Agreement between Dept and Contractor.pdf

AGREEMENT

BETWEEN DEPARTMENT AND CONTRACTOR

FOR CONSTRUCTION CONTRACT

Contract No.:

F.E.I.D. No:

Appropriation No.:

Procurement No: DOT-RFP-25-5002-TIML

D.M.S. Catalog Class No.: 72141603

BY THIS AGREEMENT, effective as of this date _____________________________, the STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION (hereinafter called “Department”) and_____________________, (hereinafter called “Contractor”), of ________________________, authorized to do business in the State of Florida, agree as follows:

ARTICLE 1 – WORK

1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents.

The Work is generally described as follows: Provide Track work installation and related services throughout the CFRC.

ARTICLE 2 – THE PROJECT

The Project for which the Work under the Contract Documents may be the whole or only a part is generally identified by the Department as Project: 412994-4-52-33, CFRC CP789 Universal Crossover – Special Track Installation;412994-8-82-54, CFRC Rail Renewal;

412994-8-82-55, CFRC Grade Crossing Surface Rehabilitation; 412994-8-82-56 CFRC MP 806.3 Turnout/Maintenance of Way Storage Track; and 412994-8-82-47 Potential Additional Services

ARTICLE 3 – CONTRACT TIME and TERM

3.01 Contract Term, The term of this agreement shall commence upon execution by all parties, and expire upon the expiration of the FDOT Funding Period, as that expiration date may be amended from time to time, unless the Contract is assigned to the Central Florida Commuter Rail Commission pursuant to an assignment that effects a novation and releases the FDOT from being a party to the Contract, in which case, the Contract will continue for a period of three years following the eventual end of the FDOT Funding Period. The Vendor hereby consents to and agrees to execute such an assignment, effective as of the end of that period. Currently that date is December 31, 2024. Time is of the essence to each and every obligation under this Agreement.

3.02 Days to Achieve Completion of Work and Contract Term

The Work will be completed within 1095 calendar days after the date when the Contract Time commences to run. It is understood and agreed that the date on which calendar days

Agreement Page 2 will begin to be charged to the project shall be either (1) the 30 calendar days from the date of issuance of the initial notice to begin work, or (2) the date on which the Contractor actually begins work, whichever date is the earlier. The Service period shall commence on written Notice to Proceed.

3.03 Liquidated Damages

A. Contractor and Department recognize that time is of the essence as stated in Paragraph 3.01 above and that Department will suffer financial loss if the Work is not completed within the time specified in Paragraph 3.02 above, plus any extensions thereof allowed in writing by the Department. The parties also recognize the delays, expense, and difficulties involved in proving the actual loss suffered by Department if the Work is not completed on time. Accordingly, instead of requiring any such proof, Department and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay Department as shown below for each calendar day that expires after the time specified in Paragraph 3.02 above, plus any extensions allowed in writing by the Department.

Project Amount Daily Charge Per Calendar Day $299,999 and under $904 $300,000 but less than $2,000,000 $1,685 $2,000,000 but less than $5,000,000 $2,667

The amounts for Liquidated damages shown in Section 8-10.2 of the FDOT Standard Specifications for Road and Bridge Construction are hereby replaced with the amount shown above.

ARTICLE 4 – CONTRACT PRICE

4.01 Department shall pay the Contractor for completion of the Work in accordance with the Contract Documents and Exhibit “B”, Method of Compensation.

ARTICLE 5 – CONTRACT DOCUMENTS

5.01 Contents

A. The Contract Documents which comprise the entire agreement between Department and Contractor concerning the Work and which are incorporated herein by this reference consist of the following:

1. This Agreement

2. Exhibit A, Scope of Services, to include the contract plans and specifications for FIN 412994-4-52-33, 412994-8-82-54, 412994-8-82-55, 412994-8-82-56 and 412994-8-82-47

3. Exhibit B, Method of Compensation

4. Exhibit C, Required Contract Provisions for Federal Transit Administration Funded Contracts

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5. Exhibit D, Required Contract Provisions for Federal Railroad Administration Funded Contracts

6. Exhibit E, Insurance Requirements

7. Exhibit F, CFRC Orange Fence Policy

8. Exhibit G, SOP G101.00 Disposal of CFRC/SunRail Material

9. Exhibit H, CFRC General Orders and Notices – Timetable and Special Instructions No. 2 and General Order No. 6

10. Exhibit I, CFRC Continuous Welded Rail (CWR) Plan

11. Exhibit J, General Code of Operating Rules

12. Exhibit K, MOW Operating Rules and Instructions

13. Exhibit L, CFRC Signal and Track Chart

14. Exhibit M, CFRC Track Chart

15. Exhibit N, SunRail Configuration Management Plan and Software Management Control Plan

16. Exhibit O, CFRC MWI Bid Price Proposal Form, Form No.

17. The PUR 1000 terms and conditions, which are deemed to be part of Exhibit “A”, Scope of Services

18. Bid Bond and Performance Bond (Form No. 5 and 11)

19. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto:

a. All written Amendments, Supplemental Agreements, and other documents modifying or supplementing the Contract Documents.

B. There are no Contract Documents other than those listed above in this Article 5. The Contract Documents may only be amended, modified, or supplemented as deemed necessary by the Department in accordance with the Specifications, as applicable.

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ARTICLE 6 – MISCELLANEOUS

6.01 Department and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents.

6.02 Assignment of the Contract Subletting or Assigning of Contracts.

Do not, sell, transfer, assign or otherwise dispose of the Contract or Contracts or any portion thereof, or of the right, title, or interest therein, without written consent of the Department. If the Contractor chooses to sublet any portion of the Contract, the Contractor must submit a written request to sublet work on the Certification of Sublet Work form developed by the Department for this purpose. With the Departments acceptance of the request, the Contractor may sublet a portion of the work, but shall perform with its own organization work amounting to not less than 40% of the total Contract amount. The Certification of Sublet Work request will be deemed acceptable by the Department, for purposes of the Department’s consent, unless the Department notifies the Contractor within 5 business days of receipt of the Certification of Sublet Work that the Department is not consenting to the requested subletting. Include in the total Contract amount the cost of materials and manufactured component products, and their transportation to the project site.

For the purpose of meeting this requirement the Department will not consider off-site commercial production of materials and manufactured component products that the Contractor purchases, or their transportation to the project, as subcontracted work. If the Contractor sublets a part of a Contract item, the Department will use only the sublet proportional cost in determining the percentage of subcontracted normal work. Execute all agreements to sublet work in writing and include all pertinent provisions and requirements of the Contract. All other agreements must be in writing and reference all applicable Contract provisions. Upon request, submit to the Department a copy of the subcontract and agreement. The subletting of work does not relieve the Contractor or the surety of their respective liabilities under the Contract. The Department recognizes a subcontractor only in the capacity of an employee or agent of the Contractor, and the Department may require the Contractor to remove the subcontractor as in the case of an employee.

6.03 The Contractor agrees that it shall make no statements, press releases or publicity releases concerning this Agreement or its subject matter or otherwise disclose or permit to be disclosed any of the data or other information obtained or furnished in compliance with this Agreement, or any particulars thereof, during the period of the Agreement, without first notifying the Department's Project Manager and securing the Department’s prior written consent.

6.04 The Contractor shall comply with all federal, state, and local laws and ordinances applicable to the work or payment for work thereof, and will not discriminate on the grounds of race, color, religion, sex, national origin, age, or disability in the performance of work under this Agreement.

6.05 If the Contractor is licensed by the Department of Business and Professional Regulation to perform the services herein contracted, then Section 337.162, Florida Statutes, applies as follows:

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A. If the Department has knowledge or reason to believe that any person has violated the provisions of state professional licensing laws or rules, it shall submit a complaint regarding the violations to the Department of Business and Professional Regulation. The complaint shall be confidential.

B. Any person who is employed by the Department and who is licensed by the Department of Business and Professional Regulation and who, through the course of the person's employment, has knowledge to believe that any person has violated the provisions of state professional licensing laws or rules shall submit a complaint regarding the violations to the Department of Business and Professional Regulation.

Failure to submit a complaint about the violations may be grounds for disciplinary action pursuant to Chapter 455, Florida Statutes, and the state licensing law applicable to that licensee. The complaint shall be confidential.

C. Any complaints submitted to the Department of Business and Professional Regulation are confidential and exempt from Section 119.07(1), Florida Statutes, pursuant to Chapter 455, Florida Statutes, and applicable state law.

6.06 The Contractor covenants and agrees that it and its employees and agents shall be bound by the standards of conduct provided in applicable law and applicable rules of the Board of Business and Professional Regulation as they relate to work performed under this Agreement. The Contractor further covenants and agrees that when a former state employee is employed by the Contractor, the Contractor shall require that strict adherence by the former state employee to Sections 112.313 and 112.3185, Florida Statutes, is a condition of employment for said former state employee. These statutes will by reference be made a part of this Agreement as though set forth in full. The Contractor agrees to incorporate the provisions of this paragraph in any subcontract into which it might enter with reference to the work performed pursuant to this Agreement.

6.07 A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or rely on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

6.08 An entity or affiliate placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity, may not submit a bid, proposal, or reply on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids, proposals, or replies on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with a public entity;, and may not transact business with any public entity.

6.09 The Department shall consider the employment by any contractor of unauthorized aliens a violation of Section 274 A (e) of the Immigration and Nationality Act. If the Contractor

Agreement Page 6 knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this agreement.

6.10 Pursuant to Section 216.347, Florida Statutes, the Contractor may not expend any State funds for the purpose of lobbying the Legislature, the judicial branch, or a state agency.

6.11 This Agreement involves the expenditure of federal funds and Section 946.515, Florida Statutes does not apply.

6.12 This Agreement may be renewed for a period that may not exceed three (3) years or the term of the original agreement, whichever period is longer. Renewals shall be contingent upon satisfactory performance evaluations by the Department and subject to the availability of funds. Any renewal or extension shall be in writing and shall be subject to the same terms and conditions set forth in this Agreement.

6.13 In the event that circumstances arise which make performance by the Vendor impracticable or impossible within the time allowed or which prevent a new contract from being executed, the Department, in its discretion, may grant an extension of this Agreement. Extension of this Agreement shall be in writing for a period not to exceed six

(6) months and shall be subject to the same terms and conditions set forth in this Agreement; provided the Department may, in its discretion, grant a proportional increase in the total dollar amount based on the method and rate established herein. There shall be only one extension of this Agreement unless the failure to meet the criteria set forth in this Agreement for completion of this Agreement is due to events beyond the control of the Vendor. It shall be the responsibility of the Vendor to ensure at all times that sufficient time remains in the Project Schedule within which to complete services on the project. In the event there have been delays which would affect the project completion date, the Vendor shall submit a written request to the Department which identifies the reason(s) for the delay and the amount of time related to each reason. The Department shall review the request and make a determination as to granting all or part of the requested extension.

6.14 The Contractor and its employees, agents, representatives, or subcontractors are not employees of the Department and are not entitled to the benefits of State of Florida employees. Except to the extent expressly authorized herein, Contractor and its employees, agents, representatives, or subcontractors are not agents of the Department or the State for any purpose or authority such as to bind or represent the interests thereof, and shall not represent that it is an agent or that it is acting on the behalf of the Department or the State.

The Department shall not be bound by any unauthorized acts or conduct of the Contractor or its employees, agents, representatives, or subcontractors. Contractor agrees to include this provision in all its subcontracts under this Agreement.

6.15 This Agreement embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties hereto. The State of Florida terms and conditions, whether general or specific, shall take precedence over and supersede any inconsistent or conflicting provision in any attached terms and conditions of the Contractor.

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6.16 It is understood and agreed by the parties hereto that if any part, term or provision of this Agreement is by the courts held to be illegal or in conflict with any law of the State of Florida, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, or provision held to be invalid.

6.17 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.

6.18 In any legal action related to this Agreement, instituted by either party, the Contractor hereby waives any and all privileges and rights it may have under Chapter 47 and Section 337.19, Florida Statutes, relating to venue, as it now exists or may hereafter be amended, and any and all such privileges and rights it may have under any other statute, rule, or case law, including, but not limited to those grounded on convenience. Any such legal action may be brought in the appropriate Court in the county chosen by the Department and in the event that any such legal action is filed by the Contractor, the Contractor hereby consents to the transfer of venue to the county chosen by the Department upon the Department filing a motion requesting the same.

IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year first above written.

STATE OF FLORIDA

DEPARTMENT OF TRANSPORTATION

Name of Contractor

By: ________________________________ By: ________________________________ (Authorized Signature) (Authorized Signature)

Charles M. Heffinger, Jr., P.E.

(Print/Type) (Print/Type)

Title: Title: CFRC/SunRail Chief Operating Officer

FOR DEPARTMENT USE ONLY

APPROVED: LEGAL APPROVAL:

Procurement Services Office Legal