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HomeMy WebLinkAboutAtlantic Civil Constructors Corporation - SR434 & Winding Hollow Construction Agreement 2024 10 18CITY OF WINTER SPRINGS CONSTRUCTION AGREEMENT State Road 434 at Winding Hollow Boulevard THIS CONSTRUCTION AGREEMENT ("Agreement") is made this J tiLday of 2024 by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as" OWNER" or "City") and ATLANTIC CIVIL CONSTRUCTORS CORPORATION a Florida Corporation authorized and duly licensed to conduct business in the State of Florida ("CONTRACTOR"), as follows: 1. DESCRIPTION OF WORK -CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of an eastbound right -turn deceleration lane on State Road 434 ("SR 434") at Winding Hollow Boulevard ("the Project"). The Project includes the addition of an eastbound right -turn deceleration lane approximately 400 feet in length. The Project scope includes pavement widening, curbing, drainage inlets and pipes, concrete sidewalk, signing & pavement markings, signalization, fiber optic communications, watermain improvements, and utility coordination. All construction work to be consistent with Florida Department of Transportation ("FDOT") Standard Specifications, 2. CONTRACT DOCUMENTS -The Contract Documents consist of this Agreement; Exhibits and Addendum(s) to the Agreement; the Construction Drawings for City of Winter Springs Final Plans, dated May 14, 2024; Contract Plans, Signalization Plans dated July 24, 2024; Invitation to Bid Number ITB 01-24-01 PH issued by the City, dated June 28, 2024, including Addenda and Exhibits thereto, if any; Contractor's Bid Submittal, dated August 14, 2024; General Conditions, if any; FHWA Form 1273; Supplemental Terms and Conditions issued by the City, if any; and any and all Change Orders approved by the City after execution of this Agreement. These Contract Documents are hereby incorporated into this Agreement 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: a. Change Orders. b. This Agreement and all associated Exhibits, and any Addenda thereto. c. Supplemental Terms and Conditions to this Agreement. d. General Terms and Conditions of this Agreement e. FHWA Form 1273 f. U.S. Department of Labor Prevailing Wage Determination (See Exhibit A-1) g. Engineering Plans and Drawings h. ITB 01-24-01PH (FPN 432642-1-58-01) for SR434 At Winding Hollow Blvd. issued by the City of Winter Springs dated May 10, 2024, including any subsequently issued Addenda i. Contractor's Bid Submittal Any inconsistency in the work description shall be clarified by the OWNER and performed by the CONTRACTOR. Page � 1 Construction Agreement SR434 at Winding Hollow Blvd. 4. AGREEMENT INTERPRETATION -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 - a. All provisions regarding Contract Time are essential to the performance of this Contract. b. Contract Time. The Contract Time shall begin to run upon the Owner's issuance of the Notice to Proceed. The Contractor shall sign the Notice to Proceed and deliver to the Owner's Project Manager. c. Substantial Completion. The work shall be substantially completed within two hundred and eighty five (285) 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 Project 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 the 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. The Work shall be at Final Completion and ready for Final Payment within Forty-five (45) 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. Page � 2 Construction Agreement SR434 at Winding Hollow Blvd. 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 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 Final Completion may be established in the Supplementary Conditions, 7. LIQUIDATED DAMAGES -OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not final 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 finally 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 $1685.00 for each calendar day that expires after the time specified in Paragraph 6 for final completion until the work is finally complete and $1685.00 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 OWNER may approve adjustments to the liquidated damages amounts in accordance with the Construction Project Administration Manual (CPAM) provided all contract work is 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, the Total Contract Price of One Million, Five Hundred and Ninety -Four Thousand, Seven Hundred and Fifty -Seven dollars and Eighty -Eight Cents ($1,594,757.88). 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 Worl< may involve significant Worl< 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. Page 13 Construction Agreement SR434 at Winding Hollow Blvd. 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: 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 e. CONTRACTOR has made 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 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. Page � 4 Construction Agreement SR434 at Winding Hollow Blvd. 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 LAP Division 1 Specification 9-5 and the Contract Documents. In the event of any conflict, the requirements of LAP Division 1 Specification 9-5 shall take precedence. Progress payments may be withheld if: 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 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 Pegasus Engineering, LLC, 301 West State Road 434, Suite 309, Winter Springs, FL 32708 as the agent or office to which the CONTRACTOR must submit payment requests or invoices to OWNER. The OWNER further hereby identifies Pegasus Engineering, LLC, Attn: Fursan Munjed, as the agent that must approve payment requests prior to their submission to OWNER. 13. FINAL PAYMENT; CHANGE ORDERS -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: a. Faulty work appearing after final completion has been granted; b. Work that does not comply with the Contract Documents: c. Failure of Contractor to comply with any special guarantees required by the Contract Documents. Page � 5 Construction Agreement SR434 at Winding Hollow Blvd. 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 (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 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 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 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. 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. 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. Page � 6 Construction Agreement SR434 at Winding Hollow Blvd. 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, 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 worl<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 Worl<, 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 it 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. Page � 7 Construction Agreement SR434 at Winding Hollow Blvd. 16. 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 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 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 structures) 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 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. Page � 8 Construction Agreement SR434 at Winding Hollow Blvd. g. Punchlist. The CONTRACTOR shall be responsible for the creation of the required Punchlist(s) as provided herein. 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. b. If CONTRACTOR, prior to the commencement of any Worl< 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 —To the extent provided by law, Contractor shall indemnify, defend, and hold harmless the OWNER and the State of Florida, Department of Transportation, including the Department's officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from negligent or wrongful act(s) of Contractor, or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by Contractor. The foregoing indemnification shall not constitute a waiver of the Department's or OWNER's sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28. Nor shall the same be construed to constitute agreement by Contractor to indemnify OWNER for the negligent acts or omissions of OWNER, its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by Contractor to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties. This indemnification shall survive the termination of this Agreement." CONTRACTOR specifically assumes potential liability for actions brought by CONTRACTOR'S own employees against the OWNER and the State of Florida, Department of Transportation 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 and the State of Florida, Department of Transportation, 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 and the State of Florida, Department A Transportation, including the Department's officers, agents, and employees which may covered by this indemnification. In all events the OWNER and its officers, employees, engineer, and city attorney and the State A Florida, Department of Transportation, including the Department's officers, agents, and employees 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. Page 19 Construction Agreement SR434 at Winding Hollow Blvd. In consideration of the CONTRACTOR's indemnity obligations, 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. 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. 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 bonds in accordance with Florida law and in substantially in conformance with the forms attached to the Agreement as Exhibits "A-1 and A-2" 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 vvork hereunder shall fully comply with the insurance Page ( 10 Construction Agreement SR434 at Winding Hollow Blvd. provisions contained in these Contract Documents. The OWNER and The State of Florida, Department of Transportation must be named as "Additional Insured" on the Insurance Certificate for Commercial General Liability where required. 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. 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 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 Page 111 Construction Agreement SR434 at Winding Hollow Blvd. 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-Clerl<-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 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. 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: Company Name: Atlantic Civil Constructors Corporation Attn: Chris Sousa Address: 1975 Apopka Blvd., Apopka, FL 32703 Phone: 407-277-8410 E-Mail: chris.sousa@atlantic-civil.com For OWNER: City of Winter Springs Attn: City Manager 1126 E. State Road 434, Winter Springs, Florida 32708 (407) 327-1800 Page � 12 Construction Agreement SR434 at Winding Hollow Blvd. 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. d. No member, officer or employee of the (Agency) or of the locality during his/her tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof. 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; b. No principal (which includes officers, directors, or executive), individual holding a professional license and performing Worl< 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. d. The CONTRACTOR and OWNER acknowledge and agree that it is the duty of every state officer, employee, agency, special district, board, commission, contractor, and subcontractor to cooperate with the inspector general in any investigation, audit, inspection, review, or hearing pursuant to Florida statute 20.055. 39. 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://e- 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 Page 113 Construction Agreement SR434 at Winding Hollow Blvd. 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 -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 City upon receipt and shall maintain a copy for the duration of the Agreement. Page � 14 Construction Agreement SR434 at Winding Hollow Blvd. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CII By: PHI Interim City Manager Date: ATTEST: CHRISTIAN GOWAN City Clerk Date: ' Oy I ' ATLANTIC CIVIL CONTRUCTORS CORPORATION: �L� Print name/title: Chris Sousa - President Date: 10/18/24 STATE OF: COUNTY OF ida Flor Orancre The foregoing instrument was acknowledged before me by means of ( X) physical presence or (_) online notarization, this president 18 day of October , 2024, by Chris Sousa ry Pubifi Signatu�) Print Name) Notary Public;=State of Commission No.: My Commission Expires: the of Atlantic civil Constructors Corp who i ersonally know to me or who produced as identification and who did take an oath. i Notery Pubilc State of Florida 011de Rodriquez My Commission HH 389149 �, EXplre9 6/24/2027 Page 115 Construction Agreement SR434 at Winding Hollow Blvd.