13-13. DRAFT CONTRACT CONSTRUCTION (from IFB) 1.2024.doc

CONTRACT FOR CONSTRUCTION

(Contract No. _____) THIS CONTRACT FOR CONSTRUCTION, dated ______________________, is between the City of Tallahassee, a Florida municipal corporation, hereinafter called the "City," and _____________________, a ________________, hereinafter called the "Contractor." The City and the Contractor may be referred to individually as a “Party” and together as the “Parties.”

Recitals

The City issued its Invitation for Bid___________, and related documents, dated ______________, 20___, (collectively, the "IFB") seeking bids from qualified contractors for the following:

ENTER PROJECT TITLE (the "Project") The Contractor submitted a bid in response to the IFB, the City selected the Contractor for award of a construction contract for the Project, and the Parties desire to enter into a contract providing for construction of the Project subject to the terms and conditions set forth in the Contract Documents.

The Parties therefore agree as follows:

1.

Construction of the Project. The Contractor, at its own cost and expense, will complete the required work and furnish all labor, equipment, and materials required to complete the Project, in strict accordance with the Contract Documents.

2.

Compensation for Performance. The City agrees to compensate the Contractor for satisfactory performance of all required work, labor, equipment, and materials in accordance with the Contract Documents. In addition to other remedies available under the Contract Documents, the City shall have the right to deduct, offset against, or withhold from sums or payments otherwise due the Contractor from any sums or amounts which the Contractor may owe to the City pursuant to provisions of the Contract Documents, as a result of breach or termination of the Contract Documents.

3.

Liability of City. The liability of the City, as set forth in the Contract Documents, is intended to be consistent with limitations of Florida law, including without limitation the state's waiver of sovereign immunity pursuant to Section 768.28, Florida Statutes. No obligation imposed by the Contract Documents shall be deemed to alter said waiver or to extend the liability of the City beyond such limits, nor shall any such obligation be deemed or construed as a waiver of any defense of sovereign immunity to which the City may be entitled. All obligations of the City shall be subject to appropriation of funds.

4.

Indemnity. The Contractor shall indemnify and hold harmless the City, its officers and employees, from liabilities, damages, losses, and costs, including but not limited to reasonable attorney’s fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Contractor and persons employed or utilized by the Contractor in the completion of this Project.

5.

Stormwater, Sediment and Erosion Control for City Construction Contractors, Developers and Permittees. This paragraph has application for any construction project that has the potential for soil erosion and/or disturbance of 1,000 square feet of earth. This includes not only construction contractor’s but developers who enter into utility development agreements and permittees and their contractors executing work on their behalf (collectively referred to as Contractor). The Contractor shall be responsible for the prompt and proper control of stormwater, erosion, and sedimentation across, on and from the site of the work performed under this contract. The Contractor shall ensure that all related control devices constructed or installed in relation to the construction work remain intact and functioning properly throughout the progress of such work. In carrying out such responsibility, the Contractor shall comply with all requirements of applicable federal, state, and local laws, including all permits applicable to such work, and shall comply with, all related requirements set forth in the plans and specifications for such work. The Contractor shall ensure that a foreman, supervisor, or other responsible person who has been certified under the Florida Stormwater, Erosion, and Sedimentation Control Inspector Training Program is available in person or by telephone to on-site personnel at all times during any construction activities covered by Building and Environmental permits. The Contractor shall further ensure that all equipment operators and other personnel involved in such operations are appropriately trained in regard to requirements for stormwater, erosion, and sedimentation control. The Contractor shall be liable for any and all penalties, fines, damages, and restitution payments that are assessed against the City by any federal, state, or local governmental entity or by any court of proper jurisdiction and which result or arise from the failure of the Contractor to properly install and maintain stormwater sediment and erosion controls associated with the site work.

6.

Survival. All provisions of the Contract Documents that by their nature survive completion of the Project (including, but not limited to, warranty and indemnification) shall be deemed to survive termination of this Contract for Construction.

7.

Equal Opportunity. The Contractor agrees to comply with the following requirements:

a.

The Contractor will not discriminate against any employee or applicant for employment because of his/her race, creed, color, sex, sexual orientation, gender identification, marital status, national origin or any other protected class and will post a copy of this pledge in a conspicuous place, available to all employees and job applicants.

b.

The Contractor will, in all solicitations or advertisements for job applicants, place, or cause to be placed a statement that the Contractor is an Equal Opportunity Employer.

c.

In the event the Contractor does not abide by these statements of nondiscrimination, this Contract for Construction may be canceled, terminated, or suspended in whole or in part.

8.

Right to Inspect. The City may, at its discretion, inspect the Project site or place of business of the Contractor or any subcontractor related to the performance of this Contract. The right expressed herein shall also be included in all contracts or subcontracts connected to the performance of any work or service involving the Project.

To ensure satisfactory performance under the terms and conditions of the Contract, the Contractor agrees to permit persons duly authorized by the City to inspect any records, papers, documents, facilities, goods, and work of the Contractor relevant to this Contract and to cooperate with the City Inspector General in any investigation, audit, inspection, review, or hearing.

9.

Force Majeure. If the either Party is delayed or prevented from performing any obligations under this Contract by circumstances beyond its control, including but not limited to fires, hurricanes, severe weather, floods, pandemics, quarantines, war, acts of terrorism, acts of God, or significant threats of such circumstances (collectively “Force Majeure”), then the impacted Party may be excused from performance hereunder during the period of inability to perform. In case of any delay the impacted Party believes is excusable under this provision, the impacted Party will notify the other Party in writing of the delay or potential delay and describe the cause of the delay either (1) within ten (10) calendar days after the cause that created or will create the delay first arose, if the impacted Party could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) calendar days after the date the impacted Party first had reason to believe that a delay could result. The foregoing will constitute the impacted Party’s sole remedy or excuse with respect to delay. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy.

Notwithstanding anything in this Contract to the contrary, Force Majeure does not include or excuse performance under this Contract for events related to increased costs associated with fuel, labor, labor disputes, insurance, or other expenses of performing the obligations hereunder. The Contractor will not be entitled to an increase in the Contract price or payment of any kind from the City for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever.

If performance is suspended or delayed, in whole or in part, due to causes described in this paragraph, after the causes have ceased to exist the Contractor will perform at no increased cost. However, if the City determines, in its sole discretion, that the delay will significantly impair the value of the Contract, the City may (1) accept allocated performance from the Contractor, with respect to contractual services subjected to allocation, or (2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the contractual services that are the subject of the delay, which purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or in part.

10.

E-Verify. The Contractor, and its subcontractors, must register with and utilize the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all newly hired employees, pursuant to Section 448.095, Florida Statutes. Registration must take place prior to execution of this contract. If the Contractor enters into any agreement with a subcontractor for performance of services under this contract, the subcontractor must provide an affidavit to the Contractor which states that the subcontractor does not employ, contract with, or subcontract with any unauthorized aliens. The Contractor is required to maintain a copy of such affidavit throughout the term of this contract.

The Contractor agrees to adhere to the requirements of Section 448.095, Florida Statutes, and understands that failure to comply with the statute will result in termination of the contract. If such termination occurs, the Contractor will not be awarded another City contract for at least one (1) year from the date of contract termination and will be liable for any additional costs incurred by the City as result of the contract termination

11.

Independent Contractor.

The Parties to this contract are independent contractors, and none of the provisions of this contract shall be interpreted or deemed to create any relationship between such Parties other than that of independent contractors. Nothing contained in this contract shall be construed to create a relationship of employer and employee, master and servant, principal and agent, or coventurers between the City and the Contractor, between the City and any employee of the Contractor, or between the Contractor and any employee of the City. The City shall have no right to control or direct the details, manner, or means by which the Contractor performs the services or other requirements of this contract except to require compliance with requirements and standards stated in the contract. The Contractor, similarly, shall have no control over or management authority with respect to the City or its operations.

12.

Contract Compliance Management System. The City monitors satisfaction of the minority, women business enterprise (MWBE) goal through the Contract Compliance Management System (System) maintained by the Office of Economic Vitality. If a MWBE goal was assigned and Contractor proposed a MWBE goal in its bid, reply or response, Contractor shall register with the Office of Economic Vitality within five business days of executing this Contract, if not already registered on the System. For the life of the Project or the term of this Contract, Contractor shall regularly provide or update the System with information, including but not limited to names of subcontractors, dates, amounts and number of payments and any other information that is necessary to monitor satisfaction of the MWBE goal. Contractor may find training sessions and more information related to System on the MWSBE website.

13.

Scrutinized Company List.

Pursuant to section 287.135, F.S., in executing, or renewing, this contract, Contractor certifies that:

a. For contracts for goods or services of $1 million or more, Contractor is not listed on either the Scrutinized Companies with Activities in Sudan List, the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, and that Contractor does not have business operations in Cuba or Syria; and

b. For contracts in any amount, Contractor is not on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel.

Pursuant to section 287.135(3) and (5), F.S., Contractor agrees the City may at its option terminate this contract or file civil suit if the Contractor is found to have submitted a false certification or if Contractor is placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List or has been engaged in business operations in Cuba or Syria during the term of the contract.

14.

Gifts from Foreign Companies of Concern. In accordance with section 286.101(3)(a), F.S., any entity that applies to a state agency or political subdivision for a grant or proposes a contract having a value of $100,000 or more shall disclose to the state agency or political subdivision any current or prior interest of, any contract with, or any grant or gift received from a foreign country of concern if such interest, contract, or grant or gift has a value of $50,000 or more and such interest existed at any time or such contract or grant or gift was received or in force at any time during the previous 5 years. Such disclosure shall include the name and mailing address of the disclosing entity, the amount of the contract or grant or gift or the value of the interest disclosed, the applicable foreign country of concern and, if applicable, the date of termination of the contract or interest, the date of receipt of the grant or gift, and the name of the agent or controlled entity that is the source or interest holder. Within 1 year before applying for any grant or proposing any contract, such entity must provide a copy of such disclosure to the Department of Financial Services.

15.

Public Entity Crimes.

As required by Florida Statute 287.133(2)(a) in part, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in s.287.017 for CATEGORY TWO [$35,000] for a period of 36 months from the date of being placed on the convicted vendor list.

In accordance with Florida Statute 287.133(2)(b), a public entity may not award any contract to, or transact any business in excess of the threshold amount provided in s. 287.017, F.S., for CATEGORY TWO with any person or affiliate on the convicted vendor list for a period of 36 months following the date that person or affiliate was placed on the convicted vendor list unless that person or affiliate has been removed from the list pursuant to paragraph (3)(f). A public entity that was transacting business with a person at the time of the commission of a public entity crime resulting in that person being placed on the convicted vendor list may not accept any bid, proposal, or reply from, award any contract to, or transact any business with any other person who is under the same, or substantially the same, control as the person whose name appears on the convicted vendor list so long as that person’s name appears on the convicted vendor list.

In accordance with section 287.133. F.S., any person must notify the Department of Management Services within 30 days after a conviction of a public entity crime applicable to that person or to an affiliate of that person. Contractor must also notify the City of such conviction within 30 days of the conviction.

16.

Discriminatory Vendor List. In accordance with section 287.134(2)(a), F.S., an entity or affiliate who has been placed on the discriminatory vendor list may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity. In accordance with section 287.134(2)(b), F.S , a public entity may not award any contract to, or transact any business with any entity or affiliate on the discriminatory vendor list for a period of 36 months following the date that entity or affiliate was placed on the discriminatory vendor list unless that entity or affiliate has been removed from the list pursuant to paragraph (3)(f). A public entity that was transacting business with an entity at the time of the discrimination resulting in that entity being placed on the discriminatory vendor list may not award any contract to, or transact any business with, any other entity who is under the same, or substantially the same, control as the entity whose name appears on the discriminatory vendor list so long as that entity’s name appears on the discriminatory vendor list.

17.

Public Records.

17.1 Termination. The City may terminate the Contract for refusal by the Contractor to comply with this section by not allowing access to all public records, as defined in Chapter 119, F.S., made or received by the Contractor in conjunction with the Contract unless the records are exempt from s. 24(a) of Art. I of the State Constitution and section 119.071(1), F.S. 8.1.2 Statutory Notice.

17.2 Custodian of Public Records. Pursuant to section 119.0701(2)(a), F.S., for contracts for services with a contractor acting on behalf of a public agency, as defined in section 119.011(2), F.S., the following applies:

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE DEPARTMENT’S CUSTODIAN OF PUBLIC RECORDS AT:

City Treasurer-Clerk

(850) 891-8130 records@talgov.com Mailing Address:

City Hall

300 S. Adams Street c/o Records Division, Box A-31

Tallahassee, FL 32301

17.3 Contractors Acting on Behalf of a Public Agency. Pursuant to section 119.0701(2)(b), F.S., for contracts for services with a contractor acting on behalf of a public agency as defined in section 119.011(2), F.S., the Contractor shall: (a) Keep and maintain public records required by the public agency to perform the service. (b) Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure are not disclosed except as authorized by law for the duration of the Contract term and following the completion of the Contract if the Contractor does not transfer the records to the public agency. (d) Upon completion of the Contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the Contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

18.

Contract Documents.

a) The following shall constitute the "Contract Documents", and comprise the entire agreement between the City and the Contractor concerning the Project, and are by reference incorporated as if set forth fully herein:

(1) This Contract for Construction (pages 1 to 8) and all written amendments; and,

(2) The Contractor's bid dated _____________, 20___, in the total sum amount of _________________________________________________ ($____________); and,

(3) IFB ___________ dated _______, 20__, including all addenda thereto, if any.

b) The documents listed in section 18(a) above are on file in the office of the City Treasurer-Clerk (except as expressly noted otherwise).

c) The Contract Documents may only be amended, modified, or supplemented as provided in a writing signed by duly authorized representatives of the Parties.

d) In the event of an inconsistency between any of the provisions of the Contract Documents, the inconsistency shall be resolved by giving precedence in the following order:

(1) This Contract for Construction pages 1 to 8, inclusive of all written amendments.

(2) IFB No. ___________ dated _______, 20__, including all addenda thereto, if any.

(3) The Contractor's bid dated _____________, 20___, in the total sum amount of _________________________________________________ ($____________).

The Parties are signing this Contract for Construction as of the date stated in the introductory clause.

Attest:

CITY OF TALLAHASSEE

By:______________________________

By:__________________________

James O. Cooke, IV

Veronica McCrackin City Treasurer-Clerk Director for Procurement Services Approved as to form:

CONTRACTOR NAME

By:______________________________

By: _________________________________

Amy M. Toman

City Attorney

Name:_______________________________

Title: _______________________________

Contract No.:

Rev.:1/2024