R24-163 1 RESOLUTION NO. R24-163
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, AWARDING ITB NO. CS24-038 FOR ROAD RESURFACING
5 AND PEDESTRIAN CROSSING PROJECTS FOR GOLFVIEW HARBOR AND THE
6 MEADOWS TO ATLANTIC SOUTHERN PAVING AND SEALCOATING, LLC;
7 APPROVING A CONSTRUCTION CONTRACT WITH ATLANTIC SOUTHERN
8 PAVING AND SEALCOATING, LLC FOR AN AMOUNT OF $853,788.40 PLUS A
9 10% CONTINGENCY AMOUNT OF $85,378.84 FOR A TOTAL EXPENDITURE
10 NOT TO EXCEED OF $939,167.24; PROVIDING AN EFFECTIVE DATE; AND
11 FOR ALL OTHER PURPOSES.
12
13 WHEREAS, On May 1, 2024, the Procurement Division issued ITB No. CS24-038 for Road
14 Resurfacing and Pedestrian Crossing Projects for Golfview Harbor and The Meadows; and
15 WHEREAS, On July 1, 2024, the Procurement Division received and tabulated four (4)
16 proposals for Road Resurfacing and Pedestrian Crossing Project; subsequently it was determined
17 to recommend this award to Atlantic Southern Paving and Sealcoating LLC ("Vendor"); and
18 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in
19 the best interests of the citizens and residents of the City to award ITB No. CS24-038 for Road
20 Resurfacing and Pedestrian Crossing Projects for Golfview Harbor and The Meadows to Atlantic
21 Southern Paving and Sealcoating, LLC, and approve a Construction Contract with Atlantic
22 Southern Paving and Sealcoating, LLC for an amount of $853,788.40 plus a 10% contingency
23 amount of$85,378.84 for a total not to exceed contract sum of $939,167.24.
24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
25 BEACH, FLORIDA, THAT:
26 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
27 being true and correct and are hereby made a specific part of this Resolution upon adoption.
28 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
29 award ITB No. CS24-038 for Road Resurfacing and Pedestrian Crossing Projects for Golfview
30 Harbor and The Meadows to Atlantic Southern Paving and Sealcoating, LLC.
31 SECTION 3. The City Commission of the City of Boynton Beach, Florida, does hereby
32 approve a Construction Contract, between Southern Paving and Sealcoating, LLC and the City for
33 ITB No. CS24-038 for Road Resurfacing and Pedestrian Crossing Projects for Golfview Harbor and
34 The Meadows for an amount of $853,788.40 plus a 10% contingency amount of $85,378.84 for a
35 total estimated amount of $939,167.24 (the "Contract"), in form and substance similar to that
36 attached as "Exhibit A."
37 SECTION 4. The City Commission of the City of Boynton Beach, Florida, hereby
38 authorizes the City Manager to execute the Contract and such other related documents as may
39 be necessary to accomplish the purpose of this Resolution.
40 SECTION 5. One fully-executed original of the Contract shall be retained by the City
41 Clerk as a public record of the City. A copy of the fully-executed Contract shall be provided to
42 Kevin Ramsey and Michael Dauta to forward to the Vendor.
43 SECTION 6. This Resolution shall take effect in accordance with law.
44
45 [signatures on following page]
46 PASSED AND ADOPTED this 16th day of July 2024.
47 CITY OF BOYNTON BEACH, FLORIDA
48 YES NO
49 Mayor—Ty Penserga -►44-
50
51 Vice Mayor—Aimee Kelley
52
53 Commissioner—Angela Cruz
54
55 Commissioner—Woodrow L. Hay
56
57 Commissioner—Thomas Turkin
58
59 VOTE
60 A
61 to"
63 Maylee ire 's, MPA, MC Ty --ns- •
64 City Cler May•
65
66 APPROVED AS TO FORM:
67 (Corporate Seal)
68
69 j etaZ L ��
70 Shawna G. Lamb
71 City Attorney
CONSTRUCTION CONTRACT
ROAD RESURFACING AND PEDESTRIAN CROSSING PROJECTS
THIS AGREEMENT is entered into by and between the CITY OF BOYNTON BEACH,a
municipal corporation organized and existing under the laws of Florida,with a business address
of 100 East Ocean Ave., Boynton Beach, FL 33435, hereinafter referred to as "CITY", and
Atlantic Southern Paving and Sealcoating, LLC., authorized to do business in the State of
Florida, with a business address of 6301 W. Sunrise Blvd. Sunrise, FL. 33313, hereinafter
referred to as the"VENDOR," each a"Party" and collectively the"Parties."
WHEREAS, the CITY has selected the VENDOR to perform construction services
related the Road Resurfacing and Pedestrian Crossing Projects; and,
WHEREAS, at its meeting of July 16, 2024, by Resolution No. R24-163, the CITY
Commission approved this award to VENDOR and authorized the proper CITY officials to
execute this Agreement hereinafter referred to as Contract No.: CS24-038 and used
interchangeably with "contract".
NOW, THEREFORE, CITY and VENDOR, in consideration of the mutual covenants
hereinafter set forth, agree as follows:
Article 1. SCOPE OF WORK, VENDOR shall furnish all labor, materials, equipment, services
and incidents necessary to perform all "WORK" described in the Contract Documents (as
defined in Article 7 below)and related thereto for the Project.
Article 2. CONSULTANT, Shall mean the City of Boynton Beach, which has designed the
Project and will assume all duties and responsibilities and will have the rights and authority
assigned to CONSULTANT in connection with the completion of the WORK in accordance with
the Contract Documents.
Article 3.CONTRACT TIME:IERMINAT1Qft LLQUIDATELZDAMAGES.
3.1 Contract Time.The WORK will be substantially completed within 12701[two hundred
seventy]calendar days from the effective date of this Agreement,when the Contract Time
commences to run as provided in paragraph 2.3 of the General Conditions and completed
and ready for final payment in accordance with paragraph 14.9 of the General Conditions
within§Q calendar days from the date of Substantial Completion.
3.2 Termination for Convenience. This Agreement may be terminated by CITY for
convenience,upon providing fourteen(14)business days of written notice to VENDOR for
such termination. In the event of termination, VENDOR shall be paid its compensation
for services performed until the termination date,including services reasonably related to
termination. In the event that VENDOR abandons this Agreement or causes it to be
terminated,VENDOR shall indemnify CITY against loss pertaining to this termination.
3.3 Termination for Cause. In addition to all other remedies available to CITY, this
Agreement shall be subject to cancellation by CITY for cause, should VENDOR neglect
or fail to perform or observe any of the terms, provisions, conditions, or requirements
herein contained, if such neglect or failure shall continue for a period of thirty(30) days
after receipt by VENDOR of written notice of such neglect or failure.
3.4 Liquidated Damages.The CITY and VENDOR recognize and acknowledge that time
is of the essence of this Contract and that the CITY will suffer financial loss if the WORK
is not completed within the times specified in paragraph 3.1 above, plus any extensions
thereof allowed in accordance with Article 12 of the General Conditions. Each of the
parties acknowledges that it has attempted to quantify the damages which would be
suffered by the CITY in the event of the failure of VENDOR to perform in a timely manner,
but neither one has been capable of ascertaining such damages with certainty. CITY and
VENDOR also recognize and acknowledge the delays, expense, and difficulties involved
in proving in a legal preceding the actual loss suffered by the CITY if the WORK is not
completed on time. Accordingly, instead of requiring any such proof, the CITY and
VENDOR agree that as liquidated damages for delay (but not as a penalty) VENDOR
shall pay the CITY, One Thousand Dollars($1,000.00)for each day of that expires after
the time specified in paragraphs 3.1 for substantial completion until the WORK is
substantially complete. After Substantial Completion, if VENDOR shall neglect, refuse or
fail to complete the remaining WORK within the Contract Time or any proper extension
thereof granted by the CITY, VENDOR shall pay CITY Two Hundred and Fifty Dollars
($250.00] for each day that expires after the time specified in paragraph 3.1 for
completion and readiness for final payment.
Article 4. CONTRACT PRICE.
CITY shall pay VENDOR, for the faithful performance of the Contract, in lawful money of the
United States of America, and subject to the additions and deductions as provided in the
Contract Documents, a total sum as follows:
Based on the Contract prices shown in the Bid Form submitted to the CITY as subsequently
revised and as stated herein, a copy of such Bid Form being a part of the Contract
Documents,the aggregate amount of this Contract(obtained from either the lump sum price,
the application of unit prices to the quantities shown in the Bid Form or the combination of
both) not to exceed:
Eight Hundred and Fifty Three Thousand Seven Hundred and Eighty Eight Dollars and Forty Cents $853,788.40
(Written) (Numerical)
Article 5.PAYMENT PROCEDURES.
VENDOR shall submit Applications for Payment in accordance with Article 14 of the General
Conditions. CITY will process Applications for Payment as provided in the General Conditions.
1.1 Progress Payments. CONTRACT may submit an Application for Payment as
recommended by CONSULTANT,for WORK completed during the Project at intervals of
not more than once a month. All progress payments will be on the basis of the progress
of WORK measured by the schedule of values established in Paragraph 2.9.1 of the
General Conditions and in the case of Unit Price Work based on the number of units
completed or, in the event there is no schedule of values, as provided in the General
Requirements.
1.2 Prior to Substantial Completion progress payments will be made in an amount equal
to 90%of WORK completed,but,in each case,less the aggregate of payments previously
made and less such amounts as CONSULTANT shall determine, or CITY may withhold,
in accordance with paragraph 14.5 of the General Conditions.
1.3 VENDOR shall submit with each Application for Payment, an updated progress
schedule acceptable to the CITY and a Warranty of Title/Release of Liens relative to the
Work that is the subject of the Application. Each Application for Payment shall be
submitted to the CITY for approval. The CITY shall make payment to the VENDOR within
thirty (30) calendar days after approval by the CITY of VENDOR'S Application for
Payment and submission of an acceptable updated progress schedule.
1.4 Five percent(5) of all monies earned by the VENDOR shall be retained by the CITY
until Final Completion of the construction services purchased (defined as that point at
which one hundred (100) percent of the construction of the work as defined in the
Contract Schedule of Values has been performed under the contract by the VENDOR)
has been reached and acceptance by CITY.
1.5 The CITY may withhold, in whole or in part, payment to such extent as may
be necessary to protect itself from loss on account of:
a. Defective Work not remedied,
b. Claims filed or reasonable evidence indicating probable filing of claims by other
parties against VENDOR.
c. Failure of VENDOR to make payments properly to
SUBCONTRACTORS or for material or labor.
d. Damage to another VENDOR not remedied.
e. Liquidated damages and costs incurred by the CITY for extended
construction administration.
f. Failure of VENDOR to provide any document(s) required by the Contract
Documents.
When the above grounds are removed or resolved or VENDOR provides a surety bond or
consent of Surety, satisfactory to the CITY, which will protect the CITY in the amount
withheld, payment may be made in whole or in part.
1.6 Final Payment. Upon final completion and acceptance of the WORK in accordance
with paragraph 14.10 of the General Conditions, CITY shall pay the remainder of the
Contract Price as recommended by CONSULTANT as provided in paragraph 14.10.
1.7 All payments shall be governed by the Local Government Prompt Payment Act, as
set forth in Part VII, Chapter 218, Florida Statutes.
Article 6. RETAINAGE,
Within 30 calendar days after reaching the earlier of substantial completion or beneficial occupancy,
the City/Owner and the Vendor will inspect the work and develop a punch list covering those items
required to render complete, satisfactory, and acceptable construction services purchased by the
City/Owner. The punch list will include a schedule of values that provides the estimated cost to
complete each item on the punch list. If the City/Owner and Vendor are unable to agree on an item
or value,the City/Owner has final discretion whether to include an item and the amount for valuation
of the cost to complete each item on the punch list. Within 20 business days after the creation of the
punch list, the remaining contract balance, including retainage, will be paid to the Vendor less an
amount equal to 150 percent of the cost to complete the items on the punch list. Upon reaching final
acceptance for an item or all items,the 150 percent withheld for each item will be released with final
payment. For projects valued at $10 million or more, the 30-calendar day period may be extended
to 45 calendar days.
Article 7. CONTRACTOR GUARANTEE
VENDOR warrants all work, materials, and equipment shall be free from damages and/or
defects owing to faulty materials or workmanship for a period of one (1)year after completion
of the WORK covered by this Contract. The VENDOR, free of all costs to the CITY, shall
replace any part of the equipment, materials, or work included in this Contract, which proves
to be defective by reason of faulty materials, damages,and/or workmanship within twelve(12)
month period.
Article 8. CONTRACT DOCUMENTZ.
The Documents hereinafter listed shall form the Contract and they are as fully a part of the
Contract as if attached hereto:
8.1 Request for Bid
8.2 Instructions to Proposers/Bidders
8.3 Proposal Forms (including the Proposal, Schedule(s), Submission Requirements of
Proposer/Bidder, and all required certificates, affidavits, and other documentation)
8.4 Contract
8.5 VENDOR's Bid Bond, Performance,and Payment Bond
8.6 General Conditions for Construction
8.7 Special Terms and Conditions
8.8 City Construction Standards and Details (available online at: https://www.bovnton-
beach.org/engineering/new-construction-department- public-works-engineerinq-
division)
8.9 Attachment"A"—Golfview Harbor—Bid Set/Drawings
8.10 Attachment"B"—The Meadows—Bid Set/Drawings
ARTICLE 9.NOTICE.All notices required in this Contract shall be sent by certified mail, return
receipt requested, and if sent to CITY shall be mailed to:
Daniel Dugger, City
Manager
City of Boynton Beach
100 East Ocean
Ave, Boynton
Beach, FL 33435
Telephone No. (561) 742-6000
And if sent to the VENDOR shall be mailed to:
ti 11 M Gv_Siim
ti 3o j y1. S..,nrise. Bird.
5vhy.u. ) FL 3V%I3
Article 10.INDEMNITY.
10.1 The VENDOR shall indemnify and hold harmless the CITY and its officers,
employees, agents, instrumentalities, and the State of Florida, Division of
Emergency Management from liability, losses or damages, including attorneys'
fees and costs of defense through the conclusion of any appeals, which the
CITY or its officers, employees, agents or instrumentalities may incur as a
result of claims, demands, suits, causes of actions or proceedings of any kind
or nature arising out of or resulting from the negligence, recklessness, or
intentional wrongful misconduct of VENDOR, its employees, agents, partners,
principals or subcontractors during the term of this Agreement or resulting
thereafter. The VENDOR shall pay all claims and losses in connection
therewith and shall investigate and defend all claims, suits or actions of any kind
or nature in the name of the CITY, where applicable, including appellate
proceedings, and shall pay all costs,judgments, and attorneys'fees which may
issue thereon. The VENDOR expressly understands and agrees that any
insurance protection required by this Agreement or otherwise provided by the
VENDOR shall in no way limit the responsibility to indemnify, keep and save
harmless and defend the CITY or its officers, employees, agents and
instrumentalities as herein provided.
10.2 VENDOR's aggregate liability pursuant to this indemnification provision shall not
exceed one and one-half(1 1/2)times the contract price or One Million Dollars
($1,000,000) per occurrence, whichever is greater.
10.3 Upon completion of all services, obligations and duties provided for in this
Agreement, or in the event of termination of this Agreement for any reason, the
terms and conditions of this Article shall survive indefinitely.
10.4 CITY reserves the right to select its own legal counsel to conduct any defense
in any such proceeding and all costs and fees associated therewith shall be
the responsibility of VENDOR.
10.5 Nothing contained herein is intended nor shall be construed as a contractual
waiver of the CITY's rights, limits, and immunities under the common law or
Section 768.28, Florida Statutes, as may be amended from time to time, nor a
waiver of any defense the CITY may have and shall not be construed as
consent to be sued by third parties based on any claims arising under this
Contract. VENDOR and CITY agree that any liability of the CITY under this
Contract shall be limited to the amounts set forth in Sec. 728.68, Florida
Statutes.
Article 11.REIMBURSEMENT OF CONSULTANT EXPENSES.
Should the completion of this Contract be delayed beyond the specified or adjusted time limit,
VENDOR shall reimburse the CITY for all expenses of consulting and inspection incurred by
the CITY during the period between said specified or adjusted time and the actual date of
final completion.All such expenses for consulting and inspection incurred by the CITY will be
charged to the VENDOR and be deducted from payments due VENDOR as provided by this
Contract. Said expenses shall be further defined as CONSULTANT charges associated with
the construction contract administration, including resident project representative costs.
Article 12. FLORIDA'S PUBLIC RECORDS LAW,
The CITY is a public agency subject to Chapter 119, Florida Statutes. The VENDOR shall
comply with Florida's Public Records Law. Specifically, the VENDOR shall:
1.1 Keep and maintain public records required by the CITY to perform the service;
1.2 Upon request from the CITY's custodian of public records, provide the CITY
with a copy 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 in Chapter 119, Florida Statue or as otherwise provided by law;
1.3 Ensure that public records that are exempt or that are confidential and exempt
from public record disclosure requirements are not disclosed except as
authorized by law for the duration of the contract term and, following
completion of the contract, VENDOR shall destroy all copies of such
confidential and exempt records remaining in its possession once the
VENDOR transfers the records in its possession to the CITY; and,
1.4 Upon completion of the contract, VENDOR shall transfer to the CITY, at no
cost to the CITY, all public records in VENDOR's possession. All records
stored electronically by VENDOR must be provided to the CITY, upon request
from the CITY's custodian of public records, in a format that is compatible with
the information technology systems of the CITY.
12.5 IF THE VENDOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE VENDOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS
CONTRACT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS:
CITY CLERK'S OFFICE
100 E. OCEAN AVENUE
BOYNTON BEACH,
FLORIDA 33435 561-742-606
CityCleric(abbfl.US
Article 13.g-VERIFY,
13.1 CONTRACTOR certifies that it is aware of and complies with the
requirements of Section 448.095, Florida Statutes, as may be amended
from time to time and briefly described herein below.
13.1.1 Definitions for this Section:
A. "Contractor"means a person or entity that has entered or is attempting to
enter into a contract with a public employer to provide labor, supplies,
or services to such employer in exchange for a salary, wages, or other
remuneration. "Contractor" includes, but is not limited to, a vendor or
consultant.
B. "Subcontractor" means a person or entity that provides labor, supplies,
or services to or for a contractor or another subcontractor in exchange
for a salary, wages, or other remuneration.
C. "E-Verify system" means an Internet-based system operated by the
United States Department of Homeland Security that allows
participating employers to electronically verify the employment eligibility
of newly hired employees.
13.1.2 Registration Requirement; Termination: Pursuant to Section 448.095,
Florida Statutes, effective January 1, 2021, Contractors, shall register
with and use the E-Verify system in order to verify the work
authorization status of all newly hired employees. Contractor shall
register for and utilize the U.S. Department of Homeland Security's E-
Verify System to verify the employment eligibility of:
A. All persons employed by a Contractor to perform employment duties
within Florida during the term of the contract; and
B. All persons (including sub-vendors/sub-consultants/sub-contractors)
assigned by Contractor to perform work pursuant to the contract with the
City of Boynton Beach. The Contractor acknowledges and agrees that
registration and use of the U.S. Department of Homeland Security's E-
Verify System during the term of the contract is a condition of the
contract with the City of Boynton Beach; and
C. The Contractor shall comply with the provisions of Section 448.095, Fla.
Stat., "Employment Eligibility," as amended from time to time. This
includes, but is not limited to registration and utilization of the E-Verify
System to verify the work authorization status of all newly hired
employees. Contractor shall also require all subcontractors to provide
an affidavit attesting that the subcontractor does not employ, contract
with, or subcontract with, an unauthorized alien. The Contractor shall
maintain a copy of such affidavit for the duration of the contract. Failure
to comply will lead to termination of this Contract, or if a subcontractor
knowingly violates the statute, the subcontract must be terminated
immediately. Any challenge to termination under this provision must be
filed in the Circuit Court no later than twenty (20) calendar days after
the date of termination. Termination of this Contract under this Section
is not a breach of contract and may not be considered as such. If this
contract is terminated for a violation of the statute by the Contractor,the
Contractor may not be awarded a public contract for a period of one (1)
year after the date of termination.
Article 14. PROHIBITION AGAINST CONSIDERING SOCIAL, POLITICAL OR IDEOLOGICAL
INTERESTS IN GOVERNMENT CONTRACTING -- F.S. 287.05701.
VENDOR is hereby notified of the provisions of section 287.05701, Florida
Statutes. as amended,that the CITY will not request documentation of or consider
VENDOR's social, political, or ideological interests when determining if the
VENDOR is a responsible VENDOR. VENDOR Is further notified that the CITY's
governing body may not give preference to a Vendor based on the VENDOR's
social, political, or ideological interests.
Article 15. SCRUTINIZED COMPANIES,
By execution of this Agreement, VENDOR certifies that VENDOR is not
participating in a boycott of Israel.VENDOR further certifies that VENDOR is not on
the Scrutinized Companies that Boycott Israel list, not on the Scrutinized
Companies with Activities in Sudan List, and not on the Scrutinized Companies
with Activities in the Iran Petroleum Energy Sector List, or has VENDOR been
engaged in business operations in Syria. Subject to limited exceptions provided in
state law,the CITY will not contract for the provision of goods or services with any
scrutinized company referred to above. Submitting a false certification shall be
deemed a material breach of contract. The CITY shall provide notice. in writing, to
the VENDOR of the CITY's determination concerning the false certification.
VENDOR shall have five (5) calendar days from receipt of notice to refute the false
certification allegation. If such false certification is discovered during the active
contract term, the VENDOR shall have ninety (90) calendar days following receipt
of the notice to respond in writing and demonstrate that the determination of false
certification was made in error. If the VENDOR does not demonstrate that the
CITY's determination of false certification was made in error then the CITY shall
have the right to terminate the contract and seek civil remedies pursuant to Section
287.135, Florida Statutes, as amended from time to time.
Article 16. COVENANT AGAINST CONTINGENT FEES.
The VENDOR warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for the VENDOR, to solicit or secure
this Agreement, and that VENDOR has not paid or agreed to pay any company or
person, other than a bona fide employee working solely for the VENDOR any fee,
commission, percentage, brokerage fee, gifts, or any other consideration contingent
upon or resulting from the award or making of this Agreement. For breach or violation
of this warranty, the CITY shall have the right to annul this Agreement without liability
or, in its discretion to deduct from the contract price or consideration, or otherwise
recover, the full amount of such fee, commission, percentage, brokerage fee, gift, or
contingent fee.
Article 17. TRUTH IN NEGOTIATION CERTIFICATE.
17.1 Execution of this Agreement by the VENDOR shall act as the execution of a
truth-in-negotiation certificate certifying that the wage rates and costs used to
determine the compensation provided for in this Agreement is accurate,
complete,and current as of the date of the Agreement and no higher than those
charged to the VENDOR's most favored customer for the same or substantially
similar service.
17.2 The said rates and cost shall be adjusted to exclude any significant sums
should the CITY determine that the rates and costs were increased due to
inaccurate, incomplete, or non-current wage rates or due to inaccurate
representations of fees paid to outside vendors. The CITY shall exercise its
rights under this"Certificate"within one(1)year following payment.
Article 18.JVIISCELLANEOUg.
18.1 Any and all legal action necessary to enforce the terms of this Agreement shall
be governed by the laws of the State of Florida. Any legal action arising from
the terms of this Agreement shall be submitted to a court of competent
jurisdiction located exclusively in Palm Beach County.
18.2 No assignment 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 specifically but without limitation,
moneys that may become due and moneys 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.
18.3 City and VENDOR each binds itself, their partners, successors, assigns and
legal representatives to the other party hereto, their partners, successors,
assigns and legal representatives in respect of all covenants,agreements and
obligations contained in the Contract Documents.
18.4 In the event that either party brings suit for enforcement of this Agreement,
each party shall bear its own attorney's fees and court costs, except as
otherwise provided under the indemnification provisions set forth herein
above.
18.5 Prior to final payment of the amount due under the terms of this Agreement,to
the extent permitted by law, a final waiver of lien shall be required to be
submitted by the VENDOR, as well as all suppliers and subcontractors whom
worked on the project that is the subject of this Agreement. Payment of the
invoice and acceptance of such payment by VENDOR shall release City from
all claims of liability by VENDOR in connection with this Agreement.
18.6 At all times during the performance of this Agreement,VENDOR shall protect
CITY's property from all damage whatsoever on account of the work being
carried on under this Agreement.
18.7 It shall be the VENDOR's responsibility to be aware of and comply with all
statutes, ordinances, rules, orders, regulations and requirements of all local,
city,state,and federal agencies as applicable.
18.8 This Agreement represents the entire and integrated agreement between City
and VENDOR and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement is intended by the parties
hereto to be final expression of this Agreement, and it constitutes the full and
entire understanding between the parties with respect to the subject hereof,
notwithstanding any representations, statements, or agreements to the
contrary heretofore made. In the event of a conflict between this Agreement,
the solicitation and the VENDOR's bid proposal, this Agreement shall govern
then the solicitation, and then the bid proposal.
18.9 This Agreement will take effect once signed by both parties. This Agreement
may be executed by hand or electronically in multiple originals or
counterparts, each of which shall be deemed to be an original and together
shall constitute one and the same agreement. Execution and delivery of this
Agreement by the Parties shall be legally binding, valid and effective upon
delivery of the executed documents to the other party through facsimile
transmission, email, or other electronic delivery.
Article 19. DEFAULT OF CONTRACT& REMEDIES.
19.1 Correction of Work. If, in the judgment of CITY,work provided by VENDOR
does not conform to the requirements of this Agreement, or if the work
exhibits poor workmanship, CITY reserves the right to require that VENDOR
correct all deficiencies in the work to bring the work into conformance without
additional cost to CITY, and/or replace any personnel who fail to perform in
accordance with the requirements of this Agreement. CITY shall be the sole
judge of non-conformance and the quality of workmanship.
19.2 Default of Contract. The occurrence of any one or more of the following
events shall constitute a default and breach of this Agreement by VENDOR:
19.2.1 The abandonment of the project by VENDOR for a period of more
than seven (7) business days.
19.2.2 The abandonment, unnecessary delay, refusal of, or failure to
comply with any of the terms of this Agreement or neglect, or refusal
to comply with the instructions of the CITY's designee.
19.2.3 The failure by VENDOR to observe or perform any of the terms,
covenants, or conditions of this Agreement to be observed or
performed by VENDOR, where such failure shall continue for a
period of seven (7) calendar days after written notice thereof by
CITY to VENDOR; provided, however, that if the nature of
VENDOR's default is such that more than seven (7) calendar days
are reasonably required for its cure, then VENDOR shall not be
deemed to be in default if VENDOR commences such cure within
said seven (7) calendar day period and thereafter diligently
prosecutes such cure to completion.
19.2.4 The assignment and/or transfer of this Agreement or execution or
attachment thereon by VENDOR or any other party in a manner
not expressly permitted hereunder.
19.2.5 The making by VENDOR of any general assignment or general
arrangement for the benefit of creditors, or the filing by or against
VENDOR of a petition to have VENDOR adjudged a bankruptcy, or
a petition for reorganization or arrangement under any law relating to
bankruptcy (unless, in the case of a petition filed against VENDOR,
the same is dismissed within sixty (60) days); or the appointment of
a trustee or a receiver to take possession of substantially all of
VENDOR's assets, or for VENDOR's interest in this Agreement,
where possession is not restored to VENDOR within thirty (30)days;
for attachment, execution or other judicial seizure of substantially all
of VENDOR's assets, or for VENDOR's interest in this Agreement,
where such seizure is not discharged within thirty (30) days.
19.3 Remedies in Default. In case of default by VENDOR, CITY shall notify
VENDOR, in writing, of such abandonment, delay, refusal, failure, neglect, or
default and direct VENDOR to comply with all provisions of the Agreement. A
copy of such written notice shall be mailed to the Surety on the Performance
Bond. If the abandonment, delay, refusal,failure, neglect or default is not cured
within seven (7) days of when notice was sent by CITY, CITY may declare a
default of the Agreement and notify VENDOR of such declaration of default and
terminate the Agreement. The Surety on the Performance Bond shall within ten
(10) days of such declaration of default, rectify or cause to be rectified any
mismanagement or breach of service in the Agreement and assume the work of
VENDOR and proceed to perform services under the Agreement, at its own cost
and expense.
19.3.1 Upon such declaration of default, all payments remaining due
VENDOR at the time of default, less all sums due CITY for damages
suffered, or expenses incurred by reason of default, shall be due and
payable to Surety. Thereafter the Surety shall receive monthly
payments equal to those that would have been paid by the VENDOR
had the VENDOR continued to perform the services under the
Agreement.
19.3.2 CITY may complete the Agreement, or any part thereof, either by day
labor, use of a subcontractor, or by re-letting a contract for the same,
and procure the equipment and the facilities necessary for the
completion of the Agreement, and charge the cost of same to
VENDOR and/or the Surety together with the costs incident thereto to
such default.
19.3.3 In the event CITY completes the Agreement at a lesser cost than would
have been payable to VENDOR under this Agreement, if the same
had been fulfilled by VENDOR, CITY shall retain such differences.
Should such cost to CITY be greater, VENDOR shall pay the amount
of such excess to the CITY.
19.3.4 Notwithstanding the other provisions in this Article, CITY reserves the
right to terminate the Agreement at any time, whenever the service
provided by VENDOR fails to meet reasonable standards of the trade
after CITY gives written notice to the VENDOR of the deficiencies as
set forth in the written notice within fourteen calendar(14) days of the
receipt by VENDOR of such notice from CITY.
"This Agreement will take effect once signed by both parties. This Agreement may be
signed by the parties in counterparts,whether signed physically or electronically,which together
shall constitute one and the same agreement among the parties. A facsimile signature shall
constitute an original signature for all purposes."
IN WITNESS WHEREOF,the parties have hereunto set their hands and seals on the day
and year set forth below their respective signatures.
CITY OF BOYNTON BEACH ATLANTIC SOUTHERN PAVING AND
SE.I
LCOATING, LLC.
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Daniel D gger, Ci Manager / (Signature), Comp.
Date: Lis G,.._gw 6 re_ Z__
Print Name of Authorized Official
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Title
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Date
(Corporate Seal)
Attest/Authenticated.
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