Attachment_O_Draft_Agreement.PDF

PUR-F-405 Rev. 09/2016

City of Casselberry | Finance Department | Purchasing Division 95 Triplet Lake Drive, Casselberry, Florida 32707

Phone: 407-262-7700, extension 1137 | Fax: 407-262-7746 Tracking Number

RFP-2017-0194 DISASTER DEBRIS REMOVAL/MANAGEMENT SERVICES

AND ANCILLARY PREPARATION/RECOVERY SERVICES

AGREEMENT

THIS AGREEMENT is made by and between the CITY OF CASSELBERRY, a municipal corporation existing under the laws of the State of Florida, 95 Triplet Lake Drive, Casselberry, Florida 32707, hereinafter referred to as the “CITY”, and <INSERT FULL NAME AND ADDRESS WITH NO ABBREVIATIONS>, hereinafter referred to as the “CONTRACTOR”.

W I T N E S S E T H:

WHEREAS, the CITY has competitively solicited for disaster debris removal/management services and ancillary preparation/recovery services, pursuant to RFP-2017-0194; and

WHEREAS, the CONTRACTOR has exhibited by its response to the solicitation that it is capable of providing the required services; and

WHEREAS, the parties hereto have agreed to the terms and conditions cited herein based on said solicitation.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows:

SECTION 1. TERM. <TO BE DETERMINED>

The term of this Agreement shall begin on <INSERT BEGINNING DATE WITH NO ABBREVIATIONS> and continue through <INSERT TERMINATION DATE WITH NO ABBREVIATIONS.>, and may be extended when in the best interest of the CITY.

SECTION 2. SCOPE OF SERVICES.

The CONTRACTOR will furnish and install all necessary labor, materials, and equipment to complete the services set forth in Exhibit “A” which is attached hereto and incorporated herein.

SECTION 3. WORK.

The CITY reserves the right to request and utilize the CONTRACTOR’s services under this Agreement during

FEMA Eligible Emergency Events as may be deemed necessary by the CITY.

A. This Agreement is for Standby services and shall establish terms and conditions for management of the Agreement and policy for activating a Pre-Event Agreement.

B. The CITY and the CONTRACTOR may negotiate additional services, as they directly relate to the services stated in Article 1. CITY shall present all additions to the Agreement to the appropriate award authority in the form of an Amendment for approval.

C. CONTRACT UTILIZATION PROCEDURES

1. The CITY is awarding Agreements to <TBD> individual contractors. The CONTRACTOR, Phone: 407-262-7700, extension 1137 | Fax: 407-262-7746 Tracking Number

RFP-2017-0194 DISASTER DEBRIS REMOVAL/MANAGEMENT SERVICES

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for this specific agreement is designated as the TIER I or TIER II <TBD> CONTRACTOR.

2. Pre-Event Activation

a. The CITY shall contact the TIER I CONTRACTOR to determine availability and capability of providing services prior to an event. If the TIER I CONTRACTOR is capable to provide the services, as may be required, the CITY will place them on standby at no cost to the CITY.

i. Should the TIER I CONTRACTOR be unable to meet any of the requirements, the CITY will contact the TIER II Contractors to obtain their ability to meet the requirements. The contractor that is deemed by the CITY as the most-able to perform as required will be awarded the services and placed on standby at no cost to the CITY

b. Upon the CITY’s determination of need for activation of a CONTRACTOR the following shall govern the process:

i. The CITY will issue a PRE-EVENT Agreement and/or Notice to Proceed

(NTP) to the CONTRACTOR based on the event. The PRE-EVENT

Agreement and/or Notice to Proceed (NTP) will establish:

Identification of the event

Establish the date and time of activation

Establish the requirement for the CONTRACTOR’s submission of

Performance and Payment bonds in accordance with Section 4 of this Agreement

ii. The CONTRACTOR must sign and return the PRE-EVENT Agreement and/or Notice to Proceed (NTP) within eight (8) consecutive hours of receiving notice.

iii. The CONTRACTOR must deliver Performance and Payment Bonds within seventy-two (72) consecutive hours of both parties signing the PRE-EVENT

Agreement and/or Notice to Proceed (NTP).

iv. The CITY will issue the CONTRACTOR a Notice to Proceed upon execution of the PRE-EVENT Agreement. The notice will include all services and commodities authorized by the CITY to be included in the pre-event activation.

c. Post-Event Activation

i. The CITY will issue a Notice to Proceed to the CONTRACTOR identifying the services to be provided. The mobilization time for services and equipment shall be in accordance with Exhibit “A”, Section 1.02(15).

3. Both Parties agree that damages are difficult to determine but the following liquidated damages are agreed to be a reasonable cost for any delays: If the CONTRACTOR shall neglect, fail or refuse to START the Work within the seventy (70) hours specified, or mobilize in accordance with MOBILIZATION schedule in Exhibit “A”, Section 1.02(15), or any proper extension thereof granted by the CITY, then the CONTRACTOR hereby agrees, as part consideration for awarding the Agreement, that the CITY reserves the right to assess liquidated damages in the event that the CONTRACTOR response is not timely in accordance with the terms of this Agreement and the CONTRACTOR agrees to pay the

CITY said sum for each and every calendar day that the CONTRACTOR shall be in default after the time stipulated in the Agreement for complying with the mobilization timeline stated in Exhibit “A”, Section 1.02(15). The CONTRACTOR and CITY acknowledge and agree that said sum is not a penalty but liquidated damages for breach of contract.

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4. Liquidated Damages – The CITY and the CONTRACTOR recognize that time is of the essence of this Agreement and that the CITY will sustain a loss in public safety for the

Citizens if the Work is not started and/or completed within the times specified in this

Agreement plus any extensions thereof allowed. They also recognize the delays, expense and difficulties involved in proving the actual loss suffered by the CITY if the work is not completed on time. Accordingly, instead of requiring any such proof, the CITY and the

CONTRACTOR agree that as liquidated damages for delay (but not as penalty) the

CONTRACTOR shall pay CITY Three Thousand Dollars ($3,000.00) for each day that expires after a time frame specified in Exhibit “A”, Section 1.02(15).

5. Completion of Work - Upon completion of work and before acceptance of final payment, the

CONTRACTOR shall complete Release of Liens forms in accordance with this Agreement, if applicable. The CONTRACTOR is to remove all equipment and temporary structures from all right-of-ways and adjacent property. Any surplus materials or rubbish must be discarded at the CONTRACTOR’s expense. Restoration of property, both public and private, roadways and waterways, which may be damaged while performing work, shall be restored to previous existing condition at the CONTRACTOR’s expense.

SECTION 4. PERFORMANCE AND PAYMENTS BOND.

A. Upon award of a Pre-Event Agreement, the CONTRACTOR will be required to submit Performance and Payment Bonds; made payable to the City of Casselberry, issued by a Surety firm and through a reputable and responsible surety bond agency licensed to do business in the State of Florida.

1. The Surety must be rated as "A+”® or better as to strength by Best’s Insurance Guide, published by A. M. Best Company, Inc., located at 1 Ambest Road, Oldwick, New Jersey

08858. For the latest ratings and Insurance Guide, access www.ambest.com.

2. The terms of the Payment and Performance Bond or alternative form of security used shall be:

a. The CONTRACTOR shall assure faithful performance of this project;

b. The CONTRACTOR shall assure timely payments to all persons providing labor, materials and/or supplies used in the performance of the work associated with this project; and,

c. Nothing in this section shall be construed to limit the authority of the City

Commission, the City Manager, or the PROCUREMENT ADMINISTRATOR to require other security in addition to, or in lieu of, those bonds or in circumstances other than those specified herein, when in the best interest of the CITY.

B. Upon activation of a Pre-Event Agreement by the CITY, the CONTRACTOR will be required to provide Performance and Payment Bonds in the amount of $1,000,000 or 100% of the Contract value, whichever is greater, within three (3) calendar days of a written ‘Notice to Proceed’ by the

City. Once activated, the Payment and Performance Bonds must be in force for a period of not less than one (1) year from the date of original execution by the Bond Surety.

C. The Performance and Payment Bond period shall be in effect for a period of no less than one (1) year following the date the CITY has accepted the CONTRACTOR’S final work.

D. In the event the CITY requires additional performance security as a result of any increase in the performance of the disaster event, the CONTRACTOR must obtain and deliver such additional http://www.ambest.com/

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security to the City within three (3) calendar days after receipt of the written request.

E. The CONTRACTOR shall provide an annual letter from their surety certifying the

CONTRACTOR’s bonding capacity meets the requirements established in this Agreement and the surety is capable of meeting the time set forth for producing bonds to the CITY at the time of an event.

SECTION 5. OBLIGATIONS OF THE CONTRACTOR.

Obligations of the CONTRACTOR shall include, but not be limited to, the following:

A. It is understood that the CONTRACTOR shall provide and pay for all labor, tools, materials, permits, equipment, transportation, supervision, and any and all other items or services, of any type whatsoever, which are necessary to fully complete and deliver the services requested by the CITY, and shall not have the authority to create, or cause to be filed, any liens for labor and/or materials on, or against, the CITY, or any property owned by the CITY. Such lien, attachment, or encumbrance, until it is removed, shall preclude any and all claims or demands for any payment expected by virtue of this Agreement.

B. The CONTRACTOR will ensure that all of its employees, agents, sub- contractors, representatives, volunteers, and the like, fully comply with all of the terms and conditions set herein, when providing services for the CITY in accordance herewith.

C. The CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences, safety programs, and procedures necessary to properly and fully complete the work set forth in the

Scope of Services.

D. The CONTRACTOR will maintain an adequate and competent staff, and remain authorized to do business within the State of Florida. The CONTRACTOR may subcontract the services requested by the CITY; however, the CONTRACTOR is fully responsible for the satisfactory completion of all subcontracted work.

SECTION 6. RIGHT TO REQUIRE PERFORMANCE.

The failure of the CITY at any time to require performance by the CONTRACTOR of any provision of this

Agreement shall in no way affect the right of the CITY thereafter to enforce same; or shall waiver by the CITY of any breach of any provision of this Agreement be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself.

In the event of a violation of any part of this Agreement by the CONTRACTOR, the CITY shall, among other remedies available under law, have the legal remedy of specific performance in order to enforce the provisions of this Agreement to prevent any interruption of service to the residents of the CITY. In the event that a dispute arises between the CITY and the CONTRACTOR, relating to this Agreement, performance or compensation hereunder, the CONTRACTOR shall continue to render service in full compliance with all terms and conditions of this Agreement as interpreted by CITY, regardless of such dispute. However, this shall not prevent the

CONTRACTOR from seeking legal relief from any interpretation made by the CITY.

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SECTION 7. WARRANTY/GUARANTEES.

A. COVENANT AGAINST GRATUITIES: The CONTRACTOR warrants that no gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the CONTRACTOR, or any agent or representative of the CONTRACTOR, to any officer or employee of CITY with a view toward securing this Agreement or favorable treatment with respect to any determination concerning the performance of this Agreement. In the event of breach of this warranty, CITY shall be entitled to pursue the same remedies including, but not limited to, termination, against the CONTRACTOR as it could pursue in the event of the CONTRACTOR’s default.

B. SPECIFICATION WARRANTY. The CONTRACTOR warrants that all services will be in full accordance with the specifications and requirements of this solicitation document and this Agreement.

In the event that the CONTRACTOR is called to perform warranty work, the CONTRACTOR will be responsible for all costs incurred in repairing the areas under warranty. If it is determined that new problem areas have appeared, which were not areas repaired by the CONTRACTOR under the Scope of

Services set forth herein, the CITY will be responsible for the costs incurred in repairing the new areas.

Any manufacturer’s guarantee related to the materials installed by the CONTRACTOR shall extend for the full warranty period.

SECTION 8. STANDARD OF CARE.

A. The CONTRACTOR has represented to the CITY that it possesses a level of knowledge, experience, and expertise that is commensurate with firms in the areas of practice required for the services to be provided. By executing this Agreement, the CONTRACTOR agrees that the CONTRACTOR will exercise that degree of care, knowledge, skill, and ability as any other similarly situated contractor possessing the degree of skill, knowledge, experience, and expertise within the local area, working on similar activities. The CONTRACTOR shall perform the services requested in an efficient manner, consistent with the CITY’s stated scope of services and industry standards.

B. The CONTRACTOR covenants and agrees that it and its employees, agents, sub-contractors, representatives, volunteers, and the like, shall be bound by the same standards of conduct as stated above.

SECTION 9. APPLICABLE LICENSING.

The CONTRACTOR, at its sole expense, shall obtain all required federal, state, and local licenses, occupational and otherwise, required to successfully provide the services set forth herein.

SECTION 10. AGREEMENT COMPENSATION AND PRICING.

A. Compensation for the term of this Agreement, will be in accordance with the pricing schedule set forth in Exhibit “B” which is attached hereto and made a binding part hereof.

B. Compensation for services completed by the CONTRACTOR will be paid in accordance with section 218.70, Florida Statutes, Florida’s Prompt Payment Act.

C. In its sole discretion, the CITY reserves the right to forego use of the CONTRACTOR for any

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RFP-2017-0194 DISASTER DEBRIS REMOVAL/MANAGEMENT SERVICES

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project which may fall within the Scope of Services listed herein. In the event the CITY is not satisfied with the services provided by the CONTRACTOR, the CITY will hold any amounts due until such time as the CONTRACTOR has appropriately addressed the problem.

D. DELIVERED PRICES: Agreement prices are FREIGHT PREPAID AND ALLOWED/ FOB:

DESTINATION: City of Casselberry, Florida. Agreement prices shall be net of all labor, equipment, transportation, freight, handling, delivery, surcharges, and any other incidental charges that may be required for the completion of the contract.

E. TIME AND MATERIAL

1. INITIAL 70 HOUR PERIOD – ELIGIBLE DEBRIS CLEARING: The CITY will assign work orders to the CONTRACTOR during the initial seventy (70) hour period related to debris clearing (AKA Emergency Debris Road Clearance “Push”). These activities will be compensated based hourly rates stated in the Agreement Price Schedule (Exhibit A).

2. EXCESS OF INITIAL 70 HOUR PERIOD – ELIGIBLE DEBRIS CLEARING: In the event the debris clearing is not completed within the initial seventy (70) period following the event the CONTRACTOR shall stop debris clearing and wait direction from the CITY. In accordance with 2 CFR §200.318, the CITY and the CONTRACTOR will negotiate a maximum ceiling total price for labor, equipment, materials for the remainder of the Push work based on the agreed upon unit rates in Exhibit A. The materials will be compensated at the CONTRACTOR’s actual cost. This maximum ceiling total price work order must not be exceeded by the CONTRACTOR, if it is exceeded it is at the CONTRACTOR’s risk.

3. ANCILLARY SERVICES: Ancillary services related to agreement prices with time assigned to the unit of measure will be processed as stated above in item #2.

F. MAXIMUM CEILING UNIT PRICES: All prices identified in the Agreement Price Schedule

(Exhibit A) are maximum ceiling unit prices. The Exhibit A schedule items will be negotiated between the CITY and the CONTRACTOR as appropriate, fair and reasonable and based on the type and severity of the event. Maximum ceiling unit prices, which exceed the FEMA approved unit prices for the event or FEMA published rate schedules, must be reduced to equal or be less than

FEMA’s allowed unit prices or FEMA published rate schedules.

G. FIXED PRICE TERM: The CONTRACTOR agrees to supply the CITY the items and/or services listed at firm delivered prices for the first year of the initial contract

H. PRICE ADJUSTMENTS:

1. The CITY will allow one (1) price adjustment in the second year of the initial Agreement and one (1) price adjustment in the third year of the initial Agreement. It will be at the CITY’s discretion to continue the second and/or the third year of the initial contract. However, additional consideration by the CITY may be given for extreme and unforeseen volatility in the marketplace as specified in section relating to “Equitable Adjustments”.

2. Price adjustments during the second and third year of the initial Agreement will be allowed, but shall not exceed the Consumer Price Index (Urban Consumers) South Region percent of change for the past twelve (12) months immediately preceding the date of written request for price adjustment. This request will become effective thirty (30) days from the date the notice was received by the PROCUREMENT ADMINISTRATOR from the CONTRACTOR for all purchases and services ordered after the effective date thirty (30) days from the

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PROCUREMENT ADMINISTRATOR receipt of request).

3. Equitable Adjustments: The CITY may, in its sole discretion, make an equitable adjustment in the Agreement terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the CONTRACTOR’S control; (2) the volatility affects the marketplace or industry, not just the particular

Agreement source of supply; (3) the effect on pricing or availability of supply is substantial;

and (4) the volatility so affects the CONTRACTOR that continued performance of the

Agreement would result in a substantial loss. Any and all equitable adjustments may be considered temporary due to the reason for adjustment. All equitable adjustments will be evaluated by the PROCUREMENT ADMINISTRATOR to determine if the reason for adjustment is still valid. If the reason for the adjustment is no longer valid, the CITY will terminate the adjustment and notify the CONTRACTOR.

4. The CITY reserves the right to negotiate this Agreement if the prices exceed the current marketplace.

5. AGREEMENT RENEWAL

a. Price adjustment, during the optional renewal period, will be allowed. However, the CITY will allow only one (1) adjustment for each year of the renewal period.

Requirements for requesting a price adjustment shall be in accordance with the

Price Adjustments section above and subject to CITY approval.

b. The CITY reserves the right to negotiate this Agreement if the prices exceed the current marketplace.

SECTION 11. INVOICING.

A. BILLING CYCLE: The CONTRACTOR shall invoice the CITY on a thirty (30) consecutive calendar day basis reflecting the close of business on the last working day of the billing period.

Serialized debris reporting tickets and disposal site verification of the actual cubic yardage for each load of debris or itemized stumps shall support all invoices. Ancillary services shall be itemized and invoiced in the same manner.

B. INVOICING: Invoices shall bear upon their face the Purchase Order number. Invoices shall be detailed and annotate the services provided, unit prices, extended prices and correlate to and include:

1. Supporting documentation and invoices for services performed or goods furnished by the

CONTRACTOR.

2. Copies of all subcontractor invoices and contracts between the CONTRACTOR and subcontractors.

C. PRICE/SALES TAX: Unless otherwise specified herein, the unit prices herein do not include sales or use tax.

D. The CONTRACTOR shall furnish a notarized Partial Release of Lien from all Lienors for which a

“Notice to Owner” has been filed with the City, except for the first progress payment. The Release of Lien shall cover the time period up to and including the previous progress payment. The CITY reserves the right to request the CONTRACTOR to provide the CITY with “Consent of Surety” for any progress payment.

E. FINAL PAYMENT. Upon final completion and acceptance of the Work in accordance with the

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Agreement, CITY shall pay the remainder of the AGREEMENT as recommended by the City

Representative upon receipt of a notarized final RELEASE OF LIEN form from all Lienors that filed a Notice to Owner to the CITY prior to release of final payment. In addition, the Bidder shall forward the “Consent of Surety Company to Final Payment” form and a completed

CONTRACTOR’S AFFIDAVIT TO OWNER prior to the release of final payment.

SECTION 12. TERMINATION FOR CONVENIENCE.

The CITY may at any time give ten (10) days written notice to the CONTRACTOR of the termination of this

Agreement, in whole or in part, for the CITY’s convenience and without cause.

SECTION 13. CANCELLATION OF AGREEMENT.

This Agreement may be terminated by the CITY or the CONTRACTOR should the CONTRACTOR or the

CITY fail to provide in any substantial manner the services and/or commodities required under this Agreement, or otherwise fails to comply with the terms of this Agreement or the Agreement Documents, or violates any ordinance, regulation or other law which applies to its performance under this Agreement. The CITY or the

CONTRACTOR may terminate this Agreement under this subparagraph by giving ten (10) calendar days’ written notice. The CITY, at its option, may give the CONTRACTOR a reasonable period of time to cure the noncompliance.

SECTION 14. DEFAULT BY CONTRACTOR AND CITY’S REMEDIES.

In the event of a default by the CONTRACTOR, the CITY shall have the right to exercise any remedy the

CITY may have by operation of law, without limitation, and without any further demand or notice.

SECTION 15. BANKRUPTCY OR INSOLVENCY.

If the CONTRACTOR files a Petition in Bankruptcy, or if the same is adjudged bankrupt or insolvent by any

Court, or if a receiver of the property of the CONTRACTOR is appointed in any proceeding brought by or against the CONTRACTOR, or if the CONTRACTOR makes an assignment for the benefit of creditors, or proceedings are commenced on or against the CONTRACTOR’s operations, the CITY may terminate this

Agreement immediately notwithstanding the notice requirements of Section 41 hereof.

SECTION 16. PAYMENT WHEN SERVICES ARE TERMINATED.

A. In the event of termination of this Agreement by the CITY for convenience, the CITY shall compensate the CONTRACTOR for all services performed prior to the effective date of termination.

B. In the event of termination of this Agreement due to the fault of the CONTRACTOR, or at the written request of the CONTRACTOR, the CITY shall compensate the CONTRACTOR for all services completed, prior to the effective date of termination, which have resulted in a usable product, or otherwise tangible benefit to the CITY. All such payments shall be subject to an off-set for any damages incurred by the CITY resulting from any delay occasioned by early termination.

This provision shall in no way be construed as the sole remedy available to the CITY in the event of breach by the CONTRACTOR.

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SECTION 17. INSURANCE.

A. The CONTRACTOR shall maintain at a minimum the following types of insurance, with the respective limits, and shall provide proof of same to the CITY, in the form of a Certificate of

Insurance prior to the start of any work hereunder:

1. AUTOMOBILE: $1,000,000.00 Combined Single Limit for Bodily Injury and Property

Damage per accident;

2. GENERAL LIABILITY: $1,000,000.00 each occurrence;

3. GENERAL AGGREGATE: $2,000,000.00;

4. EXCESS COVERAGE: $1,000,000.00; and,

5. WORKERS’ COMPENSATION: Employers’ liability insurance which covers the statutory obligation for all persons engaged in the performance of the work required hereunder with limits not less than $1,000,000.00 per occurrence. Evidence of qualified self-insurance status will suffice for this subsection. The CONTRACTOR understands and acknowledges that it shall be solely responsible for any and all medical and liability costs associated with an injury to itself and/or to its employees, sub-contractors, volunteers, and the like, including the costs to defend the CITY in the event of litigation against same.

B. The CONTRACTOR shall name the “City of Casselberry” as a certificate holder and/or as additional insured, to the extent of the services to be provided hereunder, on all required insurance policies, and provide the CITY with proof of same.

C. The CONTRACTOR shall provide the CITY’s Human Resources/Risk Management Division with a

Certificate of Insurance evidencing such coverage for the duration of this Agreement. Said

Certificate of Insurance shall be dated and show:

1. The name of the insured CONTRACTOR;

2. The specified job by name and job number;

3. The name of the insurer;

4. The number of the policy;

5. The effective date;

6. The termination date; and,

7. A statement that the insurer will mail notice to the CITY at least thirty (30) days prior to any material changes in the provisions or cancellations of the policy; and

8. The Certificate Holders Box must read as follows:

City of Casselberry c/o Human Resources/Risk Management Division

95 Triplet Lake Drive

Casselberry, Florida 32707

Any other wording in the Certificate Holders Box shall not be acceptable. Non-conforming

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certificates will be returned for correction.

D. Receipt of certificates or other documentation of insurance or policies or copies of policies by the

CITY, or by its representatives, which indicates less coverage than is required, does not constitute a waiver of the CONTRACTOR’s obligation to fulfill the insurance requirements specified herein.

E. The CONTRACTOR shall ensure that any sub-contractor(s), hired to perform any of the duties contained in the Scope of Services of this Agreement, maintain the same insurance requirements set forth herein. In addition, the CONTRACTOR shall maintain proof of same on file and made readily available upon request by the CITY.

F. The CITY shall be exempt from, and in no way liable for, any sums of money which may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the CONTRACTOR and/or any sub-contractor providing such insurance.

G. All insurance carriers shall have AM Best Rating of at least A-, and a size VII or larger. The

General Liability and Workers Compensation policies shall have a waiver of subrogation in favor of the CITY. The liability policies shall be Primary/Non-Contributory.

SECTION 18. CITY OBLIGATIONS.

At the CONTRACTOR’s request, the CITY agrees to provide, at no cost, pertinent information known and readily available to the CITY to assist the CONTRACTOR in providing and performing the required services.

SECTION 19. PUBLIC RECORDS.

A. The parties specifically acknowledge that this Agreement is subject to the laws of the state of

Florida, including without limitation Chapter 119, Florida Statutes, which generally make public all records or other writings made or received by the parties. If the CONTRACTOR is either a

“contractor” as defined in Section 119.0701(1)(a), Florida Statutes, or an “agency” as defined in

Section 119.011(2), Florida Statutes, the CONTRACTOR shall:

1. Keep and maintain all public records required by the CITY to perform the services herein;

and

2. Upon request from the CITY’s custodian of public records, provide the CITY with 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 in Chapter 119, F.S. or as otherwise provided by law; and

3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the

Agreement Term and following completion of the Agreement if the CONTRACTOR does not transfer the records to the CITY; and

4. Upon completion of the Agreement, transfer, at no cost, to the CITY all public records in possession of the CONTRACTOR or keep and maintain public records required by the CITY to perform the services herein. If the CONTRACTOR transfers all public records to the

CITY upon completion of the Agreement, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion

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of the Agreement, the CONTRACTOR shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the CITY, upon request from the CITY’s custodian of public records, in a format compatible with the information technology systems of the CITY.

B. All requests to inspect or copy public records relating to the Agreement shall be made directly to the

CITY. Notwithstanding any other provision of this Agreement to the contrary, failure to comply with the requirements of this paragraph shall result in the immediate termination of the Agreement, without penalty to the CITY. A CONTRACTOR who fails to provide the public records to the

CITY within a reasonable time may be subject to penalties pursuant to Section 119.10, F.S. Further, the CONTRACTOR shall fully indemnify and hold harmless the CITY, its officers, agents and employees from any liability and/or damages, including attorney’s fees through any appeals, resulting from the CONTRACTOR’s failure to comply with these requirements.

C. 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 AGREEMENT, CONTACT THE CITY’S CUSTODIAN OF PUBLIC

RECORDS, ATTN: DONNA G. GARDNER, CMC, CITY CLERK, AT 407-262-

7700 EXT. 1133, DGARDNER@CASSELBERRY.ORG, 95 TRIPLET LAKE

DRIVE, CASSELBERRY, FLORIDA 32707.

SECTION 20. AUDITS AND RECORDS.

A. The CONTRACTOR may be required to disclose their financial condition in a specified manner. In addition, the CONTRACTOR must maintain financial records and reports relating to funds paid by any parties for work on the matters which are the subject of this Agreement, and submit reports to the CITY in the form and frequency requested.

B. The CONTRACTOR must maintain books, records, documents, and other evidence according to generally accepted accounting principles, procedures, and practices, which sufficiently and properly reflect all costs of any nature expended in the performance of this Agreement, and retain said copies for a period of no less than five (5) years after termination of this Agreement. The aforesaid records, books, documents, and other evidence shall be subject at all times to inspection, review, or audit by the CITY or its designee. The CONTRACTOR shall include these aforementioned audit and record keeping requirements in contracts and subcontracts thereto entered into by the CONTRACTOR with any party for work required in the performance of this Agreement.

C. AUDIT DISALLOWANCES. If at any time the CITY determines that a cost for which payment has been made is a disallowed cost, such as overpayment, CITY shall notify the CONTRACTOR in writing of the disallowance. CITY shall also state the means of correction, which may be but shall not be limited to adjustment of any future claim submitted by the CONTRACTOR by the amount of the disallowance, or to require repayment of the disallowed amount by the CONTRACTOR.

SECTION 21. RIGHT TO INSPECTION.

A. The CITY or its affiliates shall at all times have the right to review or observe the services performed mailto:DGARDNER@CASSELBERRY.ORG

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by the CONTRACTOR.

B. No inspection, review, or observation shall relieve the CONTRACTOR of its responsibilities under this Agreement.

SECTION 22. PROHIBITION AGAINST CONTINGENT FEES.

The CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement.

SECTION 23. CORPORATE REPRESENTATIONS BY THE CONTRACTOR.

The CONTRACTOR hereby represents and warrants to the CITY the following:

A. The CONTRACTOR is duly registered and licensed to do business in the State of Florida and is in good standing under the laws of Florida, and is duly qualified, licensed and authorized to carry on the functions and operations set forth in this Agreement. The CONTRACTOR agrees to provide a copy of all said licenses to the CITY prior to the execution of this Agreement.

B. The undersigned representative of the CONTRACTOR has the power, authority, and legal right to execute and deliver this Agreement on behalf of the CONTRACTOR.

C. The CONTRACTOR has familiarized himself with the nature and extent of the Contract Documents, Work, Locality, and with all local conditions and federal, state and local laws, ordinances, rules and regulations that in any manner may affect cost, progress or performance of the Work.

D. The CONTRACTOR has familiarized himself with the nature and extent of the Agreement

Documents, Work, Locality, and with all local conditions and federal, state and local laws, ordinances, rules and regulations that in any manner may affect cost, progress or performance of the

Work.

E. The CONTRACTOR shall comply with all Federal, State and Local rules, policies and ordinance in the performance of their work and document management.

F. The CONTRACTOR has given PROCUREMENT ADMINISTRATOR written notice of all conflicts, errors or discrepancies that he has discovered in the Agreement Documents and the written resolution thereof by PROCUREMENT ADMINISTRATOR is acceptable to the CONTRACTOR.

G. SUBCONTRACTORS:

1. The CONTRACTOR shall be fully responsible for the actions of their Subcontractors.

Therefore, should a Subcontractor perform work outside of the awarded scope of work they do so at the CONTRACTOR’s expense and risk not being compensated by the City for performing unauthorized work.

2. The CITY reserves the right to accept the use of a subcontractor or to reject the selection of a particular subcontractor and to inspect all facilities of any subcontractor in addition to checking of prior performance of like or similar work as delineated in part or whole as pertinent to this contract.

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3. The CONTRACTOR shall be required to notify the Project Manager of all intended changes to the subcontractor list set forth in Exhibit “D”, Subcontractor List; which is attached hereto and made a binding part hereof. The Project Manager shall issue written notice to the

CONTRACTOR indicating the acceptance or rejection of the intended subcontractor change.

H. SAFETY COMPLIANCE. It shall be the CONTRACTOR’s sole responsibility to comply with all

Local, State and Federal rules and regulations while performing work for the City. These regulations include, but are not limited to: Confined Space, Lock-out/Tag-out, Hazard Communications, Personal Protective Equipment, Excavation Safety, Respiratory Protection, and Hot Work Permits.

I. Competent Personnel. The CONTRACTOR warrants that all services shall be performed by skilled and competent personnel to the highest professional standards in this scope of work.

J. System for Award Management Maintenance FAR 52.204-13 – CONTRACTOR’S requirement for maintaining DUNS Number and CAGE Code:

1. Definitions. As used in this clause— “Data Universal Numbering System (DUNS) number” means the 9-digit number assigned by Dun and Bradstreet, Inc. (D&B) to identify unique business entities, which is used as the identification number for Federal contractors. “Data

Universal Numbering System+4 (DUNS+4) number” means the DUNS number assigned by

D&B plus a 4- character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4- character suffix may be assigned at the discretion of the business concern to establish additional SAM records for identifying alternative Electronic Funds Transfer (EFT) accounts (see the FAR at subpart 32.11) for the same concern.

2. “Registered in the System for Award Management (SAM) database” means that—

a. The CONTRACTOR has entered all mandatory information, including the DUNS number or the DUNS+4 number, the CONTRACTOR and Government Entity

(CAGE) code, as well as data required by the Federal Funding Accountability and

Transparency Act of 2006 (see FAR subpart 4.14), into the SAM database;

b. The CONTRACTOR has completed the Core, Assertions, Representations and

Certifications, and Points of Contact sections of the registration in the SAM database;

c. The Government has validated all mandatory data fields, to include validation of the

Taxpayer Identification Number (TIN) with the Internal Revenue Service (IRS). The

CONTRACTOR will be required to provide consent for TIN validation to the

Government as a part of the SAM registration process; and

d. The Government has marked the record “Active”.

3. “System for Award Management (SAM)” means the primary Government repository for prospective Federal awardee and Federal awardee information and the centralized

Government system for certain contracting, grants, and other assistance- related processes. It includes—

a. Data collected from prospective Federal awardees required for the conduct of business with the Government;

b. Prospective contractor-submitted annual representations and certifications in accordance with FAR subpart 4.12; and

c. Identification of those parties excluded from receiving Federal contracts, certain subcontracts, and certain types of Federal financial and non-financial assistance and benefits.

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4. The CONTRACTOR is responsible for the accuracy and completeness of the data within the

SAM database, and for any liability resulting from the Government’s reliance on inaccurate or incomplete data. To remain registered in the SAM database after the initial registration, the CONTRACTOR is required to review and update on an annual basis, from the date of initial registration or subsequent updates, its information in the SAM database to ensure it is current, accurate and complete. Updating information in the SAM does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document.

5. CONTRACTOR changes:

a. If a CONTRACTOR has legally changed its business name, doing business as name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, but has not completed the necessary requirements regarding novation and change-of-name agreements in subpart FAR 42.12, the

CONTRACTOR shall provide the responsible PROCUREMENT

ADMINISTRATOR a minimum of one business day's written notification of its intention to—

i. Change the name in the SAM database;

ii. Comply with the requirements of subpart 42.12 of the FAR; and

iii. Agree in writing to the timeline and procedures specified by the responsible PROCUREMENT ADMINISTRATOR. The CONTRACTOR shall provide with the notification sufficient documentation to support the legally changed name.

b. If the CONTRACTOR fails to comply with the requirements of paragraph e(i) of this clause, or fails to perform the agreement at paragraph e(i)(3) of this clause, and, in the absence of a properly executed novation or change-of name agreement, the SAM information that shows the CONTRACTOR to be other than the CONTRACTOR indicated in the contract will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the electronic funds transfer

(EFT) clause of this contract.

c. The CONTRACTOR shall not change the name or address for EFT payments or manual payments, as appropriate, in the SAM record to reflect an assignee for the purpose of assignment of claims (see FAR subpart 32.8, Assignment of Claims).

Assignees shall be separately registered in the SAM. Information provided to the

CONTRACTOR’s SAM record that indicates payments, including those made by

EFT, to an ultimate recipient other than that CONTRACTOR will be considered to be incorrect information within the meaning of the “Suspension of Payment” paragraph of the EFT clause of this contract.

d. The CONTRACTOR shall ensure that the DUNS number is maintained with Dun &

Bradstreet throughout the life of the contract. The CONTRACTOR shall communicate any change to the DUNS number to the Contracting Officer within 30 days after the change, so an appropriate modification can be issued to update the data on the contract. A change in the DUNS number does not necessarily require a novation be accomplished. Dun & Bradstreet may be contacted

i. Via the internet at http://fedgov.dnb.com/webform or if the CONTRACTOR does not have internet access, it may call Dun and Bradstreet at 1-866-705-

5711 if located within the United States; or

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ii. If located outside the United States, by contacting the local Dun and

Bradstreet office.

e. The CONTRACTOR may obtain additional information on registration and annual confirmation requirements at https://www.acquisition.gov.

SECTION 24. INDEPENDENT CONTRACTOR.

The CONTRACTOR and each sub-consultant are, and while performing the Services will continue to be, independent contractors. The CONTRACTOR shall not be an agent of the CITY, except as may be otherwise expressly provided herein, and only to the extent so provided. The CONTRACTOR’s employees and sub-consultant employees are not, and while performing any of the Services, they shall not be deemed to be, employees of the CITY.

SECTION 25. RELATIONSHIP OF PARTIES.

The relationship of the Parties under this Agreement is that of independent parties; each acting in its own best interests. Notwithstanding anything in this Agreement to the contrary, no partnership or joint venture relationship of principal and agent is established or intended hereby between or among the Parties.

SECTION 26. THIRD-PARTY BENEFICIARIES.

The provisions of this Agreement are for the exclusive benefit of the parties and not for the benefit of any third person, nor shall this Agreement be deemed to have conferred any rights, express or implied, upon any third person unless otherwise expressly provided.

SECTION 27. FORCE MAJEURE.

Neither party shall be considered in default in performance of its obligations hereunder to the extent that performance of such obligations, or any of them, is delayed or prevented by force majeure. Force majeure shall include, but not be limited to, hostilities, terrorism, revolution, civil insurrection, strike, epidemic, fire, flood, windstorm, earthquake, explosion, any law, proclamation, regulation, or ordinance or other act of government, or any act of God or any cause whether of the same or different nature, existing or future; provided that the cause whether or not enumerated in this Section is beyond the control and without the fault or negligence of the party seeking relief under this Section.

SECTION 28. TIME IS OF THE ESSENCE.

Time is of the essence in this Agreement as to all dates and time periods. To the extent that the last day of any time period stipulated in this Agreement falls on a Saturday, Sunday or legal holiday (State or Federal), the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. Any time period of ten (10) days or less specified herein shall not include Saturdays, Sundays or legal holidays. The term

“business days” means days other than Saturdays, Sundays or legal holidays.

SECTION 29. FURTHER ASSURANCES.

Each party hereto agrees to sign any other and further instruments and documents, consistent herewith, as may be necessary and proper in order to give complete effect to the benefits deriving from the terms and conditions of this Agreement.

https://www.acquisition.gov/

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SECTION 30. COMPLIANCE WITH ALL LAWS.

The CONTRACTOR, at its sole expense, shall comply with all laws, ordinances, judicial decisions, orders, and regulations of federal, state, county, and municipal governments, as well as their respective departments, commissions, boards, and officers, which are in effect at the time of execution of this Agreement or are adopted at any time following the execution of this Agreement.

SECTION 31. INDEMNITY.

The CONTRACTOR shall defend, indemnify and hold harmless the CITY and all of the CITY’s officers, agents, and employees from and against all claims, liability, loss and expense, including reasonable costs, collection expenses, attorneys’ fees, and court costs which may arise because of the negligence (whether active or passive), misconduct, or other fault, in whole or in part (whether joint, concurrent, or contributing), of the

CONTRACTOR, its officers, agents or employees or subcontractors in performance or non-performance of its obligations under the Agreement. The CONTRACTOR recognizes the broad nature of this indemnification and hold harmless clause, as well as the provision of a legal defense to the CITY when necessary, and voluntarily makes this covenant and expressly acknowledges the receipt of such good and valuable consideration provided by the CITY in support of these indemnification, legal defense and hold harmless contractual obligations in accordance with the laws of the State of Florida. This clause shall survive the termination of this Agreement.

Compliance with any insurance requirements required elsewhere within this Agreement shall not relieve the

CONTRACTOR of its liability and obligation to defend, hold harmless and indemnify the CITY as set forth in this article of the Agreement. The CITY will be permitted to choose legal counsel of its choice. The

CONTRACTOR shall require each of its agents/subcontractors to agree in writing to the provisions of this paragraph.

SECTION 32. INDEMNIFICATION FOR COPYRIGHT INFRINGEMENT.

The CONTRACTOR guarantees that all services performed under this Agreement will be free from claims of patent, copyright or trademark infringement. The CONTRACTOR shall defend, indemnify and hold the CITY and its successors and assigns harmless from and against all third-party claims, suits, and proceedings and any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) incurred as a result of (i) infringement by the CONTRACTOR of any third-party patent, copyright or trademark or (ii) misappropriation by the CONTRACTOR of any third-party trade secret in connection with any of the foregoing.

SECTION 33. SOVEREIGN IMMUNITY.

Notwithstanding any other…