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1187-EDS Construction Corp.AGREEMENT FORM PART 1 GENERAL 1.01 THIS AGREEMENT, made and entered into the day of �-•— , �-°O by and between the City of Sanford, Florida, 300 North Park Avenue, Sanford, Florida 32771 a municipal corporation of the State of Florida, holding tax exempt status, hereinafter referred to as the "CITY" (also referred to as "OWNER ") and E D S Construction Corp. whose principal and local address is 8316 Pine Island Road, Clermont, FI 34711 hereinafter referred to as to as the "CONTRACTOR ". The CITY and the CONTRACTOR are collectively referred to herein as the Parties. 1.02 The Owner and Contractor Agree as Follows: A. Contract Documents The Contract Documents include the Agreement, Addenda (which pertain to the Contract Documents), Contractor's Bid, Notice to Proceed, the Bonds, the General Conditions, the Supplementary Conditions, the Specifications listed in the Index to the Project Manual, any technical specifications as incorporated by the Project Manual; the Drawings as listed in the Project Manual, all Written Amendments, Change Orders, Work Change Directives, Field Orders, and Engineer's written interpretations and clarifications issued on or after the Effective Date of this Agreement. These form the Contract and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. B. Scope of Work The Contractor shall perform all work required by the Contract Documents for the construction of the Park Avenue Street Lighting (1 St Street to Commercial Street) IFB No. 06/07 -23 C. Contract Time The Contractor shall begin work after the issuance of a written Notice to Proceed from Owner and shall substantially complete the work within the Contract Time identified in Paragraphs 1.02.C.5.a -c of the Bid Form. The work shall be finally complete, ready for Final Payment in accordance with the General Conditions, within 30 calendar days from the actual date of substantial completion. D. Liquidated Damages OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph C above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense and difficulties involved in proving in a legal 00520 -1 SPECLIB101906 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street) IFB No. 06/07 -23 arbitration proceeding the actual loss suffered by OWNER if the Work is not substantially complete on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER 500 for each calendar day that expires after the time specified in Paragraph C for substantial completion until the work is substantially complete. It is agreed that if this Work is not Finally completed in accordance with the Contract Documents, the CONTRACTOR shall pay the OWNER as liquidated damages for delay, and not as penalty, one -fourth (%4) of the rate set forth above. E. Contract Price Lump Sum Contract The Owner will pay the Contractor in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Lump Sum Price of Seventy Four Thousand Two Hundred Ninety Nine and no /100 Dollars ($74,299.00 Payments will be made to the Contractor on the basis of the Schedule of Values included as a part of his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. F. City of Sanford Tax Recovery The Owner reserves the right to purchase directly, via its purchase orders, various construction materials, supplies and equipment that may be part of this contract. The Contractor hereby acknowledges that the Owner has the right to exercise this option and that Contractor will cooperate fully to enable the Owner to achieve the tax recovery savings applicable to the materials, supplies and equipment so designated by the Owner. G. Payments The Owner will make payments as provided in the General Conditions and Supplementary Conditions. H. Retainage In accordance with the provisions of the State of Florida Local Government Prompt Payment Act, the value of each application for payment shall be equal to the total value of the Work performed to date, less an amount retained, and less payments previously made and amounts withheld in accordance with the General Conditions and Supplementary Conditions. Retainage for this project is 10 %, to be held by Owner as collateral security to ensure completion of Work. When the Work is 50 percent complete, defined as being 50 percent complete based on the construction progress schedule as updated during construction, and expenditure of at least 50 percent of the total updated construction cost, retainage shall be reduced in accordance with State law. Engineer SPECLIBI01906 00520 -2 NAME OF PROJECT: Park Avenue Street Lighting 0S t Street to Commercial Street), IFB No. 06/07 -23 The Project has been designed by CPH Engineers, Inc., referred to in the documents as the Engineer, whose authority during the progress of construction is defined in the General Conditions and Supplementary Conditions. J. Additional Terms and Conditions The CONTRACTOR hereby warrants and represents to the CITY that it is competent and otherwise able to provide professional and high quality goods and /or services to the CITY by means of employees who are neat in appearance and of polite demeanor. 2. All submissions submitted by the CONTRACTOR in the proposals /bid submitted to the CITY are hereby incorporated herein to the extent not inconsistent with the terms and conditions as set forth herein. 3. The CONTRACTOR acknowledges that the CITY may retain other goods and /or service providers to provide the same goods and /or services for CITY projects. The CONTRACTOR acknowledges that the CITY, at the CITY's option, may request proposals from the CONTRACTOR and the other goods and /or service providers for CITY projects. The CITY reserves the right to select which goods and /or services provider shall provide goods and /or services for the CITY's projects. 4. The CONTRACTOR agrees to provide and ensure coordination between goods /services providers. 5. Each party hereto represents to the other that it has undertaken all necessary actions to execute this Agreement, and that it has the legal authority to enter into this Agreement and to undertake all obligations imposed on it. The person(s) executing this Agreement for the CONTRACTOR certify that he /she /they is /are authorized to bind the CONTRACTOR fully to the terms of this Agreement. 6. The CONTRACTOR hereby guarantees the CITY that all materials, supplies, services and equipment as listed on a Purchase Order meet the requirements, specifications and standards as provided for under the Federal Occupations Safety and Health Act of 1970, from time to time amended and in force on the date hereof. 7. It is agreed that nothing herein contained is intended or should be construed as in any manner creating or establishing a relationship of co- partners between the parties, or as constituting the CONTRACTOR (including, but not limited to, its officers, employees, and agents) the agent, representative, or employee of the CITY for any purpose, or in any manner, whatsoever. The CONTRACTOR is to be and shall remain forever an independent contractor with respect to all services performed under this Agreement. SPECLIB101906 00520 -3 NAME OF PROJECT: Park Avenue Street Lighting 0 st Street to Commercial Street), 11713 No. 06/07 -23 8. Persons employed by the CONTRACTOR in the provision and performance of the goods and /or services and functions pursuant to this Agreement shall have no claim to pension, workers' compensation, unemployment compensation, civil service or other employee rights or privileges granted to the CITY's officers and employees either by operation of law or by the CITY. 9. No claim for goods and /or services furnished by the CONTRACTOR not specifically provided for herein shall be honored by the CITY. 10. Execution of this Agreement by the CONTRACTOR is a representation that the CONTRACTOR is familiar with the goods and /or services to be provided and /or performed and with local conditions. The CONTRACTOR shall make no claim for additional time or money based upon its failure to comply with this Agreement. The CONTRACTOR has informed the CITY, and hereby represents to the CITY, that it has extensive experience in performing and providing the services and /or goods described in this Agreement and that it is well acquainted with the components that are properly and customarily included within such projects and the requirements of laws, ordinance, rules, regulations or orders of any public authority or licensing entity having jurisdiction over the CITY's Projects. 11. The CONTRACTOR shall be responsible for the professional quality, accepted standards, technical accuracy, neatness of appearance of employees, employee conduct, and the coordination of all goods and /or services furnished by the CONTRACTOR under this Agreement as well as the conduct of its staff, personnel, employees and agents. The CONTRACTOR shall work closely with the CITY on all aspects of the provision of the goods and /or services. With respect to services, the CONTRACTOR shall be responsible for the professional quality, technical accuracy, competence, methodology, accuracy and the coordination of all of the following which are listed for illustration purposes and not as a limitation: documents, analysis, reports, data, plans, plats, maps, surveys, specifications, and any and all other services of whatever type or nature furnished by the CONTRACTOR under this Agreement. 12. Neither the CITY's review, approval or acceptance of, nor payment for, any of the goods and /or services required shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement and the CONTRACTOR shall be and remain liable to the CITY in accordance with applicable law for all damages to the CITY caused by the CONTRACTOR negligent or improper performance or failure to perform any of the goods and /or services furnished under this Agreement. 13. The rights and remedies of the CITY, provided for under this Agreement, are in addition to any other rights and remedies provided by law. SPECLIB101906 00520 -4 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 14. Time is of the essence in the performance of all goods and /or services provided by the CONTRACTOR under the terms of this Agreement. 15. Invoices, which are in an acceptable form to the CITY and without disputable items, which are received by the CITY, will be processed for payment within thirty (30) days of receipt by the CITY. 16. The CONTRACTOR will be notified of any disputable items contained in invoices submitted by the CONTRACTOR within fifteen (15) days of receipt by the CITY with an explanation of the deficiencies. 17. The CITY and the CONTRACTOR will make every effort to resolve all disputable items contained in the CONTRACTOR's invoices. 18. Each invoice shall reference this Agreement, the appropriate billing period. 19. The Florida Prompt Payment Act shall apply when applicable. A billing period represents the dates in which the CONTRACTOR completed goods and /or services referenced in an invoice. 20. Invoices are to be forwarded directly the City's designated CEI representative, as identifed at the preconstruction meeting, for review and processing. 21. CITY designates the City Manager or his /her designated representative, to represent the CITY in all matters pertaining to and arising from the work and the performance of this Agreement. 22. The City Manager, or his /her designated representative, shall have the following responsibilities: a. Examination of all work and rendering, in writing, decisions indicating the CITY's approval or disapproval within a reasonable time so as not to materially delay the work of the CONTRACTOR; b. Transmission of instructions, receipt of information, and interpretation and definition of CITY's policies and decisions with respect to design, materials, and other matters pertinent to the work covered by this Agreement; C. Giving prompt written notice to the CONTRACTOR whenever the CITY official representative knows of a defect or change necessary in the project; and d. Coordinating and managing the CONTRACTOR's preparation of any necessary applications to governmental bodies, to arrange for submission of such applications. 23. Until further notice from the City Manager the designated representative for this Agreement is: SPECLIB101906 00520 -5 NAME OF PROJECT: Park Avenue Street Lighting (1" Street to Commercial Street), IFB No. 06/07 -23 Tom George Public Works Director City of Sanford P.O. Box 1788 Sanford, Florida 32772 24. CITY may terminate this Agreement for convenience at any time or for any one (1) or more of the reasons as follows: a. If, in the CITY's opinion, adequate progress is not being made by the CONTRACTOR due to the CONTRACTOR 's failure to perform; or b. If, in the CITY's opinion, the quality of the goods and /or services provided by the CONTRACTOR is /are not in conformance with commonly accepted professional standards, standards of the CITY, and the requirements of Federal and /or State regulatory agencies, and the CONTRACTOR has not corrected such deficiencies in a timely manner as reasonably determined by the CITY; or C. The CONTRACTOR, or any employee or agent of the CONTRACTOR, is indicted or has a direct charge issued against him for any crime arising out of or in conjunction with any work that has been performed by the CONTRACTOR; or d. The CONTRACTOR becomes involved in either voluntary or involuntary bankruptcy proceedings, or makes an assignment for the benefit of creditors; or e. The CONTRACTOR violates the Standards of Conduct provisions herein or any provision of Federal, State or local law or any provision of the CITY's Code of Conduct. 25. In the event of any of the causes of termination, the CITY's designated representative may send a certified letter to the CONTRACTOR requesting that the CONTRACTOR show cause why the Agreement should not be terminated. If assurance satisfactory to the CITY of corrective measures to be made within a reasonable time is not given to the CITY within seven (7) calendar days of the date of the letter, the CITY may consider the CONTRACTOR to be in default, and may then immediately terminate this Agreement. 26. In the event that this Agreement is terminated for cause and it is later determined that the cause does not exist, then this Agreement or the Purchase/Work Order shall be deemed terminated for convenience by the CITY and the CITY shall have the right to so terminate this Agreement without any recourse by the CONTRACTOR. 27. The CONTRACTOR may terminate this Agreement only if the CITY fails to pay the CONTRACTOR in accordance with this Agreement. SPECLIB101906 00520 -6 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 28. Notwithstanding any other provision of this Agreement, the CITY shall have the right at any time to terminate this Agreement in its entirely without cause, if such termination is deemed by the CITY to be in the public interest, in writing of deficiencies or default in the performance of its duties under the Agreement and the CONTRACTOR shall have ten (10) days to correct same or to request, in writing, a hearing. Failure of the CONTRACTOR to remedy said specified items of deficiency or default in the notice by either the CITY's designated representative within ten (10) days of receipt of such notice of such decisions, shall result in the termination of the Agreement, and the CITY shall be relieved of any and all responsibilities and liabilities under the terms and provisions of the Agreement. 29. The CITY shall have the right to terminate this Agreement without cause with a sixty (60) day written notice to the other party. The CITY reserves the right to terminate any Agreement for cause with a five (5) day written notice to the CONTRACTOR. Notice shall be served to the parties as specified in the Agreement. 30. In the event that this Agreement is terminated, the CITY shall identify any specific work to be continued to completion pursuant to the provisions of this Agreement. 31. In the event that after the CITY termination for cause for failure of the CONTRACTOR to fulfill its obligations under this Agreement it is found that the CONTRACTOR has not so failed, the termination shall be deemed to have been for convenience and without cause. 32. In the event this Agreement is terminated or canceled prior to final completion without cause, payment for the unpaid portion of the services provided by the CONTRACTOR to the date of termination and any additional services shall be paid to the CONTRACTOR. 33. Upon receipt of notice of termination, given by either party, the terminated party shall promptly discontinue the provision of all goods and /or services, unless the notice provides otherwise. 34. The performance or provision of the CONTRACTOR's goods and /or services under this Agreement may be suspended by the CITY at any time. 35. In the event the CITY suspends the performance or provision of the CONTRACTOR services hereunder, the CITY shall so notify the CONTRACTOR in writing, such suspension becoming effective within seven (7) days from the date of mailing, and the CITY shall pay to the CONTRACTOR within thirty (30) days all compensation which has become due to and payable to the CONTRACTOR to the effective date of such suspension. The CITY shall thereafter have no further obligation for payment to the CONTRACTOR for the suspended provision of goods 00520 -7 SPECLIB101906 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 and /or services unless and until the CITY's designated representative notifies the CONTRACTOR in writing that the provision of the goods and /or services of the CONTRACTOR called for hereunder are to be resumed by the CONTRACTOR. 36. Upon receipt of written notice from the CITY that the CONTRACTOR's provision of goods and /or services hereunder are to be resumed, the CONTRACTOR shall continue to provide the services to the CITY. 37. The CONTRACTOR agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement because of race, color, religion, sex, age, national origin 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, sex, age, national origin or disability. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates of pay or their forms or compensation; and selection for training, including apprenticeship. The CONTRACTOR, moreover, shall comply with all the requirements as imposed by the Americans with Disability Act, the regulations of the Federal government issued thereunder, and any and all requirements of Federal or State law related thereto. 38. To the fullest extent permitted by law, the CONTRACTOR shall indemnify, hold harmless and defend the CITY, its agents, servants, officers, officials and employees, or any of them, from and against any and all claims, damages, losses, and expenses including, but not limited to, attorneys fees and other legal costs such as those for paralegal, investigative, and legal support services, and the actual costs incurred for expert witness testimony, arising out of or resulting from the performance or provision of services required under this Agreement, provided that same is caused in whole or part by the error, omission, negligent act, failure to act, malfeasance, misfeasance, conduct, or misconduct of the CONTRACTOR, its agents, servants, officers, officials, employees, or subcontractors. 39. In accordance with Section 725.06, Florida Statutes, adequate consideration has been provided to the CONTRACTOR for this obligation, the receipt and sufficiency of which is hereby specifically acknowledged. 40. Nothing herein shall be deemed to affect the rights, privileges, and immunities of the CITY as set forth in Section 768.28, Florida Statutes. 41. In claims against any person or entity indemnified under this Section by an employee of the CONTRACTOR or its agents or subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under this Section shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the CONTRACTOR or its 00520 -8 SPECLIB101906 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 agents or subcontractors, under Workers Compensation acts, disability benefits acts, or other employee benefit acts. 42. The execution of this Agreement by the CONTRACTOR shall obligate the CONTRACTOR to comply with the indemnification provision in this Agreement; provided, however, that the CONTRACTOR must also comply with the provisions of this Agreement relating to insurance coverages. 43. The CONTRACTOR shall obtain or possess and continuously maintain the insurance coverage as set forth and required in the bid documents. 44. All insurance other than Workers Compensation and Professional Liability that must be maintained by the CONTRACTOR shall specifically include the CITY as an additional insured. 45. The CONTRACTOR shall provide Certificates of Insurance to the CITY evidencing that all such insurance is in effect prior to the issuance of the first Purchase/Work Order under this Agreement from the CITY. These Certificates of Insurance shall become part of this Agreement. Neither approval by the CITY nor failure to disapprove the insurance furnished by a CONTRACTOR shall relieve the CONTRACTOR of the CONTRACTOR's full responsibility for performance of any obligation including the CONTRACTOR's indemnification of the CITY under this Agreement. If, during the period which an insurance company is providing the insurance coverage required by this Agreement, an insurance company shall: (1) lose its Certificate of Authority, (2) no longer comply with Section 440.57, Florida Statutes, or (3) fail to maintain the requisite Best's Rating and Financial Size Category, the CONTRACTOR shall, as soon as the CONTRACTOR has knowledge of any such circumstance, immediately notify the CITY and immediately replace the insurance coverage provided by the insurance company with a different insurance company meeting the requirements of this Agreement. Until such time as the CONTRACTOR has replaced the unacceptable insurer with insurance acceptable to the CITY, the CONTRACTOR shall be deemed to be in default of this Agreement. 46. The insurance coverage shall contain a provision that requires that prior to any changes in the coverage, except increases in aggregate coverage, thirty (30) days prior notice will be given to the CITY by submission of a new Certificate of Insurance. 47. The CONTRACTOR shall furnish Certificates of Insurance directly to the CITY's Designated Representative. The certificates shall clearly indicate that the CONTRACTOR has obtained insurance of the type, amount and classification required by this Agreement. SPECLIB101906 00520 -9 NAME OF PROJECT: Park Avenue Street Lightinq (1 Street to Commercial Street), IFB No. 06/07 -23 48. Nothing in this Agreement or any action relating to this Agreement shall be construed as the CITY's waiver of sovereign immunity beyond the limits set forth in Section 768.28, Florida Statutes. 49. The CITY shall not be obligated or liable under the terms of this Agreement to any party other than the CONTRACTOR. There are no third party beneficiaries to this Agreement. 50. The CONTRACTOR is an independent contractor and not an agent, representative, or employee of the CITY. The CITY shall have no liability except as specifically provided in this Agreement. 51. All insurance shall be primary to, and not contribute with, any insurance or self- insurance maintained by the CITY. 52. The 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 Agreement and that the CONTRACTOR 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 of making this Agreement. 53. The CONTRACTOR shall not discriminate on the grounds of race, color, religion, sex, or national origin in the performance of work under this Agreement or violate any laws pertaining to civil rights, equal protection or discrimination. 54. The CONTRACTOR hereby certifies that no undisclosed (in writing) conflict of interest exists with respect to the Agreement, including, but not limited to, any conflicts that may be due to representation of other clients, customers or vendees, other contractual relationships of the CONTRACTOR, or any interest in property that the CONTRACTOR may have. The CONTRACTOR further certifies that any conflict of interest that arises during the term of this Agreement shall be immediately disclosed in writing to the CITY. Violation of this Section shall be considered as justification for immediate termination of this Agreement. 55. The CONTRACTOR shall ensure that all taxes due from the CONTRACTOR are paid in a timely and complete manner including, but not limited to, occupational license tax. 56. If the CITY determines that any employee or representative of the CONTRACTOR is not satisfactorily performing his /her assigned duties or is demonstrating improper conduct pursuant to any assignment or work performed under this Agreement, the CITY shall so notify the CONTRACTOR, in writing. The CONTRACTOR shall immediately SPECLIB101906 00520 -10 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 remove such employee or representative of the CONTRACTOR from such assignment. 57. The CONTRACTOR shall not publish any documents or release information regarding this Agreement to the media without prior approval of the CITY. 58. The CONTRACTOR shall certify, upon request by the CITY, that the CONTRACTOR maintains a drug free workplace policy in accordance with Section 287.0878, Florida Statutes. Failure to submit this certification may result in termination. 59. If the CONTRACTOR or an affiliate is placed on the convicted vendor list following a conviction for a public entity crime, such action may result in termination by the CITY. The CONTRACTOR shall provide a certification of compliance regarding the public crime requirements set forth in State law upon request by the CITY. 60. The CITY reserves the right to unilaterally terminate this Agreement if the CONTRACTOR refuses to allow public access to all documents, papers, letters, or other materials subject to provisions of Chapter 119, Florida Statutes, and other applicable law, and made or received by the CONTRACTOR in conjunction, in any way, with this Agreement. 61. The CONTRACTOR shall comply with the requirements of the Americans with Disabilities Act (ADA), and any and all related Federal or State laws which prohibits discrimination by public and private entities on the basis of disability. 62. The CITY will not intentionally award publicly- funded contracts to any contractor who knowingly employs unauthorized alien workers, constituting a violation of the employment provisions contained in 8 U.S.C. Section 1324a(e) Section 274A(e) of the Immigration and Nationally Act (INA). The CITY shall consider the employment by the CONTRACTOR of unauthorized aliens, a violation of Section 274A(e) of the /NA. Such violation by the CONTRACTOR of the employment provisions contained in Section 274A(e) of the INA shall be grounds for immediate termination of this Agreement by the CITY. 63. The CONTRACTOR agrees to comply with Federal, State, and local environmental, health, and safety laws and regulations applicable to the goods and /or services provided to the CITY. The CONTRACTOR agrees that any program or initiative involving the work that could adversely affect any personnel involved, citizens, residents, users, neighbors or the surrounding environment will ensure compliance with any and all employment safety, environmental and health laws. 64. The CONTRACTOR shall ensure that all goods and /or services are provided to the CITY after the CONTRACTOR has obtained, at its sole 00520 -11 SPECLIB101906 NAME OF PROJECT: Park Avenue Street Lightinq 0 Street to Commercial Street), IFB No. 06/07 -23 and exclusive expense, any and all permits, licenses, permissions, approvals or similar consents. 65. If applicable, in accordance with Section 216.347, Florida Statutes, the CONTRACTOR shall not use funds provided by this Agreement for the purpose of lobbying the Legislature, the judicial branch or State agency. 66. The CONTRACTOR shall advise the CITY in writing of it who has been placed on a discriminatory vendor list, may not submit a bid on a contract to provide goods or services to a public entity, or may not transact business with any public entity. 67. The CONTRACTOR shall not engage in conflict of interest in the performance employee or other person during the otherwise related to, this Agreement of others to violate the provisions of Part III relating to ethics in government. any action that would create a of that actions of any CITY course of performance of, or which would violate or cause Chapter 112, Florida Statutes, 68. The CONTRACTOR shall maintain books, records, documents, time and costs accounts and other evidence directly related to its provision or performance of services under this Agreement. All time records and cost data shall be maintained in accordance with generally accepted accounting principles. 69. The CONTRACTOR shall maintain and allow access to the records required under this Section for a minimum period of five (5) years after the completion of the provision or performance goods and /or services under this Agreement and date of final payment for said goods and /or services, or date of termination of this Agreement. 70. The CITY may perform, or cause to have performed, an audit of the records of the CONTRACTOR before or after final payment to support final payment under any Purchase/Work Order issued hereunder. This audit shall be performed at a time mutually agreeable to the CONTRACTOR and the CITY subsequent to the close of the final fiscal period in which goods and /or services are provided or performed. Total compensation to the CONTRACTOR may be determined subsequent to an audit as provided for in this Section, and the total compensation so determined shall be used to calculate final payment to the CONTRACTOR. Conduct of this audit shall not delay final payment as required by this Section. 71. In addition to the above, if Federal, State, County, or other entity funds are used for any goods and /or services under this Agreement, the Comptroller General of the United States or the Chief Financial Officer of the State of Florida, or the County of Seminole, or any representatives, shall have access to any books, documents, papers, and records of the CONTRACTOR which are directly pertinent to goods and /or services 00520 -12 SPECLIB101906 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 provided or performed under this Agreement for purposes of making audit, examination, excerpts, and transcriptions. 72. In the event of any audit or inspection conducted reveals any overpayment by the CITY under the terms of the Agreement, the CONTRACTOR shall refund such overpayment to the CITY within thirty (30) days of notice by the CITY of the request for the refund. 73. The CONTRACTOR agrees to fully comply with all State laws relating to public records. 74. The CONTRACTOR agrees that if any litigation, claim, or audit is started before the expiration of the record retention period established above, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken. 75. The CONTRACTOR shall not sublet, assign or transfer any interest in this Agreement, or claims for the money due or to become due out of this Agreement to a bank, trust company, or other financial institution without written CITY approval. When approved by the CITY, written notice of such assignment or transfer shall be furnished promptly to the CITY. 76. Any CONTRACTOR proposed subcontractors shall be submitted to the CITY for written approval prior to the CONTRACTOR entering into a subcontract. Subcontractor information shall include, but not be limited to, State registrations, business address, occupational license tax proof of payment, and insurance certifications. 77. The CONTRACTOR shall coordinate the provision of goods and /or services and work product of any CITY approved subcontractors, and remain fully responsible for such goods and /or services and work under the terms of this Agreement. 78. Any subcontract shall be in writing and shall incorporate this Agreement and require the subcontractor to assume performance of the CONTRACTOR's duties commensurately with the CONTRACTOR's duties to the CITY under this Agreement, it being understood that nothing herein shall in any way relieve the CONTRACTOR from any of its duties under this Agreement. The CONTRACTOR shall provide the CITY with executed copies of all subcontracts. 79. The CONTRACTOR shall reasonably cooperate at all times with the CITY and other CITY contractors and professionals. 80. This Agreement is to be governed by the laws of the State of Florida. 81. Venue for any legal proceeding related to this Agreement shall be in the Eighteenth Judicial Circuit Court in and for Seminole County, Florida. SPECLIB101906 00520 -13 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 82. This Agreement is the result of bona fide arms length negotiations between the CITY and the CONTRACTOR and all parties have contributed substantially and materially to the preparation of the Contract. Accordingly, this Agreement shall not be construed or interpreted more strictly against any one party than against any other party. 83. Neither party shall be considered in default in performance of its obligations hereunder to the extent that performance of such obligations, or any of them, is delayed or prevented by Force Majeure. Force Majeure shall include, but not be limited to, hostility, terrorism, revolution, civil commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, any law, proclamation, regulation, or ordinance or other act of government, or any act of God or any cause whether of the same or different nature, existing or future; provided that the cause whether or not enumerated in this Section is beyond the control and without the fault or negligence of the party seeking relief under this Section. 84. This Agreement, together with the exhibit(s), if any, constitutes the entire integrated Agreement between the CITY and the CONTRACTOR and supersedes all prior written or oral understandings in connection therewith. This Agreement, and all the terms and provisions contained herein, including without limitation the exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements whether written or oral. 85. This Agreement may only be amended, supplemented or modified by a formal written amendment. 86. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties. 87. Written notice requirements of this Agreement shall be strictly construed and such requirements are a condition precedent to pursuing any rights or remedies hereunder. The CONTRACTOR agrees not to claim any waiver by CITY of such notice requirements based upon CITY having actual knowledge, implied, verbal or constructive notice, lack of prejudice or any other grounds as a substitute for the failure of the CONTRACTOR to comply with the express written notice requirements herein. Computer notification (e -mails and message boards) shall not constitute proper written notice under the terms of the Agreement. 88. The failure of the CITY to insist in any instance upon the strict performance of any provision of this Agreement, or to exercise any right or privilege granted to the CITY hereunder shall not constitute or be construed as a waiver of any such provision or right and the same shall continue in force. SPECLIB101906 00520 -14 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 89. In no event shall any obligation of the CITY under this Agreement be or constitute a general obligation or indebtedness of the CITY, a pledge of the ad valorem taxing power of the CITY or a general obligation or indebtedness of the CITY within the meaning of the Constitution of the State of Florida or any other applicable laws, but shall be payable solely from legally available revenues and funds. 90. The CONTRACTOR shall not have the right to compel the exercise of the ad valorem taxing power of the CITY. 91. Each exhibit referred to and attached to this Agreement is an essential part of this Agreement. The exhibits and any amendments or revisions thereto, even if not physically attached hereto, shall be treated as if they are part of this Agreement. 92. The Section headings and captions of this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any provision of this Agreement. 93. If any term, provision or condition contained in this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable, shall not be affected thereby, and each term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law when consistent with equity and the public interest. 94. All provisions of this Agreement shall be read and applied in para materia with all other provisions hereof. 95. In the event of a dispute related to any performance or payment obligation arising under this Agreement, the parties agree to exhaust any alternative dispute resolution procedures reasonably imposed by the CITY prior to filing suit or otherwise pursuing legal remedies. 96. The CONTRACTOR agrees that it will file no suit or otherwise pursue legal remedies based on facts or evidentiary materials that were not presented for consideration to the CITY in alternative dispute resolution procedures or which the CONTRACTOR had knowledge and failed to present during the CITY procedures. 97. In the event that CITY procedures are exhausted and a suit is filed or legal remedies are otherwise pursued, the parties shall exercise best efforts to resolve disputes through voluntary mediation. Mediator selection and the procedures to be employed in voluntary mediation shall SPECLIB101906 00520 -15 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 be mutually acceptable to the parties. Costs of voluntary mediation shall be shared equally among the parties participating in the mediation. 98. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. CONTRACTOR: r— r� S Name of Firm c %i L '/ By (Signature) (SEAL) Printed Name and Title A °cry Notary public State of Florida K Wili'o�" Kni, °r 1 0425920 c tLtc, pm icr Printed Name and Title OWNER: City of Sanford Name of Owner By (Signat re) (SEAL) Robert P. Yehl, City Manager Printed Name and Title ATTEST: By (Signature) Janet Dougherty, City Clerk Printed Name and Title END OF SECTION SPECLIB101906 00520 -16 NAME OF PROJECT: Park Avenue Street Lighting (1 Street to Commercial Street), IFB No. 06/07 -23 I last h low if awl ll awl It law no own alw as Ili wl Ih " ,*w - I'a l Iwwl HARYWE NURSE, CLERK UP CIRCUIT COURT SENINULE COUNTY 8K 06835 Pge 0099 - 145; 47M) CLERK'S # 2407143172 Nielson, Mosholder & Associ RDE.D 10/05/8007 Ili 141 a PIN A member of Nielson & Company, IlABCURDINS FEES 61..00 4380 St. Johns Pkwy, Ste. 110, Sanford, FloAMOWly H DeVore (407) 330 -3990 PUBLIC WORKS BOND In compliance with Florida Statutes 255.05 (1)(a) f ' RT 1 �. 7 C OPY PERFORMANCE BOND BOND NO: 582130P tVI,�F; MORSE K Or C1r CUi? COUNT $E Ou , FLORIDA Contractor Name: E.D.S. Construction Corn. 81 Address: 8316 Pine Island Road Clermont, Florida 34711 Phone No: 352 - 429-4670 ���T� Surety Company: Developers Surety and Indemnity Company Surety Address: 33 6 Street South, Suite 205 St. Petersburg, Florida 32701 Surety Phone No: 407 - 330 -3990 Owner Name: City of Sanford Address: 300 North Park Avenue Sanford, Florida 32771 Phone No: 407 - 322 -6841 Obligee Name: (if different for property owner) Obligee Address: Obligee Phone No: Project Name: Park Avenue Street Lighting (1" Street to Commercial Street No. 06/07 -23, Sanford, Florida Project Location: Sanford, Florida Legal Description: Park Avenue Street Lighting (1" Street to Commercial Street). IFB No 06/07 -23 Sanford, Seminole County, Florida THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A311 Bond No: 582130P Performance Bond KNOW ALL MEN BY THESE PRESENTS: that (Here insert full name and address or legal title of contractor) E.D.S. Construction Corp., 8316 Pine Island Road, Clermont, Florida 34711 as Principal, hereinafter called Contractor, and, (Here insert full name and address or legal title of Surety) Developers Surety and Indemnity Company, P.O. Box 19725, Irvine, CA 92623 as Surety, hereinafter called Surety, are held and firmly bound unto (Here insert full name and addressor legal title of Owner) City of Sanford, 300 North Park Avenue, Sanford, Florida 32771 as Obligee, hereinafter called Owner, in the amount of -- Seventy Four Thousand Two Hundred Ninety Nine and 00/100 -- Dollars ($74,299.00), for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated entered into a contract with Owner for (Here insert full name, address and description of project) Park Avenue Street Lighting (1' Street to Commercial Street), IFB No. 06107 -23 in accordance with Drawings and Specifications prepared by (Here insert full name and address or legal title of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1970 ED • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 PERFORMANCE BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform said Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. The Surety hereby waives notice of any alteration or extension of time made by the Owner. Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner's obligation thereunder, the Surety may promptly remedy the default, or shall promptly 1) Complete the Contract in accordance with its terms and conditions, or 2) Obtain a bid or bids for completing the Contract in accordance with its term and conditions, and upon determination by Surety of the lowest responsible bidder, or if the Owner elects, upon determination by the Owner and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and Owner, and make available as work progresses (even though there should be a default or a succession of defaults Signed and sealed this 7 f~ l on %, J^ n rp. (Principal) (Title) e C, Developers Surety and Indemnity Comaanv (Su�efy� (Seal) (Title)Lau . Mosholder, Attorney -In -Fact 8 0 Florida Resident Agent Inquiries: (407) 330 -3990 AIA DOCUMENT A311 •PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price," as used in this paragraph, shall mean the total mount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor. Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of the Owner. day of ( �:! 2007. E no C stru t' Co FEBRUARY 1970 ED • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 2 Nielson, Mosholder & Associates A member of Nielson & Company; Inca 4380 St. Johns Pkwy, Ste. 110, Sanford, Florida 32771 (407) 330 -3990 PUBLIC WORKS BOND In compliance with Florida Statutes 255.05 (1)(a) PAYMENT BOND BOND NO: 582130P Contractor Name: E.D.S. Construction Corp. Address: 8316 Pine Island Road Clermont. Florida 34711 Phone No: 352- 429 -4670 Surety Company: Developers Surer and Indemnity Company Surety Address: 33 6 Street South. Suite 205 St. Petersburg, Florida 32701 Surety Phone No: 407 - 330 -3990 Owner Name: City of Sanford Address: 300 North Park Avenue Sanford, Florida 32771 Phone No: 407 - 322 -6841 Obligee Name: (if different for property owner) Obligee Address: Obligee Phone No: Project Name: Park Avenue Street Lighting 0" Street to Commercial Street), IFB No. Sanford, Florida Project Location: Sanford. Florida Legal Description: Park Avenue Street Lighting (V Street to Commercial Street), IFB No 06/07 -23, Sanford Seminole County, Florida THE AMERICAN INSTITUTE OF ARCHITECTS =1, AIA Document A311 Bond No: 582130P Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: that E.D.S. Construction Corp., 8316 Pine Island Road, Clermon4 Florida 34711 (Here insert full name and address or legal title of contractor) as Principal, hereinafter called Contractor, and, (Here insert full name and address or legal title of Surety) Developers Surety and Indemnity Company, P.O. Box 19725, Irvine, CA 92623 as Surety, hereinafter called Surety, are held and firmly bound unto (Here insert full name and address or legal title of Owner) City of Sanford, 300 North Park Avenue, Sanford, Florida 32771 as Obligee, hereinafter called Owner, in the amount of -- Seventy Four Thousand Two Hundred Ninety Nine and 00/100 -- Dollars ($74,299.00), for the payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated (Here insert full name, address and description of project) entered into a contract with Owner for Park Avenue Street Lighting (1 Street to Commercial Street),1FB No. 06107 -23 in accordance with Drawings and Specifications prepared by (Here insert full name and address or legal title of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1970 ED • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 3 LABOR AND MATERIAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. Claimant is defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, o for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer. b) After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the project, or any part thereof, is situated, and not elsewhere. 4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanic's liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. THIS BOiiD HEREBY IS AMENDED SO THAT THE PROVISIONS AND LIMITATIONS OF SECTION 2"Ai OR SECTI011 MU FLORIDA STATUTES, WHICHEVER IS APPILICABtE AIX INCORPORATE) HEREIN BY REFERENCE. day of( -,16i-- , 2007. (Witness) E.D.S. Construction Corp. (Principal) t = ( r (Title) Developers Surety and Indemnity Company Sar (Seal) (Title) Lau D. osholder, Attomey -In -Fact' & Florida Resident Agent y „ ? inquiries: (407) 330 -3990 AIA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1970 ED • THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 4 Sinned and sealed this 7741, POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY PO BOX 14725, IRVINE, CA 92623 (949) 263 -3300 wwiv.IuscoDico.com KNOW ALL MEN Bt HI'Sf PP ESENTS, that except as expressly limited, DEVELOPERS SURETY Y AND INDEMNITY COMPANY doe, herkhy make, :mIS1111tic and appoint. ** *Laura D. Mosholder * ** as its true aid lawful Atlorrtey(s) -in -Fact, to make, exccute, deliver and acknowledge, for and on behalf of said corporation as surety, bcxtds, undertakings and contracts of suretyship giving and granting unto said Attorneys) -in -Fact full power and authority to do and to perform every act necessary, requisite or proper to be dome an connection therewith as the corporation could do, but reserving to the corporation fill) power of substitution and revocation, and all of the acts of said Attomeyf s) -iu- Fact, pursuant to these presents, are hereby ratified and confinned. This Powet ol'Anor icy is granted and is signed by facsimile under and by authority of the following resolution adopted by the Board of Directors of DEVELOPERS SURETY ANID INDFMNITYCE ?,YIP.ANY effective as of November 1, 2W): RISOI_V ED, that the Chairman of the Board, the [ mid any Vice President of the corporation be, arid that each of them hereby is, authorized to execute Powers of Attorney, qualifying the Attor;cy(s) -in -Pact named in the Powers of Attorney to execute, on behalf of the corporation, bonds, undertakings and contracts of suretyship; and that the :secretary or any Assistant Secretary of the corporation be, and each of the hereby is, authorized to attest the execution of any such Power (if :Attorney: RF'S01 v E D, F'.!Rl HFR, that the signatures of such officer, may be affxed to any such Power ofAllcxmmey or tl) atty c+ Ctl float relating {beret!) by fat :snnilu, and any such Poser of Attorne or certificate bearing such facsimile signatures shall be valid and binding upon the corporation when sit affixed and in the future with respccl its any Lind, midertAing or contract ofsttretyship to which it is attached. IN W'II 'NESS WH Rt OV, D1.VELOPERS SURETY ANI} INDEMNITY COMPANY has caused these presents to be signed by its respective Fxmutivc Vita; Prosidettt and attested by itc Secretary this 1,4 day of Dwember, 2005. t t3y David H Rhadcs, Executive Vice- Presicitnt By. Wallet A. C Gov, %All S°cNiarY SIATI_ 01; CALIFORNIA 1 1 AND a¢�pR P OR � 4 T�,fi�y� 3 OCT. 1936 =r> tow n, : L b,; COUNTY' OF ORANGE On Deccniber t, 2005 before me, Gina L. Gainer, there [inert name and title of the officer), personally appeared David H. Rhodes and Waller A. Crowell, peronally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose namc(s) isiare subscribed to the within instrument and acknowledged to me that hetshelthey executed the same in hisAheritheir authorized capacity(ics), and that by hisiherltheir signature s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITH ,SS my hand and official seal. , r � GiNA L. GARNER _ COMM. # 1569561 A NOTARY PUBLIC CALWORNIA Signatur (SEAL) ORANGE COUNTY ctuttrn. a Wlap 13, 2009 CERTIFICATE Ilic undersigned, as Assistant Secretary, of DEVELOPERS SURETY AND INDEMNITY COMPANY, does hereby certify that the forcgrung Power of Attorney remains in full force and has not been revoked, and furthermore, that the provisions of the resolution of the respective Boards of Directors of said corporation set fixth in the Power of Attorney, is in force as of the date of this Certificate. This Certificate is exectned in the City of Irvine, Cabfomia, the -, __ _-__ day of _ -___ BY - Xa��� Albert Hillebrtnd Assistant SMret=?=y