[C]_Contractual_Documents.pdf

CONTRACT AGREEMENT

1 SERVICE FOR LEGAL PROCESS OF CONTRACT

If the successful bidder is an out-of-state corporation, partnership or sole proprietorship, the successful bidder hereby irrevocably appoints the Secretary of the State of Florida as its agent for service of all legal process for the purpose of this contract only.

CERTIFICATE

STATE OF )

COUNTY OF )

I HEREBY CERTIFY that a meeting of the Board of Directors of , a corporation under of the laws of the State of , held on , 20 , the following resolution was duly passed and adopted:

"RESOLVED, that

(Individual's Name) as (Title) of the corporation, is hereby authorized to execute the contract dated 20 , between the City of St.

Cloud and this corporation, and that his execution thereof, attested by the Secretary of the corporation and with corporate seal affixed, shall be the official act and deed of this corporation."

I further certify that said resolution is now in full force and effect.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the corporation this day of 20 .

Corporate Secretary

CONTRACT AGREEMENT BETWEEN

THE CITY OF ST. CLOUD, FLORIDA AND

ITB No. ___________

THIS AGREEMENT, made and entered into this day of 20 , A.D., by and between the City of St. Cloud, Florida, party of the first part (hereinafter referred to as "OWNER"), whose address is 1300 9th Street, St. Cloud, Florida 34769 and

, party of the second part (hereinafter referred to as "CONTRACTOR"), whose address is .

WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows:

ARTICLE I - SCOPE OF WORK

The CONTRACTOR shall furnish all labor, materials, equipment, machinery, tools, apparatus and transportation and perform all of the work described in the drawings and specifications entitled:

ITB No. _______ as provided by the CITY and its agents, and shall do everything required by this Contract and the other Contract Documents contained in the specifications, which are a part of these Documents.

ARTICLE II - THE CONTRACT SUM

The OWNER shall pay to the CONTRACTOR, for the faithful performance of the Contract, in lawful tender of the United States, and subject to addition and deductions as provided in the Contract Documents, as follows:

(DOLLAR AMOUNT IN WORDS)

(DOLLAR AMOUNT IN FIGURES)

ARTICLE III - COMMENCEMENT AND COMPLETION OF WORK

1.) The CONTRACTOR shall commence work within 10 calendar days after receipt of (i) Notice to proceed, and (ii) receipt of all permits required to perform the work, and the CONTRACTOR will substantially complete the same within three hundred (300) calendar days unless the period for completion is extended otherwise by the amendment or change order to the Contract.

Substantial Completion as provided herein shall be the day the project or designated portion thereof is certified and accepted by the CITY as sufficiently complete, in accordance with the Contract Documents.

2.) The CONTRACTOR shall prosecute the work with faithfulness and diligence.

3.) The CONTRACTOR further declares he has examined the site of the work and that from personal knowledge and experience or that he has made sufficient investigations to fully satisfy himself that such site is correct and suitable for the work and he assumes full responsibility therefor.

The provisions of this Contract shall control any inconsistent provisions contained in the specifications. All Drawings and Specifications have been read and carefully considered by the CONTRACTOR, who understands the same and agrees to their sufficiency for the work to be done.

It is expressly agreed that under no circumstances, conditions or situations shall this Contract be more strongly construed against the OWNER than against the CONTRACTOR and his Surety.

Any ambiguity or uncertainty in the Plans, Drawings or Specifications shall be interpreted and construed by the Project Architect, and his decision shall be final and binding upon all parties, provided the OWNER agrees.

It is distinctly understood and agreed that the passing, approval and/or acceptance of any part of the work or material by the OWNER, City Manager, City of St. Cloud, Florida (Authorized Representative) or by any agent or representative as in compliance with the terms of this Contract and/or of the Drawings, Plans and Specifications covering said work shall not operate as a waiver by the OWNER of strict compliance with the terms of this Contract and/or the Drawings and Specifications covering said work; and the OWNER may require the CONTRACTOR and/or his Surety to repair, replace, restore and/or make to comply strictly and in all things with this Contract and the Drawings and Specifications any and all of said work and/or materials which within a period of one year from and after the date of the passing, approval, and or acceptance of any such work or material, are found to be defective or to fail and in any way to comply with this Contract or with the Drawings and Specifications. This provision shall not apply to materials or equipment normally expected to deteriorate or wear out and become subject to normal repair and replacement before their condition is discovered. The CONTRACTOR shall not be required to do normal maintenance work under the guarantee provisions. Failure on the part of the CONTRACTOR and/or his Surety, immediately after Notice to either, to repair or replace any such defective materials and workmanship shall entitle the OWNER, if it sees fit, to replace or repair the same and recover the reasonable cost of such replacement and/or repair from the CONTRACTOR and/or his Surety, who shall in any event be jointly and severally liable to the OWNER for all damages, loss and expense caused to the OWNER by reason of the CONTRACTOR'S breach of this Contract and/or his failure to comply strictly and in all things with this Contract and/or his failure to comply strictly and in all things with this Contract and with the Drawings and Specifications.

4.) As-built drawings, warranties must be submitted to the Architect in accordance with paragraph D-16 of Instructions to Contractors before final payment will be made to the CONTRACTOR.

ARTICLE IV - LIQUIDATED DAMAGES

1.) It is mutually agreed that time is of the essence in regard to this Contract and should the CONTRACTOR fail to complete the work within the specified time, or any authorized extension thereof, there shall be deducted from the compensation otherwise to be paid to the CONTRACTOR, and the OWNER will retain the amount of:

Inasmuch as failure to complete the project within the time fixed in the Agreement will result in substantial injury to the Owner, and as damages arising from such failure cannot be calculated with any degree of certainty, it is hereby agreed that if the project is not substantially completed, within the specified number of calendar days, or within the extension of time provided in a Change Order, the Contractor shall pay to the Owner as liquidated damages for such delay, not as a penalty, per the most recent edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction, for each and every calendar day elapsing between the date fixed for substantial completion and the date such substantial completion shall have been fully accomplished.

It is also hereby agreed that if this project is not finally completed, in accordance with the requirements of the contract documents, per Table 8-10.2 of the most recent edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction, for each and every calendar day elapsing between the date fixed for final completion and the date such final completion shall have been fully accomplished. Said liquidated damages shall be payable in addition to any extra expenses or costs incurred by the Owner including, but not limited to: inspection and supervision occasioned by the delay; materials and equipment storage fees; additional employee salaries and benefits; rental of space; all utilities; and shall not exclude the recovery of damages by the Owner under other provisions of the contract documents.

The provision of liquidated damages for delay shall in no manner affect the Owner's right to terminate the contract as provided herein, or elsewhere in Contract Documents. The Owner's exercise of the right to terminate shall not release the Contractor from his obligation to pay said liquidated damages in the amounts set forth in the Agreement.

2.) For the purposes of this Article, the day of final acceptance of the work shall be considered a day of delay, and the scheduled day of completion of the work shall be considered a day schedule for protection.

ARTICLE V - PARTIAL AND FINAL PAYMENTS

In accordance with the provisions fully set forth in the General Conditions, and subject to additions and deductions as provided, the OWNER shall pay the CONTRACTOR as follows:

1.) CONTRACTOR shall submit a progress payment request each calendar month for work performed during the preceding calendar month. The Partial Payment Authorization is completed by Contractor and submitted to Owner for approval and signature. Upon receipt, review, and approval of the signed document by Owner, payment will be made pursuant to Florida Statute Section 218.70, the Prompt Payment Act, and all City Policies promulgated thereby. The preferred method of payment by the City of St. Cloud is via electronic funds transfer (EFT) or P-Card. To insure proper performance of the Agreement, the OWNER shall withhold retainage until final completion and acceptance of all work covered by the

Agreement.

2.) Upon submission by the CONTRACTOR of evidence satisfactory to the OWNER that all payrolls, material bills and other costs incurred by the CONTRACTOR in connection with the construction of the work have been paid in full, and also, after all guarantees that may be required in the Specifications have been furnished and are found acceptable by the OWNER, final payment, including any retainage amount, on account of this Agreement shall be made within thirty (30) days after completion of all work by the CONTRACTOR covered by this Agreement and acceptance of such work by the OWNER.

ARTICLE VI- ADDITIONAL BONDS

It is further mutually agreed between the parties hereto that if, at any time after the execution of this Agreement and the Surety Bonds hereto attached for its faithful performance and payment of labor and materials, the OWNER shall deem the Surety or Sureties upon such bonds to be unsatisfactory, or if, for any reason, such bonds cease to be adequate to cover the performance and payments of the work, the CONTRACTOR shall, at his expense, and within ten (10) days after receipt of Notice from the OWNER to do so, furnish additional bonds, in such form and amounts, and with such Sureties as shall be satisfactory to the OWNER. In such event, no further payment to the CONTRACTOR shall be deemed due under this Agreement until such new or additional security for the faithful performance and for payment of labor and materials of the work shall be furnished in manner and form satisfactory to the OWNER.

ARTICLE VII – DISPUTE RESOLUTION - MEDIATION

1.) Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party.

2.) The CITY and CONTRACTOR shall endeavor to resolve claims, disputes and other matters in question between them by mediation.

3.) The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon.

Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

ARTICLE VIII - NOTICES

All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended.

CONTRACTOR:

Attn:

CITY: City of St. Cloud Attn: City Manager 1300 9th Street St. Cloud, FL 34769

ARTICLE IX – MISCELLANEOUS

1.) Attorneys’ Fees. In the event a suit or action is instituted to enforce or interpret any provision of this agreement, the prevailing party shall be entitled to recover such sum as the Court may adjudge reasonable as attorneys’ fees at trial or on any appeal, in addition to all other sums provided by law.

2.) Waiver. The waiver by city of breach of any provision of this agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this agreement.

3.) Severability. If any provision of this agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the agreement valid and enforceable under applicable law, the remainder of this agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this agreement shall be valid and enforceable to the fullest extent permitted by applicable law.

4.) Amendment. Except for as otherwise provided herein, this agreement may not be modified or amended except by an agreement in writing signed by both parties.

5.) Entire Agreement. This agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by contractor.

6.) Assignment. This agreement is personal to the parties hereto and may not be assigned by contractor, in whole or in part, without the prior written consent of city.

7.) Venue. The parties agree that the sole and exclusive venue for any cause of action arising out of this agreement shall be Osceola County, Florida.

8.) Applicable Law. This agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida.

9.) Public Records. CONTRACTOR expressly understands records associated with this project are public records and agrees to comply with Florida’s Public Records law, to include, to:

Keep and maintain public records that ordinarily and necessarily would be required by the CITY in order to perform the services contemplated herein.

Provide the public with access to public records on the same terms and conditions that the CITY would provide the records and at a cost that does not exceed the cost provided in this Florida’s Public Records law or as otherwise provided by law.

Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

Meet all requirements for retaining public records and transfer, at no cost, to the CITY all public records in possession of the CONTRACTOR upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the CITY in a format that is compatible with the information technology systems of the CITY.

IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION

OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY

TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT,

CONTRACTOR SHALL CONTACT THE CITY’S CUSTODIAN OF PUBLIC

RECORDS AT CITY CLERK’S OFFICE, 1300 9th STREET, ST. CLOUD, FLORIDA 34769, TELEPHONE 407-957-7300, EMAIL

CITYCLERK@STCLOUD .

ARTICLE X - CONTRACT DOCUMENTS

The Contract Documents, as listed below are herein made fully a part of this Agreement as if herein repeated.

Document Precedence:

1.) This Agreement 2.) Technical Plan and Specifications 3.) All documents contained in ITB, any and all addenda, schedules, attachments, appendixes, exhibits attached thereto, and CONTRACTOR’S , 20 response thereto.

4.) Payment and Performance Bonds

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this day of , 20 .

City of St. Cloud

City Manager

Attest:

City Clerk

(Insert Name of Contractor)

By:

Signature

(Name/Title Printed or Typed)

Address

(Telephone Number) (Fax Number)

E-mail Address

Attest:

Corporate Secretary

(Name Printed or Typed)

9 – NOTICE OF AWARD

(Date)

Attention:

Reference: ITB No. ________ _________________

The OWNER has considered the BID submitted by you for the above-described WORK in response to its Advertisement for Bids dated _________ and Information for Bidders.

You are hereby notified that your BID has been accepted for _________________ in the amount of: __

You are required by the Information for Bidders to execute the Agreement and furnish the required CONTRACTOR'S PERFORMANCE BOND, PAYMENT BOND, and CERTIFICATES OF INSURANCE within ten (10) calendar days from the date of this NOTICE to you.

You are hereby notified that you are the apparent successful Bidder on the Project noted above.

Upon compliance with the conditions, precedent to being fulfilled by you within the time specified, the AGREEMENT will be executed and delivered to you.

Enclosed are the following:

No. Copies Item

1 Agreement between Owner and Contractor 1 Performance Bond 1 Payment Bond 1 Notice from Insurance Agent or Broker 1 Notice of Award

Please take the following actions:

1.) Execute Agreement and Seal.

2.) Have your insurance company furnish all required certificate(s) of insurance meeting requirements of the contract.

3.) Return all original copies of Agreement, Bonds, and Insurance Certificates to:

NOTICE OF AWARD

PAGE TWO

Procurement Services City of St. Cloud 1300 9th Street, Building A, 2nd Floor St. Cloud, Florida 34769

The original performance and payment bonds will be returned to you upon review/approval and signature by the City for recording in the public records of Osceola County and return of original or certified copy of bonds to my attention. We will return a fully executed copy of the contract documents to you along with a NOTICE TO PROCEED upon receipt of the recorded bonds.

If you fail to execute said AGREEMENT and to furnish said BONDS within ten (10) calendar days from the date of this Notice, said OWNER will be entitled to consider all of your rights arising out of the OWNER'S acceptance of your bid as abandoned and as a forfeiture of your BID BOND. The OWNER will be entitled to such other rights as may be granted by law.

You are required to return an acknowledged copy of this NOTICE of AWARD to the OWNER.

Dated this day of 20 .

CITY OF ST. CLOUD

By:

ACCEPTANCE OF NOTICE

Receipt of the above NOTICE OF AWARD is hereby acknowledged by (Name of Corporation, Partnership, or Individual) this day of 20 .

(NAME OF CONTRACTOR’S COMPANY)

By:

Title:

10 – NOTICE TO PROCEED

NOTICE TO PROCEED

TO:

PROJECT: ITB No. _____ _______________

AMOUNT OF

CONTRACT:

DATE:

You are hereby notified to commence work on the above referenced contract on or before , and shall substantially complete all of the work of said contract by ____________.

Final Completion shall be sixty (60) days thereafter.

Time for the completion of the project will be assessed against the Contract beginning with the date of receipt of Notice to Proceed by the Contractor or within three (3) calendar days after date of Contract, if no Notice to Proceed is given. If no Notice to Proceed is given, receipt of duly executed Contract Documents by the Contractor is considered by the Owner to be such Notice to Proceed.

Upon execution of this document, you are authorized to arrange a Preconstruction Conference meeting with the City of St. Cloud. Please call (407) 957-7180 to schedule this meeting. The following items must be submitted at the time of the Preconstruction Conference:

1.) Construction Progress Schedule 2.) Maintenance of Traffic Plan (if applicable) 3.) Trench Safety Plan (if applicable) 4.) Dewatering Plan (if applicable) 5.) Any revisions to Subcontractor List (if applicable)

Dated this day of 20 .

CITY OF ST. CLOUD

By:

ACCEPTANCE OF NOTICE

Receipt of the foregoing Notice to Proceed and Authorization to Schedule Preconstruction Conference is hereby acknowledged this _____ day of ______________________ 20 .

(NAME OF CONTRACTOR’S COMPANY)

By:

Title: