HomeMy WebLinkAboutAgreement_General_06/11/2009 (3)CONTRACT FOR EMERGENCY DEBRIS AND DISASTER RECOVERY SERVICES
THIS CONTRACT, between the Village of Tequesta, a municipal corporation of the
State of Florida located at 345 Tequesta Drive, Tequesta, Florida 33469, (hereinafter referred to
as the "Village") and Phillips and Jordan, Inc., a foreign corporation, whose principal address
is 6621 Wilbanks Road, Knoxville, Tennessee 37912-1314 (hereinafter referred to as the
"Contractor").
WHEREAS, the Village requires the removal, reduction, and disposal of
hurricane/disaster debris; and
WHEREAS, the Contractor represents it is capable and prepared to provide such
services; and
WHEREAS, the Contractor has entered into a certain contract with the Solid Waste
Authority ("SWA") for these services, Contract No. 07-240 dated June 14, 2007 ("SWA
Contract"); and
WHEREAS, Contract No. 07-240 with the SWA was competitively bid and the Village
desires to enter into a contract with the Contractor under the same terms and conditions as the
SWA Contract.
NOW, THEREFORE, in consideration of the promises contained herein, the parties
hereto agree as follows:
ARTICLE 1-EFFECTIVE DATE/TERM
The effective date of this Contract shall be June 11, 2009.
Term of Contract shall be for a three (3) year period, unless otherwise terminated as provided
herein. The Village shall have the option of extending the Contract for additional three (3) year
periods at the same terms and conditions with approval from the Village Council. Such extension
shall be in the form of a written Amendment to the Contract executed by both parties. The
continuance of this Contract from year to year is contingent upon successful annual
recertification of the Contractor's capabilities. The recertification process will be a review of the
fiscal (bankruptcy, etc), logistical (equipment availability, etc.), and moral (conviction for
environmental crime, conviction for crime against a public entity, etc.) responsibility of the
Contractor and a determination by the Village, based on this review, of whether or not the
Contractor continues to be a viable firm to provide the services described in this Contract.
ARTICLE 2- SERVICES TO BE PERFORMED BY CONTRACTOR
The Contractor shall perform Emergency Debris Removal and Disaster Recovery Services as
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may be specifically authorized by the Village. Such authorizations will be referred to as Task
Orders. Each Task Order will set forth a specific scope of services, rate/amount of compensation,
completion date, and other pertinent details of the task being authorized. The Village, by virtue
of this contract, gives the Contractor no guarantee of any work/services or any specific amount
of work/services that may be accomplished during the period this contract is in full force and
effect.
ARTICLE 3- COMPENSATION
3.1-GENERAL
The Village shall pay Contractor in accordance with the Fee Schedule, Exhibit A, which is
attached hereto and incorporated by reference as part of this Contract. If needed, compensation
may be negotiated as a lump sum or not-to-exceed amount for any Task Order.
The Contractor shall submit semi-monthly invoices for services rendered. Invoices must
reference the Task Order number. Invoices shall include a statement of progress and appropriate
audit quality detail to satisfy FEMA requirements.
Payment of the Contractor by the Village is not contingent upon the Village being reimbursed by
the Federal Emergency Management Agency. Payment to the Contractor will be made for any
work directed by the Village which is determined by Federal and State agencies to be ineligible
for reimbursement.
Each individual invoice shall be due and payable thirty (30) days after receipt by the Village of
the Contractor's correct, fully documented, invoice. All invoices shall be delivered to:
Village of Tequesta
345 Tequesta Drive
Te uesta, Florida 33469
In order for both parties herein to close their books and records, the Contractor will clearly state
"Final Invoice" on the Contractor`s final/last billing to the Village. This certifies that all services
have been properly performed and all charges and costs have been invoiced to the Village. Since
this account will thereupon be closed, any and other further charges if not properly included on
this final invoice are waived by the Contractor.
The Village will retain five percent (5%) of the payment under each Task Order until such time
as the entire project is completed to the Village's satisfaction and all sub-contractors and any
material suppliers verify that they have been paid.
ARTICLE 4 -INSURANCE
During the performance of the services under this Contract, the Contractor shall maintain the
following insurance policies by an insurance company authorized to do business in Florida.
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General Liability Insurance with bodily injury limits of not less than $ 1,000,000
for each occurrence, and with property damage limits of not less than $1,000,000
for each occurrence.
2. Automobile Liability Insurance with bodily injury limits of not less than
$1,000,000 for each person and not less than $1,000,000 for each accident and
with property damage limits of not less than $1,000,000 for each accident.
3. Workers' Compensation Insurance in accordance with statutory requirements
and Employer's Liability Insurance with limits of not less than $500,000 for each
accident, $500,000 for each disease, and $500,000 aggregate.
4. Excess Liability Insurance with limits of not less than $10,000,000 for each
occurrence and annual aggregate.
Deductible amounts shall not exceed five percent (5%) of the total amount of required insurance
in each category. Should any policy contain any unusual exclusions, said exclusions shall be so
indicated on the certificate(s) of insurance.
The Contractor shall furnish the Village certificates of insurance which shall include a provision
that policy cancellation, non-renewal or reduction of coverage will not be effective until at least
thirty (30) days written notice has been made to the Village. The Contractor shall include the
Village as an additional insured on the General Liability and Automobile Liability insurance
policy required by the Contract. All of the Contractor's sub-contractors shall be required to
include the Village and the Contractor as additional insured on their General Liability insurance
policies.
In the event that sub-contractors used by the Contractor do not have insurance, or do not meet the
insurance limits, the Contractor shall indemnify and hold harmless the Village for any claim in
excess of the sub-contractor's insurance coverage.
The Contractor shall not commence work under this Contract until all insurance required as
stated herein has been obtained and such insurance has been approved by the Village.
ARTICLE 5- STANDARD OF CARE
The Contractor shall exercise the same degree of care, skill, and diligence in the performance of
the services as is ordinarily provided by a comparable professional under similar circumstances
and the Contractor shall, at no additional cost to the Village, re-perform services which fail to
satisfy the foregoing standard of care.
The Contractor warrants that all services shall be performed by skilled and competent personnel
to the highest professional standards in the field.
ARTICLE 6- INDEMNIFICATION
6.1 GENERAL
Having considered the risks and potential liabilities that may exist during the performance of the
services and in consideration of the promises included herein, the Village and the Contractor
agree to allocate such liabilities in accordance with this Article 6.
6.2 INDEMNIFICATION
The Contractor agrees to protect, defend, indemnify, and hold harmless the Village, its
employees and representatives, from any and all claims and liabilities including all attorney's
fees and court costs, including appeals, for which the Village, its employees and representatives,
can or maybe held liable as a result of injury (including death) to persons or damage to property
occurring by reason of any acts or omissions of the Contractor, its employees, or agents, arising
out of or connected with this Contract. The Contractor shall not be required to indemnify the
Village or its agents, employees, or representatives, when an occurrence results solely from the
wrongful acts or omissions of the Village, or its agents, employees or representatives.
6.3 SURVIVAL
Upon completion of all services, obligations and duties provided for in this Contract, or in the
event of termination of this Contract for any reason, the terms and conditions of this Article 6
shall survive.
ARTICLE 7- INDEPENDENT CONTRACTOR
The Contractor undertakes performance of the services as an independent contractor and shall be
wholly responsible for the methods of performance. The Village shall have no right to supervise
the methods used, but the Village shall have the right to observe such performance. The
Contractor shall work closely with the Village in performing services under this Contract.
The Contractor shall not pledge the Village's credit or make it a guarantor of payment of surety
for any Contract, debt, obligation, judgment, lien or any form of indebtedness. The Contractor
further warrants and represents that it has no obligation or indebtedness that would impair its
ability to fulfill the terms of this Contract.
ARTICLE 8- AUTHORITY TO PRACTICE
The Contractor hereby represents and warrants that it has and will continue to maintain all
licenses and approvals required to conduct its business, and that it will at all times conduct its
business activities in a reputable manner.
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ARTICLE 9- COMPLIANCE WITH LAWS
In performance of the services, the Contractor will comply with applicable regulatory
requirements including federal, state, special district, and local laws, rules, regulations, orders,
codes, criteria and standards.
ARTICLE 10- SUB-CONTRACTING
The Village reserves the right to accept the use of asub-contractor or to reject the selection of a
particular sub-contractor and to review the capabilities of any sub-contractor to perform properly
under this Contract. Rejection of any sub-contractor will be based on, but not limited to, negative
references, insufficient resources, or conviction of a Public Entity Crime. If asub-contractor
fails to perform or make progress, as required by this Contract, and it is necessary to replace the
sub-contractor to complete the work in a timely fashion, the Contractor shall promptly do so,
subject to acceptance of the new sub-contractor by the Village.
ARTICLE 11-FEDERAL AND STATE TAXES
The Village is exempt from Federal Tax and State Sales and Use Taxes. Upon request, the
Village will provide an exemption certificate to the Contractor. The Contractor shall not be
exempted from paying sales tax to its suppliers for materials to fulfill contractual obligations
with the Village, nor shall the Contractor be authorized to use the Village's Tax Exemption
Number in securing such materials.
ARTICLE 12- AVAILABILITY OF FUNDS
The obligations of the Village under this Contract are subject to the availability of funds lawfully
appropriated for its purpose by the Village Council.
ARTICLE 13- AUTHORITY'S RESPONSIBILITIES
The Village shall be responsible for providing access to all project sites, and providing
information required by the Contractor that is available in the files of the Village.
ARTICLE 14- TERMINATION OF CONTRACT
This Contract may be terminated by the Contractor upon thirty (30) days prior written notice to
the Village in the event of substantial failure by the Village to perform in accordance with the
terms of the Contract through no fault of the Contractor. It may also be terminated by the Village
with or without cause immediately upon written notice to the Contractor. Unless the Contractor
is in breach of this Contract, the Contractor shall be paid for services rendered to the Village's
satisfaction through the date of termination. After receipt of a Termination Notice and except as
otherwise directed by the Village, the Contractor shall:
a. Stop work on the date and to the extent specified.
b. Terminate and settle all orders and subcontracts relating to the performance of the
terminated work.
c. Transfer all work in process, completed work, and other material related to the
terminated work to the Village.
d. Continue and complete all parts of the work that have not been terminated.
The Contractor shall be paid for services actually rendered to the date of termination and for any
reasonable costs incurred.
ARTICLE 15- UNCONTROLLABLE FORCES
Neither the Village nor the Contractor shall be considered to be in default of this Contract 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 Contract and which is beyond the reasonable
control of the non-performing party. It includes, but is not limited to fife, flood, earthquakes,
storms, lightning, epidemic, war, riot, civil disturbance, sabotage, and governmental actions,
with the exception of those events that trigger the activation of this Contract.
Neither party shall, however, be excused from performance if nonperformance is due to forces
which are preventable, removable, or remediable and which the nonperforming party could have,
with the exercise of reasonable diligence, prevented, removed or remedied with reasonable
dispatch. The nonperforming 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 Contract.
ARTICLE 16- GOVERNING LAW AND VENUE
This Contract shall be governed by the laws of the State of Florida. Any and all legal action
necessary to enforce the Contract will be held in Palm Beach County and the Contract will be
interpreted according to the laws of Florida.
ARTICLE 17- NON-DISCRIMINATION
The Contractor warrants and represents that all of its employees are treated equally during
employment without regard to race, color, religion, gender, age or national origin.
ARTICLE 18- WAIVER
A waiver by either the Village or the Contractor of any breach of this Contract shall not be
binding upon the waiving party unless such waiver is in writing. In the event of a written waiver,
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such a waiver shall not affect the waiving party's rights with respect to any other or further
breach. The making or acceptance of a payment by either party with knowledge of the existence
of a default or breach shall not operate or be construed to operate as a waiver of any subsequent
default or breach.
ARTICLE 19-SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Contract, or the occurrence
of any event rendering any portion or provision of this Contract void, shall in no way affect the
validity or enforceability of any other portion or provision of the Contract. Any void provision
shall be deemed severed from the Contract and the balance of the Contract shall be construed and
enforced as if the Contract did not contain the particular portion or provision held to be void. The
parties further agree to reform the Contract to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision.
The provisions of this section shall not prevent the entire Contract from being void should a
provision which is of the essence of the Contract be determined to be void.
ARTICLE 20- BONDS
The Contractor shall maintain an appropriate size bond as determined by the Village after
assessment of damage and definition of the Contractor's scope of service. In case of hurricane
caused damage, a Category I storm would require a $2,000,000 Bond, a Category II would
require a $4,000,000 Bond, a Category III would require a $6,000,000 Bond, a Category IV
would require a $8,000,000 Bond, and a Category V would require a $10,000,000 Bond. The
Bond required would be a Performance and Payment Bond. The cost of the Bond is included in
the unit rates in the Fee Schedule, Exhibit A.
ARTICLE 21- MODIFICATION
The Contract may not be modified unless such modifications are evidenced in writing signed by
both the Village and the Contractor. Such modifications shall be in the form of a written
Amendment executed by both parties.
ARTICLE 22- SUCCESSORS AND ASSIGNS
The Village and the Contractor each binds itself and its partners, successors, assigns and legal
representatives to the other party to this Contract and to the partners, successors, executors,
administrators, assigns, and legal representatives. The Contractor shall not assign this Contract
without the express written approval of the Village via executed amendment.
ARTICLE 23- 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 Contract 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
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any other consideration contingent upon or resulting from the award or making of this Contract.
ARTICLE 24- TRUTH-IN-NEGOTIATION CERTIFICATE
Execution of this Contract by the Contractor shall act as the execution of atruth-in-negotiation
certificate certifying that the wage rates and costs used to determine the compensation provided
for in this Contract are accurate, complete, and current as of the date of the Contract.
The said rates and costs shall be adjusted to exclude any significant sums should the Village
determine that the rates and costs were increased due to inaccurate, incomplete or noncurrent
wage rates or due to inaccurate representations of fees paid to outside contractors. The Village
shall exercise its rights under this "Certificate" within one (1) year following payment.
ARTICLE 25 -OWNERSHIP OF DOCUMENTS
The Contractor shall be required to cooperate with other contractors relative to providing
information requested in a timely manner and in the specified form. Any and all documents,
records, disks, original drawings, or other information shall become the property of the Village
for it's use and/or distribution as maybe deemed appropriate by the Village.
ARTICLE 26 -ACCESS AND AUDITS
The Contractor shall maintain financial and program records to justify all charges and costs
incurred in performing the work for at least three (3) years following final payment by the
Village as Federal Emergency Management Agency sub-grantee as required by FEMA'S 322
Public Assistance Guide, page 114, as amended. The Village shall have access to such books,
records, and documents as required in this section for the purpose of inspection or audit during
normal working business hours at the Contractor's place of business.
ARTICLE 27- NOTICE
Any notice, demand, communication, or request required or permitted hereunder shall be in
writing and delivered in person or sent by certified mail; postage prepaid or by a recognized
overnight express mail service as follows:
As To Village As To CONTRACTOR
Village of Tequesta Phillips and Jordan, Inc.
345 Tequesta Drive P.O. Drawer 604, 191 P&J Road
Tequesta, Florida 33469 Robbinsville, North Carolina 28771
Attention: Village Manager Attention: Dudley Orr, Vice President
Office: 561.575.6272 Fax: 561.575.6203 Office: 828.479.3371 Mobile No: 828.735.0947
Fax.: 828.479.3010
Notices shall be effective when received at the addresses as specified above. Changes in the
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respective addresses to which such notice is to be directed may be made from time to time by
either party by written notice to the other party. Facsimile transmission is acceptable notice
effective when received, however, facsimile transmissions received (i.e.; printed) after 5:00 p.m.
or on weekends or holidays, will be deemed received on the next business day. The original of
the notice must additionally be sent as required herein.
Nothing contained in this Article shall be construed to restrict the transmission of routine
communications between representatives of the Contractor and the Village.
ARTICLE 28- CONTRACT ADMINISTRATION
Services of the Contractor shall be under the general direction of Mark Eycington, Chief
Operations Officer, or his successor, who shall act as the Village's representative during the term
of the Contract.
ARTICLE 29- KEY PERSONNEL
The Contractor shall notify the Village in the event of key personnel changes which might affect
this Contract. Notification shall be made within five (5) days of said changes. The Village has
the right to reject proposed changes in key personnel and rescind this Contract. The following
personnel shall be considered key personnel:
Dudley Orr, Vice President and Mitch Beasley, Business Development
ARTICLE 30- TASK ORDER/PERFORMANCE
Task Orders shall be executed bilaterally and the scope of services and format of Task Order
shall be mutually agreed to by the Contractor and the Village. Since this contract has been
approved by the Village Council, individual task orders may be approved by the Village
Manager. Performance will be measured by the metrics established in each Task Order. After
1/3 and again after 2/3 of-the stipulated number of days of work in the Task Order have elapsed,
the Contractor(s) shall provide a written progress report to the Village for review and acceptance.
The Village shall have the right to correct for vendor default or underperformance by any means
it deems in its best interest. The Contractor will be required to provide a daily report of quantity
of work performed under each Task Order. The daily report shall be submitted by 11:00 a.m. or
earlier the following morning.
ARTICLE 31-ENTIRETY OF CONTRACT
The Village and the Contractor agree that this Contract sets forth the entire Contract between the
parties, and that there are no promises or understandings other than those stated herein. This
Contract supersedes all prior contracts, proposals, representations, negotiations, letters or other
communications between the Village and Contractor pertaining to the services, whether written
or oral. None of the provisions, terms and conditions contained in this Contract may be added to,
modified, superseded or otherwise altered except by written instrument executed by the parties
hereto.
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In Witness Whereof, the Village and the Contractor have executed this Contract.
ATTEST:
`~? ~ ~1.t ~GCc.~~:.--y~-
Lori McWilliams; CMC, Village Clerk
VILLAGE OF TEQUESTA
~~ ~XJC,c.fLvX.~
Pat Watkins, Mayor
Dated: (D -1 t - Opt
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pRPpRATFO ,:a
ATTEST:
Connie H. Nichols, Corporate Secretary
PHILLIPS AND JORDAN, INC.
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Dudley Orr, ice President
Dated: ~~ZZ , Z00°~
[CORPORATE SEAL]
Y:\dots\TequestaWgreements\Phillips Jordan Debris Renwval Agreement 2009.doc
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EXHIBIT "A"
PHILLIPS AND JORDAN, INC.
FEE SCHEDULE
HURRICANE/DISASTER DEBRIS REMOVAL, REDUCTION, AND DISPOSAL
PART A -VOLUME BASED PRICING FOR 3,000,000 CUBIC YARD DEBRIS DISASTER
Item/Description Estimated Unit
Quanti Unit Price
1.0 Public Property and Right-of--Way Collection, 3,000,000 CY 10.25
Loading and Hauling to a designated Temporary
Debris Site or Authority a roved Disposal Facilit
2.0 Temporary Debris Site operation to include 3,000,000 CY 2.00
placement of monitoring towers, portable toilets,
keeping area clean of trash, debris acceptance, pile
mana ement, and phase I reclamation
3.0 Processing of debris through grinding and/or 2,500,000 CY 2.50
chipping
4.0 Loading, hauling and disposing wood chips to final 1,000,000 CY 9.80
destination
5.0 Loading, transporting and final disposition (disposal) 500,000 CY 14.75
of construction and/or mixed debris from Temporary
Debris Site hauling to a permitted C&D recycling
facility or any other approved non-Authority
Dis osal Facilit
Loading and transporting only of construction and/or
mixed debris from Temporary Debris Site to one of
the followin
A. Okeechobee County Landfill 400,00 CY 9.50
B. Pom ano Beach Landfill 100,00 CY 9.50
6.0 Volume reduction through air curtain incineration or 2,500,000 CY 2.00
open burnin
Unit Prices, unless otherwise indicated, shall include all labor (operators, laborers, supervisors)
and materials including but not limited to: supplies, equipment maintenance, repairs, repair parts,
fuels, lubricants, cellular phones, transportation, and housing, if required, necessary to
accomplish the project. The quantities and distributions are estimated for the purpose of making
an award. Locations of sites, debris quantities, destinations, material densities, etc. may differ
substantially in an actual disaster.
Assumptions: 3,000,000 cubic yards of debris consisting of 2,500,000 cubic yards of
vegetation debris and 500,000 cubic yards of mixed debris.
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EXHIBIT "A"
PHILLIPS AND JORDAN, INC.
FEE SCHEDULE
PART B -HOURLY RATES
DEBRIS MANAGEMENT SITE SET-UP AND CLOSURE
DEBRIS CLEARANCE FOR ACCESS
OPTIONAL USE BY COUNTY AND OTHER GOVERNMENTAL ENTITIES
EQUIPMENT AND LABOR RATES
Equipment Type Hourly
Equipment
Rate Hourly
Labor
Rate Total
Hourly
Rate
Bobcat Loader $ 60.00 $ 35.00 $ 95.00
Crew Foreman w/ Cell Phone and Pickup 15.00 60.00 75.00
Dozer, Tracked, DS or similar 65.00 35.00 100.00
Dozer, Tracked, D6 or similar 85.00 35.00 120.00
Dozer, Tracked, D7 or similar 105.00 35.00 140.00
Dozer, Tracked, D8 or similar 145.00 35.00 180.00
Dump Truck, 18 CY-20 CY 35.00 35.00 70.00
Dump Truck, 21CY-30 CY 35.00 35.00 70.00
Generator and Lighting 20.00 -0- 20.00
Grader w/ 12 Blade 75.00 35.00 110.00
Hydraulic Excavator, 1.5 CY 80.00 35.00 115.00
Hydraulic Excavator, 2.5 CY 90.00 35.00 125.00
Knuckleboom Loader 115.00 35.00 150.00
Laborer w/ Chain Saw -0- 45.00 45.00
Laborer w/ small tools, traffic control, flag person -0- 32.00 32.00
Lowboy Trailer w/ Tractor 75.00 35.00 110.00
Operations Mana er w/ Cell Phone and Picku 15.00 70.00 85.00
Pickup Truck, .5 Ton 115.00 -0- 15.00
Soil Com actor 81 HP+ 45.00 35.00 80.00
Soil Compactor to 80 HP 40.00 35.00 75.00
Soil Com actor, Towed Unit 35.00 35.00 70.00
Truck, Flatbed 25.00 35.00 60.00
Tub Grinder, 800 to 1,000 HP 550.00 -0- 550.00
Water Truck 45.00 35.00 80.00
Wheel Loader, 2.5 CY, 950 or similar 60.00 35.00 95.00
Wheel Loader, 3.5-4.0 CY, 966 or similar 75.00 35.00 110.00
Wheel Loader, 4.5 CY, 980 or similar 95.00 35.00 130.00
Wheel Loader-Backhoe, 1.0-1.5 CY 60.00 35.00 95.00
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