R25-099 RESOLUTION NO. R25-099
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON
4 BEACH, FLORIDA, AWARDING INVITATION TO BID NO. PWE25-027B
FOR THE BOYNTON BEACH CHILDREN'S MUSEUM STRUCTURAL
REPAIR PROJECT TO HOMRICH CORPORATION AND APPROVING AN
7 AGREEMENT WITH HOMRICH CORPORATION IN AN AMOUNT OF
$213,425, PLUS A 10% CONTINGENCY OF $21,343, FOR A TOTAL NOT
9 TO EXCEED $234,768; AND FOR ALL OTHER PURPOSES.
I(1
I I WHEREAS, on January 30, 2025, the Purchasing Division issued Invitation to Bid (ITB) No.
12 PWE25-027B for the Boynton Beach Children's Schoolhouse Museum Structural Repairs Project
13 (the "Project"); and
14 WHEREAS, a pre-bid meeting was held on February 10, 2025, accompanied by a site visit,
i 5 which several interested bidders attended; and
16 WHEREAS, the ITB closed on March 10, 2025, with two bid submissions; and
17 WHEREAS, after reviewing the submissions, the Purchasing Division determined that
is Homrich Corporation ("Contractor") was the lowest responsive and responsible bidder; and
WHEREAS, the City has selected the Contractor to perform construction services related
20 to the Project; and
21 WHEREAS, the City Commission, upon the recommendation of staff, has deemed it in the
22 best interests of the city's citizens and residents to award Invitation to Bid No. PWE25-027B for
23 the Boynton Beach Children's Museum Structural Repair Project to Homrich Corporation and
24 approve an Agreement with Homrich Corporation in an amount of $213,425, plus a 10%
25 contingency of $21,343, for a total not to exceed $234,768.
26
27 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON
28 BEACH, FLORIDA, THAT:
29 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
30 being true and correct and are hereby made a specific part of this Resolution upon adoption.
31 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby
32 award Invitation to Bid No. PWE25-027B for the Boynton Beach Children's Museum Structural
33 Repair Project to Homrich Corporation.
34 SECTION 3. The City Commission of the City of Boynton Beach, Florida, does hereby
35 approve an Agreement between the City and Homrich Corporation for the Boynton Beach
36 Children's Museum Structural Repair Project in an amount of $213,425, plus a 10% contingency
37 of$21,343, for a total not to exceed $234,768 (the "Agreement"), in form and substance similar to
38 that attached as Exhibit A.
39 SECTION 4. The City Commission of the City of Boynton Beach, Florida, hereby
40 authorizes the Mayor to execute the Agreement. The Mayor is further authorized to execute any
41 ancillary documents required under the Agreement or necessary to accomplish the purposes of
42 the Agreement and this Resolution.
43 SECTION 5. The City Clerk shall retain the fully executed Agreement as a public record
44 of the City. A copy of the fully executed Agreement shall be provided to Ydelsi Rodriguez to
45 forward to the Contractor.
46 SECTION 6. This Resolution shall take effect in accordance with law.
47
48
49
50 [SIGNATURES ON THE FOLLOWING PAGE]
51
52 PASSED AND ADOPTED this /544 day of 60/--;
) 2025.
53 CITY OF BOYNTON BEACH, FLORIDA
54 YES NO
55 Mayor- Rebecca Shelton ,/-
56 56
57 Vice Mayor-Woodrow L. Hay ler
58 ✓
59 Commissioner-Angela Cruz
60 ✓
61 Commissioner-Thomas Turkin
62
63 Commissioner-Aimee Kelley
64
65 VOTE 9-0
66 ATT
67
68 IL •• 11.__--
i--
69 Maylee Die us, MPA, ' MC Re:ecca Shelton
70 City Cle Mayor
71 _-...��`
72 D'NTON " APPROVED AS TO FORM:
73 (Corporate Seal) ;6% ;ocQo-iTF'•.F9 'ii
L
75 ' V IED3 44/1041076
76 ,°1 % 192U Shawna G. Lamb
77 ,Ii City Attorney
AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH
AND
HOMRICH CORPORATION
BOYNTON BEACH CHILDREN'S SCHOOLHOUSE MUSEUM STRUCTURAL
REPAIRS PROJECT
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 HOMRICH CORPORATION, a Florida Profit Corporation, with a business
address of 16717 106th Terrace North, Jupiter, Florida 33478, hereinafter referred to as the
''CONTRACTOR," each a `'Party" and collectively the "Parties."
WHEREAS, the City of Boynton Beach Public Works Engineering Department
requires structural repairs to the Children's Schoolhouse Museum; and
WHEREAS, the Public Works Department identified necessary structural repair
work on the Children's Schoolhouse Museum to maintain public safety; and
WHEREAS, the City's Public Works Department developed specifications to seek a
qualified contractor to perform the necessary repairs; and
WHEREAS, on January 30, 2025, the Purchasing Division issued Invitation to Bid
(ITB) No. PWE25-027B for the Boynton Beach Children's Schoolhouse Museum Structural
Repairs Project (the "Project"); and
WHEREAS, a pre-bid meeting was held on February 10, 2025, accompanied by a
site visit, which was attended by several interested bidders; and
WHEREAS, the ITB closed on March 10, 2025, with two bid submissions; and
WHEREAS, after reviewing the submissions, the Purchasing Division determined
that Homrich Corporation was the lowest responsive and responsible bidder; and
WHEREAS. the CITY has selected the CONTRACTOR to perform construction
services related to the Project; and,
WHEREAS, at its meeting of 7,\DY �� 1� ��a� , by Resolution No.
c the CITY Commission approved this award to CONTRACTOR and authorized the
, roper CITY official, to execute this Agreement hereinafter referred to as Contract No.:
7 w En- 'Off- t kb and used interchangeably with "contract".
NOW, THEREFORE, CITY and CONTRACTOR, in consideration of the mutual
covenants hereinafter set forth, agree as follows:
Article 1. SCOPE OF WORK AND CONTRACTOR.
CONTRACTOR 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. The terms and conditions of Bid No. PWE25-027B and
CONTRACTOR's bid are expressly incorporated into this Agreement by reference. Any conflict
or discrepancy between the terms of this Agreement, Bid No. 25-027B, and CONTRACTOR's bid.
shall be resolved pursuant to the following order of precedence (1) this Agreement, (2) Bid No.
PWE25-027B; and 3. CONTRACTOR's bid.
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; TERMINATION; LIQUIDATED DAMAGES.
3.1 Contract Time. Upon receipt of materials including the generator, the WORK will be
substantially completed within Ninety (90) calendar days from the Notice to Proceed, when
the Contract Time commences to run as provided in paragraph 2.3 of the General
Conditions and completed and ready for final inspection and payment in accordance with
paragraph 14.9 of the General Conditions within Thirty (30) 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
CONTRACTOR for such termination. In the event of termination. CONTRACTOR shall be
paid its compensation for services performed until the termination date, including services
reasonably related to termination. In the event that CONTRACTOR abandons this
Agreement or causes it to be terminated, CONTRACTOR 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 CONTRACTOR
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 CONTRACTOR of written notice of such neglect or failure.
3.4 Liquidated Damages. The CITY and CONTRACTOR 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 CONTRACTOR to perform in a timely
manner, but neither one has been capable of ascertaining such damages with certainty.
CITY and CONTRACTOR 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 CONTRACTOR agree that as liquidated damages for delay (but not as a
penalty) CONTRACTOR shall pay the CITY, Five Hundred Dollars ($500.00) for each day
that expires after the time specified in paragraphs 3.1 for substantial completion until the
WORK is substantially complete. After Substantial Completion, if CONTRACTOR shall
neglect, refuse or fail to complete the remaining WORK within the Contract Time or any
proper extension thereof granted by the CITY, CONTRACTOR shall pay CITY Two
Hundred Fifty ($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 CONTRACTOR, 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: Two Hundred Thirteen Thousand, Four Hundred
Twenty Five Dollars and no cents ($213,425.00).
Contingency Funds - ALL CONTINGENCY SUMS ARE CITY'S CONTINGENCY AND
REMAIN THE CITY'S PROPERTY UNTIL EXPENSE IS APPROVED. The contract price
shall not include any contingency amounts. If the Contract or schedule of bid prices
includes an agreed sum as a contingency, such amount is identified solely for budget
purposes and remains the city's funds. The city may approve the use of contingency funds
only for the purpose of defraying the expenses due to unforeseen conditions. extra work,
and circumstances relating to construction unless otherwise agreed. Such contingency
funds are not for use by the Contractor to cover shortfalls in the Contractor's bid amount
and not for use by the City to increase the scope of work.
Contractor shall obtain prior written approval from City prior to the expenditure of
contingency funds, and Contractor will be required to furnish documentation evidencing
expenditures charged to contingency and/or allowances prior to the release of such funds
by City. All uncommitted contingency funds remain the funds of City.
Contingency. City and Contractor agree the Project budget shall include City's
contingency, which shall be utilized as outlined above, The Contingency shall be Ten
percent or $21,342.50 to account for any unforeseen conditions only approved by
the City Manager.
Article 5. PAYMENT PROCEDURES.
CONTRACTOR 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.
5.1 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.
5.2 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.
5.3 CONTRACTOR 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 CONTRACTOR
within thirty (30) calendar days after approval by the CITY of CONTRACTOR'S
Application for Payment and submission of an acceptable updated progress schedule.
5.4 Five percent (5) of all monies earned by the CONTRACTOR 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
CONTRACTOR) has been reached and acceptance by CITY.
5.5 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 CONTRACTOR.
c. Failure of CONTRACTOR to make payments properly to SUBCONTRACTORS or
for material or labor.
d. Damage to another CONTRACTOR not remedied.
e. Liquidated damages and costs incurred by the CITY for extended construction
administration.
f. Failure of CONTRACTOR to provide any document(s) required by the Contract
Documents.
5.6 When the above grounds are removed or resolved, or CONTRACTOR 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.
5.7 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.
CONTRACTOR acknowledges that if final payment shall not be made until consent of
surety is received by CITY.
5.8 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 CONTRACTOR 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 CONTRACTOR are unable to agree on an item or value, the City/Owner
has final discretion on 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 CONTRACTOR in less than 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 S10 million or more, the 30-calendar day period may be extended to 45
calendar days.
Article 7. CONTRACTOR GUARANTEE.
CONTRACTOR 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 CONTRACTOR, 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 DOCUMENTS.
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 CONTRACTOR'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.orq/engineering/new-construction-department- public-works-engineering-
division )
8.9 Attachment"A" — Special Provisions
8.10 Attachment "B" — Final Set
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
Copy: Shawna G. Lamb, City Attorney
City of Boynton Beach
P.O. Box 310
Boynton Beach, Florida 33425
Telephone: (561) 742-6010 / Facsimile: (561) 742-6090
And if sent to the CONTRACTOR shall be mailed to:
George Homrich, President
16717 106th Terrace North
Jupiter, Florida 33478
561-254-8322
Article 10. JNDEMNITY.
10.1 The CONTRACTOR shall indemnify and hold harmless the CITY and its officers,
employees, agents, and instrumentalities 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 CONTRACTOR, its employees, agents, partners, principals or subcontractors during
the term of this Agreement or resulting thereafter. The CONTRACTOR 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 CONTRACTOR expressly understands and agrees that
any insurance protection required by this Agreement or otherwise provided by the
CONTRACTOR 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.
10.2CONTRACTOR'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.
10.4CITY 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 CONTRACTOR.
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. CONTRACTOR 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, CONTRACTOR 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 CONTRACTOR and be deducted from
payments due CONTRACTOR 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 CONTRACTOR
shall comply with Florida's Public Records Law. Specifically, the CONTRACTOR shall:
12.1 Keep and maintain public records required by the CITY to perform the service;
12.2 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;
12.3 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, CONTRACTOR shall destroy all copies of such confidential and
exempt records remaining in its possession once the CONTRACTOR transfers
the records in its possession to the CITY; and,
12.4 Upon completion of the contract, CONTRACTOR shall transfer to the CITY, at
no cost to the CITY, all public records in CONTRACTOR's possession. All
records stored electronically by CONTRACTOR 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 CONTRACTOR HAS QUESTIONS REGARDING
THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES,
TO THE CONTRACTOR'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
CityClerk(&_bbfl.US
Article 13. F-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.
CONTRACTOR is hereby notified of the provisions of section 287.05701,
Florida Statutes, as amended, that the CITY will not request documentation of
or consider CONTRACTOR's social, political, or ideological interests when
determining if the CONTRACTOR is a responsible
CONTRACTOR. CONTRACTOR is further notified that the CITY's governing
body may not give preference to a CONTRACTOR based on the
CONTRACTOR's social, political, or ideological interests.
Article 15. SCRUTINIZED COMPANIES.
By execution of this Agreement, CONTRACTOR certifies that CONTRACTOR is not
participating in a boycott of Israel. CONTRACTOR further certifies that CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR of the CITY's
determination concerning the false certification. CONTRACTOR 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 CONTRACTOR 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
CONTRACTOR 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 CONTRACTOR warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure
this Agreement, and that CONTRACTOR has not paid or agreed to pay any company or
person, other than a bona fide employee working solely for the CONTRACTOR 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. MISCELLANEOUS.
17.1 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.
17.2 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.
17.3 City and CONTRACTOR 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.
17.4 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.
17.5 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 CONTRACTOR, 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 CONTRACTOR shall release
City from all claims of liability by CONTRACTOR in connection with this
Agreement.
17.6 At all times during the performance of this Agreement, CONTRACTOR shall
protect CITY's property from all damage whatsoever on account of the work
being carried on under this Agreement.
17.7 It shall be the CONTRACTOR'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.
17.8 This Agreement represents the entire and integrated agreement between City
and CONTRACTOR 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 CONTRACTOR's bid proposal, this Agreement shall
govern then the solicitation, and then the bid proposal.
17.9 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 18. DEFAULT OF CONTRACT& REMEDIES.
18.1 Correction of Work. If, in the judgment of CITY, work provided by CONTRACTOR
does not conform to the requirements of this Agreement, or if the work exhibits
poor workmanship, CITY reserves the right to require that CONTRACTOR 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.
18.2 Default of Contract. The occurrence of any one or more of the following events
shall constitute a default and breach of this Agreement by CONTRACTOR:
18.2.1 The abandonment of the project by CONTRACTOR for a period of more
than seven (7) business days.
18.2.2 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
18.2.3 The failure by CONTRACTOR to observe or perform any of the terms,
covenants, or conditions of this Agreement to be observed or performed by
CONTRACTOR, where such failure shall continue for a period of seven (7)
calendar days after written notice thereof by CITY to CONTRACTOR;
provided, however, that if the nature of CONTRACTOR's default is such
that more than seven (7) calendar days are reasonably required for its cure,
then CONTRACTOR shall not be deemed to be in default if
CONTRACTOR commences such cure within said seven (7) calendar day
period and thereafter diligently prosecutes such cure to completion.
18.2.4 The assignment and/or transfer of this Agreement or execution or
attachment thereon by CONTRACTOR or any other party in a manner not
expressly permitted hereunder.
18.2.5 The making by CONTRACTOR of any general assignment or general
arrangement for the benefit of creditors, or the filing by or against
CONTRACTOR of a petition to have CONTRACTOR 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
CONTRACTOR, the same is dismissed within sixty (60) days); or the
appointment of a trustee or a receiver to take possession of substantially
all of CONTRACTOR's assets, or for CONTRACTOR's interest in this
Agreement, where possession is not restored to CONTRACTOR within
thirty (30) days; for attachment, execution or other judicial seizure of
substantially all of CONTRACTOR's assets, or for CONTRACTOR's
interest in this Agreement, where such seizure is not discharged within
thirty (30) days.
18.3 Remedies in Default. In case of default by CONTRACTOR, CITY shall notify
CONTRACTOR, in writing, of such abandonment, delay, refusal, failure, neglect, or
default and direct CONTRACTOR 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 CONTRACTOR 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
CONTRACTOR and proceed to perform services under the Agreement, at its own
cost and expense.
18.3.1 Upon such declaration of default, all payments remaining due
CONTRACTOR 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 CONTRACTOR had the
CONTRACTOR continued to perform the services under the Agreement.
18.3.2 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 CONTRACTOR and/or the
Surety together with the costs incident thereto to such default.
18.3.3 In the event CITY completes the Agreement at a lesser cost than would have
been payable to CONTRACTOR under this Agreement, if the same had
been fulfilled by CONTRACTOR, CITY shall retain such differences.
Should such cost to CITY be greater, CONTRACTOR shall pay the amount
of such excess to the CITY.
18.3.4 Notwithstanding the other provisions in this Article, CITY reserves the right
to terminate the Agreement at any time, whenever the service provided by
CONTRACTOR fails to meet reasonable standards of the trade after CITY
gives written notice to the CONTRACTOR of the deficiencies as set forth
in the written notice within fourteen calendar (14) days of the receipt by
CONTRACTOR of such notice from CITY.
Article 19. SOVEREIGN IMMUNITY.
Nothing contained herein is intended to serve as a waiver of sovereign immunity by the
CITY or as a waiver of limits of liability or rights the CITY may have under the doctrine of
sovereign immunity or under Section 768.28, Florida Statutes.
Article 20. UNCONTROLLABLE FORCES.
Neither the CITY nor CONTRACTOR shall be considered to be in default of this Agreement
if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of
which, by the exercise of reasonable diligence, the non-performing party could not avoid.
The term "Uncontrollable Forces" shall mean any event which results in the prevention or
delay of performance by a party of its obligations under this Agreement and which is beyond
the reasonable control of the non-performing party. It includes, but is not limited to fire,
flood, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and
governmental actions.
Neither party shall, however, be excused from performance if non-performance is due to
forces which are preventable, removable, or remediable, and which the non-performing
party could have, with the exercise of reasonable diligence, prevented, removed, or
remedied with reasonable dispatch. The non-performing party shall, within a reasonable
time of being prevented or delayed from performance by an uncontrollable force, give
written notice to the other party describing the circumstances and uncontrollable forces
preventing continued performance of the obligations of this Agreement.
Article 21. NON-WAIVER.
Waiver by the CITY of any provision of this Agreement or any time limitation provided for
in this Agreement shall not constitute a waiver of any other provision.
Article 22. INDEPENDENT CONTRACTOR.
The CONTRACTOR and the CITY agree that the CONTRACTOR is an independent
contractor with respect to the Work provided pursuant to this Agreement. Nothing in this
Agreement shall be considered to create the relationship of employer and employee
between the parties hereto. Neither CONTRACTOR nor any employee of CONTRACTOR
shall be entitled to any benefits accorded CITY employees by virtue of the services
provided under this Agreement. The CITY shall not be responsible for withholding or
otherwise deducting federal income tax or Social Security or for contributing to the state
industrial insurance program, otherwise assuming the duties of an employer with respect
to CONTRACTOR, or any employee of CONTRACTOR.
Article 23. INSURANCE.
During the performance of the Work under this Agreement, CONTRACTOR shall maintain
the insurance policies required by the Insurance Advisory in the Contract Documents, and
provide originals or certified copies of all policies to CITY's Risk Management. All policies
shall be written by an insurance company authorized to do business in Florida.
CONTRACTOR shall be required to obtain all applicable insurance coverage prior to
commencing any Work pursuant to this Agreement.
Article 24. OWNERSHIP AND USE OF DOCUMENTS.
All documents, drawings, specifications and other materials produced by the
CONTRACTOR in connection with the services rendered under this Agreement shall be
the property of the CITY whether the project for which they are made is executed or not.
The CONTRACTOR shall be permitted to retain copies, including reproducible copies, of
drawings and specifications for information, reference and use in connection with
CONTRACTOR's endeavors.
Article 25. ATTORNEY'S FEES.
If either Party brings suit to enforce the Agreement, each Party shall bear its own attorney's
fees and court costs.
Article 26. COMPLIANCE WITH LAWS.
CONTRACTOR shall, in performing the Work contemplated by this Agreement, faithfully
observe and comply with all federal, State of Florida, and City of Boynton Beach ordinances
and regulations that are applicable to the Work rendered under this Agreement.
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.
CIT •F BOYNTON BEACH (CONTRACTOR
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Rebecca Shelton, Mayor ignature) Company
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