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10/21/2015 AgreementSEWER LATERAL CONTSTRUTION AGREEMENT DOUGLAS N. HIGGINS INC. MONROE COUNTY THIS AGREEMENT is entered into this 21st day of October 2015 by and between Monroe County, a political subdivision of the State of Florida whose address is 1100 Simonton Street, Key West, Florida 33040 hereinafter called OWNER and Douglas N. Higgins, Inc. whose legal address is 3390 Travis Pointe Rd. Suite A, Ann Arbor Michigan 48108 hereinafter called CONTRACTOR. OWNER and CONTRACTOR in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1. WORK. 1.1 CONTRACTOR shall perform the Work as specified or indicated in the Contract Documents. The Work is as described in SECTION 01010. ARTICLE 2. ENGINEER. 2.1 The Project has been designed by CDM Smith. Rebecca Oliva, P.E., ENV SP will act as ENGINEER in connection with completion of the Work in accordance with the Contract Documents. ARTICLE 3. CONTRACT TIME. 3.1 The Contract Time shall be one hundred fifty (150) Calendar Days (for Base Bid only) or two hundred twenty -five days (225) Calendar Days (for the Base Bid and if at least one Additive Alternate is selected), including thirty (30) days for administration, mobilization and submittals, commencing ten days following the Effective Date of this Agreement. 3.2 CONTRACTOR agrees that the Work shall be prosecuted regularly, diligently and uninterruptedly and at such rate of progress as will insure full completion thereof within the Contract Time stated above. It is expressly understood and agreed, by and between CONTRACTOR and OWNER that the Contract Time is reasonable for the completion of the Work, taking into consideration the average climatic range and usual industrial conditions prevailing in this locality. ARTICLE 4. CONTRACT PRICE. 4.1 OWNER will pay CONTRACTOR for performance of the Work in accordance with the Contract Documents in current funds at the agreed upon price in the CONTRACTOR's Bid Form attached to this Agreement. ARTICLE 5. APPLICATIONS FOR PAYMENT. 5.1 CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the Conditions of the Contract. Applications for Payment will be processed by ENGINEER as 1 provided in the Conditions of the Contract. ARTICLE 6. PROGRESS AND FINAL PAYMENTS. 6.1 OWNER will make progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by ENGINEER, monthly during construction as provided below. All progress payments will be on the basis of the progress of the Work measured by the schedule of values provided for in Paragraph 14.01. of the Conditions of the Contract. COUNTY shall pay in accordance with the Florida Local Government Prompt Payment Act; payment will be made after delivery and inspection by COUNTY and upon submission of invoice by CONTRACTOR. CONTRACTOR shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk, on a MONTHLY schedule in arrears. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. The contractor shall not be entitled to payment unless and until it submits to the owner invoices with supporting documentation acceptable to the Clerk of Court of which may include partial and final releases and waivers of lien; releases and waivers of lien from all subcontractors of the contractor and of any and all parties required by the owner. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. The County designates the Clerk of Courts as its agent under the Local Government Prompt Payment Act, Florida Statues Section 218.735. 6.2 Prior to Substantial Completion, progress payments will be in an amount equal to 90 percent of the value of the Work completed and 90 percent of the value of materials and equipment not incorporated in the Work but delivered and suitably stored, less, in each case, the aggregate of payments previously made. 6.3 Upon Substantial Completion, OWNER will pay an amount sufficient to increase total payments to CONTRACTOR to 95 percent of the Contract Price, less retainages as ENGINEER shall determine, in accordance with Paragraph 14.02. of the Conditions of the Contract. 6.4 Upon final inspection and acceptance of the Work, in accordance with Paragraph 14.07. of the Conditions of the Contract, OWNER will pay the remainder of the Contract Price as recommended by ENGINEER. ARTICLE 7. LIQUIDATED DAMAGES. 7.1 OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the Contract Time specified in Article 3 above, plus any extensions thereof allowed in accordance with 2 Article 12 of 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 OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER $1,000.00 per day for each calendar day of delay until the Work is complete. 7.2 Provided, that CONTRACTOR shall not be charged with liquidated damages or any excess cost when the delay in completion of the Work is for reasons included in Paragraph 12.03. of the General Conditions. 7.3 Provided, further, that CONTRACTOR shall furnish OWNER the required notification of such delays in accordance with Paragraph 12.02. of the General Conditions. ARTICLE 8. ASSURANCE. 8.1 CONTRACTOR has familiarized himself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions and Federal, State and local laws, ordinances, rules and regulations that in any manner may affect cost, progress or performance of the Work. 8.2 CONTRACTOR has studied carefully all reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Work which were relied upon by ENGINEER in the preparation of the Drawings and Specifications and which have been identified in Article 4 of the Supplementary Conditions. 8.3 CONTRACTOR has made or caused to be made examinations, investigations and tests and studies of such reports and related data as CONTRACTOR deems necessary for the performance of the Work at the Contract Price within the Contract Time and in accordance with the other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports or similar data are or will be required for such purposes. 8.4 CONTRACTOR has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the Contract Documents. 8.5 CONTRACTOR has given ENGINEER written notice of any conflict, error or discrepancy that CONTRACTOR has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. 8.6 CONTRACTOR agrees that the Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance of the Work. ARTICLE 9. CONTRACT DOCUMENTS. 9.1 The Contract Documents which comprise the Contract between OWNER and 3 CONTRACTOR are attached hereto and made a part hereof and consist of the following: 9.1.1 The Invitation To Bid. 9.1.2 The Instructions To Bidders 9.1.3 The Bid Form and attachments. 9.1.4 This Agreement. 9.1.5 Performance Bond, EJCDC Document C-610,2010 edition, Payment Bond, EJCDC Document C -615, 2010 edition, and other required Bonds. 9.1.6 Payment Bond 9.1.7 General Conditions, section 00700 of the Project Manual Issued For Bid - Volume 1 of 2, EJCDC Document No. C -700, 2007 edition. 9.1.8 Supplementary Conditions, section 00800 of the Project Manual Issued For Bid - Volume 1 of 2. 9.1.9 Federal Contract Provisions. 9.1.10 Bid Specifications -Technical Specifications Issued For Bid Volume 2 of 2 9.1.11 Bid Drawings, numbered G -1 through E -2, inclusive and dated April 2015. 9.1.12 All Addenda. 9.1.13 Any modification, including Change Orders, duly delivered after execution of Agreement. ARTICLE 10. MISCELLANEOUS. 10.1 Terms used in this Agreement which are defined in Article 1 of the Conditions of the Contract shall have the meanings assigned in the Conditions of the Contract. 10.2 Neither OWNER nor CONTRACTOR shall, without the prior written consent of the other, assign or sublet in whole or in part any interest under any of the Contract Documents; and, specifically but without limitation, CONTRACTOR shall not assign any monies due or to become due without the prior written consent of OWNER. In case CONTRACTOR assigns all or any part of any monies due or to become due under this Contract, the instrument of assignment shall contain a clause substantially to the effect that it is agreed that the right of the assignee in and to any monies due or to become due to CONTRACTOR shall be subject to prior claims of all persons, firms and corporations for services rendered or materials supplied for the performance of the 4 Work called for in this Contract. 10.3 OWNER and CONTRACTOR each binds himself, his partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 10.4 The Contract Documents constitute the entire agreement between OWNER and CONTRACTOR and may only be altered, amended or repealed by a Modification. ARTICLE 11. BUY AMERICAN. 11.1 The CONTRACTOR acknowledges to and for the benefit of the OWNER and the State of Florida (the "State ") that it understands a portion of the goods and services under this Agreement are being funded with monies made available by the Federal Aviation Administration (FAA) as such contains provisions commonly known as "Buy American" that require all of the iron, steel, and manufactured goods used in the project be produced in the United States ( "Buy American Requirements ") including iron, steel, and manufactured goods provided by the CONTRACTOR pursuant to this Agreement. The CONTRACTOR hereby represents and warrants to and for the benefit of the OWNER and the State that (a) the CONTRACTOR has reviewed and understands the Buy American Requirements, (b) all of the iron, steel, and manufactured goods used in the project will be and/or have been produced in the United States in a manner that complies with the Buy American Requirements, unless a waiver of the requirements is approved, and (c) the CONTRACTOR will provide any further verified information, certification or assurance of compliance with this paragraph, or information necessary to support a waiver of the Buy American Requirements, as may be requested by the OWNER or the State. Notwithstanding any other provision of this Agreement, any failure to comply with this paragraph by the CONTRACTOR shall permit the OWNER or State to recover as damages against the CONTRACTOR any loss, expense or cost (including without limitation attorney's fees) incurred by the OWNER or State resulting from any such failure (including without limitation any impairment or loss of funding, whether in whole or in part, from the State or any damages owed to the State by the OWNER). While the CONTRACTOR has no direct contractual privity with the State, as a lender to the OWNER for funding of its project, the OWNER and the CONTRACTOR agree that the State is a third -party beneficiary and neither this paragraph (nor any other provision of this Agreement necessary to give this paragraph force or effect) shall be amended or waived without the prior written consent of the State. ARTICLE 12. ACCEPTANCE OF CONDITIONS BY CONTRACTOR. CONTRACTOR has, and shall maintain throughout the term of this Agreement, appropriate licenses. Proof of such licenses and approvals shall be submitted to the COUNTY upon request. ARTICLE 13. FINANCIAL RECORDS OF CONTRACTOR. CONTRACTOR shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently 5 applied. Each party to this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four (4) years following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that monies paid to CONTRACTOR pursuant to this Agreement were spent for purposes not authorized by this Agreement, the CONTRACTOR shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to CONTRACTOR. ARTICLE 14. PUBLIC ACCESS. Pursuant to Florida Statute §119.0701, CONTRACTOR and its subcontractors shall comply with all public records laws of the State of Florida, including but not limited to: (a) Keep and maintain public records that ordinarily and necessarily would be required by OWNER in the performance of this Agreement. (b) Provide the public with access to public records on the same terms and conditions that OWNER would provide the records and at a cost that does not exceed the cost provided in Florida Statutes, Chapter 119 or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to OWNER all public records in possession of the contractor upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to OWNER in a format that is compatible with the information technology systems of OWNER. ARTICLE 15. HOLD HARMLESS, INSURANCE AND LIMITATION OF LIABILITY. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, CONTRACTOR shall defend, indemnify and hold the OWNER and the OWNER's elected and appointed officers and employees harmless from and against (i) any third -party claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any reasonable costs or expenses that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of CONTRACTOR or any of its employees, agents, sub - contractors or other invitees during the tenor of this AGREEMENT, (B) the negligence or willful misconduct of CONTRACTOR or any of its employees, agents, sub - contractors or other invitees, or (C) CONTRACTOR's default in respect of any of the obligations that it undertakes under the terms of this AGREEMENT, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the OWNER or any of its employees, agents, contractors or invitees (other than CONTRACTOR). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this AGREEMENT, this section will survive the 6 expiration of the term of this AGREEMENT or any earlier termination of this AGREEMENT. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this agreement. Failure of CONTRACTOR to comply with the requirements of this section shall be cause for immediate termination of this agreement. Prior to execution of this agreement, CONTRACTOR shall furnish the OWNER Certificates of Insurance indicating the minimum coverage limitations in the following amounts: Workers' Compensation (1) Worker's Compensation Statutory (2) Employer's Liability $1,000,000 Commercial General Liability including Premise /Operations; Explosion, Collapse and Underground Property Damage; Products /Completed Operations, Broad Form Contractual, Independent Contractors; Broad Form Property Damage; and Personal Injury liabilities: (1) Bodily Injury: $1,000,000 Each Occurrence $1,000,000 Annual Aggregate (2) Property Damage: $1,000,000 Each Occurrence $1,000,000 Annual Aggregate (3) Personal Injury: $1,000,000 Annual Aggregate Comprehensive Automobile Liability including all owned (private and others), hired and non -owned vehicles: (1) Bodily Injury $1,000,000 Each Person $1,000,000 Each Accident (2) Property Damage $1,000,000 Each Occurrence MONROE COUNTY BOARD OF COUNTY COMMISSIONERS MUST BE NAMED ADDITIONAL INSURED - ADD RIDER #I- WITH RESPECT TO LIABILITY ARISING OUT OF OPERATIONS PERHORMED FOR THEM, BY OR ON BEHALF OF CONTRACTOR, BUT ONLY TO THE EXTENT OF DAMAGES CAUSED BY THE CONTRACTOR'S NEGLIGENCE ON ALL LIABILITY POLICIES EXCEPT WORKER'S COMPENSA TION AND EMPLOYER'S LIABILITY. CERTIFICATES OF INSURANCE. Original Certificates of Insurance shall be provided to the COUNTY at the time of execution of this Agreement and certified copies provided if 7 requested. Each policy certificate shall be endorsed with a provision that not less than thirty (30) calendar days' written notice shall be provided to the COUNTY before any policy or coverage is canceled or restricted. The underwriter of such insurance shall be qualified to do business in the State of Florida. If requested by the County Administrator, the insurance coverage shall be primary insurance with respect to the COUNTY and its officials- ADD RIDER #3- except to the extent any loss, claim or action is caused by the negligence of one or more of the additional insured. NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES OR THEORY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS OR LOSS OF GOOD WILL) SUFFERED OR INCURRED IN CONNECTION WITH PERFORMANCE OR NON - PERFORMANCE UNDER THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AMOUNT OF EACH PARTY'S LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL BE CAPPED AT AND UNDER NO CIRCUMSTANCES WILL EXCEED $250,000. ARTICLE 16. NON - WAIVER OF IMMUNITY. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of COUNTY and CONTRACTOR in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any Agreement entered into by the COUNTY be required to contain any provision for waiver. ARTICLE 17. INDEPENDENT CONTRACTOR. At all times and for all purposes under this agreement CONTRACTOR is an independent contractor and not an employee of the Board of County Commissioners of Monroe County. No statement contained in this agreement shall be construed so as to find CONTRACTOR or any of his employees, sub - contractors, servants, or agents to be employees of the Board of County Commissioners of Monroe County. ARTICLE 18. NONDISCRIMINATION. CONTRACTOR agrees that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. CONTRACTOR agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act 8 of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to COUNTY and CONTRACTOR to, or the subject matter of, this Agreement. ARTICLE 19. ASSIGNMENT /SUBCONTRACT. CONTRACTOR shall not assign or subcontract its obligations under this agreement to others, except in writing and with the prior written approval of the Board of County Commissioners of Monroe County and CONTRACTOR, which approval shall be subject to such conditions and provisions as the Board may reasonably deem necessary. This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee or sub shall comply with all of the provisions of this agreement. Unless expressly provided for therein, such approval shall in no manner or event be deemed to impose any additional obligation upon the board. ARTICLE 20. COMPLIANCE WITH LAW AND LICENSE REQUIREMENTS. In providing all services /goods pursuant to this agreement, CONTRACTOR shall abide by all laws of the Federal and State government, ordinances, rules and regulations pertaining to, or regulating the provisions of, such services, including those now in effect and hereinafter adopted. Compliance with all laws includes, but is not limited to, the immigration laws of the Federal and State government. Any violation of said statutes, ordinances, rules and regulations shall constitute a material breach of this agreement and shall entitle the Board to terminate this Agreement. CONTRACTOR shall possess proper licenses to perform work in accordance with these specifications throughout the term of this Agreement. ARTICLE 21. DISCLOSURE AND CONFLICT OF INTEREST. CONTRACTOR represents that it, its directors, principles and employees, presently have no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required by this contract, as provided in Section 112.311, et. seq., Florida Statutes. OWNER agrees that officers and employees of the OWNER recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of 9 public position, conflicting employment or contractual relationship; and disclosure or use of certain information. OWNER and CONTRACTOR warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, 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 it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the CONTRACTOR agrees that the OWNER shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. ARTICLE 22. NO PLEDGE OF CREDIT. CONTRACTOR shall not pledge the OWNER's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. CONTRACTOR further warrants and represents that it has no obligation or indebtedness that would impair its ability to fulfill the terms of this contract. ARTICLE 23. NOTICE REQUIREMENT. Any notice required or permitted under this agreement shall be in writing and hand delivered or mailed, postage prepaid, to the other party by certified mail, returned receipt requested, to the following: FOR COUNTY Don DeGraw 9400 Overseas Highway, Suite 200 Marathon, FL 33050 FOR CONTRACTOR Douglas N. Higgins, Inc. 339 Travis Pointe Road, Suite A Ann Arbor, Michigan 48108 And County Attorney 1111 12th Street, Suite 408 Key West, FL 33040 ARTICLE 24. TAXES. OWNER is exempt from payment of Florida State Sales and Use taxes. CONTRACTOR shall not be exempted by virtue of the OWNER's exemption from paying sales tax to its suppliers for materials used to fulfill its obligations under this contract, nor is CONTRACTOR authorized to use the OWNER's Tax Exemption Number in securing such materials. CONTRACTOR shall be responsible for any and all taxes, or payments of withholding, related to services rendered under 10 this agreement. ARTICLE 25. TERMINATION. a. The OWNER may terminate this Agreement with or without cause prior to the commencement of work. b. The OWNER or CONTRACTOR may terminate this Agreement for cause with seven (7) days notice to CONTRACTOR and OWNER. Cause shall constitute a breach of the obligations of either party to perform the obligations enumerated under this Agreement. C. Either of the parties hereto may cancel this agreement without cause by giving the other party sixty (60) days written notice of its intention to do so. ARTICLE 26. GOVERNING LAW, VENUE, INTERPRETATION, COSTS, AND FEES. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to Agreements made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the OWNER and CONTRACTOR agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. ARTICLE 27. MEDIATION. The OWNER and CONTRACTOR agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. ARTICLE 28. SEVERABILITY. If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The OWNER and CONTRACTOR agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. ARTICLE 29. ATTORNEY'S FEES AND COSTS. OWNER and CONTRACTOR agree that in the event any cause of action or administrative 11 proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees in both trial and appellate proceedings. Each party agrees to pay its own court costs, investigative, and out -of- pocket expenses whether it is the prevailing party or not, through all levels of the court system. ARTICLE 30. ADJUDICATION OF DISPUTES OR DISAGREEMENTS. OWNER and CONTRACTOR agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of OWNER and CONTRACTOR. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of OWNER and CONTRACTOR, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. ARTICLE 31. COOPERATION. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, OWNER and CONTRACTOR agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. OWNER and CONTRACTOR specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. ARTICLE 32. BINDING EFFECT. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of OWNER and CONTRACTOR and their respective legal representatives, successors, and assigns. ARTICLE 33. AUTHORITY. Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary OWNER and corporate action, as required by law. ARTICLE 34. CLAIMS FOR FEDERAL OR STATE AID. CONTRACTOR and OWNER agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. ARTICLE 35. PRIVILEGES AND IMMUNITIES. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the 12 OWNER, when performing their respective functions under this Agreement within the territorial limits of the OWNER shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the OWNER. ARTICLE 36. LEGAL OBLIGATIONS AND RESPONSIBILITIES. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the OWNER, except to the extent permitted by the Florida constitution, state statute, and case law. ARTICLE 37. NON - RELIANCE BY NON - PARTIES. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the OWNER and the CONTRACTOR agree that neither the OWNER nor the CONTRACTOR or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. ARTICLE 38. ATTESTATIONS. CONTRACTOR agrees to execute such documents as the OWNER may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. ARTICLE 39. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of OWNER in his or her individual capacity, and no member, officer, agent or employee of OWNER shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. ARTICLE 40. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. ARTICLE 41. SECTION HEADINGS. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not 13 be used in the interpretation of any provision of this Agreement. ARTICLE 42. PUBLIC ENTITY CRIME INFORMATION STATEMENT. "A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a Construction Manager, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." ARTICLE 43. MUTUAL REVIEW. This agreement has been carefully reviewed by CONTRACTOR and the OWNER; therefore, this agreement is not to be construed against either party on the basis of authorship. ARTICLE 44. INCORPORATION OF BID DOCUMENTS. The terms and conditions of the bid documents are incorporated by reference in this contract agreement. ARTICLE 45. ANNUAL APPROPRIATION. The OWNER's performance and obligation to pay under this agreement is contingent upon an annual appropriation by the Board of County Commissioners. In the event that the OWNER funds on which this Agreement is dependent are withdrawn, this Agreement is terminated and the OWNER has no further obligation under the terms of this Agreement to the CONTRACTOR beyond that already incurred by the termination date. THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. 14 IN WITNESS WHEREOF, OWNER and CONTRACTOR hereto have executed this Agreement on the day and date first written above in four (4) counterparts, each of which shall, without proof or accounting for the other counterparts, be deemed an original contract. BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: Mayo Witnesses for CONTRACTOR: DOUGLAS N. HIGGINS, INC. Signature Signature of pe n authorized to legally bind d -uldi z 6 � � Corporation Pri Name Date: 1 001 0 .2 Signature PC N l►' � Pridt Na e _ Date: Note: If CONTRACTOR is a corporation, an affidavit giving the principal the right to sign the Agreement must accompany the executed Agreement. 15 Date: � 0 ���5 A CERTIFICATE OF LIABILITY INSURANCE DATE(MM /DDIY) YYY 10/112015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER Hylant Group Inc - Ann Arbor 24 Frank Lloyd Wright Dr J4100 Ann Arbor MI 48105 ONTACT NAME: PHONE F A A C No E-MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC III GENERAL LIABILITY INSURER A :Cont e nental insurance Company 35989 U1061922047 INSURED HIGGI - 5 INSURER B :Cont e nental Casualty Company �0443 INSURER C :Valley Forge Insurance Co W508 Douglas N. Higgins Inc. 3390 Travis Pointe, Suite A Ann Arbor MI 48108 INSURER D :Greenwich Insurance Company INSURER E: $500,000 INSURER F: $15,000 COVERAGES CERTIFICATE NUMBER: 420967552 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. EFF POLICY EXP 711 TYPE OF INSURANCE INSR WVD POLICY NUMBER MM /DDY MM/DDIIYYYY LIMITS A GENERAL LIABILITY U1061922047 4/1/2015 4/1/2016 EACH OCCURRENCE $1,000,000 X COMMERCIAL GENERAL LIABILITY PREMISES Ea occurrence $500,000 MED EXP (Any one person $15,000 CLAIMS -MADE F] OCCUR PERSONAL S ADV INJURY $1,000,000 X Includes XCU GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $2,000,000 $ POLICY I X I PRO- LOC I A AUTOMOBILE LIABILITY U1061922033 4/1/2015 4/1/2016 Ea accident $1,000,000 X BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROP C DAMAGE $ NON -OWNED HIRED AUTOS AUTOS $ B X UMBRELLA LIAB X OCCUR U1061922050 4/1/2015 4/1/2016 EACH OCC URRENCE $10,000,000 AGGREGATE $10,000,000 EXCESS LIAB CLAIMS -MADE DIED X I RETENTION$O $ C WORKERS COMPENSATION WC434990543 4/1/2015 4/1/2016 X I A I I OTH- AND EMPLOYERS' LIABILITY YIN E.L. EACH ACCIDENT $500,000 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? FN ] NIA E.L. DISEASE - EA EMPLOYEE $500,000 (Mandatory In NH) N yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $1,000,000 D Professional/ PECO025095 12/10/2014 12/10/2015 2,000,000 Each Claim Pollution 4,000,000 Aggregate DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space Is required) Job: SEWER LATERAL CONSTRUCTION AGREEMENT Additional Insured for General Liability and Automobile Liability on a primary/non - contributory basis as required by written contract- Monroe County Board of County Commissioners, its employees, officials, agents and volunteers L,AIVGtLLA I IUN Monroe County Board of Commissioners 500 Whitehead Street Key West FL 33040 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED \ REPRESENTATIVE p D O 4r"yt ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD