B2502ADD1_Attachment_2.pdf

Form of

CONTRACT AGREEMENT

City of DeLand FY 23/24 Right-of-Way ADA Improvements

Bid No. 25-02

THIS AGREEMENT, made as of ____________________, _________, 2024, is by and between The OWNER:

City of Deland, Florida

120 S. Florida Avenue DeLand, FL 32724

And the CONTRACTOR:

(Name)

(Address)

(City, State, Zip Code)

WITNESSETH:

WHEREAS it is the intent of the Owner to make improvements at FY 23/24 Right-of-Way AD A Improvements generally described as follows;

FY 23/24 Right-of-Way ADA Improvements hereinafter referred to as the Project.

NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, OWNER and CONTRACTOR agree as follows:

Article 1 - Work

It is hereby mutually agreed that for and in consideration of the payments as provided for herein to the CONTRACTOR by the OWNER, CONTRACTOR shall faithfully furnish all necessary labor, equipment, and material and shall fully perform all necessary work to complete the Project in strict accordance with this Contract Agreement and the Contract Documents.

Article 2 – Contract Documents

CONTRACTOR agrees that the Contract Documents consist of the following: Notice-to-Bidders, Bid Proposal and associated attachments, Insurance Certificates, Scope of Work, General terms and Conditions, Submittal Requirements, Reference Form, Public Entities Crime Statement, drawings, all issued addenda, and all CDBG requirements and forms. All documents comprising the Contract Documents are complementary to one another and together establish the complete terms, conditions and obligations of the CONTRACTOR. All said Contract Documents are incorporated by reference into the Contract Agreement as if fully rewritten herein or attached thereto.

Article 3 – Contract Price

In consideration of the faithful performance and completion of the Work by the CONTRACTOR in accordance with the Contract Documents, OWNER shall pay the CONTRACTOR an amount equal to:

(Amount in Written Words) (Amount in Numerals)

Subject to the following:

a. Said amount is based on the unit prices and estimated quantities stated in CONTRACTOR’S Bid, which is attached to and made a part of this Agreement;

b. CONTRACTOR and OWNER agree that said estimated quantities are not guaranteed and that the determination of actual quantities is to be made by the OWNER;

c. Said amount is subject to modification for additions and deductions as provided for within the Contract General Provisions.

Article 4 – Payment

Upon the completion of the work and its acceptance by the OWNER, all sums due the CONTRACTOR by reason of faithful performance of the work, taking into consideration additions to or deductions from the Contract price by reason of alterations or modifications of the original Contract or by reason of “Extra Work” authorized under this Contract, will be paid to the CONTRACTOR by the OWNER after said completion and acceptance.

The acceptance of final payment by the CONTRACTOR shall be considered as a release in full of all claims against the OWNER, arising out of, or by reason of, the work completed and materials furnished under this Contract.

Article 5 – Contract Time

The CONTRACTOR agrees to commence work within Ten (10) calendar days of the date specified in the OWNER’S Notice-to-Proceed. CONTRACTOR further agrees to substantially complete said work within ninety (90) calendar days and complete all work within one hundred twenty (120) calendar days of the co mmencement date stated within the Notice-to-Proceed.

It is expressly understood and agreed that the stated Contract Time is reasonable for the completion of the Work, taking all factors into consideration. Furthermore, extensions of the Contract Time may only be permitted by execution of a formal modification to this Contract Agreement in accordance with the General Provisions and as approved by the OWNER.

Article 6 – Liquidated Damages

The CONTRACTOR and OWNER understand and agree that time is of essence for completion of the Work and that the OWNER will suffer additional expense and financial loss if said Work is not completed within the authorized Contract Time. Furthermore, the CONTRACTOR and OWNER recognize and understand the difficulty, delay, and expense in establishing the exact amount of actual financial loss and additional expense. Accordingly, in place of requiring such proof, the CONTRACTOR expressly agrees to pay the OWNER as liquidated damages the non-penal sum of $500.00 per day for each business day required in excess of the authorized Contract Time ninety (90) Business Days.

Furthermore, the CONTRACTOR understands and agrees that;

a. The OWNER has the right to deduct from any moneys due the CONTRACTOR, the amount of said liquidated damages;

Article 7 – CONTRACTOR’S Representations

The CONTRACTOR understands and agrees that all representations made by the CONTRACTOR within the Bid shall apply under this Agreement as if fully rewritten herein.

Article 8 – CONTRACTOR’S Certifications

The CONTRACTOR understands and agrees that all certifications made by the CONTRACTOR within the Bid shall apply under this Agreement as if fully rewritten herein.

Article 9 – Miscellaneous

a. CONTRACTOR understands that it shall be solely responsible for the means, methods, techniques, sequences and procedures of construction in connection with completion of the Work;

b. CONTRACTOR understands and agrees that it shall not accomplish any work or furnish any materials that are not covered or authorized by the Contract Documents unless authorized in writing by the OWNER;

c. The rights of each party under this Agreement shall not be assigned or transferred to any other person, entity, firm or corporation without prior written consent of both parties;

d. OWNER and CONTRACTOR each bind itself, their partners, successors, assigns and legal representatives to the other party in respect to all covenants, agreements, and obligations contained in the Contract Documents.

IN WITNESS WHEREOF, OWNER and CONTRACTOR have executed three (3) copies of this Agreement on the day and year first noted herein.

City of DeLand, Florida

120 S. Florida Avenue

DeLand, Florida 32720

By:____________________________

Christopher M. Cloudman

Mayor-Commissioner

ATTEST

By: ________________________________ Signature Title

CONTRACTOR

Name:_____________________________

Address: _____________________________

By: ___________________________________ Signature

Title of Representative

ATTEST

By: ___________________________________ Signature Title

CONSTRUCTION PERFORMANCE BOND

(Not required if under $100,000)

CONTRACTOR: __________________________ SURETY: ____________________

Address Principal Place of Business

OWNER: City of DeLand

120 S. Florida Avenue

DeLand, FL 32724

CONSTRUCTION CONTRACT

Date: ____________________________

Amount: _________________________

Description: FY 23/24 Right-of-Way ADA Improvements

DeLand, Florida

BOND

Date (Not earlier than Construction Contract Date): _________________________________ Amount: ___________________________________________________________________ Modifications to this Bond Form:

CONTRACTOR AS PRINCIPAL SURETY

Company: (Corp. Seal) Company: (Corp. Seal)

Signature: ____________________________ Signature: ______________________________ Name: ______________________________ Name: _________________________________ Title: __________________________________ Title: __________________________________

1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference.

2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1.

3. If there is no Owner Default, the Surety's obligation under this Bond shall arise after:

3.1 The Owner has notified the Contractor and the Surety at its address described above, that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the

Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and

3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and

3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner.

4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions:

4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or

4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or

4.3 Obtain bids or negotiate proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the Contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or

4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances:

1. After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefore to the Owner; or

2. Deny liability in whole or in part and notify the Owner citing reasons therefore.

5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner.

6. After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the

Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for:

6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract;

6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and

6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor.

7. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors.

8. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations.

9. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable.

10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page.

11. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.

12. Definitions:

12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract.

12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto.

12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract.

12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof.

END OF SECTION

CONSTRUCTION PAYMENT BOND

(Not required if under $100,000)

CONTRACTOR: ________________________ SURETY: _________________________

Address Principal Place of Business

OWNER: City of DeLand 120 South Florida Avenue DeLand, Florida 32720

CONSTRUCTION CONTRACT

Date: ____________________________ Amount: _________________________

Description: FY 23/24 Right-of-Way ADA Improvements

DeLand, Florida

BOND

Date (Not earlier than Construction Contract Date): _________________________________

Amount: ___________________________________________________________________

Modifications to this Bond Form: _______________________________________________

CONTRACTOR AS PRINCIPAL ___________________SURETY______________________

Company: (Corp. Seal) Company: (Corp. Seal)

Signature: __________________________________ Signature: ________________________ Name: _____________________________________ Name: ___________________________ Title: ________________________________________ Title: ____________________________

Furnish bond in accordance with Florida Statute 255.05.

1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference.

2. With respect to the Owner, this obligation shall be null and void if the Contractor:

2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and

2.2 Defends, indemnifies and holds harmless the Owner from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction contract, provided the Owner has promptly notified the Contractor and the

Surety (at the address shown above) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default.

3. With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due.

4. The Surety shall have no obligation to Claimants under this Bond until:

4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address shown above) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim.

4.2 Claimants who do not have a direct contract with the Contractor:

a. Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and

b. Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and

c. Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address shown on the signature page) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor.

5. If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compliance.

6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the

Surety's expense take the following actions:

6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed.

6.2 Pay or arrange for payment of any undisputed amounts.

7. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety.

8. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the

Owner's priority to use the funds for the completion of the work.

9. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond.

10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations.

11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2 (c), or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable.

12. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page.

When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.

Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made.

13. Definitions:

13.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished.

13.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto.

13.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof.

END OF SECTION

2.0 GENERAL TERMS & CONDITIONS

2.1 Bid Closing Date

Bids must be received by the City of DeLand Finance Office, Second Floor Receptionist, 120 South Florida Avenue, DeLand, FL, 32720, no later than 3:00 P.M. on November 19, 2024.

2.2 Delivery of Bids

All Bids shall be sealed and delivered or mailed to (faxes/e-mails will not be accepted):

City of DeLand Second Floor Receptionist 120 South Florida Avenue DeLand, Florida 32720

Mark package(s) "Bid #25-02 – FY 23/24 Right-of-Way ADA Improvements

Note: Please ensure that if a third-party carrier (Federal Express, Airborne, UPS, USPS, etc.) is used, that the third party is properly instructed to deliver the Bid Submittal only to Second Floor Receptionist on the second (2nd) floor at the above address. To be considered, a Bid must be received and accepted in the Purchasing Office before the Bid closing date and time.

2.3 Pre-Bid Conference

A. A pre-bid conference will be held at the Public Services Building, Williamson Conference Room, 1102 S. Garfield Avenue, DeLand, FL, at 2:00 p.m. on November 12, 2024.

2.4 Public Bid Opening

A. The Bids will be available for inspection during normal business hours in the Engineering Office within ten (10) days of the closing date, by appointment (Florida Statute 119.071 (1) (b)).

B. A copy of the completed Bid tabulation will be available on Demandstar within ten (10) days.

2.5 Bid Submittal Form

A. See Submittal Requirements for complete details.

B. Each bidder shall submit three (3) complete sets of the Bid Submittal:

One (1) hard copy marked “ORIGINAL” One (1) hard copy marked “COPY” One (1) copy via USB drive

C. The Invitation to Bid page and the Bid Proposal Form must be signed by an official authorized to legally bind the bidder to all bid provisions.

D. Terms and conditions differing from those in this Bid shall be cause for disqualification of the Bid Submittal.

2.6 Questions Concerning Bid

A. Questions concerning any portion of this Bid shall be directed in writing or by e-mail to Purchasing Coordinator, who shall be the official point of contact for this Bid. Questions should be submitted at least seven (7) days prior to the closing date.

B. Submit questions to: E-mail: purchasing@deland.org

2.7 Clarification and Addenda

A. It is incumbent upon each bidder to carefully examine all specifications, terms, and conditions contained herein. Any inquiries, suggestions, or requests concerning interpretation, clarification or additional information shall be made in writing, through Purchasing Coordinator – purchasing@deland.org. The City will not be responsible for any oral representation(s) given by any employee, representative or others. The issuance of a written addendum is the only official method by which interpretation, clarification or additional information can be given.

B. If it becomes necessary to revise or amend any part of this Bid, notice may be obtained by accessing the web site Demandstar. The bidder in the Bid Submittal must acknowledge receipts of addenda. Each bidder should ensure that all addenda and amendments to this Bid have been received BEFORE submitting the Bid.

2.8 Award

The City reserves the right to award the contract to the bidder(s) that the City deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The City is therefore not bound to accept a bid on the basis of lowest price. In addition, the City has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids, to waive any and all informalities and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the City to do so. The City also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the City’s best interest.

2.9 Assignment

The awarded bidder shall not assign, transfer, convey, sublet, or otherwise dispose of any award or of any of its rights, title, or interests therein, without the prior written consent of the City of DeLand.

2.10 Contract

A. The contents of this Bid, any subsequent addenda, and all provisions of the successful proposal deemed pertinent by the City shall be considered as part of the contractual documents and shall become legally binding.

B. The Finance Director, City Manager, and City Commission are the sole Contracting Officers for the City of DeLand and only they or their designee are authorized to make changes to any contract.

C. The City shall be responsible for only those orders placed by the City on an authorized signed Purchase Order. The City shall not be responsible for any order, change substitution or any other mailto:purchasing@deland.org mailto:purchasing@deland.org discrepancy from the Purchase Order. If there is any question about the authenticity of a Purchase Order or change order, the bidder should promptly contact the Purchasing Manager at (386) 626- 7078.

2.11 Disclosure of Bid Content

A. All material submitted becomes the property of the City and may be returned only at the City's option. The City has the right to use any or all ideas presented in any reply to this Bid. Selection or rejection of any Bid Submittal does not affect this right.

B. The City of DeLand, Florida, is governed by the Public Record Law, Chapter 119, Florida Statutes (F.S.). Only trade secrets as defined in Section 812.081(1)(c), F.S. or financial statements required by the City for road or public works projects as defined in 119.071(1)(c), F.S.

(hereinafter “Confidential Materials”), may be exempt from disclosure. If a respondent submits Confidential Materials, the information must be segregated, accompanied by an executed Non-disclosure Agreement for Confidential Materials and each pertinent page must be clearly labeled “confidential” or “trade secret.” The City will not disclose such Confidential Materials, subject to the conditions detailed within the Agreement, which is attached to this solicitation. When such segregated and labeled materials are received with an executed Agreement, the City shall execute the Agreement and send the respondent a “Receipt for Trade Secret Information.”

2.12 Bidder's Responsibility

The bidder, by submitting a Bid represents that:

A. The bidder has read and understands the Invitation to Bid in its entirety and that the Bid is made in accordance therewith, and;

B. The bidder possesses the capabilities, resources, and personnel necessary to provide efficient and successful service to the City, and;

C. Before submitting a Bid, each bidder shall make all investigations and examinations necessary to ascertain site and/or local conditions and requirements affecting the full performance of the contract and to verify any representations made by the City of DeLand upon which the bidder will rely. If the bidder receives an award because of its Bid Submittal, failure to have made such investigations and examinations will in no way relieve the bidder from its obligations to comply in every detail with all provisions and requirements of the contract, nor will a plea of ignorance of such conditions and requirements be accepted as a basis for any claim by the bidder for additional compensation or relief.

D. The bidder will be held responsible for any and all discrepancies, errors, etc. which are discovered during the contract term or up to and including three (3) fiscal years following the City’s annual audit.

2.13 Payment Terms

A. The City will remit full payment on all undisputed invoices within 30 (thirty) days from receipt by the appropriate person(s) (to be designated at time of contract) of the invoice(s) or receipt of all products or services ordered. Retainage, at a rate of 5%, will be held until all work has been completed.

B. The City has the capabilities of paying via a Visa Purchasing Card. Please acknowledge on Bid

Proposal if you are capable of accepting this Purchasing Card.

2.14 Special Conditions

These City facilities are administrative facilities that provide services to the City of DeLand Public and any agencies that it serves. As such, activities in all buildings are critical to the provisioning of services to the Public and shall not be interrupted by the bidder's work activities.

2.15 Certificates

The City reserves the right to require proof that the bidder is an established business and is abiding by the ordinances, regulations, and laws of their community and the State of Florida, such as but not limited to: Occupational Licenses, Business Licenses, Florida Sales Tax Registration, Federal Employers Identification Number.

2.16 Minor Irregularities

The City reserves the right to waive minor irregularities in Bid Submittals, providing such action is in the best interest of the City. Minor irregularities are defined as those that have no adverse effect on the City’s best interests, and will not affect the outcome of the selection process by giving the bidder an advantage or benefit not enjoyed by other bidders.

2.17 Insurance, Licenses and Certificates

The bidder agrees to provide and maintain at all times during the term of this agreement, without cost or expense to the City of DeLand, policies of insurance insuring the bidder against any and all claims, demands or causes of action whatsoever, for injuries received or damage to property relating to the performance of duties, services and/or obligations of the bidder under the terms and provisions of this agreement. The bidder will provide the City with copies of current appropriate business licenses.

2.18 Insurance

The bidder shall secure and maintain, at its sole cost and expense during the contract term, the following insurance:

Commercial General Liability – in the amount of $2 million aggregate /$1 million per occurrence.

Liability – Auto, in the amount of $1,000,000.

Workers Compensation – As required by Florida law.

Requirements for bidders that qualify for an exemption under the Florida Worker’s Compensation law in Chapter 440 Florida Statutes are detailed below:

Incorporated or unincorporated firms with four or more employees shall be required to provide a copy of their “Notice of Election to be Exempt”, along with valid proof of coverage for non-exempt employees.

The City reserves the right to request a copy of the complete insurance policy(ies) and any endorsements for the insurance referenced above. A certificate of insurance indicating that the bidder has coverage in accordance with the requirements herein set forth shall be furnished by the bidder to the City Representative prior to the execution of the contract and annually upon renewal thereafter.

The Bidder shall either cover any sub-contractors on its policy or require the sub-contractors to conform to all requirements for insurance contained herein.

Bidder agrees that City will make no payments pursuant to the terms of the contract until all required proof or evidence of insurance has been provided to the City Representative. Bidder agrees that the insurer shall waive its rights of subrogation, if any, against the City on Commercial General Liability and Workers Compensation insurance coverage. The ACORD certificate of Liability Insurance, with endorsements shall be completed by the authorized Resident Agent and returned to the Risk Management Office. This certificate shall be dated and show:

A. The name of the insured bidder, the specified job by name, name of the insurer, the number of the policy, its effective date and its termination date.

B. Statement that the Insurer will mail notice to the City at least 30 (thirty) days prior to any material changes in provisions or cancellation of the policy.

C. City shall be named as an additional insured on Commercial General Liability Insurance.

Loss Deductible Clause: The City shall be exempt from, and in no way liable for, any sums of money that may represent a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the bidder and/or sub-consultant providing such insurance.

2.19 Safety

The bidder shall take the necessary precautions and bear the sole responsibility for the safety of the methods employed in performing the work. The bidder shall at all times comply with the regulations set forth by federal, state, and local laws, rules, and regulations concerning "OSHA" and all applicable state labor laws, regulations, and standards. The bidder shall indemnify and hold harmless the City of DeLand from and against all liabilities, suits, damages, costs, and expenses (including attorney's fees and court costs) which may be imposed on the City because of the bidder, sub-contractor, or supplier's failure to comply with the regulations.

2.20 Governing Law and Venue

All legal proceedings brought in connection with this Contract shall only be brought in a state or federal court located in the State of Florida. Venue in state court shall be in Volusia County, Florida.

Venue in federal court shall be in the United States District Court, Middle District of Florida, Orlando division. Each party hereby agrees to submit to the personal jurisdiction of these courts for any lawsuits filed there against such party arising under or in connection with this Contract. In the event that a legal proceeding is brought for the enforcement of any term of the contract, or any right arising therefrom, the parties expressly waive their respective rights to have such action tried by jury trial and hereby consent to the use of non-jury trial for the adjudication of such suit.

All questions concerning the validity, operation, interpretation, construction and enforcement of any terms, covenants or conditions of this Contract shall in all respects be governed by and determined in accordance with the laws of the State of Florida without giving effect to the choice of law principles thereof and unless otherwise preempted by federal law.

2.21 Additional Terms

The attached Invitation to Bid cover page contains additional terms and conditions. Those written specifications take precedence over terms and conditions stated herein.

2.22 Deviations

All Bid Submittals must clearly and with specific detail, note all deviations to the exact requirements imposed upon the bidder by the specifications. Such deviations must be stated upon the Bid Submittal Form; otherwise City of DeLand will consider the subject Bid Submittals as being made in strict compliance with said Specifications to bidders, the bidder being held therefore accountable and responsible. Bidders are hereby advised that City of DeLand will only consider Bid Submittals that meet the exact requirements imposed by the specifications; except, however, said Bid Submittals may not be subject to such rejection where, at the sole discretion of City of DeLand, the stated deviation is considered to be equal or better than the imposed requirement and where said deviation does not destroy the competitive character of the Bid process by affecting the amount of the Bid Submittal such that an advantage or benefit is gained to the detriment of the other bidders.

2.23 Material Safety Data Sheet

In accordance with Chapter 442 of the Florida Statutes, it is the bidder's responsibility to identify and to provide to the City Public Services Department a Material Safety Data Sheet for any material, as may apply to this procurement.

2.24 Waiver of Claims

Once this contract expires, or final payment has been requested and made, the awarded bidder shall have no more than 30 (thirty) calendar days to present or file any claims against the City concerning this contract. After that period, the City will consider the bidder to have waived any right to claims against the City concerning this agreement.

2.25 Termination/Cancellation of Contract

The City reserves the right to cancel the contract without cause with a minimum 30 (thirty) days written notice.

Termination or cancellation of the contract will not relieve the bidder of any obligations for any deliverables entered into prior to the termination of the contract (i.e., reports, statements of accounts, etc., required and not received).

Termination or cancellation of the contract will not relieve the bidder of any obligations or liabilities resulting from any acts committed by the bidder prior to the termination of the contract.

2.26 Termination for Default

The City’s Contract Administrator shall notify, in writing, the bidder of deficiencies or default in the performance of its duties under the Contract. Three separate documented instances of deficiency or failure to perform in accordance with the specifications contained herein shall constitute cause for termination for default, unless specifically specified to the contrary elsewhere within this solicitation.

It shall be at the City’s discretion whether to exercise the right to terminate. Bidder shall not be found in default for events arising due to acts of God.

2.27 Termination for City’s Convenience

The performance of work under this contract may be terminated in accordance with this clause in whole, or from the time in part, whenever the City representative shall determine that such termination is in the best interest of the City. Any such termination shall be effected by the delivery to the bidder 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. Upon such termination for convenience, bidder shall be entitled to payment, in accordance with the payment provisions, for services rendered up to the termination date and the City shall have no other obligations to bidder. Bidder shall be obligated to continue performance of contract services, in accordance with this contract, until the termination date and shall have no further obligation to perform services after the termination date.

2.28 Incurred Expenses

This ITB does not commit the City of DeLand to award a contract, nor shall the City of DeLand be responsible for any cost or expense which may be incurred by the bidder in preparing and submitting the Submittal called for in this ITB, or any cost or expense incurred by the bidder prior to the execution of a contract agreement.

2.29 Minimum Specifications

The specifications listed in the Scope of Service are the minimum required performance specifications for this ITB. They are not intended to limit competition nor specify any particular bidder, but to ensure that the City receives quality services.

2.30 Compliance with Laws and Regulations

The bidder shall be responsible to know and to apply all applicable federal and state laws, all local laws, ordinances, rules, regulations, and all orders and decrees of bodies or tribunals having jurisdiction or authority which in any manner affect the work, or which in any way affect the conduct of the work. Bidder shall always observe and comply with all such laws, ordinances, rules, regulations, orders, and decrees. The bidder shall protect and indemnify City and all its officers, agents, servants, or employees against any claim or liability arising from or based on the violation of any such law, ordinance, rule, regulation, order, or decree caused or committed by bidder, its representatives, subcontractors, sub-consultants, professional associates, agents, servants, or employees. Additionally, bidder shall obtain and maintain at its own expense all licenses and permits to conduct business pursuant to this contract from the federal government, State of Florida, City of DeLand, or municipalities when legally required, and maintain same in full force and effect during the term of the contract.

2.31 Indemnification of City

The bidder shall indemnify, hold harmless and defend the City, its officers, agents, and employees, from or on account of any claims, losses, expenses, injuries, damages, or liability resulting or arising solely from bidder's performance or nonperformance of services pursuant to this contract, excluding any claims, losses, expenses, injuries, damage, or liability resulting or arising from the actions of City, its officers, agents, or employees. The indemnification shall obligate the bidder to defend, at its own expense or to provide for such defense, at City's option, any and all claims and suits brought against City that may result from bidder's performance or nonperformance of services pursuant to the contract.

2.32 Records & Right to Audit

The bidder shall maintain such financial records and other records as may be prescribed by the City or by applicable federal and state laws, rules, and regulations. The bidder shall retain these records for a period of three (3) years after final payment, or until the City audits them, whichever event occurs first. These records shall be made available during the term of the contract and the subsequent three-year period for examination, transcription, and audit by the City, its designees, or other entities authorized by law.

2.33 Change in Scope of Work/Service

A. The City may order changes in the work/service consisting of additions, deletions, or other revisions within the general scope of the contract. No claims may be made by the bidder that the scope of the project or of the bidder’s services has been changed, requiring changes to the amount of compensation to the bidder or other adjustments to the contract, unless such changes or adjustments have been made by written amendment to the contract signed by the Public Services Director, Finance Director and the bidder.

B. If the bidder believes that any particular work/service is not within the scope of work/service of the contract, is a material change, or will otherwise require more compensation to the bidder, the bidder must immediately notify the City’s Representative in writing of this belief. If the City’s Representative believes that the particular work/service is within the scope of the contract as written, the bidder will be ordered to and shall continue with the work/service as changed and at the cost stated for the work/service within the scope. The bidder must assert its right to an adjustment under this clause within 30 (thirty) days from the date of receipt of the written order.

C. The City reserves the right to negotiate with the awarded bidder(s) without completing the competitive bidding process for materials, products, and/or services similar in nature to those specified within this ITB for which requirements were not known when the ITB was released.

2.34 Modifications Due to Public Welfare or Change in Law

The City shall have the power to make changes in the contract as the result of changes in law and/or ordinances of City of DeLand to impose new rules and regulations on the bidder under the contract relative to the scope and methods of providing services as shall from time-to-time be necessary and desirable for the public welfare. The City shall give the bidder notice of any proposed change and an opportunity to be heard concerning those matters. The scope and method of providing services as referenced herein shall also be liberally construed to include, but is not limited to, the manner, procedures, operations and obligations, financial or otherwise, of the bidder. In the event any future change in Federal, State or City law or the ordinances of City of DeLand materially alters the obligations of the bidder, or the benefits to the City, then the contract shall be amended consistent therewith. Should these amendments materially alter the obligations of the bidder, then the bidder or the City shall be entitled to an adjustment in the rates and charges established under the contract.

Nothing contained in the contract shall require any party to perform any act or function contrary to law. The City and bidder agree to enter into good faith negotiations regarding modifications to the contract, which may be required in order to implement changes in the interest of the public welfare or due to change in law. When such modifications are made to the contract, the City and the bidder shall negotiate in good faith, a reasonable and appropriate adjustment for any changes in services or other obligations required of the bidder directly and demonstrably due to any modification in the contract under this clause.

2.35 Right to Require Performance

A. The failure of the City at any time to require performance by the bidder of any provision hereof shall in no way affect the right of the City thereafter to enforce same, nor shall waiver by the City of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself.

B. In the event of failure of the bidder to deliver services in accordance with the contract terms and conditions, the City, after due written notice, may procure the services from other sources and hold the bidder responsible for any resulting additional purchase and administrative costs. This remedy shall be in addition to any other remedies that the City may have.

2.36 Force Majeure

The City and the bidder will exercise every reasonable effort to meet their respective obligations as outlined in this ITB and the ensuing contract, but shall not be liable for delays resulting from force majeure or other causes beyond their reasonable control, including, but not limited to, compliance with any government law or regulation, acts of God, acts or omissions of the other party, government acts or omissions, fires, strikes, national disasters, wars, riots, transportation problems and/or any other cause whatsoever beyond the reasonable control of the parties. Any such cause will extend the performance of the delayed obligation to the extent of the delay so incurred.

2.37 Bidder’s Personnel

During the performance of the contract, the bidder agrees to the following:

A. During the duration of this contract, bidder’s help wanted ads (if any) shall be posted with the Center for Business Excellence, 329 Bill France Blvd., Daytona Beach, FL 32114 Phone: (386) 323-7074 Fax: (386) 323-2095 info@cbe-fvc.org

B. The bidder shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, handicap or national origin, except when such condition is a bona fide occupational qualification reasonably necessary for the normal operations of the bidder. The bidder agrees to post in conspicuous places, visible to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause.

C. The bidder, in all solicitations or advertisements for employees placed by or on behalf of the bidder, shall state that such bidder is an Equal Opportunity Employer.

D. Notices, advertisements, and solicitations placed in accordance with federal law, rule, or…