Agreement_Form.pdf

City of Debary – Rob Sullivan Park Maintenance Barn (Bid # 05-15)

SECTION 00520

AGREEMENT FORM

PART 1 GENERAL

1.01 THIS AGREEMENT, made and entered into the day of , 2015 by and between the City of DeBary, Florida, 16 Colomba Road, DeBary, Florida 32713, a municipal corporation of the State of Florida, holding tax exempt status, hereinafter referred to as the "CITY" (also referred to as “OWNER”) and . whose principal and local address is hereinafter referred to as to as the “CONTRACTOR”. The CITY and the CONTRACTOR are collectively referred to herein as the Parties.

1.02 The Owner and Contractor Agree as Follows:

A. Contract Documents

The Contract Documents include the Agreement, Addenda (which pertain to the Contract Documents), Contractor’s Bid, Notice to Proceed, the Bonds, the General Conditions, the Supplementary Conditions, the Specifications listed in the Index to the Project Manual, any technical specifications as incorporated by the Project Manual; the Drawings as listed in the Project Manual, all Written Amendments, Change Orders, Work Change Directives, Field Orders, and Engineer’s written interpretations and clarifications issued on or after the Effective Date of this Agreement. These Contract Documents form the entirety of the Contract and all are as fully a part of the Contract as if attached to this Agreement or repeated herein.

B. Scope of Work

The Contractor shall perform all work required by the Contract Documents for the construction of the City of DeBary Rob Sullivan Park Maintenance Barn (BID 05-15) (hereinafter “Project”).

C. Contract Time

The Contractor shall begin work after the issuance of a written Notice to Proceed from Owner and shall substantially complete the work within the Contract Time identified in Paragraphs 1.02.C.5 of the Bid Form, which is 45 calendar days.

The work shall be finally complete, ready for Final Payment in accordance with the General Conditions, within 30 calendar days from the actual date of substantial completion.

D. Liquidated Damages

The Contractor agrees that for each calendar day, with the exception of Sundays and legal holidays, that if the project is not substantially completed by the date provided for substantial completion, or if any work remains incomplete after the date on which the Project is to be finally complete, the Contractor shall be liable for and shall pay to the City the sum of $884 (Eight Hundred Eighty Four Dollars) per day as liquidated damages (not as a penalty), and such shall be deducted from the Contract Sum and monies due the Contractor. Should the total amount chargeable as liquidated damages exceed the amount due or payable to the Contractor or his/her Surety, then such excess shall be paid to the City by the Contractor or his/her Surety. When City reasonably believes that Substantial Completion or Final Completion will be inexcusably delayed, City shall be entitled, but not required, to withhold from any amounts otherwise due to Contractor an amount then believed by City to be adequate to recover liquidated damages applicable to such delays. The City’s exercise of the right to terminate shall not release the Contractor from the obligation to pay said liquidated damages. The liquidated damages provided in this Section shall apply even if Contractor’s work is terminated, or if the Contractor has abandoned the Work.

Liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defaults in Contractor’s performance hereunder for matters other than delays in completion of the Work.

E. Contract Price

Lump Sum Contract

The Owner will pay the Contractor in current funds for the performance of the work, subject to additions and deductions by Change Order and subject to the Measurement and Payment Provisions, and subject to actual constructed quantities; the Total Contract Price______ of Dollars______. Payments will be made to the Contractor on the basis of the Lump Sum Price included as a part of his Bid, which shall be as fully a part of the Contract as if attached or repeated herein.

F. City of DeBary Tax Recovery

The CONTRACTOR shall cooperate with the CITY in the implementation of the CITY’s tax recovery program and, to that end, the CITY may make purchases directly under its purchase order processes relative to various materials, supplies and equipment that may be part of the services provided under this Agreement.

The CONTRACTOR hereby recognizes the right of the CITY to engage in tax recovery/savings through direct purchases.

G. Payments

The Owner shall make payments as provided in the General Conditions and Supplementary Conditions and as may be required by Part VII, Chapter 218, Fla.

Stat. Should any of the mandatory provisions of Part VII, Chapter 218, Fla. Stat., conflict with this Agreement, including the Contract Documents, such mandatory provisions shall control to the extent such conflict exists.

H. Retainage

In accordance with the provisions of the State of Florida Local Government Prompt Payment Act, Part VII, Chapter 218, Fla. Stat., the value of each application for payment shall be equal to the total value of the Work performed to date, less an amount retained, and less payments previously made and amounts withheld in accordance with the General Conditions, this Agreement, and Supplementary Conditions. Retainage for this project is 10%, to be held by Owner as collateral security to ensure completion of Work. When the Work is 50 percent complete, defined as being 50 percent complete based on the construction progress schedule as updated during construction, and expenditure of at least 50 percent of the total updated construction cost, retainage shall be reduced in accordance with State law.

I. Engineer

The Project has been designed by The City, referred to in the documents as the Engineer, whose authority during the progress of construction is defined in the General Conditions and Supplementary Conditions.

J. Additional Terms and Conditions

1. The CONTRACTOR hereby warrants and represents to the CITY that it is competent and otherwise able to provide professional and high quality goods and/or services to the CITY by means of ensuring that its employees and subcontractors are qualified, neat in appearance, and of polite demeanor.

2. All submissions submitted by the CONTRACTOR in the proposal/bid submitted to the CITY are hereby incorporated herein to the extent not inconsistent with the terms and conditions as set forth herein.

3. The CONTRACTOR acknowledges that the CITY may retain other goods and/or service providers to provide the same goods and/or services for CITY projects. The CONTRACTOR acknowledges that the CITY, at the CITY's option, may request proposals from the CONTRACTOR and the other goods and/or service providers for CITY projects. The CITY reserves the right to select which goods and/or services provider shall provide goods and/or services for the CITY’s projects.

4. The CONTRACTOR agrees to provide and ensure coordination between and among its providers of goods/services.

5. Each party hereto represents to the other that it has undertaken all necessary actions to execute this Agreement, and that it has the legal authority to enter into this Agreement and to undertake all obligations imposed on it. The person(s) executing this Agreement for the CONTRACTOR certify that he/she/it is authorized to bind the CONTRACTOR fully to the terms of this Agreement.

6. The CONTRACTOR hereby guarantees the CITY that all materials, supplies, services and equipment as listed on a Purchase Order meet the requirements, specifications and standards as provided for under the Federal Occupations Safety and Health Act of 1970, as amended from time to time and in effect on the date hereof.

7. It is agreed that nothing herein contained is intended or should be construed as in any manner creating or establishing a relationship of co-partners between the parties, or as constituting the CONTRACTOR (including, but not limited to, its officers, employees, subcontractors, sub-subcontractors and agents) the agent, representative, or employee of the CITY for any purpose, or in any manner, whatsoever. The CONTRACTOR is to be and shall remain forever an independent contractor with respect to all services performed under this Agreement.

8. Persons employed by the CONTRACTOR in the provision and performance of the goods and/or services and functions pursuant to this Agreement shall have no claim to pension, workers’ compensation, unemployment compensation, civil service or other employee rights or privileges granted to the CITY’s officers and employees either by operation of law or by the CITY.

9. No claim for goods and/or services furnished by the CONTRACTOR not specifically provided for herein shall be honored by the CITY.

10. Execution of this Agreement by the CONTRACTOR is a representation that the CONTRACTOR is familiar with the goods and/or services to be provided and/or performed and with local conditions. The CONTRACTOR shall make no claim for additional time or money based upon its failure to comply with this Agreement. The CONTRACTOR has informed the CITY, and hereby represents to the CITY, that it has extensive experience in performing and providing the services and/or goods described in this Agreement and that it is well acquainted with the components that are properly and customarily included within such projects and the requirements of laws, ordinance, rules, regulations or orders of any public authority or licensing entity having jurisdiction over this Project.

11. Quality, Professional Standards, and Security Requirements

a. Under this paragraph 11, the term “CONTRACTOR’S employees” shall include CONTRACTOR’S agents, employees and

SUBCONTRACTORS’ extending to SUBCONTRACTORS’ contractors, agents and employees.

b. The CONTRACTOR shall be responsible for compliance with the terms and conditions of this agreement, including those terms pertaining to the quality of services, technical specifications, conduct and demeanor of CONTRACTOR’s employees, safety standards, and compliance with all applicable regulations, ordinances, and laws. All CONTRACTOR’s employees, when present on City property or work sites, must, in a conspicuous manner, wear identification badges at all times, which badges, at a minimum, provide the name of the employee and the CONTRACTOR (or subcontractor) for whom he/she is working.

c. The CITY reserves the right to require the CONTRACTOR to provide the CITY with a list of employees currently working on the project. Such list shall be furnished within forty-eight hours of the CITY’s submittal of a written request for such information and, unless otherwise noted by the City, shall be accompanied by a schedule of employee working days, times, and assignments.

d. The CONTRACTOR shall work closely with the CITY on all aspects of the provision of the goods and/or services. With respect to services, the CONTRACTOR shall be responsible for the professional quality, technical accuracy, competence, methodology, accuracy and the coordination of the services rendered pursuant to this Agreement, including but not limited to the following: documents, analysis, reports, data, plans, plats, maps, surveys, specifications, and any and all other services of whatever type or nature furnished by the CONTRACTOR under this Agreement. The CONTRACTOR shall, without additional compensation, correct or revise any errors or deficiencies in his/her/its plans, analysis, data, reports, designs, drawings, specifications, and any and all other services of whatever type or nature. The CONTRACTOR’s submissions in response to the subject bid or procurement processes are incorporated herein by this reference thereto to the extent such submissions do not conflict with or contradict the terms of this document or are otherwise affirmatively acknowledged, approved, and ratified by the CITY as an express exception to this document in writing.

12. Neither the CITY’s review, approval or acceptance of, nor payment for, any of the goods and/or services required shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and the CONTRACTOR shall be and remain liable to the CITY in accordance with applicable law for all damages to the CITY caused by the CONTRACTOR’s negligent or improper performance or failure to perform or provide any of the goods and/or services furnished under this Agreement.

13. The rights and remedies of the CITY, provided for under this Agreement, are in addition to any other rights and remedies provided by law.

14. Time is of the essence in the performance of all goods and/or services provided by the CONTRACTOR under the terms of this Agreement.

15. Invoices, which are in an acceptable form to the CITY and without disputable items, shall be processed by the City’s agent within twenty-five

(25) days in accordance with applicable provisions of the Local Government Prompt Payment Act as set forth in Part VII, of Chapter 218, Florida Statutes.

16. Within twenty (20) business days after the date an invoice is stamped received in accordance with § 218.74(1), Fla. Stat., the CITY shall notify the CONTRACTOR in writing of any deficiencies in the invoice. Such notice shall further specify the deficiency or deficiencies in the invoice and state the requested action(s) that the CONTRACTOR must undertake to correct the invoice as required by § 218.735(2), Fla. Stat. (2009).

17. The CITY and the CONTRACTOR shall make every effort to resolve all disputed items contained in the CONTRACTOR’s invoices in accordance with those dispute resolution procedures provided for in § 218.76(2), Fla.

Stat., (2009).

18. Each invoice shall reference this Agreement, state the appropriate billing period, and provide an itemized accounting of all services, costs, charges, fees, and credits.

19. The Florida Prompt Payment Act shall apply when applicable. A billing period represents the dates in which the CONTRACTOR completed the goods and/or services referenced in an invoice.

20. Invoices are to be forwarded directly the City’s designated CEI representative, as identifed at the preconstruction meeting, for review and processing. Such CEI representative is hereby designated the City’s agent for the purposes of receiving, processing, and approving invoices in accordance with § 218.735(1)(a), Fla. Stat., (2009).

21. CITY designates the City Manager or his/her designated representative, to represent the CITY in all matters pertaining to and arising from the work and the performance of this Agreement unless otherwise specified herein.

22. The City Manager, or his/her designated representative, shall have the following responsibilities:

a. Examination of all work and rendering, in writing, decisions indicating the CITY's approval or disapproval within a reasonable time so as not to materially delay the work of the CONTRACTOR;

b. Transmission of instructions, receipt of information, and interpretation and definition of CITY's policies and decisions with respect to design, materials, and other matters pertinent to the work covered by this Agreement;

c. Giving prompt written notice to the CONTRACTOR whenever the CITY’s official representative knows of a defect or change necessary in the project; and

d. Coordinating and managing the CONTRACTOR’s preparation of any necessary applications to governmental bodies, to arrange for submission of such applications.

23. Until further notice from the City Manager, the designated representative for this Agreement is the City Manager or his/her designee.

24. The performance of work pursuant to this Agreement may be terminated by the City in accordance with this clause in whole, or from time to time in part, for convenience or cause whenever the City shall determine that such determination is in the best interest of the City. Any such termination shall be effected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of work under the Contract is terminated, and the date upon which such termination becomes effective.

25. After receipt of a Notice of Termination, and except as otherwise directed by the City, the Contractor shall:

(A) Stop work under the Contract on the date and to the extent specified in the Notice of Termination;

(B) Place no further orders or subcontracts for materials, services or facilities, except as may be necessary for completion of such portion of the work under the Contract as it is not terminated;

(C) Terminate all orders and subcontracts to the extent that they relate to the performance of work terminated by the Notice of Termination;

(D) Assign to the City in the manner and at the times and to the extent directed by the City, all of the rights, title, and interest of the Contractor under the orders and subcontracts so terminated, in which case the City shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts;

(E) Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval and ratification of the City, to the extent the City may require, which approval or ratification shall be final for all the purposes of this clause;

(F) Transfer title and deliver to the City, in the manner and at the times and to the extent, if any directed by the City:

(i) The fabricated or non-fabricated parts, components of work in process, completed work, supplies, equipment and other material produced as a part of, or acquired in connection with the performance of the work terminated by the Notice of Termination; and

(ii) The completed or partially completed “as built” drawings, information, and other property, which, if the Contract had been completed, would have been required to be furntished to the City if required.

(G) Complete performance of such part of the Contract as was not terminated by the Notice of Termination.

26. In the event of a breach of this Agreement, the CITY's designated representative may, at the CITY’s discretion, send a letter to the CONTRACTOR notifying the CONTRACTOR of the breach and requesting that the CONTRACTOR show cause as to why the CITY should not terminate the Agreement. If the CONTRACTOR fails to provide the City with satisfactory assurance that the CONTRACTOR will undertake appropriate corrective measures within a reasonable time, the CITY may deem the CONTRACTOR to be in default and immediately terminate this Agreement. In no event shall this paragraph be construed as precluding or otherwise preventing the CITY from terminating the Agreement for convenience or cause as otherwise provided for in this Agreement.

27. In the event that this Agreement is terminated for cause, breach of the

Contract Documents, or failure to perform pursuant to the Contract Documents, and it is later determined that such cause does not or did not exist, then this Agreement or the Purchase/Work Order shall be deemed terminated for convenience by the CITY, and the CITY shall retain the right to so terminate this Agreement without any recourse by the

CONTRACTOR.

28. The CONTRACTOR may terminate this Agreement only if the CITY fails to pay the CONTRACTOR in accordance with this Agreement.

29. If the Contract is terminated, Contractor shall be entitled to payment only as follows: (1) the actual cost of the work completed in conformity with this Agreement; plus, (2) such other costs actually incurred by Contractor as are permitted by the Agreement and approved by Owner. There shall be deducted from such sums the amount of any payments made to Contractor prior to the date of the termination of this Agreement.

Contractor shall not be entitled to any claim or claim of lien against Owner for any additional compensation or damages in the event of such termination and payment.

30. The performance or provision of the CONTRACTOR's goods and/or services under this Agreement may be suspended by the CITY at any time, if deemed in the best interests of the CITY.

31. In the event the CITY suspends the performance or provision of the

CONTRACTOR services hereunder, the CITY shall so notify the CONTRACTOR in writing via U.S. Certified Mail, such suspension becoming effective within seven (7) days from the date of mailing, and the CITY shall pay to the CONTRACTOR within thirty (30) days all compensation which has become due to and payable to the CONTRACTOR to the effective date of such suspension. The CITY shall thereafter have no further obligation for payment to the CONTRACTOR for the suspended provision of goods and/or services unless and until the CITY’s designated representative notifies the CONTRACTOR in writing that the provision of the goods and/or services of the CONTRACTOR called for hereunder are to be resumed by the CONTRACTOR.

32. Upon receipt of written notice from the CITY that the CONTRACTOR's provision of goods and/or services hereunder are to be resumed, the CONTRACTOR shall continue to provide the services to the CITY.

33. The CONTRACTOR agrees that it shall not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin or disability and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, sex, age, national origin or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or their forms or compensation; and selection for training, including apprenticeship. The CONTRACTOR, moreover, shall comply with all the requirements as imposed by the Americans with Disability Act, the regulations of the Federal government issued thereunder, and any and all requirements of Federal or State law related thereto.

34. Indemnity and Insurance

(A) To the extent permitted by applicable law, the CONTRACTOR shall indemnify, hold harmless and defend the CITY and its officers or employees from lliabilities, 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 performance of this Agreement, including the CONTRACTOR’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees, and the officers, directors, agents or employees of the CONTRACTOR. Such indemnification shall be limited to $1 million per occurrence, both the CITY and the CONTRACTOR agreeing that such amount bears a reasonable commercial relationship to this Agreement and the Project contemplated herein. The limitations imposed by this indeminification provision shall apply to all other indemnification provisions contained in this Agreement.

(B) Nothing herein shall be deemed to affect the rights, privileges, and immunities of the CITY as set forth in Section 768.28, Florida Statutes.

(C) In claims against any person or entity, indemnification under this

Section by an employee of the CONTRACTOR or its agents or subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section shall not be limited by a limitation on amount or type of damages, compensation, or benefits payable by or for the CONTRACTOR or its agents or subcontractors, under Workers Compensation acts, disability benefits acts, or other employee benefit acts.

(D) The execution of this Agreement by the CONTRACTOR shall obligate the CONTRACTOR to comply with the indemnification provision of this Agreement; however, such indemnification shall not relieve the CONTRACTOR of its obligation and duty to comply with the provisions of this Agreement relating to insurance coverage.

(E) The CONTRACTOR shall submit a report to the CITY within twenty-four (24) hours of the date of any incident resulting in damage or which is reasonably likely to result in a claim of damage.

35. The CONTRACTOR shall obtain or possess and continuously maintain the insurance coverage as set forth and required in the bid documents.

36. All insurance other than Workers Compensation and Professional Liability that must be maintained by the CONTRACTOR shall specifically include the CITY as an additional insured.

37. The CONTRACTOR shall provide Certificates of Insurance to the CITY evidencing that all such insurance is in effect prior to the issuance of the first Purchase/Work Order under this Agreement from the CITY. These Certificates of Insurance shall become part of this Agreement. Neither approval by the CITY nor failure to disapprove the insurance furnished by a CONTRACTOR shall relieve the CONTRACTOR of the CONTRACTOR’s full responsibility for performance of any obligation including the CONTRACTOR’s indemnification of the CITY under this Agreement. If, during the period which an insurance company is providing the insurance coverage required by this Agreement, an insurance company: (1) loses its Certificate of Authority, (2) no longer complies with Section 440.57, Florida Statutes, or (3) fails to maintain the requisite Best’s Rating and Financial Size Category, the CONTRACTOR shall, as soon as the CONTRACTOR has knowledge of any such circumstance, immediately notify the CITY and immediately replace the insurance coverage provided by the insurance company with a different insurance company, which meets the requirements of this Agreement.

Until such time as the CONTRACTOR has replaced the unacceptable insurer with insurance acceptable to the CITY, the CONTRACTOR shall be deemed to be in default of this Agreement.

38. The insurance coverage shall contain a provision requiring that prior to any changes in the coverage, except increases in aggregate coverage, thirty (30) days prior notice will be given to the CITY by submission of a new Certificate of Insurance.

39. The CONTRACTOR shall furnish Certificates of Insurance directly to the

CITY’s Designated Representative. The certificates shall clearly indicate that the CONTRACTOR has obtained insurance of the type, amount and classification required by this Agreement.

40. Nothing in this Agreement or any action relating to this Agreement shall be construed as the CITY’s waiver of sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes.

41. The CITY shall not be obligated or liable under the terms of this

Agreement to any party other than the CONTRACTOR. There are no third party beneficiaries to this Agreement.

42. The CONTRACTOR is an independent contractor and not an agent, representative, or employee of the CITY. The CITY shall have no liability except as specifically provided in this Agreement.

43. All insurance shall be primary to, and not contribute with, any insurance or self-insurance maintained by the CITY.

44. 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 Agreement and that the CONTRACTOR 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 any other consideration, contingent upon or resulting from the award of making this Agreement.

45. The CONTRACTOR shall not discriminate on the grounds of race, color, religion, sex, or national origin in the performance of work under this Agreement or violate any laws pertaining to civil rights, equal protection or discrimination.

46. The CONTRACTOR hereby certifies that no undisclosed (in writing) conflict of interest exists with respect to the Agreement, including, but not limited to, any conflicts that may be due to representation of other clients, customers or vendees, other contractual relationships of the CONTRACTOR, or any interest in property that the CONTRACTOR may have. The CONTRACTOR further certifies that any conflict of interest that arises during the term of this Agreement shall be immediately disclosed in writing to the CITY. Violation of this Section shall be considered justification for immediate termination of this Agreement.

47. The CONTRACTOR shall ensure that all taxes due from the

CONTRACTOR are paid in a timely and complete manner including, but not limited to, occupational and/or business license taxes.

48. If the CITY determines that any employee or representative of the

CONTRACTOR is not satisfactorily performing his/her assigned duties or is demonstrating improper conduct while performing or failing to perform any assignment or work under this Agreement, the CITY shall so notify the CONTRACTOR, in writing. If requested by the City, the CONTRACTOR shall immediately remove such employee or representative of the CONTRACTOR from such assignment or work and preclude such employee or representative from further involvement or engagement in the Project.

49. The CONTRACTOR shall not publish any documents or release information regarding this Agreement to the media without prior approval of the CITY. All requests any such information or documents shall be immediately forwarded to the CITY, which shall then coordinate with the CONTRACTOR to timely produce or withhold any such records in accordance with applicable law.

50. The CONTRACTOR shall certify, upon request by the CITY, that the

CONTRACTOR maintains a drug free workplace policy in accordance with Section 287.0878, Florida Statutes. Failure to submit this certification may result in termination of this Agreement and removal from this Project.

51. If the CONTRACTOR or an affiliate is placed on the convicted vendor list following a conviction for a public entity crime, such action may result in termination by the CITY. The CONTRACTOR shall provide a certification of compliance regarding the public crime requirements set forth in State law upon request by the CITY.

52. The CITY reserves the right to unilaterally terminate this Agreement if the

CONTRACTOR refuses the CITY access to all documents, papers, letters, or other materials subject to provisions of Chapter 119, Florida Statutes, and other applicable law, and made or received by the CONTRACTOR in conjunction, in any way, with this Agreement. The CONTRACTOR acknowledges and agrees that the CITY is a public entity that is subject to Florida’s public records laws and as such, documents in CONTRACTOR’s control and possession (including subcontractors) relating to the Project and Work performed for the CITY are subject to inspection pursuant to Chapter 119, Florida Statutes, unless such documents are otherwise exempt, excepted, or do not meet the definition of a public record by applicable law. It is hereby specifically agreed that any record, document, computerized information and program, e-mail, electronic file, memo, drawing, audio or video tape, photograph, or other writing of the CONTRACTOR and its employees, sub-contractors and associates related, directly or indirectly, to this Contract, are likely considered to be Public Records whether in the possession or control of the CITY or the CONTRACTOR (including sub-contractors), unless an exemption or exception under applicable law applies. Such records, documents, computerized information and programs, e-mails, electronic files, memos, drawings, audio or video tapes, photographs, or other writings of the CONTRACTOR are subject to the provisions of Chapter 119, Florida Statutes and applicable retention schedules, and may not be destroyed without the specific written approval of the CITY’s City Clerk.

While in the possession and control of the CONTRACTOR, all public records shall be secured, maintained, preserved, and retained in the manner specified pursuant to the Public Records Law. Upon request by the CITY, the CONTRACTOR shall, within three (3) business days, supply copies of said public records to the CITY. All books, cards, registers, receipts, documents, and other papers in connection with this Contract shall, at any and all reasonable times during the normal working hours of the CONTRACTOR, be open and freely exhibited to the CITY for the purpose of examination and/or audit. Since the CITY’s documents are of utmost importance to the conduct of CITY business and because of the legal obligations imposed upon the CITY and CONTRACTOR by the Public Records Law, CONTRACTOR agrees that it shall, under no circumstances, withhold possession of any public records, including originals, copies or electronic images thereof when such are requested by the CITY, regardless of any contractual or other dispute that may arise between CONTRACTOR and the CITY. Upon termination of this Contract, termination of CONTRACTOR’s work under this Contract, or Acceptance of the Work by the CITY, whichever occurs first, the

CONTRACTOR shall, at CONTRACTOR’s expense, turnover the original or copy of all public records in CONTRACTOR’s (including sub-consultants) control and possession to the CITY, except as otherwise directed by the CITY. The Indemnification provisions of this Agreement shall extend to any liability the CITY, including its officials, officers, employees, and agents, may incur as a result of the CONTRACTOR’s (including persons employed or utilized by the CONTRACTOR in the performance of this Agreement, including but not limited to the CONTRACTOR’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees, and the officers, directors, agents or employees of the CONTRACTOR) withholding, destruction, or alteration of any such documents, papers, letters, or materials. This paragraph shall survive expiration and termination of this Agreement.

53. The CONTRACTOR shall comply with the requirements of the Americans with Disabilities Act (ADA), and any and all related Federal or State laws which prohibits discrimination by public and private entities on the basis of disability.

54. The CITY shall not intentionally award publicly-funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) Section 274A(e) of the Immigration and Nationally Act (INA). The CITY shall consider the employment by the CONTRACTOR of unauthorized aliens, a violation of Section 274A(e) of the INA. Such violation by the CONTRACTOR of the employment provisions contained in Section 274A(e) of the INA shall be grounds for immediate termination of this Agreement by the CITY.

55. The CONTRACTOR agrees to comply with Federal, State, and local environmental, health, and safety laws and regulations applicable to the goods and/or services provided to the CITY. The CONTRACTOR agrees that any program or initiative involving the work that could adversely affect any personnel involved, citizens, residents, users, neighbors or the surrounding environment will ensure compliance with any and all employment safety, environmental and health laws.

56. The CONTRACTOR shall ensure that all goods and/or services are provided to the CITY after the CONTRACTOR has obtained, at its sole and exclusive expense, any and all permits, licenses, permissions, approvals or similar consents.

57. If applicable, in accordance with Section 216.347, Florida Statutes, the

CONTRACTOR shall not use funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or State agency.

58. The CONTRACTOR shall advise the CITY in writing if the CONTRACTOR has been placed on a discriminatory vendor list, which list precludes the CONTRACTOR from submitting a bid on a contract to provide goods or services to or transacting business with a public entity.

59. During the course of this Agreement, the CONTRACTOR shall not engage in any activities that would create a conflict of interest with the CITY or violate or cause others to violate Part III, Chapter 112, Florida Statutes, relating to ethics in government.

60. The CONTRACTOR shall maintain books, records, documents, time and costs accounts and other evidence directly related to its provision or performance of services under this Agreement. All time records and cost data shall be maintained in accordance with generally accepted accounting principles and preserved and stored pursuant to applicable Florida Public Records laws and retention policies.

61. The CITY may perform, or cause to have performed, an audit of the records of the CONTRACTOR before or after final payment to support final payment under any Purchase/Work Order issued hereunder. This audit shall be performed at a time mutually agreeable to the CONTRACTOR and the CITY subsequent to the close of the final fiscal period in which goods and/or services are provided or performed. Total compensation to the CONTRACTOR may be determined subsequent to an audit as provided for in this Section, and the total compensation so determined shall be used to calculate final payment to the CONTRACTOR. Conduct of this audit shall not delay final payment as required by this Section.

62. In addition to the above, if Federal, State, County, or other entity funds are used for any goods and/or services under this Agreement, the Comptroller General of the United States, Chief Financial Officer of the State of Florida, or the County of Volusia, or any representatives, shall have access to any books, documents, papers, and records of the CONTRACTOR that are related to the goods and/or services provided or performed under this Agreement for the purposes of making audits, examinations, excerpts, and transcriptions.

63. In the event that an audit or inspection reveals any overpayment by the

CITY under the terms of the Agreement, the CONTRACTOR shall refund such overpayment to the CITY within thirty (30) days of the discovery of such overpayment.

64. The CONTRACTOR agrees that if any litigation, claim, or audit is started before the expiration of the record retention periods prescribed herein and by Florida law and administrative codes, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken. To the extent permitted by law, the

Indemnification provisions of this Agreement shall extend to any liability the CITY, including its officials, officers, employees, or agents, may incur or have imposed upon it as a result of the CONTRACTOR’s (including persons employed or utilized by the CONTRACTOR in the performance of this Agreement, including but not limited to the CONTRACTOR’s contractors, subcontractors, sub-subcontractors, materialmen, or agents of any tier or their respective employees, and the officers, directors, agents or employees of the CONTRACTOR) withholding, destruction, or alteration of any such records.

65. The CONTRACTOR shall not sublet, assign or transfer any interest in this

Agreement, or claims for the money due or to become due out of this Agreement to a bank, trust company, or other financial institution without written CITY approval. When approved by the CITY, written notice of such assignment or transfer shall be furnished promptly to the CITY.

66. Any CONTRACTOR proposed subcontractors shall be submitted to the

CITY for written approval prior to the CONTRACTOR entering into a subcontract. Subcontractor information shall include, but not be limited to, State registrations, business address, occupational and/or business license tax proof of payment, and insurance certifications.

67. The CONTRACTOR shall coordinate the provision of goods and/or services and work product of any CITY approved subcontractors, and remain fully responsible for such goods and/or services and work under the terms of this Agreement.

68. Any subcontract shall be in writing and shall incorporate this Agreement and require the subcontractor to assume performance of the CONTRACTOR’s duties commensurately with the CONTRACTOR’s duties to the CITY under this Agreement, it being understood that nothing herein shall in any way relieve the CONTRACTOR from any of its duties under this Agreement. The CONTRACTOR shall provide the CITY with executed copies of all subcontracts.

69. The CONTRACTOR shall reasonably cooperate at all times with the

CITY and other CITY contractors and professionals.

70. This Agreement is to be governed by the laws of the State of Florida.

71. Venue for any legal proceeding related to this Agreement shall be in the Seventh Judicial Circuit Court in and for Volusia County, Florida.

72. This Agreement is the result of bona fide arms length negotiations between the CITY and the CONTRACTOR and all parties have contributed substantially and materially to the preparation of the Contract.

Accordingly, this Agreement shall not be construed or interpreted more strictly against any one party than against any other party.

73. "Force Majeure" refers to any unforeseeable event, including, but not limited to, wars or natural disasters, the occurrence and effect of which is unavoidable and insurmountable. Economic burden, unprofitability, or other issues commonly associated with the conduct of business shall be deemed foreseeable events and shall not constitute a Force Majeure for the purposes of this Agreement.

A. Should a Party, due to the occurrence of Force Majeure, fail to perform this Agreement in full or in part, such Party shall be exempted and excused from those responsibilities and obligations to the extent that such responsibilities and obligations are proximately caused by such Force Majeure.

B. Should a Party fail to perform on time its duties or obligations under this Agreement and subsequently Force Majeure were to occur, such Party shall not be exempted from any of its liabilities hereunder as a result of its failure to perform such duties or obligations.

C. Should a Party be unable to perform this Agreement as a result of

Force Majeure, it shall immediately inform the other Party of the situation and the reason(s) for the nonperformance, so as to minimize any losses incurred by the other Party as a consequence thereof.

Such notification shall be in the form of a sworn affidavit from a principal of the Party claiming the existence of a Force Majeure event and shall fully set forth the details of the event as well as the direct effect of such upon the ability or capacity of the Party to render its Services pursuant to this Contract or Services Authorization. If feasible and in the best interests of the CITY, the Parties may agree to amend in writing the schedules for any work authorized to accommodate the situation; however, should a Force Majeure event preclude the CONTRACTOR from timely completing the Project for the CITY, the CITY may terminate this Agreement and reassign the Project to another CONTRACTOR for completion at no risk or liability to the City.

D. This paragraph shall not be construed to prohibit or otherwise preclude the CITY from terminating this Agreement for convenience as contemplated in this Agreement.

74. This Agreement, together with the exhibit(s), if any, and Contract

Documents, constitutes the entire integrated Agreement between the CITY and the CONTRACTOR and supersedes all prior written or oral understandings in connection therewith. This Agreement, and all the terms and provisions contained herein, including without limitation the exhibits hereto and Contract Documents, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements whether written or oral.

75. This Agreement may only be amended, supplemented or modified by a formal written amendment agreed to by both parties.

76. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties unless otherwise permitted or required by this Agreement.

77. Written notice requirements of this Agreement shall be strictly construed and such requirements are a condition precedent to pursuing any rights or remedies hereunder. The CONTRACTOR agrees not to claim any waiver by CITY of such notice requirements based upon CITY having actual knowledge, implied, verbal or constructive notice, lack of prejudice or any other grounds as a substitute for the failure of the CONTRACTOR to comply with the express written notice requirements herein. Computer notification (e-mails and message boards) shall not constitute proper written notice under the terms of the Agreement.

78. The failure of the CITY to insist in any instance upon the strict performance of any provision of this Agreement, or to exercise any right or privilege granted to the CITY hereunder shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force.

79. In no event shall any obligation of the CITY under this Agreement be or constitute a general obligation or indebtedness of the CITY, a pledge of the ad valorem taxing power of the CITY or a general obligation or indebtedness of the CITY within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds.

80. The CONTRACTOR shall not have the right to compel the exercise of the ad valorem taxing power of the CITY.

81. Each exhibit referred to and attached to this Agreement is an essential part of this Agreement. The exhibits, Contract Documents, and any amendments or revisions thereto, even if not physically attached hereto, shall be treated as if they are part of this Agreement.

82. The Section headings and captions of this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any provision of this Agreement.

83. If any term, provision or condition contained in this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law when consistent with equity and the public interest.

84. No Liens. CONTRACTOR acknowledges and agrees that the CITY is a

Florida municipality, and as such, the CITY’s property, the Work and the Project involved are not subject to construction liens pursuant to Chapter 713, Florida Statutes, or any other liens. CONTRACTOR and its sub-contractors, materialmen and laborers shall not file or record claims of lien or any other liens against the Work, the Project or any property owned by the CITY. To the extent permitted by law and this Agreement, CONTRACTOR hereby agrees to indemnify, defend and hold the CITY harmless from all liens filed by CONTRACTOR and its sub-contractors, materialmen and laborers and all other claiming through CONTRACTOR against the Project, Work and any property owned by the CITY, including for the CITY’s attorneys’ fees and costs (including for pre-suit, trial and appellate level expenses). All subcontractors, materialmen, laborers, vendors and all others claiming by and through CONTRACTOR shall look exclusively to the payment bond posted in accordance with Section 255.05, Florida Statutes, if not properly paid.

If a Notice of Commencement is executed and recorded for the Project, the Project’s Payment Bond shall be attached to the Notice of Commencement and the following statement shall be added to the Notice of Commencement:

“This is a public construction project of the City of _DeBary__________, a Florida municipality and as such the public property and the project involved is not subject to construction liens pursuant to Chapter 713, Florida Statutes or any other liens. No liens shall be filed against the Project or any property of the City of _DeBary________. All subcontractors, materialmen, laborers, vendors and all others claiming by and through Contractor shall look to the payment bond posted in accordance with Section 255.05, Florida Statutes and attached hereto for payment, if not properly paid.”

85. All provisions of this Agreement shall be read and applied in para materia with all other provisions hereof. To the extent that any conflict arises or exists between this executed document and any of the other Contract Documents, including the General Conditions and Supplemental

Conditions and any other Exhibits attached hereto, this document shall control to the extent that such conflict exists.

86. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same document.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written.

CONTRACTOR:

Name of Firm

By (Signature) (SEAL)

Printed Name and Title

ATTEST:

By (Signature)

OWNER:

City of DeBary Name of Owner

By (Signature) (SEAL)

- Mayor Printed Name and Title

ATTEST:

By (Signature)

Stacey Tebo, City Clerk

END OF SECTION