Attachmernt_C_Standard_Construction_Contract_-_Architect_Template.pdf

CITY OF PORT ORANGE

STANDARD CONSTRUCTION CONTRACT

CITY OF PORT ORANGE - STANDARD CONSTRUCTION CONTRACT – _________________________ (LLC/CORP) –

__________________________ (PROJECT NAME) ITB #XX-XX

[CA_____]

This Standard Construction Contract (“Contract”) is entered into this ____ day of _________________, _______, by and between the CITY OF PORT ORANGE, a Florida municipal corporation, whose principal address is 1000 City Center Circle, Port Orange, Florida 32129 (the “City” or “Owner”), and _______________________________________, (“Contractor”), a ___________ Florida ______________ (limited liability company/corporation), whose principal address is ___________________________. The City and Contractor are collectively referred to herein as the “Parties.”

1. Provision of Services

(a) The Contractor hereby agrees to perform all required work and shall provide and furnish all labor, materials, necessary tools, expendable equipment, and all utility and transportation services required to complete the construction of and all appurtenant work thereto, as more specifically described in _____________________ Invitation to Bid Project ID: ITB-XX-ZZ-CW (“ITB XX-XX”), hereby fully incorporated into this Contract (“Work”). This Contract together with ITB XX-XX5, any Addenda thereto, ___________________ (Program Manual or pertinent construction detail) dated ___________, ______________ (Specifications or Drawings) dated _____________, and the Contractor’s proposal, all of which may be referred to as the “Contract”, and all of which are made a part hereof by reference as if fully set forth herein, shall constitute the formal written Contract between the City and Contractor. For convenience, ITB XX-XX, Section ___ Scope of Work, the ___________________ (Bid Tabulation/Schedule of Unit Pricing) as submitted by Contractor in Contractor’s Proposal Attachment are attached hereto as Exhibit “1.” A complete copy of XX-XX, any Addenda, and Contractor’s Proposal are available in the Office of the City Clerk. The ___________, (Program Manual or pertinent construction detail), _______________________, (Specifications or Drawings) are available in the Office of the City Engineer. All Work shall be in strict compliance with the drawings and specifications, together with the Contract Documents, including any and all Addenda, ___________________ (Program Manual or pertinent construction detail), _____________________ (Specifications or Drawings) as referenced hereinabove. It is understood and agreed that said labor, materials, tools, equipment, and service shall be furnished and said work performed and completed subject to the approval of the City.

The undersigned Contractor agrees that Contractor has carefully inspected all Contract Documents and is familiar with same; the Contractor agrees that Contractor is responsible for having heretofore examined the site, the location and route of all the proposed work and for having satisfied himself as to the character of the route, the location, surface and under-ground obstructions and nature thereof, the nature of the groundwater conditions and other physical characteristics of the work and work area in order that Contractor may include in the prices which Contractor has bid and the prices of the Contract, all costs pertaining to the work and thereby provide for the satisfactory completion thereof and determination of the Contract prices herein agreed upon, and that this Contract price is based upon these inspections and examination.

(b) The time, manner and place for performance of such services shall be:

Contract Time: This Contract shall become effective on the last date the Contract is signed by the Parties.

The Contractor agrees the Work shall be substantially complete on or before ____________ (___) days from receipt of the Notice to Proceed letter from the City, (“Period of Performance”).

Manner and Place: The Work shall be in accordance with and in a manner as required by all current federal, state, county, fire, building and land development codes, laws, ordinances and regulations, and with applicable permits and licenses per the City Code of Ordinances.

Time and Essence: Contractor acknowledges that time is of the essence for this Contract.

2. Authorization for Services: This Contract standing alone does not authorize the purchase of any goods or services or require the City to place any orders for goods or service. Authorization for the performance of services by the Contractor under this Contract shall be in the form of written Notice to Proceed issued by the City and a written Purchase Order. A Payment and Performance Bond shall be required for this Contract.

3. City Obligations. In return for the work identified above, the City agrees to compensate Contractor based on the prices stated in Contractor’s ________________ (Bid Proposal/Schedule of Unit Pricing), attached hereto as Exhibit “1,” subject to a limit not to exceed the appropriated budget. All payments shall be governed by the Local Government Prompt Payment Act as set forth in Sections 218.70 through 218.79, Florida Statutes, as amended, and in accordance with paragraph entitled “Payments to Contractor and Retainage,” hereinbelow.

4. Contract Documents. The following forms, attached as Exhibit “2,” are an integral part of this Contract and must be completed, signed, witnessed and notarized as indicated and returned with the signed Contract:

(a) Front Page for Bond (F.S. § 255.05)

(b) Combination Payment and Performance Bond (F.S. § 255.05)

5. Contract Administration. The _________________________ Director, _________________, shall perform contract administration of this Contract. The City may change the contract administrator, from time to time and at any time, upon written notice to Contractor. For notice provisions, see the paragraph below entitled “Notice.”

6. Authority and Duties of the Architect. The part of the project that pertains to the Work has been designed by the Project Architect, ______________________, P.E. (“Architect”) of Hall & Ogle Architects, Inc., and shall act as Owner’s representative, assume all duties and responsibilities, and have the rights and authority assigned to Architect in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents.

(a) Status of the Architect: The work shall be subject at all times to the review of the Architect or designee.

The Architect shall decide any and all questions which may arise as to the quality and acceptability of materials furnished, work performed, rate of progress of work, areas of work, maintenance of schedules, interpretation of drawings and specifications, and all questions as to the acceptable fulfillment of the Contract on the part of the Contractor. In case of differences between the drawings and specifications, the Architect shall make a determination as to whether the specifications or drawings represent the intent of the Contract, and such determinations shall be communicated to the Contractor in writing. All claims of the Contractor shall be made in writing within a reasonable time. All decisions of the Architect shall be final except in cases where time and/or financial considerations are involved.

(b) Inspection and Examination of the Work:

i. The Architect and authorized assistants shall have free access to the work of the Contractor at any time for purposes of inspection.

ii. Duly authorized inspectors, who shall perform their duties periodically on the project, may be assigned to the project or any part thereof at any time. The number of inspectors shall be at the discretion of the Owner. The presence or absence of an inspector shall in no way lessen the responsibility of the Contractor to perform properly the Contractor’s duties to the Owner under these Contract Documents. An inspector is not authorized to revoke, alter, enlarge, relax, release or amend any of the specifications or requirements thereof, nor to issue any instructions on, nor to approve or accept any portion of the Work, or materials, or equipment which are contrary to the drawings and specifications; nor are any of inspector’s actions to be construed as doing so.

iii. All materials shall be subject to inspection; examination and test by the Architect at any time during manufacture, and at all places where such manufacture is being carried on. The right is reserved to reject defective materials during manufacture or before they have been incorporated into work. If the contractor fails to replace defective work or rejected materials, the Owner may replace such materials or correct such defective work and charge the cost thereof to the Contractor or may terminate the right of the Contractor to proceed as addressed herein.

iv. Since no inspection, either final or interim, can be complete within itself, no final inspection, acceptance of work, materials or equipment of final or interim acceptance of same by the Owner, or certificate of Architect, shall relieve the obligation of the Contractor to the Owner to do the work in a good workmanlike manner, and to furnish proper, specified equipment and materials, and to perform properly all and any obligations and duties to the Owner under the terms of the Contract Documents.

7. Contractor's Representative. The Contractor shall keep a competent superintendent and any necessary assistants, all satisfactory to the Owner at all times during the execution of the work. The superintendent shall not be changed without the consent of the Owner unless the superintendent proves to be unsatisfactory to the Contractor and ceases to be employed. The superintendent shall represent the Contractor in Contractor’s absence, and all directions given to the superintendent shall be as binding as if given to the Contractor. The Contractor shall give sufficient supervision to the work, using Contractor’s best skill and attention.

8. Contractor's Right to Terminate. If the work should be stopped for a period of three (3) months, under any order of any court or public authority, other than by the Owner, through no act of fault of the Contractor or of anyone employed by Contractor, then the Contractor may, upon thirty (30) days written notice to the Owner, terminate Contractor’s Contract and recover from the Owner payment for all work executed and any expense sustained plus a reasonable profit thereon.

9. Contractor's Understanding.

(a) It is understood and agreed that the Contractor is familiar with the nature and location of the work, the confirmation of the ground, the character, quality and quantity of the materials to be encountered, the character of equipment and facilities needed preliminary to and during the persecution of the work, the general and local conditions, and all other matters which can in any way affect the work under this Contract. No verbal agreement or conversation with any officer, agent or employee of the Owner, either before or after the execution of this Contract, shall affect or modify any of the terms or obligations herein contained.

(b) If the Contractor, in the course of the work, finds any discrepancy between the drawings and the physical conditions of the locality, or any error or omissions in the drawings or in the layout as given by points and instructions, or discovers unforeseen underground or above-ground conditions or any other unexpected conditions requiring additional work by the Contractor, it shall be Contractor’s duty to immediately inform the Architect, in writing, and the Architect shall promptly check the accuracy of the information. Any work done after such discovery, until any necessary changes are authorized, shall be done at the Contractor’s risk.

(c) If any part of the Contractor’s work depends for proper execution or results upon the work of another Contractor, the Contractor shall inspect and measure work already in place and shall at once report to the Architect any discrepancy between the executed work and the drawings. The Contractor is at all times fully responsible for the work of the subcontractor as if it were the Contractor’s own work.

10. Contractors and Subcontractors.

(a) Contractors and all subcontractors shall maintain financial records and reports relating to funds paid to any parties for work on the matters which are the subject of this project and submit reports to the Owner.

(b) Contractors and all subcontractors shall maintain books, records, documents and other evidence according to generally accepted accounting principles, procedures and practices which sufficiently and properly reflects all costs of any nature expended in the performance of the contract, and retain said copies in accordance with the paragraph entitled “Examination of Records,” hereinbelow.

(c) All subcontracts shall include the aforementioned audit and record keeping requirements.

11. Protection of Work, Persons and Property.

(a) The Contractor shall continuously maintain adequate protection of all Contractor’s work from damage and shall protect all property from injury or loss arising in connection with the Contract. Contractor shall make good any such damage, injury or loss, except such as may be directly due to errors in Contract Documents or caused by agents or employees of the Owner. Contractor shall adequately protect adjacent property as provided by law and the Contract Documents. Contractor shall provide and maintain all passageways, guard fences, lights and other facilities for protection required by public authority or local conditions. Contractor shall provide reasonable maintenance of traffic ways for public and preservation of the continuation of the Owner’s business, taking into full consideration all local conditions.

Contractor shall comply with the Florida Dept. of Commerce Safety Regulations and any local safety regulations.

(b) In case of failure on the part of the Contractor to promptly restore damaged property, or make good such damage or injury, the Owner may, after 48 hours' notice to the Contractor, proceed to repair, rebuild or otherwise restore such property as may be deemed necessary and the cost thereof shall be deducted from any monies due or which may become due the Contractor under this Contract.

12. Quality of Material, Equipment or Work. When any material or equipment not conforming to the requirements of the specifications and drawings has been delivered to the project, or incorporated in the work of the project, or whenever any work performed is of inferior quality, then such material or equipment or work, whether known or unknown to the Owner, shall be considered to be defective, and shall be removed and replaced, or made satisfactory to the Owner at no cost to the Owner.

13. Removal of Equipment. In the case of annulment of this Contract before completion, from any cause, except that stated in Contractor's Right to Terminate, the Contractor, if notified to do so by the Owner, shall promptly remove any part of all of Contractor’s equipment and supplies at the expense of the Contractor.

14. Progress and Control of the Work.

(a) Schedules and Progress Reports: The Contractor must submit a proposed schedule of the work at the preconstruction conference. The purpose of this schedule is to enable the Owner to govern the work, to protect the functions of the local government and its citizens, and to aid in providing appropriate surveillance. The Owner shall have the right to reschedule work provided such rescheduling is in accordance with the remainder of the terms of this Contract. The schedule shall show, as a minimum, the approximate dates on which each segment of the work is expected to be started and finished, the anticipated earnings by the Contractor for each month, and the approximate number of crews and equipment to be used. The Architect shall review and approve the schedule. If rescheduling is needed then a new updated schedule should be provided to the Architect for approval. The Contractor shall also forward to the Owner, as soon as practicable after the first day of each month, a summary report of the progress of the various parts of the work under the Contract, stating the existing status, estimated time of completion, and cause of delay, if any. Together with the summary report, the Contractor shall submit any necessary revisions to the original schedule for the Architect’s review and approval. The Architect, for purpose of evaluation, may require additional more detailed schedules.

(b) Approval of Subcontracts:

i. The Contractor shall, as soon as practicable after the signing of the Contract, notify the Owner in writing of the names of subcontractors, including material suppliers proposed for the work, and shall not employ any that have not been approved by the Owner.

ii. The Contractor agrees to be fully responsible to the Owner for the acts and omissions of subcontractors and for payment of services rendered by the subcontractor.

iii. Nothing contained in the contract Documents shall create any contractual relationship between any subcontractor and the Owner. The Contractor shall furnish the Owner copies of any and all contracts entered into with subcontractors for performance of any work identified in the Contract Documents.

(c) Prosecution of Work:

i. The work shall be prosecuted at such time and in or on such part or parts of the project with such forces of workmen, materials, and equipment as may be ordered by the Architect, in writing, to complete the project as contemplated in the drawings, specifications, Contract, and schedules. If, at any time, the materials and equipment to be used appear to the Architect as insufficient or improper for securing the quality of work required, or the required rate of progress, Architect may order the Contractor to increase Contractor’s efficiency or to improve the character of their work, and the Contractor shall conform to such an order. The failure of the Architect to demand any increase of such efficiency or any improvement shall not release the Contractor from Architect’s obligation to secure the quality of work or the rate of progress necessary to complete the work within the limits imposed by the Contract.

ii. Contractor shall perform the work and take such precautions as Contractor may deem necessary to complete the project so all work shall be in first-class and acceptable condition within the Contract time according to the schedule.

(d) Workmanship, Material, and Workmen:

i. Unless otherwise stated in the detailed specifications, all workmanship, materials, and articles incorporated in the work covered by this Contract shall be of the most suitable grade of their respective kinds for the purpose and acceptable to the Architect. The Architect shall decide the question of quality where the expression “or approved equal” is used in the specifications following reference to a specific manufacturer of equipment or materials. If the contractor wishes to make a substitution request for an alternate material or installation procedure, Contractor will need to present to the Architect for approval prior to proceeding with said alternate. Samples of materials shall be submitted for approval when so directed. Machinery, materials, articles installed or used, or unusual methods of work used without such approval shall be at the risk of subsequent rejection.

ii. The Architect or the Owner may require the Contractor to remove from the work such employees as the Architect or the Owner deem incompetent, careless, insubordinate, or otherwise objectionable, or whose continued employment on the work is deemed to be contrary to the Owner’s interest.

(e) Delays and Extension of Time:

i. If the Contractor is delayed at any time in the progress of the work by any act or neglect of the Owner or Contractor’s employees, or by any other Contractor employed by the Owner, or by changes ordered in the work, or by strikes, fire, lockouts, unusual delay in transportation, unavoidable causalities or by delay authorized by the Owner pending arbitration, or by any cause which the Owner shall decide to justify the delay, then the time of completion may be reasonably extended by the Owner. If this decision requires a Change Order, the procedure shall be as provided for in Paragraph “Modifications or Changes to this Contract”, hereinbelow.

ii. No extension shall be made for delay unless notice of a claim is made by the Contractor in writing to the Owner within seven (7) days of the event or incident causing the delay.

NO CLAIM FOR DAMAGES OR ANY CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE

MADE OR ASSERTED AGAINST THE CITY BY REASON OF ANY DELAYS. The CONTRACTOR shall not be entitled to an increase in the Contract Sum or payment or compensation 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; provided, however, that this provision shall not preclude recovery or damages by the CONTRACTOR for hindrances or delays due solely to fraud, bad faith or active interference on the part of the City or its agents. Otherwise, the CONTRACTOR shall be entitled only to extensions of the Contract Time as the sole an exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.

15. Rights and Responsibilities of the Owner During Construction.

(a) Surveys and Lands for Work:

i. The Owner shall provide the lands upon which the work under this Contract is to be done; additional land will not be provided for storing materials.

ii. Except that the Contractor shall provide all necessary additional land required for the erection of temporary construction facilities and storage of Contractor’s material, together with right-of-access to the same. The Owner shall furnish all land surveys for this project.

iii. The Contractor shall provide the Owner the information as to where material(s) are stored, the right of access to the material(s), and if applicable, keys to access locked areas.

(b) The Owner’s Right to Do Work: If the Contractor should neglect to prosecute the work properly or fail to perform any provision of this Contract, the Owner, after seven (7) days written notice to the Contractor, may, without prejudice to any other remedy available to the Contractor, make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the Contractor.

(c) Right to Retain Imperfect Work: If any part or portion of the work done or material furnished under this Contract shall prove defective and not in accord with the plans and specification, and if the Owner decides that any part or portion of the imperfect work is not of sufficient magnitude or importance as to make the work dangerous or undesirable, or if the Architect decides that removing the work is warranted for whatever reason, then the owner has the right to reject and hold the contractor accountable for its removal and corrective action.

(d) Suspension of Work:

i. If the work is defective, or the Contractor fails to supply sufficient skilled workmen or suitable materials or equipment, or if the Contractor fails to make prompt payments to subcontractors or for labor, material, or equipment, or if the Contractor fails to comply with work schedules, the Owner or Architect may order the Contractor to stop all work, or any portion thereof, and terminate payments to the Contractor until the cause for such order has been eliminated. No extension of contract time shall be allowed for this suspension.

ii. The Owner or Architect may, at any time and without cause, suspend the work or any portion thereof for a period of not more than ninety (90) days by notice in writing to the Contractor, which notice shall fix the date on which the work shall be resumed. The Contractor shall resume the work on the date so fixed. The Contractor shall be allowed an increase in contract price or an extension of the contract time directly attributable to any suspension if Contractor makes a claim therefore as provided in the section of this Contract titled: Progress and Control of Work - Delays and Extension of Time.

16. Liens. Neither the final payment nor any part of the retained percentage shall become due until the Contractor shall deliver to the City a complete release of all liens arising out of this Contract, or receipts in full in lieu thereof. In addition, in either case, the Contractor shall provide an affidavit stating that, to the best of the Contractor’s knowledge and information, all labor and materials for which a lien could be filed have been paid in full. The Contractor may, should any subcontractor refuse to furnish a release or receipt in full, furnish a bond satisfactory to the City to indemnify that payments are made. The Contractor shall refund to the City all money payments that the latter may be compelled to pay in discharging such a lien, including all interest, costs, and reasonable attorney’s fees.

17. Termination for Convenience of the City

(a) The parties agree that the City reserves the right to terminate this Contract, or any work or delivery required hereunder, from time to time either in whole or part without penalty or cause, whenever the City Manager of Port Orange shall determine that such termination is in the best interest of the City.

(b) Termination, in whole or in part, shall be effected by delivery of a Notice of Termination signed by the City Manager or his designee, mailed or delivered to the Contractor, and specifically setting forth the effective date of termination, which termination date shall not be less than thirty (30) days after the date of such written notice.

(c) Upon receipt of such Notice, the Contractor shall:

(i) cease any further deliveries or work due under this Contract, on the date, and to the extent, which may be specified in the Notice;

(ii) place no further orders with any subcontractors except as may be necessary to perform that portion of this Contract not subject to the Notice;

(iii) terminate all subcontracts except those made with respect to contract performance not subject to the Notice;

(iv) settle all outstanding liabilities and claims which may arise out of such termination, with the ratification of the Finance Director of the City of Port Orange; and

(v) use best efforts to mitigate any damages which may be sustained by the Contractor as a consequence of termination under this clause.

(d) After complying with the provisions of subparagraph (c), above, the Contractor shall submit a termination claim, in no event later than six (6) months after the effective date of termination, unless one or more extensions of three (3) months each are granted by the Finance Director.

(e) The Finance Director, with the approval of the City Manager, shall pay from the using department's budget, reasonable costs of termination, including a reasonable amount for profit on supplies or services delivered or work completed. In no event shall this amount be greater than the original contract price, reduced by any payments made prior to Notice of Termination, and further reduced by the price of the supplies not delivered or the services not provided. This Contract shall be amended accordingly, and the Contractor shall be paid the agreed amount.

(f) In the event that the parties cannot agree on the whole amount to be paid to the Contractor by reason of termination under this clause, the Finance Director shall pay the Contractor the amounts determined as follows, without duplicating any amounts which may have already been paid under the preceding paragraph of this clause:

(i) With respect to all Contract performance prior to the effective date of Notice of Termination, the total of:

(1) the cost of work performed or supplies delivered;

(2) the cost of settling and paying any reasonable claims as provided in paragraph (c) (iv), above;

(3) a sum as profit on (a) determined by the Finance Director to be fair and reasonable.

(ii) The total sum to be paid under (i) above shall not exceed the contract price, as further reduced by the contract price of work or supplies not terminated.

(g) In the event that the Contractor is not satisfied with any payments which the Finance Director shall determine to be due under this clause, the Contractor may appeal any claim to the City Council in accordance with Paragraph 26 of this contract concerning disputes.

18. Termination for Convenience for Subcontractors. In accordance with the termination for the convenience of the City provision of this contract, the Contractor shall include similar provisions in any subcontract, and shall specifically include a requirement that subcontractors make all reasonable efforts to mitigate damages which may be suffered. Failure to include such provisions shall bar the Contractor from any recovery from the City whatsoever of loss or damage sustained by a subcontractor as a consequence of termination for convenience.

19. Termination for Default. Either party may terminate this Contract, without further obligation, for the default of the other party or its agents or employees with respect to any agreement or provision contained herein. In the event of default by the contractor, the City may, upon termination of the Contract, procure, on terms and in the manner that it deems appropriate, materials, or services to replace those under the Contract. The Contractor shall be liable to the City for any excess costs incurred by the City in re-procuring the materials or services. City Council may elect to refrain from doing any future business with the bidder as stipulated in City Code 2-276 Suspension and Disbarment.

20. Contractor's Right to Terminate. If the work should be stopped for a period of three (3) months, under any order of any court or public authority, other than by the Owner, through no act of fault of the Contractor or of anyone employed by the Contractor, then the Contractor may, upon thirty (30) days written notice to the Owner, terminate the Contract and recover from the Owner payment for all work executed and any expense sustained plus a reasonable profit thereon.

21. Examination of Records

(a) The Contractor agrees that the City, or any duly authorized representative, shall, until the expiration of five (5) years after final payment hereunder, have access to and the right to examine and copy any pertinent books, documents, papers and records of the Contractor involving transactions related to this Contract.

(b) The Contractor further agrees to include in any subcontract for more than $10,000 entered into as a result of this Contract, a provision to the effect that the subcontractor agrees that the City or any duly authorized representative shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and copy any pertinent books, documents, papers and records of such contractor involved in transactions related to such subcontract, or this Contract. The term subcontract as used herein shall exclude purchase orders for public utility services at rates established for uniform applicability to the general public.

(c) The period of access provided in subparagraphs (a) and (b) above for records, books, documents and papers which may relate to any arbitration, litigation, or the settlement of claims arising out of the performance of this contract or any subcontract shall continue until any appeals, arbitration, litigation or claims shall have been finally disposed of.

22. Public Records Compliance. Contractor shall comply with public records laws as set forth in Chapter 119, Florida Statutes, and shall specifically:

(a) Keep and maintain public records required by the City to perform the service.

(b) Upon request from the City’s custodian of public records, provide the City with a copy of the requested record or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Section 119, Florida Statutes, or as otherwise provided by law.

(c) Ensure that public records that are exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Contract term and following completion of the Contract if the Contractor does not transfer the records to the City.

(d) Upon completion of the Contract, Contractor shall transfer to the City, at no cost, all public records in possession of the Contractor and destroy any duplicate public records that are exempt from public records disclosure requirements. All records stored electronically must be provided to the City, upon request from the City’s custodian of public records, in a format that is compatible with the information technology systems of the City.

If Contractor does not comply with a public records request, the City shall deem the non-compliance a breach of this Contract, and the Contractor may be subject to penalties under Section 119.0701, Florida Statutes.

CONTRACTOR QUESTIONS RELATING TO CONTRACTOR’S DUTIES TO PROVIDE PUBLIC

RECORDS RELATING TO THIS CONTRACT MUST BE FORWARDED TO THE OFFICE OF THE

CITY CLERK, CITY HALL, 1000 CITY CENTER CIRCLE, PORT ORANGE, FLORIDA 32129;

TELEPHONE: (386) 506-5563; E-MAIL: CITYCLERK@PORT-ORANGE.ORG.

23. Insurance. Contractor shall maintain insurance, as required herein, during the life of this Contract. Contractor shall provide to the City, a certificate of insurance endorsing the City of Port Orange as an additional named insured.

All insurance coverages of the Contractor shall be primary and non-contributory. All insurance coverages of the Contractor shall not seek contribution from any other insurance or self-insurance available to the City. For workers’ compensation coverage, the Contractor’s insurance certificate shall include the insurer’s waiver of subrogation in lieu of endorsing the City as an additional insured for workers’ compensation. The City shall not accept Workers’ Compensation Exemptions. Contractor may use leased employees if the Contractor ensures that all workers who mailto:CITYCLERK@PORT-ORANGE.ORG access the jobsite are employees covered by the employee leasing company, and no non-employees are permitted to access the jobsite. Any Contractor using a leased employee shall complete the City’s Leased Employee Affidavit Exhibit Form. Policies for Workers’ Compensation may be issued by companies authorized as a group self-insurer by F.S. 440.572.

Policies other than Workers’ Compensation shall be issued by insurers licensed and/or duly authorized under Florida Law to do business in the State of Florida and all insuring companies are required to have a minimum rating of “A-” in the “Best Key Rating Guide” published by A.M. Best & Company, Inc. Contractor shall not commence work under this Contract until the City has received a certificate or certificates of insurance with endorsement evidencing the required insurance. Insurer shall provide the City written notice of cancellation, nonrenewal or any other changes in coverage no later than thirty (30) days prior to the effective date of the change and shall provide notice to the City no later than 10 days after non-payment. The Certificates of Insurance and required insurance policies shall contain provisions that thirty (30) days prior written notice shall be given to the City of any cancellation, intent not to renew, or reduction in the policies or coverages.

Contractor shall require and ensure each of its subcontractors to maintain, until the completion of the subcontractor's work, insurance of the types and to the limits set forth herein. All insurance coverages shall be primary and non-contributory. All insurance coverages of the subcontractors shall not seek contribution from any other insurance or self-insurance available to the City. The Contractor is responsible for ensuring that its subcontractors maintain the required coverage. Failure of the Contractor to ensure the subcontractors maintain the required coverage, shall not relieve the Contractor of any contractual responsibility, obligation or liability.

The City reserves the right to increase insurance coverage as determined for higher risk contracts.

The acceptance by the City of any Certificate of Insurance does not constitute approval or agreement by the City that the insurance requirements have been satisfied or that the insurance policy shown on the Certificate of Insurance is in compliance with this Contract and does not waive the insurance required by this Contract.

Should at any time the Contractor or subcontractors not maintain the insurance coverages required herein, the City may terminate the Contract or at its sole discretion shall be authorized to purchase such coverages and charge the Contractor for such coverages purchased. The City shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company or companies used.

The decision of the City to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Contract.

The insurance required in the preceding paragraphs shall also provide adequate protection against the following special hazards if applicable:

(a) Property damage arising out of blasting or explosions;

(b) Property damage arising out of collapse of, or structural injury to any building, caused by grading, excavating, burrowing or filling.

(c) Property damage below the surface of the ground including the destruction of wires, conduits, pipe, water mains, sewers and gas mains by digging or burrowing by any mechanical device.

(d) The Contractor shall furnish the City with satisfactory proof of coverage of the insurance required.

Standard Insurance Requirements

Insurance Standards Additional Requirements

Workers’ Compensation The Contractor shall maintain coverage for its employees with statutory workers’ compensation limits, and no less than the limits indicated in the Schedule of Limits for Employers’ Liability. Said coverage shall include a waiver of subrogation in favor of the City. The City will not accept elective exemptions. Any contractor using an employee leasing company shall complete the Affidavit of Leased Employee Form.

Contract Amount Limits Up to $10 million Statutory/$500,000 $10 - $20 million Statutory/$1,000,000

Contracts over $20 million To Be Determined by the City.

☐If Contract requires work on or about navigable waters, Longshoreman’s and Harbor Workers’ Coverage required.

☐If vessels involved, Jones Act coverage with limits of $500,000 required.

Comprehensive General Liability (including Completed Operations and Contractual Liability

Limits: Not less than the following:

$1,000,000 Bodily Injury & Property Damage-each occurrence $1,000,000 Personal & Advertising Injury- each occurrence $2,000,000 General Aggregate $2,000,000 Products/Completed Operations Aggregates limit.

$5,000 Medical Payments $ 100,000 Fire Damage Legal Liability Coverage shall include Contractual Liability and Independent Contractors Liability

☐When work is on or under

Railroad rights of way or properties, the Contractor shall take out and maintain during the life of the Contract, Railroad protective liability and property damage insurance in amounts as requested by the Railroad.

Comprehensive Business, Automobile Liability to include all owned, hired and non-owned automobiles.

Limits: Auto Liability Body Injury and Property Damage:

$1,000,000 each occurrence $1,000,000 aggregate

Additional Insurance Requirements

☒ Property Insurance Builders Risk.

Additional Coverage:

Limits: Buildings - Completed value of Contract.

“All Risk” coverage on latest ISO for or its equivalent.

Permission granted to occupy.

City named as insured AIMA

If Agreement requires handling or installation of City’s equipment, coverage should be furnished on “All Risk” form, including transit and City shall be named.

☐ Professional Liability Limits: Coverage - $1,000,000

☐ Installation Floater (IT) Limits: Coverage - $ To be determined.

☐ Contractor Pollution Liability

Limits: Coverage - $1,000,000

☐ Errors and Omissions Limits: Coverage - $1,000,000

☐ Umbrella Policy Limits: Coverage – $ To be determined.

Payment and Performance Bond Required

Limits: Coverage - Equal to amount of Contract.

City Manager waives Payment and Performance Bond for work under $200,000.00.

☐ Unless otherwise required by law, City Manager waives Insurance for FOB goods.

24. Responsibility of the Work. Prior to the completion of the Work by the Contractor and the acceptance thereof by the City, the Work shall remain at the risk of the Contractor and said Contractor shall be required to repair, replace, renew and make good at Contractor’s own expense all damages whether caused by force or violence of the elements, negligence, fault, or omission of the Contractor, or any cause whatsoever provided, however, that in such cases the Contractor shall be entitled to a reasonable extension of time within which to complete said work. If the cause of the delay shall be due to the negligence, fault, or omission of the Contractor, the Contractor shall not be entitled to the extension of time mentioned in the said paragraph.

25. Payments to Contractor and Retainage. The Contractor shall plan Contractor’s work for construction on the basis of monthly pay periods. The Contractor, on the 25th of each month, shall submit to the City for review an Application for Payment (in a form approved by the City) filled out and signed by Contractor covering the work completed as of the date of the Application (“Pay Request”) and accompanied by such supporting documentation as is required by the Contract Documents. The Contractor is responsible for all payments for stored material, and no payment shall be included in the Pay Request for stored materials. The amount of said Pay Request, after deducting the retainage and all previous payments, shall be due and payable to the Contractor within thirty (30) days after review and approval of the Pay Request by the City. Prior to Substantial Completion, progress payments will be made in an amount equal to 95% percent of the value of the Work completed (with the balance being retainage) but, in each case, less the aggregate of payments previously made and less such amounts as City may withhold, including but not limited to liquidated damages, in accordance with the Contract. After the City has performed a final inspection and signed off on the Work, Contractor may make application for the Final Payment.

26. Correction of Work Before Final Payment. The Contractor shall promptly remove from the premises all material condemned by the Architect as failing to conform to the Contract whether incorporated in the work or not, and the Contractor shall promptly replace and re-execute Contractor’s own work in accord with the Contract and without expense to the Owner and shall bear the expense of making good all work of other Contracts destroyed or damaged by such removal or replacement. If the Contractor does not remove such condemned work and materials within a reasonable time, fixed by written notice, the Owner may remove them and may store the materials at the expense of the Contractor. If the Contractor does not pay the expense of such removal within ten (10) days’ time thereafter, the Owner may, upon ten (10) days written notice, sell such materials at auction or at private sale and shall account for the net proceed thereof after deducting all the cost and expenses that should have been borne by the Contractor.

27. Final Inspections, Final Acceptance and Final Payment.

(a) Final Inspections: When the Contractor has completed the work in compliance with the terms of Contract Documents, the Contractor shall notify the Architect in writing that the project is ready for final inspection.

The City shall then advise the Contractor as to the arrangements for final inspection and what work, if any, is required to prepare the project or a portion thereof for final inspection. When the Architect determines the project or portion thereof is ready for final inspection, the Architect shall perform the same.

Upon completion of the final inspection, the City shall prepare a list of errors of either commission or omission by the Contractor, reasonably observable, and determined under the conditions governing and restricting said final inspection. When all such errors have been corrected, a final re-inspection shall be made. The process shall be repeated until, in the opinion of the City, the project has been completed in compliance with the terms of the Contract Documents as can best and reasonable be observed and determined under the conditions governing and restricting said final inspection. The Architect shall, pursuant to such inspection and re-inspection, certify to the City as to the completion of the final inspection. It is understood that the certification covers only those items which can be physically inspected, and the Architect’s certification indicates compliance within the standards of the construction industry, as interpreted by the Architect.

(b) Final Acceptance: When the City shall certify the completion of the final inspection, the Contractor may make request for final payment. With the request for final payment, the Contractor shall furnish evidence satisfactory to the Owner’s legal advisors that the Contractor has fully paid all debts for labor, materials and equipment incurred in connection with the work. The Contractor must provide all evidence required by the Contract to assure the Owner of complete compliance with all terms of the Contract. When the Owner has acknowledged the compliance with the terms of the Contract, and has received certification of final inspection, the Owner shall notify the Contractor of final acceptance by the Owner. The date of final acceptance shall be assumed as the date of final completion of the project, unless the Owner, with the Contractor, has made previous agreement.

(c) Final Payment: When the Owner has made final acceptance, the City shall then review the amount of final request for payment and certify the amount of this approval. Upon approval by the Architect, the Owner shall make final payment of the contract amount, plus all approved additions, less approved deductions and previous payments made.

The Owner shall consider the Contract complete when all work has been finished, the final Inspection certified by the City, and the project finally accepted in writing. The Contractor’s responsibility shall then terminate except as otherwise required and set out in the Contract Documents.

28. Liquidated Damages. Contractor and City recognize that time is of the essence as stated in Paragraph 1(b), hereinabove, and that City will suffer financial and other losses if the Work is not completed within the Period of Performance. The parties also recognize the delays, expense, and difficulties involved in proving, in a legal or arbitration proceeding, the actual loss suffered by City if the Work is not completed on time. Accordingly, instead of requiring any such proof, City and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall be liable to the City for liquidated damages in the sum of $____________ ($0.00) (If Liquidated Damages “LD” then put in dollar amount, otherwise put in Zero and keep bold) dollars for each calendar day past the Period of Performance, until the Work is fully completed as stated herein.

29. Assignability of Contract. Neither this contract, nor any part hereof, may be assigned by the Contractor to any other party without the express written approval of the City Council.

30. Claims and Damages.

(a) Claim: A Claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term “Claim” also includes other disputes and matters in question between the City and Contractor arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim.

i. Claims by the Contractor shall be made in writing to the Architect within forty-eight (48) hours after the first day of the event giving rise to such Claim or else the Contractor shall be deemed to have waived the Claim. Written supporting data shall be submitted to the Architect within fifteen (15) calendar days after the occurrence of the event, unless the City grants additional time in writing, or else the Contractor shall be deemed to have waived the Claim.

ii. Architect will render a formal decision on the claim in writing within fifteen (15) calendar days after receipt of the Contractor’s Claim. Architect's written decision will be final and binding upon Contractor and unless Contractor submits a written notice to the City and Architect requesting non-binding voluntary mediation within fifteen (15) calendar days of the date of such decisions, then Contractor forever waives and relinquishes any rights to bring any future legal actions or court claims with respect to such Claim.

iii. Any Claims that are not resolved hereunder shall be subject to and in accordance with paragraph entitled, “Disputes,” hereinbelow.

(b) Requirement for Notice: Any requirements of the Contract Documents for notice of direction to the City shall be a condition precedent to be complied with by the Contractor before any claim for extra compensation can be made.

(c) Claims for Extra Cost: If the Contractor claims that any instructions in writing or by drawings or otherwise involve extra cost under this Contract, the Contractor shall give the City written notice on a form to be furnished by the City within a reasonable time after the receipt of such instructions, and in any event before proceeding to execute the work, except in emergency of endangering life or…