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1374 Parthenon Const/CRA/Magnolia & Palmetto Aves. (2)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 _ 00520 -1 Magnolia and Palmetto Avenue Streetscane, IFB 10/11 -04 120 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 00520 -2 Magnolia and Palmetto Avenue Streetscape IFB 10/11 -04 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. 00520 -3 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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 00520 -4 Magnolia and Palmetto Avenue Streetscaye, IFB 10/11 -04 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 00520 -5 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00620 -6 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -9 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -10 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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, 00520 -11 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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 00520 -12 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -13 Maqnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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 00520 -14 Maqnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -15 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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 00620 -16 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -17 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -18 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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. 00520 -19 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04 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 00520 -20 Magnolia and Palmetto Avenue Streetscape, IFB 10/11 -04