HomeMy WebLinkAboutDriveways, Inc. - Piggyback Rider Agreement - Emergency Work 2023 07 12 (2)PiGGYBACKRIDER—DRIVEWA]S INC.
Enreraency Work
Hourly Rate for Labor and Equipment
THIS "PIGGYBACK" RIDER AGREEMENT ("Agreement") is made thishday
of _ 2023, between the CITY OF WINTER SPRINGS, a Florida
Municipal Cor oration ("City' or "Owner"), and DRIVEWAYS, INC., a Florida Corporation
whose principal address is 3300 Bobbi Lane, Titusville, Florida 32780 ("Contractor"). The City
and the Contractor agree as follows:
1. The Purchasing Policies of the City of Winter Springs allow for "piggybacking" contracts.
Pursuant to this procedure, the City is allowed to "piggyback" an existing government contract,
without the need to obtain formal or informal quotations, proposals or bids. The parties agree that
the Contractor has entered into a contract with the Utilities Commission of the City of New Smyrna
Beach, Florida, (the "Original Government Agency") said contract being identified as
AGREEMENT FOR UNDERGROUND UTILITY CONTRACTOR SERVICES, dated
September 28, 2021 (said original contract between the Utility Commission of the City of New
Smyrna Beach and Driveways, Inc., being referred to as the "Original Government
Contract").
2. The Original Government Contract, including al] associated Contract Documents and
Exhibits and Attachments as defined in the Original Government Contract, is incorporated herein
by reference and is attached as Exhibit "i" to this Agreement. All the terms and conditions set
forth in the Original Government Contract (Exhibit "I") are fully binding on the parties and said
terms and conditions are incorporated herein except to the extent expressly modified herein.
3. Notwithstanding the requirement that the Original Government Contract is fully binding
on the parties, the parties have agreed to modify certain provisions of the aforernentioned Contract
Documents as applied to this Agreement between the Contractor and the City of Winter Springs,
as follows:
a) Terminology:
Notwithstanding anything in Exhibit "1" to the contrary, the following terms shall be substituted
throughout the Original Government Contract: All references to the "Commission" shall be
substituted with references to the "City of Winter Springs.' All references to the "Service
Provider" shall reference the "Contractor" or "Driveways, Inc." Further references to any
specifically identified Commission codes, policies, or procedures shall refer to similar and
substantively equivalent Winter Springs codes, policies, or procedures, if any.
b) Term:
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Notwithstanding anything in Exhibit'` 1" to the contrary, the term of this Agreement with the City
of Winter Springs shall take effect on the date of its execution by the City and Contractor (the
'Effective Date"). The initial term shall be from the Effective Date through i0etober 11 20241with
the option for one (1) additional one-year renewal period, which may be exercised by mutual
agreement of the Parties, irrespective of the Original Government Agency's decision to renew tire
Original Government Contract for additional terms. Either Party may elect to terminate this
Agreement by providing the other party with thirty (30) days prior written notice.
c) Pricing:
The pricing set fotlh in SECTION 6 of the Original Government Contract shall remain furrt
throughout the duration of the initial term and all optional renewal tenths. Price adjustments agreed
to by the Original Government Agency after the Effective Date of this Agreement shall not be
binding upon the City of Winter Springs unless an Amendment to this Agreement is properly
executed by an authorized representative of the City of Winter Springs.
hlvoices shall be paid in accordance with Florida's Loca] Government Prompt Payment Act.
d) Order of Precedence:
Notwithstanding any provisions to the contrary in the Original Government Contract, the Contract
Documents shall consist of:
1. This Rider.
2. The Original Government Contract, together with all exhibits, attachments, and
duly executed amendments.
3. Any and all Specifications, Amendments, Work Orders, Change Orders, and/or
Field Orders issued after the Effective Date of this Agreement by the City.
The order of precedence will be as follows in the event of a conflict among the Contract
Documents:
1. Properly executed Change Orders, Field Orders, Task Orders, and Amendments
issued after the Effective Date of this Agreement.
2. This Rider.
3, The Original Government Contract
e) Pro iectTime:
Tilne shall be of the esseihce with regards to this Agreement.
The date of Substantial Completion of the Work is the date certified ]h writing by the City when
(])construction is sufficiently complete, in accordance with the contract documents, so the City
can occupy or utilize the work for its intended purpose, as expressed by the contract documents,
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Commented [kt]; I am propoemg [tut as the rmhal term so
that the end of the initial term will coincide with the original
government conhaet term dates 1 do not see a renewal by
New Smyrna for the 2022-2023 year. so we do need to
oblam that. The New Smyrna contract will evpire with no
additional options to renew in October 2025 For this
reasoa I have one additional one year renewal penod in This
corwact If Driveways Inc will agree to provide the City
with addhhonal renewal penodswith the samepncmg, we
can adlust this paragraph
and (2) any additional project -specific requirements or milestones for "Substantial Completion"
identified in the general, special, or technical conditions or constniction plans have been satisfied.
f) Insurance:
Certificate Holder address shall read:
City of Winter Springs
Attn: Finance Department
1126 East State Road 434
Winter Springs, FL 32708
The remainder of the insurance requirements presented in Exhibit'`1" shalt be unchanged.
g) Public Records:
The following provisions are added to Section 16.2 of the Original Government Contract.
IF T11E CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORiDA STATUTES, TO ITS DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT: City Clerk, City of Winter Springs, 1126 East State Road 434, Winter
Springs, FL 32708 or City-Clerk-Department@tivinterspringsfl.org or (407) 327-6560.
]f Contractor fails to comply with this Section, and the City must enforce this Section, or the City
suffers a third party award of attorneys fees and/or damages for violating Chapter 119, Florida
Statutes, due to Contractor's failure to comply with this Section, the City 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 City shall also be entitled to
reimbursement of all attorneys' fees and damages which the City had to pay a third party because
of the Contractor's failure to comply with this Article,
The remainder of this section shall remain unchanged.
h) Venue:
The Contract shall be governed by the laws of the State of Florida. Venue for any action arising
out of or relating to this Contract shall lie in Seminole County, Florida for state court actions and
Orlando, Florida for federal court actions,
i) E-Verify:
A.
Pursuant to section 448.095,
Florida Statutes,
begim�ing
January
l , 2021, Contractor
shall
register with
and use the U.S.
Department of
Homeland
Security's
E-Verify system,
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https:!/e-verify.uscis.gov/emp, to verify the work authorization status of all employees
hired on and after January 1, 2021.
B. Subcontractors
(i) Contractor shall also require all subcontractors performing work under this
Agreement to use the E-Verify system for any employees they may hire during the term of
this Agreement.
{ii) Contractor shall obtain from all such subcontractors an affidavit stating the
subcontractor does not employ, contract with, or subcontract with an unauthorized alien,
as defined in section 448.095, Florida Statutes.
(iii) Contractor shall provide a copy of all subcontractor affidavits to the City upon
receipt and shall maintain a copy for the duration of the Agreement.
C, Contractor must provide evidence of compliance with section 448,095, Florida
Statutes, Evidence shall consist of an affidavit from the Contractor stating all employees
hired on and after January 1, 2021 have had their work authorization status verified through
the E-Verify system and a copy of their proof of registration in the E-Verify system.
D. Failure to comply with this provision is a material breach of theAgreement, and shall
result in the immediate terntination of the Agreement without penalty to the City.
Contractor shall be liable for all costs incurred by the City securing a replacement
Agreement, including but not limited to, any increased costs for the same services, any
costs due to delay, and rebidding costs, if applicable.
j) Notice:
To the City:
The City of Winter Springs
Attn: City Manager
City of Winter Springs, Florida
1126 East State Road 434
Winter Springs, FL 32708
To the Contractor:
Driveways, Inc.
Attn: Heidi Tolliver
3300 N. Bobbi Lane
Titusville, FL 32780
(321) 267-4032
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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.
k) Sovereigp Immunity:
The City 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
City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations
imposed on the City's potential liability under state or federal law. Contractor agrees that City
shall not be liable under this Agreement for punitive damages or interest for the period before
judgment, Further, City 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 parry for the purpose of allowing any claim which would othenvise be barred under the
doctrine of sovereign immunity or by operation of law. This paragraph shall survive termination
of this Agreement.
I) Attorney 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 attorneys
fees, whether at settlement, trial or on appeal.
m) Mediation:
Tlie parties agree that should any dispute arise between then regarding the terms or performance
of this Agreement, both parties will participate in mediation. The parties 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.
n) Force Majeure:
The Force Majeure provision in Section 23 of the Original Government Contract is hereby stricken
and replaced with the following;
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, strike (except involving Contractor's labor force), extraordinary breakdown of or
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damage to City's facilitiesI court injunction or order, federal and/or state law and/or regulation, or
order by any other regulatory agency, provided that the prompt notice of such delay is given by
such party to the other and each of the parties hereto shall be diligent in attempting to remove such
cause or causes. If any circumstance of Force Majeure remains in effect for sixty (60) days or
longer, either party may terminate this Agreement. Monetary damages will not be awarded to
Contractor in the event of Force Majeure.
o) Indemnification:
The Indemnification provision in Section 23 of the Original Government Contract is hereby
stricken and replaced with the following:
CONTRACTOR shall indemnify and hold harmless the OWNER, its officers, employees,
agents, engineer, 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 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, engineer, 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.
In consideration of the CONTRACTOR's indemnity obligations, ONE PERCENT (1%)
OF THE CONTRACT SUM as specific consideration for CONTRACTOR's 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,.
p) Waiver:
By making payments, City does not waive claims including but not limited to those relatuig to:
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i. Faulty work appearing after the work has been completed.
ii. Work which does not comply with the contract documents.
Outstanding claims of liens,
iv. Failure of Contractor to comply with any special guarantees required by the
Contract Documents.
q) Limitation of Liabititti: Section 29 of the Original Government Contract is stricken in its
entirety.
r) Scope of Work:
"Exhibit "A": Services To Be Provided'' of the Original Govemment Contract is hereby stricken
and replaced with the following:
Scope of Work:
Provide emergency underground utility work in the City's water and wastewater and reclaimed
water service area to include repair and rehabilitation of exisking water and wastewater
infrastructure.
Tltis scope of work encompasses one type of work: Emergency Work. Notwithstanding
anything to the contrary in Exhibit A of the Original Government Contract, this Scope of
Services shall not include Planned NVork. Contractor shall provide insurance, labor, and
supervision to perform all work necessary to ensure the utility is operating and functioning as its
intended use, Material supplies will depend on the type of work required. Work shall adhere to the
City's rules, design and construction specifications,
The City Manager, or designee, shall be responsible for declaring type of work heeded. No bids
shall be required pursuant to this Agreement. All Emergency Work shall be provided for via the
issuance of a Work Order according to the price schedule set forth in Section 6 of the Original
Government Contract The scope of work for specific projects shall be encapsulated in the Work
Order for that project, at such a time as Emergency Work is required.
All Work shall be consistent with good and sound practices within the construction industry
and within industry standards including, but not limited to, construction means, methods,
procedures & techniques, uses of materials, selection of equipment and choice of product
manufacturers.
Emergency Work is defined as required utility work that instantaneously affects the welfare of a
City Customer and/or the general public. When Emergency Work is declared:
i. Contractor shall mobilize within forty-eight (48) hours.
ii. Contractor shall have eight (R) business hours to respond with availability.
Business hours are 7;00 a.m, to 5:00 p.m.
iii. The City shall supply required materials.
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iv. Contractor shall be paid on an hourly basis which shall include time and
equipment only. Regular Time hours are Monday through Friday, 7:00 a.m, to
7:00 p.m. Contractor shall be compensated in accordance with the fee schedule
contained in Section 6 of the Original Government Contract,
IN WITNESS WHEREOF, authorized representatives of the CITY and the
CONTRACTOR have executed this Piggyback Rider to the Original Government Contract on
the date below noted:
Interim City Manag r
Date: I
ATTEST:
A
Christian Gowan, City Clerk
DR[VEIYAYS, Ir
Print Name:
Print Title: U X Je
Date: -11�7I�"�
EXHIBIT I
ORIGINAL GO VERNRIENT CONTRACT
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