or in part. payment to such extent as ma) be necessary to protect itselffrom loss on account ot': I ,) Det'ective Contractor or Subcontractor Work not remedied. Claims filed or reasonable evidence indicating probable filing of claims by other parties against Contractor. Failure ofContractor to make pay'ments properly to subcontractors or for material or labor. Damage to another subcontractor not remedied. Failure ofcontractor to provide any and all documents required by the Agreement Documents- (l) (.+ ) (s) 1 7.7 Application lor Payment after the first Application shall be aocompanied by a Certiflcation olPayment form, provided by the City. fiom the Contractor and each Supplier and Subcontractor. in amounts equal to those stated in the PRIOR Application for the Contractor and each Subcontractor and each Subcontractor. Material/Labor Supplier so due payment. The Application fbr Palment for Retainage shall be accompanied by' a tinal Certification of Payment and Release ol Claim lorm from the Contractor. each Supplier and Subcontractor in amounts equal to those stated in the Schedule of Values. 8. Final Payment. Final payment. constituting the entire unpaid balance of the Agreement Sum. shall be made by the City to the Contractor when (A) the Agreement has been tully perlbrmed by the Contractor except for the Contractor's responsibility to correct nonconfbrming Work. if any'. which obligation sun'ives tinal payment and continues thereafter: (B) a finat Certification of Payment has been issued by the City: such flnal payment shall be made by the City not more than thirty'(30) days atler the issuance ofthe Contractor's final Certification of Paymentl (C) final Certification of Payment has been fumished from the Contractor. Suppliers and Subcontractors: and (D) a Consent of Surety. if any. fbr tinal payment. 10. Protection Of Propertl. The Contractor shall at all times guard against damage or loss to Citl property or propert)" ofother persons. vendors or Contractors and shall be responsible tbr replacing or repairing anl such damage or loss. The Contractor rill be required to report an)" such damages immediatell to the Cit)'s representative in charge of the Project. The Citl resenv'es the right to repair anl damages created by- the Contractor and to deduct the appropriate amount lrom any pa) ment due to the Contractor. In all cases. the decision ofthe Cin' is tlnal. I l. Florida Trench Saf-etv Act. The Contractor shall include r,,ith its Bid. when applicable. all documentation required by the Florida "Trench Saf'ety Act". Section 553.63. Florida Statutes. The unit prices and total prices presented in the Bid. and those presented in any subsequent change orders shall include the Contractor's cost fbr compliance with the applicable trench saf'ety standards. 12. Trash. Contractor shall be responsible fbr the daily removal of trash and debris iiom the Project work sites and upon completion olthe Project Work. 13. Public Bid Disclosure Act. [n accordance with the Public Bid Disclosure Act. Section 218.80. Florida Statutes. each license. permit. or f'ee a Contractor will have to pay the City betbre or during the work. items or services to be provided or the percentage method or unit method of all licenses. permits. and fees required by the Citl and payable to the City by virtue ol the work. items. or services as part ofthe agreement are as fbllows: 8 9. Pavment and Performance Bond. The Contractor agrees that belbre commencing an1' u'ork or construction the Contractor shall maintain. at all times. a valid pay ment and performance bond. consistent u.ith the requirements contained in the ITB. attached as Eshibit B. The executed Bonds shall be attached to this Agreement as Exhibit C. (A)Contractor shall have and maintain during the term of the agreement an1 and all appropriate Citl' licenses. fees (and business tax receipts. il applicable). uhich shall be paid in f-ull in accordance u'ith the Citl's tee structure lbr such items. THERE WILL NOT BE ANY PERCENTAGE REDUCTION OR WAI\'ING OF CITY LICENSES, FEES (OR BUSINESS TAX RECEIPTS, IF APPLICABLE). (B) During the performance of the agreenrent. there may be times when the Contractor will be required to obtain a permit tbr such work. or in connection with the items or services. lt is the responsibility of the Contractor to ensure that it has the appropriate permits as may become necessary during the perfbrmance of the work. Any fees related to the required permits in connection with the agreement will be the sole responsibility ol the Contractor. (C) Licenses. permits. and fees may be required by Broward County. the state of Florida or the t'ederal govemment. (D)Citl will reimburse permit fee costs related to dewatering and National Pollutant Discharge Elimination System (NPDES ). 14. Safety. The Contractor shall be responsible tbr initiating. maintaining and supervising all satetl' precautions and programs in connection with the Project Work. The Contractor shall comply with the rules and regulations of the Florida Department ol Commerce regarding industrial saf'ety., (Florida Statutes, Section 440.56) and with the standards set forth in the f'ederal Occupational Safety and Health Act of 1970 (OSHA). and its amendments. Contractor. by submitting a bid" certifies that all materials and equipment to be supplied for the Project will meet all federal and state requirements" including but not limited to" the Occupational Safety and Health Act (OSHA). I 5. Warran The Contractor shall i.r,arrant to the Cit),that materials and equipment fumished under the agreement r.r,ill be of good qualitv and new unless othen4'ise required or permitted by' the Agreement Documents: that the Work uill be fiee t'rom defects. and that the Work u'ill confbrm to the terms and conditions olthe agreement. Work not conlorming to those terms and conditions. including substitutions not properll' appror.'ed and authorized mal be considered defective. The Contractor's u'arrantl mal exclude damage or deiect caused bl abuse. modiflcations not executed by the Contractor. improper or insufficient City maintenance. improper operation. or normal wear and tear under normal usage. The Contractor shall fumish satistactory evidence as to the kind and quality of materials and equipment. All manufacturers' product warranlies shall be registered in the City's name and lbr its sole benefit. 16. C'onstruction Qualitv. Contractor agrees to perform all work ("Work") required to complete the construction of the Improvements on the Property in a good and workmanlike manner. 9 I 6. I Standards ol Construction. An l and all construction of lmprovements shall be pertbm.red in such a manner as to provide that the Improvements shall: (i) Substantially comply with the Permitted Plans: (ii) Comply with the terms and provisions of this Agreement: and (iiil Comply w.ith all applicable laws. ordinances. rules. regulations and procedures ol all applicable Govemmental Authorities. 16.2 Complv with Applicable Law. All Im provements constructed or installed bl the Contractor. its agents, or contractors, shall confbrm to all applicable state. federal. county. and local statutes. ordinances, building codes. fire codes. and rules and regulations, as amended. l6.l Contractor'sOblis ations During Construction.Prior to the Completion Date. Contractor shall: (A) Provide scaffolding. hoists. temporary structures. light. heat. por.r,er. toilets. temporary utility' connections. equipment. tools and malerials and other requirements lbr the performance of the Work: (B) Maintain the Property in a clean and orderly condition. at all times, taking into consideration the public beachfront nature ol the Project. and remove all paper. cartons and other debris from the Property: (C) Presene all properties adjacent to or leading to the Propert). and restore and repair anv such properties damaged as a result of construction of the Work. *hether such properties are publicly or privatell' owned: (D) Implement and maintain at all times a comprehensive hurricane and f'lood plan ibr the Property and the Work. and provide a copl- olsame to the Cit)'. if requested: (E) Provide construction fencing. (F) As Builts. Within one hundred twenty (120) dals after the date a CO is issued for lmprovements construcled by Contractor during the term of this Agreement. the Contractor shall at its expense. provide the City with a complete set of"as built" plans and specifications. including mylar reproducible "record" drawings. and. ilavailable. one set of machine readable disks (or comparable) containing electronic data in an AUTOCAD format that meets the City's graphic standards of the "as-constructed" or "record" plans for such Improvements. The "as built" plans submitted by Contractor must show the square footage ofeach Improvement depicted in such plans. (G) Use diligent efiort to complete the Work in a commercially reasonable time under the circumstances and in accordance with this Agreement. At all times make diligent effort to have proper supervision ol the general contractor or other employees or agents of the Contractor upon the Property site. (i)Employees Of The Contractor. Contractors shall onl y designate employees who are sufliciently skilled to provide the required services specified in the ITB. Any person employ'ed to provide the services who f'ails. refuses or neglects to obey the instructions ofthe City's representatire in anything relating to these services. or who appears to be disorderly, insubordinate, or incompetent shall upon the order of City,'s representative, be immediately relieved by the Contractor f'rom the Project Work. Any interl'erence with. or any abusive or threatening conduct toward an1' City representative. its assistants or inspectors by the Contractor. its employees t0 or agents. or an)' member ol the public shall be grounds tbr the Citl' to terminate the agreement and re-let the rlork. The Contractor shall tumish all labor. materials. supplies and equipment necessan to properll maintain all Project Work areas in an acceptable and safe condition. Contractor agrees that it and its otllcers shall be held full1' responsible. except as otherw-ise prohibited b1 lau. for all acts of their employees u'hile in their employ. (H) Contractor Progress Reports. At the request olCity, Contractor will deliver rvritten reports ofthe progress ofconstruction to the City Manager or his or her designee. (l) City's Representative. The City may designate one or more employees or agents to be the City's Representative for the Project so that he or she may, subject to site conditions and during normal business hours. visit and the Propertv". (J) Certificates of Final Completion. Alter Contractor completes the Work. the City will deliver to Contractor. a recordable Certificate of Final Completion certifj'ing that, to the best ofthe City's knowledge. Contractor has satisfied all its obligations to the Cir,"- for the construction of the specified Improvements. 16.,1 Site Conditions Contractor has the sole responsibility of satis!-ing itself conceming the nature and location olthe Work and the general and local conditions. and particularll . but r'" ithout limitation. uith respect to the following: those atllcting transportation. access. staging. parking. disposal. handling and storage of materials: availability. quantity and qualitl' of labor. uater and electric power: availabilitv and condition of roads; climatic conditions, location of underground utilities as depicted on Agreement documents, and through verification with local utiliti, companies and the City, physical conditions of existing construction. topography and ground surface conditions; subsurface geology, and nature and quantity of surl-ace and subsurfhce materials to be encountered; the nature of the ground water conditions: equipment and f'acilities needed preliminary to and during perlbrmance oi the Agreement; and all other matters which would be reasonablv known to a licensed general contractor u,ith expertise in streetscape and related infiastructure construction as in an1'way atGcting perfbrmance of the Agreement. or the cosl associated uith such perlormance. The lailure of Contractor to acquaint itsell r.lith an1 applicable condition uill not relieve it liom the responsibilitl' tbr properll estimating either the dilllculties or the costs of successfulll' and timell, pertbrming the Agreement. 16.5 The City shall not be responsible lor any conclusions or interpretations made by' the Contractor based on the information made available by the City. The Citi'shallnot be responsible fbr anv understanding reached or representation made conceming conditions u,hich can a1'fect the Work by any of Contractor's officers. emplol'ees. agents, subcontractors. material men. or suppliers belore execution of this Agreement, unless that understanding or representation is expressly stated in this Agreement. 16.6 '['he provisions of this Section l6 shall be deemed a complete w-aiver by the Contractor of claims fbr equitable adjustment in Agreement Time or Price. or both. unless due to ( I ) subsurlace or concealed conditions which diller materially liom those indicated on the Agreement Documents. or (2) unknoun phlsical conditions ofan unusual nature which difler materialll tiom t1 those ordinarill found to exist and generallv recognized as inherent in construction of the character provided in the Agreement Documents: provided houever. that claims under this Section 16 shall be denied in the event that the conditions were reasonablf inferable from activities. testing and investigations performed in connection with the Pre-Con Agreement. and which would otherwise provide to Contractor an expectation that the conditions could be similar elsewhere in the Project. 16.7 Warran . Unless otherwise provided elsewhere in the Agreement. all materials and equipment incorporated into anl Work covered by the Agreement shall be new and. where not specitied. of the highest grade and quality for their intended use, and all workmanship shall be in accordance rvith construction practices acceptable to City. Unless otherw'ise provided in the Agreement. Contractor warrants all equipment. materials. and labor fumished or performed under this Agreement. against detbcts in design. materials and workmanship. tbr a period of t*elve (12) months (unless longer guarantees or warranties are provided for elseuhere in the Agreement in which case the longer periods of time shall prevail) from and atier Substantial Completion olthe Work under the Agreement. regardless ol u,hether the same u'ere fumished or performed b1 Contractor or by any of its subcontractors of any tier. Even in the event that the Ciry assumes partial utilization of portions of the Work prior to completion of all Work, the Warranties tbr that portion shall also extend for twelve ( I 2) months lrom Substantial Completion of the entire Work. so that all warranties are running concurrently upon Substantial Completion olthe total Project. 16.8 Upon receipt of nritten notice fiom City of any def'ect in any such equipment. materials. or labor during the applicable warranty period due to defective design. materials or workmanship. the affected item or parts thereofshall be redesigned. repaired or replaced b1' Contractor at a time and in a manner acceptable to City in compliance nith the Agreement Documents. at its expense. 16.9 Contractor \\.arrants such redesigned. repaired or replaced Work against defective design. materials and rvorkmanship fbr a period of twelve ( 12 ) months from and after the date of acceptance thereof. Should Contractor iail to promptly make the necessary redesign. repair. replacement and tests. after written notice from City speci!ing the defects. City may perform or cause to be performed the same. at Contractor's sole cost and expense. 16.10 Contractor shall perfbrm such tests as City may require veritying that such redesign, repairs and replacements comply with the requirements of this Agreement. All costs incidental to such redesign, repair. replacement. and testing. including the removal, replacement" and reinstallation ofequipment and materials necessar)'to gain access. shall be bome exclusivell" b1 Contractor. However. if such testing determines that the Work is not detbctive. than Citl. shall compensate Contractor for such costs oftesting and any ef'tects on previousll completed rvork. I 6. I I Contractor and its Suretl shall be liable for the satislhction and full perlbrmance ol the u arranties as set forth herein. and anv damage to other parts of the Work caused b\ the Contractor's lailure to perform pursuant to this section 16. I 6. I 2 'fhe Contractor shall commence Work to remedy or replace the defbctive, deficient Work within five (5) calendar days after receiving uritten (including transmittals by email) notice from the City. subject to allowance fbr long-lead items. If the Contraotor iails to remedy or remove or replace that Work or material which has been fbund to be defective. or reasonably commence corrective action. then the City may remedy or replace the def-ective or deficient Work at the Contractor's expense: provided. horvever, all repairs to natural gas. telephone. radio. computer securitl. uater. electric- air conditioning services and all emergenc) sen'ices shall be commenced t2 rvithin tnelve ( l2) hours ofnotification, or by 7:00 a.m. whichever is earlier. and Contractor shall complete the repairs in an expeditious manner befitting the nature of the deficiency. The Contractor shall immediately pay the expenses incurred by the City for remedying the defects. If the Ciry-- is not paid within ten (10) calendar days. the City may pursue any and all legal remedies it may have against the Contractor and its Sureq'. l6.l i The Contractor is required to provide a designated telephone number tbr u arrantl' related emergencies uhich occur outside the normal uorkdal. The Contractor is solely responsible for ensuring that all 'w arran[ Work is completed in the manner described above. If the City agrees. in writing. a subcontractor may be the point ofcontact tbr notices regarding warranty items. but such agreement shall not absolve the Contractor of its responsibility. 16.14 Insress/Esress. Contractor's access to the Work area will be permitted only through approaches that will be designated b1' City. and then only in such manner that Contractor's traffic uill not interfere uith Ciry''s operations and Merchants/Tenants adjacent to the acti\it)'area(s). Contractor shall. at all times. maintain reasonablv fiee unimpeded ingress and egress at the site. Contractor personnel are not to enter into any areas ofthe iobsite other than Work areas and areas ofdesignated access. Contractor shall safbly maintain. at all times during the pertbrmance ofthe Work. both vehicular and pedestrian traffic in. around. and ad.iacent to the Project. 16.15 Preconstruction Conference. As soon as practicable afier execution of this Agreement. and prior to commencing any Work. a pre-construction cont-erence will be coordinated by'the Contractor and the Ciry. In attendance at said conlerence uill be City'. Architect. and anl oltheir representatives as mal be deemed advisable. The purpose of said conference is to determine procedures related to the smooth progress of the Project. revieu of any items requiring clarification. maintenance oftraffic. merchant and pedestrian accessibility. related safety issues. and procedures fbr the processing and distribution ofall documents and correspondence related to the Agreement. among other things. 16.16 Meetinqs. The Contractor shall. at its expense. as requested b1 Cit1. attend an) and all meetings called b1 Ciry' to discuss the Work under the Agreement. Such meetings shall be conducted and recorded by' the Citl with ry'ped minutes of each meeting distributed to all attendees. 16.17 Delivery. Unloadine And Storase Contractor shall. at its expense. receive. unload. store in a secure place, and deliver from storage to the construction site all materials, plant and equipment required fbr the performance of the Agreement. The storage facilities, methods of storing and securitl' provisions shall meet City's approval and manufacturer's recommendations. Materials and equipment subject to degradation bl outside exposure shall be stored in a ueather tight enclosure. 16. I 8 Work Area. All Contractor's Work areas on the jobsite will be assigned by City. Contractor shall confine its office. shops. storage, assembll, and equipment and vehicle parking ro the areas so assigned. Before commencing Work, the Contractor shall provide a temporary office on the site of the Work, which shall have a telephone where a representative of the Contractor ma1'be reached at all times during normal i.vorking hours. Should Contractor tind it necessan or advantaqeous to use an] additional land outside the Project site tbr anl purpose rvhatever. Contractor shall. provide and make its o'urn arrangements fbr the use ofsuch additional land. 13 16.19 Plant. Equipment And Facilities. Contractor shall provide and use on an1'Work onl,v such construction plant and equipment as are capable of producing the quality and quantiqv of work and materials required by the Agreement and within the time or times specified in the Agreement. Betbre proceeding r.r'ith any Agreement Work or with erection of any tacilities. including. but not limited to, temporary structures. machinery. equipment. olfices and uarehouses. Contractor shall fumish Citl' such inlbrmation and drau ings relatil'e to such equipment. plant facilities as Citl mal' request. 16.20 Upon uritten order of Cir,v*. Contractor shall discontinue operation of unsatisf-actor-1' plant and equipment or lacilities and shall either modifr or remove the unsatisfactory itcms fiom the site. 16.21 Contractor shall not remove construction plant or equipment from the site belbre the Work is finally accepted uithout City's n'ritten approval. Such approval shall not be unreasonably.. u.ithhetd. 16.22 Contractor-Fumished Materials. Equiplqq41 A!!l \ryelklq4lDbiB. Only new. unused items ofrecent manulacture. oldesignated quality, but in no event less than the standard qualitv for the improvements. liee fiom defects. will be accepted. Rejected items shall be removed immediately from the Work and replaced with items of specilied quality. Failure by Ciq to order removal ol rejected materials and equipment shall not relieve Contractor fiom responsibilit) tbr quality of the materials supplied nor lrom an! other obligation under the Agreement Documents. 16.23 Contractor shall continuousll check architectural and structural clearances tbr accessibility of equipment and mechanical and electrical s1-stems. No alloll'ance of any kind u'ill be made lor Contractor's negligence to tbresee means of installing equipment into position inside structures. 16.24 No Work det'ective in construction or qualitl'. or deflcient in meeting anr requirementof the Agreement Drau'ings and Specilications. uill be acceptable regardless ol Cit1.'s t-ailure to discover or to point out defects or deficiencies during construction: nor u ill the presence of tield representatives at the Work or the satisf action of the Work meeting applicable code requirements relieve Contractor t'rom responsibility for the quality and securing progress of Work as required by the Agreement Documents. The City' shall noti{1 the Contractor ofdelective or unacceptable Work if the City discovers such. Det'ective Work revealed within the time required by warranties (whether expressed or implied) shall be remedied in accordance with Section 15. entitled" "Warrant1." No pal ment. whether partial or final. shall be construed as an acceptance of defective Work or improper materials. 16.25 Contractor shall waive "common practice" and "common usage" as construction criteria wherever details and specifications or goveming codes and ordinances require greater quantity or better quality than common practices and common usage would require. Contractor shall order and schedule delivery of materials in reasonable time to avoid delays in construction. Dela, s in delivery olequipment or material purchased by the Contractor or its Trade Contractors shall not be considered as a cause fbr an adjustment oithe Agreement Time or a basis fbr damages or compensation. The Contractor shall be tulll responsible tbr the timell ordering. scheduling. expediting. delivery'. and installation of all equipment and materials. If an item is fbund ro be t4 unavailable. Contractor shall notil-.r City immediately of recommended substitute(s) to permit Cit1"s selection of a suitable substitute. 16.26 Citv will exercise sole authority tbr determining conformance ol workmanship. materials. equipment and systems with the requirements of the Agreement. Review and approval of all items proposed by Contractor tbr incorporation into the Work will be bl City. This function bi Citl uill appll both to approvals tbr the Agreement as initially signed. and to approvals tbr changes to Agreement bl modifications during progress of the Work. Ret'erence to manut-acturers' names, brands and models is Io establish the type and qualiti, desired. Substitutions may be permitted unless specifically noted otherwise in this Agreement. 16.27 When materials. equipment. or svstems are specified bv performance onll'" without rettrence to specitic manufacturer's brands or models. Contractor shall submit its own choice for City's revier.r.and approval, supported by sufficient evidence of confbrmity with the Agreement Documents. Substitutions. Prior to proposing an1, substitute item. Contractor shall satisf, itsellthat the item proposed is. in fact. equal or better to that specified. that such item will fit into the space allocated, that such item affords comparable ease oloperation. maintenance and sen,ice. that the appearance. longevity and suitabilit)' lor the climate are comparable. and that by reason ofcost savings, reduced construction time. or similar demonstrable benefit. the substitution ofsuch item raill be in Cit)'s interest. and sill in no wal impact detrimentalll upon the Pro.iect completion date and schedule. The burden of proofolequality ofa proposed substitution lbr a specified item shall be upon Contractor prior to City's decision on such substitution. Contractor shall support its request u'ith sufficient test data and other means to permit City to make a f'air and equitable decision on the merits ofthe proposal. Contractor shall submit dran'ings. samples. data. certificates. and additional intbrmation as ma1'be required b)'the Cit\, fbr proposed substitute items. I 6.28 Anf item b1" a manufacturer other than those specified or olbrand name or model number or of generic species other than those specified nill be considered a substitution. Cit-r' uill be the sole judge olwhether or not the substitution is equal in qualitl'. utilit! and econom) to that specified. Contractor shall allow an additional seven (7) calendar days for City's revieu ol substitution. All requests lor substitutions with submittal data must be made at least fourteen ( l4) calendar day's prior to the time Contractor must order. purchase. or release tbr manufacture or labrication. Materials and methods proposed as substitutions fbr specified items shall be supported bl certification of their approval fbr use b1' all govemmental agencies haring jurisdiction over use ofspecific material or method. Substitutions may not be permitted in those instances where the products are designed to match artistic design. specific lunction or economy of maintenance. 16.30 Erpediting The equipment and material fumished under this Agreement ma1.be sub.iect to expediting by. City. at City's expense. Citl shall be allowed reasonable access to the shops. lactories. and other places ofbusiness olthe Contractor and its subcontractors and suppliers. fbr expediting purposes. As required b)' Cit). Contractor shall suppl-v.' schedules and progress reports tbr Ciq.'s use in expediting and Contractor shall cooperate rvith Citl' and require its subcontractors and suppliers to cooperate with City in such expediting. Any expediting performed by City shall not relieve Contractor of its sole and primary responsibility tbr timeliness oldelivery of the equipment and material to be fumished under this Agreement. I 6.3 1 Field Lavout Of Work All Work under this Agreement shall be constructed in accordance u ith the lines and grades shou n on the Agreement Drawings or as approved bl the Citl in u riting. Elevation ofexisting ground. structures and appurtenances are beliered to be reasonably correct but are not guaranteed to be absolute and therefbre are presented only as an approximation. All survey vvork for construction control purposes shall be made by a land surveyor registered in the State ofFlorida. with demonstrated experience in the Proj ect area, and who shall be employed b1' the Contractor at Contractor's expense. The Contractor shall establish all base lines for the location oithe principal component parts ofthe Work together with permanent benchmarks and temporary benchmarks adjacent to the Work. Based upon the intbrmation provided b1- the Agreement Drawings. the Contractor's survevor shall develop and make all detail suners necessan for construction including establishment or construction of grid coordinates as shown on the Agreement Dra*ings. Iocation of propert-v boundaries. stakes for all working points. Iines and elevations. Citl shall provide surveys necessary tbr utility easements. The Contractor shall have the responsibility to carefully preserve all benchmarks, reference points and stakes. In case ofdestruction thereofby the Contractor resulting fiom his negligence. or for any other reason. it shall be held liable fbr any expense and damage resulting theretiom and shall be responsible tbr any'mistakes that n1a)' be caused b"v the unnecessary loss or disturbance of such benchmarks. rel'erence points and stakes. Existing or neu control points. propert) markers. and monuments that $ill be established or are destroved during the normal course of construction shall be reestablished b1' the Contractor. and all reference ties recorded theretbr shall be lumished to the Cir.v.-. All computations necessary to establish the exact position ofthe Work shall be made and preserved by the Contractor. [ 6.J2 Contractor Fumished Drawinss. Data And Samples. Review' and permission to proceed by City as stated in this Agreement does not constitute acceptance or approval of design details. calculations. analvses. test methods. certificates or materials deleloped or selected by' the Contractor and does not relieve Contractor fiom tull compliance \\'ith contractual obligations. Dranings. samples. catalogues. data and certificates required shall be submitted to the Ciry'lor revieu,. All correspondence from the Contractor to the Citl shall be numbered sequentiall! and the submittal number shall be referenced. Submittal drawings (shop. erection or setting diagrams) and schedules. required lbr work of various trades. shall be checked before submission by technically qualified employees ol Contractor for accuracy'. completeness and compliance with Agreement requirements. These drawings and schedules shallbe stamped and signed by Contractor certifj ing to such check. The certihcation stamp shall read as fbllons: t6 "l certif that I have checked this submittal tbr accuracl. completeness and compliance u'ith Agreement requirements. and it has been coordinated rvith all other submittals and Agreement Documents." SIGN DATE 16.3i Drawinss. Where draw-ings are required tbr (a) fabrication of Contractor fumished equipment; (b) installing Contractor lumished material or equipment: or (c) planning and performance of the Work under Agreement: such drawings shall be originally generated and submitted by and at the expense ofthe Contractor beiore tbbrication. installation or perlormance is commenced. Each submittal shall be made not less than fourteen ( l4) calendar days prior to the time that the drawings are required in accordance with the schedule. Allou at least seven (7) calendar dals lbr revieu bl the Engineer. Such drauings shall include. but not be limited to. matchmarks. erection diagrams and other details. such as field connections fbr proper installation. erection of the equipment. and performance olthe Work. l6.3zl Samples. Samples are physical examples that illustrate materials. equipment or r.vorkmanship and establish standards by which the Work will be judged. Samples of all items of related systems (i.e.. ad.lacent surlaces requiring similar colors but manufactured of diff'erent materials) must be submitted in the same time fiame before the approval process can begin. Where samples are required. they shall be submitted b1 and at the expense ofthe Contractor. Such submittal shall be made not less than thirtl tir,e (35) calendar da1's prior to the time that the materials represented bl such samples need to be ordered tbr incorporation into an1.' Work in accordance u,ith the schedule. Allon at least selen (7) calendar days fbr Citl's revievr-. Materials represented by such samples shall not be manulactured, delivered to the site or incorporated into any Work u,ithout such review. Each sample shall bear a label showing the Contractor's name. date submitted. Project name. name of the item. manufacturer's name, brand name, model number. supplier's name. and ret'erence to the appropriate drawing. Technical Specification section and paragraph number. all as applicable. Samples that have been revieued mav. at Architect's and Citl's option. be retumed to the Contractor tbr incorporation into the Work. 16.35 Catalo ues- Data and Certificates Where catalogues. data or certificates are required. one (l) digital copl' and one (l)copy oleach shall be submitted b1 and at the erpense olthe Contractor. Such submittal shall be made not less than lourteen ( l4) calendar days prior to the time that the materials represented by such catalogues, data or certiflcates must be ordered fbr incorporation into any Work in accordance with the BAR CHART schedule. Allou, at least 7 calendar da"vs tbr Architect and City's review. Material represented bl such shall not be fabricatcd. delir,ered to the site or incorporated into anl Work r.r, ithout suchrer"iew. Certillcates shall clearll identifl' the material being certified and shall include but not be limited to pror. iding the lollou ing infbrmation: Contractor's name. Project name. name ol the item. manut'acturer's name. and ref-erence to the appropriate drawing. Technical Specit'ication section and paragraph number all as applicable. All catalogues. data and certiflcates submitted by the Contractor shall be certified 17 and dated bl the Contractor on the f-ace of each catalogue. data and certitlcate to be correct and shall be fumished in accordance uith these requirements and the requirements ofthe Technical Specit-ications. 16.i6 Construction Schedule. Within ten ( l0) calendar days after the date olthe City's issuance of a Notice to Proceed. the Contractor shall prepare and submit to the City a BAR CHART construction schedule in graphically depicting the activities contemplated to occur as a necessary incident to performance ofthe Work required to complete the Project. showing the sequence in which the Contractor proposes fbr each such activity to occur and duration (dates of commencement and completion" respectilell) oleach such activity. The Citl's initial approval fbr the purposes olthis Section. and anl other provisions in the Agreement Documents related to the Contractor's responsibility to prepare and submit schedules shall be limited to a determination that the activities. durations and logic are reasonable. The construction schedule shalI be complete in all respects. covering. in addition to activities and interfaces nith other Contractors at the site of the Work. offsite activities such as design. fabrication. an allowance fbr weather delals. submittals. procurement and jobsite delivery of Contractor tumished material and equipment. The schedule shall be a BAR CHART Critical Path type network drawn to a time scale using arro*, or precedence type diagramming. The construction schedule activities shall mirror the payment application breakdown. 16.36. I The construction schedule shall include the tbllowing: (a) Brief description ofeach activit)'. (b) AII submittals. samples. approvals. fabrication. and deliveries for equipment and materials. (c) Activities showing scheduled start and finish. late start and flnish. and float. (d) Relations between activities. (e) Duration of activities. No activity should be scheduled for more than I 9 workdays. (f) Contractual and other major milestones including phasing. (g) Schedule activities to include labor and material. (h) An allowance fbr delays due to weather. Agreement Time extensions fbr weather delays will be granted onl.v when all of the conditions and criteria tbr evaluation of time extensions have been met pursuant to the General Conditions. (i) Upon acceptance ofthe original Schedule. the Early Start and Earlv Finish dates for all activities shall be fixed as Planned Start and Planned Finish dates. Any further revisions to the schedule must be submitted in w-riting and approved by the City. 1i ) The detailed BAR CHART schedule submittal shall include one ( I ) digital color copy and one (1) color copy of the following: (k) Time Scaled Network Diagram. (l) Bar Chart in the following formats: (m)Sorted by activity. (n) Sorted by total float. (o) Sorted by earlv start. 18 (p) Precedence and Successor report. (q) Narrative report. (r) Computer diskette. (One copy') (s) Submittals shall be organized under Standard CSI tbrmat. (t) The detailed BAR CHART Schedule shall be updated monthly and submitted along with an updated CD accompanied b1'an Application tbr Payment. Contractor shall meet uith the Cit-v and Architect/Engineer of Record to review and veril] : i. Actual start and flnish dates lbr completed activities. ii. Remaining duration required to complete each activitl started. scheduled to stan. but not completed. iii. Logic and time, fbr change orders that are to be incorporated into the diagram and computer produced schedules. iv. Percentage for completed and partially completed activities. 16.37 Following development and submittal of the construction schedule as atbresaid. the Contractor shall. at the end ofeach calendar month occurring thereafter during the period of time required to tinally complete the Project. or at such earlier inten'als as circumstances mal require. update and/or revise the construction schedule to show the actual progress of the Work perfbrmed and the occurrence ofall events which have af'fected the progress of performance of the Work alreadl' performed or will atfect the progress of the perfbrmance olthe Work ],et to be pertbrmed in contrast r.l-ith the planned progress of perfbrmance of such Work. as depicted on the original construction schedule and all updates and/or revisions thereto as reflected in the updated and/or revised construction schedule last submitted prior to submittal ol each such monthly update and revision. 16.38 The Contractor shall prepare and incorporate into the schedule data base, at the required intervals, the fbllowing schedules: A. Subcontractor Construction (Sub-netu,orks) - LJpon the auard of each subcontract. the Contractor shall jointly with the subcontractor. delelop a schedule which is more detailed than the pre-bid schedule included in the Specifications, taking into account the Work schedule of the other subcontractors. The construction schedule shall include as man) activities as necessary to make the schedule an eff-ective tool tbr construction planning and tbr monitoring the performance ol the subcontractor. The construction schedule shall also shou pertinent activities lor material purchase orders, manpower supply, shop drawing schedules and material delivery schedules. B. Occupancy' Schedule - The Contractor shall jointly del elop with the Engineer and City a detailed plan. inclusive ofpunch lists. tinal inspections, maintenance training and turn- over procedures, to be used fbr ensuring accomplishment ofa smooth and phased transition fiom construction to Citl' occupancy. The Occupancl Schedule shall be produced and updated monthl) from its inception through linal Citl occupanc)'. l9 16.39 The Contractor shall submit a written narrative report as a part of his monthly revie\ and update in a fbrm agreed upon by the Contractor and the City. The narrative report shall include a description of problem areas; current and anticipated delaying factors and their estimated impact on performance olother activities and completion dates: and an explanation of corTectiYe action taken or proposed. 16.40 The Contractor shall have in its employ for the length ofthis Project, at least one qualified scheduling specialist whose responsibility as to this Agreement will be to prepare. plan and draft the construction schedules, monitor the construction progress, analyze scheduling problems for resolution. update the Construction Schedule as required in the Agreement, and maintain updated information as required regarding the interface with other contracts. The costs associated hereu ith. and all scheduling activities. are included in the Lump Sum. 16.41 The Contractor agrees that whenever it becomes apparent liom the current progress revieu meeting or the computer produced calendar dated schedule that the Agreement completion date will not be met, the Contractor shall execute some or all ol the tbllouing remedial actions at Contractor's sole cost and expense: A. Increase construction manpower in such quantities and crafts as necessary to eliminate the backlog ol Work. B. Increase the number of working hours per shifi. shifts per working day. working days per week. the amount of construction equipment. or any combination of the lbregoing to eliminate the backlog of Work. C. Reschc-dule the Work in contbrmance uith the specitication requirenlents. 16.42 Prior to proceeding vr'ith any ofthe above actions. the Contractor shall notifl-, the Ciry'of the proposed schedule changes. Such actions shall be incorporated by the Contractor into the diagram before the next update. at no additional cost. I 6.43 Responsibilitv For Work Securitt' Contractor shall. at its expense. at all times conduct all operations under the Agreement in a manner to ar,oid the risk of [oss. theft or damage b1 vandalism. sabotage or other means to any propert).,. Contractor shall promptl) take all reasonable precautions which are necessary and adequate against any conditions *'hich involve a risk ofloss. theft or damage to its property. at a minimum. Contractor shall continuously inspect all its Work, materials, equipment and facilities to discover and determine any such conditions and shall be solely responsible fbr discovery. determination and correction ofany such condition. Contractor shall prepare and maintain accurate reports olincidents olloss. theft orvandalism and shall tumish these reports to Cit-v u ithin three dal s of each incident. 20 16.44 Protection Ol Work In Prog ress. Materials And Eouioment Contractor shall be responsible tbr and shall bear any and all risk ofloss or damage to Work in progress, all materials delivered to the site. and a[[ materials and equipment involved in the Work until completion and tinal acceptance of Work under this Agreement. Excluded tiom Contractor's responsibilitf is an1 loss or damage which results from acts or omissions of the Citl or its representatives or other contractors. Permanent openings or thoroughtares fbr the introduction olwork and materialsto the structure and construction site shall be protected so that upon completion. the entire Work uill be delivered to the Ciq' in proper. whole and unblemished condition. 16.45 Protection Ol Exis Pro rt Contractor shall so conduct its operations as not to damage. close. or obstruct any utility installation, highway. road or other property until permits therefore have been obtained. If facilities are closed, obstructed. damaged or rendered unsafe b1' Contractor's operations. Contractor shall. at its expense. make such repairs and provide temporary guards. lights and other signals as necessan'or required tbr saf'etl and the rlelt'are of persons on the jobsite and the general public. l6.46Contractor shall conduct its operation so as nol to damage any existing buildings or structures. The Contractor shall verify that means and methods of construction used inside. adjacent to. under or over existing buildings will not cause damage. The Contractor shall provide protection methods which ensure the saf'ety of persons on the jobsite and the general public. Unless otherrvise specifically provided in the Agreement. Contractor shall not do any' Work that r.r'ould disrupt or otherwise intertbre with the operation ofanl pipeline. telephone. electric. radio. gas. transmission line. ditch or other structure. nor enter upon lands in their natural state until approved b1. Cit1. Thereafter. and betbre it begins such Work. Contractor shall gire due notice to Citl of its intention to start such Work. Contractor shall not be entitled to anv e\tension of time or any extra compensationon account ofany postponemenl. interference. or delay cause by any such line. ditch or structure on or adjacent to the site olthe Work. IfContractor has exercised due diligence. such as. but not limited to. conducting soft digs. securing utility locates. as well as other activities both during its Pre-Con pertbrmance and therealier. Contractor shall not be held responsible for an1 damages caused to an1 lines. cables. pipes. or pipelines lrhich are not depicted on the sunel s. studies. reports. investigations and legal descriptions ofthe site supplied to the Contractor. ConEactor shall preserve and protect all cultivated and planted areas and vegetation such as trees. plants. shrubs and grass on or adjacent to the Project, which, as determined by City. do not reasonably intert'ere n'ith the perfbrmance of this Agreement. Contractor shall be responsible for damage to an1 such areas and vegetalion and for unauthorized cutting oltrees and vegetation. including. uithout limitation. damage arising from the perfbrmance ol its uork through operation olequipment or stockpiling ol materials. All cost in connection uith an1 repairs or restoration nccessary or required b1'reason ofany such damage or unauthorized cutting shall be bome b1' ConIractor. 16.47 Labor. Contractor shall employ only competent and skilled personnel to pertbrm the Work. Contractor shall. if requested to do so by City" remove f'rom the jobsite any personnel of Contractor whom Citl'determines unfit or acting or working in violation of anl provision of this Agreement. Work assignments and the settlement of' j urisdictional disputes shall conlorm uith either the Rules. Regulations and Procedures of the Plan for Seltlement ol Jurisdictional Disputes in the 2l ).2 Construction Industry. and any successor agreement thereto, or any other mutually established method of determining work assignments and settling jurisdictional disputes. Contractor shall compl1 with and shall cooperate with City in enforcing jobsite conditions and job work rules which directly atlect the perlbrmance ol the Work including, but not limited to. starting and quitting time. smoking regulations. check-in and check- out procedures.job site sat-ety regulations and securit.v regulations. emergency plans and procedures. and daily clean-up. The Contractor and subcontractors shall be bound by and comply with all Federal, State and local lalr-s u ith regard to minimum wages, overtime work. hiring. and discrimination. All work necessary to be performed after regular working hours, on Saturdal's. legal and City holidays. shall be perfbrmed without additional expense to the City'. The Contractor shall complv with the Copeland Anti-Kick Back Act ( l9 U.S.C. 874) as supplemented in the Department ol Labor Regulations (29 CFR Part 3). This act provides that each Contractor or subcontractor shall be prohibited from inducing bl any means. any person employed in the construction. completion or repair of public rvork. to give up an1- part of the compensation to which he is otherwise entitled. 16.48 Eoual Emplo) ment Opportunitr- During the perfbrmance ol this Agreement. the Contractor agrees as follou s: (a) The Contractor will not discriminate against an1'employ'ee or applicant fbr employment because ofrace. color. religion. sex. serual orientation. or national origin. The Contractor rvill take alllrmative action to ensure that applicants and emplolees are treated during emplol ment rvithout regard to their race. color. religion. sex. sexual orientation. or national origin. Such action shall include. but not be limited to the fbllouing: Emplolment. upgrading. demotion. or transt-er: recruitment or recruitment advertising: lay'off or termination: rates of pa1' or other fbrms ol compensation: and selection tbr training. including apprenticeship. The Contractor agrees to post in conspicuous places. available to emplo_v-ees and applicants lbr emplol'ment. notices to be provided b1'the City setting tbrth provisions of this nondiscrimination clause. (b) The Contractor vrill. in all solicitations or advertisements tbr emplolees placed for. b1. or on behalfofthe Contractor. state that all qualified applicants uill receive consideration for emplovment u,ithout regard to race. color. religion. sex. sexual orientation. or national origin. (c) The Contractor will send to each labor union or representatives olworkers with which it has a collectile bargaining agreement or other contract or understanding. a notice to be provided b"".' the City. advising the labor union or workers' representative of the Contractor's commitments under Section 202 of Executive Order I1246 olSeptember 24. 1965. and shall post copies olthe notice in conspicuous places available to employees and applicants fbr employment. (d) The Contractor vvill comply with all provisions ol Executive Order I 1246 ol September 24, 1965. and olthe rules" regulations. and relevant orders ofthe Secretary ol[.abor. (e) The Contractor will fumish all inlbrmation and reports required by Executive Order I I2.16 of September 24. 1965. and by the rules. regulations. and orders olthe Secretary ofLabor, or pursuant thereto. and will permit access to his books. records, and accounts by the City and the Secretary ofLabor for purposes olinvestigation to ascertain compliance with such rules, regulations. and orders. (f) tn the er,'ent of the Contractor's noncompliance with the nondiscrimination clauses of this Agreement or u'ilh an1 ol such rules. regulations. or orders. this Agreement mav be cancelled. terminated or suspended in r.r hole or in part and the Contractor mal be declared ineligible for further contracts in accordance uith procedures authorized in Executive Order l'1246 ol September 24. 1965" and such other sanctions may be imposed and remedies invoked as provided in Executive Order I1246 of September 2,1. 1965, or by rule, regulation. or order oflhe Secretary ofLabor. or as otherwise provided by [aw. (g) The Contractor will include the provisions ofparagraphs A through F in every subcontract or purchase unless exempted by rules. regulations. or orders olthe Secretary of Labor issued pursuant to Section 204 ol Executive Order I I 246 ol September 24. 1965. so that such provisions u,ill be binding upon each subcontractor or vendor. The Contractor rvill take such action $ith respect to an\ subcontractor or purchase order as ma) be directed to the Secretary of Labor as a means ol entbrcing such provisions including sanctions lbr noncompliance: Provided. however. that in the event the Contractor becomes involved in. or is threatened with. litigation with a subconhactor or vendor as a result of such direction. the Contractor mav request the United States to enter into such litigation to protect the interest olthe United States. (h) All regulations, guidelines, and standards lawfully adopted under the goveming statutes. 16.49 Saf'etv & Protection Of Persons & Propertv 16.49. 1 Responsibiliw For Saf'etv And Health. The Contractor shall be responsible tbr initiating. maintaining and supen ising all saf'ety' precautions and programs in connection u'ith the Work to be perlbrmed under the terms of the Agreement ("Work" ). The Contractor shall take all precautions and tbllou all procedures fbr the safetl'of. and shall provide all protection to prevent injury to. all persons involved in an_"-'u'ay in the Work and all other persons. including. w-ithour limitation. the emplol'ees. agents. gucsts. risitors. invitees and licensees of the Citv and Users who may be aff'ected thereby. The Contractor shall set forth in writing its saf'et1, precautions and programs in connection with the Work and submit the same to the Cit),.'fhe Cit_v may. but shall not be ohligated to. make suggestions and recommendations to the Contractor with respect thereto. 16.49.2 Alt Work. whether perfbrmed by the Contractor. its Sub- Conrracrors or Sub- subcontractors, or anyone directll- or indirectll emploled by any' of them. and all equipment. appliance. machinery. materials. tools and like items incorporated or used in the Work. shall be in compliance with. and conform to: (a) all applicable laws. ordinances. rules. regulations and orders ofanl public. quasi- public or other authority relating to the safety of persons and their protection against injury. specificall.v including. but in no event limited to, the Federal Occupational Sal'ety and Health Act of 1970. as amended and all State. Local. City, and County rules and regulations noi,l.or hereafier in effect: and -) (b) all codes. rules. regulations and requirements of the City and its insurance carriers relating thereto. In the event olconflicting requirements. the more stringent shall govem. 16.49.3 Should the Contractor fail to provide a saf'e area for the performance olthe Work or an1 portion thereof. the City' shall have the right. but not the obligation. to suspend Work in the unsatb area. All costs ol anv nature resulting tiom the suspension. bv uhomsoever incurred. shall be borne bv the Contractor. 16.,19..1 The Contractor shall provide, or cause to be provided. to each worker on the Job Site the proper safbtl' equipment for the duties being pertbrmed bl that uorker and rvill not permit an1 worker on the Job Site r.r ho fails or reluses to use the same. The Ciq shall have the right. but not the obligation. to order the Contractor to send a',1-orker home tbr the da1- or to discharge a u'orker tbr his or her tailure to comply with safe practices, *,ith rlhich order the Contractor shall promptly comply. 16..19.5 The Contractor shall defend. indemnify and hold the City, the Cit),'s Representative and their respective ofllcers. directors. agents. employees and assigns, harmless liom and against an1 and all liability. public or private. penalties, contractual or otherwise. losses. damages. costs. reasonable attorneys' f'ees. expenses. causes ofaction, claims orjudgments to the extent resulting fiom an1' lailure ol the Contractor. its subcontractors or sub-subcontractors or anyone directly or indirectly employed by any of them or tbr whose acts any of them may be liable. to comply with the provisions ol this Ceneral Condition 16.49.6 In any and all claims against those indemnified hereunder by any employee of the Contractor. any subcontractor or sub-subcontractor. anyone directly or indirectly employed by any ofthem or anyone tbr whose acts any olthem may be liable. the indemnification obligation under this Paragraph shall not be limited in an1-way to any limit(s) on the amount or type ol damage. compensation or beneflts payable by or fbr the Contractor or an)' subcontractor or sub- subcontractor under anl workers' compensation acts. disability benefit acts or other employ'ee benefit acts. 16.50 Protection Of Work And Prooe rtl: Responsibilih For Loss. The Contractor shall. throughout the pertbrmance ol the Agreement. maintain adequate and continuous protection ol all completed Work and temporary t'acilities against loss or damage tiom uhatever cause. shall protect the propertl'olthe Citl and third parties from loss or damage from r,"hatever cause arising out of the perlbrmance of the Agreement and shall comph,uith the requirements of the Citl and its insurance carriers and uith all applicable laws. codes. rules and regulations with respect to the prer cntion ol'lUss Ur damage to the propenr'. The Citl . their representatir es or insurance earricrs may'. but shall not be required to. make periodic patrols of the Job Site as a part ol its normal safbty. loss control and securilv programs. [n such event. however- the Contractor shall not be relieved ol its albresaid responsibilities and the Citv shall not assume. nor shall it be deemed to have assumed. any responsibility otherwise imposed upon the Contractor by this Agreement. Until final acceptance ofthe Work by the City the Contractor shall have lirll and complete charge and care ol and, except as otherwise provided in this subparagraph or elser.r.here in this Agreement" shall bear all risk ofloss of, and injury or damage to, the Work or any portion thereof fiom an1'cause uithin Contractor's reasonable control. except to the extent caused bl Cit). its representati!'es. or contractors. or caused bl natural disaster. criminal activitl. f'lood. flre" or that is covered b1 an1 propeq or builder's risk insurance carried bl the Ciry'. 16.51 Surface And Subsurlace Water. Surlace or subsurtace water or other fluid shall not be pem.ritted to accumulate in excavations or under or in the structures. Should such conditions develop or be encountered. the u,ater or other fluid shall be controlled and suitably disposed ol hy means of temporary pumps. piping. drainage lines and ditches, dams or other methods approved bx- the Ciry" in r.lriting. The proposed location and coordination of temporary channels and conduits conducting accumulated r.l,ater from the Job Site shall be permitted by the proper regulatory agency and submitted to the City fbr its prior written approval. All such Work shall be doneat the sole expense ofthe Contractor. 16.5f Emerqcncies. [n anv emergencv aft-ecting the safttr. o I persons or propert) - or in the erent of a claimed r"iolation of any federal or state safet_"- or health lar.r or regulation. arising out of or in an\,\\'a) connected *ith the Work or its performance. the Contractor shall act immediately to pre\ent threatened damage. injury or loss to remedl said violation. u-hichever is applicable. Failure b1 Contractor to take necessary emergencv action shalI entitle the Citl to take nhater,er action it deems reasonabll' necessary. including. but not limited to. suspending the Work. The City may ofket an1- and all costs or expenses of \4hatever nature. including reasonable attome),s' t'ees. paid or incurred bl the City in taking such emergency action against any sums then or thereafier due to the Contractor. The Contractor shall defend. indemnif! and hold the City hamrless against any' and all costs or expenses pursuant to this Section. by whomsoever incurred. 16.53 Cit),'s Standards. The City reserves the right. but assumes no duty. to establish and entbrce standards. and to change the same liom time to time. fbr the protection of persons and property. u'ith which the Contractor shall comply. and to review the efficacy of all protective measures taken by the Contractor. The exercise olor t'ailure to exercise any or all ofthese rights b1 the Citl shall not relieve the Contractor ol its duties and responsibilities under this Agreement. and the Citl shall not thereb]. assume. nor be deemed to have assumed. ant' such duties or responsibilities of the Contractor. 16.5-l Proiect Site Protection Contractor. at its ex pense. shall maintain such protection as provided in the subsection 16.49. entitled "Sat'et)' & Protection Of Persons & Propertl " in a satist'actory condition until removal is authorized b] City. Contractor. at its expense. shall make all necessary repairs to property damaged by construction operations. Repairs shall be made in a manner satisf-actory to City. The Contractor will provide parking for its employees uithin the designated work areas. Contractor employees will not be allowed to park in areas which are used b1 an1 t'acilities uhich remain in operation. 16.55 Fire Prevention Contractor shall. at its expense. conform to all Federal. State. and local Iaws and regulations pertaining to buming. fire prevention and control nithin or adjacent to the Pro.lect. Necessary precautions to avoid and eliminate ilre hazards shall be the responsibility olthe Contractor. This includes keeping the Agreement Work area clear ol all trash at all tinres. All tarpaulins used for an)' purpose during construction of any Work shall be made of material t5 resistant to fire. water and weather and shall bear UL labels. Lighting olanv fires on premises is strictly fbrbidden. Controlled buming shall be with the consent of the Cit). Contractor shall provide portable tire extinguishers properll labeled. located and compatible with the hazard of each work area and shall instruct its personnel in their use. Wherever uelding and buming are conducted. intlammable materials shall be protected and a fire u'atch shall be provided b1 Contractor to be present during the buming and uelding operation to ensure that protecti\e measures are taken and that no flres result tiom such operation. The fire rvatch shall have tlre e\tinguisher equipment readill available and knou,hou for proper use. 16.56 Illumination. When an1 uork is perfbrmed at night or where da1'light is shut olf or obscured. Contractor shall. at its expense. provide artificial light sufficient to permit uork to be carried on efficientll'. satislactoril) and safe[1'. and to permit thorough inspection. During such time periods the access to the place of work shall also be clearly illuminated. All wiring lor electric light and power shall be installed and maintained in a first-class manner. securely fastened in place at all points" and shall be kept as 1-ar as possible from telephone wires. signal wires. and wires used fbr firing blasts. 16.57 Dust Control l'he Contractor. tbr the duration ol the Agreement. shall. at its c\pense. maintain all ercavations embankments, haul roads, access roads. plant sites. waste disposal areas. borrow areas. and all other work areas lree from dust. lndustry-accepted methods oldust control suitable fbr the area involved and approved by City r.vill be permitted. l6.58Water Pollution. Contractor shall, at its expense, provide suitable facilities to preventthe introduction olany substance or materials into any stream, river. lake or other body ofwater *'hich ma1'pollute the water or constitute substances or materials deleterious to fish and wildlitb. l6.59.Air Pollution The Contractor shall, at its expense, so perfbrm its uork as not to discharge into the atmosphere tiom any source whatever smoke, dust. or other air contaminants in l'iolation of the laus. rules and regulations of all Federal. State and local air and water pollution requirements including. but not limited to: Registering with the Dania Beach Countl' Health Department. Air Pollution Board. any equipment requiring operating permits br said Board: Adhering to all Brou,ard Counr_v" Air Pollution Board Regulations. 16.60Explosives & Hazardous Materials. Contractor shall obtain all required Federal. State and local permits and licenses and shall be responsible lor the sat-e and proper handling. labeling. transporting. storage and use ol an1' explosive or hazardous materials brought onto or encounlered qithin the site. and at its expense. make good an1, damage caused h1 its handling. transporting. storage and use. The Contractor will notiry the Citl immediatell if explosive or ha:uardous materials are encountered on the site. Transporting explosive or hazardous materials onto the site will require prior written approval from the Citl-. The Contractor shall maintain and post as necessarv Material Hazard Data Sheets for all applicable Hazardous Materials used in the course of his work. )6 In the event that hazardous material is improperl1' handled or stored by the Contractor. its subcontractors. an"v sub-subcontractors. or any employee or agent ol any ol the afbrementioned w-hich results in contamination ol the site. Contractor shall immediately notity the City and the appropriate govemmental authority and shall take whatever action is necessary or desirable to remediate the contamination at the Contractor's sole cost and expense. Further. Contractor shall indemnify and hold harmless from any and all cost. expense. action, or liability whatsoever resulting lrom such contamination and/or remedial activities. lf without negligence on the part of the Contractor or anyone for u,hom it is responsible. Contractor is held liable for the cost of remediation ofa hazardous material or substance solely by reason of perlorming the Work as required by the Agreement Documents. the Cit) shall pay for the directs costs of remediation as approved beforehand b1- City, in writing, which shall be paid from the Contingency Fund. l6.62lnspection: Reiection Of Materials And WorkmanshiL All materials and equipment fumished and work perfbrmed shall be properly inspected by Contractor. at its expense, and shall at all times be subject to quality sun'eillance, observations or quality audit by City. Contractor shall provide safe and adequate lacilities and all samples, drawings" lists and documents necessary' lbr such quality surveillance, observation or quality audit. For this purpose. Citl shall be afforded full and free access to the shops. factories or places of business of Contractor and its subcontractors and suppliers for such qualitv surveillance, obsenation or quality audit and to determine the status of the Work. Il Contractor covers all or any portion ol the Work prior to any quality sur-v'eillance or test by City, the cost ofany necessary uncovering and replacing shall be borne by Contractor. Neither the failure to make such qualitv surveillance, observance or quality audit. nor to discover delective w-orkmanship, materials. or equipment. nor acceptance ol or payment to Contractor for such work. materials or equipment shall prejudice the rights of Ciry- therealier to correct or reject the same as hereinafter provided. If any material. equipment or workmanship is determined by City. either during perlormance of the Work or on final quality surveillance. or during any applicable warranty period (expressed or implied). to be delective or not complying with the requirements olthis Agreement. City shall notil] Contractor in writing that such material. equipment or work is rejected and the City reserves the right to withhold payment on any such item. Thereupon. Contractor shall. at its o$,n expense. immediately remove and replace or correct such del'ective material. equipment or work by making the same comply strictly *.ith all requirements of the Agreement. 16.63 Testine. Unless othenl'ise provided in the Agreement. Drawings and Specifications shop testing ol materials or q,ork shall be perlormed by the Contractor and in accordance with the Technical Specifications. Field testing of materials or r.vork shall be per{brmed b), Cit}-. Should tests in addition to those required by the Specifications be desired by Cit1, Contractor nill be advised in reasonable time to permit such testing. Such additional tests will beat City's expense unless such additional tests are required due to Contractor's work or materials having lailed any initial test. [n this event. such additional (re-test) tests shal1 be at Contractor's expense. Contractor shall fumish samples as requested and shall provide reasonable assistance and cooperation as necessary to permit tests to be perfbrmed on materials or work in place including reasonable stoppage of work during testing. Contractor shall provide reasonable and accurate notice olu,hen construction activities which require City's testing services are required. Contractor shall be )7 responsible fbr stand- by and other costs associated with the testing agenc) il that construction actir in is delal ed or canceled. 16.6.1 Pro rCSS.Contractor shall give Cit) tull information in advance as to its plans fbr pertbrming each part of the Work. If at any time during the progress of uork. Contractor's actual progress is inadequate to meet the requirements of the Agreement. Ciry'ma1'so notii Contractor r.r.ho shall thereupon take such steps as ma) be necessan'to improve its progress. lf qithin a reasonable period as determined by Citl'. Contractor does not improve performance to meet the currentl) approved Agreement construction schedule. Cit1. may require an increase in Contractor's labor tbrce. the number oi shifts. overtime operations. additional dal s of work per neek and an increase in the amounl ol construction plant: all u'ithout additional cost to Cit). Neither such notice b!' Citl nor Cit1,'s tailure to issue such notice shall relieve Contractor of its obligation to achieve the quality of uork and rate ofprogress required bl the Agreement. Failure of Contractor to comply with the reasonable instructions of City may be grounds fbr determination bl City that Contractor is not prosecuting its work with such diligence as *'ill assure completion within times specified. Upon such determination. City may terminate Contractor's right to proceed with the performance of the Agreement. or any separable part thereof. in accordance with the applicable provisions of this Agreement. 16.65 Chanqes City may. at any time, without invalidating the Agreement and without notice to the Surety(ies). make changes in the Work by issuing Change Orders. as well as Contingency Fund Change Orders addressed elsewhere in the Agreement Documents. City will issue iaritten orders to Contractor fbr any changes. except that in the event of an emergency which City determines immediately endangers life or property, City may issue oral orders to Contractor tbr any work required b1' reason ofsuch emergenc"y. Such orders will be confirmed in u-riting as soon as practicable. Such orders. whether written or oral, may be accompanied b.v drawings and data as are necessar) to show the extent of such ordered w-ork. Contractor shall commence such changed u'ork so that all dates set forth in Contractor's current construction schedule. as accepted b1.Cir""*. rvill be met. In the event of an emergency r,l.hich Ciqv determines immediatell. endangers lifb or propertl. Contractor shall immediately commence such changes as required by Citl in order to mitigate or remove the emergenc) condition. Failure to commence an1 such change in timell' fbshion shall entitle City to invoke the provisions of ''Termination lbr Cause". LJnless othenvise required. Contractor shall. within t$entv-one (21)calendar dals fblloning receipt ol a r,'ritten Change request tiom Citl'.. submit in r.lriting to Cit) a Agreement Change Proposal fbr accomplishing such change. u'hich proposal shall reflect the increase or decrease. if anr. in cost to Citl olpertbrming the change under the Agreement in comparison to uhat the cost *ould hare been. had such change not been otTered. 17 . t-iquidated Damages 17.l Liquidated Damages will be assessed as stated in the Agreement tbr each non- compliant day that any requirements listed in this section l7 are not met. The parties have agreed that since they'are unable Io ascertain the amount of damages which would be suffered by Citt as a result of Contractor's failure to timely complete all Work required by the date set fbrth above. Therefbre. firilure to timely complete the work shall result in the awarded Bidder being subject to liquidated damages. but not as penalty, in the amount of$500.00 per calendar da1,. as 28 set lorth in 23 CFR 635.127. fbr each and every calendar day the work remains incomplete, or the items remain undelivered. This payment is considered to be City's liquidated damages. and it is not a penalty. It shall be assessed against the Contractor until substantial and final completion. respectively'. are achieved. 18. Audit. As the lunding fbr this proiect comes fiom FRDAP. Contractor, by entering into this Agreement, the Contractor agrees tcl comply and cooperate with any monitoring procedures/processes deemed appropriate by the Department of Environmenlal Protection. In the event the Department of Environmental 29 17.2 Stasins of Material in Risht-Of Wav: Contractor shall provide for all additional lands and access thereto that ma)' be required tbr temporary construction facilities or storage of materials and equipment. Staging area shall be fenced and screened from public sight. Contractor shall not store material such as pipes. drainage structures and equipment within a right olu'a1- w'ithout prior approval by the City. Material shall be properly' secured and screened neatll-and r.r.ill not remain on right olway' lbr more than a week. All equipment must be stored in a designated stagingarea. 17.3 Site Restoration: Contractor shall remove all excess material and shall clean up and restore the site to its original condition or better. All damage. as a result of n'ork under this Agreement, done to existing structures. pavement. drivewal's. paved areas. curbs and gutlers. sideu'alks. shrubbery'. grass. trees. fences. lvalls. utilit"v poles. utilit),pipe lines, conduits. drains. catch basins. flagstones. rocked graveled or stabilized areas or drivewal s. and including all obstructions not speciticalll' named in this provision. shall be repaired. or replaced. as determined bl the Engineer. Site restoration shall be done in a timell manner as the uork progresses. Site restoration uork shall be completed on private propert) uithin 30 davs after being disturbed. 17.1 Access: As applicable. Contractor shall provide one lane open to through-traft'ic tbr each section of construction in each direction at all times unless a complete road closure is required. The Contractor shall make every effort to provide access to drivewal's at the end of the',vorking da1. If a driverval is not accessible. homeowners should have access to a neighboring suale area for temporary parking. When vehicular access to homes is not possible fbr parking of lehicles. an area fbr parking shall be provided within one block of the furthest home aft-ected. This condition is to be avoided whenever possible and not last more than three (3) days. Vehicular access must be provided b1'the end ofeach business norking dav. The parking area location shall be coordinated b1'the Contractor. with the City"s approval." In the event rhat rhis oprion is approved bl the Cit,v. the Contractor shall notify affected residents aI least 48 hours in advance. 17.5 Date of Commencement and Substantial Completion: The Date of Commencement is the date from uhich the Agreement Time is measured and shall be the date set fbrth in the Notice to Proceed as issued b-v the Cit). Should the Contractor incur costs prior to the issuance olthe Notice to Proceed. any such costs shall be incurred at the Contractor's risk. and the City shall not reimburse the Contractor tbr any such costs under any circumstances. Notwithstanding the foregoing. City may reimburse Contractor for actual costs incurred relating to perfbrmance and pa)'ment bonds and insurance. with submittal of invoices. in the event that Citr- terminates this Agreement fbr convenience. as provided in the General Conditions. If Contractor fails to commence the Work *'ithin one ( I ) week of the date set fbrth in the Notice to Proceed. City maSr terminate the Agreement immediately. r.lithout providing an opponunitl to cure. Protection determines that a limited scope audit olthe Contractor is appropriate. the Contractor agrees to comply with any additional instructions provided by the Departmenl to the Contractor regarding such audit. The Contractor t-urther agrees to comply and cooperate \r.ith any inspections. reviews. investigations. or audits deemed necessary by the Chief Financial OtIcer (CFO) or Auditor General. lS. Indemnitlcation of Citr. l9.l The Contractor shall. in addition to any other obligation. indemnif the Citl and to the t-ullest extent permitted by Iaw. protect. def'end and hold harmless the City, including its agents, elected officials and employees lrom and against all claims, actions. liabilities. losses (including economic losses). or costs arising out ofany actual or alleged: (A) bodily injury. sickness. disease or death. or injury to or destruction ol tan_sible propert) including the loss of use resulting from such propert). or any other damage or loss arising out of or resulting or claimed to have resulted in whole or in part lrom any actual or alleged act or omission ofthe Contractor or its Subcontractors. anyone directl.v or indirectly employed by any of them, or anyone fbr whose acts any of them may be liable in the performance ofthe work: (B) any violation of law. statute. ordinance. go\.emmental administrative order. rule. regulation. or intiingement ol patent. copvright or trademark rights b) Contractor or its Subcontractors in the performance ofthe work: (C) Iiens and claims made by the Contractor or its Subcontractors: and 19.2 Indemniflcation lor Construction Contracts. In the event that the performance olsenices under the Agreement is deemed to be a "construction Agreement" pursuant to $725.06. Florida Statutes. as it mal be amended from time to time. the following indemnification shall appll-: To the fullest extent permitted by Chapter 725. Florida Statutes. as it ma_v., be amended. the Contractor agrees to indemnify and hold harmless the Cit1, its officers, employees, and assigns from liabilities. damages, losses. and costs including. but not limited to reasonable attomey t'ees. to the extent caused by the negligence. recklessness. or intentionally wrongful misconduct ofthe Contractor and persons emplol ed or utilized b1' the Contractor in the performance of the pror.isions in the Agreement Documents. sat-et] 20.1 Defined Terms lbr Purposes of this Section. Environmental Condition means anv set ol physical circumstances in. on. under. or afl'ecting the Propertl that ma), constitute a threat to or endangerment ol health. safetl . propertl. or the environment. including but not limited lo: -10 10. Enr ironnr.'ntal Matters. (A) The presence of an1- hazardous Substance. except in such quantities and concentrations as are routinell'found in nature or in products used in ordinary business or commercial activities: (B) Anl underground storage tanks. as deflned in Subtitle I ofthe Hazardous and Solid Waste Amendments oi 1984. 42 U.S.C. 6991 et. seq.. or the regulations thereunder. fbr the storage ofhazardous wastes. oil. petroleum products. or their byproducts: (C) Any PCB. asbestos or any other substances specifically regulated under the Toxic Substances Control Act. l5 U.S.C. 2601 or regulations issued thereunder; and (D) Any open dump or system of retuse disposal tbr public use without a permit. as prohibited by 42 U.S.C. 6945 andlor Florida law equivalent, or the regulations issued thereunder. Environmental Laws means the Comprehensive Environmental Response. Compensation and Liabilitl Act, zl2 U.S.C. 9601 et. seq.. the Resource Conservation and Recovery Act.42 LJ.S.C. 6901 et. seq.t the Toxic Substances Control Act. l5 U.S.C. 2601 et. seq.: the Clean Water Act. JJ U.S.C. l25l et seq.: the Clean Air Act. 42 U.S.C. 7401 et. seq.; the Oil Pollution Act. 33 U.S.C. 2701 et. seq.. the Hazardous Materials Transportation Act.49 U.S.C. 1801 et. seq.: the Retuse Act of 1989. ii U.S.C. 407: the Occupational Saf'et1' and Health Act. 29 U.S.C. 651 et. seq.. as such laus have been amended or supplemented fiom time to time. the regulations promulgated under these laus: and any'analogous Govemmental Requirements. Environmental Requirements means all present and future Govemmental Requiremenls. including without limitation, the Environmental Lau,s. authorizations. judgments. decrees. conccssions. grants. orders, agreements or other restrictions or requirements relating to any Environmental Conditions or any Hazardous Substances on the Property. Hazardous Substance means any substances or materials identified to be toxic or hazardous according to any ol the Environmental Laws. including rvithout limitation. any asbestos. PCB, radioactive substances, methane, volatile hydrocarbons, acids. pesticides" paints, petroleum based products. lead. cyanide. DDT, printing inks. industrial solvents or any other material or substance that has in the past or could presentll or at an) time in the future cause or constitute a health. saf'et1 or other en\ ironmental hazard to an)' person or propert)'. The term Hazardous Substances includes hazardous r\astes. hazardous substances. extremell hazardous substances. hazardous materials. toxic substances. toxic chemicals. oil. petroleum products and their b1-products. and pollutants or contaminants as those terms are defined in the Environmental Lats. Environmental Permit means any Govemmenlal Approval required under any Enr,ironmental La* in connection rvith the ownership. use or operation ofthe Propertl lor the storage, treatment. generation. transportation, processing. handling. production or disposal ofHazardous Substances. or the sale. transfer or conveyance olthe Property. and all supporting documentation thereof. Environmental Claim means any accusation. allegation. notice of violation, claim. demand, abatement or other order or direction (conditional or otherw'ise) by any Govemmental Authority or an) person fbr personal injury (including without limitation. sickness. disease. or death), tangible or intangible properq damage. damage to the environment. nuisance. pollution. contamination or other adverse elfects on the environment. or fbr fines- penalties. or restricl.ions. resulling fiom or based upon: ll (A) The existence or release. or continuation ofany existence ofa release (including without limitation, sudden or non-sudden. accidental or non-accidental leaks or spills) of, or exposure to. any substance. chemica[. materia[. pollutant, contaminant. or audible noise or other release or emission in. into or onto the environment (including i.r'ithout limitation. the air. ground. rlater or anl surtace) at. in. b)'. iiom or related to the Propert): or (B) The environmental aspects ofthe transportation. storage. treatment or disposal of materials in connection w-ith the activities on the Propert): or (C) The violation. or alleged violation. of an,,- Govemmental Requirements relating to Environmental Requirements on the Property; but excluding any of violations arising solely fiom the intentional actions ofthe City and its agents. 20.2 Corrective Action Work means any and all activities of removal, response. investigation. testing. anal)sis. remediation taken to: (A) Prevent. abate or correct an existing or threatened Environmental Condition at. about. aftecting, or affected by the ProperF,v-: or (B) Comply with all applicable Environmental Requirements. 20.3 Environmental Indemniflcation. Contractor covenants and agrees, at its sole cost and expense. to delend (u'ith counsel selected by Contractor. alier consulting with the Ciq'). indemnifl and hold harmless the Cit). its successors. and assigns tiom and against anl and all Environmental Claims. uhether meritorious or not. brought against the Ciq bl anl Govemmental Authoriry' resulting fiom acts ofthe Contractor: (A) Contractor's indemnification of City is only fbr Environmental Claims which arise out ofor are caused by actions or events occurring afier the Eflective Date ofthe Property Agreement. (B) This indemnification is to be interpreted as broadl1 as possible and is in addition to all other rights of the Citl under this Agreement. (C) Payments b;" Contractor under the Environmental Indemnification uill not reduce Contractor's obligations and liabilities under any other provision ofthis Agreement. (D) Neither the Contractor nor the general contractor. nor anv other contractor in privity with Contractor, has a duty to indemnity- the Ciq. in connection with any Environmental Claims that are due to the negligent conduct of the Cir"v" or its agents. (E) Compliance. Contractor agrees to compl-v'' with all existing and future federal. state. count). and municipal environmental laws. administrative code provisions. ordinances. rules and regulations. and the requirements of anl development order 't_ 20.4 This indemnity includes, without limitation, indemniflcation against: all costs ol removal. response. investigation. or remediation of any kind: all costs of disposal of such Hazardous Substances as necessary to comply with Environmental Laws: all costs associated with any' Corrective Action Work: all costs associated uith claims fbr damages to persons. propert]. or natural resources: anl' loss from diminution in the value ofthe Propertl': and the Citl's Attorne\ s' Fees. consultants' f'ees. court costs and expenses incurred in connection with an1 Enl'ironmental Claims brought against the Cit1 . covering the Property issued pursuant to Chapter 180, Florida Statutes. all as may be amended. 2l.lnsurance Requirements. The Contractor shall not commence Work under the Agreement until Contractor has obtained all insurance required under this Article. The Contractor shall not allorv any employee ol Contractor or any Suboontractor to commence Work until all Coverages required have been obtained and approved b-v the Risk Manager of the Citl'. In addition. Contractor shall be responsible tbr any and all policl deductibles and self-insured retentions. All Certificates of Insurance must clearl-r- identift the Agreement to rvhich they pertain, including a brief description of the subject matter of the Agreement. The certificates shall contain a provision that coverage allbrded under the policies will not be canceled until at least thirty (30) da1's' prior rvritten notice has been given to Citir. Ifthis coverage is not provided. then Contractor is responsible for providing such notice to City. Insurance policies lbr required coverages shall be issued bl companies authorized to do business under the lau,s of the State of Florida and anv such companies' financial ratings must be no less than A-Vll in the latest edition of the ''BEST'S KEY RATING GUIDE", pubtished by A.M. Best Guide. In the event that the insurance carrier's rating shall drop. the insurance carrier shall immediately notify the Citv in u,riting. Coverages shall be in lbrce until all Work required to be pertbrmed under the terms of the Agreement is satislactorily completed as evidenced by the lbrmal written acceptance bl the Citl-. ln the event insurance certificates provided to Cit), indicate that the insurance shall terminate and lapse during the period ofthe Agreement, including any applicable u'arranty' period. then in that event. the Contractor shall furnish, at least thirtv (30) days prior to the expiration of the date of such insurance. a renewed Certificate of Insurance as prool that equal and like coverages fbr the balance of the period of the Agreement, including any extension of it, and including an1' applicable warranty period. is in efT'ect. THE CONTRACTOR SHALL NOT PERFORM OR CONTINUE WORK PURSUANT TO THE CONTRACT, UNLESS ALL COVERAGES REMAIN IN FULL FORCE AND EFFECT. ANY DELAY IN THE WORK CAUSED BY A LAPSE IN COVERAGE SHALL BE NON-EXCUSABLE, SHALL NOT BE GROUNDS FOR A TIME EXTENSION, AND WILL BE SUBJECT TO ANY OTHER APPLICABLE PROVISIONS DESCRIBED IN THE CONTRACT OR ELSEWHERE IN THE PROPOSAL DOCUMENTS CONCERNING CONTRACTOR DELAY. The below coverages are minimum limit requirements. Umbrella or Excess Liability policies are acceptable to provide the total required liabitity limits. as long as the Risk Manager of the City reviews and approves in wdting the insurance limits on each of the policies. The City must approve any changes to these specifications and has the right to review and amend coverage requirements. The Contractor shall be held responsible for any modilications, deviations, or omissions in these insurance requirements. Contractor shall be responsible for any deductible amounts. 33 SPECIAL PROVISIONS AS TO GENERAL LIABILITY INSTIRANCE: (to be confirmed on or attached to the Official Certificate of lnsurance) o The City of Dania Beach. Florida" is to be added as a named "Additional Insured": o Annual Aggregate shall apply "Per Job" o Additional Insured status is included tbr Products completed operations coverage tbr a period ofno less than five (5) 1'earso Additional insured coverage shall be no more restrictive than Insurance Services Office (lSO) form CG 2037 (-7 04)', o Contractor's lnsurance shall be primary and non-contributory o Waiver of Subrogation in favor of the City o l0 Da) s' Notice of Cancellation or modification to City ( if not available on the insurance policies. then Contractor has responsibilitl' for notification): . Copy of Additional Insured Endorsement or other endorsements mav be attached to the Certificate. WORKf,RS' COMPENSATION INSURANCE shall be maintained by Contractor and any- Subcontractors during the life olthe Agreement. including any applicable r arranry period(s). and it is to appll to all "statutory emplorees" ofContractor (as that phrase is defined b1 Chapter.l40. Florida Statutes). in compliance rvith the -Workers' Compensation [-au" of the State of Florida and all applicable lederal laws. for the beneflt ol the Contractor. its employees. and Subcontractors. In the case any work is sublet as othemise addressed in the Agreement or Bid Documents. the Contractor shall require any Subcontractors similarly to provide Workers' Compensation Insurance fbr all olthe latter's emplol ees. in addition to an1' coverage af'forded b1' the Contractor. b1'fumishing statutory limits Part A. and Employers' Liabiliry" Part B with limits ol$100.000.00 each accident. $100,000.00 each employee and $500.000.00 policy limit tbr disease. IN NO EVENT SHALL THE CONTRACTOR BE PERMITTED TO UTILIZE IN THE PROSECLJTION OF THE WORK. THE FOLLOWING: A) ANY EMPLOYEE. SI.IBCONTRACTOR OR ST]BCONTRACTOR EMPLOYEE WHO IS I:XEMPTED OR PURPORTED TO BE EXEMPT FROM WORKERS. COMPENSATION INSURANCE COVERACJE: OR B) ANY EMPLOYEE. SLIBCONTRACTOR OR SUBCONTRACTOR EMPT,OYEES WHO WILL BE COVERED BY AN EMPLOYEE LEASING ARRANGEMENI" SPECIAT- PROVISIONS AS TO WORKERS' COMPENSATION INSURANCE (to be contlrmed on or attached to the Official Certiilcate of Insurance) j.l GENERAL LIABILITY INSI-IRANCE is to include bodily iniury. broad form property damage. products/completed operations. blanket contractual liability. and personal/advertising injury with limits of no less than One Million Dollars ($1.000.000.00) per occurrence. and Two Million Dollars ($2,000.000.00) annual aggregate. . 30 Da;'s' Notice of Cancellation or modification to Cit)' (if not available on the insurance policies. then Contractor has responsibiliry for notification): and. Waiver of Subrogation. AUTOMOBILE LIABILITY INSURANCE shall be maintained uith combined single limits ol no less than One Million Dollars ($ 1.000.000.00). to include coverage tbr onned. hired. and non-o*led lehicles. SPECIAL PROVISIONS AS TO AITTOMOBILE LIABILITY INSURANCE (to be confirmed on or attached to the Oflicial Certificate of Insurance): A) "The City'of Dania Beach" is added as a named "Additional Insured'': B) .i0 Day's' Notice of Cancellation or modification to City (if not available on the insurance policies, then Contractor has responsibility tbr notification): and C ) Wair er ol- Subrogation. 22. Assignment of Agrqglqcl!. The Contractor acknouled ges. understands and agrees that its perlormance under this Agreement is or may be contingent upon the Citl receiving timell services from other Contractors (the "Supporting Contractors"). The Contractor agrees to use its best efforts to coordinate its services with the services ol the Supporting Contractors and further agrees that in the event the rendition of any services ol any of the Supporting Contractors is delal'ed, such delay will not entitle the Contractor to any additional compensation or payment of an.,' kind. Furthermore. the Contractor shall not be entitled to an increase in compensation. or be entitled to pa1'ment of any' kind from the Cit"v. fbr damages or expenses incurred which are direct. indirect or consequential or other costs and lost protlts of anv kind including. but not limited to. costs of acceleration. inetliciencl or extended overhead. arising because ofanl'other delay. disruption. intemrption. intert-erence or hindrance t-rom an] cause u'hatsoel'er. n'hether such delal'. disruption or interf'erence be reasonable or unreasonable- loreseeable or unloreseeable. or avoidable or unavoidable: provided. however. that this provision shall not preclude recovery ol damages by the Contractor fbr hindrances or delays caused solely by fiaud. bad t'aith or acti!e malicious interference on the part olthe City. The Contractor shall only be entitled to extensions of time for perlormance as the exclusive and sole remedy for delay. In recognition ol the lact that Contractor is not entitled to costs of acceleration arising out of the delays caused b1' Supporting Contractors. Contractor shall not be required to accelerate its sen'ices where delal's have resulted liom Supporting Contractors" unless the Citr agrees to compensate Contractor fbr such accelerated et'forts. 23. Public Records Law. Contractor shall maintain books. records. documents and other evidence directly pertinent to perlbrmance ol work under this Agreement in accordance with generally accepted accounting principles and practices. The Contractor shall also maintain the flnancial information and data used by the Contractor in the preparation of support olanl claim fbr reimbursement tbr &n) out-of-pocket expense or cost. The Citl- shall have access to such books. records. documents and other evidence tbr inspection. audit and copf ing during normal business hours. l'he Contractor uill provide proper tacilities fbr such access and inspection. Audits conducted under this section shall ohsene generalll accepted auditing standards and established procedures and guidelines olthe City. The Florida Public Records Act. Chapter I l9 ,.i 5 ol the Florida Statutes. mal hare application to records or documents pertaining to this Agreement and Contractor acknowledges that such laws have possible application and agrees to compll' uith all such laws. lJpon request from the City custodian olpublic records. Contractor shall provide the Cit1 r,"'ith a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by Chapter l19, Florida Statutes. or as otheruise provided by law. 24. Retention OlRecords And Risht To Access 2tl.l The Contractor shall preserve and make available all flnancial records. supporting documents. statistical records. and an) other documents pertinent to the agreement tbr a period olfir'e (5) years after termination or conclusion ofthe agreement. or if an audit has been initiated and audit tindings have not been resolved at the end ofthese five (5) years. the records shall be retained bv the City until resolution ofaudit finding. The Contractor shall retain sulficient records demonstrating its compliance with the terms of the award and this Agreement for a period of five (5) years lrom the date the audit report is issued. and shall allo'il the Department of Environmental Protection. or its designee. Chief Financial Offlcer. or Auditor General access to such records upon request. The Contractor shall ensure that audit u.orking papers are made available to the Department of Environmental Protection. or its designee. ChiefFinancial Officer. or Auditor General upon request fbr a period ofthree (3) years fiom the date the audit report is issued. unless extended in uriting b1 the Department of Environmental Protection. 24.2 Unless otherw'ise provided by lau. an1- and all records" including but not limited to reports. surve)s. and other data and documents provided or created in connection with this Agreement are and shall remain the property olthe City. 24.3 LJpon completion of Work under this Agreement or in the event ol termination by either part)'. any and all public records relating to the Agreement in the possession ol the Contractor shall he delivered by the Contractor to the City Manager, at no cost to the City. within seven (7) days. All such records stored electronically bl Contractor shall be delir,'ered to the City in a fbrmat that is compatible r,'ith the City's intbrmation technology svstems. Once the public records have been delivered upon completion or termination ol this Agreement. the Contractor shall destrol anl' and all duplicate public records that are e\empt or confidential and erempt from public records disclosure requirements. 24.4 Any compensation due to Contractor shall be u'ithheld until all records are received as provided in this Agreement. 24.5 Contractor's failure or refusal to comply with the provisions olthis section shall result in the immediate termination of this Agreement b), the City. i6 25. SectionI19.0701(2)(a ). Florida Statutes IF THE CONTRACTOR HAS QUESTIONS REGAR.DING THE APPLICATION OF CHAPTER II9, FLORIDA STATLTTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PTIBLIC RECORDS RELATINC TO THIS CONTRACT, CONTACT THE CI.ISTODIAN OF PUBLIC RECOR-DS. Custodian of Records: Mailing Address: ELORA RIERA CITY CLERK 100 W. Dania Beach Boulevard Dania Beach, Florida 3300-l Telephone number: Email: 26. No Waiver. Failure of the City to insist upon strict perlormance ofany provision or condition of this Agreement. or to enforce any right contained in it, shall not be construed as a waiver or relinquishment lor the future ofany such provision, condition or right. but the same shall remain in t'ull force and effect. 27. Declaration oi Del-ault. The iailure ofthe Contractor a) to supply enough properly skilled workers or materials. or b) its failure to make prompt payments to subcontractors. or for materials or labor. or c) to obey [au's. ordinances. rules. regulations or orders ofpublic agencies having jurisdiction. or d) to comply in any way with the Agreement Documents. shall be sufficient grounds for the City to find the Contractor in material deflault. and that sufficient cause exists to terminate the Agreement for cause, and to withhold payment or an) part thereof until the cause or causes giving rise to the default has/have been eliminated by the Contractor and approved by the City. Ifa finding ofdelault is made by the City. the Contractor and its Surety shall remain responsible for pertbrmance of the requirements of the Agreement Documents unless and until the Cit, terminates the Agreement. Upon a finding of default. the City shall set a reasonable time. but in no event in excess ofseven (7) calendar days after written notice tiom City detailing the default. within which the Contractor and its Surety shall eliminate the cause or causes ofdetault. When the basis for finding oldefault no longer exists. the City shall notift the Contractor and its Surery-. in writing, that the delault has been corrected. and that the Contractor is no longer in default. If the Contractor fails to correct the default within the time allowed. the City. without further notice to Contractor or its Surety. may immediately terminate the Agreement and the employment of the Contractor. without otherwise waiving its rights against the Contractor or its Suretv. To the extent that the time limits herein conflict with those set forth in the Performance Bond. the time limits in this section shall take precedence. 28. Termination Or Suspension Of Agreement 28. 1 Termination Br- The Contractor A. The Contractor may terminate the Agreement for non-payment (except for those provisions in this agreement that specifically provide for withholding pa-vment). f'ailure to 37 95.1-92,1-9800, Ext. 3623 erie ra (ddaniab eac hfl . qov l. issuance ofan order oia court or other public authorit_v having jurisdiction. and B. lf one of the above reasons exists, the Contractor may, upon five (5) additional days' written notice to the City, terminate the Agreement and recover lrom the City payment for Work performed. (A) The Citl may terminate the Agreement ilthe Contractor: (l) persistently or repeatedly refuses or lails to supply enough properly' skilled workers, proper equipment" materials, or fails to adhere to the schedule established as adjusted from time to time pursuant to the terms olthe Agreement: (3) commits any act or omission that evidences a lack of integrity or honesty or which reflects negatively on the City, including but not limited to the company of its oi.mers. officers and agents being charged with any act of moral turpitude or any environmental violation; (4) fails to obtain or maintain all insurance Coverage required by the Agreement Documents; or (5) otherwise, is guilty of substantial breach of a provision of the Agreement or Agreement Documents; or (6) One or more of the following circumstances. uncorrected for more than thirty (30) days unless, r,n ithin the specified 30-day period, Contractor (including its receiver or trustee in bankruptcy) provides to Department adequate assurances. reasonably acceptable to Department. of its continuing ability and willingness to fulfill its obligations under the Agreement: i. Entry of an order fbr relief under Title I 1 of the United States Code: ii. The making by Contractor ol a general assignment for the benefit of creditors: iii. The appointment ofa general receiver or trustee in bankruptcy of Contractor's business or propefiy: and,/or iv. An action by Contractor under anv state insoh.ency or similar law for the purpose ol its bankruptcy. reorganization, or liquidation; or 2 38 certify pa)ment. delays of greater than 120 days not caused by Contractor. other material breaches by the City, and if the Work is stopped for a period olthirty (30) dals through no act or fault of the Contractor, Subcontractor, Sub-subcontractor, their agents or employees. or any other persons performing portions of the Work under the Agreement with the Contractor, for any ofthe follow-ing reasons: an act of govemment, such as a declaration of national emergency. making material unavailable. 28.2 Termination Bv The City For Cause: (2) fails to comply with laws, ordinances, or rules. regulations or orders of a public authority having jurisdiction, including City: (7 \ IlContractor or its Surel_y"( ies) do(es) not cure such failure w ithin seven ( 7) calendar dals fiom receipt of notification. or sooner il consideration of satetl' to persons is involl'ed. or if Contractor or its Suret)(ies) lails to provide satisfactory. evidence that such default will be corrected. Ciq ma1. $ithout further notice to Contractor. terminate in rvhole or in part Contractor's right to proceed with u'ork b,v written notice and prosecute the Work to completion by Agreement or by any other method deemed expedient. City may take possession ofand utilize any materials, plant. tools, equipmenl. and propertl,of any kind fumished by Contractor and necessary to complete the Work. (8) Contractor, and its sureties. shall be liable. jointly and severally, to City fbr all costs in excess of the Agreement price fbr such terminated work reasonably and necessarill' incurred in the completion ofthe Work. as adjusted by Change Orders. ifany. including cost of administration ofany Agreement awarded to others for completion. plus Liquidated Damages. (9) The commitment of any material breach of this Agreement by Contractor. including t'ailure to timell'deliver a material deliverable. tbilure to perform the minimal level ol sen ices required for a delir-erable. discontinuance olthe performance olthe '*ork. lailure to resume uork that has been discontinued ',vithin a reasonable time after notice to do so. or abandonment of the Agreement: or (10) Failure to abide by any statutory. regulatory. or licensing requirement. including an entry of an order revoking the certificate ol authority granted to the Contractor by a state or other licensing authority: or ( I I ) Failure to pay any and all entities. individuals, and fumishing labor or materials, or tailure to make payment to any other entities as required by this Agreement: or ( l2) Failure to maintain the insurance required by this Agreement. 28.itJpon termination fbr default. Contractor shall: (a) immediately discontinue nork on the date and to the extent specified in the notice and place no lurther purchase orders or subcontracts to the extent that the) relate to the perlbrmance of work terminated: (b) inventory, maintain and tum over to City all materials. plant. tools. equipment. and property fumished b1- Contractor or provided by City lbr performance of workl (c) promptly obtain cancellation upon terms satisl'actory to City of all purchase orders. subcontracts, rentals. or any other agreements existing lor pertbrmance of the terminated work or assign those agreements to City as directed; (d) cooperate w-ith City in the transf'er of infbrmation and disposition of work in progress so as to mitigate damages; (e) comply with other reasonable requests from City regarding the terminated work: and t9 (t) continue to perform in accordance uith all of the terms and conditions of the Agreement such portion of rvork that is not terminated. (g) When the City terminates the Agreement. the Contractor shall not be entitled to receive anl further payment until the Work is completed and approved by the Engineer ol Record. (h) All damages, costs and charges incurred by City shall be deducted from any monies due or which may become due to Contractor. ln case the damages and expenses so incurred by City shall exceed the unpaid balance, then Contractor shall be liable and shall pay to City the amount olsuch excess. 28.4 [1. afier Notice of Termination or Suspension of Contractor's right to proceed. it is determined fbr any reason that Contractor was not in det'ault. the rights and obligations ol Citl and Contractor shall be the same as if the Notice of Termination had not been issued. pursuant to the Termination for Convenience clause as set fbrth belor. I8.5Termination Br The Cin For Conr enience: The Agreement ma1* be terminated fbr convenience by'Citl upon fifteen (15) days' adr,ance vnritten notice to Contractor and the Contractor's surety. ifan1 (delivered bl certilied mail. return receipt requested) of intent to terminate and the date on which such termination becomes eftective. In such case, the Contractor shall be paid for all acceptable u,ork perfbrmed prior to termination and shall not be entitled to any other costs. t'ees or payments. City'may. at its option and convenience. terminate the Agreement, in whole or in part. at any time by written notice thereol to Contractor. whether or not Contractor is in def'ault. Upon any such termination. Contractor hereby waives any claims fbr damages fiom the termination, including. without limiting the generality thereof. loss of anticipated profits on Work not performed on account thereof, home otfice overhead. lost bonding capacity. and consequential damages. As the sole right and remedl' oi Contractor. Cit.v shall pay Contractor in accordance with Subparagraphs belou: prorided. however, that those provisions of the Agreement. which by their ver_r' nature survive tlnal acceptance under the Agreement. shall remain in lull force and effect afier such termination .+0 (a) Upon receipt ofany such notice, Contractor and its Surety- shall. unless the notice requires otherwise: (b) tmmediately discontinue work on the date and to the extent specified in the notice. (c) Place no lurther orders or subcontracts fbr materials, services, or facilities, other than as may be necessary or required for completion ofsuch portion of work under the Agreement that is not terminated; (d) Promptly make every reasonable eflort to obtain cancellation upon terms satisf'actory to City of all orders and subcontracts to the extent they relate to the perlormance of work terminated: (e) Il requested by the City in w'riting. assign to the CiO". all right. title and interest olthe Contractor under the subcontracts teminated. Such Assignment shall not include assumption of Contractor's obligations or liabilities under any subcontract. The City shall have the right (but not the obligation) to assume the Contractor's obligations under any' subcontracts assigned. Neither this paragraph or any assignment of subcontracts, shall constitute the City's assumption of Contractor's or other obligations under any such subcontract absent a written document executed by the City and the subcontractor in which the City expressly acknowledges an assumption ofContractor's obligations, and then only to the extent specified. ln no event will the City assume any obligation ofthe Contractor under the subcontracts that arise out ol or relate to Contractor's det-ault prior to such assignment; (t) The Contractor shall include in all subcontracts, equipment leases and purchase orders, a provision requiring the subcontractor. equipment lessor, or supplier, to consent to the assignment of their subcontract or purchase order to the City; (g) Assist Citv. as specifically requested in writing, in the maintenance. protection and disposition of property acquired by City under the Agreement; and, (h) Complete performance of any w-ork that is not terminated. (i) Upon any- such termination, City will pay to Contractor an amount determined in accordance vn ith the follow-ing (without duplication olany item): () Al[ amounts due and not previously paid to Contractor for work completed in accordance with the Agreement prior to such notice. and for work thereafter completed as specified in such notice. (k) The reasonable cost ol settling and paying claims arising out ofthe termination of work under subcontracts or orders. (l) The verifiable costs incurred prior to notice of termination. (m) Any other reasonable costs which can be verilied to be incidental to such termination ol Work. includ ing demobilization cosls. (n) In the case of such termination lbr City's convenience, Contractor shall be entitled to receive payment for Work actually executed, and verifiable costs incurred by reason of such termination, along with an amount not to exceed ten (10) percent for profit and overhead on such verifiable costs incurred. (o) The Ciq,'s Termination lor Convenience shall be without u,aiver or prejudice to. all of the City's claims. rights and remedies arising out of or related to any default, breach of Agreement. damages or other claims the City may have against Contractor, or Contractor's subcontractors, material suppliers of any tier. or any other person or entity at the time of termination or arising thereafter. (p) Contractor hereby acknowledges acceptance of the risk andcost of the foregoing and acknor,,,ledges and agrees to the foregoing limitation on Contractor's claims or damages arising out oi or relating to, a termination for convenience by the City. (q) Contractor shall submit w'ithin 30 calendar days alter receipt ofnotice of Termination. lbr Convenience. a written proposal for payment. including all incuned costs and other entitlements described herein. City shall review. analyze, and verily such proposal. and ,+1 negotiate an equitable adjustment" and the Agreement shall be amended in uriting accordingly. 29. Suspension By The Citl' For Cause The Cit-v may order the Contractor in writing to suspend, delay or interrupt the Work. in whole or in part for such period of time as deemed necessary by the City. if the Contractor fails to maintain all insurance Coverage required by the Agreement Documents. Any delay in the Work caused by a lapse in Coverage shall be deemed non-excusable, shall not be grounds for a time extension. and shall be subject to any other applicable provisions in the Agreement and Agreement Documents conceming Contractor delay. (B) if such suspension exceeds thirry (30) consecutive days. Contractor may also be entitled to an adjustment in the Agreement Sum for increases in the cost of performance ofthe Agreement resulting directly from the suspension, delay. or intemtption, including reasonable profit on such increased cost; provided however, that no adjustment will be made to the extent: (l) that performance is, was, or would have been so suspended delayed. or intemrpted by another cause for ra'hich Contractor is responsible; (2) that Contractor lails to adequately document the cost increase: (3) that the Contractor would have incurred the cost increase regardless ofthe suspension, delay, or intenuption. or (4) that an equitable adjustment is made or denied under another provision of the Agreement or Agreement Documents. 3 1 . Termination lor Cause If the Contractor fails to provide the sen'ices or shall in any other manner commit a breach ofthe agreement and fails to remedy the same w-ithin 30 calendar da-vs after receipt ol written notice f'rom the City, the City may terminate the agreement, without any further notice to the Contractor. City' representatives will revien the construction sen-ices periodically to assure that the requirements olthe agreement are being met. Il any w'ork is unsatisfactory. the Contractor shall be contacted, and the discrepancies corrected at no additional cost to the City. Ifdeficiencies are not corected uithin f-rve (5) working days, the City may. at its option. perform the required services or contract to have them perlormed and deduct the cost of those sen'ices from the agreement cost. 12 30. Suspension Bv The City F (A) The Cit-v may, without cause, order the Contractor in uriting to suspend, delay or intermpt the Work in w'hole or in part, lor such period of time as the City mal- determine, and the Contractor shall be entitled to an appropriate time extension, provided the suspension delays the critical path olthe Work. 3 1 A. Receipt Of Notice Of Termination Or Suspension Upon receipt of Notice olTermination or suspension, Contractor shall deliver or otherwise make available to City all data, drawings, specifications. reports, estimates, summaries and such other information as may have been required by the Agreement or Agreement Documents. whether completed or in process. Upon receipt of any such written notice, Contractor shall, unless the notice requires otherwise: (a) immediately discontinue work on the date and to the extent specified in the notice; (b) place no further orders or subcontracts for material, services, or facilities with respect to suspended work other than to the extent required in the notice; (c) promptly make every reasonable effort to obtain suspension, upon terms satisfactory to Ciq,, of all orders, subcontracts and rental agreements to the extent they relate to performance of work suspended; (d) continue to protect and maintain the Work including those portions on w-hich work has been suspended, and (e) take any other reasonable steps to minimize costs associated with such suspension. In addition to all amounts that would otherwise be due for Work performed prior to the suspension, as compensation for such suspension, Contractor will be reimbursed lbr the following veritlable costs (without profit) and without duplication ofany item, to the extent that such costs directly result liom such suspension of work: (a) standby charge to be paid to Contractor during the period olsuspension of work which standby charge shall be sufficient to compensate Contractor lor keeping, to the extent required in the notice. its organization and equipment committed to the Work in a standby status; (b) All reasonable costs associated w-ith mobilization and demobilization ol Contractor's plant, forces and equipment: and (c) An equitable amount to reimburse Contractor for the cost of maintaining and protecting that portion ofthe Work upon u,hich work has been suspended. 43 32. Ownership of Documents. AII correspondence, studies. data. analyses, documents, instruments, applications, memorandums and the like, including drawings and specitications prepared or fumished by Contractor (and any Subcontractor) pursuant to this Agreement shall become owned by and be the property of the City and the City shall consequently obtain ou'nership of them b,v any statutory law' or common law- and other reserved rights. including copyright; however. such documents are not intended or represented b,v Contractor to be suitable fbr reuse by City on extensions of the work or on any other work or project. Any such reuse. moditlcation or adaptation of such document u,'ithout written verification or permission by Contractor for the specific purpose intended will be at City's sole risk and without liability or legal exposure to Contractor or to any' Subcontractors. IlCity alters any such documents, City will expressly acknowledge same so that no third party will be in doubt as to the creation or origination of any such document. 33. Force Maieure. Under any and all provisions of this Agreement, neither the City nor Contractor. as the case may be, will be considered in breach of or in delault of any ol their respective non-monetary and monetary obligations under the Agreement as a result of an unavoidable delay due to strikes, lockouts, acts ofGod, inability to obtain labor or materials. riot, war, hurricane. tomado, weather related events or conditions, pandemics. epidemics, shutdon'ns due to govemment restrictions, utilit_v company delays, or other similar causes beyond the commercially reasonable control of a party (in each case. an event of "Force Majeure"). Upon the occurrence of a Force Majeure. the applicable time-period will be extended for each day of the period ofthe Force Maieure event. 34. Remedies Cumulative. Waiver The rights and remedies olthe parties to this Agreement. whether provided by law or by this Agreement, are intended to be cumulative and concurrent. The exercise by either party ofany one or more of its remedies will not preclude the exercise by' a party, at the same or diflerent times. ofan1-other remedies lor the same def-ault or breach. or of an"v of its remedies for any other delault or breach by the other party. The waiver by a party of any default or Event of Default under this Agreement w-ill not extend to or affect any other existing or subsequent Event ofDefault, or impair any rights. poners. or remedies of a part-v-' in connection with an1' other delault or Event of Default. A partv's delal-' or omission in exercising any right, power or remedy will not be construed as a waiver ofany delault or Event of Default or constitute acquiescence to the default. 35. Notices. Except as provided above, whenever either party desires to give notice to the other. it must be given b.v written notice. sent by certified U.S. mail, with retum receipt requested, addressed to the part) for ri,'hom it is intended. at the place last specified and the place for giring of notice in compliance w-ith the provisions of this paragraph. For the present. the pafties designate the lbllowing as the respective persons and places for giving ofnotice: Cit\'Ana M. Garcia. ICMA-CM" City Manager City of Dania Beach. Florida 100 West Dania Beach Boulevard Dania Beach. Florida 33004 With a copy to:Eve A. Boutsis City Attomey City of Dania Beach '100 West Dania Beach Boulevard Dania Beach. Florida 33004 Contractor:E. Michael Sweeney Southern Underground Industries, Inc. 794 S. Military Trail Deerfield Beach. Florida 33321 41 36. Governing Law. The parties agree that this Agreement shall be construed in accordance u'ith and govemed by the laws of the State of Florida. 37 . Bankruptcy.It is agreed upon that if the Contractor is adjudged bankrupt. either voluntarily or involuntarily. then this Agreement shall terminate eff-ective upon the date and at the time the bankruptcy petition is filed. Upon such filing of Bankuptc-!-. Contractor will automatically be in default of this Agreement and the provisions of Article 9 will be enforced at City's discretion. 38. Dispute Resolution A. The responsibility to substantiate a Claim shall rest with the partl making the Ctaim. AII Claims must be made in writing and addressed to the City and the Contractor. B. Process lor Resolving a Claim. The Contractor shall revien'the Claim and make a recommendation to the City. The Ciqr shall render a tinal decision regarding the Claim. A decision by the Citv shall be required as a condition precedent to litigation of a Claim bet\,veen the Contractor and City as to all such matters arising prior to the date linal payment is due. regardless o1': l) whether such matters relate to execution and progress of the Work; or 2) the extent to which the Work has been completed. C. Time Limits on Claims. Claims by the Contractor must be made within thirty (30) da),s after occurrence ofthe event giving rise to such Claim or rvithin thirt), (i0) days after the claimant first recognizes the condition giving rise to the Claim. w-hichever is later. CIaims by the Contractor or its respective subcontractors must be made by *'ritten notice to the Cit-v. An additional Claim made after the initial Claim has been implemented by Change Order u,ill not be considered unless submitted in a timely manner. D. Continuing Agreement Perlbrmancq. Pendin g final resolution of a Claim. unless otherwise agreed in writing. the Contractor shall proceed diligently with performance of the Agreement and the City shall continue to make payments in accordance with the Agreement Documents. E. Claims for Concealed or Untnown Conditions. Ifconditions are encountered at the Project site which are: 1) subsurface or othern'ise concealed physical conditions ilfiich dilfer materially from those indicated in the Agreement Documents: or 2) unknown phy'sical conditions of an unusual nature, which diff'er materially lrom those ordinarily found to exist in the locale olthe Project site and generally not recognized as inherent in construction activities ol the character provided for in the Agreement Documents. then notice by the observing party shall be given to the other parll promptl) before conditions are disturbed and in no event later than t\\,enty-one (21) days after flrst observance ofthe conditions. The Contractor shall promptlf investigate such conditions and. if thel- differ materially and cause an increase or decrease in the Contractor's cost of, or time required ,+5 38.1 Claims And Disputqs G. Claims tbr Additional Time. 1. If the Contractor wishes to make Claim lor an increase in the Agreement Time, written notice as provided in these Conditions shall be given. The Contractor's Claim shall include an estimate ofcost and a probable effect oldelay on progress olthe Work. In the case of a continuing dela,v, only one Claim is necessary. 2. lf adverse weather conditions are the basis lbr a Claim for additional time. such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that $,eather conditions had an adverse etlect on the scheduled construction. H. Iniury or Damage to Person or Propertv. If either party to the Agreement sufTers injury or damage to person or property because ofan act or omission ofthe other pafiy. or any of the other parly's emplovees or agents, or of others for w-hose acts such party is legally liable, written notice ol such injury or damage, r.r'hether or not insured, shall be given to the other party within a reasonable time not exceeding twenty-one (21 ) days after first observance of the iniury or damage. The notice shall provide suff-rcient detail to enable the other pafty to investigate the matter. A. The Contractor shall review Claims and take one or more of the fbllowing preliminary actions within ten days ofreceipt ofa Claim: 1) request additional supporting data fiom 16 for, perlbrmance ofany part ofthe Work. Contractor shall recommend to the Consultant. with the City's approval. an equitable adjustment in the Agreement Sum, Agreement Time. or both. If the Consultantdetermines that the conditions at the Project site are not materially diff'erent liom those indicated in the Agreement Documents and that no change in the terms of the Agreement is justified, the Consultant shall so noti! the City and Contractor in writing. stating the reasons. Claims b1' either party in opposition to such determination must be made within tr.r'enty-one (21) days after the Consultant has given notice ofthe decision. If the Consultant and Contractor cannot agree on an adjustment in the Agreement Sum or Agreement Time. the adjustment shall be ref-erred to the Cit-v lor final determination. F. Claims fbr Additional Cost. If the Contractor wishes to make Claim for an increase in the Agreement Sum, written notice as provided in these Conditions shall be given before proceeding to execute the Work. Prior notice is not required lor Claims relating to an emergency endangering life or property arising under Paragraph 10.3. lfthe Consultant believes additional cost is involved lbr reasons including but not limited to: l) a written interpretation from the Contractor; 2) an order b_v the City to stop the Work where the Contractor was not at fault: 3) a written order for a minor change in the Work issued bJ' the Contractori ,l) failure of payment b1-the City: 5) termination of the Agreement by the City: or 6) City-'s suspension ofWork. then the Claim shall be filed in accordance with the procedure established in this Agreement. i8.2 Resolution Of Claims And Disputq! the claimant: 2) submit a schedule to the parties indicating when the Contractor expects to take action: or 3) suggest a compromise. The Consultant may. at the Citv's direction. notii/ the surety, if any. of the nature and amount of the Claim. The Contractor shall notiry the City or the Claimant. The City shall make the final determination of w.hether to pay or dispute the Contractor's Claim. B. If a Claim has been resolved, the Contractor shall prepare or obtain appropriate documentation. C. If a Claim has not been resolved. the party making the Claim shall, within ten days (10) after the Contractor preliminary response, take one or more olthe lollowing actions: 1) submit additional supporting data requested by the Contractor;2) modiS' the initial Claim: or 3) noti!, the Contractor that the initial Claim remains valid. D. The Contractor shall notifi, the parties in writing of the City's decision within seven days of receipt of: I ) additional supporting data: 2) a request to modifu the initial Claim; or 3) that the initial Claim stands and the Ciqv's decision shall be final and binding on the parties but subject to review b1' a court of competent jurisdiction. The Contractor shall prepare or obtain appropriate documentation regarding the Claim. [fthere is a suretl and there appears to be a possibility ofa Contractor's default, the Contractor_may. at the Citv's direction. but is not obligated to. notif! the surety and request the suret)'s assistance in resolving the controversy. 38.3 All claims. counterclaims, disputes and other matters in question between City and Contractor arising out of. relating to or pertaining to this Agreement, the breach of it. the services of it, or the standard of performance required in it, shall be addressed by resort to non-binding mediation as authorized under the laws and rules olFlorida: provided. hou,ever, that in the event of any dispute between the parties, the parties agree to first negotiate n'ith each other for a resolution ofthe matter or matters in dispute and, upon lailure ofsuch negotiations to resolve the dispute. the parties shall resort to mediation. 39.1 Ifmediation is unsuccessful. any such matter may be determined by litigation in a court of competent jurisdiction in Broward County, Florida, or the Federal District Court ol the Southem District of Florida and appropriate appellate courts for such venue and jurisdiction. To be clear. should mediation flail. all claims. counterclaims. disputes and other matters in question betreen City and Contractor arising out ol, relating to or pertaining to this Agreement. or the breach of it. or the services of it, or the standard of performance required in it" shall be addressed b) resofi to non-binding mediation as authorized under the lar.r,'s and rules of Florida. IN ANY LITIGATION THE PARTIES AGREE TO EACH WAIVE ANY TRIAL BY JURY OF ANY AND ALL ISSUES. THE PARTIES UNDERSTAND AND AGREE THAT THIS WAIVER IS A MATERIAL AGREEMENT TERM 17 39. Venue: Fees. 39.2 Operations During Dispute. In the event that a dispute arises between the City and the Contractor relating to this Agreement, or its performanoe or compensation, the Contractor agrees to continue to render services in full compliance with all terms and conditions olthis Agreement as required bl the Cit1. 41 . Prevailinq Paftv 's Attomevs' Fees. lf either party institutes legal proceedings in connection with the Agreement, the prevailing party will be entitled to recover its costs of suit. including u,ithout limitation, its Attomeys' Fees. 42. Headinss. Headings in this document are for convenience ol reterence onl-v and are not to be considered in any interpretation ofthis Agreement. 43. Exhibits. Each exhibit referred to in this Agreement forms an essential part of this Agreement and each such exhibit is incorporated by this reference. 41. Severabilin. Il an1' provision of this Agreement or the application of it to an1' person or situation shall to an1'extent be held invalid or unenfbrceable. the remainder olthis Agreement" and the application ofsuch provisions to persons or situations other than those as to which it shall have been held invalid or unenfbrceable. shall not be atfected. shall continue in full tbrce and effect. and shall be enforced to the fullest extent permitted b1- law. 15. All Prior Asree ments Superseded. This document inco rporates and includes all prior negotiations. correspondence. conversations. agreements and understandings applicable to the matters contained in this Agreement and the parties agree that there are no commitments. agreements or understandings conceming the subject matter of this Agreement that are not contained in this document. Accordingly. it is agreed that no deviation from the terms of this Agreement shall be predicated upon any prior representations or agreements. rvhether oral or r,"ritten - 46. lndependent Contractors. Contractor. an y Subcontractors and their respective employees and agents shall be and remain independent Contractors and not employ'ees of City with respect to all ofthe acts and services perfbrmed under the terms olthis Agreement. This Agreement shall not in any way be construed to create a pa(nership, association or any other kind ofjoint undertaking. enterprise or venture beti.l,een the parties to this Agreement. AlI agents. employees and Subcontractors of the Contractor retained to perfbrm senices pursuant to this Agreement shall comply nith all laws olthe United States conceming rvork eligibilitl. ,17. The Contractor understands and agrees that the City. during any tiscal year. is not authorized to expend money. incur any liability. or enter into any Agreement which. by its terms. involves the expenditure ofmoney in excess ofthe amounts budgeted as available lbr expenditure during such fiscal year and that anv Agreement. verbal or written. made in violation olthis subsection is null and void and that consequentl)'. no monev ma) be paid on such Agreement belond such limits. Nothing contained in this Agreement shall prevent the making ;18 40. Lesal Representation. [t is acknowledged that each partl to this Agreement had the opportunitl to be represented by'counsel in the preparation olthis Agreement. ol contracts tbr periods exceeding one (l ) 1'ear. but any Agreement so made shall be executory only fbr the ralue ofthe senices to be rendered or agreed to be paid for in succeeding fiscal years. Contractor shall not proceed with services under this Agreement without City's raritten verification that the funds necessary for Contractor compensation and other necessary expenditures are budgeted as available within the appropriate fiscal 1'ear budget. 48. Contractor warrants and represents that no elected oftcial, officer. agent or employee of the Citl has a financial interest. directly or indirectly, in this Agreement or the compensalion to be paid under it and. turther. that no Cit! employ.ee nho acts in the Citl of Dania Beach as a "purchasing agent'' as det'ined in Chapter ll2. Florida Statutes. nor an1' elected or appointed ofllcer ol the City of Dania Beach, nor any spouse or child of such purchasing agent" employee or elected or appointed officer, is a paftner, officer. director or proprietor of the Contractor and. turther. that no such Citl emplolee. purchasing agent. Cit)' elected or appointed offlcer. or the spouse or child olanl of them. alone or in combination. has a material interest in the Contractor. Material interest means direct or indirect ownership of more than llve percent (5%) olthe total assets or capital stock of the Contractor. 49. Contracror shall compll uith all f'ederal. state and City lau,s applicable to the Contractor services and specifically those covering Equal Opportunity Employment. the Americans u'ith Disabitities Act (''ADA") eligibility to perform services as specified in the Florida Public Entity Crime la\iv and the Ftorida Buitding Code. The Contractor is expected to fully compll'uith all provisions of all lau's and the Citl reserves the right to verili the Contractor's compliance with them. Failure to compl!, with any laws rvill be grounds lbr termination of the Agreement fbr cause. 50. In the event olanl conflict betueen an] provisions of this Agreement and an-,- prorision in an1, attached Exhibit. the parties agree that the provisions of this Agreement are controlling (including. but not limited to, all terms and provisions goveming compensation). Further, any prior Agreement related to the sen'ices is rescinded and replaced by this Agreement. 51. Contractor agrees to pertbrm its obligations under this Agreement in accordance with the degree of skill and care exercised by multimedia Contractors performing similar sen'ices under similar conditions. Contractor makes no other representations and no uarranties- rvhether express or implied" with respect to the quality of its performance under this Agreement. 52. Sovereiqn Immunitr'. Contractor acknowled ges that the Florida Doctrine on Sovereign lmmunitl bars all claims bl. Contractor against the Cit-v other than claims arising out of this Agreement. Specifically. the Contractor acknowledges that it cannol and *ill not assert an\ claims against the City. unless the claim is based upon a breach by the City of this Agreement. Further. the Contractor recognizes the Cit"v is a sovereign with regulatory authority that it erercises lbr the health. safety. and u.elfare of the public. This Agreement in no wal' estops or atllcts the Cit1"s exercise ofthat regulatory authorit)'. In addition. the Citl retains the tull extent 6f its sovereign immunity in relation to the exercise of its regulatory authoritv. The Contractor acknouledges that it has no right and will not make claim based upon any ofthe fbllowing: -19 A. Claims based upon any alleged breach by the City of implied wananties for representations not specificall) set forth in this Agreement. as the parties stipulate that there are no such implied uarranties or representations of the Contractor. All obligations olthe parties are only'as set forth in this Agreement: Claims based upon negligence or any tort arising out of this Agreement; Claims upon alleged acts or inaction by the City, its commissioners. altome] s. administrators. Contractors. agents. or an)' Contractor emplovee: D Claims based upon an alleged uaiver of any'of the terms olthis Agreement unless such waiver is in writing and signed by an authorized representative for the Cir-v" and Contractor. 53. Financial records. The Contractor shall maintain accurate and com plete financial records of its activities and operations relating to this Agreement in accordance uith generally accepted accounting principles. Contractor shall maintain adequate records to justiti all charges and costs incuned in perfbrming the services lbr at least three (3) years after completion of this Agreement. Contractor agrees that the City, or its authorized representatives, shall have access to and the right to examine. audit. excerpt. copy or transcribe any pertinent transaction. acti\it). or records relating to this Agreement during normal business hours. All such materials shall be maintained b1' Contractor at a location in Brouard Counr."*, Florida: provided that if anl such material is located outside Broward County. then. at the City''s option the Cit.v shall pay Contractor for travel, per diem. and other costs incurred by Contractor to examine, audit. excerpt, copy or transcribe such material at such other location. The City shall make a reasonable ef'fort to maintain the confidentialitl of such audit report( s). 5.+. ScrutinizedComp4lie!-Contractorshallcerti $ that it is not on the Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida Statutes (20'18), and that it is not engaged in a boycott of Israel. The City may terminate this Agreement at the City's option if Contractor is lound to have submitted a false certiflcation as provided under subsection (5) of section 287.135. Florida Statutes (2018). as ma1'be amended or revised. or been placed on the Scrutinized Companies that Bo),cott Israel List created pursuant to Section 215.4725. Florida Statutes (2018). as ma1' be amended or revised. or is engaged in a bo1-cott of lsrael. 55. Vcrification ol Emp loyment Eligibilitv. Contractor represents that Contractor and each Subcontractor has registered with and uses the E-Verii's)stem maintained bl the United States Department ol Homeland Securit,v to verii the work authorization status ol all ner 11. hired emplolees in compliance with the requirements ol Section 448.095. Florida Statutes. and that entry into this Agreemenl will not violate that statute. lf Contractor violates this section. Municipality may immediately terminate this Agreement fbr cause and Contractor shall be liable for all costs incurred by Municipalit-v due to the termination. 56. Successors And Assigns. The Cit r and the Contractor each binds itselt. its ofllcers. directors. qualifring agents. partners. successors. assigns and legal representatives to the other party hereto and to the partners, successors. assigns and legal representatives ofsuch other parly in respect to all covenants. agreements and obligations contained in the Agreement. Contractor B C 50 shall not assign, transfer. convey or otherwise hypothecate the Agreement or its right, title or interest in or to the same or any part thereoi or allow legal action to be brought in its name fbr the benefit of others. without previous r.lritten consent of the City. and concurred with by the Contractor's Surety. Contractor acknouledges that the Cir.v" has entered into this Agreement with Contractor after a comprehensive competitive a*'ard process. and evaluation ol Contractor's particular qualitications and skills to pertbrm the Work- Therefore. Contractor agrees that the Citv may withhold the consent to assignment referred to herein for any reason the City deems appropriate" in its sole and exclusive discretion. 57. Time is ofthe Essence. Time is of the essence in the perlormance olall obligations oleach parry' under this Agreement 58. No Partnership or Joint Venture It is mutually' understood and agreed that nothing contained in this Agreement is intended or is to be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners or creating or establishing the relationship ofajoint venture between the City and Contractor. or as constituting Contractor as the agent or representative of the Citl' for an,".' purpose or in an1 manner uhatsoever. 59. Recordinu : Documentan' StamDS. A memorandum of this A greement. in the form attached as Exhibit H. rvill be recorded by the City in the Public Records of Broward Counn. Florida. The cost of recording. and the cost of any required documentary stamps. will be paid in lull by the Ciry-. The parties will cooperate in structuring the transactions contemplated by this Agreement to reduce such costs. pror,ided the structure does not have anl adverse consequence fbr the Citl'. 60- Gor.emins Law. This A greement u'ill be govemed b1'the la',r's of the State of Florida. This Agreement is subject to and must comply w'ith the Charter and City Code ol the Citl of Dania Beach. as they exist on the date of execution of the Agreement. Any conflicts between this Agreement and the Charter and City Code will be resolved in favor of the City's Charter. Venue tbr any disputes arising out of this Agreement and fbr any actions involving the enfbrcement or interpretation of this Agreement will be in the State courts of the l7'h Judicial Circuit of Brouard Countr. Florida. 61. Third Partr Benellciaries. Neither Contractor nor City intend to directly or substantially benefit a third party by this Agreement. Therefore. the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either ofthem based upon this Agreement. 6)Negotiated A-qreerrre4!. Both parties have substantiall.v contributed to the draf'ting and negotiation ol this Agreement and this Agreement shall not. solell as a matter of judicial construction. be construed more severely against one ol the parties than any other. The parties hereto acknowledge that they have thoroughly read this Agreement. including all exhibits and attachments hereto. and have sought and received whatever competent advice and counsel was necessar)'fbr them to form a full and complete understanding ofall rights and obligations herein. 6i. Incorporation b!' Rs&Iqrce. The truth and accurac 1 ofeach "Recital" clause set torth above is acknowledged by the parties. The attached Exhibits to this Agreement are incorporated 5r into and made a part of this Agreement and all exhibits subsequentll attached to this Agreement pursuant to the terms hereof shall be deemed incorporated into and made a part of this Agreement. 6,1. Contlicts of Interest: Citv Representatives not Ind ir iduallv Liable. No elected oiJicial. representative. or emplolee of the Citl has any personal interest. direct or indirect. in this Agreement. No elected official. representative or employee will participate in any decision relating to this Agreement which aftects his or her personal interest or the interest of any corporation. partnership or association in v'hich he or she has an interest. directll' or indirectll. No elected official. representative or employee olthe City will be personall-v liable to Contractor or any successor in interest for any amount which may become due to Contractor, for any obligations of City under the Agreement. or in the event ofanl'default or breach by the City. 65. Section. Section headings are for convenience only and do not affect the interpretation of this Agreement. 06. CounElp4llr This A greement mal be signed in counterparts. each one ol $hich is considered an original. but all of which constitute one and the same instrument. This Agreement is effective only after execution and delivery by the parties. 67 . Entire Ageelacltl!. This A greement lincluding the Erhihits) constitutcs the sole agreement of the parties with respect to its subject matter. [t supersedes any prior lvritten or oral agreements or communications between the parties. 68. Amendments. No amendment to this A greement is binding on either part1" unless in uriting and signed bl both parties. The Citl is not obligated to spend an) mone) or undertake any obligation in connection with an amendment proposed by Contractor. If Contractor requests an amendment to the Agreement or any other action by City, Contractor must reimburse City tbr all third-part,v costs incurred by City lincluding but not limited to costs of third-part.v consultants and attome)'s). Befbre the CiI'takes action regarding an) request. Contractor must deposit with the City the estimated amount of third-party costs. as reasonably determined b1., the City. 69. Holida The parties agree that u'henever a notice or performance due under theS Agreemenr f-alls on a Saturday. Sunday or on a legal holiday recognized by the Citl'. the notice or pertbrmance will be postponed to the next following business day. 70. Other govemmental entities may elect to purchase the goods and services specitied in this Agreement. which shall be made available upon the same terms and conditions as those specified in this Agreement. 7 | . Survival. A termination of the Agreement will not release Contractor from its obligation to indemnil\' City for anl acts u-hich occurred prior to the termination olthe Agreement. unless otherwise agreed upon b1 Cit1 and Contractor or b1'judicial decree. Upon termination or expiration of this Agreement. the Contractor shall remain liable lor all obligations and liabilities that have accrued prior to the date oltermination or expiration. unless relieved ofsuch obligation or liabilit-r' b1' action of a court or rule of lau'. l5 IN WITNESS OF THE FOREGOING. the parties have set their hand and seal the day and vear first r.lritten above. ATTEST:CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation ELORA RIERA. MMC CITY CLERK APPROVED AS TO FORM AND CORRECTNESS JOYCE L. DAVIS MAYOR ANA M. GARCIA. ICMA-CM CITY MANAGER EVE A. BOUTSIS CITY ATTORNEY 5:i The tbregoing instrument *as acklo,ur ledged before me bv means of ! ph1 sical prescnce or ! online nolarization. on -2024 b1 WITNESSES: SI(;NATLIRf PRINT Name SIGNATTIRE PRINT Name STATE OF FLORIDA) COUNTY OF BROWARD) He/she is personally known to me or has produced identification. My Commission Expires: CONTRACTOR: Southem Underground Industries. Inc. a Florida corporation SI(;NATT'RE PRINT Nanre Title Date Notary. Public. State of Florida Print Name as 5{