ITB 24_012 CDBG ADA Ramp Sidewalk Repair_COB.pdf

Invitation to Bid, No. 24-012

ITB 2024 CDBG ADA Ramp/Sidewalk Repair/Replace June 26, 2024

PRE-BID MEETING

Wednesday, July 03, 2024, at 11:00 A.M. EST.

City of Brookhaven – 4362 Peachtree Road NE, Brookhaven, GA 30319

QUESTIONS DUE

July 10, 2024, 4:00 PM

BID DUE DATE:

July 24, 2024, at 4:00 P.M. EST.

Bids shall only be accepted online through the Bonfire Portal at:

https://brookhavenga.bonfirehub.com/projects/view/144608

Any bid submitted in any other format (email, paper, fax, mail, etc.) will not be accepted.

Instructions to Bidders:

1. All communication regarding this solicitation must be with the Purchasing Manager, Purina Alexander, purina.alexander@brookhavenga.gov.

2. All questions or requests for clarification must be sent via Bonfire under Message - Opportunity Q&A: https://brookhavenga.bonfirehub.com/projects/view/144608.

Questions are due no later than July 10, 2024, at 4:00 p.m. EST. Questions received after this date and time may not be answered.

3. All questions and clarifications from bidders shall be answered via an addendum. Any addenda, schedule changes, and other important information regarding this solicitation will be posted at https://brookhavenga.bonfirehub.com/projects/view/144608 the bonfire website, and is the bidder’s responsibility to check the Bonfire portal for any addendum or other communications related to this solicitation.

4. The City of Brookhaven reserves the right to reject all bids, waive technicalities and informalities, and make an award in the best interest of the City of Brookhaven.

5. The City of Brookhaven is not responsible for any technical difficulties. It is highly recommended that all potential contractors submit their quotes before the due date of this solicitation, July 24, 2024.

https://brookhavenga.bonfirehub.com/projects/view/68028 https://brookhavenga.bonfirehub.com/projects/view/68028 https://brookhavenga.bonfirehub.com/projects/view/68028 https://brookhavenga.bonfirehub.com/projects/view/68028

6. The City of Brookhaven reserves the right to eliminate certain pay items from the contract if the cost of those items exceeds the project budget. In turn, the City of Brookhaven reserves the right to add pay items to the contract at the bid price submitted by the awarded contractor.

All bidders must comply with the general requirements, special and Federal provisions of the bid information, and instructions enclosed. Interested bidders need to review all bid documents carefully. The 2024 ADA RAMP/SIDEWALK REPAIR/REPLACE project is being funded by a Community Development Block Grant (CDBG) made available to the City of Brookhaven through a partnership with the U.S. Department of Housing and Urban Development (HUD). Consistent with other Federal programs, CDBG requires compliance with various federal laws, regulations, and guidelines throughout the Invitation to Bid procurement process, project construction, and project close-out. Important laws and regulations the successful contractor and subsequent subcontractors must comply with include, but are not limited to, the following:

Title VII of the Civil Rights Act of 1964 and Executive Order 11246.

24 CFR Part 85.36 Conflict of Interest provisions.

24 CFR Part 85(e) Minority, Women-owned, Small Business Enterprise.

29 CFR Parts 1, 3, 5, 6, and 7 Davis-Bacon Act.

40 U.S.C. 327-333 Contract Work Hours and Safety Standards Act.

24 CFR Part 135 Section 3.

Attention is paid to the fact that this project is being funded ultimately through the Community Development Block Grant (CDBG) Program of the U.S. Department of Housing and Urban Development. The bidder is asked to pay special attention to the Federal Regulations included in the bid package. These regulations include The Davis-Bacon Act, Section 3, the Contract Work Hours and Safety Standards Act, the Copeland (Anti-Kickback Act), and the Fair Labor Standards Act. In addition, the contractor must comply with the terms and conditions of:

CDBG Supplemental Conditions have been attached to these Contract Documents and supersede the requirements of the General Conditions of this contract. Included in the CDBG Supplemental Conditions is the applicable Federal Department of Labor - Wage Rate Decision to be utilized in the payment of all persons employed relative to the construction of this project.

CDBG Federal/Local Conditions are attached as an addition to these Contract Documents and supersede all requirements in these documents.

These CDBG Requirements Include the Following:

1) Section 109 of the Fair Housing and Equal Opportunity Act of 1974; Title VI and other applicable provisions of the Civil Rights Act of 1964.

2) The Fair Housing and Equal Opportunity Act, as amended.

3) CDBG Program regulations on conflict of interest.

4) Federal staff and auditor’s access to records.

5) Executive Order 11246, Equal Employment Opportunity.

6) The Department of Labor Equal Opportunity Clause (41 CFR 40–1, 4).

7) Executive Order 11625 (Utilization of Minority and Female Business Enterprises).

8) Section 504 of the Rehabilitation Act of 1973 and the American Disabilities Act of 1990.

9) CDBG Supplemental Conditions have been attached to these Contract Documents and supersede the requirements of the General Conditions of this contract. Included in the CDBG Supplemental Conditions is the applicable Federal Department of Labor - Wage Rate Decision to be utilized in the payment of all persons employed relative to the construction of this project.

10) Bidders must be registered at Sam.gov. Bidders are not required to have a Sam.gov issued Unique Identifier Number (UIN) at the time of bid. However, at a minimum, bidders must provide confirmation of application for a UIN with bid submission. Successful bidder will be required to have a UIN prior to contract award.

TABLE OF CONTENTS

1. Definitions: Page 3

2. Sample Contract Agreement: Pages 4-6

3. General Conditions. Exhibit A: Pages 7-30

4. Specifications and Scope of Work (ITB 24-XXX reference herein.) Exhibit B: Pages

31-37

5. Determination of Responsibility. Exhibit C: Page 38

6. Bond Documents: Payment Bond, Performance Bond, and Maintenance Bond.

Exhibit D: Pages 39-46

7. Georgia Security and Immigration Compliance Affidavit. Exhibit E: Pages 47-48

8. Drug-Free Workplace. Exhibit F: Page 49

9. Purchasing Policy Addendum. Exhibit G: Page 50

10. Affidavit Verifying Status for Public Benefit Application. Exhibit H: Page 51

11. Bid Documents: References and Subcontractor Form. Exhibit I: Pages 21-53

12. Non-Collusion Affidavit. Exhibit J: Page 54

13. Bid Schedule. Exhibit K: Pages 55-60

14. Task 1: Location, Details, & Specifications; Exhibit L: Pages 61-70

15. Task 2: Location, Details, & Specifications; Exhibit M: Pages 71-78

16. CDBG Federal/Local Project Requirements. Exhibit N: Pages 79-80

17. A Standard Federal-Aid Contract for Locally Administered or Locally Let Projects –

Exhibit O: Pages 81-197

DEFINITIONS

ADA: Americans with Disabilities Act: This Federal Act gives civil rights protections to the disabled like those provided to individuals based on race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, and state and local government services telecommunications.

CDBG: Community Development Block Grant Program.

CWHSSA: Contract Work Hours and Safety Standards Act. The Federal Act requires time and one-half for overtime (O/T) hours (over 40 hours in any workweek) worked on the covered project.

Copeland Act (Anti-Kickback Act): the Federal Act that makes it a federal crime for anyone to require any laborer or mechanic (employed on a Federal or Federally assisted project) to kickback (i.e., give up or pay back) any part of their wages. The Copeland Act requires every employer (contractors and subcontractors) to submit weekly payroll reports (CPRs) and regulates permissible payroll deductions.

DBA-Davis Bacon Act: The Federal Act requires the payment of prevailing wage rates, determined by the Department of Labor (DOL), to all laborers and mechanics on Federal government and District of Columbia construction projects more than $2,000. Construction includes alteration and or repair, including painting and decorating, of public buildings or public works.

CONTRACT FOR ITB 24-012

2024 ADA RAMP/SIDEWALK REPAIR/REPLACE

CDBG FEDERAL FUNDED PROJECT

This CONTRACT, made and entered into this ____ day of ____________, 2024 by and between the City of Brookhaven, (Party of the First Part, hereinafter called the “City”), and - _____________________, Party of the Second Part, hereinafter called the “Contractor Provider” or “Contractor”).

NOW THEREFORE, for and in consideration of the mutual promises and obligations contained herein and under the conditions hereinafter set forth, the parties do hereby agree as follows:

1. TERMS:

The Services performed under this Contract shall commence upon the date stated in the Notice to Proceed Letter. The contract period for this contract is 90 days from the date stated in the Notice to Proceed Letter. Upon the completion of the full scope of work, the contract shall terminate absolutely and without further obligation as required by O.C.G.A. §36-60-13, as amended, unless terminated earlier by the provisions of this Contract.

2. ATTACHMENTS: The following documents are attached and are specifically incorporated herein by reference; and, along with this Contract and the General Conditions attached as Exhibit A encompass all the Contract documents:

Exhibit A: General Conditions.

Exhibit B: Specifications and Scope of Work (ITB 24-012 reference herein).

Exhibit C: Determination of Responsibility.

Exhibit D: Bond Documents: Payment Bond, Performance Bond, and Maintenance Bond.

Exhibit E: Georgia Security and Immigration Compliance Affidavit.

Exhibit F: Drug-Free Workplace.

Exhibit G: Purchasing Policy Addendum.

Exhibit H: Affidavit Verifying Status for Public Benefit Application.

Exhibit I: Bid Documents: References and Subcontractor Form.

Exhibit J: Non-Collusion Affidavit.

Exhibit K: Bid Schedule.

Exhibit L: CDBG FEDERAL/LOCAL PROJECT REQUIREMENTS.

Exhibit M: A Standard Federal-Aid Contract for Locally Administered or Locally Let Projects.

3. PERFORMANCE:

The Contractor Provider agrees to furnish all skill and labor of every description necessary to carry out and perform the services per the Contract Documents (the “Work”).

4. PRICE:

The City agrees to pay the Contractor Provider following receipt by the City of a detailed invoice reflecting the actual work performed by the Contractor Provider, provided that the Contractor Provider guarantees that the maximum price for materials, labor, and expenses, shall be the amount reflected in Exhibit K.

5. INDEMNIFICATION AND HOLD HARMLESS:

[See Section 13 of Exhibit A. -- General Conditions] Contractor Provider further agrees to protect, defend, indemnify, and hold harmless the City, its council members, officers, agents, and employees from and against all claims or liability for compensation under the Worker’s Compensation Act arising out of injuries sustained by any employee or subcontract of the Contractor Provider, as allowed under the law.

6. TERMINATION FOR CAUSE:

The City may terminate this Contract for cause upon ten (10) days prior written notice to the Contractor Provider of the Contractor Provider’s default in performance in any terms of this Contract. Such termination shall be without prejudice to any City’s rights or remedies provided by law.

7. TERMINATION FOR CONVENIENCE: The City may terminate this Contract for its convenience at any time upon 30 days written notice to the Contractor Provider. In the event of the City’s termination of this Contract for convenience, the Contractor Provider will be compensated for those services performed. Partially completed performance of the Contract will be compensated based upon a signed statement of completion to be submitted by the Contractor Provider who shall itemize each element of performance.

8. TERMINATION FOR FUND APPROPRIATION:

The City may unilaterally terminate this Contract due to lack of funding at any time by written notice to the Contractor Provider. In the event of the City’s termination of this Contract for fund appropriation, the Contractor Provider will be paid for those services performed. Partially completed performance of the Contract will be compensated based upon a signed statement of completion to be submitted by the Contractor Provider which shall itemize each element of performance.

9. CONTRACT NOT TO DISCRIMINATE:

During the performance of this Contract, the Contractor Provider will not discriminate against any employee or applicant for employment because of race, creed, color, color, sex, national origin, age, or disability which does not preclude the applicate or employee from performing the essential functions of the position. The Contractor Provider will also, in all solicitations or advertisements for employees placed by qualified applicants, consider the same without regard to race, creed, color, sex, national origin, age, or disability which does not preclude the applicant from performing the essential functions of the job. The Contractor Provider will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Contract so that such provision will be binding upon each subcontractor for standard commercial supplies of raw materials.

10. ASSIGNMENT:

The Contractor Provider shall not sublet, assign, transfer, pledge, convey, sell, or otherwise dispose of the whole or any part of this Contract or their right, title, or interest therein to any person, firm, or corporation without the previous consent of the City in writing.

11. WAIVER:

A waiver by either party of any breach of any provision, term, covenant, or condition of this Contract shall not be deemed a waiver of any subsequent breach of the same or any other provision, term, covenant, or condition.

12. SEVERABILITY:

The parties agree that each of the provisions included in this Contract is separate, distinct, and severable from the other and remaining provisions of this Contract and that the invalidity of any Contract provision shall not affect the validity of any other provision or provisions of this Contract.

13. GOVERNING LAW:

The parties agree that this Contract shall be governed and construed per the laws of the State of Georgia. This Contract has been signed in DeKalb County, Georgia.

14. MERGER CLAUSE:

The parties agree that the terms of this Contract included the entire Contract between the parties, and as such, shall exclusively bind the parties. No other representations, either oral or written, may be used to contradict the terms of this Contract.

15. SMALL AND MINORITY BUSINESSES CLAUSE:

The City of Brookhaven, in maintaining its status as a Welcoming City and City of Ethics, commissioned a study of its Social Justice, Race, and Equity practices. As a result of the study, recommendations have been made to the Brookhaven City Council to enhance and improve upon its efforts in providing opportunities to small and minority businesses in procuring goods and services. With respect to openness and transparency, the City of Brookhaven encourages all businesses regardless of size and status to engage in the City’s procurement process. The City gives equal attention to all submissions and will collaborate with individual firms to ensure that their questions are answered on a timely basis.

IN WITNESS WHEREOF, the parties hereto, acting through their duly authorized agents, have caused this CONTRACT to be signed, sealed, and delivered.

Brookhaven, GEORGIA

By: ___________________________________________ John Park, Mayor, City of Brookhaven, Georgia

ATTEST: ____________________________

Sandra Bryant, City Clerk

APPROVED AS TO FORM: ___________________________

Jeremy Berry, City Attorney

Contractor

By: _____________________________ Date ____________ (Signature)

(Print Name)

(Print Title)

ATTEST: _____________________________ Date ____________ (Signature)

(Print Name)

(Print Title)

EXHIBIT A

GENERAL CONDITIONS

1. SCOPE OF WORK

The Contract shall provide Contractors to the City in accordance with the Contract Documents. All work performed shall be in accordance with the Scope of Contractors attached hereto as Exhibit B.

2. REGULATIONS

2.1 The Contractor Provider shall comply with all applicable federal, state, and local laws, ordinances, rules, and regulations pertaining to the performance of the work specified herein.

2.2 The Contractor Provider shall obtain all permits, licenses, and certificates, or any such approvals of plans or specifications as required by federal, state, and local laws, ordinances, rules, and regulations, for the proper execution of the work specified herein.

2.3 During the performance of this Contract, the Contractor Provider shall keep current and, if requested by the City, provide copies of all licenses, registrations or permits required by applicable governing agencies, The Contractor Provider shall keep a copy of all licenses, registrations and permits on the job site while performing the Contract work.

2.4 The Contractor Provider will comply with the City of Brookhaven’s Financial Management and Purchasing Policies.

2.5 Contractor Provider will complete all work in accordance with all applicable legal requirements, including, but not limited to O.C.G.A. § 50-5-63, as applicable.

3. WORK HOURS

3.1 The Contractor shall normally perform on-site work during Standard work hours, which are between 7:00 a.m. and 7:00 p.m., Monday through Friday, excluding City’s observed holidays. The City may require the Contractor to perform work on the City’s premises during non-Standard work hours which are outside the Standard work hours. Nonstandard Work Hours may be arranged with prior written approval of the City. The Contractor shall advise the City no less than 48 hours in advance of its projected work schedule. The Contractor shall perform no work during City observed holidays without the prior written permission of the City.

3.2 In the event an emergency condition is declared by the City’s Manager, or their respective designee, the Contractor will perform work during such hours as requested by the City.

3.3 The City may order the Contractor Provider to suspend, delay, or interrupt all or any part of the work for such a period as may be determined appropriate for the convenience of the City. The time for completion of the work shall be extended by the number of days the work is suspended. The City shall not be responsible for any claims, damages or costs stemming from any delay of the work.

4. CONTRACTOR PROVIDER’S PERSONNEL

4.1 The Contractor Provider will abide by all State and Federal regulations on wages and hours of an employee dealing with the employment relationship between the Contractor Provider and its subsidiaries or related parties and its employees, including but not limited to the Federal National Labor Relations Act, the Federal Fair Labor Standards Act, the Federal Civil Rights Act of 1964, as amended, and the Americans with Disabilities Act.

4.2 The Contractor Provider shall require all prospective employees to show proof of citizenship, or proof from the United States Immigration and Naturalization Contractor of valid entry permits and/or work permits for legal aliens and proof that such legal aliens are eligible to be employed in the United States. This includes any requirement for participation in the DHS e-Verify or SAVE program.

4.3 Should the Contractor Provider engage employees who are illiterate in English, it will be the Contractor Provider’s responsibility and obligation to train such employees to be able to identify and understand all signs and notices in and/or around the areas that relate to them, or the services being performed by them pursuant to this Contract. In addition, the Contractor Provider will always have someone in attendance who can communicate instructions to said employee.

4.4 The Contractor Provider shall maintain a Drug-free workplace within the meaning of the Georgia Drug-free Workplace Act. No employee shall be hired by a Contractor Provider for work on the City’s premises prior to such employee having tested negative for Drugs. In addition, existing employees must have tested negative for Drugs and must be subject to Drug testing by the Contractor Provider upon reasonable suspicion of Drug use. Results of all such Drug tests are to be retained by the Contractor Provider. Copies shall be provided to the City, if requested.

4.5 The Contractor Provider shall transfer promptly from the City any employee or employees that the City advises are not satisfactory and replace such personnel with employees satisfactory to the City; but in no event shall the City be responsible for monitoring or assessing the suitability of any employee or agent of the Contractor Provider.

4.6 The Contractor Provider’s employees shall be instructed that no gratuities shall be solicited or accepted for any reason whatsoever from the tenants, customers, or other persons in the City.

4.7 A valid Driver license (Commercial Driver License, if applicable) will be required of all personnel operating motor vehicles or motorized equipment on roadways in or around the City.

4.8 While working on City property all Contractor Provider’s employees shall wear neat appearing business casual attire or uniforms with the company name and/or logo and footwear of a style that complies with all legal and safety requirements, including and without limitation, the requirements of OSHA.

4.9 Designation of a supervisor by the Contractor Provider shall designate an experienced supervisor (“supervisor”) acceptable to the City for all purposes related to the work. The initial supervisor, and his/her contact information, is to be provided at the pre-construction meeting after the award of the bid.

4.9.1 The Supervisor shall be fully responsible for the Contractor Provider meeting all its obligations under this Contract. The Supervisor shall provide the City with an appropriate bi-weekly status report on the progress of the project.

4.9.2 The Supervisor shall be available, as reasonably required, to be on-site during necessary times. Such times shall be discussed between the Supervisor and the City, but the final required times will be at the City’s discretion.

4.9.3 In the event that the designated Supervisor terminates employment with the Contractor Provider or is requested by the City to be removed from the role of Supervisor (as provided in Section 4.5), the position shall be assumed by an individual with equivalent qualifications, experience, and knowledge. Such replacement shall require the City’s prior approval.

4.10 The process by which the implementation partner requests the removal of a team member from the project. If a Contractor Provider replaces a proposed team member, the Contractor Provider shall replace that team member with one of similar experience. The City reserves the right to accept or reject any proposed or replacement team member, with or without cause, at any time during the duration of the project.

5. TOOLS AND EQUIPMENT

It shall be the sole responsibility of the Contractor Provider to provide all tools, parts, and mechanical and non-mechanical equipment necessary to perform work under this Contract.

6. PERFORMANCE REQUIREMENTS

6.1 The Contractor Provider shall perform all its obligations and functions under the Contract in accordance with the Contract specifications and industry standards.

The Contractor Provider shall adjust and coordinate its activities to the needs and requirements of the City and perform its activities so as not to annoy, disturb, endanger, unreasonably interfere with, or delay the operations or activities of the City.

6.2 The Contractor Provider’s personnel shall perform work in compliance with all Federal, State, and City of Brookhaven regulations.

6.3 Dates for commencement and completion of work shall be coordinated with the City’s Authorized Representative (CAR).

6.4 Any work required beyond that which is specified herein shall be reported in advance to the City. At no time shall work beyond the scope be performed without prior written authorization from the City.

6.5 The Contractor Provider shall utilize maximum safety procedures. Tools and equipment shall be in a good state of repair, safe to use, and be used in the way they were intended. The Contractor Provider is required to inform all workers and concerned people of the Material Safety Data information on all products being utilized on this project. No materials or equipment shall be left unattended at any time.

7. CONFIDENTIAL INFORMATION

7.1 In the course of performing the contract work, if required, the Contractor Provider may gain access to security-sensitive areas and sensitive information belonging to the City, only with specific written authorization by the city manager or their authorized designee.

7.2 The Contractor Provider agrees to hold all City data and information in confidence and to make such information known only to its employees and subcontracts who have a legitimate need to know such information and only after advising such persons of the Contractor Provider’s non-disclosure obligations.

7.3 The Contractor Provider shall seek the City’s prior written consent before using for any purpose other than the fulfillment of the Contractor Provider’s obligations hereunder, or before releasing, disclosing, or otherwise making such information available to any other person.

7.4 The Contractor Provider shall employ such practices and take such actions to protect the City’s information from unauthorized use and/or disclosure as the Contractor Provider employs and takes to protect its own information, but in no event shall the Contractor Provider use less than reasonable efforts to protect the City’s information.

7.5 The provisions of this Section shall survive the expiration or earlier termination of the Contract.

8. USE OF PREMISES

During the progress of the work specified herein, to the extent any work is performed on the City’s premises, the Contractor Provider shall keep the premises free from accumulation of waste materials and other debris resulting from work about the premises including tools, equipment, machinery, and surplus materials. The Contractor Provider shall leave the site clean and ready for occupancy by the City at the end of each workday.

9. SAFETY AND PROTECTION

The Contractor Provider shall be solely and completely responsible for initiating, maintaining, and supervising all safety precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to all employees on the worksite and other persons including, but not limited to, City employes and any members of the public who may be affected thereby.

10. COMPENSATION – INVOICE AND PAYMENT FOR CONTRACTOR SERVICES

10.1 The City shall pay the Contractor Provider, subject to any authorized deductions, the applicable prices set forth for each service authorized by the City and delivered or performed by the Contractor Provider to the satisfaction and acceptance, as appropriate, of the City. The timing of such payments shall be as set forth below in the Section.

10.2 The Contractor Provider shall invoice, including all supporting documentation and backup material that the City may reasonably require, and provide the Proof of

Payment attached as an Exhibit hereto, indicating, with each invoice, that all subcontractors have been paid.

10.3 The Contractor Provider shall deliver to the City, approval, and acceptance, before eligible for final payment of any amounts due, all documents and materials prepared by the Contractor Provider for the City under this Contract.

10.4 The City shall pay the undisputed amount of the Contractor Provider’s invoice, as it may be reduced to reflect unsubstantiated or unsatisfactory service. Items in dispute shall be paid upon the resolution of the item(s) in dispute. No verification, nor payment of any amounts invoiced shall preclude the City from recovering any money paid more than that due under the terms of this Contract.

10.5 The Contractor Provider shall be obligated to pay promptly all proper charges and costs incurred by the Contractor Provider for labor and expenses incurred for the work performed hereunder. The City shall have the right, but not the obligation, to pay directly to third parties (including subcontractors) all past due amounts owed by the Contractor Provider to third parties for labor and materials used for the work hereunder, based on invoices submitted by such third party, and all such amounts paid by the City shall be applied toward and shall reduce, the amount owed to Contractor Provider hereunder.

10.6 The Contractor Provider must submit all invoices electronically to the City of Brookhaven Public Works Department at pwadmin@brookhavenga.gov and copy to accountspayable@brookhavenga.gov. A City of Brookhaven assigned PO number, issued after the approval of the awarded Contract, must be included on all submitted invoicing.

10.7 The Contractor Provider will agree to comply with the City of Brookhaven’s Financial and Purchasing Policies, to the extent applicable.

10.8 The Contractor Provider agrees that the compensation provided herein shall be a full and final settlement of all claims arising against the City of Brookhaven for the completed work, materials furnished, costs incurred, or other services arising from this contract, and shall release the City from all future claims related to the payment for the materials and services furnished in connection with this Contract.

10.9 The Contractor Provider and City agree that in any event a provision of this Contract the time of payment, the rate of payment, and any rates of interest differing from any provision of the Prompt Pay Act, are hereby waived, and said Contract provisions shall prevail. The City shall not be responsible for any interest penalties or late payments.

11. COMPLIANCE WITH LAWS AND REGULATIONS

11.1 The Contractor Provider shall perform its obligations and functions hereunder in compliance with the applicable laws of the United States, the State of Georgia, DeKalb County, the City of Brookhaven, any applicable rules, regulations, or directives of any agency thereof, and the applicable regulations of the City. OSHA rules and regulations shall always be followed. The City shall have the right (but not the obligation) to contest or challenge, by any means whatsoever, any law, regulation, rule, or directive which, in any way, affects or otherwise impacts upon the Contractor Provider’s performance of its obligations and functions hereunder.

mailto:pwadmin@brookhavenga.gov mailto:accountspayable@brookhavenga.gov

The Contractor Provider shall fully cooperate and take whatever action (including becoming a party in any litigation) the City should reasonably request in connection with any such challenge or contest by the City.

11.2 The Contractor Provider shall obtain and keep current all licenses, permits and authorizations, whether municipal, county, state, or federal, required for the performance of its obligations and functions hereunder and shall pay promptly when due all fees, thereof.

11.3 The Contractor Provider shall abide by all applicable state and federal regulations concerning wages and hours of employees; including, but not limited to, compliance with the requirements of O.C.G.A. 13-10-91 AND Rule 300-104- 1-.02.

12. CONTRACTOR PROVIDER’S LIABILITY

The Contractor Provider shall be responsible for the prompt payment of any fines imposed on the City or the Contractor Provider by any other federal, state, or local governmental agency because of the Contractor Provider, its subcontractors, or the officers, directors, employees, or agents of either party. Failure to comply with the requirements of any law, or any governmental agency rule, regulation, order, or permit. The liability of the Contractor Provider under this Section 12 is in addition to and is in no way a limitation upon any other liabilities and responsibilities which may be imposed by applicable law or by the indemnification provision of Section 13 hereof. Such liability shall survive the expiration or earlier termination of this Contract.

13. INDEMNIFICATION AND INSURANCE

13.1 The Contractor Provider shall, to the extent allowed under Georgia law, indemnify, defend, and hold completely harmless the City, and the members, including, without limitation, members of the Brookhaven City Council, and board members of the City, officers, employees, and agents of each, from and against all liabilities (including statutory liability and liability under Workers Compensation Laws), losses, suits, claims, demands, judgments, fines, damages, costs and expenses (including all costs for investigation and defense thereof, including, but not limited to, court costs, paralegal and expert fees, and reasonable attorneys’ fees) which may be incurred by, charged to, or recovered from any of the foregoing by:

(i) Reason or on account of damage to or destruction or loss of any property of the City, or any property of, injury to or death of any person resulting from or arising out of or in connection with the performance of this Contract, or the acts or omissions of the Contractor Provider’s directors, officers, agents, employees, subcontractors, licensees or invitees, in connection with the performance of this contract regardless of where the damage, destruction, injury or death occurred, unless such liability, loss, suit, claim, demand, judgment, fine, damage, cost or expense was proximately caused solely by the City’s negligence or by the joint negligence of the City and any person other that the Contractor Provider or the Contractor Provider’s directors, officers, agents, employees, subcontractors, licensees, or invitees, or:

(ii) Arising out of, or in connection with, the failure of the Contractor Provider to keep, observe, or perform any of the covenants or agreements in this Contract which required to be kept, observed, or performed by the Contractor Provider, or:

(iii) Arising out of or in connection with any claim, suit, assessment, or judgment prohibited by Section 13.4 below by or in favor of any person described in Section 13.5 below, or:

(iv) Arising out of or in connection with any action by Contractor Provider or its directors, officers, agents, employees, subcontractors, licensees, or invitees. The City agrees to give the Contractor Provider reasonable notice of any suit or claim for which indemnification will be sought hereunder, to allow the Contractor Provider, or its insurer, to compromise and defend the same to the extent of its interest, and to reasonably cooperate with the defense of any such suit or claim. In carrying out its obligations under this section, the Contractor Provider shall engage counsel reasonably acceptable to the City in any suit, action, proceeding, claim, or demand brought in respect of which the City may pursue indemnity, the City shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of the City unless:

(i) The Contractor Provider and the City shall have mutually agreed to the contrary.

(ii) The Contractor Provider has failed within a reasonable time to retain counsel reasonably satisfactory to the City.

(iii) The City and the Contractor Provider are both named parties in any such proceeding and, in the sole judgment of the City, representation of both the City and the Contractor Provider by the same counsel would be inappropriate due to actual or potential differing interests between them. The indemnification provisions of Section 14 shall survive the expiration or earlier termination of this Contract with respect to any acts or omissions occurring during the term of the Contract. Notwithstanding anything contained in the foregoing indemnity, any claim for indemnity by the City for claims of thirds parties alleging harm due to the professional Contractor provided by Contractor Provider, to the fullest extent permitted by law, Contractor Provider shall indemnify City from and against losses, damages, and judgments arising from such claims by third parties, including reasonable attorneys’ fees and expenses recoverable under applicable law, but only to the extent they are found to have been caused by a negligent act, error, or omission of Contractor Provider, or its sub-contractors, in the performance of professional services under this Agreement.

13.2 In addition to indemnification provisions stated above, if the City’s use of any Contractor, software, firmware, programming, or other item provided by or on behalf of the Contractor Provider is enjoined due to infringement of another person or entity’s intellectual property rights, the Contractor Provider shall promptly, at its sole cost and expense, modify the infringing item so that it no longer infringes, procure for the City the legal right to continue using the infringing item, or procure for the City a non-infringing item, or procure for the City a non-infringing replacement item having equal or greater functional capabilities as the infringing item.

13.3 The Contractor Provider shall assume all responsibility for loss caused by neglect or violation of any state, federal, municipal or agency law, rule, regulation, or order. The Contractor Provider shall give to the proper authorities all required notices relating to its performance, obtain all official permits and licenses, and pay all proper fees and taxes. It shall promptly undertake proper monetary restitution with respect to any injury that may occur to any building, structure, or utility because of its work. The Contractor Provider will notify the City in writing of any claim made or suit instituted against the Contractor Provider because of its activities in the performance of the Contract.

13.4 No recourse under or upon any obligation, covenant or agreement contained in this Contract, or any other agreement or document pertaining to the work of the Contractor Provider hereunder, as such may from time to time be altered or amended in accordance with the provisions hereof, or any judgment obtained against the City, or by the enforcement of any assessment or by any legal or equitable proceeding by virtue of any statute or otherwise, under or independent of this Contract, shall be had against any member (including without limitation members of the City’s Council, or members of the citizens advisory committees of each), any officer, employee or agent, as such, past, present, or future of the City, either directly or through the City or otherwise for any claim arising out of, or in connection with, this Contract or the work or services conducted pursuant to it, or for any sum that may be due and unpaid by the City. Any and all personal liability of every nature, whether at common law or in equity, or by statue or by constitution or otherwise, of any such member, officer, employee, or agent, as such, to respond by reason of any act or omission on their part or otherwise for any claim arising out of, or in connection with, this Contract or the work or services conducted pursuant to it, or for the payment for or to the City, or any receiver, therefore or otherwise, or any sum that may remain due and unpaid by the City, is expressly waived and released as a condition of and in consideration of the execution of this Contract and the promises made to the Contractor Provider pursuant to this Contract.

13.5 In any and all claims against the City, or any of their officers, members, agents, servants or employees, by any employee of the Contractor Provider, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation of the Contractor Provider under this Section 13 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefit payable by or for the Contractor Provider or any subcontractor under Workers’ Compensation Acts, disability benefit acts, or other employee benefit acts.

13.6 No provisions of Section 13 herein shall be construed to negate, abridge, or otherwise reduce any other right of indemnity that the City may have as to any party or person described therein.

13.7 Insurance

13.7.1 General Liability and Automobile Liability. The Contractor Provider shall purchase and maintain in force during the term of the Contract, at its own cost and expense, to protect the Contractor Provider, the City, and the members (including, without limitation, all members of the governing City’s Council and the citizens’ advisory committees of each), officers agents, and employees of each, from and against all liabilities arising out of or in connection with the Contractor Provider’s performance of the Contract work:

(1) Commercial general liability insurance with coverage of not less than ONE MILLION DOLLARS ($1,000,000.00) combined single limit per occurrence, and with contractual liability coverage for Contractor Provider’s covenants to and indemnification of the City under the Contract, and --

(2) Automobile liability insurance with policy limits of not less than ONE MILLION DOLLARS ($1,000,000.00) combined single limit per accident or occurrence covering each motor vehicle operated on City property.

13.7.1.1 Self-Insured Retention. Contractor Provider’s

commercial general liability insurance policies shall not be subject to a self-insured retention exceeding $10,000, if the value of the Contract is less than $1,000,000, and not be subject to a self-insured retention exceeding $100,000, if the Contract is $1,000,000 or more, unless approved by the City Manager. Contractor Provider’s automobile liability insurance policies shall not be subject to a self-insured retention exceeding $10,000 unless approved by the City Manager.

13.7.1.2 Additional Insured Endorsement. Contractor

Provider agrees and shall cause the City, their members (including, without limitation, members of the City’s Council and members of the citizens’ advisory committees of each), officers, employees, and agents to be named as additional insured under such policy or policies of commercial general and automobile liability insurance.

13.7.1.3 Workers’ Compensation and Employer’s

Liability. If the Contractor Provider has any employee working on City property, Contractor Provider shall procure and maintain in force during the term of the Contract (i) workers’ compensation insurance, and (ii) employer’s liability insurance. The policy limits of the Contractor Provider’s employer’s liability insurance shall not be less than $100,000 for “each employee.” If the Contractor Provider is self-insured, the Contractor Provider shall provide proof of self-insurance and authorization to self-insurance as required by applicable state laws and regulations.

13.7.3 Professional Liability Insurance. The Contractor Provider shall purchase and maintain in force during the term of the Contract, Professional Liability insurance which will pay for damages arising out of errors or omissions in the rendering, or failure to render professional Contractor services under the Contract in the amount of at least ONE MILLION DOLLARS ($1,000,000.00) per claim. Such insurance must contain nose and tail coverage to include work performed by the Contractor Provider from the project’s inception date and until such time as the Statute of Limitations has run for the work done on the project.

13.7.4 Health Insurance. Not applicable.

13.7.5 Garage Liability Insurance. Not applicable.

13.7.6 Garage Keeper’s Legal Liability Insurance. Not applicable.

13.7.7 Crime Coverage. Not applicable.

13.7.8 Pollution Liability Insurance. Not applicable.

13.7.9 Deductibles. The Contractor Provider’s policies of insurance required by this Section 13.7 may require the Contractor Provider’s payment of a deductible, provided the Contractor Provider’s insurer is required to pay claims from the first dollar at 110% of the claim value without any requirement that the Contractor Provider pays the deductible prior to its insurer’s payment of the claim.

13.7.10 Other Insurance Requirements. All insurance policies required by this Section 13.7 shall be, if they are primary insurance with respect to any other valid insurance the City may possess, any other insurance the City does possess shall be considered excess insurance only. All such insurance shall be carried out with a company or companies which meet the requirements of Section 14.2 of these General Conditions and said policies shall be in a form satisfactory to the City. A properly completed and executed Certificate of Insurance on a form provided or approved by the City (such as a current ACOROAD certificate of insurance) evidencing the insurance coverage required by this Section shall be furnished to the City by the Contractor Provider and shall provide the City with at least thirty (30) days’ prior written notice of any adverse material change in the Contractor Provider’s required insurance coverage except that ten (10) days’ notice of cancellation for non-payment is required. For purposes of this Section 13.7.10, and “adverse material change” shall mean any reduction in the limits of the insurer’s liability, any reduction, non-renewal or cancellation of any insurance coverage, or any increase in the Contractor Provider’s self-insured retention. Prior to the expiration of any such policy, the Contractor Provider shall file with the City a certificate of insurance showing that such insurance coverage has been renewed. If the insurance coverage is canceled or reduced, the Contractor Provider shall, within five (5) days after such cancellation or reduction in coverage, file with the City a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies approved by the City. If the Contractor Provider fails to obtain or have such insurance reinstated, the City may, if it so elects, and without waiving any other remedy it may have against the Contractor Provider, immediately terminate this Contract upon written notice to the Contractor Provider. The City Manager shall have the right to alter the monetary limits or coverage herein specified from time to time during the term of this Contract, and the Contractor Provider shall comply with all reasonable requests of the City Manager with respect thereto.

14. LIABILITY INSURANCE

14.1 The Contractor Provider shall be required to provide the bonds as dictated in the Procurement Documents in Exhibit D.

14.2 Liability Insurance Companies furnishing insurance coverage required by these General Conditions shall (a) be approved to issue insurance policies in the State of Georgia, and (b) must have no less than a “B+” Financial Rating and a Financial Size Category of “Class VI” or higher according to the most current edition of A.M. Best’s Insurance Reports. If the liability insurer is rated by A.M. Best’s Insurance Reports at an “A- Financial Rating and a Financial Size Category of “Class VIII” or higher than, the City Manager may waive the requirement for the insurer to be approved by the State of Georgia.

15. CONTRACT ADJUSTMENTS

15.1 Notwithstanding any provision herein to the contrary, the City reserves the right to modify at any time the nature, method, scope, frequency, or timing of the Contractor Provider’s obligations under this Contract (Contract Adjustments) in whatever manner it determines to be reasonably necessary for the proper completion of the Contractor Provider’s work hereunder. Both parties agree that, should any Contract Adjustments be made, the Contractor Provider’s compensation will be adjusted accordingly, in such amount or amounts as will be mutually agreed to by means of good-faith negotiation by the City and Contractor Provider and, to the extent possible, by reference to any unit costs already established in the Proposal. Without exception, all deletions, or additions to the scope of work will be set forth in a written Amendment to this Contract.

15.2 Notwithstanding the foregoing, the City shall have the right to terminate this Contract herein should the Contractor Provider and the City fail to reach agreement on the adjusted compensation within thirty (30) days after the date of the Contract Adjustment.

15.3 Notwithstanding the foregoing, there shall be no upward adjustment of the compensation on account of any Contract Adjustment made necessary or appropriate because of the mismanagement, improper act, or other failure of the Contractor Provider, its employees, agents, or its subcontractors to properly perform its obligations and functions under this Contract.

16. SUBCONTRACTORS

16.1 The Contractor Provider shall perform all its obligations and functions under this Contract utilizing its own employees, or by a duly qualified subcontractor which is approved in advance by the City. Such subcontractor which is an affiliate, parent, or subsidiary company; or had principal owners, relative, management, or employees common to the Contractor Provider; or any other party that can significantly influence the management or daily business operations of the subcontractor must be disclosed in writing to the City Manager. The goods and Services provided by subcontractors, which are reimbursed by the City, must be bona fide arm’s-length transactions. In the event a subcontractor is employed, the Contractor Provider shall continuously monitor the subcontractor’s performance, shall remain fully responsible to ensure that the subcontractor performs as required, and itself performs or remedies any obligations or functions which the subcontractor fails to perform properly. Nothing contained herein shall be construed to prevent the Contractor Provider from using the Services of a common carrier for delivering goods to the City. The city approves the sub-contractor Providers listed in the Statement of Qualifications.

16.2 This Contract shall be referred to and…