HomeMy WebLinkAboutSDV Services Construction Agreement 3-23-18Bid#2018-03
Cape Canaveral,Florida
CONSTRUCTION AGREEMENT
This Agreement made this 23rd day of March , 2018 between the CITY OF CAPE
CANAVERAL, a Florida municipal corporation (herein referred to as CITY) and SDV SERVICES
LLC, a State Certified General Construction Firm authorized and duly licensed to do business in the
State of Florida(herein referred to as CON TRACTOR),as follows:
1. DESCRIPTION OF WORK- CON IRACTOR shall perform the work, in accordance with
the Contract Documents, for the restoration of the shoreline at the CITY'S Wastewater
Treatment Plant (WWTP) as set forth in the Scope of Services, attached hereto as Exhibit
"A",and fully incorporated by this reference("Work").
2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement;
Exhibits and Addendum to the Agreement;Engineering Plans and Drawings prepared by John
A. Pekar, PE, dated February 2018; Bid #2018-03; Documents issued by the CITY;
CONTRACTOR'S Bid Submittal;General Conditions by the CITY; Supplemental Terms and
Conditions by the CITY; and all Change Orders approved by the CITY after execution of this
Agreement. These Contract Documents are hereby incorporated into this Contract by this
reference.
3. ORDER OF PRECEDENCE-In case of any inconsistency in any of the documents bearing
on the Agreement between the CITY and the CON IRACTOR, the inconsistency shall be
resolved by giving precedence in the following order:
a. Agreement Exhibits and Addenda;CONTRACTOR'S Bid Submittal;
b. Change Orders;
c. Supplemental Terms and Conditions;
d. General Terms and Conditions;or
e. Engineering Plans and Drawings.
Any inconsistency in the work description shall be clarified by the CITY and performed by
the CONTRACTOR.
4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work,
should any errors, ambiguities or discrepancies be found in the Agreement or specifications,
the CITY at its sole discretion will interpret the intent of the Agreement and work descriptions
and the CONTRACTOR hereby agrees to abide by the CITY's interpretation and agrees to
carry out the work in accordance with the decision of the CITY. When the material, article or
equipment is designated by a brand name and more than one brand name is listed, it will be
understood that the work is based on one brand name only. The CON IRACTOR will be
responsible for all coordination necessary to accommodate the material, article or equipment
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being provided without additional cost to the CITY. A substitute material,article or equipment
is allowed if it is reasonably equivalent to the brand name specified. The CITY has full
discretion to decide whether a substitute is reasonably equivalent. CON TRACTOR must
notify the CITY prior to use of the substitute for a specified brand name and allow the CITY
to make a determination before CONTRACTOR uses the substitute.
5. CONTRACT TIME - The CONTRACTOR shall begin work within thirty (30) days after
the issuance of a written Notice to Proceed and shall complete the Work within ninety (90)
calendar days from the date of the Notice to Proceed. Extensions, if any, are authorized by
CITY,and may only be granted in writing.
6. LIQUIDATED DAMAGES - CITY and CONTRACTOR recognize that time is of the
essence of this Agreement and that CITY will suffer financial loss if the Work is not
substantially complete within the time specified in Paragraph 5 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 or arbitration proceeding the actual loss
suffered by CITY if the Work is not substantially completed on time. Accordingly, instead of
requiring any such proof, CITY and CONTRACTOR agree that as liquidated damages for
delay (but not as a penalty) CONTRACTOR shall pay CITY one hundred dollars ($100.00)
per day for each day that expires after the time specified in Paragraph 5 for final completion
until the work is finally complete, and that CITY has paid to CON TRACTOR the
consideration of ten($10.00)dollars as consideration for this provision.
7. CONTRACT PRICE, UNIT PRICE CONTRACT - The CITY will pay the
CON TRACTOR in current funds for the performance of the work, subject to additions and
deductions by Change Order, the Total Contract Price of One Hundred Ninety Three
Thousand Eight Hundred Fifty Dollars and No Cents ($193,850.00). Payments will be made
to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit
Prices included as a part of the Bid, which shall be as fully a part of the Contract as if attached
or repeated herein.
8. TERMINATION; DEFAULT BY CONTRACTOR AND CITY'S REMEDIES - The
CITY reserves the right to revoke and terminate this Agreement and rescind all rights and
privileges associated with this Agreement, without penalty, for convenience. Further, the
CITY reserves the right to revoke and terminate this Agreement in the following
circumstances,each of which shall represent a default and breach of this Agreement:
a. CON TRACTOR defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within seven (7) calendar days after
written notice from the CITY specifying the default complained of unless, however, the
nature of the default is such that it cannot, in the exercise of reasonable diligence, be
remedied within seven (7) calendar days, in which case the CON TRACTOR shall have
such time as is reasonably necessary to remedy the default,provided the CONTRACTOR
promptly takes and diligently pursues such actions as are necessary therefore;or
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b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of
creditors or CONTRACTOR becomes insolvent or is unable or unwilling to pay its debts;
or
c. CON TRACTOR has acted negligently, as defined by general and applicable law, in
performing the Work hereunder; or
d. CON TRACTOR has committed any act of fraud upon the CITY;or
e. CON TRACTOR has made a material misrepresentation of fact to the CITY while
performing its obligations under this Agreement;or
f. CON TRACTOR is experiencing a labor dispute,which threatens to have a substantial,
adverse impact upon performance of this Agreement without prejudice to any other right
or remedy CITY may have under this Agreement.
Notwithstanding the aforementioned, in the event of a default by CON TRACTOR, the CITY
shall have the right to exercise any other remedy the CITY may have by operation of law,
without limitation,and without any further demand or notice. In the event of such termination,
CITY shall be liable only for the payment of all unpaid charges, determined in accordance
with the provisions of this Agreement, for Work properly performed prior to the effective date
of termination.
9. FORCE MAJEURE -Any delay or failure of either party in the performance of its required
obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood;
windstorm; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR'S labor
force); extraordinary breakdown of or damage to CITY's affiliates' generating plants, their
equipment or facilities; court injunction or order; federal and/or state law or regulation; order
by any regulatory agency; or cause or causes beyond the reasonable control of the party
affected; provided that prompt notice of such delay is given by such party to the other and
each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If
any circumstance of Force Majeure remains in effect for sixty days,either party may terminate
this Agreement.
10. SEVERABILITY - In the event any portion or part thereof of this Agreement is deemed
invalid,against public policy,void or otherwise unenforceable by a court of law,the parties,at
the sole discretion and option of the CITY, shall negotiate an equitable adjustment in the
affected provision of this Agreement. The validity and enforceability of the remaining parts of
this Agreement shall otherwise be fully enforceable
11. PROGRESS PAYMENTS-price to CON TRACTOR, on the basis of application for payments submitted to the CITY or
CITY's Project Manager, by CONTRACTOR as the work progresses and in accordance with
the Contract Documents.
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Progress payments may be withheld if:
a. Work is found defective and not remedied;
b. CON TRACTOR does not make prompt and proper payments to subcontractors;
c. CONTRACTOR does not make prompt and proper payments for labor, materials or
equipment furnished him;
d. Another CON TRACTOR is damaged by an act for which CONTRACTOR is
responsible;
e. Claims or liens are filed on the job;or
f. In the opinion of the CITY,CON TRACTOR'S work is not progressing satisfactorily.
12. FINAL PAYMENT - CITY shall withhold up to 10% of the Contract Price throughout the
project in accordance with the Local Government Prompt Payment Act ("Act"). After 50%
completion of the project,CITY shall reduce to 5%the amount of the retainage withheld from
each subsequent progress payment made to the CONTRACTOR unless the project is subject
to Federal funding, in whole or in part, and the project is subject to laws and regulations
contrary to the Act. The term "50% completion of the project" shall mean the point at which
the CITY has expended 50%of the total cost of the construction services purchased under this
Agreement together with all costs associated with existing change orders and other additions
or modifications to the construction services provided for in this Agreement. After 50%
completion, the CONTRACTOR may present to the CITY a payment request for up to one-
half of the retainage held by the CITY. CITY shall promptly make payment to the
CONTRACTOR unless the CITY has grounds,under the Act, for withholding the payment of
the retainage. The remaining retainage amount withheld shall be released with the Final
Payment after the issuance of the Final Completion Certificate. CITY shall make final
payment to CONTRACTOR within thirty (30) days after the work is fully and properly
completed, if the contract has been fully and timely performed, but subject to the condition
that final payment shall not be due until CONTRACTOR has delivered to CITY a complete
release of liens arising out of the contract, or receipt of releases of lien fully covering all labor,
materials and equipment for which a lien could be filed, or in the alternative a bond
satisfactory to CITY indemnifying him against such claims.
By making payments, CITY does not waive claims including but not limited to those relating
to:
a. Faulty work appearing after substantial completion has been granted;
b. Work that does not comply with the Contract Documents;
c. Outstanding claims of liens;or
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d. Failure of CONTRACTOR to comply with any special guarantees required by the
Contract Documents.
13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT: DUTIES AND AUTHORITY-The duties and authority of the CITY are as
follows:
a. General Administration of Contract. The primary function of the CITY is to
provide the general administration of the contract. In performance of these duties, Jeff
Ratliff or his authorized representative is the CITY's Project Manager during the entire
period of construction. The CITY may change the Project Manager during the term of this
contract.
b. Inspections, Opinions, and Progress Reports. The CITY shall be kept familiar with
the progress and quality of the work by CON TRACTOR and may make periodic visits to
the work site. The CITY will not be responsible for the means of construction for the
sequences, methods and procedures used therein or for the CONTRACTOR's failure to
perform the work in accordance with the Contract Documents.
c. Access to Worksite for Inspections. The CITY shall be given free access to the
worksite at all times during work preparation and progress. The Project Manager is not
obligated to make exhaustive or continuous on site inspections to perform his duties of
checking and reporting on work progress, and any such inspections shall not waive
CITY's claim regarding defective work by CON TRACTOR.
d. Interpretation of Contract Documents: Decisions on Disputes. The CITY will be
the initial interpreter of the contract document requirements,and make decisions on claims
and disputes between CONTRACTOR and CITY.
e. Rejection and Stoppage of Work. The CITY shall have authority to reject work
which in its opinion does not conform to the Contract Documents, and in this connection
may stop the work or a portion thereof,when necessary.
f. Payment Certificates. The CITY will determine the amounts owing to
CONTRACTOR as the work progresses, based on CONTRACTOR's applications and
CITY's inspections and observations, and will issue certificates for progress payments and
final payments in accordance with the terms of the Contract Documents.
14. PROGRESS MEETING — CITY's Project Manager may hold periodic progress meetings
on a monthly basis, or more frequently if required by the CITY, during the term of work
entered into under this Agreement. CONTRACTOR's Project Manager and all other
appropriate personnel shall attend such meetings as designated by the CITY's Project
Manager.
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15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in
connection with the project herein are as follows:
a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely
responsible for all construction under this contract, including the techniques, sequences,
procedures and means, for the coordination of all work. CONTRACTOR shall supervise
and direct the work and give it all attention necessary for such proper supervision and
direction.
b. Discipline and Employment. CONTRACTOR shall maintain at all times strict
discipline among his employees, and he agrees not to employ for work on the project any
person unfit or without sufficient skill to perform the job for which he was employed.
c. Furnishing of Labor, Materials, etc. CONTRACTOR shall provide and pay for all
labor, materials and equipment, including tools, construction equipment and machinery,
utilities, including water, transportation and all other facilities and work necessary for the
proper completion of work on the project in accordance with the Contract Documents.
d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall
secure all licenses and permits necessary for proper completion of the work, paying the
fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if
authorized in the Contract Documents)hold or will secure all trade or professional licenses
required by law for CONTRACTOR to undertake the contract work.
e. CONTRACTOR will provide written guarantee for work and materials for one (1)
calendar year after acceptance by CITY.
16. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any
rights or any monies due or to become due hereunder, without the prior written consent of the
CITY.
a. If upon receiving written approval from CITY, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to CITY
for all acts and/or omissions performed by the subcontractor as if no subcontract had been
made.
b. If CITY determines that any subcontractor is not performing in accordance with this
Agreement, CITY shall so notify CONTRACTOR who shall take immediate steps to
remedy the situation.
c. If CONTRACTOR,prior to the commencement of any work, subcontracts any part of
this Agreement to the subcontractor, CONTRACTOR shall require the subcontractor to
provide CITY and its affiliates with insurance coverage as set forth by the CITY.
17. THIRD PARTY RIGHTS -Nothing in this Agreement shall be construed to give any rights
or benefits to anyone other than CITY and CONTRACTOR.
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18. PROHIBITION AGAINST CONTINGENT FEES - CONTRACTOR warrants that it has
not employed or retained any company or person, other than a bona fide employee working
solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or
agreed to pay any person, company, corporation, individual or firm, other than a bona fide
employee working solely for the CONTRACTOR, any fee, commission, percentage, gift or
other consideration contingent upon or resulting from the award or making of this Agreement.
19. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or
principal-agent relationship between the parties and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would indicate any
such relationship with the other party.
20. INDEMNIFICATION — For other and additional good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR shall
indemnify, hold harmless and defend the CITY, its officers, agents, officials, representatives,
employees and/or attorneys against any and all liability, loss, cost, damages, expenses, claim
or actions,of whatever type, including but not limited to attorney's fees and suit costs,for trial
and appeal, which the CITY may hereafter sustain, incur or be required to pay, arising out of,
wholly or in part, or due to any act or omission of CONTRACTOR, its agent(s), vendors,
contractors, subcontractor(s), representatives, servants or employees in the execution,
performance or non-performance or failure to adequately perform CONTRACTOR's
obligations pursuant to this Agreement.
The indemnification provided above shall obligate the indemnifying party to defend at its own
expense or to provide for such defense, at the sole option of the CITY, as the case may be, of
any and all claims of liability and all suits and actions of every name and description that may
be brought against the CITY, its officers, agents, officials, representatives, employees and/or
attorneys which may result from the services under this Agreement whether the services be
performed by the indemnifying party or anyone directly or indirectly employed or hired by
them. In all events the CITY shall be permitted to choose legal counsel of its sole choice,the
fees for which shall be subject to and included with this indemnification provided herein, as
long as said fees are reasonable. This paragraph shall survive termination of this Agreement.
21. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees, contractors and agents
while performing work provided hereunder.
22. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby
represents and warrants to the CITY the following:
a. CONTRACTOR is duly registered and licensed to do business in the State of Florida,
is in good standing under the laws of Florida and is duly qualified and authorized to carry
on the functions and operations set forth in this Agreement.
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b. The undersigned signatory for CONTRACTOR has the power, authority and the legal
right to enter into and perform the obligations set forth in this Agreement and all
applicable exhibits thereto, and the execution, delivery and performance hereof by
CONTRACTOR has been duly authorized by the board of directors and/or president of
CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a
copy to the CITY of a corporate certificate of good standing provided by the State of
Florida prior to the execution of this Agreement.
c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the
work stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR
agrees to provide a copy of all said licenses to the CITY prior to the execution of this
Agreement.
23. BOND-CONTRACTOR shall supply a materials,performance and payment bond(s)in form
approved by the CITY's City Attorney and in accordance with Florida law and in an amount
specified in the Contract Documents.
24. INSURANCE-During the term of this Agreement, CONTRACTOR shall be responsible for
providing the types of insurance and limits of liability as set forth below.
a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
minimum amount of $2,000,000 as the combined single limit for each occurrence to
protect the CONTRACTOR from claims of property damages which may arise from any
Work performed under this Agreement whether such Work is performed by the
CONTRACTOR or by anyone directly employed by or contracting with the
CONTRACTOR.
b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in
the minimum amount of$1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect
the CONTRACTOR from claims for damages for bodily injury,including wrongful death,
as well as from claims from property damage, which may arise from the ownership, use,
or maintenance of owned and non-owned automobiles, including rented automobiles
whether such operations be by the CONTRACTOR or by anyone directly or indirectly
employed by the CON TRACTOR.
c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance in at least such amounts as are required by law and
Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its
employees performing Work for the CITY pursuant to this Agreement.
Special Requirements. Current, valid insurance policies meeting the requirements herein
identified shall be maintained during the term of this Agreement. A copy of a current
Certificate of Insurance shall be provided to the CITY by CONTRACTOR upon the Effective
Date of this Contract which satisfies the insurance requirements of this paragraph 24. Renewal
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certificates shall be sent to the CITY 30 days prior to any expiration date. There shall also be a
30-day advance written notification to the CITY in the event of cancellation or modification of
any stipulated insurance coverage. The CITY shall be an additional named insured on all
stipulated insurance policies as its interest may appear, from time to time, excluding
workers' compensation and professional liability policies.
Independent Associates and Consultants. All independent contractors or agents employed
by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance
provisions contained in this paragraph section 24.
25. MEDIATION/VENUE - The parties agree that should any dispute arise between them
regarding the terms or performance of this Agreement, both parties will participate in
mediation.The parties agree to equally share the cost of the mediator. Should the parties fail to
resolve their differences through mediation, then any cause of action filed hereunder shall be
filed in the Circuit or County Court for Brevard County,Florida.
26. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted,
construed, governed and enforced in accordance with the laws of the State of Florida. Venue
for any state action or litigation shall be Brevard County, Florida. Venue for any federal action
or litigation shall be Orlando,Florida.
27. ATTORNEY'S FEES-Should either party bring an action to enforce any of the terms of this
Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover
from the non-prevailing party the costs and expenses of such action including, but not limited
to,reasonable attorney's fees,whether at settlement,trial or on appeal.
28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the
applicable party at the address shown on page 9 of this Agreement.
29. WORK IS A PRIVATE UNDERTAKING - With regard to any and all Work performed
hereunder, it is specifically understood and agreed to by and between the parties hereto that
the contractual relationship between the CITY and CONTRACTOR is such that the
CONTRACTOR is an independent contractor and not an agent of the CITY. The
CONTRACTOR, its contractors, partners, agents and their employees are independent
contractors and not employees of the CITY. Nothing in this Agreement shall be interpreted to
establish any relationship other than that of an independent contractor, between the CITY, on
one hand, and the CONTRACTOR, its contractors, partners, employees or agents, during or
after the performance of the Work under this Agreement.
30. DOCUMENTS - Public Records: Pursuant to Section 119.0701, Florida Statutes and other
applicable public records laws, CONTRACTOR agrees that any records, documents,
transactions, writings, papers, letters, computerized information and programs, maps, books,
audio or video tapes, films, photographs, data processing software, writings or other
material(s), regardless of the physical form, characteristics or means of transmission, of
CONTRACTOR related,directly or indirectly,to the services provided to the CITY under this
Agreement and made or received pursuant to law or ordinance or in connection with the
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transaction of official business by the CITY,may be deemed to be a public record,whether in
the possession or control of CITY or the CON TRACTOR. Said records, documents,
transactions, writings, papers, letters, computerized information and programs, maps, books,
audio or video tapes, films, photographs, data processing software, writings or other
material(s), regardless of the physical form, characteristics or means of transmission of
CONTRACTOR are subject to the provisions of Chapter 119, Florida Statutes, and may not
be destroyed without the specific written approval of the CITY's designated custodian of
public records.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CITY'S
CUSTODIAN OF PUBLIC RECORDS/CITY CLERK AT (321) 868-1220,
100 POLK AVENUE, CAPE CANAVERAL, FLORIDA 32920.
CONTRACTOR is required to and agrees to comply with public records laws.
CONTRACTOR shall keep and maintain all public records required by CITY to perform the
services as agreed to herein. CONTRACTOR shall provide the CITY,upon request from the
City Clerk, copies of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided by law.
CONTRACTOR shall ensure that public records that are exempt or confidential and exempt
from public records disclosure requirements are not disclosed except as authorized by law for
the duration of the Agreement term. Upon completion of the Agreement, CON TRACTOR
shall transfer to CITY, at no cost, all public records in possession of the CON TRACTOR,
provided the transfer is requested in writing by the City Clerk. Upon such transfer,
CONTRACTOR shall destroy any duplicate public records that are exempt or confidential
and exempt from public records disclosure requirements. However,if the City Clerk does not
request that the public records be transferred,the CONTRACTOR shall continue to keep and
maintain the public records upon completion of the Agreement and shall meet all applicable
requirements for retaining public records. All records stored electronically must be provided
to CITY, upon request from the City Clerk, in a format that is compatible with the
information technology systems of CITY. Should the CITY not possess public records
relating to this Agreement which are requested to be inspected or copied by the CITY or any
other person, the CITY shall immediately notify CONTRACTOR of the request and the
CONTRACTOR shall then provide such records to the CITY or allow the records to be
inspected or copied within a reasonable time. If the CONTRACTOR does not comply with a
public records request, the CITY may enforce this Section to the extent permitted by law.
CONTRACTOR acknowledges that if the CONTRACTOR does not provide the public
records to the CITY within a reasonable time, the CONTRACTOR may be subject to
penalties under Section 119.10, Florida Statutes. The CON TRACTOR acknowledges that if
a civil action is filed against the CONTRACTOR to compel production of public records
relating to this Agreement, the court may assess and award against CONTRACTOR the
reasonable costs of enforcement, including reasonable attorney fees. All public records in
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connection with this Agreement shall, at any and all reasonable times during the normal
business hours of the CONTRACTOR, be open and freely exhibited to the CITY for the
purpose of examination,audit or otherwise. Failure by CONTRACTOR to grant such public
access and comply with public records laws and/or requests shall be grounds for immediate
unilateral cancellation of this Agreement by the CITY upon delivery of a written notice of
cancellation. If the CONTRACTOR fails to comply with this Section, and the CITY must
enforce this Section, or the CITY suffers a third party award of attorney's fees and/or
damages for violating Chapter 119, Florida Statutes, due to CONTRACTOR'S failure to
comply with this Section, the CITY shall collect from CONTRACTOR prevailing party
attorney's fees and costs, and any damages incurred by the CITY, for enforcing this Section
against CONTRACTOR. And, if applicable, the CITY shall also be entitled to
reimbursement of all attorneys' fees and damages which the CITY had to pay a third party
because of the CONTRACTOR'S failure to comply with this Section. The terms and
conditions set forth in this Section shall survive the termination of this Agreement.
31. SOVEREIGN IMMUNITY - Notwithstanding any other provision set forth in this
Agreement,nothing contained in this Agreement shall be construed as a waiver of the CITY's
right to sovereign immunity under Section 768.28,or other limitations imposed on the CITY's
potential liability under state or federal law. As such,the CITY shall not be liable, under this
Agreement for punitive damages or interest for the period before judgment. Further,the CITY
shall not be liable for any claim or judgment, or portion thereof, to any one person for more
than two hundred thousand dollars ($200,000.00), or any claim or judgment, or portion
thereof, which, when totaled with all other claims or judgments paid by the State or its
agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of
three hundred thousand dollars($300,000.00).
32. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to
be construed as part of this Agreement.
33. INTEGRATION; MODIFICATION - The drafting, execution, and delivery of this
Agreement by the Parties has been induced by no representations, statements, warranties, or
agreements other than those expressed herein. This Agreement embodies the entire
understanding of the parties, and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. Modifications of this Agreement shall only be made in writing
signed by both parties.
34. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms or
provision of this Agreement shall not be considered a waiver of that term, condition, or
provision in the future. No waiver, consent, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
each party hereto. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be considered an original agreement; but such
counterparts shall together constitute but one and the same instrument.
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35. DRAFTING - CITY and CONTRACTOR each represent that they have both shared equally
in drafting this Agreement and no party shall be favored or disfavored regarding the
interpretation of this Agreement in the event of a dispute between the parties.
36. NOTICE - Any notice, request, instruction, or other document to be given as part of this
Agreement shall be in writing and shall be deemed given under the following circumstances:
when delivered in person; or three (3)business days after being deposited in the United States
Mail, postage prepaid, certified or registered; or the next business day after being deposited
with a recognized overnight mail or courier delivery service; or when transmitted by facsimile
or telecopy transmission, with receipt acknowledged upon transmission; and addressed as
follows(or to such other person or at such other address, of which any party hereto shall have
given written notice as provided herein):
For CITY: For Contractor:
City of Cape Canaveral SDV SERVICES LLC.
David L.Greene,City Manager FRANKLIN D KELLEY,PRES.
100 Polk Avenue 1514 S WASHINGTON AVE
Cape Canaveral,FL 32920 TITUSVILLE,FL 32780
Phone: 321-868-1220 Phone: 321-267-7073
Fax: 321-868-1224 Fax: 321-267-2211
Either party may change the notice address by providing the other party written notice of the
change.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
WITNESSES: CONTRACTOR:
By:
Print Name: Nicolle Locharg Print Name: FRANKLIN KELLEY
Title: President
Print Name: Robi Roberts
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Attest:
By:
Mia Goforth, City Clerk
CITY:
City of Cape Canaveral,Florida,
a Florida municipal corporation.
By:
David L. Greene,City Manager
Date 3/23/18
City of Cape Canaveral/Contractor
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