HomeMy WebLinkAboutSynagro South, LLC Tank Dewatering & Cleaning Agreement - 2020 08 18 TANK DEWATERING/CLEANING AGREEMENT
THIS AGREEMENT is made this I , ay , 2020 by and between the CITY OF
WINTER SPRINGS, a Florida municipal corporation (herein referred to as OWNER)and Synagro
South, LLC a Delaware limited liability company authorized and duly licensed to do business in the
State of Florida(herein referred to as CONTRACTOR),as follows:
I. DESCRIPTION OF WORK- CONTRACTOR shall perform the work,in accordance with
the Contract Documents for the construction of East and West Water Reclamation Facilities
Tank Dewatering/Cleaning.
2. CONTRACT DOCUMENTS-The Contract Documents consist of this Agreement;Exhibits
and Addendum to the Agreement; Bid Documents issued by the City, dated June 2020;
Contractor's Bid Submittal, dated July 17, 2020; General Conditions, if any; Supplemental
Terms and Conditions by the City, if any; all Change Orders approved by the City after
execution of this Agreement. These Contract Documents are hereby incorporated into this
Contract by this reference. The CONTRACTOR represents and agrees that it has carefully
examined and understands this Agreement and the other Contract Documents,has investigated
the nature,locality and site of the Work and the conditions and difficulties under which it is to
be performed and that it enters into this Agreement on the basis of its own examination,
investigation and evaluation of all such matters and not in reliance upon any opinions or
representations of the OWNER, or of any of their respective officers, agents, servants, or
employees.
3. ORDER OF PRECEDENCE-In case of any inconsistency in any of the documents bearing
on the Agreement between the OWNER and the CONTRACTOR,the inconsistency shall be
resolved by giving precedence in the following order:
a. Change Orders
b. Agreement,Exhibits and Addenda
c. Supplemental Terms and Conditions
d. General Terms and Conditions
e. Bid Documents issued by the City
f. Contractor's Bid Submittal
Any inconsistency in the work description shall be clarified by the OWNER and performed by
the CONTRACTOR.
4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work,
should any errors, ambiguities, or discrepancies be found in the Contract Documents, the
OWNER at its sole discretion will interpret the intent of the Contract Documents and the
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CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry
out the work in accordance with the decision of the OWNER.
5. BRAND NAME MATERIALS - Whenever Materials or Equipment are specified or
described in the Drawings or Specifications by using the name of a proprietary item or the name
of a particular Supplier,the naming of the item is intended to establish the type, function and
quality required. The CONTRACTOR will be responsible for all coordination necessary to
accommodate the material,article,or equipment being provided without additional cost to the
OWNER. Unless the name is followed by words indicating that no substitution is permitted,a
substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand
name specified and CONTRACTOR certifies in writing that the proposed substitute will
perform adequately the functions called for by the general design, be similar and of equal
substance to that specified and be suited to the same use and capable of performing the same
function as that specified. . The OWNER has full discretion to decide whether a substitute is
reasonably equivalent CONTRACTOR must notify the OWNER in writing prior to use of the
substitute for a specified brand name and allow the OWNER to make a determination before
CONTRACTOR uses the substitute.
6. CONTRACT TIME-
a. All provisions regarding Contract Time are essential to the performance of this Contract.
Required tank dewatering and cleaning timelines for each of the four(4)specific tanks shall be
as established in ITB 03-20 LR, Appendix B. The dates listed in Appendix B, upon which
notices to proceed will be issued, are approximate. As stated in Appendix B, the
CONTRACTOR will be provided as much notice as possible, but in no case less than 14
calendar days'of tank availability and shall mobilize prior to,and begin dewatering on the tank
availability date. The dewatering contractor shall complete all cleaning and dewatering within
the prescribed calendar days in Appendix B in order to turn that tank over to others for ongoing
construction activities.
b. The Work is described as the dewatering and cleaning of each individual tank and as such,
there shall be four individual substantial completion dates. Each individual tank shall be
substantially completed as described herein,within the calendar days allotted in Appendix B.
Substantial completion is the completion of the clearing and dewatering of the applicable tank
and turnover of the tank to the City for ongoing construction by others.Final completion of the
Work shall be within 5 calendar days after the actual date of the final (fourth) Substantial
Completion date. Final completion shall consist of final cleanup and demobilization of
equipment.
c. The parties acknowledge that the Contract Time provided in this Section includes
consideration of adverse weather conditions common to Centrul Florida including the
possibility of hurricanes and tropical storms.
d. If applicable to the particular Work required by this Agreement, Float time is allocated
specifically to the Contractor's responsibility for coordination of utility relocations as described
in the General Conditions and is included in the Contract Time provided by this Section.
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OWNER will not consider any Contract Time extensions related to utility coordination matters
including,but not limited to,utility relocations and conflicts,unless the utility relocation delays
exceed the float time and also extend the Project Schedule's Critical Path.
7. LIt UIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the
essence of this Agreement and that OWNER will suffer financial loss if the Work is not
substantially complete within the timelines specified in Paragraph 6 above,plus any extensions
thereof allowed in accordance with the General Conditions.OWNER and CONTRACTOR also
recognize the delays, expense, and difficulties involved in proving in a legal or arbitration
preceding the actual loss suffered by OWNER i€the Work is not substantially complete on time.
Accordingly,instead of requiring any such proof,OWNER and CONTRACTOR agree that as
liquidated damages for delay(but not as a penalty)CONTRACTOR shall pay OWNER$500
for each day that expires after the time specified in Paragraph 6 for each individual tank
substantial completion date not met until the work is substantially complete at the individual
tank site and $500 for each day that expires after the time specified in Paragraph 6 for final
completion until the work is finally complete,and that OWNER has paid to CONTRACTOR
the consideration of Ten ($10.00) Dollars as consideration for this provision. The liquidated
damages provided in this Section are intended to apply even if CONTRACTOR is terminated,
in default,or if the CONTRACTOR has abandoned the Work.
8. CONTRACT PRICE UNIT PRICE CONTRACT,
The OWNER will pay the
CONTRACTOR in current funds for the performance of the work in accordance with the
Contract Documents,subject to additions and deductions approved by Change Order,the Total
Contract Price of Three
hundred seven thousand($307,000'. CONTRACTOR agrees to accept
the Contract Price as full compensation for performing all Work,furnishing all Materials, and
performing all Work embraced in the Contract Documents.
The CONTRACTOR acknowledges that CONTRACTOR studied,considered,and included in
CONTRACTOR's Total Bid all costs of any nature relating to: (1)performance of the Work
under Florida weather conditions; (2) applicable law, licensing, and permitting requirements;
(3) the Project site conditions, including but not limited to, subsurface site conditions; (4)the
terms and conditions of the Contract Documents, including, but not limited to, the
indemnification and no damage for delay provisions of the Contract Documents.
The CONTRACTOR acknowledges that performance of the Work may involve significant
Work adjacent to, above, and in close proximity to Underground Facilities including utilities
which will require the support of active utilities,as well as,the scheduling and sequencing of
utility installations,and relocations(temporary and permanent)by CONTRACTOR.
(1) In addition to the acknowledgments previously made, the CONTRACTOR
acknowledges that the CONTRACTORs Total Bid (original Contract Price)
specifically considered and relied upon CONTRACTOWs own study of Underground
Facilities,utilities in their present,relocated(temporary and permanent)and proposed
locations,and conflicts relating to utilities and Underground Facilities.
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(2) The CONTRACTOR acknowledges that CONTRACTOR's Total Bid (original
Contract Price) considered and included all of CONTRACTOR's costs relating to
CONTRACTOR's responsibilities to coordinate and sequence the Work of the
CONTRACTOR with the work of the OWNER, if any,with its own forces,the work
of other contractors,if any,and the work of others at the Project site.
Payments will be made to the CONTRACTOR for actual quantities installed on the
basis of the Schedule of Unit Prices included as a part of the Bid,which shall be as fully
a part of the Contract as if attached or repeated herein.Where the Contract Documents
provide for Unit Price Work,the Contract Price stated in the Agreement will include for
all Unit Price Work an amount equal to the sum of the Unit Prices for each item of Unit
Price Work times the estimated quantity of each item as indicated in the Contract
Documents. Each Unit Price will be deemed to include an amount considered by
CONTRACTOR to be adequate to cover all costs, including supplemental and
administrative costs,and profit.
9. TERMINATION;DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES-The
OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and
privileges associated with this Agreement, without penalty, for convenience. Further, the
OWNER reserves the right to revoke and terminate this Agreement in the following
circumstances,each of which shall represent a default and breach of this Agreement:
a. CONTRACTOR defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within seven(7) calendar days after
written notice from the OWNER specifying the default complained of,unless,however,the
nature of the default is such that it cannot, in the exercise of reasonable diligence, be
remedied within seven (7) calendar days, in which case the CONTRACTOR shall have
such time as is reasonably necessary to remedy the default,provided the CONTRACTOR
promptly takes and diligently pursues such actions as are necessary therefore;or
b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of
creditors or CONTRACTOR becomes insolvent,or is unable or unwilling to pay its debts;
or
c. CONTRACTOR has acted negligently, as defined by general and applicable law, in
performing the Work hereunder;or
d. CONTRACTOR has committed any act of fraud upon the OWNER;or
e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while
performing its obligations under this Agreement;or
f. CONTRACTOR is experiencing a labor dispute,which threatens to have a substantial,
adverse impact upon performance of this Agreement without prejudice to any other right,
or remedy OWNER may have under this Agreement.
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Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the
OWNER shall have the right to exercise any other remedy the OWNER may have by operation
of law, without limitation, and without any further demand or notice. In the event of such
termination,OWNER shall be liable only for the payment of all unpaid charges,determined in
accordance with the provisions of this Agreement, for Work properly performed prior to the
effective date of termination.
10. FORCE MAJEURE-Any delay or failure of either party in the performance of its required
obligations hereunder shall be excused if and to the extent caused by acts of God;fire;flood;
windstorm; explosion; riot;war; sabotage; strikes (except involving CONTRACTOR's labor
force);extraordinary breakdown of or damage to OWNER's affiliates'generating plants,their
equipment,or facilities; court injunction or order; federal and/or state law or regulation;order
by any regulatory agency;or cause or causes beyond the reasonable control of the party affected;
provided that prompt notice of such delay is given by such party to the other and each of the
parties hereunto shall be diligent in attempting to remove such cause or causes. if any
circumstance of Force Majeure remains in effect for sixty days,either party may terminate this
Agreement.
11. SEVERABILTTY - In the event any portion or part thereof of this Agreement is deemed
invalid,against public policy,void,or otherwise unenforceable by a court of law,the parties,at
the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the
affected provision of this Agreement. The validity and enforceability of the remaining parts of
this Agreement shall otherwise be fully enforceable
12. PROGRESS PAYMENTS DUE DATE FOR PROGRESS PAYMENTS;SUBMITTAL
OF PAYMENT REt VESTS — No payments shall be made where a Payment and
Performance Bond is required he
rein until OWNER receives a certified copy of the recorded
Bond. OWNER shall make progress payments on account of the contract price to
CONTRACTOR, on the basis of application for payments submitted to the OWNER or
OWNEWs Project Manager,by CONTRACTOR as the work progresses, and in accordance
with the Contract Documents.
Progress payments may be withheld if:
a. Work is found defective and not remedied;
b. CONTRACTOR does not make prompt and proper payments to subcontractors;
c. CONTRACTOR does not make prompts and proper payments for labor,materials, or
equipment furnished him;
d. Another contractor is damaged by an act for which CONTRACTOR is responsible;
e. Claims or liens are filed on the job;or
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g. In the opinion of the OWNER that CONTRACTOR's work is not progressing
satisfactorily.
h. The OWNER expressly reserves the right to withhold progress payments to offset
increased costs associated with hauling and disposing of liquid(water)biosolids rather
than dewatered biosolids if CONTRACTOR fails to dewater biosolids to a minimum
of 16%solids.
OWNER herein(_X__)designates or(___)does not designate an agent,i.e.,an architect or
engineer, that must approve any payment request or invoice before the payment request or
invoice is submitted to OWNER for payment. If an agent must approve the payment request or
invoice before the payment request or invoice is submitted to OWNER, payment is due 25
business days after the date on which the payment request or invoice is stamped as received as
provided in s.218.740), Florida Statutes, except to the extent that the payment request or
invoice does not meet contract requirements. The CONTRACTOR may send OWNER an
overdue notice. If the payment request or invoice is not rejected within 4 business days after
delivery of the overdue notice,the payment request or invoice shall be deemed accepted,except
for any portion of the payment request or invoice that is fraudulent or misleading. If an agent
need not approve the payment request or invoice submitted by CONTRACTOR,payment is
due 20 business days after the date on which the payment request or invoice is stamped as
received as provided in s.218.74(1), Florida Statutes, except to the extent that the payment
request or invoice does not meet contract requirements. If OWNER disputes a portion of a
payment request or an invoice,the undisputed portion shall be timely paid. OWNER shall reject
payment requests or invoices in accordance with the procedure established in s.218.735,Florida
Statutes.
OWNER hereby identifies the City's Director of Public Work/Utilities as the agent or office to
which the CONTRACTOR must submit payment requests or invoices.
13. FINAL PAYMENT-OWNER shall withhold up to 10%of the Contract Price throughout the
project in accordance with the Local Government Prompt Payment Act ("Act"). After 50%
completion of the project, OWNER shall reduce to 5%the amount of the retainage withheld
from each subsequent progress payment made to the CONTRACTOR unless the project is
subject to Federal funding,in whole or in part,and the project is subject to laws and regulations
contrary to the Act. The term "50%completion of the project"shall mean the point at which
the OWNER has expended 50%of the total cost of the services purchased under this Agreement
together with all costs associated with existing change orders and other additions or
modifications to the constructions services provided for in this Agreement. After 50%
completion,the Contractor may present to the OWNER a payment request for up to one-half of
the retainage held by the OWNER Owner shall promptly make payment to the
CONTRACTOR unless the OWNER has grounds,under the Act,for withholding the payment
of the retainage. The remaining retainage amount withheld shall be released with the Final
Payment after the issuance of the Final Completion Certificate. OWNER shall make final
payment to CONTRACTOR within thirty (30) days after the work is fully and properly
completed,if the contract has been fully and timely performed,but subject to the condition that
final payment shall not be due until CONTRACTOR has delivered to OWNER a complete
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release of liens arising out the contract, or receipt releases of lien fully covering all labor,
materials and equipment for which a lien could be filed,or in the alternative a bond satisfactory
to OWNER indemnifying him against such claims.CONTRACTOR shall be solely responsible
for increased costs associated with hauling and disposing of liquid (water) biosolids if any
material is delivered by OWNER or OWNER's agents to the composting/disposal facility and
found to be less than 16%solids. Under no circumstances shall OWNER release final payment
until OWNER has deducted all such increased costs. CONTRACTOR shall be required to pay
for any such increases costs that are over and above the retainage withheld by OWNER.
By making payments OWNER does not waive claims including but not limited to those relating
to:
a. Faulty work appearing after substantial completion has been granted;
b. Work that does not comply with the Contract Documents:
c. Outstanding claims of liens;or
d. Failure of Contractor to comply with any special guarantees required by the
Contract Documents.
Progress payments may be withheld if Work is found defective and not remedied;
CONTRACTOR does not make prompt and proper payments to subcontractors;
CONTRACTOR does not make prompt and proper payments for labor, materials, or
equipment furnished him;a subcontractor is damaged by an act for which CONTRACTOR
is responsible; claims of liens are filed on the job; or in the opinion of the OWNER,
CONTRACTOR'S work is not progressing satisfactorily. Further,OWNER may withhold
additional retainage in anticipation of liquidated damages equal to the product of the
number of Days after the scheduled Contract Time (Substantial Completion or Final
Completion) and the amount of liquidated damages set forth in this Contract if
CONTRACTOR is behind schedule and it is anticipated by OWNER that the Work will
not be completed within the Contract Time.The additional retainage,under this subsection,
may at the OWNER'S discretion be withheld from subsequent Progress Payments. Any
additional retainage held under this subsection shall be released to CONTRACTOR in the
next Progress Payment following the OWNER's approval of a supplemental Progress
Schedule demonstrating that the requisite progress will be regained and maintained as
required by the General Conditions.
14. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT:DUTIES AND AUTHORITY-The duties and authority of the OWNER are
as follows:
a. General Administration of Contract. The primary function of the OWNER is to
provide the general administration of the contract.In performance of these duties,the City's
Director of Public Work/Utilities or his authorized representative is the OWNER's Project
Manager during the entire period of construction. The OWNER(CITY)may change the
Project Manager during the term of this contract.
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b. Ins sections O�rinions and Pro Tess Re orts. The OWNER shall be kept familiar
with the progress and quality of the work by CONTRACTOR and may make periodic visits
to the work site.The OWNER will not be responsible for the means of construction,or for
the sequences,methods,and procedures used therein,or for the CONTRACTOR's failure
to perform the work in accordance with the Contract Documents.
c. Access to Worksite for Ins)ections. The OWNER shall be given free access to the
worksite at all times during work preparation and progress. The Project Manager is not
obligated to make exhaustive or continuous on-site inspections to perform his duties of
checking and reporting on work progress,and any such inspections shall not waive Owner's
claim regarding defective work by Contractor.
d. Inter rretation of Contract Documents: Decisions on Dis rutes. The OWNER will
be the initial interpreter of the contract document requirements, and make decisions on
claims and disputes between Contractor and Owner.
e. The OWNER shall have authority to reject work
which in its opinion does not conform to the Contract Documents, and in this connection
may stop the work or a portion thereof,when necessary.
£ Pa meat Certificates. The OWNER will determine the amounts owing to
CONTRACTOR as the work progresses, based on CONTRACTOR's applications and
OWNER's inspections and observations, and will issue certificates for progress payments
and final payments in accordance with the terms of the Contract Documents.
15. PROGRESS MEETING—OWNER'S Project Manager may hold periodic progress meetings
on a monthly basis,or more frequently if required by the OWNER, during the term of work
entered into under this Agreement.CONTRACTOR's Project Manager and all other appropriate
personnel shall attend such meetings as designated by the OWNER'S Project Manager.
16. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in
connection with the project herein are as follows:
a. ResponsibilLkUfor Su ervision and Construction. CONTRACTOR shall be solely
responsible for all construction under this contract, including the techniques, sequences,
procedures and means, for the coordination of all work. CONTRACTOR shall supervise
and direct the work, and give it all attention necessary for such proper supervision and
direction.
b. Disci1 aline and EmNrlo xment. CONTRACTOR shall maintain at all times strict
discipline among his employees, and he agrees not to employ for work on the project any
person unfit or without sufficient skill to perform the job for which he was employed.
c. Furnishing of Labor Materials etc. CONTRACTOR shall provide and pay for all
labor, materials and equipment, including tools, construction equipment and machinery,
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utilities,including water,transportation, and all other facilities and work necessary for the
proper completion of work on the project in accordance with the Contract Documents.
d. PaN,,ment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall
secure all licenses and permits necessary for proper completion of the work,paying the fees
thereof. CONTRACTOR warrants that it(and subcontractors or tradesmen, if authorized
in the Contract Documents)hold or will secure all trade or professional licenses required by
law for CONTRACTOR to undertake the contract work.
e. Guarantee. The CONTRACTOR hereby guarantees the Work to the full extent
provided in the Plans, Specifications, General Conditions, Special Conditions and other
Contract Documents. The CONTRACTOR shall remove,replace and/or repair at its own
expense and at the convenience of the OWNER any faulty, defective or improper Work,
materials or equipment discovered within one(1)year from the date of the acceptance of
the project as a whole by the Owner or for such longer period as may be provided in the
Plans,Specifications,General Conditions,Special Conditions or other Contract Documents.
Without limiting the generality of the foregoing, the CONTRACTOR warrants to the
OWNER,that all materials and equipment furnished under this Agreement will be of first
class quality and new, unless otherwise required or permitted by the other Contract
Documents,that the Work performed pursuant to this Agreement will be free from defects
and that the Work will strictly conform with the requirements of the Contract Documents.
Work not conforming to such requirements,including substitutions not properly approved
and authorized,shall be considered defective. All warranties contained in this Agreement
and in the Contract Documents shall be in addition to and not in limitation of all other
warranties or remedies required and/or arising pursuant to applicable law. Furthermore,
CONTRACTOR will provide written guarantee for work and materials for one(1)calendar
year after acceptance by OWNER.The one(1)period is not a limitation upon manufacturer
warranties or CONTRACTOR's payment and performance Bond(s).
17. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any
rights or any monies due or to become due hereunder without the prior,written consent of the
OWNER.
a. If upon receiving written approval from OWNER, any part of this Agreement is
subcontracted by CONTRACTOR,CONTRACTOR shall be fully responsible to OWNER
for all acts and/or omissions performed by the subcontractor as if no subcontract had been
made.
b. If OWNER determines that any subcontractor is not performing in accordance with this
Agreement,OWNER shall so notify CONTRACTOR who shall take immediate steps to
remedy the situation.
c. If CONTRACTOR,prior to the commencement of any Work subcontracts any part of
this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to
provide OWNER and its affiliates with insurance coverage as set forth by the OWNER.
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d. If upon receiving written approval from OWNER, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR and subcontractors shall make
prompt payments to subcontractors in accordance with s.218.735,Florida Statutes.
18. THIRD_PARTY RIGHTS-Nothing in this Agreement shall be construed to give any rights
or benefits to anyone other than OWNER and CONTRACTOR.
19. PROHIBITION AGAINST CONTINGENT FEES- CONTRACTOR warrants that it has
not employed or retained any company or person, other than a bona fide employee working
solely for the CONTRACTOR,to solicit or secure this Agreement,and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement.
20. NO JOINT VENTURE-Nothing herein shall be deemed to create a joint venture or principal-
agent relationship between the parties and neither party is authorized to,nor shall either party
act toward third persons or the public in any manner which would indicate any such relationship
with the other party.
21. INDEMNIFICATION — CONTRACTOR shall defend, indemnify and hold harmless the
OWNER, its officers,employees, agents, and city attorneys (individually and in their official
capacity), from liability, losses, damages, 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 Agreement. CONTRACTOR shall further defend, indemnify and hold
harmless the OWNER, its officers, employees, agents, and city attorneys (individually and in
their official capacity),from liability,losses,damages,and costs,including,but not limited to,
reasonable attorney's fees,to the extent caused by the failure to comply with the requirements
of Chapter 62-640, F.A.C., a violation of other local, state or federal laws governing proper
treatment of biolsolids,or a breach of the terms of this Agreement.
CONTRACTOR specifically assumes potential liability for actions brought by
CONTRACTOR'S own employees against the OWNER and, solely for the purpose of this
indemnification and defense, CONTRACTOR specifically waives its entitlement, if any,
to immunity under Section 440.11,Florida Statutes. This waiver has been specifically and
mutually negotiated by the parties.
The indemnification provided above shall obligate the CONTRACTOR to defend at its own
expense or to provide for such defense,at the option of the OWNER,as the case may be,of any
and all claims of liability and all suits and actions of every name and description that may be
brought against the OWNER or its officers,employees,and city attorneys which may covered
by this indemnification. In all events the OWNER and its officers,employees,and city attorneys
shall be permitted to choose legal counsel of its sole choice, the fees for which shall be
reasonable and subject to and included with this indemnification provided herein.
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In consideration of the CONTRACTOR's indemnity obligations,OWNER specifically agrees
to pay the CONTRACTOR the sum of TWO HUNDRED FIFTY AND NOl100 DOLLARS
($250.00) or ONE PERCENT (1%) OF THE CONTRACT SUM WHICHEVER IS
GREATER. The CONTRACTOR acknowledges receipt of the specific consideration for
CONTRACTOTs indemnification of OWNER and that the specific consideration is included
in the original Contract Price allocated by CONTRACTOR among all pay items - receipt of
which is acknowledged.
The indemnity provisions set forth in this Paragraph shall survive termination of this
Agreement.
22. SAFETY CONTRACTOR shall be solely and absolutely responsible and assume all liability
for the safety and supervision of its principals, employees, contractors, and agents while
performing work provided hereunder.
23. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby
represents and warrants to the OWNER the following:
a. CONTRACTOR is duly registered and licensed to do business in the State of Florida
and is in good standing under the laws of Florida,and is duly qualified and authorized to
carry on the functions and operations set forth in this Agreement.
b. The undersigned signatory for CONTRACTOR has the power,authority,and the legal
right to enter into and perform the obligations set forth in this Agreement and all applicable
exhibits thereto,and the execution,delivery,and performance hereof by CONTRACTOR
has been duly authorized by the board of directors and/or president of CONTRACTOR.In
support of said representation,CONTRACTOR agrees to provide a copy to the OWNER
of a corporate certificate of good standing provided by the State of Florida prior to the
execution of this Agreement.
c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the
work stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR
agrees to provide a copy of all said licenses to the OWNER prior to the execution of this
Agreement.
24. BOND-CONTRACTOR shall supply a materials,performance and payment bond(s)in form
approved by the OWNER and in accordance with Florida law and in an amount specified in the
Contract Documents for an Agreement in which the Total Contract Price exceeds$200,000.00
and for all other .Projects where the City Commission or City Manager has not specifically
exempted the CONTRACTOR from executing such bond.
For any Agreement in which the Total Contract Price is $200,000.00 or less and the City
Commission or City Manager has specifically exempted the CONTRACTOR from executing
a performance and payment bond, prior to receiving the final ten percent (10%) payment
hereunder, CONTRACTOR shall be required to provide certification from all laborers,
materialmen, and subcontractors that such laborers,materiahnen, and subcontractors have no
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claims against CONTRACTOR resulting from completion of the Work in accordance with
Paragraph 12 above. The CONTRACTOR shall provide a certified list of all subcontractors,
laborers,and material suppliers to the OWNER within five(5)days of receiving the Notice to
Proceed with the work. This list shall be updated thereafter as necessary with a certified
statement that the list and its updates include the names and addresses of all of those
subcontractors,laboreis,and material suppliers furnishing labor and/or material for the work.
25. INSURANCE-During the term of this Agreement,CONTRACTOR shall be responsible for
providing the types of insurance and limits of liability as set forth under this Paragraph.
Additionally, all independent contractors or agents employed by CONTRACTOR to perform
any Work hereunder shall fully comply with the insurance provisions contained in these
Contract Documents.
a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
minimum amount of$2,000,000 as the combined single limit for each occurrence to protect
the CONTRACTOR from claims of property damages which may arise from any Work
performed under this Agreement whether such Work are performed by the CONTRACTOR
or by anyone directly employed by or contracting with the CONTRACTOR
b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in
the minimum amount of$1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect the
CONTRACTOR from claims for damages for bodily injury,including wrongful death,as
well as from claims from property damage,which may arise from the ownership,use, or
maintenance of owned and non-owned automobiles,including rented automobiles whether
such operations be by the CONTRACTOR or by anyone directly or indirectly employed by
the CONTRACTOR.
c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance in at least such amounts as are required by law and
Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its
employees performing Work for the OWNER puisuant to this Agreement.
d. The CONTRACTOR shall maintain Pollution Liability Insurance coverage, which
covers any and all losses caused by pollution conditions(including sudden and non-sudden
pollution conditions)arising from the servicing and operations of CONTRACTOR(and any
subcontractors, representatives or agents) in the minimum amount of $1,000,000 per
occurrence and$2,000,000 general aggregate.
e. Current, valid insurance policies meeting the requirements herein identified shall be
maintained during the term of this Agreement.A copy of a current Certificate of Insurance
shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this
Agreement which satisfied the insurance requirements of this Paragraph 25. Renewal
certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall
also be a 30-day advance written notification to the OWNER in the event of cancellation or
modification of any stipulated insurance coverage. The OWNER shall be an additional
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named insured on all stipulated insurance policies as its interest may appear, from
time to time,excluding worker's compensation and professional liability policies.
26. MEDIATION/VENUE - The parties agree that should any dispute arise between them
regarding the terms or performance of this Agreement,both parties will participate in mediation.
The patties agree to equally share the cost of the mediator.Should the parties fail to resolve their
differences through mediation,then any cause of action filed hereunder shall be filed in the
Circuit or County Court for SEMINOLE County,Florida.
27. GOVERNING LAW & VENUE, - This Agreement is made and shall be interpreted,
construed, governed,and enforced in accordance with the laws of the State of Florida.Venue
for any state action or litigation shall be SEMINOLE County,Florida.Venue for any federal
action or litigation shall be Orlando,Florida.
28. ATTORNEY'S FEES-Should either party bring an action to enforce any of the terms of this
Agreement, each party shall bear its own costs and expenses of such action including, but not
limited to,reasonable attorney's fees,whether at settlement,trial or on appeal.
29. NOTICES-Any notice or approval under this Contract shall be sent, postage prepaid,to the
applicable party at the address shown on the fast page of this Contract.
30. WORK IS A PRIVATE MDERTAKING - With regard to any and all Work performed
hereunder,it is specifically understood and agreed to by and between the parties hereto that the
contractual relationship between the OWNER and CONTRACTOR is such that the
CONTRACTOR is an independent contractor and not an agent of the OWNER. The
CONTRACTOR, its contractors, partners, agents, and their employees are independent
contractors and not employees of the OWNER.Nothing in this Agreement shall be interpreted
to establish any relationship other than that of an independent contractor,between the OWNER,
on one hand,and the CONTRACTOR,its contractors, partners, employees, or agents,during
or after the performance of the Work under this Agreement.
31. DOCUMENTS-Public Records:It is hereby specifically agreed that any record,document,
computerized information and program,audio or video tape,photograph,or other writing of the
CONTRACTOR and its independent contractors and associates related, directly or indirectly,
to this Agreement,may be deemed to be a Public Record whether in the possession or control
of the OWNER or the CONTRACTOR.Said record,document,computerized information and
program,audio or video tape,photograph,or other writing of the CONTRACTOR is subject to
the provisions of Chapter 119,Florida Statutes,and may not be destroyed without the specific
written approval of the OWNER's City Manager. Upon request by the OWNER, the
CONTRACTOR shall promptly supply copies of said public records to the OWNER.All books,
cards,registers,receipts,documents,and other papers in connection with this Agreement shall
at any and all reasonable times during the normal working hours of the CONTRACTOR be
open and freely exhibited to the OWNER for the purpose of examination and/or audit.Failure
by CONTRACTOR to grant such access and comply with public records laws and/or requests
shall be grounds for immediate unilateral cancellation of this Agreement by the OWNER upon
delivery of a written notice of cancellation. If CONTRACTOR fails to comply with this
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Section,and the OWNER must enforce this Section,or the OWNER suffers a third party award
of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to
CONTRACTOR's failure to comply with this Section, the OWNER shall collect from
CONTRACTOR prevailing party attorney's fees and costs, and any damages incurred by the
City,for enforcing this Section against CONTRACTOR. And,if applicable,the OWNER shall
also be entitled to reimbursement of all attorneys'fees and damages which the OWNER had to
pay a third party because of the CONTRACTOR's failure to comply with this Section. The
terms and conditions set forth in this Section shall survive the termination of this Agreement.
The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and
subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any
document produced by CONTRACTOR under this Agreement constitutes a Public Record;
CONTRACTOR shall comply with the Florida Public Records Law.
32. SOVEREIGN IMMUNITY-The OWNER intends to avail itself of the benefits of Section
768.28,Florida Statutes and any other statutes and common law governing sovereign immunity
to the fullest extent possible. Neither this provision nor any other provision of this Agreement
shall be construed as a waiver of the OWNER's right to sovereign immunity under Section
768.28,Florida Statutes,or other limitations imposed on the OWNER's potential liability under
state or federal law. CONTRACTOR agrees that OWNER shall not be liable under this
Agreement for punitive damages or interest for the period before judgment. Further,OWNER
shall not be liable for any claim or judgment,or portion thereof,to any one person for over two
hundred thousand dollars ($200,000.00), or any claim or judgment,or portion thereof,which,
when totaled with all other claims or judgments paid by the State or its agencies and subdivisions
arising out of the same incident or occurrence, exceeds three hundred thousand dollars
($300,000.00). Nothing in this Agreement is intended to inure to the benefit of any third party
for the purpose of allowing any claim which would otherwise be barred under the doctrine of
sovereign immunity or by operation of law. This paragraph shall survive termination of this
Agreement.
33. HEADINGS-Paragraph headings are for the convenience of the patties only and are not to be
construed as part of this Agreement.
34. INTEGRATION• MODIFICATION,
- The drafting, execution, and delivery of this
Agreement by the Parties has been induced by no representations, statements, warranties, or
agreements other than those expressed herein. This Agreement embodies the entire
understanding of the parties, and there are no further or other agreements or understandings,
written or oral,in effect between the parties relating to the subject matter hereof unless expressly
referred to herein.Modifications ofthis Agreement shall only be made in writing signed by both
parties.
35. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms, or
provision of this Agreement shall not be considered a waiver of that term, condition, or
provision in the future. No waiver, consent, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
each party hereto. This Agreement may be executed in any number of counterparts, each of
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which when so executed and delivered shall be considered an original agreement; but such
counterparts shall together constitute but one and the same instrument.
36. DRAFTING - OWNER and CONTRACTOR each represent that they have both shared
equally in drafting this Agreement and no parry shall be favored or disfavored regarding the
interpretation of this Agreement in the event of a dispute between the parties.
37. NOTICE,-Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed,certified mail,return receipt requested,postage prepaid to:
For CONTRACTOR:
Synagro South,LLC
Attn:Lorrie Rossiter
435 Williams Court,Suite 100
Baltimore,MD 21220
(904)460-5843
For OWNER:
City of Winter Springs
Attn:Public Works/Utilities Director
1126 E.State Road 434
Winter Springs,Florida 32708
(407)327-5989
Either party may change the notice address by providing the other party written notice of the
change.Any Notice given as provided herein shall be deemed received as follows:if delivered
by personal service,on the date so delivered;if delivered to an overnight courier service,on the
business day immediately following delivery to such service;and if mailed,on the third business
day after mailing.
38. CONFLICT OF INTEREST.
a.The CONTRACTOR agrees that it will not engage in any action that would create a conflict
of interest in the performance of its obligations pursuant to this Contact with the OWNER or
which would violate or cause others to violate the provisions of Part III, Chapter 112, Florida
Statutes,relating to ethics in government and the OWNEWs Personnel Policies.
b.The CONTRACTOR hereby certifies that no officer,agent or employee of the OWNER has
any material.interest(as defined in Section 112.312(15),Florida Statutes,as over five percent
(5%)either directly or indirectly,in the business of the CONTRACTOR to be conducted here,
and that no such person shall have any such interest at any time during the term of this
CONTRACT,
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li
c. Pursuant to Section 216.347, Florida Statutes, the CONTRACTOR hereby agrees that
monies received from the OWNER pursuant to this Agreement will not be used for the purpose
of lobbying the Legislature or any other State or Federal Agency.
39. ADDITIONAL ASSURANCES.
a. No principal (which includes officers, directors, or executive) or individual holding a
professional license and performing Work under this Agreement is presently debarred,
suspended, proposed for debarment, declared ineligible or voluntarily excluded from
participation in any Work required by this Agreement by any Federal, State, or local
governmental commission, department, corporation, subdivision,or agency;
b. No principal (which includes officers, directors, or executive), individual holding a
professional license and performing Work under this Agreement, employee, or agent has
employed or otherwise provided compensation to,any employee or officer of the OWNER;
and
c. No principal (which includes officers, directors, or executive), individual holding a
professional license and performing Work under this Agreement, employee or agent has
willfully offered an employee or officer of the OWNER any pecuniary or other benefit with
the intent to influence the employee or officer's official action or judgment.
40. SECURITY-The OWNER may conduct criminal background checks of CONTRACTOR
personnel who would perform services for this Scope of Work. Any officer, agent, or
employee that fails the background check must be replaced immediately at the request of
the OWNER for any reasonable cause not prohibited by law. The OWNER shall have final
authority, based on security reasons: (i) to determine when security clearance of
CONTRACTOR personnel is required; (ii) to determine the nature of the security
clearance, up to and including fingerprinting CONTRACTOR personnel; and (iii) to
determine whether or not any individual or entity may provide services under this
Agreement. If the OWNER objects to any CONTRACTOR personnel for any reasonable
cause not prohibited by law, then CONTRACTOR will, upon notice from OWNER,
remove any such individual from performance of services. The OWNER may also require
the CONTRACTOR's personnel to wear badges identifying themselves as such while
performing services on site.
41. BIOSOLIDS - CONTRACTOR shall comply with all requirements of federal, state, and
local laws, rules, regulations, standards, and/or ordinances applicable to the performance
of services required by this Agreement, including, but not limited to Chapter 62-640,
P.A.C. CONTRACTOR shall secure and maintain any and all permits or licenses,
including any necessary Florida Department of Environmental Protection permits pursuant
to Chapter 62-640, F.A.C.,required to complete the Work and dewater biosolids.
CONTRACTOR shall clean up any setup and work area provided to CONTRACTOR at
the applicable Waste Water Treatment Plant at the end of each day of operations. Daily
cleanup shall include the removal of soil or residuals dropped on OWNER's property and
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removing spilled residual and sanitizing any spill area. CONTRACTOR shall immediately
report spills to the City's Utilities and Public Works Director along with any other entities
as required by law or permit.
IN WITNESS WHEREOF,the parties have hereunto set their hands and seal on the date first
above written.
_f
CITY OF I" .R SPRINS
P"
o�
BY:
Shawn B le,X,,`;,sty Manager
Date , .° . ._
ATTES"" —'
Christian Gowan.,City ClerkC� M "
CONTRACTOR
e °
° I-. .-L
Print name/title:
.... .
Date:( " .------------ /
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S"pA'Jl"JE OF r'Ylam
COLINTYOF
The foregoing instrument was acknowledged before sue by means of(.............)physical presence or
►_ .. _� lea�s p rs� ll 14 vc�wn t o me or who produced I
s id �i � �ri say grad leas did take an oath.
Constance A. Reynolds _ �� � pa� l� Si _.... — _.... ....
Votary I�ub iic � ..w,�..... . a re �
Anne Arundel County, Maryland
Bey Commission E xplir s (Print Name)
September 28,2023
Notary Public, Stake of, r
y C o nission Expires a -59
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