Okaloosa County BOCC — August 18, 2015 — Maruti-Executed Contract — reading text

continue the work not otherwise terminated. 3. Except for defaults of subcontractors at any tier, the CONTRACTOR shall not be liable for any excess costs if the failure to perform under the Contract arises from causes beyond the control and without the fault or negligence of the CONTRACTOR. The parties agree that only the following shall be deemed causes beyond the CONTRACTOR's control: (a) acts of God or of the public enemy, (b) fires , (c) floods , (d) epidemics, (e) quarantine restrictions , and/or (f) weather emergencies declared by State, Federal or Local authorities such as hurricanes or tropical storms. In each instance the failure to perform must be beyond the control and without the fault or negligence of the CONTRACTOR and the Page 13 of 45  CONTRACTOR shall make good faith efforts to mitigate the effects of all such causes. 4. If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both the CONTRACTOR and subcontractor, and without the fault or negligence of either, the CONTRACTOR shall not be liable for any excess costs for failure to perform, unless the subcontracted supplies or services were obtainable from other sources in sufficient time for the CONTRACTOR to meet the required delivery schedule. Upon direction of the COUNTY, the CONTRACTOR shall also protect and preserve property in its possession in which the Government has an interest. 5. The COUNTY shall pay contract price for completed services delivered and accepted. 6. If, after termination, it is determined that the CONTRACTOR was not in default, or that the default was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the COUNTY. 7. The rights and remedies of the COUNTY in this clause are in addition to any other rights and remedies provided by law, equity or under this Contract. 8. Not Withstanding anything contained in this Contract, the parties agree that the occurrence of any of the following shall be deemed a material event of default: (a) The filing of any judgment lien against the assets of the CONTRACTOR related to the performance of this Contract which is not discharged, satisfied or contested in a court of law within thirty (30) days of notice to the CONTRACTOR; (b) The making by the CONTRACTOR of any general assignment or general arrangement for the benefit of creditors ; (c) The filing by or against the CONTRACTOR or its affiliate(s), of a petition to have the CONTRACTOR or its affiliates adjudged bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless in the case of a petition for bankruptcy, reorganization or arrangement filed against the CONTRACTOR the same is dismissed within thirty (30) days from date of service upon the CONTRACTOR or its affiliate(s)); Page 14 of 45  (d) The appointment of a trustee or receiver to take possession of substantially all of the CONTRACTOR's assets or the assets used by the CONTRACTOR in the performance of its work under this Contract; (e) The attachment, execution or other judicial seizure of substantially all of the CONTRACTOR's assets and such attachment, execution or seizure is not discharged within thirty (30) days; (f) Any attempt by the CONTRACTOR to convey, transfer, sublet or assign , in whole or in part, its interest in this Contract, unless it has first obtained the written consent of the COUNTY; (g) The failure to comply with any term or condition of this Contract. ARTICLE 9 - PERSONNEL The CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the services under this Contract in accordance with its terms and conditions . Such personnel shall not be employees or agents of or have any contractual relationship with the COUNTY. All of the services required herein under shall be performed by the CONTRACTOR, or under its supervision and control , and all personnel engaged in performing the services shall be fully qualified and , if required , authorized or permitted under state and local law to perform such services. CONTRACTOR will exercise full and exclusive control , management and supervision over its employees , their compensation and discharge , and shall be responsible as to all matters relating to payments made or to be made to such employees including , compliance with social security, withholding and all other laws and regulations, including but not limited , to those governing labor and employment matters. The CONTRACTOR shall perform all functions and do all things necessary for the management of its employees including , but not limited to, the authority to fix wages , hours , and other terms and conditions of employment; to bargain with its employees or their representatives and enter into collective bargaining agreements; to establish and enforce rules and regulations concerning the work and conduct of its employees ; to establish procedures for and to handle and resolve grievances of its employees ; to hire , fire , promote , layoff, supervise, discipline and discharge its employees ; and to perform all of the above whether arising by collective bargaining agreement or otherwise . CONTRACTOR shall conduct its operations and provide services in compliance with the terms and conditions of employment applicable to employees affected by the existing 13(c) agreements , the U.S. Department of Labor's (DOL) certifications under 49 USC 5333(b) , 29 CFR Part 215 and all other applicable laws , executive orders , rules and regulations , which may include but are not limited to the Federal Transit Act, 49 USC Page 15 of 45 5333(b) , National Labor Relations Act (NLRA) , Fair Labor Standards Act (FLSA), Occupational Safety and Health (OSH) Act, Employee Retirement Income Security Act (ERISA) and all applicable regulations. The CONTRACTOR shall comply with all applicable statutory and regulatory requirements (federal, state and local) applicable to its employees and workforce , and for timely compliance therewith. Nonexclusive examples include , but are not limited to, the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA), Health Insurance Portability and Accountability Act (HIPAA), Patient Protection and Affordable Care Act, drug and alcohol testing regulations at 49 CFR Parts 40 and 655, Uniformed Services Employment and Reemployment Rights Act, Employee Polygraph Protection Act (EPPA) , Consumer Credit Protection Act (CPCA) , Family and Medical Leave Act (FMLA), Worker Adjustment and Retraining Notification Act (WARN), Title VII of the Civil Rights Act of 1964, Pregnancy Discrimination Act, Equal Pay Act of 1964 (EPA), Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disability Act of 1990 (ADA) , Civil Rights Act of 1991 , Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008 (GINA) , as they may be amended from time to time. CONTRACTOR shall be solely responsible for all costs associated with compliance and/or its failure to comply with any law, executive order, rule , regulation , and the 13(c) obligations of the COUNTY. CONTRACTOR's responsibilities shall include but shall not be limited to its sole responsibility for all fines, assessments, penalties, charges, fees and all determinations of a court of law or administrative agency arising from and/or related , in any manner whatsoever, to its compliance with or failure to comply with 13(c) requirements, any state, federal or local law, rule or regulation, the obligations owed to its paratransit workers , and performance of the Contract. The CONTRACTOR warrants that all services shall be performed by skilled and competent personnel to the highest professional standards in the field. All of the CONTRACTOR's personnel (and all subcontractors) will comply with all COUNTY requirements governing conduct, safety, and security while on COUNTY premises. The COUNTY may require the CONTRACTOR to remove any individual or employee from service in the performance of this Contract whose performance violates the requirements of the Contract or reflects negatively upon COUNTY as determined by the COUNTY, in its sole discretion. COUNTY may not direct the CONTRACTOR to reprimand , reward , suspend , discipline or discharge its employees . ARTICLE 10 - E-VERIFY The COUNTY has agreements with Florida's Department of Transportation (FDOT) which require the COUNTY to agree and assure FDOT that the U.S. Department of Homeland Security's E-Verify System (System) will be used to verify the employment eligibility of CONTRACTOR's employees and the employees of CONTRACTOR's Page 16 of 45 subcontractors. Accordingly, CONTRACTOR agrees that it will utilize the System to verify the employment eligibility of its employees, and that it will require any subcontractor used in the performance of the Contract to verify the employment eligibility of its employees. CONTRACTOR shall provide evidence that it and its subcontractors have so verified the employment eligibility of all employees to COUNTY and FDOT on forms and in the manner required by the COUNTY. CONTRACTOR acknowledges that the COUNTY has received and will seek funds from FDOT, and that such funds may be used to pay CONTRACTOR for the services it provides under this Contract. CONTRACTOR further acknowledges that FDOT has advised recipients of FDOT funds that it will consider a contractor's employment of unauthorized aliens to be a violation of the Immigration and Nationality Act. CONTRACTOR affirms to the COUNTY that it will not employ unauthorized aliens or take any other act, including acts related to the use of independent contractors , which may cause the COUNTY to be in violation of any law, or term or condition of any agreement between the COUNTY and FDOT. ARTICLE 11 - SUBCONTRACTING The COU NTY reserves the right to accept the use of a subcontractor or to reject the selection of a particular subcontractor and to inspect all facilities of any subcontractors in order to make a determination as to the capability of the subcontractor to perform properly under this Contract. The CONTRACTOR shall seek Disadvantaged Business Enterprises (DBE's) for participation in subcontracting opportunities. If the CONTRACTOR uses any subcontractors the following provisions of this Article shall apply regarding Disadvantaged Business Enterprises: 1. Any subcontract shall incorporate, in full text, all provisions, terms, and conditions set forth in this Contract including Specifications and Scope of Work and all attachments thereto. The CONTRACTOR shall provide to the COUNTY copies of all fully executed subcontracts including any amendments thereto within thirty (30) days . 2. If a subcontractor fails to perform or make progress, as required by this Contract, and it is necessary to replace the subcontractor to complete the work in a timely fashion , the CONTRACTOR shall promptly do so, subject to acceptance