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CONSTRUCTION CONTRACT

FOR

Rob Sullivan CDBG / ADA West Parking Lot Stalls

Bid # 02-19

Mandatory Pre-Bid Meeting February 11 at 1:30

16 Colomba Rd. DeBary, Fl.

Bid Due Date February 18 at 1:30

Bid Opening February 18 at 1:45

City Of DeBary

Parks and Recreation Department

16 Colomba Road

DeBary, Florida 32713

The City of DeBary www.debary.org

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TABLE OF CONTENTS

ARTICLE 1. DEFINITIONS

ARTICLE 2. ORDER OF PRECEDENCE

2.01 Exhibits

2.02 Precedence

ARTICLE 3. SCOPE OF SERVICES

3.01 Construction/Renovation Projects

3.02 Assignment of Projects

3.03 Work Orders

3.04 Time of Commencement and Completion Date

3.05 Acceptance of Work

3.06 Release of Liens

3.07 Ownership of Documents

3.08 Warranty

3.09 Responsibility of the Contractor

3.10 Representative of City

3.11 Representative of Contractor

3.12 Change in Scope of Services

3.13 Continuing the Work

3.14 F.O.B. Point

3.15 Use of Premises

3.16 Time is of the Essence……………………………………………………………

ARTICLE 4. COMPENSATION AND PAYMENTS

4.01 Compensation

4.02 Payments

4.03 Internal Revenue Service Form (1099MISC)

ARTICLE 5. PERSONNEL OF CONTRACTOR

5.01 Supervision

5.02 Applicable Laws

5.03 Right of Rejection

5.04 Employment of Illegal Aliens

5.05 Nondiscrimination and Americans with Disabilities Act

5.06 Fair Labor Standards Act

5.07 Drug-Free and Smoke-Free Workplace

ARTICLE 6. CONTRACTOR AS INDEPENDENT CONTRACTOR

ARTICLE 7. SUBCONTRACTORS

7.01 Prior Approval

7.02 License

ARTICLE 8. INSURANCE

8.01 Required Types of Insurance……………………………………………………… 14

8.02 General Insurance Requirements.………………………………………………... 17

8.03 Proof of Insurance………………………………………………………………….. 18

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ARTICLE 9. DELIVERABLES AND STANDARDS

9.01 Deliverables

9.02 Failure to Deliver

9.03 Standards

ARTICLE 10. TERM AND TERMINATION

10.01 Term

10.02 Termination

10.07 Force Majeur

ARTICLE 11. LIMITATION OF LIABILITY

11.01 Sovereign Immunity

11.02 No Third Party Beneficiaries

11.03 Indemnification

ARTICLE 12. CITY GOVERNMENT POLICIES

12.01 Modifications Due To Public Welfare or Change in Law

12.02 Compliance with Laws

12.03 Truth-In-Negotiation Certificate

12.04 Public Records Law

12.05 Financial Records

12.06 Audit Right and Retention of Records

12.07 Payments Subject to Appropriation

12.08 Prohibition Against Contingent Fees

12.09 No Code Violation or Past Due Debt

12.10 Changes Due to Public Welfare

12.11 Background Checks

12.12 Disadvantaged Business Enterprises Participation

12.13 Assignment

12.14 E-verify

ARTICLE 13. MISCELLANEOUS PROVISIONS

13.01 Entire Contract

13.02 Notice

13.03 Governing Law

13.04 Venue and Jurisdiction

13.05 Waiver of Jury Trial

13.06 Attorneys Fees and Costs

13.07 Severability

13.08 Waiver

13.09 Amendment

13.10 Headings

13.11 Public Entity Crime and Discriminatory Vendor List

13.12 Lead Based Paint Prevention Act (34 CFR, Part 35)

13.13 Anti-Lobbying

13.14 Safety

13.15 Material Safety Data Sheet

13.16 New Material

Supplemental Conditions for Federally Assisted Projects Bid Form

Signature Page

CONSTRUCTION CONTRACT FOR (ROB SULLIVAN PARK) FOR THE CITY OF DEBARY

THIS CONTRACT for a (Rob Sullivan CDBG ADA Parking Stalls) (herewith “Contract”) by and between the

CITY OF DEBARY FLORIDA, a body corporate and politic and a political subdivision of the City of DeBary of

Florida (the “City”), and ___________, a corporation duly authorized to conduct business in the State of Florida

(the “Contractor”).

RECITALS

WHEREAS, the City of DeBary desires to retain the Contractor for the City of DeBary on an as needed basis in accordance with the formal solicitation; and

WHEREAS, Contractor is competent and qualified to furnish the specified services to the City of DeBary and desires to provide such services according to the terms and conditions set forth herein; and

NOW THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and other specific consideration set forth in this Contract, the receipt and sufficiency of which is acknowledged by the City of DeBary and Contractor, the parties agree and stipulate as follows.

ARTICLE 1 - DEFINITIONS

The capitalized terms set forth in this Contract shall have the meanings set forth below or as otherwise set forth in the Contract. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number.

Acceptance: A signed document indicating that a Deliverable meets the Acceptance Criteria specified in the Contract, or deemed acceptance.

Acceptance Criteria: Measure by which a Deliverable or set of Deliverables will be approved.

Addendum: A written explanation, interpretation, change, correction, addition, deletion, or modification of equal dignity herewith affecting the Contract Documents including drawing and specifications approved by the City of DeBary and issued by the City of DeBary or Contractor and/or distributed to third parties.

Affidavit: The instrument which is to be signed by the Contractor and submitted to the City of DeBary upon the City of DeBary request through the Project Manager, upon completion of that job, showing that all bills have been paid. It shall also mean such instrument that may be requested by the City of DeBary incidental to partial payments.

Agency: The state, a state agency, a municipality, a political subdivision, a school district, or a school board.

The term "agency" does not extend to a nongovernmental developer that contributes public facilities to a political subdivision under Sections 380.06 or 163.3220-163.3243 of the Florida Statutes.

Amendment: An amendment to this Contract in writing by the City of DeBary, approved by the Finance Administrator, and signed by the City of DeBary of equal dignity herewith and authorizing an addition, deletion, or revision in the scope of work, or an adjustment in the Contract price or the time for completion that is issued after execution of this Contract.

Application for Progress Payment: The current estimate form furnished and certified by the Contractor, which is to be used by Contractor in requesting progress payments.

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Architect: A person or firm that is authorized to practice architecture pursuant to Florida Statute 481.299 or a general contractor who provides architectural services under a design-build contract authorized by F.S.

481.299(3).

Architect/Engineer: The design professional identified in the Contract Documents and who is licensed and registered in the State of Florida. The terms “Architect” and “Architect/Engineer (A/E)” means the architect/engineer or its authorized representative.

Bid: The Contractors written cost proposal based upon a City of DeBary-provided form invitation to bid, which reflects Contractor’s offer to provide the products and services set forth in the Bid. The Bid shall become a Work Order upon acceptance and execution by the City of DeBary.

Bid Documents: The official forms on which the City of DeBary requires formal bids to be prepared and submitted by the bidder.

Calendar day: Any day, including Saturdays, Sundays, and holidays, regardless of weather conditions.

Change Order: A written order Work Order Amendment) to the contractor signed by the City of DeBary authorizing an addition, deletion, or revision in the work, or an adjustment in the contract price or time.

Completion Date: The date that the City of DeBary or its designated representative approves and accepts all Work or Services for a Project performed in accordance with this Contract.

Contract: An agreement between the City of DeBary and Contractor, with binding legal and moral force, covering the work to be performed in exchange for money.

Contractor: The person or entity qualified to perform work in the Project and who is responsible for assisting the Project Manager or City of DeBary Project Manager with the day-to-day administration and coordination of the Project for the City of DeBary.

Contract Administrator: The Finance Administrator and/or his/her designee responsible for addressing any concerns within this Contract.

Contract Documents: Contract documents shall include but are not limited to the following: (1) This Contract, and its exhibits (2) Certificates of Insurance, (3) Notice of Award and/or Notice to Proceed, (4) the conditions of this Contract (general, special, supplementary, and other), (5) drawings, (6) project specifications,

(7) written interpretations, (8) change orders, (9) project manuals, (10) addenda (including RSQs, RFPs and Contractor’s responses to RFPs) issued before the execution of this Contract, and, (11) any modifications or amendments to this Contract issued after execution.

Contract Time: The number of calendar days stated in the Contract for the completion of the scope of work.

Contract Price: The total amount which may be due and payable to Contractor under a Work Order for an individual Project.

Contractor: The person or entity qualified to perform work pursuant to Florida 489.105, F.S. under the Project and who is registered and licensed under the Florida Department of Business and Professional Regulation and in compliance with local laws or ordinances, other than a material man or laborer, who enters into a contract with the City of DeBary for improving real property in accordance with the Contract Documents.

Contractor's services: Those services within the scope of work of this Contract or any exhibit, attachment or addendum thereto which relates to the Scope of Services in connection with Contractor's employment or practice.

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City: The City of DeBary, Florida, a political subdivision of the State of Florida for whom the work is to be performed.

City Representative: Also known as the person designated by the City of DeBary to review, approve and make decisions regarding the Scope of Work in this Contract.

Deliverable: The result(s) or end products or services of a Project that meet the defined plans, specifications, requirements, warranties, and functional parameters articulated in the Scope of Work for this Contract including but not limited to: design drawings, specifications, studies, reports, written documentation, training, systems or processes.

Design Criteria Professional: A firm who holds a current certificate of registration under Chapter 481 F. S. to practice architecture or a firm who holds a current certificate as a registered engineer under chapter 471 to practice engineering and who is employed by or under contract to the agency for the providing of professional architect services, landscape architect services, or engineering services in connection with the preparation of designs for this project.

Drawings/Plans: The official approved drawings or plans or exact reproductions thereof, which have been prepared, signed, sealed and dated by the contractor, which shows the location, character, dimensions and details of the work to be done and which are considered part of the Construct Documents.

Effective Date: The date that this Contract, including any Addendum, Amendment, Modification or exhibits attached thereto is fully executed by Contractor and the City of DeBary.

Engineer: The person, firm, or corporation named as such in the contract and/or authorized by the City of DeBary to act as the City of DeBary representative or the City of DeBary construction engineer authorized to practice engineering services pursuant to Florida Statute 471.03(2)(i) (2006) and who may serve as the City of DeBary engineers of construction, engineering and inspection. The term engineer shall be synonymous with design architect/engineer or architect/engineer or contractor.

Engineer of Record: The professional engineer or engineering firm contracted or employed by the City of DeBary and registered in the State of Florida who develops criteria and concept for the work, performs the analysis and is responsible for the preparation of the plans and specifications. The engineer of record may be City of DeBary in-house staff or a Contractor retained by the City of DeBary.

Field Order: A written instrument issued by the Contractor to the City of DeBary which clarifies or interprets the drawings and technical specifications, and/or orders minor variations in the work, as opposed to a change in the work, and which does not involve an adjustment in contract price or time.

Final Project Acceptance: Will take place after all Deliverables of the Statement of Work have been accepted.

Firm: Any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice architecture, engineering, or installation of security systems and burglar and fire alarms in the state.

Inspector or Field Representative: City of DeBary Employee or an authorized representative of the Contractor assigned to make inspections of the work performed and materials furnished pursuant to this Contract.

Milestone: A significant event, task, or deliverable that occurs during the project, not all of which are, nor will be, designated on the milestone payment schedule.

Modification: A written amendment to the Contract Documents approved by the City of DeBary which includes but is not limited to the following:

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Change Order: A written order (Work Order Amendment) to the contractor signed by the City of DeBary authorizing an addition, deletion, revision in the Work, or an adjustment in the construction or Project contract price or time issued after execution of the contract.

Field Order: A written clarification, interpretation, minor change or alteration issued by the Contractor.

Addenda: A document written by the Contractor and approved by the City of DeBary that is added to the original Contract Documents to clarify, revise, add to, or delete from the original Contract Documents or previous addenda. The document includes a written clarification or interpretation prepared by the City of DeBary or Contractor.

Notice of Award: A written notice by the City of DeBary that the Contractor as has been determined by a selection committee to be highly qualified and approved for an award of a contract.

Notice to Proceed: The official letter from the City of DeBary to the Contractor establishing a date on which the Work in the Work Order shall commence.

Original Expiration Date: The date that this Contract was originally intended to expire excluding any extensions or renewals of this Contract for a time certain.

Owner: The owner is the City of DeBary for whom all Work or Services under this Contract are to be performed by the Contractor.

Payment Schedule: The schedule of payments set forth in the Work Order.

Pre-construction Conference: The meeting scheduled by the City of DeBary Project Manager of all the parties involved with the planning and execution of the Scope of Work.

Professional services: Those services within the scope of the practice of architecture, professional engineering, systems engineering and design, systems integration design, alarm contractor I-(fire and burglar), or specialty electrical contractor registered and licensed to do business under the laws of the State of Florida that refer or relate to the performance of Work under this Contract.

Project: An individual construction/renovation project which is assigned to the Contractor for completion pursuant to the terms and conditions of this Contract, as set forth in the Work Order. A Project comprises of the completed construction/renovation required by the Work Order specifications and includes all plans, labor, supervision, materials, permits and equipment necessary and in accordance with specifications provided by the City of DeBary.

Project Manager: The City of DeBary employee who is assigned to the Project and is responsible for the day-to-day administration and coordination of the Project for the City of DeBary. The City of DeBary may change the Project Manager at any time by providing notice to the Contractor and/or Contractor.

Proposal: The document submitted by the Contractor in response to a formal solicitation used to determine if the Contractor is highly qualified. Renovation

Renovation. One or more repair or replacement actions not involving demolition.

Request for Information (RFI): A prospective bidders or contractor’s inquiries for information.

Request for Proposal (RFP): An invitation process initiated by the City of DeBary soliciting proposals (offers) from contractors (bidders) to perform work or provide services in one or more projects on behalf of the City of

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DeBary.

Request for Qualifications (RFQ): An invitation process initiated and used by the City of DeBary to select contractor(s) to perform work or provide services in a prospective project or projects based upon their apparent qualifications as submitted by them (respondents) in response to the invitation.

Scope of Services/Work: The general services/work, herein defined in this Contract including responsibility for performing and complying with all incidental matters pertaining thereto pursuant to the Project Specifications and requirements.

Shop Drawings: All diagrams, illustrations, brochures, schedules, and/or other data which are prepared by contractor, a subcontractor, manufacturer, supplier, distributor, or other person on behalf of the contractor, and which illustrate the equipment, material, or some portion of the work.

State: State of Florida.

Subcontractor: A person other than a material man or laborer who enters into a contract with a contractor for the performance of any part of the basic Contract.

Sub-subcontractor: A person other than a material man or laborer who enters into a contract with a subcontractor for the performance of any part of such subcontractor’s contract.

Substantial Completion: The date as certified by the City of DeBary Project Manager when this Contract or Project or a specified part as agreed to in writing by the parties is sufficiently completed to the satisfaction of City of DeBary or its designated representative, in accordance with the Contract Documents, so that the project or specified part can be utilized for the purposes for which it was intended; or if there be no such certification, the date when final payment is due in accordance with this Contract.

Work: Any and all obligations, services, duties and responsibilities necessary to the successful completion of the project assigned to or undertaken by contractor under the Contract Documents, including the furnishing of all labor, materials, equipment and other incident.

Work Order: The written document provided by the City of DeBary, as amended by any duly executed Change Orders, which is based upon Contractor’s Bid and which provides the complete specifications for the Project, including the Completion Date, the Contract Price, and the Payment Schedule.

ARTICLE 2 - ORDER OF PRECEDENCE

2.01 Exhibits: The following attachments are attached hereto and incorporated herein:

2.01.1.

2.02 Order of Precedence: Contractor agrees that, during the term of this Contract, the provisions of this

Contract as amended by Change Orders (Work Order Amendment), shall remain in full force and effect.

Wherever ambiguities, discrepancies, or conflicting provisions appear the order of precedence shall be as follows.

2.02.1. Between this Contract and Work Order regarding the Scope of Work, the Work Order shall be controlling.

2.02.2. Between this Contract and Work Order for all other ambiguities, discrepancies, or conflicting provisions, this Contract shall be controlling.

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ARTICLE 3 - SCOPE OF SERVICES

3.01 Construction/Renovation Projects. The Contractor agrees during the term of this Contract to timely complete projects as specified by the City of DeBary (“Projects”). Projects may vary in scope and duration, and may include repair or complete demolition and reconstruction. Contractors shall provide all labor, materials, permits, supervision, and equipment necessary to provide for construction in accordance with specifications provided by the City of DeBary, other contract documents prepared by

City of DeBary, and all applicable building codes. Contractor further agrees that City of DeBary staff shall not perform or participate in activities related to the site preparation or implantation of Project construction, repair or rehabilitation, including but not limited to the movement or relocation of personal items in order to facilitate such construction, rehabilitation or repair. Contractor agrees that such activities are the sole responsibility of Contractor or its subcontractor/designee.

3.02 Assignment of Projects. During the term of this Contract, the City of DeBary may award the

Contractor (and other participating contractors) one or more Projects by issuing a Work Order. The award shall be made in the sole discretion of the City of DeBary based upon the lowest responsive and responsible bid, availability, work volume, and other factors the City of DeBary deems relevant to the successful completion of the Project. The City of DeBary makes no covenant or promise of any kind as to the number of available Projects or that the Contractor shall perform any Project for the City of

DeBary during the term of this Contract. The City of DeBary reserves the right to contract with other parties for the services contemplated by this Contract when it is determined by the City of DeBary to be in the best interest of the City of DeBary to do so.

3.03 Work Orders. Authorization for performance of construction/renovation services by the Contractor under this Contract shall be in the form of a Work Order issued by the City of DeBary. Each Work Order shall describe the services required, state the dates for commencement and completion of the project, and establish the amount of payment. The Contractor agrees to perform all work and provide all materials required by the Work Order in order to successfully complete the Project in a timely, professional and workmanlike manner. The terms and conditions of this Contract shall govern all

Projects, and except as set forth herein, no Work Order may modify or amend the terms and conditions of this Contract. In the event of a conflict between this Contract and any Work Order, the terms and conditions of this Contract shall prevail.

3.04 Time of Commencement and Completion Date.

3.04.1 The work to be performed under Work Orders issued pursuant to this Contract shall commence as set forth in the Work Order. The Contractor shall thereafter diligently proceed with the completion of the project in accordance with the date expressly set forth in the Work Order (the

“Completion Date”).

3.04.2 If applicable, should the Contractor fail to timely meet the work requirements of the project by the Completion Date, the parties hereto agree that as liquidated damages, and not as penalty, the Contractor shall pay to the City of DeBary a specified Dollar amount for each day after the

Completion Date, until the Project is completed, as certified by the City of DeBary Project

Manager. The dollar amount for liquidated damages will be determined by the level of risk to the City of DeBary and annotated on the back of each Work Order. Liquidated damages will only be assessed to recover actual cost incurred by the City of DeBary.

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3.04.3 In the event that the Contractor shall fall behind schedule at any time, for any reason, and such delay is adversely affecting the City of DeBary timely occupation of the Project for its intended purpose, the City of DeBary shall be entitled to direct acceleration or re-sequencing of the work to bring the Project back on schedule. The Contractor shall reserve in each of its subcontracts entered into in connection with the Project, a right to accelerate consistent with the Contractor’s obligations hereunder.

3.04.4 In the event the Contractor determines that the Completion Date cannot be met by re-sequencing the work, then the Contractor shall immediately provide the City of DeBary, and in any event within three (3) days after the date of receipt of the City of DeBary instruction for re-sequencing or accelerating, a plan to complete the Project in the shortest possible time. No approval by the City of DeBary of any plan for re-sequencing or accelerating of the work submitted by the Contractor pursuant to this clause shall constitute a waiver by the City of

DeBary of its rights of recovery of liquidated damages as a result of delayed Project completion.

3.04.5

Contractor agrees to provide the City of DeBary along with each invoice for progress payment pursuant to hereof, the Contractor’s best estimate of any anticipated revisions to the Completion Date for the purpose of the City of DeBary planning; provided, however, and notwithstanding the making of any progress payments, no anticipated revision to the Completion Date shall be effective and binding on the

City of DeBary and the Contractor without a written Change Order executed by the City of DeBary in accordance with the procedure set forth in Section 3.12 hereof.

3.05 Acceptance of Work. Inspection of the finished work shall be performed by the City of DeBary to determine the acceptability of the work for payment. As a result of said inspections, the City of DeBary will provide the Contractor with a “punch list” of items considered by the City of DeBary to be substandard. If within thirty (30) days of the date of substantial completion, Contractor has failed to remedy all punch list items to the satisfaction of the City of DeBary, the City of DeBary may, but shall not be obligated to cause all such remaining items to be remedied through the use of other contractors and deduct the cost thereof. The City of DeBary may recover said costs from the Contractor including without limitation all of the City of DeBary attorney’s fees and costs incurred in pursuit thereof.

3.06 Release of Liens. The Contractor shall deliver to the City of DeBary, a complete release of liens arising out of each Work Order before the final request for payment is made. If any liens remain unsatisfied after all payments are made, the Contractor shall refund to the City of DeBary such amount as the City of DeBary may be compelled to pay in discharging such liens, including all costs and reasonable attorney’s fee.

3.07 Ownership of Documents. All deliverable analysis, reference data, plans and reports or any other form of written instrument or document that may result from the Contractor’s services or have been created during the source of the Contractor’s performance under this contract shall become the property of the City of DeBary after final payment is made to the Contractor.

3.08 Warranty. The Contractor shall guarantee all work performed for a period of one (1) year from the date of final acceptance by the City of DeBary. The Contractor shall furnish the City of DeBary all

City of Debary Page 7 of 69 RFP 02-19 manufacturers’ and suppliers’ warranties covering materials and equipment furnished under the resulting Work Order.

3.09 Responsibility of the Contractor.

3.09.1 The Contractor shall be responsible for the professional and technical accuracy of all services furnished by the Contractor and its subcontractors under this Contract.

3.09.2 The Contractor shall provide the name, address and phone number of its designated Project Manager prior to the issuance of any Work Order, and may change the Project Manager by providing written notice to the City of DeBary.

3.09.3 The Contractor shall, without additional cost to the City of DeBary, correct or revise any errors or deficiencies in the Work on the Project.

3.09.4 The Contractor shall serve as an expert witness for the City of DeBary in any legal proceedings arising in connection with this Contract, if the City of DeBary so requests.

3.09.5 The Contractor shall maintain a valid contractor’s license and insurance for all work specified in the Work Orders at all times during the term of this Contract.

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3.10 Representative of the City. All services authorized under this Contract shall be under the direction of the City of DeBary Representative, who shall have final decision authority for all phases of the services, including general direction, review and approval of the services.

3.11 Representative of Contractor. Contractor shall, at all times during the normal work week, designate or appoint, one or more Project Managers who are authorized to act on behalf of Contractor regarding all matters involving the conduct of the performance pursuant to this Contract and the Work Orders, and shall keep the City of DeBary Project Manager continually advised of such designation.

3.12 Change in Scope of Services. The City of DeBary may order changes in the service consisting of additions, deletions, or other revisions within the general scope of the Contract. No claims may be made by the Contractor to change the amount of compensation of the Contractor or other adjustments to the Work Order, unless such changes or adjustments have been made by written amendment to the

Work Order (“Change Order”) and duly executed by the City of DeBary. If the Contractor believes that any particular service is not within the scope of services described in the Work Order, is a material change, or will otherwise require more compensation to the Contractor, the Contractor shall immediately notify the City of DeBary Project Manager in writing, of this belief. If the City of DeBary

Project Manager determines that the particular work is within the scope of the Work Order, the

Contractor shall continue with the work at the cost stated for the work within the scope. The Contractor shall assert a right to an adjustment under this clause within thirty (30) days from the date of receipt of the written order and the assertion shall be written and shall be sent in accordance with the notice requirements of Section 13.03 - Notice.

3.13 Continuing the Work. The Contractor shall carry on the work and adhere to the progress schedule during all disputes of this Contract with the City of DeBary. No work shall be delayed or postponed pending resolution of any disputes of this Contract, except as specifically set forth herein, or as the City of DeBary and Contractor may otherwise agree in writing.

3.14 F.O.B. Point. The F.O.B. point for this contract and for all purchases made under it shall be the location of the Project as specified in the specification or Work Order. Delivery shall not be complete until the City of DeBary has accepted each item. Delivery to a common carrier shall not constitute delivery to the City of DeBary.

3.15 Use of Premises. The Contractor shall assume responsibility for any physical damages that are a direct result of the performance of the Work. During the progress of the Work, the Contractor shall keep the Project site free from accumulations of waste materials resulting from the Project. At the completion of the Project, the Contractor shall remove, at its expense, all waste materials to receptacles provided by the Contractor or the City of DeBary, if any, as well as tools, appliances, equipment, machinery and/or surplus materials. The Contractor shall leave the site clean, restoring to its original condition or the condition specified in the Work Order.

3.16 Time is of the Essence. Time is of the essence for each Work Order issued under this Contract and all

Projects performed in accordance herewith.

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ARTICLE 4 - COMPENSATION AND PAYMENTS

4.01 Compensation. As consideration of the Contractor satisfactorily completing the Project in accordance with the terms and conditions of this Contract and the Work Order, the City of DeBary agrees to pay the

Contractor as set forth in the Work Order.

4.02 Payments.

4.02.1 Based upon an invoice submitted to the City of DeBary Project Manager by the Contractor and approved by the City of DeBary, the City of DeBary shall make progress payments to the Contractor as provided in the Work Order. If retainage is applicable, Work Orders shall provide that ten percent (10%) of each payment shall be withheld as retainage until 50-percent completion of the project. After 50-percent completion of the project, retainage may be reduced to five percent (5%) of each payment (if applicable), and final retainage shall not be paid until the Project is accepted by the City of DeBary, including the completion of any punch list items described in Section 3.05.

4.02.2 The invoice for progress payments shall be submitted in accordance with the draw schedule established in the Work Order. The Contractor shall submit an invoice for progress payment for the County Project Manager’s approval in a form acceptable to the City of DeBary. Each such invoice for payment shall set forth the value of all work completed.

4.02.3 In each invoice for progress payment, the Contractor shall certify as follows:

4.02.3.1 There are no known mechanic’s or material men’s liens outstanding at the date of this invoice; all due and payable bills with respect to the Project have been paid to date or shall be paid from the proceeds of this invoice for payment;

4.02.3.2 There is no known basis for the filing of any mechanic’s or material men’s liens on the Project; and waivers from all subcontractor’s and material men employed by the Contractor have been or will be obtained in such form as to constitute an effective waiver of lien under the applicable laws of the State of Florida;

4.02.3.3 All improvements have been installed in accordance with the Work Order and related contract documents (except where noted or agreed upon in writing by the City of DeBary pursuant to an approved Change Order); and

4.02.3.4 No encroachments into the designated set-back lines and right of way, as stipulated in the Work Order and any Change Order, exist.

4.02.4 Beginning with the second invoice for progress payment, the Contractor shall also deliver with each such invoice, as a condition precedent to payment thereof, waivers of lien for each of its subcontractors, current through the effective date of the previous invoice for payment. The Contractor may, if any subcontractor or supplier refuses to furnish a release in full, furnish a bond satisfactory to the City of DeBary against any lien.

4.02.5 The City of DeBary shall promptly review each invoice for progress payment and make such exceptions, as the City of DeBary reasonably deems necessary or appropriate under the state of circumstances then prevailing.

4.02.6 Based upon the approved invoice of progress payment, the City of DeBary shall make payment to Contractor in the amount approved, subject, however, to the provisions of paragraph 7, hereof. The payment of any invoice for progress payment by the City of DeBary, including the final invoice, does

City of Debary Page 10 of 69 RFP 02-19 not constitute approval or acceptance of that part of the Project to which such payment relates or relieve the Contractor of any of its obligations hereunder with respect hereto.

4.02.7 Any provisions hereof to the contrary notwithstanding, the City of DeBary shall not be obligated to make current payment to the Contractor hereunder if any one of the following conditions exists:

4.02.7.1 The Contractor fails to diligently prosecute the work in an efficient, timely, and workmanlike manner and in strict accordance with the provisions of the Contract Documents; or

4.02.7.2 The Contractor fails to use an adequate number of qualified personnel and sufficient equipment to complete the Project without undue delay; or

4.02.7.3 The Contractor fails to make prompt payments to its subcontractors, suppliers, material men, or laborers; or

4.02.7.4 Any part of such payment to the Contractor is attributable to work which is defective or not performed in accordance with the drawings and specifications; provided, however, such payment shall be made as to the part thereof attributable to work which is performed in accordance with the drawings and specifications and is not defective; or

4.02.7.5 The Contractor is otherwise in default of any of its obligations hereunder or otherwise is in default under any of its contractual requirements.

4.02.8 In the event that the City of DeBary requires the Contractor to provide Performance and Payment Bonds, the City of DeBary agrees to pay the Contractor, by City of DeBary check, the invoice or proposal cost of those Bonds (whichever is less), not to exceed the price quoted in the Bid.

4.02.9 For changes in the Work, ordered by the City of DeBary, the Contract Price shall be adjusted accordingly as set forth in Section 3.12.

4.02.10 Any discrepancies between the City of DeBary records and the Contractor’s submittals must be rectified, to City of DeBary satisfaction, by the Contractor before the City of DeBary makes payment on those items. The Contractor shall only issue invoices for services rendered. Pursuant to Chapter 218, Florida Statutes, the City of DeBary will pay interest not to exceed one percent (1%) per month on all undisputed invoices not paid within thirty (30) Days after receipt and acceptance of the service, and receipt by the City of DeBary of a properly completed invoice, whichever is later. Invoices for payments hereunder shall be submitted to the address indicated in the work order.

4.02.11 To be deemed proper, all invoices shall comply with the requirements set forth in this Contract and shall be submitted on the form and pursuant to instructions prescribed by the City of

DeBary.

4.03 Internal Revenue Service Form (1099MISC). During the term of this Contract, the City of DeBary shall file and provide the Contractor a copy of Internal Revenue Service (IRS) Form 1099-MISC after the close of each calendar year as required by law.

ARTICLE 5 - PERSONNEL OF CONTRACTOR

5.01 Supervision. The Contractor shall direct and supervise competent and qualified personnel and shall devote time and attention to the direction of the operation to insure performance of obligations and

City of Debary Page 11 of 69 RFP 02-19 duties as set forth herein. The Contractor shall hire, compensate, supervise, and terminate members of its work force, and the Contractor shall direct and control the manner in which work is performed including conditions under which individuals will be assigned duties, how individuals will report, and the hours individuals will perform. The Contractor shall be responsible for all income tax, social security and Medicare taxes, federal unemployment taxes, and any other withholdings from the company’s employees’ and/or subcontractor’s wages or salaries. Benefits, if any, for the Contractor’s employees and/or subcontractors shall be the responsibility of the Contractor including, but not limited to, health and life insurance, retirement, liability/risk coverage, and worker's and unemployment compensation.

5.02 Applicable Laws. Contractor shall be responsible for ensuring that its employees, agents, and subcontractors comply with all applicable laws and regulations and meet all federal, state, and local requirements related to their employment and position.

5.03 Right of Rejection. During the term of this Contract, the City of DeBary shall have the right of reasonable rejection and approval of the staff of the Contractor or other representatives assigned to the work by the Contractor. If the City of DeBary reasonably rejects the staff or representative of the

Contractor, Contractor shall provide replacement satisfactory to the City of DeBary in a timely manner and at no additional cost to the City of DeBary. The day-to-day supervision and control of the

Contractor’s employees or others working on behalf of the Contractor are the sole responsibility of the

Contractor.

5.04 Employment of Illegal Aliens. The Contractor certifies that it does not and will not, during the performance of the Contract, employ illegal alien workers or otherwise violate the provisions of the

Federal Immigration Reform and Control Act of 1986, as amended.

5.05 Nondiscrimination and Americans with Disabilities Act. Contractor shall not unlawfully discriminate against any person in the operations and activities in the use or expenditure of the funds or any portion of the funds provided by this Contract. Contractor agrees it shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any Services funded by the City of DeBary, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In performing under this Contract, Contractor agrees that it shall not commit an unfair employment practice in violation of any state or federal law and that it shall not discriminate against any member of the public, employee or applicant for employment for work under this Contract because of race, color, religion, gender, sexual orientation, age, national origin, political affiliation, or disability and will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to race, color, religion, gender, sexual orientation, age, national origin, political affiliation, or disability.

5.05.1 In accordance with the American Disabilities Act and Section 286.26, Florida Statutes, persons with disabilities needing a special accommodation to participate in the proceedings, or an interpreter to participate in any proceedings, should contact the City of DeBary ADA Coordinator at 386-668-2040 for assistance, at least two business days before any meeting date. Assisted listening system receivers are available for the hearing impaired, and can be obtained from the Deputy Clerk by contacting the City of DeBary ADA Coordinator at 386-668-2040. Read the full ADA Notice under The American with Disabilities Act (Title II). Read the County of Volusia Grievance Procedure under The Americans with Disabilities Act (Title II).

City of Debary Page 12 of 69 RFP 02-19

5.06 Fair Labor Standards Act. The Contractor and any Subcontractor shall pay all employees working on this Contract, not less than the minimum wage specified in the Fair Labor Standards Act, as amended.

5.07 Drug-Free and Smoke-Free Workplace. The City of DeBary is a drug-free and smoke-free workplace. Contractor agrees that its personnel and the personnel of each of its subcontractors agree to adhere to the City of DeBary policies on drug-free and smoke-free work place during the term of this

Contract.

ARTICLE 6 - CONTRACTOR AS INDEPENDENT CONTRACTOR

6.01 The Contractor shall provide the services required herein strictly in an independent Contractual relationship with the City of DeBary and, except as expressly set forth herein, is not, nor shall be, construed to be an agent or employee of the City of DeBary. The City of DeBary shall not provide vehicles or equipment to the Contractor to perform the duties required by this Contract nor will the City of DeBary pay for any business, travel, office, or training expense or any other contract performance expense not specifically set forth in the Scope of Services. The Contractor is not exclusively bound to the City of DeBary and may provide service to other private and public entities as long as the service by the Contractor for such entities does not conflict with the Contractor’s services to the City of DeBary.

ARTICLE 7 - SUBCONTRACTORS

7.01 Prior Approval. In the event the Contractor, during the course of the work under this Contract, requires the services of any subcontractors, suppliers, other persons or organizations in connection with service covered by this Contract, the Contractor must secure the prior written approval of the City of DeBary. The City of DeBary acceptance of any such subcontractors, suppliers, other persons or organization so identified, may be revoked on the basis of reasonable objection after due investigation, in which case the Contractor shall submit an acceptable substitute. No acceptance by the City of

DeBary of any such subcontractor, supplier, other person or organization shall constitute a waiver of any right of the City of DeBary to reject defective work. Contractor shall remain fully responsible for the services of said subcontractors, suppliers, other persons or organizations.

7.02 License. Subcontractor’s license shall be valid at all times during the course of work for the City of

DeBary. Contractor shall be responsible for ensuring that the subcontractors’ licenses are valid during the performance of work for the City of DeBary.

City of Debary Page 13 of 69 RFP 02-19

ARTICLE 8 - INSURANCE

8.01 Required Types of Insurance. The Contractor shall purchase and maintain at its own expense, during the term of this Contract the following types and amounts of insurance with limits no less than those shown below, in the form and from companies satisfactory to the City of DeBary.

SCHEDULE LIMITS

1. Workers’ Compensation Insurance Statutory

2. Employers Liability Insurance Limits: $500,000/$500,000/$500,000

3. Commercial General Liability Insurance

a. Each Occurrence (1) One Million Dollar ($1,000,000.00) Combined Single Limit (CSL)

b. Aggregate (1) One Million Dollar ($1,000,000.00) Combined Single Limit (CSL)

4. Business Automobile Liability Insurance

a. Each Person

b. Each Occurrence

(1) One Million Dollar ($1,000,000.00) Combined Single Limit (CSL)

5. Excess Liability Policy:

(1) One Million Dollar ($1,000,000.00) excess of all underlying limits

8.01.1 The minimum underlying coverage’s shall include Commercial General Liability, Automobile

Liability and Workers’ Compensation/Employer’s Liability. (The Umbrella liability limit will not be required to be carried by subcontractors.)

8.01.2 Umbrella or Excess Liability policies may be used to obtain the total limits of liability required to meet the required limits of coverage stated above. Evidence of such coverage must clearly demonstrate the underlying coverage’s/policies that are included.

8.01.3 Workers’ Compensation Insurance. Contractor shall secure and maintain for the term of this

Contract Workers’ Compensation insurance for all employees of the Contractor, employed or hired to perform or provide Work or Services under this Contract or that is in any way connected with Work or Services performed under this Contract, without exclusion for any class of employee, and shall comply fully with the Florida Workers’ Compensation Law (Chapter 440, Florida Statutes, Workers’ Compensation Insurance) and include Employers’ Liability Insurance with limits no less than the statutory amount shown above on a per occurrence basis.

8.01.3.1 Contractor and its Subcontractors, or any associated or subsidiary company doing

Work on City of DeBary property or under this Contract must be named in the Workers’ Compensation coverage or provide proof of their own Workers’ Compensation coverage, without exclusion of any class of employee, City of Debary Page 14 of 69 RFP 02-19 and with a minimum of the statutory limits per occurrence for Employer’s liability coverage.

Further, if the

Contractor's Subcontractors fail to obtain Workers’ Compensation insurance and a claim is made against the City of DeBary by the uncovered employee of said Subcontractor of the Contractor, the

Contractor shall indemnify, defend, and hold harmless the City of DeBary from all claims for all costs including attorney’s fees and costs arising under said employee(s) Workers’ Compensation insurance claim(s).

8.01.4 Commercial General Liability Insurance. The Contractor shall secure and maintain during the term of the Contract Commercial General Liability insurance, with a limit of not less than the amounts shown above with an aggregate limit and per occurrence basis, including coverage for the Contractor’s operations, independent Contractors, Subcontractors and “broad form” property damage coverage’s protecting itself, its employees, agents, Contractors or subsidiaries, and their employees or agents for claims for damages caused by bodily injury, property damage, or personal or advertising injury, products liability/completed operations including what is commonly known as groups A, B, and C (libel, false arrest, slander). Such policies shall include coverage for claims by any person as a result of actions directly or indirectly related to the employment of such person or entity by the Contractor or by any of its Subcontractors arising from Work or Services performed under this Contract. Public liability coverage shall include either blanket contractual insurance or a designated contract contractual liability coverage endorsement, indicating expressly the Contractor’s contract to indemnify, defend, and hold harmless the City of DeBary as provided in this Contract. The commercial general liability policy shall be endorsed to include the City of DeBary as an additional named insured. The commercial general liability policy shall provide exclusive coverage for the location or project site where the Work or Services are to be performed under this Contract. In the alternative, the commercial general liability policy shall be endorsed to provide the designated aggregate per location endorsement or equivalent on a form approved or requested by the City of DeBary.

8.01.5 Excess/Umbrella Liability. The Contractor shall secure and maintain for the term of this

Contract an excess liability policy in addition to the scheduled underlying policies (commercial general liability, business auto liability, professional, and employers' liability) with a limit of no less than the amount shown above. This insurance shall name the City of DeBary as an additional insured and include either blanket contractual or a designated contract contractual coverage endorsement, indicating expressly the Contractor’s Contract to hold the City of

DeBary harmless

8.01.6 Motor Vehicle Liability. The Contractor shall secure and maintain for the term of this Contract, motor vehicle coverage (including “Any Auto” Symbol 1 coverage), in the split limit amounts of no less than the amounts shown above per person, per occurrence for bodily injury and for…