Attachment_B_-_Draft_Contract.pdf

Brevard County Public Works Department

Contract - Road Striping (Thermoplastic and Reflective Pavement Marking)

Brevard County Public Works Department 2725 Judge Fran Jamieson Way, Building A, Suite 201

Viera, Florida, 32940

Table of Contents

Contract - Road Striping Thermoplastic and Reflective Pavement Marking

Recitals

General Terms and Conditions

Section 1 - Definitions

Section 2 - Scope of Work

Section 3 - Contractor Qualification

Section 4 - Term of Contract

Section 5 - Compensation

Section 6 - Indemnification

Section 7 - Insurance Requirements

Section 9 - Warranty

Section 10 - Attorney's Fees

Section 11 - Governing Law

Section 12 - Compliance with Statutes

Section 13 - Venue

Section 14 – Sub-contracting

Section 15 – Assignability

Section 16 – Purchasing Agreements with Other Governmental Entities

Section 17 - Non-Exclusivity

Section 18 - Termination

Section 19 - Independent Contractor

Section 20 - Right to Audit Records

Section 21 - Public Records

Section 22 - Unauthorized Alien Workers and E-Verify

Section 23 - Scrutinized Companies

Section 24 - Federal Tax Id Number

Section 25 - Employment

Section 26 - Public Entity Crimes

Section 27 - Construction of Contract

Section 28 - Entire Contract

Section 29 - Severability

Section 30 - Waiver

Section 31 - Delegation of Work

Section 32 - Evaluation of Performance

Section 33 - Deficiencies

Section 34 – Change Order

CHANGE OF COMPLETION TIME AND CLAIMS FOR DELAYS

DISPUTED CHANGE ORDER REQUEST

Section 35 - Liquidated Damages installation, maintenance, and removal

Section 36 - Resource Requirements

Section 37 - Utility Coordination

Section 38 - Multiple Concurrent Projects

Section 39 - Safety and Protection

Section 40 - Equipment and Resources

Section 41 - Project Manager

Section 42 - Contractor’s Representative

Section 43 - Coordination Conference

Section 44 - Assignment of Work

Section 45 – Coordination with others

Section 46 - Clean Up

Section 47 - Final Inspection

Section 48 - Acceptance

Section 49 - Performance Standards

Section 50 - Conflicting Standards

Section 51 - Modification of Standards

Section 52 - Maintenance of Traffic (M.O.T.) / Temporary Traffic Control (T.T.C.)

Section 53 - Notices and Communication

Section 54 - Invoicing

TECHNICAL PROVISIONS

Section 55 - Pavement Markings

Section 56 - Reflectorization

Section 57 - Reflective Pavement Markers

Section 58 - Pavement Markings on Newly Surfaced Roads

Section 59 - Removal of Existing Thermoplastic Pavement Markings

CONTRACT - ROAD STRIPING

THERMOPLASTIC AND REFLECTIVE PAVEMENT MARKING

This Contract, made and entered into the date of last signature below (“Effective Date”), by and between Brevard County, Florida, a political subdivision of the State of Florida, hereinafter referred to as "County," and [name of contractor], a business having its principal address at

[address], hereinafter referred to as the "Contractor".

RECITALS

Whereas, it is the intent of the County to obtain services for Road Striping, Thermoplastic and Reflective Pavement Markings, as outlined in Bid# B-7-26-04; and

Whereas, the County issued a competitive solicitation for these services pursuant to

Invitation to Bid No. B-7-26-04;

Whereas, the County awarded the services to___________, as the primary contractor;

and

Whereas, the County finds that entering into this Contract will serve the public interest and benefit.

Now, therefore, in consideration of the mutual agreement hereinafter contained, the

County hereby retains the Contractor, and the Contractor hereby covenants to provide the services as prescribed herein. The foregoing recitals are true and are incorporated herein by reference.

GENERAL TERMS AND CONDITIONS

SECTION 1 - DEFINITIONS

The words and expressions (or pronouns used in their stead) defined in this Contract shall, wherever they appear in the Contract, be construed as follows unless a different meaning is clear from the context.

Addenda: shall mean any additional solicitation provisions issued in writing by the County prior to the date and time for bid openings.

Bid Proposal: shall mean the offer of proposal of the Bidder submitted on the prescribed form setting forth the prices for the Work to be performed.

Bidder: shall mean any person, firm or corporation submitting a Bid for the Work.

Board of County Commissioners: shall mean the Board of County Commissioners of Brevard

County, Florida, or their duly authorized representative(s).

Change Order: shall mean an order to the Contractor, approved by the County, authorizing an addition, deletion, or revision in the Work, or an adjustment in the Contract and/or Task Order, or the Contract Performance Period or Completion Time issued after execution of the Contract or issuance of a Task Order, or processed in accordance with Section 218.755, Florida Statutes, as may be amended.

Completion Time: shall mean the number of days specified in a Task Order for completion of the Work in that Task Order.

Contract: shall mean the written agreement between the County and the Contractor regulating the Work to be performed.

Contract Documents: The Contract Documents consist of this Contract, the Contractor’s Bid, all addenda issued during the bidding process, and all modifications, including change orders, issued after execution of this Contract.

Unless stated otherwise in writing by the County, in the case of any conflict between the

Contract Documents, which are incorporated herein by this reference, the order of precedence for the Contract Documents shall be (as applicable): (1) Change Orders (with those of later date having precedence over those of earlier date); (2) Task Orders; (3) this County-Contractor

Contract, and any amendments made thereto; (4) Bid # B-7-26-04 Addenda (with those of later date having precedence over those of earlier date); (5) the County’s bid, Bid #B-7-26-04; (6)

Contractor’s Bid Response; and (7) any other associated documents.

Contractor: shall mean successful Bidder, whether a corporation, firm, individual or any combination thereof, and their successors, personal representatives, executors, administrators and assigns.

Contract Performance Period: shall mean the overall performance period of this Contract.

County: shall mean the Board of County Commissioners, Brevard County, Florida, or their duly authorized representative(s), for whom the Contract Work is being performed.

Day: shall mean one calendar day when used in the Contract.

Defective Work: shall mean (a) Work that is unsatisfactory, deficient or damaged, does not conform to the Contract, or does not meet the requirements of any inspection test or approval, or (b) Work associated with punch list items that the Contractor fails to complete within a reasonable time after issuance of the punch list by the Project Manager.

Final Acceptance: shall mean acceptance of the Work specified in an individual Task Order by the County upon the expiration of the warranty period as stated in the Contract.

Notice: shall mean written Notice delivered to an authorized representative identified herein in person or by mail.

Notice of Intent to Award: shall mean the notice given by the County to the successful Bidder

Project: A specific description of Work to be performed at a Site under the scope of this

Contract.

Project Manager: Shall mean the Public Works Department Traffic Operations Manager or their designee. The Project Manager will receive correspondence at 2905 Pineda Cswy. Melbourne, FL 32940, Phone 321-455-1440.

Site: shall mean the area upon or in which the Contractor’s operations are carried on and such other areas adjacent thereto as may be designated as such by the Project Manager.

Specifications: shall mean the parts of the Contract identified as “Specifications” and organized into Divisions. The Specifications include general requirements and technical descriptions of materials, equipment, construction systems, standards and workmanship. The term “Technical

Provisions” where used in the Contract refers to the Specifications.

Sub-contractor: shall mean any person, firm, or corporation other than employees of the

Contractor that contracts with the Contractor to furnish, or furnishes labor, materials, and/or equipment for the work.

Task Order: shall mean any order issued against the Contract for construction work in accordance with its terms and conditions.

Work: shall mean any and all obligations, duties and responsibilities necessary to the successful completion of the construction assigned to or undertaken by the Contractor under the Contract, including the furnishing of all labor materials, equipment, and other incidentals.

SECTION 2 - SCOPE OF WORK

This Work consists of the installation of thermoplastic pavement markings and reflective pavement markers on new, newly resurfaced, and existing roads in Brevard County. This Work will also include the removal of thermoplastic markings.

SECTION 3 - CONTRACTOR QUALIFICATION

The Contractor must present sufficient evidence that it is a Florida Department of

Transportation pre-qualified Contractor in the work class of Pavement Markings or that it has at least five years of road striping (thermoplastic & reflective) experience of varying complexity.

The Contractor must maintain this pre-qualification throughout the term of the Contract.

SECTION 4 - TERM OF CONTRACT

The term of this contract is five (5) years after the Effective Date. Pricing shall remain firm for the initial 12-month period following contract execution. Adjustments after that period may be considered annually based on industry-standard indices and supporting documentation. Any adjustments to the pricing, terms, or conditions shall be submitted with justification to the Purchasing Manager no less than ninety (90) days prior to the anniversary date of the executed contract. However, rate decreases may be considered and approved by the County at any time during the contract term.

SECTION 5 - COMPENSATION

Compensation for Work shall be in accordance with Attachment A: Schedule of Unit Prices.

Compensation schedules may be adjusted after the first twelve (12) months of the Contract upon mutual consent of the parties. Compensation adjustment shall be based on material cost variation or other relevant economic conditions, sufficiently documented by the requesting party. Either party may request a compensation adjustment. Failure to agree upon compensation adjustments shall constitute mutually agreed upon termination of this Contract.

The request for compensation adjustment must be made ninety days prior to the anniversary date of this Contract.

SECTION 6 - INDEMNIFICATION

The Contractor shall indemnify the County and hold the County harmless against any and all claims for and related in any way to bodily injury, sickness, disease, death, personal injury, damages to property of any kind (loss of use of any property or assets resulting therefrom), schedule delay claims of any kind, including but not limited to loss of efficiency or productivity, arising out of or resulting from the performance of the products or services for which the

County is Contracting hereunder, to the extent caused by the negligent, reckless, or intentionally wrongful conduct, acts, or omissions of the Contractor, or any of their agents or employees, including sub-contractors. Such negligent conduct, acts, or omissions by the

Contractor include, but are not limited to, any errors or omissions in the Contractor’s services.

The Contractor agrees to fully indemnify the County and pay the cost of the County’s legal defenses, including fees of attorneys as may be selected by the County, for all claims described in the hold harmless clause above. Such payment on behalf of the County shall be in addition to any and all other legal remedies available to the County and shall not be considered to be the

County’s exclusive remedy. It is agreed by the parties hereto that specific consideration has been received under this Contract for this hold harmless/indemnification provision. This indemnification shall survive the termination, expiration, or completion of this Contract.

Nothing contained in this paragraph is intended to nor shall it constitute a waiver of sovereign immunity of Brevard County.

SECTION 7 - INSURANCE REQUIREMENTS

The Contractor providing services under this Contract will be required to procure and maintain, at their own expense and without cost to the County, until final acceptance by the County of all products or services covered by the purchase order or Contract, the following types of insurance. The policy limits required are to be considered minimum amounts.

A. General Liability Insurance policy with a $1,000,000 combined single limit for each occurrence to include the following coverage: Operations, Products and Completed

Operations, Personal Injury, Contractual Liability covering this Contract, and

Explosion, Collapse and Underground (“XCU”) hazard.

B. Auto Liability Insurance which includes coverage for all owned, non-owned and hired vehicles with a $1,000,000 combined single limit for each occurrence.

C. Workers' Compensation and Employers Liability Insurance as required by Chapter

440, Florida Statutes.

The Contractor shall provide certificates of insurance to the County demonstrating that the aforementioned insurance requirements have been met prior to the commencement of work under this Contract and upon insurance renewal annually. Insurance carriers providing coverage required herein must be licensed or authorized to conduct business in the State of Florida and must possess A.M. Best’s Financial Strength Ration of A- Class VIII or better. The General

Liability and Auto Liability certificates of insurance shall indicate that the policies have been endorsed to cover the County as an additional insured (a waiver of subrogation in lieu of additional insured status on the Workers’ Compensation policy is acceptable) and that these policies may not be canceled or modified without thirty days prior written notice to the County.

The insurance coverage enumerated above constitutes the minimum requirements and shall in no way lessen or limit the liability of the Contractor under the terms of the Contract. Sub-contractor's insurance shall be the responsibility of the Contractor.

SECTION 9 - WARRANTY

The Contractor shall extend to the County the same warranty on all materials and equipment furnished under this Contract, which the manufacturer extends to the Contractor, or purchasers, whichever is greater. The Contractor shall guarantee its workmanship under this Contract for a period of one year from the date of acceptance by the County.

SECTION 10 - ATTORNEY'S FEES; WAIVER OF JURY TRIAL

In the event of any legal action to interpret or enforce the terms of this Contract or any provision hereof, each party shall bear its own attorney's fees and costs, and ANY TRIAL SHALL

BE NON-JURY.

SECTION 11 - GOVERNING LAW

This Contract shall be governed, interpreted, and construed according to the laws of the State of

Florida.

SECTION 12 - COMPLIANCE WITH STATUTES

It shall be the Contractor’s responsibility to be aware of and comply with all federal, state, and local laws.

SECTION 13 - VENUE

Venue for any legal action brought by any party to this Contract to interpret, construe, or enforce this Contract shall be in a court of competent jurisdiction in and for Brevard County, Florida.

SECTION 14 – SUB-CONTRACTING

It is understood that the Contractor will be solely responsible for the assigned work. Any sub-contractors must be previously approved by the Project Manager. The Contractor will not employ any sub-contractor, other person or organization against whom the County or the

Project Manager may have reasonable objections, nor will the Contractor be required to employ any sub-contractor against whom he has reasonable objection. The Contractor will not make any substitution for any sub-contractor who has been accepted by the Project Manager, unless the County and the Project Manager determine that there is good cause for doing so.

Nothing in the Contract shall create, nor shall it be interpreted to create, privity or any other

Contractual relationship whatsoever between any sub-contractor and the County, or any person or business entity except the Contractor, or any obligation on the part of the County to pay or to see to the payment of any monies due any sub-contractor, except as may otherwise be required by law. The County may furnish to any sub-contractor, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. The Contractor agrees to specifically bind every sub-contractor to the applicable terms and conditions of the Contract for the benefit of the County.

SECTION 15 – ASSIGNABILITY

Any Work issued pursuant to this Contract is not assignable without the prior written approval of the Project Manager.

SECTION 16 – PURCHASING AGREEMENTS WITH OTHER GOVERNMENTAL ENTITIES

The County permits the awarded Contractor(s) to extend the pricing, terms, and conditions of this solicitation to other governmental entities at the Contractor’s discretion. Each governmental entity that utilizes this solicitation or resulting contract will be responsible for execution of its own requirements with the awarded Contractor (s).

SECTION 17 - NON-EXCLUSIVITY

The parties hereto specifically agree that this is a non-exclusive agreement and that the County may select other contractors to perform construction, rehabilitation and maintenance during the term of this Contract. Contractor may also do such work for any other entity.

SECTION 18 - TERMINATION

A. If through any cause, the Contractor shall fail to fulfill its obligations under this Contract, or if the Contractor violates any of the covenants, agreements, or stipulations of this

Contract, the County shall have the right to terminate this Contract by giving written notice to the Contractor of such termination, specifying the effective date thereof, at least ten days before the effective date of such termination.

B. The County retains the right to terminate the Contract, in part or in its entirety, including any task orders or work orders, without cause, upon thirty days' prior written notice. In the event of termination, the Contractor shall not be entitled to any damages, liquidated or otherwise, caused as a result of such termination.

C. Any Work completed prior to the date of termination shall, at the option of the County, become the property of the County. The County is only responsible for payment of

Work completed, inspected and accepted prior to the effective date of termination, excluding any and all anticipated supplemental costs, administrative expenses and profit for incomplete Work.

SECTION 19 - INDEPENDENT CONTRACTOR

The Contractor shall perform the conditions of this Contract as an independent contractor, and nothing contained herein shall be construed to be inconsistent with this relationship or status.

Nothing in this Contract shall be in any way construed to constitute the Contractor, or any of its agents or employees, as an agent, employee or representative of the County.

SECTION 20 - RIGHT TO AUDIT RECORDS

In performance of this Contract, the Contractor shall keep books, records, and accounts of all activities related to this Contract in compliance with generally accepted accounting procedures.

All documents, papers, books, records, and accounts made or received by the Contractor in conjunction with this Contract, and the performance of this Contract, shall be open to inspection during regular business hours by an authorized representative of the County. The

Contractor shall retain all documents, books and records for a period of five years after completion or termination of this Contract, unless such records are exempt from section 24(a) of Article I of the State Constitution and Chapter 119, Florida Statutes.

SECTION 21 - PUBLIC RECORDS

The County is subject to the Florida Public Records Law, Chapter 119, Florida Statutes, and all other applicable Florida Statutes. If the materials provided by the Contractor do not fall under a specific exemption, under Florida or federal law, materials provided by the Contractor to the

County would have to be provided to anyone making a public records request. It will be the

Contractor’s duty to identify the information, which it deems is exempt under Florida/federal law, and identify the statute by number, which exempts that information.

Should any person or entity make a public request of the County, which requires or would require the County to allow inspection or provide copies of records which the Contractor maintains are exempt from Public Records Law or are confidential, it shall be the Contractors obligation to provide the County within 24 hours (not including weekends and legal holidays), of notification by the County to the Contractor of the request, of the specific exemption or confidentiality provision so the County will able to comply with the requirements of Chapter

119, Florida Statutes.

Should the County face any kind of legal action to require or enforce inspection or production of any records provided by the Contractor to the County which the Contractor maintains are exempt or confidential from such inspection/production as a public record, then the Contractor shall hire and compensate attorney(s) who shall represent the interest of the County as well as the Contractor in defending such action. The Contractor shall also pay any costs to defend such action and shall pay any costs and attorney fees, which may be awarded pursuant to 119.12, Florida Statutes.

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE

PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF

PUBLIC RECORDS AT THE PUBLIC WORKS DEPARTMENT:

KARENE WILLETT 321-617-7202 karene.willett@brevardfl.gov

2725 Judge Fran Jamieson Way, Suite A-201 Viera, FL 32940 mailto:robert.hendricks@brevardfl.gov

SECTION 22 - UNAUTHORIZED ALIEN WORKERS AND E-VERIFY

The County will not intentionally award publicly-funded Contracts to any Contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e)(Section 274A(e) of the Immigration and

Nationality Act “INA”). The County shall consider a Contractors intentional employment of unauthorized aliens as grounds for immediate termination of this Contract.

The Contractor shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the Contractor during the term of the

Contract and shall expressly require any sub-contractors performing work or providing services pursuant to the Contract to likewise utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the sub-contractor during the Contract term.

In accordance with the E-Verify provisions, including, Section 448.095, Florida Statutes, the

Contractor agrees to provide a copy of their fully executed E-Verify Memorandum of

Understanding prior to execution of the Contract.

SECTION 23 - SCRUTINIZED COMPANIES

Awarded Contractor shall certify that it and its sub-Contractors are not on the Scrutinized

Companies that Boycott Israel List. Pursuant to Section 287.135, Florida Statutes, if the Contract is for more than one million dollars, the Contractor further certifies that it and its sub-

Contractors are also not on the Scrutinized Companies with Activities in Sudan, Scrutinized

Companies with Activities in the Iran Petroleum Energy Sector List, or engaged with business operations in Cuba or Syria as identified in Section 287.135, Florida Statutes.

For Contracts of any amount, if the County determines the Contractor submitted a false certification under Section 287.135(5), Florida Statutes, or if the Contractor has been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a boycott of Israel, the

County shall either terminate the Contract after it has given the Contractor notice and an opportunity to demonstrate the County’s determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or on a case-by-case basis the County may choose to maintain the Contract if the conditions of Section 287.135(4), Florida Statutes are met.

For Contracts $1,000,000 and greater, if the County determines the Contractor submitted a false certification under Section 287.135(5), Florida Statutes, or if the Contractor has been placed on the Scrutinized Companies with Activities in the Sudan List, or the Scrutinized Companies with

Activities in the Iran Petroleum Energy Sector List, the County shall either terminate the

Contract after it has given the Contractor notice and an opportunity to demonstrate the

County’s determination of false certification was in error pursuant to Section 287.135(5)(a), Florida Statutes, or on a case-by-case basis the County may choose to maintain the Contract if the conditions of Section 287.135(4), Florida Statutes are met.

The Contractor agrees to observe the above requirements for applicable sub-contracts entered into for the performance of work under this Contract.

As provided in Subsection 287.135(8), Florida Statutes, if federal law ceases to authorize these

Contracting prohibitions, this section shall become inoperative and unenforceable.

SECTION 24 - FEDERAL TAX ID NUMBER

The Contractor shall provide to the County their Federal Tax ID Number or, if the Contractor is a sole proprietor, a Social Security Number.

SECTION 25 - EMPLOYMENT

The Contractor shall not engage the services of any person or persons now employed by the

County, including any department, agency, board or commission thereof, to provide services relating to this Contract without written consent from the County.

SECTION 26 - PUBLIC ENTITY CRIMES

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 on a Contract to provide any goods or services to a public entity, may not submit a bid on a Contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a Contractor, supplier, sub-Contractor, or consultant under a Contract with a 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 thirty-six months from the date of being placed on the convicted vendor list.

SECTION 27 - CONSTRUCTION OF CONTRACT

The parties hereby acknowledge that they fully reviewed this Contract, its attachments and had the opportunity to consult with legal counsel of their choice, and that this Contract shall not be construed against any party as if they were the drafter of this Contract.

SECTION 28 - ENTIRE CONTRACT

This Contract, together with Task Orders that may follow, embody the entire Contract and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that not merged herein. No alteration, change, or modification of the terms of this Contract shall be valid unless made in writing, signed by both parties hereto as an addendum to this Contract, or as specifically prescribed in a Task Order. This Contract shall be governed by and construed according to the laws of the State of Florida.

SECTION 29 - SEVERABILITY

In the event a court of competent jurisdiction finds any sentence, provision, paragraph, or section of this Contract null and void, the remaining parts of this Contract shall continue in full force and effect as though such sentence, provision, paragraph or section has been omitted from this Contract.

SECTION 30 - WAIVER

In the event the County waives any of the Contractor's obligations or duties in this Contract, it shall not constitute a waiver of any of the other obligations and duties of the Contractor, nor shall waiver of any such obligation or duty constitute a continuing waiver of that obligation or duty.

SECTION 31 - DELEGATION OF WORK

The County reserves the right to ascertain the necessity for Contractor service and shall, at its sole discretion, determine the conditions warranting Contractor response.

SECTION 32 - EVALUATION OF PERFORMANCE

The County will conduct an annual evaluation of the Contractor's performance. The evaluation may be used as a consideration with respect to renewal or termination of the Contract.

SECTION 33 - DEFICIENCIES

If through any cause, the Contractor shall fail to fulfill its obligations under this Contract, or if the Contractor violates any of the covenants, agreements, or stipulations of this Contract:

A. The County shall have the right to direct the Contractor to cease operation until deficiencies are corrected.

B. The County shall have the right to schedule a meeting to discuss the deficiencies.

The Contractor shall be responsible for providing a written corrective action plan within three days after the meeting.

C. The County shall have the right to reject the defective Work. Upon rejection of defective Work, the Contractor shall remove the defective Work from the site and replace it with non-defective Work within a reasonable time, or as specified in a corrective action plan.

D. The County shall have the right to specify other remedial action, which may be incorporated into this Contract by mutual consent of the parties.

E. Any deficiencies not addressed by the Contractor by the time required under this

Contract will be grounds to deny payment for the location affected.

F. The County shall have the right to pursue claims for actual damages involving any defects in the Work performed by the Contractor not remedied to the satisfaction of the County.

SECTION 34 – CHANGE ORDER

A change to a Task Order approved by the County authorizing an addition, deletion or revision in the Work, resulting in an adjustment in the compensation and/or the Completion Time of a

Task Order.

CHANGE OF COMPLETION TIME AND CLAIMS FOR DELAYS

A. The Completion Time may only be changed by a Change Order. Any claim for adjustment of the Completion Time shall be based on notice delivered by the party making the claim to the other party (but in no event later than three days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data, including but not limited to, backup for additional compensation requests for any delays and/or loss of efficiency, shall be delivered within three days after such occurrence (unless the County allows an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by the claimant’s written statement that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. No claim for an adjustment in the Completion

Time and any related equitable adjustment to the Task Order will be valid if not submitted in strict accordance with the requirements of this paragraph. Otherwise, such claims will be deemed to have been waived.

B. All time limits stated in the Task Orders are of the essence of the contract. In other words, time is of the essence as to all applicable provisions related to time.

C. Where Contractor is prevented from completing any part of the Work within the

Completion Time due to delay beyond the control of Contractor, the Completion Time will be extended in an amount equal to the time lost due to such delay if a claim is made thereof as provided in this provision. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by the County, acts or neglect of utility owners or other contractors performing other work, fires, floods, epidemics, abnormal weather conditions or acts of God. Delays attributable to and within the control of a subcontractor shall be deemed to be delays within the control of Contractor.

D. No Damages for Delay: NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN

EXTENSION OF TIME SHALL BE MADE OR ASSERTED AGAINST THE COUNTY BY REASON

OF ANY DELAYS. The Contractor shall not be entitled to an increase in the payment or compensation of any kind from the County for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration, or inefficiency, arising because of delay, disruption, interference or hindrances from any cause whatsoever, including but not limited to fires, floods, epidemics, abnormal weather conditions, acts of God, acts or neglect by utility owners or other contractors performing other work; however, this provision shall not preclude recovery or damages by the Contractor for hindrances or delays due solely to fraud, bad faith, or active interference on the party of the County or its agents. Otherwise, the Contractor shall be entitled only to extensions of the Completion Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.

E. Completion Time shall not be extended for rain delays. The County may consider granting time extensions as stipulated in Section 8-6.1.1 of FDOT Specifications for temporary suspension of work due to adverse weather conditions due to catastrophic occurrences.

DISPUTED CHANGE ORDER REQUEST

A. Within five days after denial of the Contractor’s request for a change order, the

Contractor may submit to the County Manager or designee with experience in the oversight of construction projects for a department or business other than the department responsible for monitoring the disputed request, documentation of the

Contractor’s position in the dispute or disagreement. The County Manager or designee, within five days after the receipt of the Contractor’s documentation, shall review the request and make a final determination as to whether denial was arbitrary or capricious based upon the sufficiency of the work under the terms of the contract, applicable regulations and relevant construction standards. Based upon the sufficiency and degree of completion, as well as any defects in the work and the amount reasonably required, if any, to correct or repair defective work, the reviewer shall make the final determination as to whether a change order should be approved by the County Manager.

B. If the denied request or disputed amount exceeds the County Manager’s purchasing authority, the County Manager shall present a report, recommendation, and the

Contractor’s claim and documentation to the County Commission for a final determination within thirty days after receiving the Contractor’s documentation for the claim. The Commission shall make its decision using the standards specified in above.

C. Within thirty days after denial of a request for a change order involving 1] an amount in excess of the County Manager’s purchasing authority or 2] for the amount the

Contractor claims to be due at the time the project is ready for beneficial use or occupation, the County may, at the County’s option in lieu of the procedure specified above, submit the dispute to a mediator with knowledge or experience in construction management, as agreed upon by the parties.

Upon referral to a mediator, the County and Contractor shall each pay half the estimated cost of the mediator, up front. Within thirty days after the date of submittal, the mediator, applying the standards set forth in the Change Order provision, shall investigate the dispute and submit a written recommendation for disposition of the dispute to the County Manager or designee with the qualifications specified in the Change Order provision.

Within thirty days after receiving the mediator’s recommendation, the County

Manager shall submit the recommendation to the County Commission, along with a staff report analyzing the dispute and mediator’s recommendation. Based on the standards set forth in the Change Order provision, the Commission shall decide whether to grant or deny, in whole or in part, the amounts recommended by the mediator. The Commission’s decision will be deemed final action on the disputed claim for the purposes of ripening the decision for judicial review. If the mediator recommends that no Change Order be granted, the Contractor shall reimburse the

County any amounts paid by the County to the mediator.

The deadlines for completing the dispute resolution process described above may be extended by mutual agreement of the County and Contractor.

SECTION 35 - LIQUIDATED DAMAGES

It is mutually agreed that time is of the essence of this Contract, and should the Contractor fail to complete the Work, or portions thereof, within the specified time, or any authorized extension thereof, liquidated damages as set forth below shall be deducted from the compensation otherwise to be paid to the Contractor. Both parties recognize that precise actual damages for Contractor’s failure to complete tasks within the deadline (including any valid extensions) set forth in the Task Order are impossible to determine due to the impossibility of precisely ascertaining the amount of damages that will be sustained by the County as a consequence of such delay. Both parties desire to obviate any question of dispute concerning the amount of said damages for delay and the cost and impact of the failure of the Contractor to complete the tasks in a Task Order on time. The parties therefore agree to fix liquidated damages for delay in completing tasks in a Task Order. Contractor waives any and all challenges and legal defenses to the validity of any liquidated damages established in the Contract, including that the liquidated damages are void as penalties or are not reasonably related to the actual damages sustained by the County as a result of Contractor’s untimely performance. The parties stipulate these amounts are not a penalty, but liquidated damages to the County based on a reasonable measure of damages from the County’s experience in the pavement marking industry and given the nature of losses that result from delays. For each day that any part of the Work remains uncompleted after the expiration of the time allowed for completion of the

Work, the sums per day set forth below shall be deducted from any monies due the Contractor, the County shall have the right to recover the liquidated damages sum from the Contractor, the

Surety, or both. The amount of these deductions is to cover liquidated damages to the County incurred by additional and other expenses due to the failure of the Contractor to complete the

Work or any part of the Work within the Completion Time specified in the Task Order, and such deductions are not to be considered as penalties.

This liquidated damages clause applies only to delay claims arising out of the Contractor’s failure to timely perform the Work required under the Contract. Nothing in this liquidated damages provision shall be deemed to preclude the prosecution of a claim by the County for actual damages involving any defects in the Work, breach of Contract of any kind, negligence or any other claim for damages not involving a claim based solely on delay caused by the

Contractor’s untimely performance of the Work.

A. Maintenance: Upon failure of the Contractor to complete the Work (Maintenance) in a Task Order for by the Completion Time, or any authorized extension thereof, the

Contractor shall pay $250.00 per day for each calendar day of delay after the date specified for Completion Time up to but not including the date the Work is deemed complete by the County.

B. Resurfacing and New Pave: Upon failure of the Contractor to complete the Work

(Resurfacing and New Pave) in a Task Order by the Completion Time, or any authorized extension thereof, the Contractor shall pay $500.00 per day for each calendar day of delay after the date specified for Completion Time up to but not including the date the Work is deemed complete by the County. The dates specified on the notification email shall constitute the basis for the assessment of liquidated damages.

INSTALLATION, MAINTENANCE, AND REMOVAL

SECTION 36 - RESOURCE REQUIREMENTS

The Contractor shall furnish all supervision, quality control, labor, materials, equipment, supervision, tools, transportation, supplies, manpower, and pay disposal fees necessary to complete the Work specified in this Contract. Unit prices shall be inclusive of all incidentals, labor, materials, maintenance of traffic, mobilization, etc. No additional compensation will be provided to the Contractor.

SECTION 37 - UTILITY COORDINATION

The Contractor is responsible for coordinating with all public and private utility companies, as may be necessary for proper and safe completion of the Work.

SECTION 38 - MULTIPLE CONCURRENT PROJECTS

The Contractor shall have adequate resources to handle two or more Projects at the same time.

SECTION 39 - SAFETY AND PROTECTION

The Contractor shall follow all applicable safety standards. The Contractor shall take all necessary precautions for the safety and protection of:

• All employees and other persons who may be affected by the Work;

• All the Work and all materials or equipment on or off the site; and

• Private property at the site or adjacent thereto including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not within the scope of the

Project.

SECTION 40 - EQUIPMENT AND RESOURCES

All equipment used in the performance of the Contract on County Property shall be maintained properly. All equipment used by the Contractor is subject to inspection by the Project Manager.

Any equipment deemed inoperable, unsafe, or improper for the Work shall be removed from the work site. The Contractor shall utilize equipment of a type and in sufficient quantity to perform the work in a satisfactory manner and as scheduled in the Task Order. The list of equipment shall comply with minimum requirements for equipment as detailed on the Florida

Department of Transportation Standard Specifications for Road and Bridge Construction, latest edition.

SECTION 41 - PROJECT MANAGER

The Contractor will coordinate with the Project Manager who will verify that the work has been completed in accordance with specifications, as scheduled, and handle problems that may arise.

The Project Manager may issue verbal orders to address emergencies or to ensure the continuity of critical elements of Contract performance. The County’s Project Manager shall be advised, at their request, as to the status and details of work being completed by the Contractor in the format they require. The Contractor will provide the Project Manager a list of all foremen and supervisors who will perform the work. This list will also contain twenty-four -hour emergency numbers.

SECTION 42 - CONTRACTOR’S REPRESENTATIVE

The Contractor will designate a competent Contractor’s Representative who will not be replaced without written notice to the County’s Project Manager at least twenty-four hours before the change. The Contractor’s Representative will be present at work locations and will have the authority to act on behalf of the Contractor. Project communications (both verbal and written) given to the Contractor’s Representative will be as binding as if given to the Contractor.

SECTION 43 - COORDINATION CONFERENCE

A coordination conference will be held to discuss schedules, procedures, invoicing, maintenance of traffic, utility coordination, and any other aspects of the Work. The conference will be scheduled within twenty days after the effective date of the Contract, but before Contractor begins Work at any site. The conference shall be attended by the Contractor, Project Manager, and other personnel as required. Either party may request and be granted additional coordination conferences.

SECTION 44 - ASSIGNMENT OF WORK

All Work will be ordered by the Project Manager or their designee in the form of a written or verbal Task Order. No work will begin until a Task Order has been issued to the Contractor. The

Contractor shall visit the site, if needed, and submit a written quotation to the Project Manager within seven days. The quotation shall be based solely upon the unit prices contained in the Bid

Item Schedule. The quotation shall also include the proposed schedule for completion of the project in days.

A Task Order will be issued for each Project. The Task Order will contain a start date and completion date that will be mutually agreed to between the County and the Contractor. The

Contractor will submit a work schedule prior to beginning any work ordered. The work schedule will contain the route to be followed and the location of work each day. The

Contractor will consult with the County’s Project Manager prior to any schedule variance. The

County’s Project Manager shall be notified one day prior to the schedule change and must concur with the recommended changes. The Contractor shall start working on assigned projects within two days of notification. If the County deems it necessary, the County may request in writing for the Contractor to visit the site and submit a written quotation to the

Project Manager. Written quotations, if requested, must be submitted within seven (7) calendar

Days of the Contractor receiving the County’s request. The quotation shall be based solely upon the unit prices contained in the Bid Item Schedule. The quotation shall also include the proposed schedule for completion of the project in calendar days. Upon receipt and review of the quotation, the County may issue the Contractor a Task Order for the quoted Work.

SECTION 45 – COORDINATION WITH OTHERS

The Contractor shall arrange his work and dispose of his materials so as not to interfere with the operations of other contractors, utilities, and County forces engaged upon adjacent work and to join his work to that of others in a proper manner, in accordance with the spirit of the Task

Order, and to perform his work in the proper sequence in relation to that of other contractors, utilities and County forces.

SECTION 46 - CLEAN UP

The Contractor will keep the site free from accumulations of waste material, rubbish and other debris during performance of the Work. At the completion of the Work the Contractor will remove all waste materials, rubbish, and debris from and about the premises as well as all tools, construction equipment, machinery, and surplus materials, and will leave the site clean and ready for occupancy by the County. The Contractor shall restore those portions of the site not designated for alteration by the Task Order to their original condition.

SECTION 47 - FINAL INSPECTION

Upon written notice from the Contractor that the Work is complete, the County’s Project

Manager shall schedule and conduct a final inspection with the Contractor and will notify the

Contractor in writing of any deficiencies in the Work within seven days. The Contractor shall correct all deficiencies and request an inspection within five days or as agreed to by the Project

Manager and before final acceptance and payment is made.

SECTION 48 - ACCEPTANCE

Acceptance of the Project will be granted when the Contractor completes a Project to the satisfaction of the County. The County shall remit payment upon acceptance in accordance with the Florida Prompt Payment Act, Florida Statute section 218.70, et seq.

SECTION 49 - PERFORMANCE STANDARDS

Any marking products utilized must be listed in the current F.D.O.T. “Approved Product List” if the specific device category exists. All materials and installations shall be in accordance with the latest edition of all applicable technical specifications including, but not limited to, the following:

Florida Department of Transportation:

• Standard Specifications for Road and Bridge Construction

• Standard Plans for Road and Bridge Construction

• Manual on Uniform Minimum Standards for Design, Construction and

Maintenance of Streets and Highways

• Accident Prevention Procedures Manual

Federal Highway Administration:

• Manual on Uniform Traffic Control Devices

Associated General Contractors of America, Inc.

• Manual of Accident Prevention in Construction

SECTION 50 - CONFLICTING STANDARDS

In the event of conflicting specifications, the resolution shall be at the discretion of the Project

Manager. In those cases where the County specifications are more restrictive, the County specifications shall govern, except as may be otherwise determined by the Project Manager.

SECTION 51 - MODIFICATION OF STANDARDS

The County may, at its discretion, modify and/or exceed performance standards based on engineering judgment or maintenance considerations. In those cases where the County requests a performance level significantly in excess of the specifications, the Contractor shall be entitled to request compensation. Additional compensation must be requested by the

Contractor and approved by the Project Manager in writing, prior to commencing the work.

SECTION 52 - MAINTENANCE OF TRAFFIC (M.O.T.) / TEMPORARY TRAFFIC CONTROL (T.T.C.)

The Contractor is responsible for maintaining safe traffic flow in accordance with all applicable standards. An Intermediate Temporary Traffic Control (T.T.C.) Certified employee must be available on-site during active work operations involving lane closures, detours, or flagging. The certified employee shall be responsible for the proper setup, maintenance, and adjustment of the T.T.C. devices in accordance with F.D.O.T. Standard Plans for Maintenance of Traffic. The T.T.C.

Certified employee shall be able to immediately address safety concerns and ensure compliance with all applicable rules and regulations, including, but not limited to, FDOT Standard Plans

(Index 102-600 Series) and the Manual on Uniform Traffic Control Devices (M.U.T.C.D.).

In the event work is ordered by the County in conjunction with an active County paving operation, T.T.C. may be provided by the paving contractor.

The County shall reserve the right to specify the Work be conducted at…