HomeMy WebLinkAboutALL TERRAIN TRACTOR SERVICE - CENTRAL WINDS PARK PICKLEBALL COURTS SITE WORK AGREEMENT - 2023 02 16 CENTRAL WINDS PARK PICKLEBALL COURTS SITE WORK
AGREEMENT
THIS AGREEMENT is made this 14 day of February ,2022 by
and between the CITY OF WINTER SPRINGS,a Florida municipal corporation(herein referred to as
OWNER)and ALL TERRAIN TRACTOR SERVICE,INC,a Florida Corporation,an authorized and
duly licensed to do business in the State of Florida(herein referred to as CONTRACTOR),as follows:
1. DESCRIPTION OF WORK-CONTRACTOR shall perform the work, in accordance with the
Contract Documents for the construction of Central Winds Park Pickleball Courts Site Work("the
Project").
2. CONTRACT DOCUMENTS-The Contract Documents consist of this Agreement; Exhibits and
Addendum to the Agreement;ITB Documents issued by the City,dated October 10,2022,including
Addenda,if any;Contractor's Bid Submittal,dated November 17,2022;General Conditions, if any;
Supplemental Terms and Conditions by the City, if any; all Change Orders approved by the City atter
execution of this Agreement.These Contract Documents are hereby incorporated into this Contract by
this reference.The CONTRACTOR represents and agrees that it has carefully examined and understands
this Agreement and the other Contract Documents,has investigated the nature,locality and site of the
Work and the conditions and difficulties under which it is to be performed and that it enters into this
Agreement on the basis of its own examination, investigation and evaluation of all such matters and not
in reliance upon any opinions or representations of the OWNER,or of any of their respective officers,
agents,servants,or employees.The Contract Documents are complementary,and what is called for by
any one shall be as binding as if called for by all.The intent of the Contract Documents is to include all
labor,materials,equipment,transportation,taxes,fees and incidentals necessary for the proper and
complete execution of the Work for each Project.Materials or Work described in words which so
applied have a well-known technical or trade meaning shall be held to refer to such recognized
standards.Any discrepancies or omissions found in the Contract Documents shall be reported to the
City's Project Manager immediately.The City's Project Manager will clarify discrepancies or omissions,
in writing,within a reasonable time.
3. ORDER OF PRECEDENCE-In case of any inconsistency in any of the documents bearing on the
Agreement between the OWNER and the CONTRACTOR,the inconsistency shall be resolved by giving
precedence in the following order:
1. Change Orders
2. Agreement, Exhibits and Addenda
3. Supplemental Terms and Conditions
4. General Terms and Conditions
5. Engineering Plans and Drawings
6. ITB for Central Winds Park Pickleball Courts Site Work issued by the City of Winter
Springs dated October 10,2022, including any subsequently issued Addenda
7. Contractor's Bid Submittal
Any inconsistency in the work description shall be clarified by the OWNER and performed by the
CONTRACTOR.
4. AGREEMENT INTERPRETATION-At its discretion,during the course of the work,should any
errors,ambiguities,or discrepancies be found in the Contract Documents,the OWNER at its sole .
discretion will interpret the intent of the Contract Documents and the CONTRACTOR hereby agrees to
abide by the OWNER's interpretation and agrees to carry out the work in accordance with the decision
of the OWNER.
5. BRAND NAME MATERIALS-Whenever Materials or Equipment are specified or described in
the Drawings or Specifications by using the name of a proprietary item or the name of a particular
Supplier,the naming of the item is intended to establish the type,function and quality required.The
CONTRACTOR will be responsible for all coordination necessary to accommodate the material,article,
or equipment being provided without additional cost to the OWNER. Unless the name is followed by
words indicating that no substitution is permitted,a substitute material, article,or equipment is allowed
if it is reasonably equivalent to the brand name specified and CONTRACTOR certifies in writing that
the proposed substitute will perform adequately the functions called for by the general design,be similar
and of equal substance to that specified and be suited to the same use and capable of performing the
same function as that specified. .The OWNER has full discretion to decide whether a substitute is
reasonably equivalent. CONTRACTOR must notify the OWNER in writing prior to use of the substitute
for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses
the substitute.
6. CONTRACT TIME—
1. All provisions regarding Contract Time are essential to the performance of this Contract.
2. The Work shall be completed according to the Contactor's proposed submitted schedule.
The date of Substantial Completion of the Work is the date certified in writing by the OWNER when(1)
construction is sufficiently complete,in accordance with the contract documents,so the OWNER can
occupy or utilize the work for its intended purpose,as expressed by the contract documents,and(2)any
additional project-specific requirements or milestones for"Substantial Completion" identified in the
general,special,or technical conditions or construction plans have been satisfied.
3. 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.
4. In the event that the Work requires phased construction,then multiple points of Substantial
Completion may be established in the Supplementary Conditions.
7. LIOUIDATED 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 6 above, plus any extensions thereof allowed in accordance with
the General Conditions.OWNER and CONTRACTOR also recognize the delays,expense,and
difficulties involved in proving in a legal or arbitration preceding 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$1,690.00 for each calendar day that expires after the time specified
in Paragraph 6 for substantial completion until the work is substantially complete and$500 for each
calendar day that expires after the time specified in Paragraph 6 for final completion until the work is
finally complete.The liquidated damages provided in this Section are intended to apply even if
CONTRACTOR is terminated, in default,or if the CONTRACTOR has abandoned the Work.This
provision binds Contractor's performance bond surety.
8. CONTRACT PRICE UNIT PRICE CONTRACT-The OWNER will pay the CONTRACTOR
in current funds for the performance of the work in accordance with the Contract Documents,subject to
additions and deductions approved by Change Order.CONTRACTOR agrees to accept the Contract
Price of TWO MILLION,FIFTY-SIX THOUSAND,SIX HUNDRED AND TWENTY-ONE
DOLLARS AND TWENTY CENTS(2,056,621.20).as full compensation for performing all work,
furnishing all Materials,and performing all Work embraced in the Contract Documents.
The CONTRACTOR acknowledges that CONTRACTOR studied,considered,and included in
CONTRACTOR's Total Bid all costs of any nature relating to:(1)performance of the Work under
Florida weather conditions;(2)applicable law, licensing,and permitting requirements;(3)the Project
site conditions,including but not limited to,subsurface site conditions;(4)the terms and conditions of
the Contract Documents,including,but not limited to,the indemnification and no damage for delay
provisions of the Contract Documents.
The CONTRACTOR acknowledges that performance of the Work may 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.
(1) In addition to the acknowledgments previously made,the CONTRACTOR acknowledges that
the CONTRACTOR's Total Bid(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 conflicts relating to utilities
and Underground Facilities.
(2) The CONTRACTOR acknowledges that CONTRACTOR's Total Bid(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 OWNER, if any,with its own forces,the work of other contractors,if any,and the work
of others at the Project site.
Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule
of Unit Prices included as a part of the Bid, which shall be as fully a part of the Contract as if attached or
repeated herein.Where the Contract Documents provide for Unit Price Work, the Contract Price stated in
the Agreement will include for all Unit Price Work an amount equal to the sum of the Unit Prices for each
item of Unit Price Work times the estimated quantity of each item as indicated in the Contract
Documents. Each Unit Price will be deemed to include an amount considered by CONTRACTOR to be
adequate to cover all costs, including supplemental and administrative costs,and profit.
9. TERMINATION; DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES—The
OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and privileges
associated with this Agreement,without penalty,for convenience.Further,the OWNER reserves the
right to revoke and terminate this Agreement in the following circumstances,each of which shall
represent a default and breach of this Agreement:
1. CONTRACTOR defaults in the performance of any material covenant or condition of this
Agreement and does not cure such other default within seven(7)calendar days after written
notice from the OWNER specifying the default complained of,unless,however,the nature of
the default is such that it cannot, in the exercise of reasonable diligence,be remedied within
seven(7)calendar days, in which case the CONTRACTOR shall have such time as is
reasonably necessary to remedy the default,provided the CONTRACTOR promptly takes and
diligently and continuously pursues such actions as are necessary therefore; or
2. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of
creditors or CONTRACTOR becomes insolvent,or is unable or unwilling to pay its debts;or
3. CONTRACTOR has acted negligently,as defined by general and applicable law, in
performing the Work hereunder;or
4. CONTRACTOR has committed any act of fraud upon the OWNER;or
5. CONTRACTOR has made a material misrepresentation of fact to the OWNER while
performing its obligations under this Agreement;or
6. CONTRACTOR is experiencing a labor dispute,which threatens to have a substantial,
adverse impact upon performance of this Agreement without prejudice to any other right,or
remedy OWNER may have under this Agreement.
In the event of an uncured default by CONTRACTOR,the OWNER shall have the right to exercise any
other remedy the OWNER may have by operation of law,without limitation,and without any further
demand or notice. In the event of such termination,OWNER shall be liable only for the payment of all
unpaid charges, determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination, which may be a set-off to OWNER's damages.
10. FORCE MAJEURE-Any delay or failure of either party in the performance of its required
obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood;windstorm;
explosion;riot;war;sabotage;strikes(except involving CONTRACTOR's labor force);extraordinary
breakdown of or damage to OWNER's affiliates'generating plants,their equipment,or facilities;court
injunction or order;federal and/or state law or regulation;or order by any regulatory agency; provided
that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall
be diligent in attempting to remove such cause or causes.
11. SEVERABILITY-In the event any portion or part thereof of this Agreement is deemed invalid,
against public policy,void,or otherwise unenforceable by a court of law,the validity and enforceability
of the remaining parts of this Agreement shall otherwise be fully enforceable.
12. PROGRESS PAYMENTS, DUE DATE FOR PROGRESS PAYMENTS; SUBMITTAL OF
PAYMENT REQUESTS—No payments shall be made where a Payment and Performance Bond is
required herein until OWNER receives a certified copy of the recorded Bond.OWNER shall make
progress payments on account of the contract price to CONTRACTOR,on the basis of application for
payments submitted to the OWNER or OWNER's Project Manager,by CONTRACTOR as the work
progresses,and in accordance with the Contract Documents.
Progress payments may be withheld if:
1. Work is found defective and not remedied;
2. CONTRACTOR does not provide consent of surety with each payment application;
3. Another contractor is damaged by an act for which CONTRACTOR is responsible;or
4. In the opinion of the OWNER that CONTRACTOR's work is not progressing satisfactorily.
OWNER herein(X)designates an agent, i.e.,an architect or engineer that must approve any payment
request or invoice before the payment request or invoice is submitted to OWNER for payment. If an agent
must approve the payment request or invoice before the payment request or invoice is submitted to
OWNER,payment is due 25 business days after the date on which the payment request or invoice is
stamped as received as provided in s.11 8.74(l),Florida Statutes,except to the extent that the payment
request or invoice does not meet contract requirements.The CONTRACTOR may send OWNER an
overdue notice. If the payment request or invoice is not rejected within 4 business days after delivery of
the overdue notice,the payment request or invoice shall be deemed accepted,except for any portion of
the payment request or invoice that is inaccurate or misleading. If an agent\need not approve the payment
request or invoice submitted by CONTRACTOR, payment is due 20 business days after the date on
which the payment request or invoice is stamped as received as provided in s.218.74(1),Florida Statutes,
except to the extent that the payment request or invoice does not meet contract requirements. If OWNER
disputes a portion of a payment request or an invoice,the undisputed portion shall be timely paid.
OWNER shall reject payment requests or invoices in accordance with the procedure established in s.
218.735, Florida Statutes.
OWNER hereby identifies the City's Finance Department as the agent or office to which the
CONTRACTOR must submit payment requests or invoices.
The OWNER further hereby identifies the Kimley Horn as the agent that must approve payment requests
prior to their submission to OWNER.
13. FINAL PAYMENT-OWNER shall withhold up to 5%of the Contract Price throughout the project
in accordance with the Local Government Prompt Payment Act("Act").The retainage amount withheld
may be released with the Final Payment after the issuance of the Final Completion Certificate.Consent
of surety is required for final payment.OWNER shall make final payment to CONTRACTOR within
thirty(30)days after the work is fully and properly completed, if the contract has been fully and timely
performed,but subject to the condition that final payment shall not be due until CONTRACTOR has
delivered to OWNER all close-out documentation. By making payments OWNER does not waive claims
including but not limited to those relating to:
1. Faulty work appearing after substantial completion has been granted;
2. Work that does not comply with the Contract Documents;or
3. Failure of Contractor to comply with any special guarantees required by the Contract
Documents.
Progress payments may be withheld if Work is found defective and not remedied;CONTRACTOR does
not provide consent of surety with each progress application;a subcontractor is damaged by an act for
which CONTRACTOR is responsible;or in the opinion of the OWNER,CONTRACTOR'S work is not
progressing satisfactorily. Further, OWNER may withhold additional payment in anticipation of
liquidated damages equal to the product of the number of Days after the scheduled Contract Time
(Substantial Completion or Final Completion)and the amount of liquidated damages set forth in this
Contract if CONTRACTOR is behind schedule and it is anticipated by OWNER that the Work will not be
completed within the Contract Time.The additional payment,under this subsection,may at the
OWNER'S discretion be withheld from subsequent Progress Payments.
The City,by written change order and without invalidating the Agreement,may order extra Work or
make changes by altering,adding to,or deducting from the Work,the contract sum being adjusted
accordingly.Additional time required for any change in Work must be included with the requested
Change Order.
In giving instructions,the City's Project Manager will have authority to make minor changes in the Work,
not involving extra cost or time,and not inconsistent with the purpose of the Work, but otherwise,except
in an emergency endangering life or property,no extra work or change will be made unless it goes
through the City's written Change Order process and is approved by the City,and no claim for an
addition to the contract sum or time will be valid unless so ordered in writing.
The value of any such extra Work or change will be determined in one or more of the following ways:
a. By mutual acceptance of a lump sum.
b. By unit prices named in the contract or subsequently agreed upon.
c. By cost and percentage or by cost and a fixed fee.
If none of the above methods is agreed upon,the CONTRACTOR, provided it receives an order as above,
shall proceed with the work. In such case and also under case(3)above,the CONTRACTOR shall keep
and present in such form as the City's Project Manager may direct,a correct account of the actual cost of
labor and materials,substantiated by backup documentation. In any case,the City's Project Manager will
certify to the amount, including reasonable allowances for overhead and profit,due to the
CONTRACTOR. Pending final determination of value,payments on account of changes will be made on
the City's Project Manager's estimate.Furthermore,if the CONTRACTOR claims that any instructions
by drawings or otherwise involve extra cost under the Contract Documents, it shall give the City written
notice thereof within ten(10)days after the receipt of such instructions,and in any event before
proceeding to execute the work,except in emergency endangering life or property,and the procedure
shall then be as provided above under this section. Claims will not be processed unless filed in writing
before any work has commenced.In addition, if the City's Project Manager deems it appropriate the City
may accept defective or incomplete work and an equitable deduction from the Contract Price will be
made therefor by Change Order.
14, DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT: DUTIES AND AUTHORITY-The duties and authority of the OWNER are as
follows:
I. General Administration of Contract.The primary function of the OWNER is to provide the
general administration of the contract. In performance of these duties,City Manager or his
authorized representative is the OWNER's Project Manager during the entire period of
construction.The OWNER(CITY)may change the Project Manager during the term of this
contract.
2. Inspections,Opinions,and Progress Reports.The OWNER shall be kept familiar with the
progress and quality of the work by CONTRACTOR and may make periodic visits to the work
site.The OWNER will not be responsible for the means of construction,or for the sequences,
methods,and procedures used therein,or for the CONTRACTOR's failure to perform the work
in accordance with the Contract Documents.
3. Access to Worksite for Inspections.The OWNER shall be given free access to the worksite
at all times during work preparation and progress.The Project Manager is not obligated to
make exhaustive or continuous on-site inspections to perform his duties of checking and
reporting on work progress,and any such inspections shall not waive Owner's claim regarding
defective work by Contractor.No inspector is authorized to change any provision of the
specifications without written authorization of the City's Project Manager,nor shall the
presence or absence of an inspector relieve the CONTRACTOR from any requirements of the
Contract Documents.
If the specifications,the City's instructions,laws,ordinances,or any public authority, require
any work to be specially tested or approved,the CONTRACTOR shall give the City timely
notice of its readiness for inspection,and of the date fixed for such inspection. Inspections by
the City's Project Manager will be promptly made.
If upon inspection such work is found not in accordance with the Contract Documents,the
CONTRACTOR shall pay such cost,including compensation for professional services,and an
appropriate deductive Change Order shall be issued.
4. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will be the
initial interpreter of the contract document requirements, and make decisions on claims and
disputes between Contractor and Owner.
5. Reiection and Stoppage of Work.The OWNER shall have authority to reject work which in
its opinion does not conform to the Contract Documents,and in this connection may stop the
work or a portion thereof,when necessary.
6. Payment Certificates.The OWNER will determine the amounts owing to CONTRACTOR as
the work progresses,based on CONTRACTOR's applications and OWNER's inspections and
observations,and will issue certificates for progress payments and final payments in
accordance with the terms of the Contract Documents.
7. City Reviews and Status.The City's review, inspection,or approval of any Work,
applications for payment,or other submittals shall be solely for the purpose of determining
whether the same are generally consistent with the City's scope and requirements for the
project.No review, inspection,or approval by the City of such Work or documents shall
relieve the CONTRACTOR of its responsibility for the performance of its obligations under
the Contract Documents or the accuracy,adequacy,fitness,suitability,or coordination of the
Work.Approval by any governmental or other regulatory agency or other governing body of
any Work,design document,or construction document shall not relieve CONTRACTOR of
responsibility for the performance of its obligations under the Contract Documents.Payment
by the City pursuant to the Contract Documents shall not constitute a waiver of any of the
City's rights under the Contract Documents or at law,and CONTRACTOR expressly accepts
the risk that defects in its performance,if any,may not be discovered until after payment,
including final payment,is made by the City.Notwithstanding the foregoing,prompt written
notice shall be given by the City or City Project Manager to the CONTRACTOR if the City
becomes aware of any fault or defect in the Projects or non-conformance with the Contract
Documents. Furthermore,the City shall not have control or charge of construction means,
methods,techniques,sequences,or procedures,or for safety precautions and programs in
connection with the Work,nor shall the CONTRACTOR,for any of the foregoing purposes,
be deemed the agent of the City.
15. PROGRESS MEETINGS—OWNER'S Project Manager may hold periodic progress meetings on a
monthly basis,or more frequently if required by the OWNER,during the term of work entered into
under this Agreement.CONTRACTOR's Project Manager and all other appropriate personnel shall
attend such meetings as designated by the OWNER'S Project Manager.
16. RESPONSIBILITIES OF CONTRACTOR-CONTRACTOR's duties and rights in connection
with the project herein are as follows:
1. Responsibility for Supervision and Construction.CONTRACTOR shall be solely
responsible for all construction under this contract, including the techniques,sequences,
procedures and means,for the coordination of all work.CONTRACTOR shall supervise and
direct the work,and give it all attention necessary for such proper supervision and direction.
2. Discipline and Employment.CONTRACTOR shall maintain at all times strict discipline
among his employees,and he agrees not to employ for work on the project any person unfit
or without sufficient skill to perform the job for which he was employed.
3. Furnishing of Labor,Materials,etc.CONTRACTOR shall provide and pay for all labor,
materials and equipment,including tools,construction equipment and machinery,utilities,
including water,transportation,and all other facilities and work necessary for the proper
completion of work on the project in accordance with the Contract Documents.
4. Payment of Taxes: Procurement of Licenses and Permits.CONTRACTOR shall secure
all licenses and permits necessary for proper completion of the work,paying the fees thereof.
CONTRACTOR warrants that it(and subcontractors or tradesmen,if authorized in the
Contract Documents)hold or will secure all trade or professional licenses required by law for
CONTRACTOR to undertake the contract work.
5. Guarantee.The CONTRACTOR hereby guarantees the Work to the full extent provided in
the Plans,Specifications,General Conditions,Special Conditions and other Contract
Documents.The CONTRACTOR shall remove, replace and/or repair at its own expense and
at the convenience of the OWNER any faulty,defective or improper Work,materials or
equipment discovered within one(1)year from the date of the acceptance of the project as a
whole by the Owner or for such longer period as may be provided in the Plans,
Specifications,General Conditions,Special Conditions or other Contract Documents.
Without limiting the generality of the foregoing,the CONTRACTOR warrants to the
OWNER,that all materials and equipment furnished under this Agreement will be of first
class quality and new,unless otherwise required or permitted by the other Contract\
Documents,that the Work performed pursuant to this Agreement will be free from defects
and that the Work will strictly conform with the requirements of the Contract Documents.
Work not conforming to such requirements, including substitutions not properly approved
and authorized,shall be considered defective.All warranties contained in this Agreement and
in the Contract Documents shall be in addition to and not in limitation of all other warranties
or remedies required and/or arising pursuant to applicable law.Furthermore, CONTRACTOR
will provide written guarantee for work and materials for one(1)calendar year after
acceptance by OWNER.The one(1)period is not a limitation upon manufacturer warranties
or CONTRACTOR's payment and performance Bond(s).
6. Proiect Site.The CONTRACTOR shall,among other things,(i)visit and thoroughly inspect
the project site and any structure(s)or other man-made features to be modified and become
familiar with local conditions under which the project will be constructed and operated;(ii)if
applicable,familiarize itself with the survey,including the location of all existing buildings,
utilities,conditions,streets,equipment,components,and other attributes having or likely to
have an impact on the project;(iii)familiarize itself with the City's layout and design
requirements,conceptual design objectives,and budget for the project;(iv)familiarize itself
with pertinent Project dates, including the Project Schedule;(v)review and analyze all
project geotechnical,hazardous substances,structural,chemical,electrical, mechanical,and
construction materials tests,investigations,and recommendations;and(vi)gather any other
information necessary for a thorough understanding of the project. If the project involves
modifications to any existing structure(s)or other man-made feature(s)on the project site,the
CONTRACTOR shall also review all as-built and record drawings,plans,and specifications
of adjacent work which the CONTRACTOR requests from the City,and shall thoroughly
inspect the existing structure(s)and man-made feature(s)to identify existing deficiencies and
ascertain the specific locations of pertinent structural components.Claims by the
CONTRACTOR resulting from its failure to familiarize itself with the project site or
pertinent documents shall be deemed waived.
17. ASSIGNMENT-CONTRACTOR shall not assign this Agreement,or any rights or any monies due
or to become due hereunder without the prior,written consent of the OWNER.
1. CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed
by its subcontractors.
2. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of this
Agreement by the subcontractor,CONTRACTOR shall require the subcontractor to provide
OWNER and its affiliates with insurance coverage as set forth by the OWNER.
18. THIRD PARTY RIGHTS-Nothing in this Agreement shall be construed to give any rights or
benefits to anyone other than OWNER and CONTRACTOR.
19. PROHIBITION AGAINST 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 Agreement,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 other consideration contingent upon or
resulting from the award or making of this Agreement.
20. NO JOINT VENTURE-Nothing herein shall be deemed to create a joint venture or principal agent
relationship between the parties and neither party is authorized to,nor shall either party act toward third
persons or the public in any manner which would indicate any such relationship with the other party.
21. INDEMNIFICATION—CONTRACTOR shall indemnify and hold harmless the OWNER, its
officers,employees,agents,engineer,and city attorneys(individually and in their official capacity, from
liability, losses,damages,and costs,including,but not limited to,reasonable attorney's fees,to the
extent caused by the negligence,recklessness or intentional wrongful misconduct of CONTRACTOR
and persons employed or utilized by CONTRACTOR in the performance of this Agreement.
CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR'S own
employees against the OWNER and,solely for the purpose of this indemnification and defense,
CONTRACTOR specifically waives its entitlement, if any,to immunity under Section 440.11,Florida
Statutes.This waiver has been specifically and mutually negotiated by the parties.The indemnification
provided above shall obligate the CONTRACTOR to defend at its own expense or to provide for such
defense,at the option of the OWNER,as the case may be,of any and all claims of liability and all suits
and actions of every name and description that may be brought against the OWNER or its officers,
employees,and city attorneys which may covered by this indemnification.In all events the OWNER and
its officers,employees,engineer,and city attorneys shall be permitted to choose legal counsel of its sole
choice,the fees for which shall be reasonable and subject to and included with this indemnification
provided herein.
In consideration of the CONTRACTOR's indemnity obligations,the parties allocate ONE PERCENT
(1%)OF THE CONTRACT SUM as specific consideration for CONTRACTOR's indemnification of
OWNER and that the specific consideration is included in the original Contract Price allocated by
CONTRACTOR among all pay items-receipt of which is acknowledged.
The indemnity provisions set forth in this Paragraph shall survive termination of this Agreement.
22. SAFETY-CONTRACTOR shall be solely and absolutely responsible and assume all liability for
the safety and supervision of its principals,employees,contractors, and agents while performing work
provided hereunder. More specifically,the CONTRACTOR shall be responsible for initiating,
maintaining,and supervising all safety precautions and programs in connection with the Work.The
CONTRACTOR shall take all necessary precautions for the safety of,and shall provide the necessary
protection to prevent damage, injury,or loss to:
1. All employees on the project site and other persons who may be affected thereby.
2. All the Work and all materials or equipment to be incorporated therein,whether in storage on
or off the project site.
3. Other property at the project site or adjacent thereto.
CONTRACTOR shall comply with all applicable Federal Occupational Safety and Health Administration
(OSHA)and Florida Department of Transportation safety standards and shall assure and monitor the
compliance of its Subcontractors with those same standards. Further.
CONTRACTOR shall work in compliance with the OSHA Hazardous Communication Standard and
Florida Department of Environmental Protection guidelines,and shall supply all information about
hazardous chemical being brought onto City property as required by any applicable City Safety and Loss
Control Program.
23. CORPORATE REPRESENTATIONS BY CONTRACTOR-CONTRACTOR hereby represents
and warrants to the OWNER the following:
a. CONTRACTOR is duly registered and licensed to do business in the State of Florida and is
in good standing under the laws of Florida,and is duly qualified and authorized to carry on
the functions and operations set forth in this Agreement.
b. The undersigned signatory for CONTRACTOR has the power,authority,and the legal right
to enter into and perform the obligations set forth in this Agreement and all applicable
exhibits thereto,and the execution,delivery,and performance hereof by CONTRACTOR has
been duly authorized by the board of directors and/or president of CONTRACTOR. In
support of said representation, CONTRACTOR agrees to provide a copy to the OWNER of a
corporate certificate of good standing provided by the State of Florida prior to the execution
of this Agreement.
c. CONTRACTOR is duly licensed under all local,state and federal laws to provide the work
stated in paragraph 1.0 herein. In support of said representation,CONTRACTOR agrees to
provide a copy of all said licenses to the OWNER prior to the execution of this Agreement.
24. BOND-CONTRACTOR shall supply a materials,performance and payment bond(s)in accordance
with Florida law and in substantially in conformance with the forms attached to the Agreement as
Exhibit"A"and approved by the City Attorney.The materials,performance,and payment amounts
shall be in an amount equal to 110%of the Contract Price for the work prescribed herein.The issuance
of bonds required under this Agreement shall not relieve Contractor of any liability under the
Agreement.Contractor shall remain jointly and severally liable with any surety issuing a bond under the
Contract.The premium for such bonds is included in the Contract Price.
25. INSURANCE-During the term of this Agreement,CONTRACTOR shall be responsible for
providing the types of insurance and limits of liability as set forth under this Paragraph.Additionally,all
independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall
fully comply with the insurance provisions contained in these Contract Documents.
a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
minimum amount of$2,000,000 as the combined single limit for each occurrence to protect
the CONTRACTOR from claims of property damages which may arise from any Work
performed under this Agreement whether such Work are performed by the CONTRACTOR
or by anyone directly employed by or contracting with the CONTRACTOR.
b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in the
minimum amount of$1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as the combined single limit for each occurrence to protect the
CONTRACTOR from claims for damages for bodily injury, including wrongful death,as
well as from claims from property damage,which may arise from the ownership,use,or
maintenance of owned and non-owned automobiles, including rented automobiles whether
such operations be by the CONTRACTOR or by anyone directly or indirectly employed by
the CONTRACTOR.
c. The CONTRACTOR shall maintain,during the life of this Agreement,adequate Workers'
Compensation Insurance in at least such amounts as are required by law and Employer's
Liability Insurance in the minimum amount of$2,000,000 for all of its employees performing
Work for the OWNER pursuant to this Agreement.
Current,valid insurance policies meeting the requirements herein identified shall be maintained
during the term of this Agreement.A copy of a current Certificate of Insurance shall be
provided to the OWNER by CONTRACTOR upon the Effective Date of this Agreement which
satisfied the insurance requirements of this Paragraph Renewal certificates shall be sent to the
OWNER 30 days prior to any expiration date.There shall also be a 30-day advance written
notification to the OWNER in the event of cancellation or modification of any stipulated
insurance coverage.The OWNER and its engineer shall be an additional named insured on
all stipulated insurance policies as its interest may appear,from time to time,excluding
worker's compensation and professional liability policies.
Insurance covering the specified additional insureds shall be primary insurance,and all other
insurance carried by the additional insured shall be excess insurance;and with respect to
workers' compensation and employer's liability,comprehensive automobile liability,
commercial general liability,and umbrella liability insurance,CONTRACTOR shall require
CONTRACTOR's insurance carriers to waive all rights of subrogation against OWNER and its
engineer,the engineer's consultants,and their respective officers,directors,partners,
employees and agents.
Each policy shall contain a cross liability or severability of interest clause or endorsement.
26. MEDIATIONNENUE-The parties agree that should any dispute arise between them regarding
the terms or performance of this Agreement,both parties will participate in mediation.The parties agree
to equally share the cost of the mediator. Should the parties fail to resolve their differences through
mediation,then any cause of action filed hereunder shall be filed in the Circuit or County Court for
SEMINOLE County,Florida.The Contractor's surety is bound by this provision.
27. GOVERNING LAW&VENUE-This Agreement is made and shall be interpreted,construed,
governed,and enforced in accordance with the laws of the State of Florida. Venue for any state action or
litigation shall be SEMINOLE County, Florida. Venue for any federal action or litigation shall be
Orlando,Florida.The Contractor's surety is bound by this provision.
28. ATTORNEY'S FEES-Should either party bring an action to enforce any of the terms of this
Agreement,each party shall bear its own costs and expenses of such action including,but not limited to,
reasonable attorney's fees,whether at settlement,trial or on appeal.This provision does not apply to
Contractor's surety.
29. NOTICES-Any notice or approval under this Contract shall be sent,postage prepaid,to the
applicable party at the address shown on the first page of this Contract.
30. WORK IS A PRIVATE UNDERTAKING-With regard to any and all Work performed
hereunder, it is specifically understood and agreed to by and between the parties hereto that the
contractual relationship between the OWNER and CONTRACTOR is such that the CONTRACTOR is
an independent contractor and not an agent of the OWNER.The CONTRACTOR,its contractors,
partners, agents,and their employees are independent contractors and not employees of the OWNER.
Nothing in this Agreement shall be interpreted to establish any relationship other than that of an
independent contractor,between the OWNER,on one hand,and the CONTRACTOR,its contractors,
partners,employees,or agents,during or after the performance of the Work under this Agreement.
31. DOCUMENTS-Public Records; It is hereby specifically agreed that any record,document,
computerized information and program,audio or video tape,photograph,or other writing of the
CONTRACTOR and its independent contractors and associates related,directly or indirectly,to this
Agreement,may be deemed to be a Public Record whether in the possession or control of the OWNER
or the CONTRACTOR. Said record,document,computerized information and program,audio or video
tape,photograph,or other writing of the CONTRACTOR is subject to the provisions of Chapter 119,
Florida Statutes,and may not be destroyed without the specific written approval of the OWNER's City
Manager. Upon request by the OWNER,the CONTRACTOR shall promptly supply copies of said
public records to the OWNER.All books,cards,registers,receipts,documents,and other papers in
connection with this Agreement shall at any and all reasonable times during the normal working hours of
the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and/or
audit.Failure by CONTRACTOR to grant such access and comply with public records laws and/or
requests shall be grounds for immediate unilateral cancellation of this Agreement by the OWNER upon
delivery of a written notice of cancellation. If CONTRACTOR fails to comply with this Section,and the
OWNER must enforce this Section,or the OWNER suffers a third party award of attorney's fees and/or
damages for violating Chapter 119,Florida Statutes,due to CONTRACTOR's failure to comply with
this Section,the OWNER shall collect from CONTRACTOR prevailing party attorney's fees and costs,
and any damages incurred by the City,for enforcing this Section against CONTRACTOR.And, if
applicable,the OWNER shall also be entitled to reimbursement of all attorneys' fees and damages which
the OWNER had to pay a third party because of the CONTRACTOR's failure to comply with this
Section.The terms and conditions set forth in this Section shall survive the termination of this
Agreement.The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and
subject to the Florida Public Records Law.CONTRACTOR agrees that to the extent any document
produced by CONTRACTOR under this Agreement constitutes a Public Record;CONTRACTOR shall
comply with the Florida Public Records Law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119,FLORIDA STATUTES,TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT,CONTACT THE CUSTODIAN OF PUBLIC
RECORDS,THE CITY CLERK,AT(407)327-6560, 1126 East State Road 434,Winter Springs,
Florida 32708 or City-Clerk-Department@winterspringsfl.org.
32. SOVEREIGN IMMUNITY-The OWNER intends to avail itself of the benefits of Section 768.28,
Florida Statutes and any other statutes and common law governing sovereign immunity to the fullest
extent possible.Neither this provision nor any other provision of this Agreement shall be construed as a
waiver of the OWNER's right to sovereign immunity under Section 768.28, Florida Statutes,or other
limitations imposed on the OWNER's potential liability under state or federal law.CONTRACTOR
agrees that OWNER shall not be liable under this Agreement for punitive damages or interest for the
period before judgment. Further,OWNER shall not be liable for any claim or judgment,or portion
thereof,to any one person for over two hundred thousand dollars($200,000.00),or any claim or
judgment,or portion thereof,which,when totaled with all other claims or judgments paid by the State or
its agencies and subdivisions arising out of the same incident or occurrence,exceeds three hundred
thousand dollars($300,000.00).Nothing in this Agreement is intended to inure to the benefit of any third
party for the purpose of allowing any claim which would otherwise be barred under the doctrine of
sovereign immunity or by operation of law.This paragraph shall survive termination of this Agreement.
33. HEADINGS-Paragraph headings are for the convenience of the parties only and are not to be
construed as part of this Agreement.
34. INTEGRATION, MODIFICATION-The drafting,execution,and delivery of this Agreement by
the Parties has been induced by no representations,statements,warranties,or agreements other than
those expressed herein.This Agreement embodies the entire understanding of the parties,and there are
no further or other agreements or understandings,written or oral, in effect between the parties relating to
the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only
be made in writing signed by both parties.
35. WAIVER AND ELECTION OF REMEDIES-Waiver by either party of any terms,or provision
of this.Agreement shall not be considered a waiver of that term,condition,or provision in the future.No
waiver,consent,or modification of any of the provisions of this Agreement shall be binding unless in
writing and signed by a duly authorized representative of each party hereto.This Agreement may be
executed in any number of counterparts,each of which when so executed and delivered shall be
considered an original agreement; but such counterparts shall together constitute but one and the same
instrument.
36. DRAFTING-OWNER and CONTRACTOR each represent that they have both shared equally in
drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this
Agreement in the event of a dispute between the parties.
37. NOTICE-Any notices required to be given by the terms of this Agreement shall be delivered by
hand or mailed,certified mail,return receipt requested,postage prepaid to:
For CONTRACTOR:
All Terrain Tractor Service, Inc.
1980 Cameron Ave
Sanford,Florida 32771
(386)218-6969
For OWNER:
City of Winter Springs
Attn: City Manager
1126 E. State Road 434
Winter Springs, Florida 32708
(407)327-1800
Either party may change the notice address by providing the other party written notice of the change.Any
Notice given as provided herein shall be deemed received as follows: if delivered by personal service,on
the date so delivered; if delivered to an overnight courier service,on the business day immediately
following delivery to such service;and if mailed,on the third business day after mailing.
38. CONFLICT OF INTEREST.
a. The CONTRACTOR agrees that it will not engage in any action that would create a conflict
of interest in the performance of its obligations pursuant to this Contract with the OWNER or
which would violate or cause others to violate the provisions of Part III,Chapter 112, Florida
Statutes,relating to ethics in government and the OWNER's Personnel Policies.
b. The CONTRACTOR hereby certifies that no officer,agent or employee of the OWNER has
any material interest(as defined in Section 112.312(15), Florida Statutes,as over five
percent(5%)either directly or indirectly,in the business of the CONTRACTOR to be
conducted here,and that no such person shall have any such interest at any time during the
term of this CONTRACT.
c. Pursuant to Section 216.347, Florida Statutes,the CONTRACTOR hereby agrees that monies
received from the OWNER pursuant to this Agreement will not be used for the purpose of
lobbying the Legislature or any other State or Federal Agency.
39. ADDITIONAL ASSURANCES.
a. No principal(which includes officers,directors,or executive)or individual holding a
professional license and performing Work under this Agreement is presently debarred,
suspended,proposed for debarment,declared ineligible or voluntarily excluded from
participation in any Work required by this Agreement by any Federal, State,or local
governmental commission,department,corporation,subdivision,or agency;
b. No principal(which includes officers,directors,or executive),individual holding a
professional license and performing Work under this Agreement,employee,or agent has
employed or otherwise provided compensation to,any employee or officer of the OWNER;
and
c. No principal(which includes officers,directors,or executive),individual holding a
professional license and performing Work under this Agreement,employee or agent has
willfully offered an employee or officer of the OWNER any pecuniary or other benefit with
the intent to influence the employee or officer's official action or judgment.
40. E-VERIFY-Pursuant to section 448.095,Florida Statutes,beginning January 1,2021,any City
contractors shall register with and use the U.S.Department of Homeland Security's E-Verify system,
https:He-verify.uscis.gov/emp,to verify the work authorization status of all employees hired on and after
January 1,2021.City Contractors must provide evidence of compliance with section 448.095, Florida
Statutes. Evidence shall consist of an affidavit from the Contractor stating all employees hired on and
after January 1,2021 have had their work authorization status verified through the E-Verify system and a
copy of their proof of registration in the E-Verify system.Failure to comply with this provision will be a
material breach of the contract,and shall result in the immediate termination of the contract without
penalty to the City.The City Contractor shall be liable for all costs incurred by the City securing a
replacement contract, including but not limited to,any increased costs for the same services,any costs
due to delay, and rebidding costs,if applicable. If the City Contractor utilizes Subcontractors the
following shall apply:
a. Contractor shall also require all subcontractors performing work under the Agreement to use
the E-Verify system for any employees they may hire during the term of the Agreement.
b. Contractor shall obtain from all such subcontractors an affidavit stating the subcontractor
does not employ,contract with,or subcontract with an unauthorized alien,as defined in
section 448.095, Florida Statutes.
c. Contractor shall provide a copy of all subcontractor affidavits to the
d. City upon receipt and shall maintain a copy for the duration of the Agreement.
IN WITNESS WHEREOF,the parties have hereunto set their hands and seal on the date I--st above
written.
CITY OF WINT S RI
By:
Shawn Boyle,City Ma , er
Date: 2-
ATTEST:
ATTEST: T
ChristidVowvan, City Clerk
CONTRACTOR
By; James'I Crow VP
Print nar /title:
000 Date: _/14/2023
STATE OF 1=
COUNTY OF 'Sczwt
Tile foregoing instrument was acknowle ed before me by_lnears of( }physical presence or
( )online notarization,this �� day of Y'e. `uc'f't, ,20 : 3 ,
b>' yl( CrL)t,' r^ ,the�( �s�CLQ�—of
—(52 vv, who is personally known to me or who produced
as identi ication and who did take an oath.
D [m , �T 1(--
(Notary Public Signature)
(Print Name) e�
Notary Public,State of
Commission No.: PAE1I&SAR TOI1tPKINB
,:
My Commission Expires: .= MYCOMMI83ION�H M704
:� o?Ad EXPIRES February 16,2027