CONTRACT_-_Contract-Bonds-General_Conditions_-_Bid_Documents.pdf

Lakeside Gravity Outfall System – Phase II Bid No. 01-14

CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT is entered by and between CITY OF DeBARY, FLORIDA (hereinafter called the "City"), and ____________________________________, of _____________________________________ (hereinafter called the "Contractor"), on this ______day of ___________, 2014.

WHEREAS, it has been determined that the execution of this Contract is beneficial to the people of the City of DeBary, Florida; and

WHEREAS, this Agreement was competitively awarded pursuant to:

CITY OF DEBARY

LAKESIDE GRAVITY OUTFALL SYSTEM – PHASE II

BID No. 01-14

WITNESSETH, the City and the Contractor for TEN DOLLARS ($10.00) and other good and valuable consideration hereby covenant and agree as set forth below:

ARTICLE I – THE CONTRACT DOCUMENTS

The Contract Documents consist of: this Construction Contract with Exhibits thereof; the

General Conditions of the Contract (other conditions, if applicable); the drawings and tech-nical specifications; and all addenda to the Contract issued prior to and all modifications

(changes) issued after execution of this Contract. These form the Contract, and all are as fully a part of this Construction Contract as if attached hereto or repeated herein.

ARTICLE II – THE PROJECT

1. The Contractor shall perform all the Work required by the Contract Documents to complete the Project as described and detailed herein: LAKESIDE GRAVITY

OUTFALL SYSTEM – PHASE II and in accordance with the Technical

Specifications Manual, all as pertaining to the City's property described in the

Contract Documents. The Project comprises the completed construction required by the Contract Documents and in includes all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction.

2. Contractor represents and agrees that it has carefully examined and understands this Contract and the other Contract Documents, has investigated the nature, locality and site of the Project and the conditions and difficulties under which it is to be performed, and that it enters into this Contract on the basis of its own examination, investigation and evaluation of all such matters and not in reliance upon any opinions or representations of the City, or of any of the City's agents, consultants or employees.

3. As used in the Contract Documents, the term “Work” shall include all labor, supplies, materials and incidentals required for the construction of the improvements required by the Contract Documents, including use of equipment and tools, and all services and responsibilities prescribed or implied, which are necessary for the complete performance by the Contractor of its obligations under the Contract Documents.

ARTICLE III – TIME OF COMMENCEMENT AND COMPLETION DATE

1. The Work to be performed under this Contract shall be commenced upon or immediately after delivery of notice from the City to Contractor to proceed ("Notice to Proceed"), Contractor shall thereafter diligently proceed with the completion of the Project within ONE HUNDRED FIFTY ONE (151) calendar days after the

Notice to Proceed (the "Completion Date").

2. Notwithstanding anything else contained herein, if the City, in its sole judgment, shall deem it advisable to terminate this Contract before delivery of Notice to

Proceed, then the City shall deliver written Notice of Termination of the Contract to the Contractor, the Contract shall be rendered null and void, and neither party shall be entitled to any damages or compensation in connection with such termination of the Contract.

3. Inasmuch as failure of the Contractor to complete the Project by the Completion

Date may cause grave injury and damage to the City, time is of the essence in the performance of this Contract. Accordingly, the Contractor must commence work and complete the Project when and as required by this Contract.

4. In the event that the Contractor shall fall behind in schedule at any time, for any reason, and such delay is adversely affecting the City's ability to timely occupy and use the Project for its intended purpose, the City shall be entitled to direct acceleration or re-sequencing of the work to bring the Project back on schedule.

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, and in any event within three (3) calendar days after the date of receipt of the City's instruction for re-sequencing or accelerating, a plan to complete the

Project in the shortest possible time. No approval by the City 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 its rights of recovery from damages or losses which the City may suffer by reason of delayed Project completion.

5. Contractor agrees to provide the City with each application for progress payment pursuant to Article V hereof, the Contractor’s best estimate of any anticipated revisions to the Completion Date for the purpose of the City's planning; provided, however, and notwithstanding the making of any progress payments, no anticipated revisions to the Completion Date shall be effective and binding on the

City and the Contractor without a written Change Order executed by the City in accordance with the procedure set forth in General Conditions Article VI hereof.

6. The Contractor further agrees that for each calendar day, that any work shall remain uncompleted after the Completion Date stipulated above, the Contractor shall be liable for and shall pay to the City the sum of $1,000.00 (One Thousand

Dollars) per day as liquidated damages (not as a penalty), and such shall be deducted from the Contract Price and monies due the Contractor. Should the total amount chargeable as liquidated damages exceed the amount due or payable to the Contractor or his/her Surety, then such excess shall be paid to the City by the

Contractor or his/her Surety. When City reasonably believes that Substantial

Completion or Final Completion will be inexcusably delayed, City shall be entitled, but not required, to withhold from any amounts otherwise due to Contractor an amount then estimated by City to be adequate to recover liquidated damages applicable to such delays. The City’s exercise of the right to terminate shall not release the Contractor from the obligation to pay said liquidated damages. The liquidated damages provided in this Section shall apply even if Contractor’s work is terminated, or if the Contractor has abandoned the Work. Liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defaults in Contractor’s performance hereunder for matters other than delays in completion of the Work.

7. No Damages for Delay Against City: Contractor’s exclusive remedy for delays, impacts, disruption, resequencing, and interruptions in performance of the Work caused by events beyond Contractor’s and its subcontractors’, laborers’, vendors’, and materialmen’s control, including delays, impacts, disruption, resequencing, and interruptions caused (or claimed to be caused) by or attributable to the City or the Engineer and their employees, consultants, and agents, shall be a claim for and be limited to an equitable extension of the

Contract Time. Contractor expressly agrees that the foregoing constitutes its sole and exclusive remedy for delays in Work, and Contractor expressly waives any and all other remedies for any claim for increase in the Contract Price, damages, expenses, losses, or additional compensation. Contractor shall not receive equitable time extensions for delays caused by or within the control of Contractor and its subcontractors, laborers, vendors, and materialmen.

ARTICLE IV – CONTRACT PRICE

1. In consideration of the performance of the Contract, the City agrees to pay the

Contractor, by City's check, the Contract Price of:

Written Amount

2. For changes in the work, ordered by the City, the Contract Price shall be adjusted accordingly. Article VI stipulates the conditions governing changes in the work.

3. The Contractor shall be paid ninety percent (90%) of the proportional amount of the Contract Price with each progress payment, (such payments to be in proportion to the percentage completion of the Project). The value of each

Application for Payment shall be equal to the total value of the Work performed to date in accordance with the Contract Documents, less an amount retained, and less payments previously made and amounts withheld in accordance with the

Contract Documents. The balance constituting the retainage of the Contract Price shall be paid at the time of Final Payment as described in General Conditions

Article XII hereof. Retainage under the Contract Documents is held by City as collateral security to assure completion of the Work. In no event shall any interest be due and payable to Contractor on any of the sums retained by City pursuant to any of the terms or provisions of any of the Contract Documents..

4. Any overpayment by City to Contractor under this Contract shall be promptly repaid to City upon demand.

ARTICLE V – PROGRESS PAYMENTS

1. Based upon applications for payment submitted to the City Representative by the

Contractor and approved by the City, the City shall process and make progress payments to the Contractor as provided in the Contract Documents in accordance with the Local Government Prompt Payment Act as set forth in Part VII, Chapter

218, Florida Statutes, including applicable provisions for City representative review time.

2. Applications for progress payments will be submitted no more often than monthly during the performance of the Work. The Contractor shall submit the application for progress payment for City Representative’s approval in the form acceptable to the City. Each such application for payment shall set forth the value of all work completed on the date of application, including the sum of all prior payments.

3. On each application for progress payment, Contractor shall (1) list the name and address of each of its subcontractors, laborers, materialmen and suppliers who have performed work or provided supplies or material during the time period of

Work reflected by the application; (2) provide an accounting of all sums invoiced by and paid to each of Contractor’s subcontractors, laborers, materialmen and suppliers for Work performed or supplies and materials provided to date; and, (3) submit an updated progress schedule. In each application for progress payment, the Contractor shall certify as follows: (A) "There are no known mechanic's or materialmen’s liens or payment bond claims outstanding at the date of this application for progress payment concerning the Construction Contract between

City and Contractor; all due and payable bills with respect to the Project have been paid to date or shall be paid from the proceeds of this application for payment; there is no known basis for the filing of any mechanic's or materialmen’s liens or payment bond claims on the Project and subcontractors, laborers and materialmen 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"; (B) "All improvements have been installed in accordance with the Contract Documents (except where noted or agreed upon in writing by the

City pursuant to an approved Change Order)"; and (C) "No encroachments into the designated set-back lines and rights of way, as stipulated in the Contract

Documents, exist.".

4. Beginning with the second application for progress payment, the Contractor shall also deliver with each such application, as a condition precedent to payment thereof, waivers of lien for each of its subcontractors, laborers, materialmen and suppliers, current through the effective date of the previous application for payment. The waivers of lien from subcontractors, laborers, materialmen and suppliers shall be in a form acceptable to the City. The Contractor may, if any subcontractor, laborer, materialmen or supplier refuses to furnish a release in full, furnish a bond (separate from the Project payment bond) satisfactory to the City, against any lien.

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

6. Based upon the approved application of progress payment, the City shall make payment to Contractor in the amount approved, subject, however, to the provisions of paragraph 7, herein. The payment of any application for progress payment by the City, including the final application, does not constitute approval or acceptance of that part of the Project to which such payment relates or relieves the Contractor of any of its obligations hereunder with respect hereto. Neither City nor Superintendent is under any duty or obligation whatsoever to any subcontractor, supplier, laborer, materialmen or any other party to ensure that payments due and owing by Contractor to any of them are or will be made.

7. Any provisions hereof to the contrary notwithstanding, the City shall not be obligated to make current payment to the Contractor hereunder if the City has reason to believe that any one or more of the following conditions exists:

(A) 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;

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

(C) The Contractor fails to make prompt payments to its subcontractors, suppliers, materialmen or laborers;

(D) 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;

(E) Contractor fails to provide the information and documentation required with an application for progress payment;

(F) the Contractor is otherwise in default of any of its obligations hereunder or otherwise is in default under any of the contract requirements; or

(G) the Contractor fails to provide the City with an updated as-built diagram if required.

The Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the

Project or not, will pass to City at the time of payment free and clear of all liens, claims, security interests and encumbrances.

ARTICLE VI – CHANGES

1. The City may at any time, without notice to the sureties, make changes within the general scope of the Project, issue additional instructions, require additional work or direct the omission of portions of the work; provided, however, that the Con-tractor shall not proceed with any change involving an increase or decrease in

Contract Price, without prior written authorization from the City in accordance with the procedure outlined hereunder.

2. The City shall order changes in the Project by giving the Contractor a written change order request ("Change Order Request"), setting forth in detail the nature of the requested change. Upon receipt of a Change Order Request, the

Contractor shall forthwith, but in no event later than ten (10) days thereafter, furnish to the City a statement setting forth in detail, with a suitable break-down by trades and work classifications, the Contractor's estimate of the changes in the

Contract Price attributable to the changes set forth in such Change Order

Request, and a proposed adjustment to the Completion Date resulting from such changes and any adjustment of time and costs applicable to unchanged work resulting from such changes. If the City approves in writing such estimate by the

Contractor, such Change Order Request and such estimate shall constitute a

Change Order, and the Contract Price, and the Completion Date shall be adjusted as set forth in such estimate. The foregoing procedure shall apply to both additive and deductive change orders. Agreement on any Change Order shall constitute a final settlement on all items covered therein, subject to performance thereof and payment thereof pursuant to the terms of this Contract.

If the City and the Contractor cannot agree on the cost of any Change Order work, then the City may direct the Contractor to proceed with the Change Order work and the cost will be determined in accordance with the procedures established in the General Conditions of the Contract.

3. The price estimates for Change Order Requests shall be made on the basis of the actual costs of labor and materials involved in such work. Additional provision for determining the price of change orders is included in the General Conditions of the Contract.

ARTICLE VII – FINAL PAYMENT

1. Final payment constituting the entire unpaid balance of the amount due to the

Contractor under this Contract shall not be paid by the City to the Contractor until the Project has been completed, the Contract fully performed, and a final certificate for payment has been issued by the City Representative.

2. Anything to the contrary in this Contract or elsewhere in the Contract Documents notwithstanding, fifteen (15) days after final completion of the Project, including final punch-list items and acceptance thereof by the City or as soon thereafter as possible, the Contractor shall submit final application for payment ("Final

Application") which shall set forth all amounts due to the Contractor and remaining unpaid. If the City Representative is in agreement with the requested amount, then the City shall pay the Contractor the amount due under such Final

Application.

3. The Final Application shall not be made until the Contractor delivers to the City, a complete and final releases and waivers of all liens and rights to claim against the payment bond for all Work performed by Contractor and each subcontractor, vendor, materialmen and laborer and other documentation as may be requested by City establishing payment or satisfaction of obligations arising out of this

Contract in a form acceptable to the City and an affidavit from Contractor that so far as the Contractor has knowledge or information, the release includes and covers all materials and services for which a lien or payment bond claim could be filed, but the Contractor may, if any subcontractor or supplier refuses to furnish a release in full, furnish a bond (separate from the Project payment bond) satisfactory to City, to properly indemnify the City, against any lien.

4. In the event of a bona fide dispute by the City of any sums for which payment has been requested, no interest shall be due on disputed sums until such dispute is resolved, provided that all undisputed sums shall have been paid in due course.

5. In addition to the above items, final payment shall not be made until the following items have occurred (1) the Work can be used and operated in accordance with applicable laws, applicable permits and as intended by the Contract Documents;

(2) all items on the Substantial Completion punch list shall have been completed by Contractor to City’s satisfaction; (3) all construction equipment, rubbish and debris have been removed from the Jobsite; and (4) written assignment to City of all warranties and guarantees which Contractor received from subcontractors, materialmen and suppliers relating to Work.

6. The payment of any application for payment by the City, including the Final

Application for payment, does not constitute approval or acceptance of that part of the Work to which such payment relates nor does it relieve the Contractor of any of its obligations hereunder with respect hereto. The making of a payment, including final payment shall not constitute a waiver of claims by the City, including but not limited to claims arising from: (1) liens, claims, security interests or encumbrances arising out of this Contract; (2) failure of the Work to comply with the requirements of this Contract and its incorporated documents and state and local codes and requirements; (3) terms of warranties and all other post-final completion or construction obligations required by this Contract and its incorporated documents and/or as a matter of law; (4) defects, deficiencies and/or failures in the Work; (5) damages suffered directly or indirectly by the City to the caused in part or whole by the Contractor’s or its subcontractors, employee’s and agent’s negligent performance under this Contract; and (6) any matter for which

Contractor has indemnified City under this Contract.

7. The acceptance of the Final Payment by Contractor will constitute a waiver of all

Claims by Contractor against City except those previously made in writing which the City agrees remain unsettled by Final Payment.

ARTICLE VIII – TERMINATION / SUSPENSION

A. Termination for Cause.

1. City may upon the occurrence of any one or more of the following events, terminate the Contractor’s performance of Work (in part or in whole) for cause after fifteen (15) days written notice to the Contractor and its Surety and an opportunity to cure within such fifteen-day period:

(A) If a trustee, receiver, custodian or agent of Contractor is appointed under applicable law or under contract, whose appointment or authority to take charge of property of Contractor is for the purpose of enforcing a Lien against such property or for the purpose of general administration of such property for the benefit of Contractor’s creditors;

(B) If Contractor admits in writing an inability to pay its debts generally as they become due;

(C) If Contractor fails to perform the Work in accordance with the Contract

Documents (including, but not limited to, failure to supply sufficient skilled workers, sufficient supervisory personnel, or suitable materials or equipment or failure to adhere to the Progress Schedules);

(D) If Contractor discontinues prosecution of the Work or any portion thereof;

(E) If Contractor allows any final judgment against it to remain unsatisfied for a period of ten days;

(F) If Contractor disregards laws, policies, court orders, or administrative directives, etc. of any governmental body, agency or court having jurisdiction;

(G) If Contractor disregards the authority of Engineer or Superintendent;

(H) If Contractor files for bankruptcy or is adjudged as bankrupt or insolvent;

(I) If Contractor otherwise violates in any substantial way any provisions of the

Contract Documents; or

(J) If Contractor fails to promptly pay subcontractors, suppliers, materialmen, laborers, etc. concerning materials provided or services performed for the

Project.

2. If Contractor fails to correct the default within the fifteen (15) day period, the City shall have the right to issue a Notice of Termination to the Contractor and its

Surety terminating the Contractor’s performance of Work (in part or in whole) under this Contract. Upon issuing the Notice of Termination the City shall have the right to:

(A) Exclude Contractor from the Site, and take possession of the Work and of all

Contractor’s tools, appliances, construction equipment, and machinery at the

Site, and use the same to the full extent they could be used by Contractor

(without liability to Contractor for trespass or conversion);

(B) Incorporate in the Work all materials and equipment stored at the Site or for which City has paid Contractor but which are stored elsewhere; and

(C) Complete the Work as City may deem expedient.

3. After receipt of a Notice of Termination, and except as otherwise directed by the

City, the Contractor shall:

(A) Stop work under the Contract on the date and to the extent specified in the

Notice of Termination.

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

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

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

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

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

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

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

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

4. If City terminates Contractor’s performance of work for cause, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by City arising out of or relating to completing the

Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor shall pay the difference to City.

When exercising any rights or remedies under this paragraph, City shall not be required to obtain the lowest price for the Work performed.

5. Where Contractor’s services have been terminated by City for cause, the termination will not affect any rights or remedies of City against Contractor and its

Surety then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by City will not release Contractor and its Surety from liability.

6. If, after Notice of Termination for cause, it is determined for any reason that the

Contractor was not in default, the rights and obligations of the parties shall be the same as if the Notice of Termination had been issued pursuant to the termination for convenience provisions of Article VIII paragraph B, below.

7. City may, at its sole discretion, permit Contractor or Contractor’s Surety to continue to perform Work when Contractor is in default, however caused. Further, the City may, at its sole discretion, either prior to or after termination of the performance of Contractor’s services under this Contract, allow the Contractor’s

Surety to complete and perform the Work in accordance with the Contract

Documents. Such a decision by City shall in no way operate as a waiver on the part of City of any of its rights or remedies under the Contract Documents.

B. City’s Termination for Convenience.

1. City may, without prejudice to any other right or remedy, terminate this Contract in whole or in part at any time for its convenience by giving Contractor and Surety ten

(10) days written notice. City shall have the right, in that event, to take over any or all of Contractor’s materials, (whether stored on or off site) supplies, equipment, sub agreements or other obligations to complete the Work and Contractor shall assign them to City upon City's request. Contractor shall proceed to complete any part of the Work, as directed by City, and shall settle all its Contract Claims and obligations under the Contract.

2. In the event of any such termination for the convenience by City, Contractor shall be paid in accordance with Article VIII, paragraph B. 5 below; however, Contractor shall not be entitled to or receive any anticipated supplemental costs, administrative expenses overhead and profit on uncompleted Work and any type of economic loss or wrongful termination damages. Contractor shall justify its

Contract Claims as requested by City with thorough, accurate records and data.

3. After receipt of a notice of termination for convenience, the Contractor shall submit to the City its termination claim, in the form and with certification prescribed by the

City. Such claim shall be submitted promptly but in no event later than thirty (30) days from the effective date of termination, unless one or more extensions, in writing, are granted by the City upon request of the Contractor made in writing within such thirty (30) days period or authorized extension thereof. Upon failure of the Contractor to submit its termination claim within the time allowed, the City may determine on the basis of information available to it, the amount, if any, due to the

Contractor by reason of the termination and shall thereupon pay to the Contractor the amount so determined.

4. Subject to the provisions of Article VIII, paragraph B. 3 above, the Contractor and the City may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of work for the

City’s convenience, which amount or amounts may include a reasonable allowance for profit on work done; provided, that such agreed amount or amounts exclusive of settlement costs, shall not exceed the total Contract Price as reduced by the amount of payments otherwise made and as further reduced by the

Contract Price of work not terminated. The Contract shall be amended by Change

Order accordingly and the Contractor shall be paid the agreed amount. Nothing in paragraph B. 5 below, prescribing the amount to be paid to the Contractor in the event of failure of the Contractor and the City to agree upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this clause, shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the Contractor pursuant to this paragraph.

5. In the event of the failure of the Contractor and the City to agree upon the whole amount to be paid to the Contractor by reason of the termination of work for the

City’s convenience, as provided in Article VIII, paragraph B. 4 above, the City shall pay to the Contractor the amounts determined by the City as follows, but without duplication of any amounts agreed upon in accordance with Article VIII, paragraph

B. 4 above.

(A) Completed and acceptable Work executed in accordance with the Contract

Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work;

(B) Expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the

Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; and

(C) Reasonable expenses directly attributable to termination relating to commitments which had become firm prior to the termination.

C. Contractor May Stop Work or Terminate.

If, through no act or fault of Contractor, or its subcontractor or their agents or employees or any other person for whose acts they may be responsible, the Work is suspended for a period of more than ninety (90) days by City or under an order of court or other public authority, or Superintendent fails to act on any application for payment within forty-five (45) days after it is submitted, or City fails for forty-five (45) days to pay Contractor any sum after the payment has been finally determined to be due, then Contractor may, upon ten

(10) days written notice to City and Superintendent and an opportunity to cure, terminate the Contract and recover from City payment for all Work executed to the date of termination performed in accordance with the Contract Documents and any expense sustained plus reasonable termination expenses. In addition and in lieu of terminating the Contract, if

Superintendent has failed to act on an application for payment or City has failed to make any payment as aforesaid, Contractor may upon ten (10) days' written notice to City and

Superintendent and an opportunity to cure, stop the Work until payment of all amounts then due. With the exceptions provided in this section, these provisions shall not relieve

Contractor of any obligations. Contractor shall carry on the Work in accordance with the progress schedule and without delay during disputes with the City.

D. City May Suspend Work.

1. Without invalidating the Contract Documents, and without notice to any surety, City may, at any time, order Contractor in writing to stop, delay or interrupt Work for such a period of time as City may deem appropriate. Upon receipt of that order, Contractor shall immediately proceed in accordance with any specific provisions or instructions, protect and maintain the Work, and make reasonable and diligent efforts to mitigate costs associated with the suspension order.

2. If any suspension of Work under this subsection causes an increase or decrease in Contractor’s time required to perform or complete any part of the Work, City shall make a change in Contract Time; except that no change in Contract Time will be made for any suspension of Work to the extent that performance would have been suspended anyhow by causes not meeting the criteria for change orders, or for which an adjustment is provided or excluded under any other provision of the

Contract Documents.

3. The parties further recognize that the safety of the public is of paramount concern.

Therefore, the parties agree that any breach of the Contract Documents by

Contractor related to the life, safety or health of the public shall be considered a material breach of the Contract Documents. Upon a material breach of the

Contract Documents related to life safety, as determined by the Superintendent, the Superintendent shall have the right to issue a stop work order suspending the

Work or any specific portion of the Work until the conditions are corrected. If the life safety conditions giving rise to the stop work order are not corrected by the

Contractor within a reasonable time, as determined by the Superintendent, then the material breach shall entitle City to terminate Contractor’s performance of work under this Contract for cause. The recognition of breaches of the provisions of the

Contract Documents related to life safety, as material breaches shall not be construed as a limitation on other remedies for breaches or material breaches of the Contract Documents. Contractor shall not be entitled for an extension of the

Contract Time for a suspension of the Work pursuant to this Article VIII, paragraph

D 3.

ARTICLE IX – CONTRACTOR’S REPRESENTATIONS/OBLIGATIONS

In order to induce City to enter into this Contract, Contractor makes and/or agrees to the following representations and terms:

1. Contractor has familiarized himself with the nature and extent of the Contract

Documents, Work, locality, weather, and with all local conditions and federal, state and local laws, utility locations, ordinances, rules, policies and regulations that in any manner may affect cost, progress or performance of the Work. Contractor by its study excludes and releases the City from any implied warranties including but not limited to the "Spearin Doctrine", that the Plans and Specifications are adequate to perform the

Work.

2. Contractor has made or caused to be made examinations, investigations and tests and studies as he deems necessary for the performance of the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the

Contract Documents; and no additional examinations, investigations, tests, reports or similar data are or will be required by Contractor for such purposes.

3. Contractor has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the Contract

Documents.

4. Contractor has given Superintendent written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by Superintendent is acceptable to Contractor.

5. Contractor declares and agrees that the approval or acceptance of any part of the

Work or material by the City, Superintendent or any agent relating to compliance with the Contract Documents shall not operate as a waiver by the City of strict compliance with the terms and conditions of the Contract Documents.

6. Contractor acknowledges that the performance of the Work under the Contract

Documents fulfills a City, and public purpose. To that end, Contractor agrees to investigate and respond to citizen complaints related to alleged damage caused by

Contractor’s performance of the Work within five (5) working days of receipt of the complaint from a citizen, Superintendent, or the City, unless the Superintendent grants

Contractor additional time to respond. When a complaint is brought to the Contractor by a citizen (either through the City, Superintendent, or directly from a citizen), the

Contractor shall provide a response to the citizen (and provide the City and

Superintendent with a copy of such response) that identifies the citizen, citizen’s street address and provides specific responses and actions taken or proposed to be taken by the Contractor to address the complaining citizen’s complaint. If the Contractor fails to respond to a citizen complaint within five (5) working days, then the City may withhold subsequent progress payments until the complaint is addressed, as determined by the

Superintendent in his reasonable discretion.

7. Contractor shall be responsible for the satisfactory and complete execution of the Work described in the Contract Documents. The Contractor represents that it has the experience, financial capability and necessary personnel, equipment and material at its disposal to complete the Work in a good workmanlike manner in accordance with the

Contract Documents without any defects in materials or workmanship.

8. The Contractor warrants and represents that all of its employees are treated equally without regard to race, color, disability, marital status, religion, sex, age or national origin and that during the performance of the Work, Contractor shall not engage in illegal discrimination.

9. Signature of this Contract by the Contractor shall act as the execution of a truth-in-negotiation certificate certifying that the wage rates and costs used to determine the compensation provided for in this Contract are accurate, complete and current as of the date of the Contract. The said rates and costs shall be adjusted to exclude any significant sums should the City determine that the rates and costs were increased due to inaccurate, incomplete or non-current wage rates or due to inaccurate representations of fees paid to outside contractors. The City shall exercise its rights under this “Certificate” within one year following final payment.

10. The Contractor agrees that it will not engage in any action that would create a conflict of interest in the performance of its obligations pursuant to this Contract with the City or which would violate or cause others to violate the provisions of Part III, Chapter 112, Florida Statutes, relating to ethics in government. The Contractor hereby certifies that no official, officer, agent or employee of the City has any material interest (as defined in Section 112.312 (15), Florida Statutes, as over five percent (5%) either directly or indirectly, in the business of the Contractor to be conducted here, and that no such person shall have any such interest at any time during the term of this Contract.

11. Until acceptance of the Work by the City it shall be under the charge and custody of the Contractor and Contractor shall take every necessary precaution against injury or damage to the Work by the action of the elements or from any other cause whatsoever, arising either from the execution or from the non-execution of the Work.

The Contractor shall rebuild, repair, restore and make good, without additional compensation, all injury or damage to any portion of the Work occasioned by any of the above causes before its completion and acceptance, except that in case of catastrophic damage the City may, at its discretion, reimburse the Contractor for the repair of such damage due to unforeseeable causes beyond the control of and without the fault or negligence of the Contractor including, but not restricted to, Acts of God, of the public enemy or of governmental authorities.

ARTICLE X – NO LIENS

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

Notice of Commencement is executed and recorded for the Project, the Project’s Payment

Bond shall be attached to the Notice of Commencement and the following statement shall be added to the Notice of Commencement:

“This is a public construction project of the City of DeBary, a Florida municipality and as such the public property and the project involved is not subject to construction liens pursuant to Chapter 713, Florida

Statutes or any other liens. No liens shall be filed against the Project or any property of the City of DeBary. All subcontractors, materialmen, laborers, vendors and all others claiming by and through Contractor shall look to the payment bond posted in accordance with Section

255.05, Florida Statutes and attached hereto for payment, if not properly paid.”

ARTICLE XI – INDEMNITY AND INSURANCE

1. The Contractor shall indemnify and hold harmless the City and the City’s officials, officers, agents, employees and Superintendent from and against all claims, suits, actions, penalties, costs, losses, liabilities, damages and/or causes of action which may arise from or are caused by, in part or in whole, the actions, omissions, negligence, recklessness, or intentional wrongdoing of the Contractor and Contractor’s subcontractors, agents, employees or anyone utilized by Contractor in the performance of Work (or any combination thereof) as a result of or during the performance of Work or services under this Contract, and from and against all costs, attorney's fees (utilizing attorneys selected by or agreeable to the City), expenses and liabilities incurred in or by reason of the defense of any such claim, penalties, suit or action (including pre-suit and trial and appellate levels), and the investigation thereof. The monetary limitation on this indemnity clause and each indemnity by Contractor of the City under this

Contract is TWO MILLION FIVE-HUNDRED THOUSAND DOLLARS ($2,500,000.00) per occurrence, which the parties acknowledge and agree is a commercially reasonable amount for this Contract. In any and all claims against the indemnified parties by any employee of Contractor, any subcontractor, any supplier, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation of this subsection shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable, by or for Contractor, or any subcontractor, or any supplier, or other person under Workers' Compensation acts, disability benefit acts, or other employee acts.

In the event that City incurs costs contrary to this indemnification provision or any other indemnification provision in the Contract Documents, City shall be entitled to deduct such costs from the Contract Price by issuing a Change Order.

2. Without limiting any of the other obligations or liabilities of the Contractor, the

Contractor shall, at the Contractor’s sole expense, procure, maintain and keep in force amounts and types of insurance conforming to the minimum requirements set forth in the Bid Documents and Contract Documents. Except as otherwise specified in the

Contract Documents, the insurance shall become effective prior to the commencement of Work by the Contractor and shall be maintained in force until at least three (3) months after Final Completion of the Work or such other time as required by the

Contract Documents. Contractor shall provide all policies and certificates evidencing such insurance coverage for City's review and approval.

3. Nothing contained in this Contract or incorporated documents shall be considered or deemed a waiver of the City’s sovereign immunity protections, including but not limited to those set forth in Section 768.28, Florida Statutes

ARTICLE XII – PUBLIC RECORDS

The Contractor acknowledges and agrees that the City is a public entity that is subject to

Florida’s public records laws and as such, documents in Contractor’s control and possession (including subcontractors) relating to the Project and Work performed for the

City are subject to inspection pursuant to Chapter 119, Florida Statutes, unless otherwise exempt, excepted or a record does not meet the definition of a public record by applicable law. It is hereby specifically agreed that any record, document, computerized information and program, e-mail, electronic file, memo, drawing, audio or video tape, photograph, or other writing of the Contractor and its employees, sub-contractors and associates related, directly or indirectly, to this Contract, are likely considered to be Public Records whether in the possession or control of the City or the Contractor (including subcontractors), unless an exemption or exception under applicable law applies. Such records, documents, computerized information and programs, e-mails, electronic files, memos, drawings, audio or video tapes, photographs, or other writings of the Contractor are subject to the provisions of Chapter 119, Florida Statutes and applicable retention schedules, and may not be destroyed without the specific written approval of the City’s City Clerk. While in the possession and control of the Contractor, all public records shall be secured, maintained, preserved, and retained in the manner specified pursuant to the Public Records Law. Upon request by the City, the Contractor shall, within three (3) business days, supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Contract shall, at any and all reasonable times during the normal working hours of the Contractor, be open and freely exhibited to the City for the purpose of examination and/or audit. Since the City’s documents are of utmost importance to the conduct of City business and because of the legal obligations imposed upon the City and Contractor by the Public Records Law, Contractor agrees that it shall, under no circumstances, withhold possession of any public records, including originals, copies or electronic images thereof when such are requested by the City, regardless of any contractual or other dispute that may arise between Contractor and the City. Upon termination of this Contract, termination of Contractor’s work under this Contract, or

Acceptance of the Work by the City, whichever occurs first, the Contractor shall, at

Contractor’s expense, turnover the original or copy of all public records in Contractor’s

(including sub-contractors) control and possession to the City, except as otherwise directed by the City. Contractor hereby indemnifies the City concerning any claims, damages, suits, judgments, losses, attorneys’ fee and litigation cost claims, expenses and penalties arising out of or concerning Contractor’s and its subcontractors’ violation of Public Records Law or this paragraph, including for the City’s attorneys’ fees and costs. This paragraph shall survive expiration and termination of this Contract.

ARTICLE XIII – OWNERSHIP OF DOCUMENTS

The Contractor shall deliver to the City for approval and acceptance, and before eligible for final payment of any amounts due, all Work Product (whether or not completed), as herein defined, developed, prepared or purchased for the Work or pursuant to this Contract. All written and oral information not in the public domain or not previously known, and all information and data obtained, developed, or supplied by the City will be kept confidential by the Contractor, at Contractor’s expense and will not be disclosed to any other party, directly or indirectly, without the City 's prior written consent unless required by a lawful order…