The City Of DeBary

CONSTRUCTION CONTRACT

FOR

Turf Renovation Project

This project is funded in part with Volusia County ECHO funds.

Located at: Rob Sullivan Community Park, 200 West Highbanks Road

Project No.04-15

City Of DeBary

Parks and Recreation Department

16 Colomba Road

DeBary, Florida 32713 www.debary.org

Table of Content

Section1. Work………………………………………………………………… Page 1

Section 2. Contract Administrator …………………………………………... Page 2

Section 3. Contract Time…………………………………………………….. Page 2

Section 4. Contract Price………………………………………………….. Page 3

Section 5. Payment Procedures……………………………………………... Page 5

Section 6. Retainage…………………………………………………………. Page 6

Section 7. CONTRACTOR’s Representations/Obligations………………. Page 7

Section 8. Insurance.................................................................................. Page 13

Section 9. Contract Documents…………………………………………… Page 16

Section 10. Liquidated Damages/No Damages for Delay Against CITY… Page 17

Section 11. Miscellaneous…………………………………………………….. Page 19

Section 12. Survival …………………………………………………………….. Page 24

Section 13. Availability of Funds…………………………………………….. Page 24

Section 14. Compliance with Laws………………………………………….. Page 25

Section 15. Additional Work…………………………………………………. Page 25

Section 16. Indemnification………………………………………………….. Page 25

Section 17. Disclosure of Ownership of Documents………………………. Page 26

Section 18. Public Records Laws……………………………………………. Page 28

Section 19. Project Bonds…………………………………………………… Page 29

Section 20. Successors and Assigns………………………………………. Page 30

Section 21. Notices…………………………………………………………… Page 31

Section 22. Conflict of Interest………………………………………………. Page 31

Section 23. Material Breaches of Agreement……………………………… Page 32

Section 24. Attorney Fees………………………………………………….. Page 32

Section 25. Venue…………………………………………………………… Page 33

Section 26. Truth-in-Negotiation Certificate………………………………… Page 33

Section 27. Severability……………………………………………………… Page 34

GENERAL CONDITIONS

SECTION 1 - DEFINITIONS/INTERPRETATIONS

1.1 Definitions……………………………………………………………. Page 36

1.2 Interpretations……………………………………………………..... Page 41

SECTION 2 - PRELIMINARY MATTERS

2.1 Copies of Documents……………………………………………. ….. Page 41

2.2 Commencement of the Contract Time; Notice to Proceed….. ….. Page 42

2.3 Before Starting Construction………………………………………. Page 42

2.4 Pre-construction Conference……………………………………… Page 43

SECTION 3 - CONTRACT DOCUMENTS; INTENT AND REUSE.

3.1 Applicable Law; Intent………………………………………………… Page 43

3.2 Priority of the Contract Documents………………………………….. Page 43

3.3 Use of Forms Provided……………………………………………….. Page 44

3.4 Re-use of Documents………………………………………………… Page 44

SECTIONS 4 [INTENTIONALLY DELETED]

SECTIONS 5 [INTENTIONALLY DELETED]

SECTION 6 – CONTRACTOR’S RESPONSIBILITIES

6.1 Supervision and Superintendence…………………………………. Page 45

6.2 Personnel and Working Hours……………………………………... Page 45

6.3 N/A…………………………………………………………………………….. Page 46

6.4 CONTRACTOR’S Responsibilities for Furnishing……………… Page 46

6.5 Items of Material or Equipment……………………………………. Page 46

6.6 Wood Products………………………………………………………. Page 47

6.7 Wood Products………………………………………………………. Page 47

6.8 Concerning Subcontractors, Suppliers and Others…………….. Page 48

6.9 Patent Fees and Royalties………………………………………… Page 50

6.10 Permits……………………………………………………………….. Page 50

6.11 Laws and Regulations……………………………………………… Page 50

6.12 Use of Premises……………………………………………………. Page 51

6.14 Safety and Protection……………………………………………… Page 52

6.15 Emergencies………………………………………………………… Page 53

6.16 N/A…………………………………………………………………… Page 53

6.17 Continuing the Work………………………………………………… Page 54

6.18 N/A…………………………………………………………………….. Page 54

6.19 Progress of the Work……………………………………………….. Page 54

6.20 Project Meetings……………………………………………………. Page 54

6.21 Independent Contractor……………………………………………. Page 55

6.22 Inspection and Audit……………………………………………. … Page 55

6.23 Truth-In-Negotiation…………………………………………….. … Page 55

6.24 Correspondence…………………………………………………….. Page 56

6.25 Protection of Historical Properties…………………………………. Page 56

6.26 Responsibility for Connecting to Existing Services and Utilities.. Page 56

6.27 Additional Provisions………………………………………………… Page 56

6.28 Inspection and Tests at Source of Supply……………………….. Page 57

6.29 False Claims…………………………………………………………. Page 57

6.30 Storage of Materials………………………………………………… Page 57

6.31 Defective Materials…………………………………………………. Page 58

6.32 Preservation of Property…………………………………………… Page 58

6.33 Utilities………………………………………………………………… Page 59

6.34 CONTRACTOR’S Responsibility for Work………………………. Page 61

6.35 Interference with Traffic……………………………………………. Page 61

6.36 Coordination with other Contractors……………………………… Page 62

6.37 Drainage…………………………………………………………….. Page 62

6.38 Fire Hydrants…………………………………………………….. … Page 62

6.39 Protection of Structures……………………………………………. Page 62

6.40 Fencing………………………………………………………………. Page 62

6.41 Hazardous or Toxic Waste………………………………………… Page 62

6.42 N/A……………………………………………………………………. Page 62

6.43 Computation of Contract Time……………………………………. Page 62

6.44 Rights In and Use of Materials Found On the Site of the Work. Page 64

6.45 Final Cleaning Up of Right-of-Way………………………………. Page 64

6.46 Maintenance of Traffic…………………………………………….. Page 64

6.47 Pollution, Vibration and Noise Controls………………………….. Page 64

6.48 Dust and Waste Control…………………………………………… Page 65

6.49 CONTRACTOR shall provide CITY with still photographs of the existing conditions prior to construction………………………… Page 65

SECTION 7 [INTENTIONALLY DELETED]

SECTION 8 [INTENTIONALLY DELETED]

SECTION 9 - CONTRACT ADMINISTRATOR

STATUS DURING CONSTRUCTION

9.1 CITY'S Representative…………………………………………… Page 66

9.2 Visits to Site………………………………………………………… Page 66

9.3 Project Representation…………………………………………… Page 66

9.4 Duties, Responsibilities and Limitations of Authority of

Project Manager…………………………………………………… Page 66

9.5 Duties, Responsibilities and Limitations of Authority of

Field Representative(s)…………………………………………… Page 68

9.6 Clarifications and Interpretations………………………………… Page 69

9.7 Authorized Variations in Work…………………………………… Page 70

9.8 Rejecting Defective Work………………………………………… Page 70

9.9 Determinations of Quantities and Classifications of

Unit Price Work…………………………………………………….. Page 70

9.10 Decisions on Disputes……………………………………………. Page 70

9.11 Limitations on CONTRACT ADMINISTRATOR's and

ENGINEER OF RECORD's Responsibilities…………………… Page 70

SECTION 10 - CHANGES IN THE WORK

10.1 Changes in the Work………………………………………………… Page 71

10.2 Change Orders and Change Requests……………………………. Page 72

10.2.5 Deductive Change Orders…………………………………. Page 72

10.3 Waivers……………………………………………………………….. Page 73

SECTION 11. - CHANGES IN CONTRACT PRICE OR CONTRACT TIME

11.1 Changes in Contract Price or Contract Time…………………….. Page 73

11.2 Change Requests or Contract Claims Substantiating

Adjustments…………………………………………………………. Page 73

11.3 Methods for Determining Adjustments in Contract Price………. Page 74

11.4 Determining Cost Adjustments to Changes in Contract Price…. Page 75

11.5 Costs Covered by CONTRACTOR’s Allowances……………….. Page 77

11.6 CONTRACTOR Allowances for Changes to the Work…………. Page 78

11.7 Unit Price Work………………………………………………………. Page 79

11.8 Cash Allowances……………………………………………………. Page 80

11.9 Criteria for Determining Adjustments in Contract Time………… Page 80

11.10 Waivers……………………………………………………………… Page 81

SECTION 12 - SCHEDULES

12.1 Progress and Submittal Schedules……………………………….. Page 81

SECTION 13 - WARRANTY AND GUARANTEE, TESTS AND

INSPECTIONS, CORRECTION, REMOVAL

OR ACCEPTANCE OF DEFECTIVE WORK

13.1 Warranty and Guarantee…………………………………………….. Page 84

13.2 Access to Work………………………………………………………… Page 84

13.3 Tests and Inspections….................................................................... Page 84

13.4 Uncovering Work…........................................................................... Page 85

13.5 Correction or Removal of Defective Work…………………………… Page 85

13.6 Acceptance of Defective Work……………………………………….. Page 86

13.7 CITY May Correct Defective Work………………………………….. Page 86

13.8 Warranty Period……………………………………………………….. Page 86

13.9 Extended Warranties and Guarantees………………………….. Page 87

13.10 Special Maintenance Requirements…………………………….. Page 87

13.11 Extended Warranty Period Due to Defective Work………….. …… Page 87

SECTION 14 - PAYMENTS TO CONTRACTOR AND COMPLETION

14.1 Schedules……………………………………………………………. Page 88

14.2 Application for Payment……………………………………………… Page 88

14.3 Stored Materials…………………………………………………. ....... Page 88

14.4 CONTRACTOR’S Warranty of Title…………………………… …… Page 89

14.5 Review and Payment………………………………………………. Page 89

14.6 Retainage…………………………………………………………… Page 90

14.7 Overpayment……………………………………………………. ....... Page 90

14.8 Final Application for Payment………………………………… ....... Page 90

14.9 Final Payment and Acceptance………………………………..... Page 91

14.10 Waiver of Claims…………………………………………………… Page 91

14.11 CITY's Obligations…………………………………………………. Page 92

14.12 Partial Utilization……………………………………………………. Page 92

14.13 Substantial Completion…………………………………………… Page 93

14.14 Final Inspection…………………………………………………….. Page 93

14.15 CONTRACTOR’S Continuing Obligation……………………... …… Page 93

14.16 Deleted Work…………………………………………………………. Page 94

14.17 Partial Payments…………………………………………………….. Page 94

SECTION 15 - SUSPENSION OF WORK AND TERMINATION

15.1 CITY May Stop the Work………………………………………………. Page 94

15.2 Suspension for Convenience………………………………………….. Page 94

15.3 Termination for Cause………………………………………………….. Page 95

15.4 Termination for Convenience…………………………………………. Page 96

15.5 CONTRACTOR May Stop Work or Terminate……………………… Page 97

SECTION 16 – [INTENTIONALLY DELETED]

SECTION 17 – MISCELLANEOUS

17.1 Computation of Time………………………………………………….. Page 97

17.2 Claims for Injury or Damage to Person or Property………………… Page 97

17.3 No Waiver of Rights, Duties…………………………………………... Page 98

17.4 Advertising……………………………………………………………… Page 98

SECTION 18 – [INTENTIONALLY DELETED]

SECTION 19 - CONTRACT CLAIMS RESOLUTION

19.1 Purpose………………………………………………………………. Page 98

19.2 Contract Claims Procedure………………………………………… Page 98

ROB SULLIVAN PARK LASER GRADING PROJECT

Specifications for Tolerances, Materials, and Scope of Work…………. Page 100

Construction Documents……………………………………………………. Page 102

THIS CONSTRUCTION CONTRACT (this “Agreement” or “Contract”) is dated as of the ___ day of ___________, 2015 by and between

__________________________________________, whose address is

________________________ (hereinafter called the "CONTRACTOR" or “Contractor”), and the City of DeBary, a Florida municipal corporation, whose address is 16 Colomba

Road, DeBary, Florida 32713 (hereinafter called the "CITY" or “City”). CITY and

CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows:

W I T N E SS E T H:

Section 1. Work

CONTRACTOR shall complete all Work as specified or indicated in the Contract.

The Work is generally described as follows:

See page 100

The totality of the Work and the Work site or premises is sometimes herein referred to as the Project. The Work to be performed by the CONTRACTOR is more specifically described in the final design plans prepared by The City attached hereto as Page # 100 and incorporated herein by this reference (the “Work”). The CONTRACTOR’s responsibility under this Contract is to fully and properly perform the Work and construction services as an independent contractor pursuant to the terms and conditions of this Contract.

CONTRACTOR shall provide all labor, materials, permits, supervision and equipment necessary to perform and complete the Work. CONTRACTOR further agrees that CITY staff shall not perform or participate in activities related to the site preparation or implementation of Work, including but not limited to the movement or relocation of personal items in order to facilitate such Work. CONTRACTOR agrees that such activities are the sole responsibility of CONTRACTOR or its subcontractor/designee.

Section 2. Contract Administrator

The Contract Administrator (also sometimes herein “CONTRACT

ADMINISTRATOR”) as named in the Contract Documents shall mean and refer The Parks

Superintendent which is appointed by the CITY. Without penalty, waiver, or causing a default by CITY, CITY hereby reserves the right, at any time during the performance of the

Work by the CONTRACTOR to elect not to utilize the Contract Administrator for one or more of the roles or duties of the Contract Administrator under the Contract Documents regarding review and approval of applications for payments, claims or change order request and to self perform (with the CITY’s own employees or other agents) the role of

Contract Administrator for any one or more of such duties or roles. CITY’s exercise of such right to self-perform the role of the Contract Administrator, or any portion thereof, shall not give CONTRACTOR a defense to any claim by CITY or claim by CONTRACTOR against the CITY or Contract Administrator.

Section 3. Contract Time

(a) Time is of the essence and all provisions regarding Contract Time are essential to the performance of this Agreement.

(b) The Work shall achieve Final Completion and ready for Final Payment in accordance with subsection 14.9 of the General Conditions on or prior to

________________________. The Contract Time is defined as that period of time between the execution of this Contract by the parties and _________________________.

(c) The parties acknowledge that the Contract Time provided in this Section includes consideration of adverse weather conditions common to Central Florida including the possibility of hurricanes and tropical storms. In the event of excessive, continuous rain due to a hurricane or tropical storm, the CONTRACTOR may petition the Contract

Administrator and CITY for an equitable Contract Time extension.

(d) The Contract Time provided in this Section includes ten (10) Days allocated specifically to CONTRACTOR’s responsibility for utility coordination or relocation of utilities at or adjacent to the Project site. The ten (10) days shall be depicted by CONTRACTOR as float time not impacting controlling work items on the CONTRACTOR’s critical path scheduling. No Contract Time extensions shall be considered related to utility coordination matters including, but not limited to, utility relocations and conflicts unless the utility related time impacts reasonably exceed ten (10) Days impact on controlling items of work in accordance with the Project Schedule.

Section 4. Contract Price

(a) CITY shall pay CONTRACTOR for performance of the Work in accordance with the Contract Documents on the basis of the original Contract Price. The

CONTRACTOR’s total compensation is _______________DOLLARS (“Contract Price”) subject only to increases or decreases made in strict conformance with the Contract

Documents.

(b) CONTRACTOR agrees to accept the Contract Price as full compensation for doing all Work, furnishing all Materials, and performing all Work embraced in the Contract

Documents; for all loss or damage arising out of performance of the Work and from the action of the elements or from any unforeseen or unknown difficulties or obstructions which may arise or be encountered in the prosecution of the Work until the Final Acceptance; and for all risks of every description connected with the Work.

(c) CONTRACTOR acknowledges that CONTRACTOR studied, considered, and included in CONTRACTOR’s original Contract Price all costs of any nature relating to: (1) performance of the Work under Central Florida weather conditions; (2) applicable law, licensing, and permitting requirements; (3) the Project site conditions, including but not limited to, subsurface site conditions, potential differing physical conditions, Underground

Facilities, utility related conditions of the work and site; (4) the terms and conditions of the

Contract Documents, including, but not limited to, the indemnification and hold harmless provisions, warranties, payment bond, performance bond, liquidated damages clauses and no damages for delay against CITY clauses.

(d) CONTRACTOR acknowledges that performance of the Work will involve significant Work adjacent to, above, and in close proximity to Underground Facilities including utilities which will require the support of active utilities, as well as, the scheduling and sequencing of utility installations, and relocations (temporary and permanent) by

CONTRACTOR.

(e) In addition to the acknowledgments previously made, the CONTRACTOR acknowledges that the CONTRACTOR’s original Contract Price specifically considered and relied upon CONTRACTOR’s own study of Underground Facilities, utilities in their present, relocated (temporary and permanent) and proposed locations, and known and unknown conflicts relating to utilities and Underground Facilities.

(f) CONTRACTOR acknowledges that CONTRACTOR’s original Contract Price considered and included all of CONTRACTOR’s costs relating to CONTRACTOR’s responsibilities to coordinate and sequence the Work of the CONTRACTOR with the work of the CITY with its own employees and subcontractors, the work of other utility contractors and the work of others at the Project site.

(g) CONTRACTOR shall not be entitled to an increase in the Contract Price or an extension of the Contract Time with respect to any work performed that is not required by the Contract Documents or authorized by a written change order approved by the CITY in accordance with the General Conditions.

Section 5. Payment Procedures

Application for Payment. CONTRACTOR shall submit Applications for Payment in accordance with Section 14 of the General Conditions. Applications for Payment will be processed by Contract Administrator as provided in the General Conditions.

(a) Progress Payments. CITY shall make progress payments on the basis of

CONTRACTOR’s Applications for Payment as recommended by the Contract

Administrator, in accordance with Section 14 of the General Conditions. Applications For

Payment shall be processed in accordance with the Local Government Prompt Payment

Act as set forth in Part VII, Chapter 218, and Florida Statutes. The Contract Administrator is the CITY’s agent that must approve Applications for Payment request prior to

Applications for Payment being submitted to the CITY for payment in accordance with

Local Government Prompt Payment Act.

(b) Change Order Accounting. All change order work shall be performed based on written direction only. Work performed as a result of a written change order must be processed separately from the mainline progress payment(s). A separate Application for

Payment request must be submitted for processing and payment of change order work.

(c) Final Payment. Upon Final Completion and acceptance of the Work in accordance with subsections 14.8 and 14.9 of the General Conditions, CITY shall pay the remainder of the Contract Price as provided in subsection 14.9.1

Section 6. Retainage

(a) Retainage under the Contract Documents is held as collateral security to secure completion of the Work. Section 14.6 of the General Conditions provides for a minimum ten percent (10%) retainage amount held back from each Progress Payment.

(b) In the event that CONTRACTOR fails to physically mobilize to the Work site or fails to maintain progress of the Work in accordance with the Progress Schedules as required by Section 6.19 of the General Conditions, then the CITY may withhold additional retainage to secure completion of the Work in an amount equal to the product of the number of Days after the 31st Day following the Date of Commencement of Contract Time and the liquidated damage amount for Substantial Completion set forth in Section 9 of this

Agreement. The additional retainage shall be withheld from the initial and each subsequent

Progress Payment. The additional retainage held under this subsection shall be released to

CONTRACTOR in the next Progress Payment following the CONTRACT

ADMINISTRATOR's approval of a supplementary Progress Schedule when demonstration that the requisite progress has been regained and will be maintained as required by

Section 6.19.2 of the General Conditions.

(c) CITY may withhold additional retainage in anticipation of estimated liquidated damages calculated in accordance with Section 9 of this Agreement if CONTRACTOR is behind schedule and it is anticipated by CITY that the Work will not be completed within the

Contract Time. The additional retainage, under this subsection, may at the CITY'S discretion be withheld from subsequent Progress Payments. Any additional retainage held under this subsection shall be released to CONTRACTOR in the next Progress Payment following the Contract Administrator’s approval of a supplemental Progress Schedule when demonstration that the requisite progress has been regained, the Contract Time will be met and progress will be maintained as required by Section 6.19.2 of the General Conditions.

Section 7. CONTRACTOR’s Representations/Obligations

In order to induce CITY to enter into this Agreement, CONTRACTOR makes the following representations:

(a) 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

"Spearing Doctrine", that the Plans and Specifications are adequate to perform the Work.

(b) 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.

(c) CONTRACTOR has correlated the results of all such observations, examinations, investigations, tests, reports and data with the terms and conditions of the

Contract Documents.

(d) CONTRACTOR has given Contract Administrator written notice of all conflicts, errors or discrepancies that it has discovered in the Contract Documents and the written resolution thereof by Contract Administrator is acceptable to CONTRACTOR.

(e) CONTRACTOR declares and agrees that the approval or acceptance of any part of the Work or Material by the CITY, Contract Administrator 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.

(f) Two Year Post-Acceptance Warranty. CONTRACTOR declares and agrees that the CITY shall have the right to require CONTRACTOR to and upon demand the

CONTRACTOR shall, at CONTRACTOR’s expense, repair, correct, replace, restore and make all things comply with the Contract Documents, including all Work and Materials, which within a period of (2) two years from Acceptance of the Work by the CITY such are found to be Defective or fail in any way to comply with the Contract Documents.

CONTRACTOR shall commence such warranty work within a reasonable time after a request by the CITY, which reasonable time shall be no longer than thirty (30) days from a request by the CITY unless otherwise agreed to by the CITY, and the work shall be diligently performed, to completion. Any repair, correction, replacement or restoration of

Work performed under warranty shall comply with the requirements of the Contract

Documents and shall be verified by the performance of testing, at CONTRACTOR’s expense, as CITY may require. Should CONTRACTOR fail to promptly make the necessary redesign, corrections, repair, replacement, and tests, CITY may perform or cause to be performed the same, or any portion thereof, and CONTRACTOR shall be liable to the CITY for the expense of such. CONTRACTOR acknowledges that the above (2) two year repair, correction replacement and restoration period is separate from and in addition to CONTRACTOR’s warranty that the Work has been completed in compliance with the

Contract Documents. The above two (2) year repair, replace and restoration period is not a limitation upon CONTRACTOR’S other obligations under the Contract Documents, other warranties, liabilities pursuant to Section 95.11, Florida Statutes. This provision relates only to the specific obligation of the CONTRACTOR to repair, correct, replace and restore the

Work, and has no relationship to the time within which the obligation to comply with the

Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the CONTRACTOR’s liability with respect to the CONTRACTOR’s obligations other than specifically to correct the Work.

(g) CONTRACTOR’s resident Superintendent at the Work site shall be:

____________ and this Superintendent only shall be utilized by the CONTRACTOR unless otherwise approved by the Contract Administrator pursuant to the procedure indicated in the General Conditions.

(h) CONTRACTOR agrees that CONTRACTOR shall be solely responsible for payment of all fines and penalties of any nature assessed to the CONTRACTOR or CITY or both by any governmental entity, district, authority or other jurisdictional entity relating to all permits required for or regulation of theperformance of the Work.

(i) CONTRACTOR acknowledges that the performance of the Work under the

Contract Documents fulfills a CITY, and public purpose. To that end, CONTRACTOR agrees to 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 citizens, CONTRACT ADMINISTRATOR, or the CITY. The CONTRACTOR shall utilize the attached "Report of Unsatisfactory Materials and/or Service" form to respond separately to each complaint. When a complaint is brought to the CONTRACTOR by a citizen, the CONTRACTOR shall identify the citizen and the citizen’s street address in the "Statement of Problem". Responses and action taken by the CONTRACTOR shall specifically identify the problem and specific actions taken by CONTRACTOR to satisfy the complaining party. Generic statements such as "addressed the problem" are unacceptable.

If the CONTRACTOR fails to respond within five (5) working days, then the CITY may, but is not required, to take corrective action and deduct the actual costs of corrective action from the Contract Price and withhold sums from subsequent Progress Payments or the retainage.

(j) CONTRACTOR acknowledges that the CITY owned property obtained for performance of the Work within the Project limits may include temporary construction easements. In the event that the CONTRACTOR fails to perform the Work within the

Contract Time, then CONTRACTOR shall be solely responsible for payment of all costs for additional or extended temporary construction easements. CONTRACTOR authorizes the

CITY to deduct the actual costs of additional or extended temporary construction easements from the Contract Price and withhold sums from subsequent Progress

Payments or the retainage.

(k) CONTRACTOR shall be responsible for the satisfactory and complete execution of the Work described in the Contract Documents. CONTRACTOR represents that it has carefully examined all drawings and specifications for the Work to be performed, that it has made investigations essential to the construction methods for the Project, and 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.

(l) Any person or affiliate, as defined in Section 287.133 of the Florida Statutes, shall not be allowed to contract with the CITY, nor be allowed to enter into a subcontract for work on this Contract, if such a person or affiliate has been convicted of a public entity crime within three (3) years of the date this Contract was advertised for bids, or if such person or affiliate was listed on the State's convicted vendor list within three (3) years of the date this Contract was advertised, whichever time period is greater. A public entity crime means a violation of any state or federal law with respect to and directly related to the transaction of business with any public entity or agency (federal, state or local), involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, forgery, falsification of records, receiving stolen property or material misrepresentation. Any Contract with the

CITY obtained in violation of this provision shall be subject to immediate termination for cause without liability or penalty to the CITY. A sub-consultant who obtains a subcontract in violation of this subsection shall be removed from the Project and promptly replaced by a sub-consultant acceptable to the CITY. By signing this Contract, CONTRACTOR represents and warrants that it is not violating or in violation of Section 287.133, Florida

Statutes, or Section 287.134, Florida Statutes.

(m) CONTRACTOR acknowledges and agrees that it is the sole party responsible for site safety and agrees to indemnify, defend and hold harmless the CITY and CONTRACT

ADMINISTRATOR, including their respective officers, agents and employees, from any claim, damage or liability for injury or loss arising from CITY’s or CONTRACT

ADMINISTRATOR'S (including their respective officers, agents and employees) alleged failure to exercise site safety responsibility.

(n) Background Checks. CONTRACTOR understands that certain areas of the

CITY’s premises and property may not be available to CONTRACTOR’s personnel without background checks. As a condition of this Contract, and as may otherwise be required by law, CONTRACTOR and its subcontractors must conduct background checks, according to the Level 1 screening standards of Section 435.03, Florida Statutes, of all officers, employees, or agents who perform or will perform any work under this Contract, and

CONTRACTOR certifies and warrants that such background checks have been or will be performed before any such officer, employee, or agent (including of subcontractors) is allowed to perform any work or service pertaining to this Contract or related documents.

Failure to satisfactorily pass a background check shall render any officer, employee, or agent of CONTRACTOR or its subcontractors ineligible to perform work under this Contract or related documents.

(o) E-verify. In light of the recommendations promulgated by the Governor of Florida in Executive Order 11-116, the parties acknowledge and agree to the following. Federal law requires employers to employ only individuals eligible to work in the United States. The

U.S. Department of Homeland Security’s E-Verify system allows employers to quickly verify employee eligibility in an efficient and cost-effective manner. CONTRACTOR shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the CONTRACTOR on or after the effective date of this Contract and thereafter during the remaining term of the Contract, including sub-contractors. Any sub-contract entered into by CONTRACTOR with any sub-contractor performing work under this Contract shall include the following language: “The Sub-

Contractor shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the CONTRACTOR on or after the effective date of this Contract and thereafter during the remaining term of the

Contract.” Employment by the CONTRACTOR of an employee not eligible to work in the

United States in violation of applicable law shall constitute a material breach of this

Contract, and CONTRACTOR agrees to indemnify and hold harmless the CITY, its elected officials, officers, agents, and employees, against any loss associated with the violation of any such law by CONTRACTOR or any of its subcontractors, including but not limited to any applicable fine or the loss of grant funds.

Section 8. Insurance. 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 listed below:

Minimum Limits

Workers’ Compensation Insurance Statutory

Employers Liability $500,000/$500,000/$500,000

Commercial General Liability Insurance

a. Each Occurrence $1,000,000

b. Rented Premises $ 100,000

c. Medical Expense (any one person) $ 5,000

d. Personal & Advertising Injury $1,000,000

e. General Aggregate $2,000,000

f. Products/Completed Operations Aggregate $2,000,000

Automobile Liability Insurance

a. Combined Single Limit for all vehicles $1,000,000 Owned, Hired, and Non-Owned

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 Final Completion and Acceptance of the Work or such other time as required by the Contract Documents. CONTRACTOR shall present to the CITY certificates of insurance evidencing compliance with this Section prior to commencement of the Work.

i. Umbrella/Excess Liability. The CITY may require Umbrella or Excess

Liability policies covering $1,000,000 over the $1,000,000 primary policy such as General Liability and Auto. Evidence of such coverage must clearly demonstrate the underlying coverage’s/policies that are included. This determination will be dictated by project.

ii. Workers’ Compensation Insurance. CONTRACTOR shall secure and maintain for the term of this Contract Workers’ Compensation insurance to cover the statutory limits and requirements of the

Workers’ Compensation laws of Florida 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 amounts shown above. CONTRACTOR and its Subcontractors, or any associated or subsidiary company doing

Work on City of DeBary property or under this Contract must provide proof of their own Workers’ Compensation coverage, without exclusion of any class of employee. Further, if the CONTRACTOR's

Subcontractors fail to obtain Workers’ Compensation insurance and a claim is made against the City by the uncovered employee of said

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

iii. Commercial General Liability Insurance. 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. 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 as provided in this Contract. The commercial general liability policy shall be endorsed to include the

CITY as an additional named insured. The commercial general liability policy shall provide exclusive coverage for the location or project site where the Work is 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 Risk

Manager.

iv. Automobile Liability. CONTRACTOR shall secure and maintain for the term of this Contract, motor vehicle coverage (including “Any Auto”

Symbol 1 coverage), in no less than the amounts shown above protecting itself, its employees, agents or lessees, or subsidiaries and their employees or agents against claims arising from the ownership, maintenance, or use of a motor vehicle.

v. Professional Liability Insurance (or Errors & Omissions). In the event

CONTRACTOR’s Work under this Contract includes the services of a professional (e.g. engineer, architect, etc.); such professional shall carry and maintain a professional liability insurance (Errors &

Omission) policy with minimum limits of liability of $1,000,000 per occurrence.

Section 9. Contract Documents

The Contract Documents which comprise the entire agreement between CITY and

CONTRACTOR are made a part hereof and consist of the following:

(a) This Contract.

(b) Payment and Performance Bonds.

(c) CONTRACTOR’s Insurance Requirements.

(d) General Conditions.

(e) Final Design Plans attached as Exhibit A.

(f) Notice To Proceed.

(g) Change Orders.

(h) Certificate of Substantial Completion.

(i) Certificate of Final Inspection.

(j) Certificate of Final Completion

(k) CONTRACTOR’S Release.

(l) Supplemental Agreements.

(m)CONTRACTOR’S Waiver of Lien (Partial)

(n) Subcontractor/Vendor's Waiver of Lien (Partial)

(o) CONTRACTOR’S Waiver of Lien (Final and Complete)

(p) Subcontractor/Vendor's Waiver of Lien (Final and Complete)

(q) Consent of Surety To Final Payment

There are no Contract Documents other than those listed above in this Section 8. The

Contract Documents may only be altered, amended or repealed by a modification as provided in the General Conditions.

Section 10. Liquidated Damages/No Damages for Delay against CITY

(a) The CITY and CONTRACTOR recognize that time is of the essence in the performance of this Agreement and CONTRACTOR recognizes that the CITY will suffer financial loss if the Project is not Substantially Complete on the date set forth in the

Contract Documents. The CONTRACTOR (and the CONTRACTOR’s Surety) shall be liable for and shall pay to the CITY the sum of $500.00 DOLLARS ($Contract Price) per calendar day as liquidated damages (not as a penalty)for each calendar day that elapses after the time for completion of the Work set forth in the Contract Documents.Such 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. 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 believed 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.

(b) CITY will suffer the expense of additional services from the Contract

Administrator and contract administration personnel if the Work is not complete within the

Contract Time set forth in the Contract Documents. CONTRACTOR (and the

CONTRACTOR’s Surety) shall be liable for and shall pay to the CITY the additional expenses incurred by the CITY concerning delays in completion of the Work for additional services performed by the Contract Administrator and contract administration personnel plus a ten percent administrative fee until the Work is finally complete, unless an extension of Contract Time is granted by the CITY relating thereto. CITY may withhold such amounts from progress payments and/or the final payment.

(c) No Damages for Delay Against CITY: CONTRACTOR’s exclusive remedy for delays, impacts, disruption, resequencing, constructive acceleration 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, constructive acceleration and interruptions caused (or claimed to be caused) by or attributable to the CITY or the Contract Administrator and their officials, employees, consultants, and agents, shall be a claim for and be limited to an equitable extension of the Contract Time. CONTRACTOR shall not be entitled to costs for remobilization after a delay, impact, disruption, resequencing or interruption in the performance of the Work has occurred. 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 sum, 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 material men.

Section 11. Miscellaneous

(a) Definitions. Terms used in this Contract shall have the meanings as defined in Section 1 of the General Conditions.

(b) Personnel. CONTRACTOR represents that it has, or will secure at its own expense, all necessary personnel required to perform the services under this Contract.

Such personnel shall not be employees of or have any contractual relationship with CITY.

All of the services required herein under shall be performed by the CONTRACTOR or under its supervision, and all personnel engaged in performing the services shall be fully qualified and, if required, authorized or permitted under the state and local law to perform such services. Any changes or substitutions in the CONTRACTOR’s key personnel as may be listed herein must be made known to the CITY’s representative prior to execution, and written approval granted by the CITY before said change or substitution can become effective.

(c) Subcontracting. CITY reserves the right to accept the use of a subcontractor or to reject the selection of a particular subcontractor and to inspect all facilities and background of any subcontractor in order to make a determination as to the capability of the subcontractor to perform properly under this Contract. If a subcontractor fails to perform, as required by this Contract, and it is necessary to replace the subcontractor to complete the work timely or otherwise, the CONTRACTOR shall promptly do so, subject to acceptance of the new subcontractor by the CITY.

(d) Arrears. CONTRACTOR shall not pledge the CITY's credit or make it a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness. CONTRACTOR further warrants and represents that it has no obligation, indebtedness, pending or threatened legal action or government or other regulatory action against any of CONTRACTOR’s or its subcontractors’, agents’ and employees’ licenses that would impair its ability to fulfill the terms of the Contract.

(e) Independent Contractor Relationship. CONTRACTOR is, and shall be, in the performance of all work services and activities under this Contract, an Independent

Contractor, and not an employee, agent, or servant of the CITY. All persons engaged in any of the work or services performed pursuant to this Contract shall at all times, and in all places, be subject to the CONTRACTOR’s sole direction, supervision, and control.

CONTRACTOR shall exercise control over the means and manner in which it and its employees perform the work, and in all respects the CONTRACTOR’s relationship and the relationship of its employees to the CITY shall be that of an Independent Contractor and not as employees or agents of the CITY. CONTRACTOR does not have the power or authority to bind the CITY in any promise, agreement or representation other than as specifically provided for in this agreement.

(f) Nondiscrimination. 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 Work funded by the CITY, 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.

(g) Contingent Fees. CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the

CONTRACTOR to solicit or secure this Contract and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award or making of this Contract.

(h) Access and Audits. CONTRACTOR shall maintain all records relating to this

Contract and project including adequate records to justify all charges, expenses, and costs incurred in performing the work for at least three (3) years after completion of this Contract.

The CITY or its duly authorized representatives shall have access to such books, records, and documents as required in this section for the purpose of inspection, audit, excerpts and transcription during normal business hours, at the CITY's cost, upon five (5) days written notice.

(i) Authority to Practice. CONTRACTOR hereby represents and warrants that is has and will continue to maintain all licenses and approvals required to conduct its business and to perform pursuant to this Contract, and that it will at all times conduct it business activities in a reputable manner.

(j) 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 sub-contractors, 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 sub-contractors, 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). All subcontractors, material men, 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 and when a Notice of Commencement is executed and recorded for the Project or

Work, 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 are 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.”

Contractor shall be responsible for the execution and filing of the Notice of

Commencement with Volusia County as required and appropriate for this project.

“At the discretion of the City of DeBary the requirement for performance or payment bonds may be waived for contracts less than $200,000.00 as per

Section 255.05 Florida Statutes.”

(k) No Waiver of Sovereign Immunity. Nothing contained in this Contract or incorporated documents shall be considered or deemed a waiver of the CITY’s sovereign immunity protections or of any other privileges, immunities or defenses under law afforded to the CITY or its officials, officers, agents and employees, including but not limited to those set forth in Section 768.28, Florida Statutes.

(l) IN NO EVENT SHALL THE CITY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DELAY DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF USE, OR COST

OF COVER INCURRED BY CONTRACTOR, SUB-CONTRACTORS OR ANY THIRD

PARTIES ARISING OUT OF THIS AGREEMENT AND/OR CONCERNING THE

PERFORMANCE OF WORK BY THE CONTRACTOR, SUB-CONTRACTORS OR BY THE

CITY UNDER THIS AGREEMENT.

(m) Warranty Of…