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HomeMy WebLinkAboutAccurate Power and Technology - Pickelball Court Lighting Construction Agreement 2023 08 23CITY OF WINTER SPRINGS PICKLEBALL COURT LIGHTING CONSTRUCTION AGREEMENT THIS AGREEMENT is made this day of , 2023, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporafi n ("OWNER") and ACCURATE POWER AND TECHNOLOGY, a Florida Profit Corporation authorized and duly licensed to conduct business in the State of Florida ("CONTRACTOR"), as follows: 1. DESCRIPTION OF WORK -CONTRACTOR shall perforni the work, in accordance with the Contract Documents for the construction and instillation of lighting fixtures at the Pickleball Courts located in Central Winds Park in Winter Springs, Florida ("the Project"). 2. CONTRACT DOCUMENTS -The Contract Documents consist of this Agreement; Exhibits and Addendum(s) to the Agreement; ITB Documents issued by the City, dated June 23, 20239 including Addenda, if any; Contractor's Bid Submittal, dated July 28, 20236 General Conditions, if any; Supplemental Terms and Conditions by the City, if any; the Punchlist prepared by the Parties following substantial completion; and all Change Orders approved by the City after 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 Document shall be as binding as if called for by all Documents. 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. 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: a. Change Orders b. Agreement, Exhibits and Addenda c. Supplemental Terms and Conditions Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 1 of 31 d. General Terms and Conditions e. Engineering Plans and Drawings £ Invitation To Bid for Picklebali Court Lighting issued by the City of Winter Springs dated June 23, 2023, including any subsequently issued Addenda g. Contractor's Bid Submittal dated July 28, 2023 h. Punchlist i. [INSERT ADDITIONAL DOCUMENTS AS REQUIRED] 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. 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 - a. All provisions regarding Contract Time are essential to the performance of this Contract. b. Contract 7inze. The Contract Time shall begin to run on upon the OWNER's issuance of the Notice to Proceed. The CONTRACTOR shall sign the Notice to Proceed and deliver it to the OWNER's Project Manager. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 2 of 31 c. Substantial Completion. The Work shall be substantially completed within One Hundred and Twenty Two ( 122 ) calendar days after the date when the Contract Time begins to run. 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. d. Punchlist Creation and Acceptance. No more than 10 calendar days following Substantial Completion, the CONTRACTOR shall provide to OWNER a draft Punchlist detailing the remaining items and estimated cost of each required to render the Work complete, satisfactory, and acceptable. OWNER shall review the draft Punchlist and provide any comments to the CONTRACTOR. The OWNER and CONTRACTOR shall cooperate in the development of the Punchlist regarding both the items to be included and the estimated cost of each. The OWNER shall approve a final Punchlist within 30 calendar days for projects costing less than or equal to $10 million, or 45 calendar days for projects costing over $10 million, of Substantial Completion. OWNER shall deliver a final approved Punchlist to CONTRACTOR no more than 5 calendar days following final approval of the Punchlist. If the CONTRACTOR fails to coordinate with the OWNER to create a Punchlist and the OWNER has given the CONTRACTOR written notice of the failure, then the OWNER may withhold 150 percent of the estimated costs required to complete items the OWNER intended to include on the Punchlist, without input from the CONTRACTOR, and shall deliver the Punchlist within the time period in this subsection. The failure to include any corrective work or pending items not yet completed on the Punchlist does not alter the responsibility of the CONTRACTOR to complete all the Work purchased under this Agreement. e. Final Completion. The Work shall be ftnally completed, ready for Final Payment within Thirty { 30) calendar days after the date of delivery of the final, approved Punchlist, which shall be at least 30 calendar days following the delivery of the final, approved Punchlist. f. 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. g. If applicable to the particular Work required by this Agreement, Float time is allocated specifically to the Contractor's responsibility for coordination of utility relocations as described in the General Conditions and is included in the Contract Time provided by this Section. OWNER will not consider any Contract Time extensions related to utility coordination matters Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 3 of 3 I including, but not limited to, utility relocations and conflicts, unless the utility relocation delays exceed the float time and also extend the Project Schedule's Critical Path. h. In the event that the Work requires phased construction, then multiple points of Substantial Completion may be established in the Supplementary Conditions. If the Work requires phased construction, a Punchlist shall be created for each phase of construction, and the timeline established herein for Punchlist compliance shall be followed for each phase. 7. LIpUIDATED 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 $1,045.00 for each calendar day that expires after the time specified in Paragraph 6 for substantial completion until the work is substantially complete and $1,045.00 for each calendar day that expires after the time specified in Paragraph 6 for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. The liquidated damages provided in this Section are intended to apply even if CONTRACTOR is terminated, in default, or if the CONTRACTOR has abandoned the Work. This provision binds Contractor's performance bond surety. 8. CONTRACT PRICE, UNIT PRICE CONTRACT -The OWNER will pay the CONTRACTOR in current funds for the performance of the work in accordance with the Contract Documents, subject to additions and deductions approved by Change Order, the Total Contract Price of One Hundred Fifty -Six Thousand Seven Hundred and Forty -Five Dollars and 98/100 ($ 1569745.98). CONTRACTOR agrees to accept the Contract Price 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 c]ose 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. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 4 of 31 (( ) 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 CONT'RACTOR'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 apart of the Bid, which shall be as fully apart 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. TEKMINATION; 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: a. 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 b. 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 c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder; or d. CONTRACTOR has committed any act of fraud upon the OWNER; or Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 5 of 31 e. CONTRACTOR hasmade a material misrepresentation of fact to the OWNER while performing its obligations under this Agreement; or f. 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 perfornance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion, not; 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 PRIOR TO SUBSTANTIAL COMPLETION; DUE DATE FOR PROGRESS PAYMENTS;_ SUBMITTAL OF PAYMENT REQUESTSI CHANGE ORDERS — 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. By submitting each request for a progress payment, the CONTRACTOR certifies, to the best of its knowledge and belief, that: (1) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract; (2) All payments due to subcontractors and suppliers from previous payments received under the contract have been made, and timely payments will be made from the proceeds of the payment requested, in accordance with subcontract agreements; (3) The request is made in good faith and is a true and accurate accounting of the work performed and materials supplied; and (4) The representative signing the request for a progress payment is authorized to certify the request on behalf of the CONTRACTOR. Progress payments may be withheld if: Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 6 of 31 a. Work is found defective and not remedied; b. CONTRACTOR does not provide consent of surety with each payment application; c. Another contractor is damaged by an act for which CONTRACTOR is responsible; or d. In the opinion of the OWNER that CONTRACTOR's work is not progressing satisfactorily. OWNER herein (_� designates or LX� does not designate 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. 218.74(1), 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 Director of, Parks and Recreation as the agent or office to which the CONTRACTOR must submit payment requests or invoices to OWNER. By making payments, OWNER does not waive claims including but not limited to: a. Faulty work appearing after Substantial Completion has been granted; b. Work that does not comply with the Contract Docwnents; c. Failure of Contractor to comply with any special guarantees required by the Contract Documents. 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 Pickleball Cowl Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 7 of 3 I Work will not be completed within the Contract Time. The additional retainage, 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 instntctions, 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 back-up 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. 13. FINAL PAYMENT -OWNER shall withhold up to S% of the Contract Price until the date of Substantial Completion, in accordance with the Local Government Prompt Payment Act ("Act"). As provided in Section 6 above, within 10 calendar days of Substantial Completion, the CONTRACTOR shall create and deliver to OWNER a draft Punchlist detailing Work which must still be completed to reach Final Completion under the terms of this Agreement, and the Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 8 of 31 estimated cost to complete each item. Within thirty (30) calendar days of Substantial Completion for projects with a cost of $10 million or lessor within forty-five (45) calendar days of Substantial Completion for projects with a cost of over $10 million, the OWNER shall approve a finalized Punchlist. As provided above, the OWNER and CONTRACTOR shall coordinate and cooperate in the development of the final Punchlist. Within 5 calendar days of OWNER finalizing and approving the Punchlist, the OWNER shall deliver the final approved Punchlist to CONTRACTOR. Within 20 calendar days of the delivery of the final approved Punchlist, and only upon receipt of a proper invoice or payment request from CONTRACTOR, OWNER shall pay to CONTRACTOR the remaining contract balance, including all retainage previously withheld, less an amount equal to 150 % of the estimated cost to complete the items on the Punchlist, except as provided herein. Should no Punchlist be created within the thirty- or forty -five-day timeframe, as applicable, because of the failure of CONTRACTOR to cooperate with OWNER, OWNER shall pay to CONTRACTOR the remaining contract balance, including all retainage previously withheld, less an amount equal to 150 % of the estimated cost to complete the items on the Punchlist as determined solely by the OWNER. CONTRACTOR may submit a proper invoice or payment request for the amount of retainage held to complete the Punchlist items only once all Punchlist items have been completed to the satisfaction of the OWNER. OWNER may continue to withhold retainage if a good faith dispute exists as to whether one or more Punchlist items has been completed in accordance with the terms of this Agreement up to 150% of the total costs to complete those items in dispute. The date of Final Completion shall be no less than 30 days following delivery of the final approved Punchlist to CONTRACTOR. The remaining retalnage amount withheld may shall be released with the Final Payment after the issuance of the Final Completion Certificate. The Final Completion Certificate shall be issued upon completion of all remaining Punchlist items. 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. 14. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY -The duties and authority of the OWNER are as follows: a. General Administration of Contract. The primary function of the OWNER is to provide the general administration of the contract. In performance of these duties, the City Manager or their 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. Picklebail Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 9 of 31 b. 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. c. 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, or 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. d. 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. e. Refection 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. f. 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. g. 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 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 10 of 31 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 pxogress 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. l6. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follows: a. 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. b. 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. c. 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. d. 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. e. 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 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 11 of 31 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). f. Project 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 has been requests from the City, and shall thoroughly inspect the existing structure(s) and man-made features) 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. g. Punchlist. The CONTRACTOR shall be responsible for creation of the required Punchlist{s}. Punchlist{s} must be approved by the OWNER. 17. ASSIGNMENT -CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, written consent of the OWNER. a. CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by its subcontractors. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 12 of 3 l b. 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 j oint 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, danZages, and costs, including, but not limited to, reasonable attorneys fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and persons employed or utilized by CONTRACTOR in the perforniance 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, UNE PERCENT { 1 %) OF TI-lE 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. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 13 of 3 l 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. Mare 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 maybe 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. CONTRACTOR shall work in campliance 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 far 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. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 14 of 31 24. BOND -CONTRACTOR shall supply a materials, performance and payment bonds) 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 shall be 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 daniage, 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 nunimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. d. The CONTRACTOR shall maintain comprehensive builder risk insurance, which shall cover CONTRACTOR' S labor, and any materials and equipment to be used for completion of the Work performed under this Agreement, against all risks of direct physical loss, excluding earthquake and flood, for a minimum amount of the Total Contract Price. CONTRACTOR shall maintain the builder risk insurance required by this subsection until final completion. Current, valid insurance policies meeting the requirements herein identifed 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 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 15 of 31 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. MEDIATION/VENUE -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. 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. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 16 of 31 30. 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 subj eet 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 athird-party award of attarney'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 attorneys 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, City Clerk's Office, 1126 East State Road 434, Winter Springs, Florida 32708, or City- Clerk-Department@winterspringsfl.org. 31. 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 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 17 of 3 i 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. 32. HEADINGS -Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 33. 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. 34. 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. 35. 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. 36. NOTICEnotices 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: Accurate Power and Technology Attu: David Kornstadt Address:_15519 W. U.S. Highway 441, Suite IOIA Eustis, FL 32726 Phone: (352) 7354285 Fax: davidk@accuratepowerandtechnology.com For OWNER: Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 18 of 31 City of Winter Springs Attn: City Manager 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 3274 800 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. 37. 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. 38. 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; bA 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 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 19 of 31 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. 39. E-VERIFY -Pursuant to section 448.U95, Florida Statutes, beginning January 1, 20211 any City contractors shall register with and use the U.S. Department of Homeland Security's E- Verify system, https://e-\rerilv.uscis.gov/entp, 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 fi•om the Contractor stating all employees lured 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-Venfy 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 tern of the Agreement, b. Contractor shall obtain fiom 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 City upon receipt and shall maintain a copy for the dLU'ation of the Agreement. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. ATTEST: CITI` OF WINTER SPRINGS: By: v PHILIP HURSH Interim City Manager Date: 8/Z5 /Z3 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Po4ver and Technology Page 20 of 3 I 1� woo r MRISTIAN GOWAN City Clerk Date: �0 CONTRACTOR: STATE OF � �c+,cQa, COUNTY OF Lc„Ite_• The foregoing instrument was ac Liowledged before me by means of (�) physical presence or online notarization, this day of 11 tLSI , 20 a3i by Salle IJUIC(n , the Prwd of I�CCU101 V%tVey and "TedAmk I is personally known to me or who produced as lcMiltification and who did take an oath. ��;,t;�ay,,, HALEY M BOGERT 3� g�;s Notary Public•State of Flvtid = � Commission N HH 231311 My Commission Expires February 20, 2026 Public Si>Lfiature) (Print Name'' � Notary Public, State of �-IUr�rJa Commission No.. l } H I. I 1 My Commission Expires. a (ao I A02.W Pickleball Court Lighting Construction Agreement Ciry of Winter Springs and Accwate Power and Technology Page 21 of 3 I Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 22 of 31 Bond No. BY THIS PERFORMANCE BOND, We is telephone number is municipal corporation, as EXHIBIT A as Principal, whose address and telephone number is as Surety, whose address is and and are bound to the City of Winter Springs, a Florida OWNER, whose address is 1126 E. State Road 434, Winter Springs, Florida 32708 and telephone number is 407-3274800, in the initial sum of $ (110% of Contract Price), or such greater amount as the Contract may be adjusted from time to time in accordance with the Contract between the Principal and OWNER) (the "Penal Sum"). WHEREAS, the Principal has executed a contract with the OWNER, dated ,for the construction of the project in the City of Winter Springs, Seminole County, Florida (the "Project"); and WHEREAS, the OWNER has required the Principal to furnish a performance bond in accordance with law and as a condition of executing the Contract with Principal; and WHEREAS, this bond is being entered into to satisfy the requirements of Section 255.05(1), Florida Statutes and the Contract referenced above, as the same may be amended, and additionally, to provide common law rights more expansive than as required by statute. NOW THEREFORE, the Surety and the Principal, both joint and severally, and for themselves, their heirs, administrators, executors, successors and assigns agree as follows: 1. CONTRACT INCORPORATED; SURETY AND PRINCIPAL BOUND FOR FULL PERFORMANCE. The Contract is incorporated by reference and made a part of this bond. The Surety and the Principal are bound for the full performance of the Contract including without exception all of the Contract Documents (as defined in the Contract) and all of their terms and conditions, both express and implied. Without limiting the Principal's and Surety's obligations under the Contract and this bond, the Principal and Surety agree: A. Promptly and faithfully perform their duties and all the covenants, terms, conditions, and obligations under the Contract including, but not limited to the insurance provisions, guaranty period and the warranty provisions, in the time and manner prescribed in the Agreement, and B. Pay OWNER all losses, damages, delay damages (liquidated or actual), expenses, costs and attorneys' fees under section 627.756, Florida Statutes, including costs and attorneys fees on appeal that OWNER sustains resulting directly or indirectly from any breach or default by Principal under the Contract, and Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 23 of 31 C. Satisfy all claims and demands incurred under the Contract, and fully indemnify and hold harmless the OWNER from all costs and damages which it may suffer by reason or failure to do so. 2. OWNER'S AFFIDAVIT OF CONTRACTOR BREACH OR DEFAULT. If the OWNER shall provide to Surety the written affidavit of the OWNER stating that the Principal is in breach or default of the Contract, and that such breach or default remains uncured by the Principal, then upon delivery of such affidavit to the Surety in the method for providing notices as set forth in Paragraph 7 below, Surety must promptly notify the OWNER in writing which action it will take as permitted in Paragraph 3. 3. SURETY'S OBLIGATION UPON DELIVERY OF OWNER'S AFFIDAVIT OF CONTRACTOR'S BREACH OR DEFAULT. Upon the delivery of the OWNER's affidavit of breach or default by the Principal as provided in Paragraph 2 above, the Surety may promptly remedy the breach or default or must, within ten (10) days, proceed to take one of the following courses of action: A. Proceed Itself. Complete performance of the Contract including correction of defective and nonconforming Work through its own CONTRACTORS or employees, approved as being acceptable to the OWNER, in the OWNER's sole discretion, provided, however, that OWNER's discretion in approving the Surety's CONTRACTOR will not be unreasonably withheld as to any CONTRACTOR who would have qualified to offer a proposal on the Contract and is not affiliated in any way with the Principal. During this performance by the Surety, the OWNER will pay the Surety from its own funds only those sums as would have been due and payable to the Principal under the Contract as and when they would have been due and payable to the Principal in the absence of the breach or default not to exceed the amount of the remaining Contract balance less any sums due the OWNER under the Contract. During this performance by Surety, any payment bond required under the Contract must remain in full force and effect; or B. Tender a completing CONTRACTOR acceptable to OWNER. Tender a CONTRACTOR, together with a contact for fulfillment and completion of the Contract executed by the completing CONTRACTOR, to the OWNER for the OWNER's execution. OWNER's discretion to approve Surety's completing CONTRACTOR will not be unreasonably withheld as to any CONTRACTOR who would have qualified to offer a proposal on the contract and is not affiliated with the Principal. OWNER's discretion to approve CONTRACTOR as the completing CONTRACTOR and to approve the tendered contract shall be in OWNER's sole and absolute discretion. Upon execution by the OWNER of the contract for fulfillment and completion of the Contract, the completing CONTRACTOR must furnish to the OWNER a performance bond and a separate payment bond, each in the form of those bonds previously furnished to the OWNER for the Project by the Principal. Each such bond must be in the Penal Sum of the full cost to complete the Contract. The OWNER will pay the completing CONTRACTOR from its own funds only those sums as would have been due and payable to the Principal under the Contract as and Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 24 of 31 when they would have been due and payable to the Principal in the absence of the breach or default not to exceed the amount of the remaining Contract balance less any sums due the OWNER under the Contract. To the extent that the OWNER is obligated to pay the completing CONTRACTOR sums which would not have been due and payable to CONTRACTOR under the Contract (any sums in excess of the then remaining Contract balance less any sums due the OWNER under the Contract), the Surety must pay the OWNER the full amount of those sums at the time the completing CONTRACTOR tenders an invoice to the OWNER so that the OWNER can utilize those sums in making timely payment to the completing CONTRACTOR; or C. Tender the Full Penal Sum. Tender to the OWNER the full Penal Sum of the performance bond. The OWNER will refund to the Surety without interest any unused portion not spent by the OWNER procuring and paying a completing CONTRACTOR or completing the Contract itself, plus the cost allowed under Section 4, after completion of the contract for fulfillment and completion of the Contract and the expiration of any applicable warranties; or D. Other Acts. Take any other acts mutually agreed upon in writing by the OWNER and the Surety. E. IT SHALL BE NO DEFENSE TO SURETY'S OBLIGATION TO UNDERTAKE ONE OF THE PRECEDING COURSES OF ACTION THAT THE PRINCIPAL CONTENDS THAT IT IS NOT IN BREACH OR DEFAULT OF THE CONTRACT, OR THAT THE NOTICE OF BREACH OR DEFAULT WAS DEFECTIVE, OR THAT THE PRINCIPAL HAS RAISED ANY OTHER CLAIM OF DEFENSE OR OFFSET, PROVIDED ONLY THAT THE SURETY HAS RECEIVED THE AFFIDAVIT OF THE OWNER AS SPECIFIED IN PARAGRAPH 2. 4. SURETY'S ADDITIONAL OBLIGATIONS. In addition to those duties set forth herein above, the Surety must promptly pay the OWNER (i) all losses, costs and expenses resulting from the Principal's breach(es) or default(s), including, without limitation, fees (including attorney's fees pursuant to section 627.756, Florida Statutes and related costs), expenses and costs for architects, ENGINEERs, consultants, testing, surveying and attorneys, plus (ii) liquidated or actual damages, whichever may be provided for in the Contract, for lost use of the Project, plus (iii) re -procurement costs and fees and expenses, plus (iv) costs incurred at the direction, request, or as a result of the acts or omissions of the Surety; provided that in no event shall Surety's liability exceed the Penal Sum of this Bond. 5. SURETY'S WAIVER OF NOTICE. The Surety waives notice of any Modifications to the Contract, including changes in the Contract Time, the Contract Sum, the amount of liquidated damages, or the work to be performed under the Contract. 6. NO THIRD -PARTY BENEFICIARIES. The Surety provides this performance bond for the sole and exclusive benefit of the OWNER and OWNER's heirs, administrators, executors, successors and assigns. No other party, person or entity has any rights against the Surety. Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 25 of 31 7. METHOD OF NOTICE. All notices to the Surety, the Principal or the OWNER must be given by Certified Mail, Return Receipt Requested, to the address set fourth for each party below: SURETY: Name: Attention: Street: City, State: Zip: PRINCIPAL: Name: Attention: Street: City, State: Zip: OWNER: The City of Winter Springs Attention: Shawn Boyle, City Manager 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-5957 with a copy to: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802 (407) 425-9566 Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 26 of 31 8. STATUE OF LIMITATIONS. Any statutory limitation, which may be contractually superseded, to the contrary notwithstanding, any action hereon may be instituted so long as the applicable statute of limitations governing the Contract (including any warranty period) has not run or expired or within three (3) years following Final Completion of the Contract (including any warranty period) and acceptance of the Work performed under the Contract by the OWNER, whichever is longer. 9. RECITALS. The recitals contained in this Performance Bond are incorporated by reference herein and are expressly made a part of this Performance Bond. 10. GOVERNING LAW. This performance bond shall be governed by, and construed in accordance with, the laws of the State of Florida without regard to its conflict of laws provisions. 11. VENUE. In the event any legal action shall be filed upon this performance bond, venue shall lie exclusively in the Circuit Court for Seminole County, Florida. 12. MISCELLANEOUS. A. The Surety agrees that this performance bond shall afford the OWNER with all of the protections and rights afforded under Florida Statutes and under common law. B. This performance bond is issued in addition to any other bond or warranty required under the Contract including, but not limited to, any labor and materials payment bond and maintenance bond. Each bond issued under the Contract shall be construed as separate and distinct from each other. C. In the event that the Surety fails to fulfill its obligations under this performance bond, then the Surety shall also indemnify and hold the OWNER harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees and costs for all trial and appellate proceedings, resulting directly or indirectly from the Surety's failure to fulfill its obligations hereunder. This subsection shall survive the termination or cancellation of this performance bond. D. This performance bond shall remain in full force and effect until such time all the work, labor and materials under the Contract have been performed or provided to the OWNER'S complete satisfaction, through the expiration of all warranty periods. Picl<leball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 27 of 31 Principal (Typed Firm Name) Surety (Typed Firm Name) (Seal) (Seal) By: By: (Signature) (Printed Name) (Title) (Address) (Date of Execution) (Signature) (Printed Name) (Title) (Address) (Date of Execution) Pickleball Court Lighting Const►•uction Agreement City of Winter Springs and Accurate Power and Technology Page 28 of 31 EXHIBIT A LABOR AND MATERIALS PAYMENT BOND Bond No. BY THIS LABOR AND MATERIALS PAYMENT as Principal, whose and telephone number is as Surety, whose and telephone number is add BOND, We ress is and address is are bound to the City of Winter Springs, a Florida municipal corporation, as OWNER, whose address is 1126 E. State Road 434, Winter Springs, Florida 32708 and telephone number is 407-327-1800, in the initial sum of $ (110% of Contract Price), or such greater amount as the Contract may be adjusted from time to time in accordance with the Contract between the Principal and OWNER) (the "Penal Sum"). WHEREAS, the Principal has executed a contract with the OWNER, dated for the construction of the project in the City of Winter Springs, Seminole County, Florida (the "Project"); and WHEREAS, the OWNER has required the Principal to furnish a labor and materials payment bond in accordance with law and as a condition of executing the Contract with Principal; and WHEREAS, this bond is being entered into to satisfy the requirements of Section 255.05(1), Florida Statutes and the Contract referenced above, as the same may be amended, and additionally, to provide common law rights more expansive than as required by statute. NOW THEREFORE, the Surety and the Principal, both t and severally, and for themselves, their heirs, administrators, executors, successors and assigns agree as follows: l . CONTRACT INCORPORATED; SURETY AND PRINCIPAL BOUND FOR FULL PERFORMANCE. The Contract is incorporated by reference and made a part of this bond. The Surety and the Principal are bound to promptly make payments to all claimants, as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials, supplies, or rental equipment used directly or indirectly by Principal in the prosecution of the work provided under the Contract. Any such payments shall not involve the OWNER in any expense. 2. CLAIMS. Claims made under this bond shall be made pursuant to provisions of Section 255.05, Florida Statutes, and applicable law. Therefore, a claimant, except a laborer, who Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 29 of 31 is not in privity with the Principal shall, before commencing or not later than 45 days after commencing to furnish labor, services, or materials for the prosecution of the work, furnish the Principal with written notice that he or she intends to look to the bond for protection. A claimant who is not in privity with the Principal and who has not received payment for his or her labor, services, or materials shall deliver to the Principal and to the surety written notice of the performance of the labor or delivery of materials or supplies and of the nonpayment. The notice of nonpayment may be served at any time during the progress of the work or thereafter but not before 45 days after the first furnishing of labor, services, or materials, and not later than 90 days after the final furnishing of the labor, services, or materials by the claimant or, with respect to the rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. Any notice of nonpayment served by a claimant who is not in privity with Principal which includes sums for retainage must specify the portion of the amount claimed for retainage. 3. SURETY'S WAIVER OF NOTICE. The Surety waives notice of any modifications to the Contract, including changes in the Contract Time, the Contract Sum, or the labor, work, or materials required to be performed under the Contract. 4. BENEFICIARIES. The Surety provides this performance bond for the sole and exclusive benefit of the OWNER and OWNER's heirs, administrators, executors, successors and assigns, as well as for the benefit of any claimants who have actually provided labor, material, rental equipment, or services under the Contract. 5. RECITALS. The recitals contained in this labor and materials payment bond are incorporated by reference herein and are expressly made a part of this bond. 6. GOVERNING LAW. This labor and materials payment bond shall be governed by, and construed in accordance with the laws of the State of Florida without regard to its conflict of laws provisions. 7. VENUE. In the event any legal action shall be filed upon this labor and materials payment bond, venue shall lie exclusively in the Circuit Court for Seminole County, Florida. 8. MISCELLANEOUS. A. The Surety agrees that this labor and materials payment bond shall afford the OWNER and all claimants under the Contract with all of the protections and rights afforded under Florida Statutes and under common law. B. This labor and materials payment bond is issued in addition to any other bond or warranty required under the Contract including, but not limited to, any performance bond and maintenance bond. Each bond issued under the Contract shall be construed as separate and distinct from each other. C. In the event that the Surety fails to fulfill its obligations under this labor and materials payment bond, then the Surety shall also indemnify and hold the OWNER harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees Pickleball Court Lighting Construction Agreement City of Winter Springs and Accurate Power and Technology Page 30 of 31 and costs for all trial and appellate proceedings, resulting directly or indirectly fiom the Surety's failure to fulfill its obligations hereunder. This subsection shall survive the termination or cancellation of this labor and materials payment bond. D. This labor and materials payment bond shall remain in full force and effect until such time that the legal deadline for filing a claim hereunder has duly expired. Principal Surety (Typed Firm Name) (Typed Firm Name) (Seal) (Seal) By: By: (Signature) (Signature) (Printed Name) (Printed Name) (Title) (Title) (Address) (Address) (Date of Execution) (Date of Execution) Pickleball Court Lighting Consh•uction Agreement City of Winter Springs and Accurate Power and Technology Page 31 of 31