HomeMy WebLinkAbout1374 Parthenon Const/CRA/Magnolia & Palmetto Aves.CITY MANAGER'S OFFICE °I
TRANSMITTAL, MEMORANDUM
I.!.J
To: City Clerkh,i
RE: Request for Services (�
The item(s) noted below is /are attached and forwarded to your office for the following action(s):
❑ Ordinance
❑ Resolution
® CRA Construction Contract — Magnolia and Palmetto Ave
❑ Mayor's signature
Recording (�
Rendering A
Safe keeping (Vault)
Once completed, please:
Return original
Return copy
Special Instructions:
Please advise if you have any questions regarding the above.
Thank you!
C/2.A- 2.2 s • l
frorA Date
aL'
SECTION 00520
AGREEMENT FORM
IN
PART 1 GENERAL
1.01 THIS AGREEMENT, made and entered into the cPLY day of February, 2011
and between Lake Monroe Waterfront and Downtown Sanford Community Q'
Redevelopment Agency, whose address is City Hall, 300 North Park Avenue,
Sanford, Florida 32771, an agency created under Chapter 163, Florida Statutes,
holding tax exempt status, hereinafter referred to as the "CRA ") and Parthenon
Construction Company whose principal and local address is 105 West 7 th Street,
Orlando, Florida 32824 hereinafter referred to as to as the "CONTRACTOR ".
The CRA and the CONTRACTOR are collectively referred to herein as the
Parties. The parties recognize that the CRA is operating under an
intergovernmental memorandum of understanding (MOU) between the CRA and
the City of Sanford such that the City of Sanford provides administrative services
for the CRA.
1.02 The CRA and Contractor Agree as Follows:
A. Contract Documents
The Contract Documents include the Agreement, Addenda (which pertain
to the Contract Documents), Contractor's Bid, Notice to Proceed, the
Bonds, the General Conditions, the Supplementary Conditions, the
Specifications listed in the Index to the Project Manual, any technical
specifications as incorporated by the Project Manual; the Drawings as
listed in the Project Manual, all Written Amendments, Change Orders,
Work Change Directives, Field Orders, and Engineer's written
interpretations and clarifications issued on or after the Effective Date of
this Agreement. These form the Contract and all are as fully a part of the
Contract as if attached to this Agreement or repeated herein.
B. Scope of Work
The Contractor shall perform all work required by the Contract Documents for the
construction of the Magnolia Avenue and Palmetto Avenue Streetscape Project, IFB
10/11-04.
C. Contract Time
The Contractor shall begin work after the issuance of a written Notice to
Proceed from CRA and shall substantially complete the work within the
Contract Time identified in Paragraphs 1.02.C.5 of the Bid Form, which is _
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120 calendar days. The work shall be finally complete, ready for Final
Payment in accordance with the General Conditions, within 30 calendar
days from the actual date of substantial completion.
D. Liquidated Damages
CRA and CONTRACTOR recognize that time is of the essence of this
Agreement and that CRA will suffer financial loss if the Work is not
substantially complete within the time specified in Paragraph C above,
plus any extensions thereof allowed in accordance with the General
Conditions. They also recognize the delays, expense and difficulties
involved in proving in a legal arbitration proceeding the actual loss
suffered by CRA if the Work is not substantially complete on time.
Accordingly, instead of requiring any such proof, CRA and
CONTRACTOR agree that as liquidated damages for delay (but not as a
penalty) CONTRACTOR shall pay CRA $1,000. -- for each calendar
day that expires after the time specified in Paragraph C for substantial
completion until the work is substantially complete. It is agreed that if this
Work is not Finally completed in accordance with the Contract Documents,
the CONTRACTOR shall pay the CRA as liquidated damages for delay,
and not as penalty, one - fourth ( %) of the rate set forth above.
E. Contract Price
Unit Price Contract
The CRA will pay the Contractor in current funds for the performance of
the work, subject to additions and deductions by Change Order and
subject to the Measurement and Payment Provisions, and subject to
actual constructed quantities; the Total Contract Price of four hundred
fifteen thousand two hundred fifty nine and 00/100 Dollars fJ
415,259.00 ). Payments will be made to the Contractor on the
basis of the Schedule of Unit Prices included as a part of his Bid, which
shall be as fully a part of the Contract as if attached or repeated herein.
F. Tax Recovery
The CONTRACTOR shall cooperate with the CRA in the implementation
of the City of Sanford's tax recovery program and, to that end, the CRA
may make purchases directly under its purchase order processes relative
to various materials, supplies and equipment that may be part of the
services provided under this Agreement. The CONTRACTOR hereby
recognizes the right of the CRA to engage in tax recovery/savings through
direct purchases.
G. Payments
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The CRA will make payments as provided in the General Conditions and
Supplementary Conditions.
H. Retainage
In accordance with the provisions of the State of Florida Local
Government Prompt Payment Act, the value of each application for
payment shall be equal to the total value of the Work performed to date,
less an amount retained, and less payments previously made and
amounts withheld in accordance with the General Conditions and
Supplementary Conditions. Retainage for this project is 10 %, to be held
by CRA as collateral security to ensure completion of Work. When the
Work is 50 percent complete, defined as being 50 percent complete based
on the construction progress schedule as updated during construction,
and expenditure of at least 50 percent of the total updated construction
cost, retainage shall be reduced in accordance with State law.
Reserved
J. Additional Terms and Conditions
The CONTRACTOR hereby warrants and represents to the CRA
that it is competent and otherwise able to provide professional and
high quality goods and /or services to the CRA by means of
employees who are neat in appearance and of polite demeanor.
2. All submissions submitted by the CONTRACTOR in the
proposals /bid submitted to the CRA are hereby incorporated herein
to the extent not inconsistent with the terms and conditions as set
forth herein.
The CONTRACTOR acknowledges that the CRA may retain other
goods and /or service providers to provide the same goods and /or
services for CRA projects. The CONTRACTOR acknowledges that
the CRA, at the CRA's option, may request proposals from the
CONTRACTOR and the other goods and /or service providers for
CRA projects. The CRA reserves the right to select which goods
and /or services provider shall provide goods and /or services for
the CRA's projects.
4. The CONTRACTOR agrees to provide and ensure coordination
between goods /services providers.
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5. Each party hereto represents to the other that it has undertaken all
necessary actions to execute this Agreement, and that it has the
legal authority to enter into this Agreement and to undertake all
obligations imposed on it. The person(s) executing this Agreement
for the CONTRACTOR certify that he /she /they is /are authorized to
bind the CONTRACTOR fully to the terms of this Agreement.
6. The CONTRACTOR hereby guarantees the CRA that all materials,
supplies, services and equipment as listed on a Purchase Order
meet the requirements, specifications and standards as provided
for under the Federal Occupations Safety and Health Act of 1970,
from time to time amended and in force on the date hereof.
7. It is agreed that nothing herein contained is intended or should be
construed as in any manner creating or establishing a relationship
of co- partners between the parties, or as constituting the
CONTRACTOR (including, but not limited to, its officers,
employees, and agents) the agent, representative, or employee of
the CRA for any purpose, or in any manner, whatsoever. The
CONTRACTOR is to be and shall remain forever an independent
contractor with respect to all services performed under this
Agreement.
8. Persons employed by the CONTRACTOR in the provision and
performance of the goods and /or services and functions pursuant to
this Agreement shall have no claim to pension, workers'
compensation, unemployment compensation, civil service or other
employee rights or privileges granted to the CRA's officers and
employees either by operation of law or by the CRA.
9. No claim for goods and /or services furnished by the
CONTRACTOR not specifically provided for herein shall be
honored by the CRA.
10. Execution of this Agreement by the CONTRACTOR is a
representation that the CONTRACTOR is familiar with the goods
and /or services to be provided and /or performed and with local
conditions. The CONTRACTOR shall make no claim for additional
time or money based upon its failure to comply with this
Agreement. The CONTRACTOR has informed the CRA, and
hereby represents to the CRA, that it has extensive experience in
performing and providing the services and /or goods described in
this Agreement and that it is well acquainted with the components
that are properly and customarily included within such projects and
the requirements of laws, ordinance, rules, regulations or orders of
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any public authority or licensing entity having jurisdiction over the
CRA's Projects.
11. Quality, Professional Standards, and Security Requirements
a. Under this paragraph 11, the term "CONTRACTOR'S
employees" shall include CONTRACTOR'S agents,
employees and SUBCONTRACTORS extending to
SUBCONTRACTORS agents and employees.
b. The CONTRACTOR shall be responsible for the professional
quality, accepted standards, technical accuracy, neatness of
appearance of employees, employee conduct, safety, and
the coordination of all services furnished by the
CONTRACTOR under any Agreement resulting from this
solicitation. The CRA reserves the right to require all
CONTRACTOR employees, when on CRA property or work
sites, to wear identification badges at all times which, at a
minimum, provides the name of the employee and the
CONTRACTOR.
C. The CRA reserves the right to require the CONTRACTOR to
provide to the CRA a list of employees working on the
project. Also, the list shall include employee working days,
times and assignments within forty -eight (48) hours of the
CRA's written request for such information. This information
will be reviewed, screened and verified by the CRA, prior to
the employees of the CONTRACTOR entering the CRA's
premises and /or work sites.
d. The CONTRACTOR shall comply with Section 2 -67 of the
City of Sanford's City Code as it relates to security
screenings of private contractors and employees of private
contractors. The CONTRACTOR shall cause each person
found by the CRA to be functioning in a position critical to
the security and /or public safety of the CRA by reason of
access to any publicly owned or operated facility to undergo
the following inquiries and procedures conducted by the City
of Sanford:
1) Fingerprinting in accordance with the City of Sanford's
pre - employment procedures;
2) Submission of the fingerprints to the Florida Department
of Law Enforcement for state criminal history evaluation;
and
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3) Submission of the fingerprints to the Federal Bureau of
Investigation for a national criminal history evaluation.
e. Such confidential information shall be used by the CRA to
determine a person's eligibility to function in such critical
employment position(s) as described. Additionally, the CRA
may request and the CONTRACTOR shall provide the
name, address and social security number and licenses
(driver's, commercial drivers license or CDL, or other
operator's license) for employees of the CONTRACTOR
and /or SUBCONTRACTORS that may work on the CRA's
premises in positions found by the CRA Commission to be
critical to the security and /or public safety of the by reason of
access to any publicly owned or operated facility. The
CONTRACTOR shall release such information upon
approval of the affected employees. If an employee refuses
to authorize the release of their address, social security
number and /or licenses they shall not be allowed to work or
continue to work in such critical positions.
The CONTRACTOR shall work closely with the CRA on all
aspects of the provision of the goods and /or services. With
respect to services, the CONTRACTOR shall be responsible
for the professional quality, technical accuracy, competence,
methodology, accuracy and the coordination of all of the
following which are listed for illustration purposes and not as
a limitation: documents, analysis, reports, data, plans, plats,
maps, surveys, specifications, and any and all other services
of whatever type or nature furnished by the CONTRACTOR
under this Agreement. The CONTRACTOR shall, without
additional compensation, correct or revise any errors or
deficiencies in his /her /its plans, analysis, data, reports,
designs, drawings, specifications, and any and all other
services of whatever type or nature. The CONTRACTOR's
submissions in response to the subject bid or procurement
processes are incorporated herein by this reference thereto.
12. Neither the CRA's review, approval or acceptance of, nor payment
for, any of the goods and /or services required shall be construed to
operate as a waiver of any rights under this Agreement or of any
cause of action arising out of the performance of this Agreement
and the CONTRACTOR shall be and remain liable to the CRA in
accordance with applicable law for all damages to the CRA caused
by the CONTRACTOR negligent or improper performance or failure
to perform any of the goods and /or services furnished under this
Agreement.
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satisfactory to the CRA of corrective measures to be made within a
reasonable time is not given to the CRA within seven (7) calendar
days of the date of the letter, the CRA may consider the
CONTRACTOR to be in default, and may then immediately
terminate this Agreement.
26. In the event that this Agreement is terminated for cause and it is
later determined that the cause does not exist, then this Agreement
or the Purchase/Work Order shall be deemed terminated for
convenience by the CRA and the CRA shall have the right to so
terminate this Agreement without any recourse by the
CONTRACTOR.
27. The CONTRACTOR may terminate this Agreement only if the CRA
fails to pay the CONTRACTOR in accordance with this Agreement.
28. Notwithstanding any other provision of this Agreement, the CRA
shall have the right at any time to terminate this Agreement in its
entirely without cause, if such termination is deemed by the CRA to
be in the public interest, in writing of deficiencies or default in the
performance of its duties under the Agreement and the
CONTRACTOR shall have ten (10) days to correct same or to
request, in writing, a hearing. Failure of the CONTRACTOR to
remedy said specified items of deficiency or default in the notice by
either the CRA's designated representative within ten (10) days of
receipt of such notice of such decisions, shall result in the
termination of the Agreement, and the CRA shall be relieved of any
and all responsibilities and liabilities under the terms and provisions
of the Agreement.
29. The CRA shall have the right to terminate this Agreement without
cause with a sixty (60) day written notice to the other party. The
CRA reserves the right to terminate any Agreement for cause with
a five (5) day written notice to the CONTRACTOR. Notice shall be
served to the parties as specified in the Agreement.
30. In the event that this Agreement is terminated, the CRA shall
identify any specific work to be continued to completion pursuant to
the provisions of this Agreement.
31. In the event that after the CRA termination for cause for failure of
the CONTRACTOR to fulfill its obligations under this Agreement it
is found that the CONTRACTOR has not so failed, the termination
shall be deemed to have been for convenience and without cause.
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32. In the event this Agreement is terminated or canceled prior to final
completion without cause, payment for the unpaid portion of the
services provided by the CONTRACTOR to the date of termination
and any additional services shall be paid to the CONTRACTOR.
33. Upon receipt of notice of termination, given by either party, the
terminated party shall promptly discontinue the provision of all
goods and /or services, unless the notice provides otherwise.
34. The performance or provision of the CONTRACTOR's goods and /or
services under this Agreement may be suspended by the CRA at
any time.
35. In the event the CRA suspends the performance or provision of the
CONTRACTOR services hereunder, the CRA shall so notify the
CONTRACTOR in writing, such suspension becoming effective
within seven (7) days from the date of mailing, and the CRA shall
pay to the CONTRACTOR within thirty (30) days all compensation
which has become due to and payable to the CONTRACTOR to the
effective date of such suspension. The CRA shall thereafter have
no further obligation for payment to the CONTRACTOR for the
suspended provision of goods and /or services unless and until the
CRA's designated representative notifies the CONTRACTOR in
writing that the provision of the goods and /or services of the
CONTRACTOR called for hereunder are to be resumed by the
CONTRACTOR.
36. Upon receipt of written notice from the CRA that the
CONTRACTOR's provision of goods and /or services hereunder are
to be resumed, the CONTRACTOR shall continue to provide the
services to the CRA.
37. The CONTRACTOR agrees that it will not discriminate against any
employee or applicant for employment for work under this
Agreement because of race, color, religion, sex, age, national origin
or disability and will take affirmative steps to ensure that applicants
are employed and employees are treated during employment
without regard to race, color, religion, sex, age, national origin or
disability. This provision shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer; recruitment
advertising; layoff or termination; rates of pay or their forms or
compensation; and selection for training, including apprenticeship.
The CONTRACTOR, moreover, shall comply with all the
requirements as imposed by the Americans with Disability Act, the
regulations of the Federal government issued thereunder, and any
and all requirements of Federal or State law related thereto.
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38. Indemnity and Insurance
a. To the fullest extent permitted by law, the CONTRACTOR
shall indemnify, hold harmless and defend the CRA, its
agents, servants, officers, officials and employees, or any of
them, from and against any and all claims, damages, losses,
and expenses including, but not limited to, attorney's fees
and other legal costs such as those for paralegal,
investigative, and legal support services, and the actual
costs incurred for expert witness testimony, arising out of or
resulting from the performance or provision of services
required under this Agreement, provided that same is
caused in whole or in part by the error, omission, negligent
act, failure to act, breach of contract obligation, malfeasance,
officers, officials, employees, or subCONTRACTORs.
Additionally, the CONTRACTOR accepts responsibility for all
damages resulting in any way related to the performance of
work. In no event, shall either party be responsible or liable
to the other for any incidental, consequential, or indirect
damages, whether arising by contract or tort.
b. In accordance with Section 725.06, Florida Statutes,
adequate consideration has been provided to the
CONTRACTOR for this obligation, the receipt and
sufficiency of which is hereby specifically acknowledged.
C. Nothing herein shall be deemed to affect the rights,
privileges, and immunities of the CRA as set forth in Section
768.28, Florida Statutes.
In claims against any person or entity, indemnification under
this Section by an employee of the CONTRACTOR or its
agents or subCONTRACTORs, anyone directly or indirectly
employed by them or anyone for whose acts they may be
liable, the indemnification obligation under this Section shall
not be limited by a limitation on amount or type of damages,
compensation, or benefits payable by or for the
CONTRACTOR or its agents or subCONTRACTORs, under
Workers Compensation acts, disability benefits acts, or other
employee benefit acts.
e. The execution of this Agreement by the CONTRACTOR
shall obligate the CONTRACTOR to comply with the
indemnification provision of this Agreement; provided,
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however, that the CONTRACTOR must also comply with the
provisions of this Agreement relating to insurance coverage.
The CONTRACTOR shall submit a report to the CRA within
twenty -four (24) hours of the date of any incident resulting in
damage or which is reasonably likely to result in a claim of
damage.
39. The CONTRACTOR shall obtain or possess and continuously
maintain the insurance coverage as set forth and required in the bid
documents.
40. All insurance other than Workers Compensation and Professional
Liability that must be maintained by the CONTRACTOR shall
specifically include the CRA as an additional insured.
41. The CONTRACTOR shall provide Certificates of Insurance to the
CRA evidencing that all such insurance is in effect prior to the
issuance of the first Purchase/Work Order under this Agreement
from the CRA. These Certificates of Insurance shall become part
of this Agreement. Neither approval by the CRA nor failure to
disapprove the insurance furnished by a CONTRACTOR shall
relieve the CONTRACTOR of the CONTRACTOR's full
responsibility for performance of any obligation including the
CONTRACTOR's indemnification of the CRA under this
Agreement. If, during the period which an insurance company is
providing the insurance coverage required by this Agreement, an
insurance company shall: (1) lose its Certificate of Authority, (2) no
longer comply with Section 440.57, Florida Statutes, or (3) fail to
maintain the requisite Best's Rating and Financial Size Category,
the CONTRACTOR shall, as soon as the CONTRACTOR has
knowledge of any such circumstance, immediately notify the CRA
and immediately replace the insurance coverage provided by the
insurance company with a different insurance company meeting the
requirements of this Agreement. Until such time as the
CONTRACTOR has replaced the unacceptable insurer with
insurance acceptable to the CRA, the CONTRACTOR shall be
deemed to be in default of this Agreement.
42. The insurance coverage shall contain a provision that requires that
prior to any changes in the coverage, except increases in
aggregate coverage, thirty (30) days prior notice will be given to the
CRA by submission of a new Certificate of Insurance.
43. The CONTRACTOR shall furnish Certificates of Insurance directly
to the CRA's Designated Representative. The certificates shall
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clearly indicate that the CONTRACTOR has obtained insurance of
the type, amount and classification required by this Agreement.
44. Nothing in this Agreement or any action relating to this Agreement
shall be construed as the CRA's waiver of sovereign immunity
beyond the limits set forth in Section 768.28, Florida Statutes.
45. The CRA shall not be obligated or liable under the terms of this
Agreement to any party other than the CONTRACTOR. There are
no third party beneficiaries to this Agreement except that the City of
Sanford shall be a third party beneficiary to this Agreement.
46. The CONTRACTOR is an independent contractor and not an
agent, representative, or employee of the CRA. The CRA shall
have no liability except as specifically provided in this Agreement.
47. All insurance shall be primary to, and not contribute with, any
insurance or self- insurance maintained by the CRA.
48. The CONTRACTOR warrants that it has not employed or retained
any company or person, other than a bona fide employee working
solely for the CONTRACTOR, to solicit or secure this Agreement
and that the CONTRACTOR has not paid or agreed to pay any
person, company, corporation, individual or firm other than a bona
fide employee working solely for the CONTRACTOR, any fee,
commission, percentage, gift, or any other consideration,
contingent upon or resulting from the award of making this
Agreement.
49. The CONTRACTOR shall not discriminate on the grounds of race,
color, religion, sex, or national origin in the performance of work
under this Agreement or violate any laws pertaining to civil rights,
equal protection or discrimination.
50. The CONTRACTOR hereby certifies that no undisclosed (in writing)
conflict of interest exists with respect to the Agreement, including,
but not limited to, any conflicts that may be due to representation of
other clients, customers or vendees, other contractual relationships
of the CONTRACTOR, or any interest in property that the
CONTRACTOR may have. The CONTRACTOR further certifies
that any conflict of interest that arises during the term of this
Agreement shall be immediately disclosed in writing to the CRA.
Violation of this Section shall be considered as justification for
immediate termination of this Agreement.
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51. The CONTRACTOR shall ensure that all taxes due from the
CONTRACTOR are paid in a timely and complete manner
including, but not limited to, occupational license tax.
52. If the CRA determines that any employee or representative of the
CONTRACTOR is not satisfactorily performing his /her assigned
duties or is demonstrating improper conduct pursuant to any
assignment or work performed under this Agreement, the CRA
shall so notify the CONTRACTOR, in writing. The CONTRACTOR
shall immediately remove such employee or representative of the
CONTRACTOR from such assignment.
53. The CONTRACTOR shall not publish any documents or release
information regarding this Agreement to the media without prior
approval of the CRA.
54. The CONTRACTOR shall certify, upon request by the CRA, that
the CONTRACTOR maintains a drug free workplace policy in
accordance with Section 287.0878, Florida Statutes. Failure to
submit this certification may result in termination.
55. If the CONTRACTOR or an affiliate is placed on the convicted
vendor list following a conviction for a public entity crime, such
action may result in termination by the CRA. The CONTRACTOR
shall provide a certification of compliance regarding the public
crime requirements set forth in State law upon request by the CRA.
56. The CRA reserves the right to unilaterally terminate this Agreement
if the CONTRACTOR refuses to allow public access to all
documents, papers, letters, or other materials subject to provisions
of Chapter 119, Florida Statutes, and other applicable law, and
made or received by the CONTRACTOR in conjunction, in any
way, with this Agreement.
57. The CONTRACTOR shall comply with the requirements of the
Americans with Disabilities Act (ADA), and any and all related
Federal or State laws which prohibits discrimination by public and
private entities on the basis of disability.
58. The CRA will not intentionally award publicly- funded contracts to
any contractor who knowingly employs unauthorized alien workers,
constituting a violation of the employment provisions contained in 8
U.S.C. Section 1324a(e) Section 274A(e) of the Immigration and
Nationally Act (INA). The CRA shall consider the employment by
the CONTRACTOR of unauthorized aliens, a violation of Section
274A(e) of the INA. Such violation by the CONTRACTOR of the
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employment provisions contained in Section 274A(e) of the /NA
shall be grounds for immediate termination of this Agreement by
the CRA.
59. The CONTRACTOR agrees to comply with Federal, State, and
local environmental, health, and safety laws and regulations
applicable to the goods and /or services provided to the CRA. The
CONTRACTOR agrees that any program or initiative involving the
work that could adversely affect any personnel involved, citizens,
residents, users, neighbors or the surrounding environment will
ensure compliance with any and all employment safety,
environmental and health laws.
60. The CONTRACTOR shall ensure that all goods and /or services are
provided to the CRA after the CONTRACTOR has obtained, at its
sole and exclusive expense, any and all permits, licenses,
permissions, approvals or similar consents.
61. If applicable, in accordance with Section 216.347, Florida Statutes,
the CONTRACTOR shall not use funds provided by this Agreement
for the purpose of lobbying the Legislature, the judicial branch or
State agency.
62. The CONTRACTOR shall advise the CRA in writing of it who has
been placed on a discriminatory vendor list, may not submit a bid
on a contract to provide goods or services to a public entity, or may
not transact business with any public entity.
63. The CONTRACTOR shall not engage in any action that would
create a conflict of interest in the performance of that actions of any
CRA employee or other person during the course of performance
of, or otherwise related to, this Agreement or which would violate or
cause others to violate the provisions of Part III, Chapter 112,
Florida Statutes, relating to ethics in government.
64. The CONTRACTOR shall maintain books, records, documents,
time and costs accounts and other evidence directly related to its
provision or performance of services under this Agreement. All
time records and cost data shall be maintained in accordance with
generally accepted accounting principles.
65. The CONTRACTOR shall maintain and allow access to the records
required under this Section for a minimum period of five (5) years
after the completion of the provision or performance goods and /or
services under this Agreement and date of final payment for said
goods and /or services, or date of termination of this Agreement.
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66. The CRA may perform, or cause to have performed, an audit of the
records of the CONTRACTOR before or after final payment to
support final payment under any Purchase/Work Order issued
hereunder. This audit shall be performed at a time mutually
agreeable to the CONTRACTOR and the CRA subsequent to the
close of the final fiscal period in which goods and /or services are
provided or performed. Total compensation to the CONTRACTOR
may be determined subsequent to an audit as provided for in this
Section, and the total compensation so determined shall be used to
calculate final payment to the CONTRACTOR. Conduct of this
audit shall not delay final payment as required by this Section.
67. In addition to the above, if Federal, State, County, or other entity
funds are used for any goods and /or services under this
Agreement, the Comptroller General of the United States or the
Chief Financial Officer of the State of Florida, or the County of
Seminole, or any representatives, shall have access to any books,
documents, papers, and records of the CONTRACTOR which are
directly pertinent to goods and /or services provided or performed
under this Agreement for purposes of making audit, examination,
excerpts, and transcriptions.
68. In the event of any audit or inspection conducted reveals any
overpayment by the CRA under the terms of the Agreement, the
CONTRACTOR shall refund such overpayment to the CRA within
thirty (30) days of notice by the CRA of the request for the refund.
69. The CONTRACTOR agrees to fully comply with all State laws
relating to public records.
70. The CONTRACTOR agrees that if any litigation, claim, or audit is
started before the expiration of the record retention period
established above, the records shall be retained until all litigation,
claims or audit findings involving the records have been resolved
and final action taken.
71. The CONTRACTOR shall not sublet, assign or transfer any interest
in this Agreement, or claims for the money due or to become due
out of this Agreement to a bank, trust company, or other financial
institution without written CRA approval. When approved by the
CITY, written notice of such assignment or transfer shall be
furnished promptly to the CITY.
72. Any CONTRACTOR proposed subcontractors shall be submitted to
the CRA for written approval prior to the CONTRACTOR entering
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into a subcontract. Subcontractor information shall include, but not
be limited to, State registrations, business address, occupational
license tax proof of payment, and insurance certifications.
73. The CONTRACTOR shall coordinate the provision of goods and /or
services and work product of any CRA approved subcontractors,
and remain fully responsible for such goods and /or services and
work under the terms of this Agreement.
74. Any subcontract shall be in writing and shall incorporate this
Agreement and require the subcontractor to assume performance
of the CONTRACTOR's duties commensurately with the
CONTRACTOR's duties to the CRA under this Agreement, it being
understood that nothing herein shall in any way relieve the
CONTRACTOR from any of its duties under this Agreement. The
CONTRACTOR shall provide the CRA with executed copies of all
subcontracts.
75. The CONTRACTOR shall reasonably cooperate at all times with
the CRA and other CRA contractors and professionals.
76. This Agreement is to be governed by the laws of the State of
Florida.
77. Venue for any legal proceeding related to this Agreement shall be
in the Eighteenth Judicial Circuit Court in and for Seminole County,
Florida.
78. This Agreement is the result of bona fide arms length negotiations
between the CRA and the CONTRACTOR and all parties have
contributed substantially and materially to the preparation of the
Contract. Accordingly, this Agreement shall not be construed or
interpreted more strictly against any one party than against any
other party.
79. Neither party shall be considered in default in performance of its
obligations hereunder to the extent that performance of such
obligations, or any of them, is delayed or prevented by Force
Majeure. Force Majeure shall include, but not be limited to,
hostility, terrorism, revolution, civil commotion, strike, epidemic, fire,
flood, wind, earthquake, explosion, any law, proclamation,
regulation, or ordinance or other act of government, or any act of
God or any cause whether of the same or different nature, existing
or future; provided that the cause whether or not enumerated in this
Section is beyond the control and without the fault or negligence of
the party seeking relief under this Section.
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80. This Agreement, together with the exhibit(s), if any, constitutes the
entire integrated Agreement between the CRA and the
CONTRACTOR and supersedes all prior written or oral
understandings in connection therewith. This Agreement, and all
the terms and provisions contained herein, including without
limitation the exhibits hereto, constitute the full and complete
agreement between the parties hereto to the date hereof, and
supersedes and controls over any and all prior agreements,
understandings, representations, correspondence and statements
whether written or oral.
81. This Agreement may only be amended, supplemented or modified
by a formal written amendment.
82. Any alterations, amendments, deletions, or waivers of the
provisions of this Agreement shall be valid only when expressed in
writing and duly signed by the parties.
83. Written notice requirements of this Agreement shall be strictly
construed and such requirements are a condition precedent to
pursuing any rights or remedies hereunder. The CONTRACTOR
agrees not to claim any waiver by CRA of such notice requirements
based upon CRA having actual knowledge, implied, verbal or
constructive notice, lack of prejudice or any other grounds as a
substitute for the failure of the CONTRACTOR to comply with the
express written notice requirements herein. Computer notification
(e -mails and message boards) shall not constitute proper written
notice under the terms of the Agreement.
84. The failure of the CRA to insist in any instance upon the strict
performance of any provision of this Agreement, or to exercise any
right or privilege granted to the CRA hereunder shall not constitute
or be construed as a waiver of any such provision or right and the
same shall continue in force.
85. In no event shall any obligation of the CRA under this Agreement
be or constitute a general obligation or indebtedness of the CRA, a
pledge of the ad valorem taxing power of the CRA or a general
obligation or indebtedness of the CRA within the meaning of the
Constitution of the State of Florida or any other applicable laws, but
shall be payable solely from legally available revenues and funds.
86. The CONTRACTOR shall not have the right to compel the exercise
of the ad valorem taxing power of the CRA.
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87. Each exhibit referred to and attached to this Agreement is an
essential part of this Agreement. The exhibits and any amendments
or revisions thereto, even if not physically attached hereto, shall be
treated as if they are part of this Agreement.
88. The Section headings and captions of this Agreement are for
convenience and reference only and in no way define, limit,
describe the scope or intent of this Agreement or any part thereof,
or in any way affect this Agreement or construe any provision of
this Agreement.
89. If any term, provision or condition contained in this Agreement
shall, to any extent, be held invalid or unenforceable, the remainder
of this Agreement, or the application of such term, provision or
condition to persons or circumstances other than those in respect
of which it is invalid or unenforceable, shall not be affected thereby,
and each term, provision and condition of this Agreement shall be
valid and enforceable to the fullest extent permitted by law when
consistent with equity and the public interest.
90. All provisions of this Agreement shall be read and applied in pars
materia with all other provisions hereof.
91. In the event of a dispute related to any performance or payment
obligation arising under this Agreement, the parties agree to
exhaust any alternative dispute resolution procedures reasonably
imposed by the CRA prior to filing suit or otherwise pursuing legal
remedies.
92. The CONTRACTOR agrees that it will file no suit or otherwise
pursue legal remedies based on facts or evidentiary materials that
were not presented for consideration to the CRA in alternative
dispute resolution procedures or which the CONTRACTOR had
knowledge and failed to present during the CRA procedures.
93. In the event that CRA procedures are exhausted and a suit is filed
or legal remedies are otherwise pursued, the parties shall exercise
best efforts to resolve disputes through voluntary mediation.
Mediator selection and the procedures to be employed in voluntary
mediation shall be mutually acceptable to the parties. Costs of
voluntary mediation shall be shared equally among the parties
participating in the mediation.
94. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
CONTRACTOR:
Parthenon Constructi Co any
1. w -1 _1 • V^ 1
By (Signature)
(SEAL)
Mehdi Shayesteh - Fard -- --'-�;-�
President
ATTEST:
By (Signature)
Ahmad Shayesteh -Fard
Treasurer
CRA:
By (Signature)
(SEAL)
Nicholas McCray, CRA Executive rector
(By delegation).
ATTEST: 1
By (Sij�nature) - %
Cynthia Lindsay, Finance Director
(Under City services MOU).
END OF SECTION
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