RFP 24_194 Sample Contract.pdf

CONTRACT AGREEMENT

RFP #24-194

UTILITY LOCATING AND MARKING SERVICES

This Agreement made and entered into this __ day of ___________, in the year 2____; by and between The City of Johns Creek, Georgia, having its principal place of business at 11360 Lakefield Drive, Johns Creek, Georgia 30097 and Contractor Name (“Contractor”), located at Address, City State Zip.

WHEREAS, the City of Johns Creek is charged with the responsibility for the establishment of contracts for the acquisition of goods, materials, supplies and equipment, and services by the various departments of the City of Johns Creek; and

WHEREAS, the City of Johns Creek has caused Request for Proposal (RFP) #24-194 to be issued soliciting proposals from qualified Contractors to furnish all items, labor services, materials and appurtenances called for by them in accordance with this proposal. Selected (“Contractor”) is required to provide the services as called for in the specifications; and

WHEREAS, the Contractor submitted a response to the RFP #24-194 and the Contractor’s submittal was deemed by the City of Johns Creek to be the proposal determined to be most advantageous to the City: and

NOW THEREFORE, in consideration of the mutual covenant and promises contained herein, the parties agree as follows:

1.0 Scope of Work

The Contractor agrees with the City to furnish all equipment, tools, materials, skill, labor of every description, and all things necessary to carry out in each designated area as delineated in Specifications

(Exhibit A) and complete in a good, firm, substantial and workmanlike manner, the Work in strict conformity with the specifications which shall form an essential part of this agreement. In addition to the foregoing, and notwithstanding anything to the contrary stated herein, the following terms and conditions, amendments, and other documents are incorporated by reference and made a part of the terms and conditions of this Agreement as is fully set out herein:

EXHIBIT A-SPECIFICATIONS

EXHIBIT B-COST PROPOSAL

EXHIBIT C-REQUIRED FORMS & DOCUMENTS

EXHIBIT D-EXISTING COMMUNICATIONS NETWORK

2.0 Key Personnel

The City of Johns Creek enters into this Agreement having relied upon Contractor providing the services of the Key Personnel, if any, identified as such in the body of the Agreement. No Key Personnel may be replaced or transferred without the prior approval of the City’s authorized representative. Any Contractor personnel to whom the City objects shall be removed from City work immediately. The City maintains the right to approve in its sole discretion all personnel assigned to the work under this Agreement.

3.0 Compensation

3.1 Pricing. The Contractor will be paid for the goods and services sold pursuant to the Contract in accordance with the RFP and final pricing documents as incorporated into the terms of the Contract. Unless clearly stated otherwise in the Standard Contract, all prices are firm and fixed and are not subject to variation. Prices include, but are not limited to freight, insurance, fuel surcharges and customs duties. The prices quoted and listed on the attached Cost Proposal, a copy of which is attached hereto as Exhibit “B” and incorporated herein, shall be firm throughout the term of this Contract.

3.2 Billings. If applicable, and unless the RFP provides otherwise, the Contractor shall submit, on a regular basis, an invoice for goods and services supplied to the City under the Contract at the billing address specified in the Purchase Instrument or Contract. The invoice shall comply with all applicable rules concerning payment of such claims. The City shall pay all approved invoices in arrears and in accordance with applicable provisions of City law. Unless otherwise agreed in writing by the parties, the Contractor shall not be entitled to receive any other payment or compensation from the City for any goods or services provided by or on behalf of the Contractor under the Contract. The Contractor shall be solely responsible for paying all costs, expenses and charges it incurs in connection with its performance under the Contract.

Standard payment terms: Net-30.

3.3 Delay of Payment Due to Contractor’s Failure. If the City in good faith determines that the Contractor has failed to perform or deliver any service or product as required by the Contract, the Contractor shall not be entitled to any compensation under the Contract until such service or product is performed or delivered.

In this event, the City may withhold that portion of the Contractor’s compensation which represents payment for services or products that were not performed or delivered. To the extent that the Contractor’s failure to perform or deliver in a timely manner causes the City to incur costs, the City may deduct the amount of such incurred costs from any amounts payable to Contractor. The City’s authority to deduct such incurred costs shall not in any way affect the City’s authority to terminate the Contract.

3.4 Set-Off Against Sums Owed by the Contractor. In the event that the Contractor owes the City any sum under the terms of the Contract, pursuant to any judgment, or pursuant to any law, the City may set off the sum owed to the City against any sum owed by the City to the Contractor in the City's sole discretion.

4.0 Duration of Contract

4.1 The Contract between the City and the Contractor shall begin October 1, 2019 and end in three hundred and sixty five days, unless terminated earlier in accordance with the applicable terms and conditions.

Pursuant to O.C.G.A. Section 36-60-13, this Contract shall not be deemed to create a debt of the City for the payment of any sum beyond the fiscal year of execution or, in the event of a renewal, beyond the fiscal year of such renewal.

The term of this Contract shall for Three annual one-year (1) terms beginning October 1, 2014.

4.2 Contract Renewal

The City have the option, in its sole discretion, to renew the Contract for two (2) additional annual renewals as defined in the Standard Contract Form on a year-to-year basis by giving the Consultant written notice of the renewal decision at least (60) days prior to the expiration of the initial term or renewal term and requesting Consultant’s written consent for renewal of the Contract. Renewal will depend upon the best interests of the City, funding, and Consultant’s performance. Renewal will be accomplished through the issuance of a Notice of Award Amendment. Upon the City’s election, in its sole discretion, to renew any part of this Contract, Contractor shall remain obligated to perform in strict accordance with this contract unless otherwise agreed by the City and the Contractor.

4.3 Contract Extension. In the event that this Standard Contract shall terminate or be likely to terminate prior to the making of an award for a new contract for the identified goods and ancillary services, the City may, with the written consent of Contractor, extend this Contract for such period as may be necessary to afford the City a continuous supply of the identified goods and ancillary services.

If not set forth in the RFP and/or Contractor’s submittal, the City will determine the basic period of performance for the completion of any of Contractor’s actions contemplated within the scope of this

Agreement and notify Contractor of the same via written notice. If no specific period for the completion of

Contractor’s required actions pursuant to this Agreement is set out in writing, such time period shall be a reasonable period of time based upon the nature of the activity. If the completion of this Contract is delayed by actions of the City, then and in such event the time of completion of this Contract shall be extended for such additional time within which to complete the performance of the Contract as is required by such delay.

This Contract may be extended by mutual consent of both the City and the Contractor for reasons of additional time, additional services and/or additional areas of work.

5.0 Independent Contractor

5.1 The Contractor shall be an independent Contractor. The Contractor is not an employee, agent or representative of the City of Johns Creek. The successful Contractor shall obtain and maintain, at the

Contractor’s expense, all permits, license or approvals that may be necessary for the performance of the services. The Contractor shall furnish copies of all such permits, licenses or approvals to the City of Johns

Creek Representative within ten (10) day after issuance.

5.2 Inasmuch as the City of Johns Creek and the Contractor are independent of one another neither has the authority to bind the other to any third person or otherwise to act in any way as the representative of the other, unless otherwise expressly agreed to in writing signed by both parties hereto. The Contractor agrees not to represent itself as the City’s agent for any purpose to any party or to allow any employee of the

Contractor to do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. The Contractor shall assume full liability for any contracts or agreements the Contractor enters into on behalf of the City of Johns Creek without the express knowledge and prior written consent of the City.

6.0 Indemnification

6.1 The Contractor agrees to indemnify, hold harmless and defend the City, its public officials, officers, employees, and agents from and against any and all liabilities, suits, actions, legal proceedings, claims, demands, damages, costs and expenses (including attorney’s fees) to the extent rising out of any act or omission of the Contractor, its agents, subcontractors or employees in the performance of this Contract except for such claims that arise from the City’s sole negligence or willful misconduct.

6.2 Notwithstanding the foregoing indemnification clause, the City may join in the defense of any claims raised against it in the sole discretion of the City. Additionally, if any claim is raised against the City, said claim(s) cannot be settled or compromised without the City’s written consent, which shall not be unreasonably withheld.

7.0 Performance

Performance will be evaluated on a monthly basis. If requirements are not met, City of Johns Creek

Procurement will notify the Contractor in writing stating deficiencies, substitutions, delivery schedule, and/or poor workmanship.

A written response from the Contractor detailing how correction(s) will be made is required to be delivered to the City. Contractor will have no more than thirty (30) days to remedy the situation.

If requirements are not remedied City of Johns Creek has the right to cancel this Agreement with no additional obligation to Contractor.

7.1 Final Completion, Acceptance, and Payment

a) Final Completion shall be achieved when the work is fully and finally complete in accordance with the Contract Documents. The City shall notify Contractor once the date of final completion has been achieved in writing.

b) Final Acceptance is the formal action of City acknowledging Final Completion. Acceptance shall be final and conclusive except for latent defects, fraud, gross mistakes amounting to fraud, or the

City’s right under any warranty or guarantee. Prior to Final Acceptance, Contractor shall, in addition to all other requirements in the Contract Documents, submit to City a Notice of any outstanding disputes or claims between Contractor and any of its Subcontractors, including the amounts and other details thereof. Neither Final Acceptance, nor final payment, shall release

Contractor or its sureties from any obligations of these Contract Documents or the bond, or constitute a waiver of any claims by City arising from Contractor’s failure to perform the work in accordance with the Contract Documents.

c) Acceptance of final payment by Contractor, or any Subcontractor, shall constitute a waiver and release to City of all claims by Contractor, or any such Subcontractor, for an increase in the Contract

Sum or the Contract Time, and for every act or omission of City relating to or arising out of the work, except for those Claims made in accordance with the procedures, including the time limits, set forth in section 12.

8.0 Changes

City, within the general scope of the Agreement, may, by written notice to Contractor, issue additional instructions, require additional services or direct the omission of services covered by this Agreement. In such event, there will be made an equitable adjustment in price, but any claim for such an adjustment must be made within thirty (30) days of the receipt of said written notice.

9.0 Change Order Defined

Change Order shall mean a written order to the Contractor executed by the City issued after the execution of this Agreement, authorizing and directing a change in services. The Price and Time may be changed only by a Change Order.

10.0 Insurance

10.1 The Contractor shall, at its own cost and expense, obtain and maintain worker’s compensation and commercial general liability insurance coverage covering the period of this Agreement, such insurance to be obtained from a responsible insurance company legally licensed and authorized to transact business in the State of Georgia. The minimum limit for Worker’s Compensation Insurance shall be the statutory limit for such insurance. The minimum limits for commercial general liability insurance, which must include personal liability coverage will be $1,000,000 per person and $2,000,000 per occurrence for bodily injury and $500,000 per occurrence for property damage.

10.2 Contractor shall provide certificates of insurance evidencing the coverage requested herein before the execution of this Agreement, and at any time during the term of this Agreement, upon the request of the

City, Contractor shall provide proof sufficient to the satisfaction of the City that such insurance continues in force and effect.

11.0 Termination

11.1 Immediate Termination. Pursuant to O.C.G.A. Section 36-60-13, this Contract will terminate immediately and absolutely if the City determines that adequate funds are not appropriated or granted or funds are de-appropriated such that the City cannot fulfill its obligations under the Contract, which determination is at the City's sole discretion and shall be conclusive. Further, the City may terminate the

Contract for any one or more of the following reasons effective immediately without advance notice:

a) In the event the Contractor is required to be certified or licensed as a condition precedent to providing goods and services, the revocation or loss of such license or certification may result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;

b) The City determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, life, health or safety to be jeopardized;

c) The Contractor fails to comply with confidentiality laws or provisions; and/or

d) The Contractor furnished any statement, representation or certification in connection with the

Contract or the bidding process which is materially false, deceptive, incorrect or incomplete.

11.2 Termination for Cause. The occurrence of any one or more of the following events shall constitute cause for the City to declare the Contractor in default of its obligations under the Contract:

a) The Contractor fails to deliver or has delivered nonconforming goods or services or fails to perform, to the City’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the

Contractor;

b) The City determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

c) The Contractor fails to make substantial and timely progress toward performance of the contract;

d) The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law to the extent allowed by applicable federal or state law including bankruptcy laws; the

Contractor terminates or suspends its business; or the City reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

e) The Contractor has failed to comply with applicable federal, state and local laws, rules, ordinances, regulations and orders when performing within the scope of the Contract;

f) The Contractor has engaged in conduct that has or may expose the City to liability, as determined in the City’s sole discretion; or

g) The Contractor has infringed any patent, trademark, copyright, trade dress or any other intellectual property rights of the State, the City, or a third party.

11.3 Notice of Default. If there is a default event caused by the Contractor, the City shall provide written notice to the Contractor requesting that the breach or noncompliance be remedied within the period of time specified in the City’s written notice to the Contractor. If the breach or noncompliance is not remedied by the date of the written notice, the City may:

a) Immediately terminate the Contract without additional written notice; and/or

b) Procure substitute goods or services from another source and charge the difference between the

Contract and the substitute contract to the defaulting Contractor; and/or,

c) Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.

11.4 Termination for Convenience. The City may terminate this Agreement for convenience at any time upon thirty (30) day written notice to the Contractor. In the event of a termination for convenience, Contractor shall take immediate steps to terminate work as quickly and effectively as possible and shall terminate all commitments to third-parties unless otherwise instructed by the City. Provided that no damages are due to the City for Contractor’s failure to perform in accordance with this Agreement, the City shall pay Contractor for work performed to date in accordance with Section 3 herein. The City shall have no further liability to Contractor for such termination.

11.5 Payment Limitation in Event of Termination. In the event of termination of the Contract for any reason by the City, the City shall pay only those amounts, if any, due and owing to the Contractor for goods and services actually rendered up to and including the date of termination of the Contract and for which the City is obligated to pay pursuant to the Contract or Purchase Instrument. Payment will be made only upon submission of invoices and proper proof of the Contractor’s claim. This provision in no way limits the remedies available to the City under the Contract in the event of termination. The City shall not be liable for any costs incurred by the Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead, profit, delay damages or other costs associated with the performance of the

Contract.

11.6 The Contractor’s Termination Duties. Upon receipt of notice of termination or upon request of the

City, the Contractor shall:

a) Cease work under the Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, and any other matters the City may require;

b) Immediately cease using and return to the City, any personal property or materials, whether tangible or intangible, provided by the City to the Contractor;

c) Comply with the City’s instructions for the timely transfer of any active files and work product produced by the Contractor under the Contract;

d) Cooperate in good faith with the City, its employees, agents and Contractors during the transition period between the notification of termination and the substitution of any replacement Contractor;

and

e) Immediately return to the City any payments made by the City for goods and services that were not delivered or rendered by the Contractor.

12.0 CLAIMS and DISPUTE RESOLUTION

12.1 Claims Procedure

a) If the parties fail to reach agreement regarding any dispute arising from the Contract Documents, including a failure to reach agreement on the terms of any Change Order for City-directed work as provided in Section 8, or on the resolution of any request for an equitable adjustment in the Contract

Sum or the Contract Time, Contractor’s only remedy shall be to file a Claim with City as provided in this section.

b) Contractor shall file its Claim within the earlier of: 120 Days from City’s final offer in accordance with Section 8; or the date of Final Acceptance.

c) The Claim shall be deemed to cover all changes in cost and time (including direct, indirect, impact, and consequential) to which Contractor may be entitled. It shall be fully substantiated and documented. The Claim shall contain a detailed factual statement of the Claim for additional compensation and time, if any, providing all necessary dates, locations, and items of work affected by the Claim.

d) If an adjustment in the Contract Time is sought: the specific Days and dates for which it is sought;

the specific reasons Contractor believes an extension in the Contract Time should be granted; and

Contractor’s analysis of its Progress Schedule to demonstrate the reason for the extension in

Contract Time.

e) If any adjustment in the Contract Sum is sought: the exact amount sought and a breakdown of that amount into the categories; and a statement certifying, under penalty of perjury, that the Claim is made in good faith, that the supporting cost and pricing data are true and accurate to the best of

Contractor’s knowledge and belief, that the Claim is fully supported by the accompanying data, and that the amount requested accurately reflects the adjustment in the Contract Sum or Contract

Time for which Contractor believes City is liable.

f) After Contractor has submitted a fully-documented Claim that complies with all applicable provisions of this Section 12.1, City shall respond, in writing, to Contractor with a decision within sixty (60) Days from the date the Claim is received, or with notice to Contractor of the date by which it will render its decision.

12.2 Arbitration

a) If Contractor disagrees with City’s decision rendered in accordance with paragraph 12.1f, Contractor shall provide City with a written demand for arbitration. No demand for arbitration of any such Claim shall be made later than thirty (30) Days after the date of City’s decision on such

Claim; failure to demand arbitration with said thirty (30) Day period shall result in City’s decision being final and binding upon Contractor and its Subcontractors.

b) Notice of the demand for arbitration shall be filed with the American Arbitration Association

(AAA), with a copy provide to City. The parties shall negotiate or mediate under the Voluntary

Construction Mediation Rules of the AAA, or mutually acceptable service, before seeking arbitration in accordance with the Construction Industry Arbitration Rules of AAA as follows:

1. Disputes involving $30,000 or less shall be conducted in accordance with the Southeast Region

Expedited Commercial Arbitration Rules; or

2. Disputes over $30,000 shall be conducted in accordance with the Construction Industry

Arbitration Rules of the AAA, unless the parties agree to use the expedited rules.

c) All Claims arising out of the work shall be resolved by arbitration. The judgment upon the arbitration award may be entered, or review of the award may occur, in the Superior Court of Fulton

County.

d) If the parties resolve the Claim prior to arbitration judgment, the terms of the resolution shall be incorporated in a Change Order. The Change Order shall constitute full payment and final settlement of the Claim, including all claims for time and for direct, indirect, or consequential costs, including costs of delays, inconvenience, disruption of schedule, or loss of efficiency or productivity.

e) Choice of Law and Forum. The laws of the State of Georgia shall govern and determine all matters arising out of or in connection with this Contract without regard to the choice of law provisions of

State law. The Superior Court of Fulton County, Georgia shall have exclusive jurisdiction to try disputes arising under or by virtue of this contract. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Contract, such proceeding shall solely be brought in a court or other forum of competent jurisdiction within Fulton County, Georgia. This provision shall not be construed as waiving any immunity to suit or liability, including without limitation sovereign immunity, which may be available to the City.

f) All Claims filed against City shall be subject to audit at any time following the filing of the Claim.

Failure of Contractor, or Subcontractor of any tier, to maintain and retain sufficient records to allow

City to verify all or a portion of the Claim or to permit City access to the books and records of

Contractor, or Subcontractors of any tier, shall constitute a waiver of the Claim and shall bar any recovery.

13.0 Confidential Information

13.1 Access to Confidential Data. The Contractor’s employees, agents and subcontractors may have access to confidential data maintained by the City to the extent necessary to carry out the Contractor's responsibilities under the Contract. The Contractor shall presume that all information received pursuant to the Contract is confidential unless otherwise designated by the City. If it is reasonably likely the Contractor will have access to the City’s confidential information, then:

a) The Contractor shall provide to the City a written description of the Contractor's policies and procedures to safeguard confidential information;

b) Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats;

c) The Contractor must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the Contract; and

d) The Contractor shall provide adequate supervision and training to its agents, employees and subcontractors to ensure compliance with the terms of the Contract. The private or confidential data shall remain the property of the City at all times. Some services performed for the City may require the Contractor to sign a nondisclosure agreement. Contractor understands and agrees that refusal or failure to sign such a nondisclosure agreement, if required, may result in termination of the

Contract.

13.2 No Dissemination of Confidential Data. No confidential data collected, maintained, or used in the course of performance of the Contract shall be disseminated except as authorized by law and with the written consent of the City, either during the period of the Contract or thereafter. Any data supplied to or created by the Contractor shall be considered the property of the City. The Contractor must return any and all data collected, maintained, created or used in the course of the performance of the Contract, in whatever form it is maintained, promptly at the request of the City.

13.3 Subpoena. In the event that a subpoena or other legal process is served upon the Contractor for records containing confidential information, the Contractor shall promptly notify the City and cooperate with the

City in any lawful effort to protect the confidential information.

13.4 Reporting of Unauthorized Disclosure. The Contractor shall immediately report to the City any unauthorized disclosure of confidential information.

13.5 Survives Termination. The Contractor’s confidentiality obligation under the Contract shall survive termination of the Contract.

14.0 Inclusion of Documents

Contractor’s response submitted in response thereto, including any best and final offer, are incorporated in this Agreement by reference and form an integral part of this agreement. In the event of a conflict in language between this Agreement and the foregoing documents incorporated herein, the provisions and requirements set forth in this Agreement shall govern. In the event of a conflict between the language of the RFP, as amended, and the Contractor’s submittal, the language in the former shall govern.

14.1 Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.

15.0 Compliance with All Laws and Licenses

The Contractor must obtain all necessary licenses and comply with local, state and federal requirements.

The Contractor shall comply with all laws, rules and regulations of any governmental entity pertaining to its performance under this Agreement.

15.1 Federal Requirements.

15.1.1 Federal Compliance Regulations

Federal regulations apply to all City of Johns Creek contracts using Federal funds as a source for the solicitation of goods and services. Successful bidders must comply with the following Federal requirement as they apply to:

a) Equal Employment Opportunity - The Contractor shall not discriminate against any employee or applicant or employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Contractor shall comply with Executive Order

11246, as amended, and the rules, regulations, and orders of the Secretary of Labor.

b) Reports - The submission of reports to the City on behalf of the U.S. Department of Housing and

Urban Development as may be determined necessary for the activities covered by this contract, which is federally funded;

c) Patents - The U.S. Department of Housing and Urban Development reserves a royalty-free, nonexclusive and irrevocable right to use, and to authorize others to use, for Federal Government purposes:

1. Any patent that shall result under this Contract; and

2. Any patent rights to which the Contractor purchases ownership with grant support;

d) Copyrights - The U.S. Department of Housing and Urban Development reserves a royalty-free, nonexclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes:

1. The copyright in any work developed under this contract; and

2. Any rights of copyright to which the Contractor purchases ownership with grant support.

e) Access to books, documents, papers and records of the Contractor which are directly pertinent to the specific contract for the purposes of making audit, examination, excerpts and transcriptions by

Federal agencies, the Comptroller General of the United States, or any of their duly authorized representatives; and

f) Retention of all required records for three years after the City makes final payment and all other pending matters are closed.

15.2 Georgia Security and Immigration Compliance Act

a) The parties certify that Contractor has executed an affidavit verifying that Contractor has registered and participates in the federal work authorization program to verify information of all new employees, per O.C.G.A. 13-10-90, et seq., and Georgia Department of Labor Regulations Rule

300-10-1-02. The appropriate affidavit is attached hereto as “Exhibit C” and incorporated herein by reference and made a part of this contract.

b) The Contractor further certifies that any subcontractor employed by Contractor for the performance of this agreement has executed an appropriate subcontractor affidavit verifying its registration and participation in the federal work authorization program and compliance with O.C.G.A. 13-10-90, et seq., and Georgia Department of Labor Regulations Rule 300-10-1-02, and that all such affidavits are incorporated into and made a part of every contract between the Contractor and each subcontractor.

c) Contractor’s compliance with O.C.G.A. 13-10-90, et. seq., and Georgia Department of Labor

Regulations Rule 300-10-1-02 is a material condition of this agreement and Contractor’s failure to comply with said provisions shall constitute a material breach of this agreement.

16.0 Assignment

The Contractor shall not assign or subcontract the whole or any part of this Agreement without the City of

Johns Creek’s prior written consent.

17.0 Amendments in Writing

No amendments to this Agreement shall be effective unless it is in writing and signed by duly authorized representatives of the parties.

18.0 Drug-Free and Smoke-Free Work Place

18.1 A drug-free and smoke-free work place will be provided for the Contractor’s employees during the performance of this Agreement; and

18.2 The Contractor will secure from any sub-contractor hired to work in a drug-free and smoke-free work place a written certification so stating and in accordance with Paragraph 7, subsection B of the Official

Code of Georgia Annotated Section 50-24-3.

18.3 The Contractor may be suspended, terminated, or debarred if it is determined that:

a) The Contractor has made false certification herein; or

b) The Contractor has violated such certification by failure to carry out the requirements of Official

Code of Georgia Annotated Section 50-24-3.

19.0 Additional Terms

Neither the City nor any Department shall be bound by any terms and conditions included in any Contractor packaging, invoice, catalog, brochure, technical data sheet, or other document which attempts to impose any condition in variance with or in addition to the terms and conditions contained herein.

20.0 Antitrust Actions

For good cause and as consideration for executing this Contract or placing this order, Contractor acting herein by and through its duly authorized agent hereby conveys, sells, assigns, and transfers to the City of

Johns Creek all rights, title, and interest to and to all causes of action it may now or hereafter acquire under the antitrust laws of the United States and the State of Georgia relating to the particular goods or services purchased or acquired by the City of Johns Creek pursuant hereto.

21.0 Reporting Requirement

Reports shall be submitted to the Project Manager on a quarterly basis providing, as a minimum, data regarding the number of items purchased as well as the total dollar volume of purchases made from this contract.

22.0 Governing Law

This Agreement shall be governed in all respects by the laws of the State of Georgia. The Superior Court of Fulton County, Georgia shall have exclusive jurisdiction to try disputes arising under or by virtue of this contract.

23.0 Entire Agreement

This Agreement constitutes the entire Agreement between the parties with respect to the subject matter contained herein; all prior agreements, representations, statement, negotiations, and undertakings are suspended hereby. Neither party has relied on any representation, promise, or inducement not contained herein.

24.0 Special Terms and Conditions

(Attached are any special terms and conditions to this contract, if applicable:)

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers as of the day and year set forth next to each signature.

CITY OF JOHNS CREEK: CONTRACTOR:

By: __________________________ By: ________________________________ Sign Sign

Title: City Manager Title:_______________________________

Name: Kimberly Greer Name:______________________________ Print Print

Date: ________________________ Date: ______________________________

ATTEST:______________________ ATTEST:____________________________

EXHIBIT A

SPECIFICATIONS

SCOPE OF WORK

The Contractor will receive facility locate requests directly from Georgia 811 One-Call Center and manage the entire ticket response and locating process for the city. Historically, the city receives approximately 200 locate requests from Georgia 811 monthly. Contractor shall furnish all labor, supervision, tools, materials, paint, flags, equipment (including a hardware compatible with the existing communication/systems used by the Georgia One-Call Center and transportation to perform Underground

Facilities Locating and Marking services, as requested by the City of Johns Creek and the Georgia One-

Call Center on behalf of Owner, in accordance with the following specifications:

Contractor’s Duties and Responsibilities

1. Contractor will receive and respond to all Excavation notices directed to City of Johns

Creek through the One-Call Center in accordance with current State Laws. Contractor shall provide such markings and protection as may be required. Such protection shall include painting, flagging or staking in accordance with the current State Laws governing the protection of Underground Facilities and City of Johns Creek's specifications.

2. Contractor will comply with all applicable federal, state, county and local laws, ordinances and regulations including the current Georgia State Underground Utility Damage

Prevention Act.

3. Contractor will be responsible for obtaining all licenses, permits, inspections and other authorizations required for Contractor's performance of the Services. In as much as GA811 will require the contractor to be a licensed receiver and will charge fees directly to the

Contractor, the Contractor will be responsible for those fees. However, the City will reimburse the Contractor for the standard per ticket fee paid by the licensed receiver

(Contractor) to GA811. Since, it is GA811's practice to charge differing rates dependent on the responsiveness of the contractor, the Contractor will be responsible for any late fees, fines or penalties that result from their failure to perform in a timely manner. The

Contractor will be responsible for payment of those late fees, fines or penalties whether billed directly to them or to the City. The selected Contractor must be a licensed receiver before execution of a Contract for this scope of services.

4. All Markings shall be in accordance with the current State of Georgia Laws.

5. Contractor's personnel shall be proficient in the use of approved locating devices, methods, marking procedures, communicative skills, and record-keeping requirements necessary to perform the Locate Request and Marking tasks.

6. Contractor's locating equipment or devices are subject to City of Johns Creek's approval.

All Underground Facilities shall be electronically located, except where electronically impossible.

7. Contractor's personnel shall always represent City of Johns Creek in a courteous and professional manner.

8. Contractor shall receive and record Locate Requests from the One-Call Center during normal service hours consistent with the Georgia One-Call Center and City of Johns Creek, but should be no less than Monday through Friday, 7:00 a.m. through 5:00p.m. CST), except for holidays observed by the One Call Center or City of Johns Creek.

9. Contractor shall complete the requirements of a Normal Locate Request within two (2) business days of receiving the Locate Request.

10. Contractor shall receive and record Emergency Locate Requests at any time of any day.

11. All Emergency locate notices shall be responded to within two (2) hours of receipt by

Contractor, unless otherwise required by law or regulation to be sooner, unless otherwise agreed to with requesting party or excavator.

12. Contractor shall provide all circuits and equipment required to receive requests from the

One-Call Center. City of Johns Creek shall be responsible for all other contractual and cost obligations from the One-Call Center.

13. Contractor shall be responsible for making arrangements with all Excavators for locate purposes.

14. All Locate Requests will be processed within the required timeframe or contact will be made with the Excavator to arrange an appropriate time to perform the Locate.

15. All Excavators will be called as soon as possible to confirm requested time of appointments or to make appropriate arrangements, as required.

16. Contractors' administrative responsibility shall include, but not be limited to, receipt, recording, dispatching, reporting, monitoring and closing out of Notice of Excavation.

Formats of reports to be pre-approved by the City prior to preparation.

17. When the Underground Facility is "Identifiable, but Un-locatable", Contractor must contact Owner. Owner will then determine the course of action to be taken. If no course of action is successful, Contractor shall notify the Excavator of the presence of any

"Identified, but Un-locatable" Facilities of City of Johns Creek and shall caution the

Excavator that any location information supplied may not be within the scope of the definition of Reasonable Accuracy.

18. In the event Contractor fails to meet the demands for Locate Requests, City of Johns Creek, in its sole determination, shall have the right to use its own employees or the services of another outside vendor to satisfy such needs. City of Johns Creek shall then invoice

Contractor for City of Johns Creek's costs in using its own employees or vendor.

19. If requested by City of Johns Creek, Contractor shall provide additional services, such as

Site Surveillance (standby protection) or Extended Locate services to include but not limited to facilities not owned by the City.

20. Additional visits to the Excavation Site required due to Contractor's unsatisfactory performance shall not be treated or considered an additional ticket.

21. Contractor shall keep a record for a minimum of two (2) years of each Notice of Excavation indicating the time and date; when locate was received, the type of facility marked, date and name of the call back person notified.

22. Contractor shall at all times afford City of Johns Creek access to any and every part of the

Services so as to enable them to inspect and ensure that the Services being performed conform to the terms of the Agreement.

23. Contractor shall provide and maintain at all locations where work is being performed, adequate and suitable warning signs, all necessary suitable guards, and appropriate warning signals of any hazards in connection with the work, in order to prevent accidents during the course of the work.

24. Contractor shall share excavation notice data, initial and closed, via their electronic management system.

25. In the event that an Underground Facility is damaged by a third party as a result of

Contractor errors and omissions to properly mark such Underground Facilities in accordance with its contractual agreement with the City of Johns Creek, all applicable laws and regulations, and state laws governing utility protection, the Contractor shall be liable for full costs for such damage, unless such damages resulted due to circumstances or factors beyond the control of the Contractor. Contractor will also be responsible for downtime/delays to Company due to inaccurate locates.

26. Contractor shall investigate incidents of damage, as requested by City of Johns Creek, for accuracy of the Locates(s).

27. Contractor shall respond, within one hour, to the work site following notification of damages to City of Johns Creek facilities.

28. Contractor shall submit a written report of damage investigations within 5 days and maintain a copy of such written reports for a period of three (3) years.

29. Contractor and City of Johns Creek shall hold meetings as needed to review completed investigation reports, and to assess responsibility. Should the damage review process between City of Johns Creek and Contractor reveal that City of Johns Creek does not find

Contractor liable for damage, City of Johns Creek agrees to hold Contractor harmless from any ensuing damages owed to any third party as a result of the damage to the City of Johns

Creek's Underground Facilities or any fines that may later be levied by the State of Georgia.

30. Should the damage review process between City of Johns Creek and Contractor reveal that the Excavator is responsible for the damage, Contractor shall provide testimonial and investigative support for any recovery efforts by the City of Johns Creek.

31. Should the damage review process between City of Johns Creek and Contractor reveal that

Contractor is liable for the damage, Contractor agrees to hold City of Johns Creek harmless from any ensuing damages owned to any third party as a result of the damage to the City of Johns Creek's Underground Facilities or any fines that may later be levied by the State of Georgia.

32. Contractor will be responsible for any costs involved with distributing electronic mapping, or updates to maps and records for its employees.

33. Contractor shall retain and safeguard City of Johns Creek's location maps and records.

34. Contractor shall be responsible to notify City of Johns Creek, of any discrepancies or omissions in the City of Johns Creek-provided records, to the extent Contractor can determine the discrepancies and omissions.

35. Contractor shall acknowledge that City of Johns Creek's maps may not be available and to the extent that maps are available, they do not reflect the actual physical location of

Underground Facilities and may not exist for all installations. The Contractor will not have direct access to the City's official electronic records, but copies of the City's records will be made available in electronic and hard copy formats at the request of the Contractor. The

Contractor will be responsible for the maintenance of their copies of records provided to them.

36. Contractor shall be solely responsible for determining the existence of Underground

Facilities. Contractor shall be responsible for and liable for any failure to locate

Underground Facilities consistent with the provisions of this Statement of Services.

37. Contractor shall stop any construction that would conflict with City's facilities and ensure contractor has proper dig ticket. Contractor shall notify the City of potential conflicts as soon as possible.

EXHIBIT B

COST PROPOSAL

EXHIBIT C

REQUIRED FORMS AND DOCUMENTS

EXHIBIT D

EXISTING COMMUNICATIONS NETWORK INFRASTRUCTURE