Lynch PavingSECTION VII
PW 02- 00 -02 -16
AGREEMENT
This AGREEMENT is dated as of the 5th day of April in the year 2016, between the
City of Okeechobee (CITY) and Lynch Paving & Construction Co., Inc.
(CONTRACTOR).
CITY and CONTRACTOR, in consideration of the mutual covenants hereinafter
set forth, agree as follows:
ARTICLE 1. WORK
1.1 Work to be completed under this Contract is: SW 8th Street & SW 2nd
Avenue Intersection Improvement, PW 02- 00 -02 -16 The project generally
involves the following: construction of drainage repairs, milling, resurfacing and
ADA improvements at the intersection of SW 8t h Street and SW 2nd Avenue.
ARTICLE 2. PUBLIC WORKS DIRECTOR
2.1 . PUBLIC WORKS DIRECTOR as named in the Contract Documents shall
mean:
The City of Okeechobee's Public Works Director
55 SE 3rd Avenue
Okeechobee, FL 34974
ARTICLE 3. CONTRACT TIME
3.1 The Contractor shall begin work within Thirty (30) calendar days after the
signing, execution and delivery of written Notice to Proceed, and shall guarantee
completion of the Contract on or before Thirty (30) calendar days from the date of
notice to proceed. This is a grant funded project whereas all work shall be
completed by May 31, 2016. Commencement of the Work by the Contractor
shall be deemed a waiver of this notice. The Work shall be conducted in such a
manner and with sufficient labor, materials, tools, and equipment necessary to
complete the Work within the time limit set forth in the Contract. In the event the
construction schedule as set forth in the Contract documents is changed, the
Contractor shall notify the City, in writing, of the change in schedule. Such
schedule change shall not, however, extend the time for completion unless
approved by the City in writing.
In the sole opinion of the City, should the organization of the Contractor, or its
management, or the manner of carrying on the Work be manifestly incompetent, or
inadequate to do the Work specified within the stated time, then the City shall have
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the right to take charge of the Work and finish it and provide the labor, materials
and equipment necessary to complete the Work as planned within the required
time and to charge the cost of all such Work against the Contractor and his, or its
Surety shall be held responsible therefore. The Contractor fully understands and
agrees that the City shall not pay for any obligation incurred or expenditure made
by the Contractor prior to the effective date of the notice to proceed described
above, unless the City authorizes such payment in writing.
As the Contractor's sole and exclusive remedy for delay, the City may grant an
extension of the contract time, when a critical item of Work is delayed by any
factors contemplated or not contemplated at the time of the bid. Such extension of
time may be allowed for delays occurring during the contract time period or
authorized extension of the contract time. All claims for extension of time shall be
made in writing to the City. Claims for delay due to inclement weather (i.e.,
beyond the 10 year mean average) shall be made by the 10th day of the month
following the month of the delay. All other claims shall be made no more than
twenty (20) days after the commencement of the delay. Claims made beyond
these time limits shall be null and void. Requests for extension of time shall be
fully documented and shall include copies of daily Togs, letters, shipping orders,
delivery tickets, and other supporting information. In case of a continuing cause of
delay only one (1) claim is necessary. Normal working weeks are based on a five
(5) day week. All authorized extensions of time shall only be done by Change
Order.
3.2 City and Contractor recognize that Projects may have important
environmental and economical significance and, as required for compliance with
Federal and State Regulations, that time is of the essence of this Agreement, and
that the City will suffer direct financial loss if Projects are not completed as
described in paragraph 3.1 Accordingly, Contractor agrees to pay City as
liquidated damages the amount established in the following schedule per day for
each day that Projects are not completed in accordance with this Article 3,
Paragraph 3.1.
Original Contract Amount Daily Charge per Calendar Day
$ 500,000 and under $ 500.00
Over $500,000 but less than $1,000,000 $ 750.00
Over $1,000,000 but less than $2,500,000 $ 1,000.00
Over $2,500,000 but less than $5,000,000 $ 1,250.00
3.3 In addition to the provision for payment to the City by contractor of
liquidated damages due to the failure of the contractor to complete each project
within the time stipulated in each project's notice to proceed, or within such
additional time as may have been granted by the Public Works Director, the City
may also recover from contractor amounts paid by the City for damages suffered
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by third parties as a result of contractor's failure to complete each project within
the time stipulated, or within such additional time as may have been granted by
the Public Works Director, unless the failure to timely complete the project was
caused by the City's acts or omissions.
3.4 Liquidated damages are cumulative and additive and represent a
reasonable estimate of City's expenses for extended delays and administrative
costs associated with such delay. In addition to the to the liquidated damage
amounts, there will be additional amounts charged to the contractor for all delay
damages incurred by the City as a result of unavoidable delays by the contractor.
These actual delay damages will include, but not be limited to, inspection,
engineering services, delay damage settlements or awards, penalties, and
professional fees incurred in connection with such settlements, awards or
penalties and fines imposed by regulatory agencies, contract damages and loss of
use.
Article 4. Contract Price
4.1 City shall pay contractor for performance of the work in accordance with the
unit prices listed in the contract documents contractor's bid form on a project by
project basis.
4.2 City shall pay the contractor, or receive as credit, for changes or
adjustments in the work made in accordance with the General Conditions, on the
basis of the unit prices indicated on the bid form.
Article 5. Measurement and payment
5.1 Payment for the work, as further specified herein, shall include
compensation to be received by the contractor for furnishing tools, equipment,
supplies, and manufactured articles, and for labor, operations, and incidentals
appurtenant to the items of work being described, as necessary to complete the
various items of the work in accordance with the requirements of the contract
documents, including appurtenances thereto, and including all costs of compliance
with the regulations of public agencies having jurisdiction, including Safety and
Health Requirements of the Occupational Safety and Health Administration of the
U.S. Department of Labor (OSHA). No separate payment will be made for any
item that is not specifically set forth in the Bid Schedule, and all costs therefore
shall be included in the prices named in the Bid Schedule for the various
appurtenant items of work.
5.2 The total Unit Bid Price for each project shall cover all work required by the
Contract Documents. All costs in connection with the proper and successful
completion of the work, including furnishings all materials, equipment, supplies,
and appurtenances; providing all construction equipment, and tools; and
performing all necessary labor and supervision to fully complete the Work, shall be
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included in the unit bid prices. All related and necessary work not specifically set
forth as a pay item in the Bid shall be considered a subsidiary obligation of
Contractor and all costs in connection therewith shall be included.
5.3 Payment for all work done in compliance with the Contract Documents,
inclusive of furnishings all manpower, equipment, materials, and performance of
all operations relative to construction of this project, will be made under the Unit
Bid Price.
5.4 The city reserves the right to alter the Drawings, modify incidental work if
necessary, and increase or decrease quantities of work to be performed in
accordance with such changes, including deduction or cancellation of any one or
more of the chapters or items. Changes in the work shall not be considered as a
waiver of any conditions of the Contract nor invalidate any provisions thereof.
When changes result in changes in the quantities of work to be performed, and
proposed change will cause substantial inequity to the City or Contractor the
applicable unit prices shall be equitably adjusted by change order.
5.5 Quantities necessary to complete the work as shown on the Drawings or as
specified herein shall govern over those shown in the Proposal or Bid Documents.
The Contractor shall take no advantage of any apparent error or omission in the
Drawings or Specifications, and the Public Works Director shall be permitted to
make corrections and interpretations as may be deemed necessary for fulfillment
of the intent of the Contract Documents.
5.6 The quantities for payment, other than Final Payment, under this Contract
shall be determined for actual measurement of the completed items, in place,
ready for service and accepted by the City, in accordance with the applicable
method of measurement therefore contained herein. A representative of the
Contractor shall witness all field measurements.
5.7 All estimated quantities stipulated in the Bid Form or other Contract
Documents are approximate and supplied for the sole purpose of providing Bidder
with a basis which will be used to determine the Base Bid and to obtain unit prices
for approvals of progress payments for the Work done. Actual quantities which will
be ordered by City may vary from those on the Bid Form(s). The Contractor's
attention is directed to the items of work for which no unit price is set. All work
shown on the drawings as outlined in the specifications is to be completed in all
respects, and the cost of all miscellaneous and associated work to any specific
items shall be included in the Unit Prices.
5.8 All quantities, for the submittal of payments, shall be measured and
tabulated by both the Public Works Director, or representative, and Contractor.
Requests for payment and supporting data shall be prepared by the Contractor
and given to the Public Works Director sufficiently in advance of payment date to
permit thorough checking of all quantities.
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5.9 The Contractor shall furnish the Public Works Director whatever assistance
is required, laborers, clerks and records that will enable the Public Works Director
to expeditiously check all estimates and especially the final quantities of the
project.
5.10 Contractor shall submit Applications for Payment in accordance with Article
9 of the General Conditions. Applications for Payment will be processed by Public
Works Director as provided in the General Conditions. City shall make progress
payments on the basis of Contractor's Applications for Payment as recommended
by the Public Works Director, in accordance with Article 9 of the General
Conditions. Prior to Final Completion of the Work of each individual chapter
progress payments will be in an amount equal to ninety (90 %) percent of the Work
completed. Upon Final Completion and Acceptance of the Work of each individual
Chapter, in accordance with Article 9 of the General Conditions, City shall pay the
remainder of the Contract Price, as provided in Article 9.
Article 6. Retainage in anticipation of liquidated damages
6.1 City may withhold additional retainage if Contractor is behind schedule and
it is anticipated by City that each portion of the Work will not be completed within
the Contract Time, as specified in the Notice to Proceed.
6.2 City may consider Contractor's progress schedules as amended, and
compliance or non - compliance therewith and other factors, including Contractor's
failure to provide a schedule and /or to update the same.
Article 7. Contractor's representations
In order to induce City to enter into this Agreement, Contractor makes the
following representations:
7.1 Contractor has familiarized himself with the nature and extent of the
Contract Documents. Work locality, weather, and with all local conditions and
federal, state, and local laws ordinances, rules, policies, and regulations that in
any manner affect cost, progress, or performance of the work.
7.2 Contractor has studied carefully all reports of investigations and tests of
subsurface and latent physical conditions of the site or otherwise affecting cost,
progress, or performance of the work which were relied upon by the Public Works
Director in the preparation of the Drawings and Specifications.
7.3 Contractor has made or caused to be made examinations, investigations,
and tests, and studies of such reports and related data, in addition to those
referred to in Paragraph 7.2 above as he deems necessary for the performance of
the work at the contract price, within the contract time, and in accordance with the
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other terms and conditions of the contract documents, and no additional
examinations, investigations, tests, reports or similar data are or will be required
by the contractor for such purposes.
7.4 Contractor has correlated results of such observations, examinations,
investigations, tests, reports, and data with the terms and conditions of the
contract documents.
7.5 Contractor has given Public Works Director written notice of all conflicts,
errors, or discrepancies that he has discovered in the contract documents, and the
written resolution thereof by Public Works Director is acceptable to the contract.
7.6 Public Records Act Florida Statute Chapter 119 Compliance. Contractor
understands and agrees that records and documents prepared by Contractor or
the City for the performance of services may be subject to the Public Records Act,
Florida Statute, Chapter 119 and may be required to be produced as provided in
said statute. The records subject to Chapter 119 may include, in addition to
prepared documents, such communication as e- mails, text messages, inter -office
memorandums, social media, and photographs or images; a person or entity may
request public records via e -mail, or by oral or written request, and a response to
such a request must be prompt; it is the responsibility of the Contractor to
establish an in -house policy in reference to such records, and to identify and retain
such communications in the normal course of business in the event a request is
made to produce these records.
Article 8 Punchlist Procedures
Further to Florida Statutes §218.735(7)(a)(i), Punchlist procedures to render the
Work complete, satisfactory and acceptable are established as follows:
8.1 Within five (5) days of Substantial Completion of the construction services
purchased as defined in the Contract, Contractor shall schedule a walkthrough
with City ( "Initial Walkthrough" a /k /a "IW "). The purpose of the IW is to develop a
preliminary checklist ( "Checklist ") of items to be performed by the Contractor,
based upon observations made jointly between the Contractor and City during the
IW. The IW is to occur within ten (10) days of Substantial Completion of the Work
as defined by the Contract, again predicated upon the Contractor's timely initiation
of a request for the IW. At its option, City may conduct the IW with its Field
Inspector.
8.2 Contractor shall endeavor to address and complete as many items as
possible noted on the Checklist either during the IW itself, or thereafter for a period
of fifteen (15) days from the date of the IW.
8.3 No later than fifteen (15) days following the scheduled IW, Contractor shall
again initiate and request a second walkthrough of the Project with the City. The
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purpose of this second walkthrough is to identify which items remain to be
performed from the IW Checklist and to supplement that list as necessary (based,
for example, upon work which may have been damaged as a result of the
Contractor's performance of completion of items contained on the IW Checklist)
and for the purpose of developing a joint Final Punchlist.
8.4 The intent of this section is for the City and the Contractor to cooperate to
develop a Final Punchlist to be completed no later than five (5) days from the date
of reaching Substantial Completion of the construction services purchase as
defined in the Contract.
8.5 In no event may the Contractor request payment of final retainage under
Florida Statutes §218.735(7) (d) until the Contractor considers the Final Punchlist
to be 100% complete.
8.6 Contractor agrees to complete the Final Punchlist items within fifteen (15)
days of the date of its issuance by the City.
8.7 Contractor acknowledges and agrees that no item contained on the Final
Punchlist shall be considered a warranty item until such time as (a) the Final
Punchlist is 100% complete, and (b) the City has been able to operate or utilize
the affected Punchlist item for an additional period of fifteen (15) days.
8.8 Contractor acknowledges and agrees that the City may, at its option, during
performance of the Work and prior to Substantial Completion, issue lists of
identified non - conforming or corrective work for the Contractor to address. The
intent of any such the City generated lists prior to Substantial Completion is to
attempt to streamline the Punchlist process upon achieving Substantial
Completion, and to allow for the Contractor to address needed areas of corrective
work as they may be observed by the City during performance of the Work.
8.9 Contractor acknowledges and agrees that in calculating 150% of the
amount which may be withheld by the City as to any Final Punchlist item for which
a good faith basis exists as to it being complete, as provided for by Florida
Statutes §218.735(7)(d), the City may include within such percentage calculation
its total costs for completing such item of work, including its administrative costs as
well as costs to address other services needed or areas of work which may be
affected in order to achieve full completion of the Final Punchlist item. Such
percentage shall in no event relate to the schedule of value associated with such
Work activity, but rather total costs are based upon the value (i.e. cost) of
completing such Work activity based upon market conditions at the time of Final
Punchlist completion.
Article 9. Contract Documents
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The contract documents which comprise the entire agreement between the City
and the contractor are made a part hereof and consist of the following:
This Agreement
• Certificates of Insurance
• Payment Bond and Performance Bond
• Notice of Award
• Notices to Proceed
• General Conditions
• Technical Specifications, as applicable, listed in the Table of Contents thereof.
• Drawings, for each project, consisting of a cover sheet and consisting of the sheets
as listed in the index thereof.
• Addenda numbers _ to _, inclusive.
• Contractor's Bid Forms (including documentation accompanying the Bid and
documentation prior to Notice of Award).
• Documentation submitted by contractor prior to Notice of Award.
• Any modification, including Change Orders and Field Orders, duly delivered after
execution of Agreement.
• Call for Bids, Instructions to Bidders, Proposal, Bid Forms, Payment and
• Performance, Bonds, and Application for Payment.
There are no contract documents other than those listed above in this Article 8.
The contract documents may only be altered, amended, or replaced by a
modification (as defined in Section 1 of the general conditions).
Article 10. Miscellaneous
10.1 Terms used in this agreement which are defined in Article 1 of the general
conditions shall have the meanings indicated in the general conditions.
10.2 No assignments by a party hereto of any rights under or interests in the
contract documents will be binding on another party hereto without the written
consent of the party sought to be bound, and any such assignment shall be void
and of no effect; and specifically but without limitation, monies that may become
due and monies that are due may not be assigned without such consent (except to
the extent that the effect of this restriction may be limited by law and unless
specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility
under the contract documents.
10.3 City and contractor each binds himself, his partners, successors, assigns,
and legal representatives to the other party hereto, his partners, successors,
assigns, and legal representatives, in respect to all covenants, agreements, and
obligations contained in the contract documents.
Article 11. Indemnification
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"To the fullest extent permitted by law the Recipient's contractor shall indemnify
and hold harmless the Recipient, the State of Florida, Department of
transportation, and its officers and employees, from liabilities, damages, losses
and costs, including, but not limited to, reasonable attorney's fees, to the extent
caused by the negligence, recklessness, or intentional wrongful misconduct of
contractor and persons employed or utilized by contractor in the performance of
this Contract.
This indemnification shall survive the termination of this Agreement. Nothing
contained in this paragraph is intended to nor shall it constitute a waiver of the
State of Florida and the Recipient's sovereign immunity.
To the fullest extent permitted by law, the Recipient's consultant shall indemnify
and hold harmless the Recipient, the State of Florida, Department of
Transportation, and its officers and employees, from liabilities, damages, losses
and costs, including, but not limited to, reasonable attorney's fees, to the extent
caused, in whole or in part, by professional negligence, error or omission,
recklessness, or intentional wrongful conduct of the consultant or persons
employed or utilized by the consultant in the performance of the Agreement.
This indemnification shall survive the termination of this Agreement. Nothing
contained in this paragraph is intended to nor shall it constitute a waiver of the
State of Florida and the Recipient's sovereign immunity.
Article 12. E- Verification
Vendors /Contractors shall utilize the U.S. Department of Homeland Security's E-
Verify system to verify the employment eligibility of all new employees hired by the
Vendor /Contractor during the term of the contract.
Vendors /Contractors shall expressly require any subcontractors performing work
or providing services pursuant to the state contract to likewise utilize the U.S.
Department of Homeland Security's E- Verify system to verify the employment
eligibility of all new employees hired by the subcontractor during the contract term.
In witness whereof, the parties hereto have signed two (2) copies of this
agreement. At least one counterpart each has been delivered to the City and
contractor. All portions of the contract documents have been signed or identified
by City and contractor or by Public Works Director on their behalf.
This agreement will be effective on
City
Corporate Seal Corporate Seal
City of Okeechobee
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Project No. PW 02- 00 -02 -16
By:
t� -
James E. Kirk Mayor
Attest:
Lane Gamiote:, CMC
City Clerk
Addresses for giving notices:
City
City of Okeechobee
55 SE 3rd Avenue
Okeechobee, FL 34974
By:�t''
Name: kt-iii4 / J (► r k^
Title: \if i,n_-t` , �� i +�_� e
Attest:
Title: ALL 41_
Contractor
-P. o . QO L 1944'1, Qj kaiia e-e1 EL.
3L-1oZ3
ale('
. -(1 % 5C' It ( t )
Florida State Contractors License No:
Approved as to form and regality for the use and reliance of the City of Okeechobee only.
John R. Cook, City Attorney
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