HomeMy WebLinkAboutT B Landmark_Thurm Force Main Replacement City of Cape Canaveral Thurm Blvd.Force Main Replacement
SECTION 00 50 00
CONSTRUCTION AGREEMENT
This Agreement made this tr/'day of Ffuj ,2020 between the CITY OF CAPE CANAVERAL,
a Florida municipal corporation(herein referred to as CITY)and T B Landmark Construction, Inc.,a State
Certified General Construction Firm authorized and duly licensed to do business in the State of Florida
(herein referred to as CONTRACTOR),as follows:
1. DESCRIPTION OF WORK - CONTRACTOR shall perform the work, in accordance with the
Contract Documents,for replacement of the Thurm Blvd. Force Main 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 Bowman
Consulting, Inc., dated August 2019, Bid #2019-03; Documents issued by the CITY;
CONTRACTOR'S Bid Submittal; General Conditions by the CITY; Supplemental Terms and
Conditions by the CITY and Florida Department of Environmental Protection (FDEP); 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 CONTRACTOR,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 (CITY and FDEP);
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
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that the work is based on one brand name only.The CONTRACTOR will be responsible for all
coordination necessary to accommodate the material, article or equipment 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. CONTRACTOR 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 (March 16) and shall complete the Work (substantial
completion) within one hundred fifty (150) calendar days. The CONTRACTOR shall complete
the Work (final completion) within one hundred eighty (180) 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 CONTRACTOR the consideration of ten ($10.00)dollars as
consideration for this provision.
7 CONTRACT PRICE, UNIT PRICE CONTRACT-The CITY will pay the CONTRACTOR in current
funds for the performance of the work,subject to additions and deductions by Change Order,
the Total Contract Price of two hundred ninety-three thousand thirty-one dollars and no cents
($293,031.00). 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. CONTRACTOR 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
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remedied within seven (7) calendar days, in which case the CONTRACTOR 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
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. CONTRACTOR has acted negligently, as defined by general and applicable law, in
performing the Work hereunder;or
d. CONTRACTOR has committed any act of fraud upon the CITY;or
e. CONTRACTOR has made a material misrepresentation of fact to the CITY while
performing its obligations under this Agreement;or
f. CONTRACTOR 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 CONTRACTOR,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
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11. PROGRESS PAYMENTS-CITY shall make progress payments on account of the contract price
to CONTRACTOR, 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.
Progress payments may be withheld if:
a. Work is found defective and not remedied;
b. CONTRACTOR 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 Contractor 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 of Cape Canaveral, CONTRACTOR'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.
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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
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 Pros Reports.The CITY shall be kept familiar with the
progress and quality of the work by CONTRACTOR and may make periodic visits to the
work site. The CITY will not be responsible for the means of construction, or 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 onsite 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 CONTRACTOR.
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.
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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.
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.
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c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of
this Agreement by 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.
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.
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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 and
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.
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 CONTRACTOR.
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
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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 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
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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 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 CONTRACTOR. 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,CONTRACTOR shall transfer to CITY,at no cost,all
public records in possession of the CONTRACTOR, 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
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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
CONTRACTOR 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 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.
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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.
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 T B Landmark Construction,Inc.
Todd Morley, Interim City Manager Martin Adams, General Manager
100 Polk Avenue 11220 New Berlin Road
Cape Canaveral, FL 32920 Jacksonville,FL 32226
Phone: 321-868-1220 Phone:(904) 751-1016
Fax: 321-868-1248 Fax: (904) 751-4125
Either party may change the notice address by providing the other party written notice of the
change.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.
CONTRACTOR:
WITNESSES: T B Landmark Construction,Inc.
I ► ►►
By: ilUkCA—Q--
Print Name:Ashton Thigpen Print Name: Martin Adams
Title: General Manager
1144 ' 4
Print ame: Holly Harris
CITY:
City of Cape Canaveral, Florida,
a Florida municipal corporation.
At_t By:
odd Morley, Interim(C. Manager
By: _ - e rr
,a is Goforth, C
City Clerk Date /'J
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LIMITED POWER OF ATTORNEY
STATE OF FLORIDA
COUNTY OF DUVAL
Known all men by these presents, T B Landmark Construction, Inc. ("T B Landmark"), a Florida
Corporation with principal offices at 11220 New Berlin Road, Jacksonville, Florida 32226 does hereby
irrevocably constitute,nominate, appoint and authorize,Martin Adams, who presently resides at 6042 Antigua
Court. Orange Park. FL 32003, and who is presently employed by T B Landmark holding the position of
Manager, as its true and lawful attorney-in-fact, to do in its name and on its behalf, all such acts, deeds and
things as are necessary or required in connection with or incidental to submission of its bid for the proposed
project, including but not limited to signing and submission of all bids, and other documents and writings,
participating in bidders and other conferences, providing information/responses, representing it in all matters
relating to the bidding process, signing and execution of all contracts and undertakings consequent to
acceptance of its bid, and generally dealing with the necessary parties in all matters in connection with or
relating to or arising out of its bid for the proposed project and/or upon award thereof to T B Landmark.
And T B Landmark hereby agrees to ratify and confirm, and does hereby ratify and confirm all acts,
deeds and things lawfully done or caused to be done by its said attorney-in-fact pursuant to and in exercise of the
powers conferred by this limited power of attorney,and that all acts, deeds, and things done by its said attorney-
in-fact in exercise of the powers hereby conferred shall and shall always be deemed to have been done by T B
Landmark.
In witness whereof, Robin Thigpen, on behalf of T B Landmark as its President, has executed this
power of attorney on this 26th day of July,2016.
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If Thigpen, Presid 1t
T B Landmark Construction,Inc.
SWOAND SUBSCRIBED BEFORE ME THIS 26TH DAY OF JULY, 2016 BY ROBIN THIGPEN.
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(Notary Public) Loren We
Print Name:Loren Ward f` NOTARY PUBLIC
My Commission Expires: 07/15/2020 =�+►,�, ":-STATE OF FLORIDA
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Expires 7/15/2020
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Martin Adams,Manager
T B Landmark Construction,Inc.
SWORN AND SUBSCRIBED BEFORE ME THIS 26TH DAY OF JULY,2016 BY MARTIN ADAMS.
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(Notary Public) , Loren Ward
Print Name: Loren Ward r NOTARY PUBLIC
f STATE OF FLORIDA
My Commission Expires: 07/15/2020 :011=4v-a'=Commit GG007790
<', Expires 7/15/2020