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HomeMy WebLinkAbout2006 02 27 Consent 405 Utility Water Treatment Plant COMMISSION AGENDA ITEM 405 CONSENT X February 27, 2006 Meeting MGR/DEPT Authorization REQUEST: Utility Department Requesting Approval to enter into a contract for the upgrade of the electrical wiring and equipment at Water Treatment Plant #3. PURPOSE: The purpose of this Board item is to request authorization to enter into a contractual agreement with Florida Industrial Electric, Inc for $281,240.00 plus 10% contingency. CONSIDERATIONS: This project is needed to upgrade the electrical wiring, components and controls at Water Treatment Plant #3. Sealed bids were opened on January 18, 2006 under RFP No. ITB 004-06-GB There was one bid received. The low and only bidder was Florida Industrial Electrical, Inc (FIE) WITH A BID OF $281,240.00. The FIE submittal meets the requirements delineated in the ITB. The recommendation from CPH Engineering, Inc is attached. These upgrades are needed to ensure reliability of the electrical system. This plant was originally placed in service in 1972 with additions and upgrades in 1981. Currently some wiring has corrosion due to chlorine gas that was once stored inside the facility. These upgrades will also allow improved use of the SCADA system for monitoring the plant functions and equipment. The design life of the upgrades should extend the life expectancy ofthe plant for another twenty-five years. FUNDING: The funding for this project is budgeted in the current fiscal year under the line code 3600-65000-30064. The amount budget for this project is $225,000.00. The $84,364.00 which exceeds the budgeted amount will be transferred from Consent Agenda Item 405 February 27,2006 Page 2 3600-62100 West Force Main Rerouting project which will only be in design this year. RECOMMENDATION: It is recommended that authorization be given to enter into a contractual agreement with Florida Industrial Electric, Inc in the amount of $281,240.00 plus 10% contingency. IMPLEMENTATION SCHEDULE: The scope of work will be completed within 120 days of approval. ATTACHMENTS: 1. Agreement Form 2. CPR Engineers, Inc. Recommendation COMMISSION ACTION: Attachment No. 1 AGREEMENT FORM THIS AGREEMENT MADE THIS DAY OF ,2006 between the CITY OF WINTER SPRINGS of 1126 East State Road 434, Winter Springs, Florida 32708, Seminole County, State of Florida, herein referred to as OWNER and Florida Industrial Electric, Inc, State of Florida, herein referred to as CONTRACTOR, a person duly licensed as a Contractor in the State of Florida, as follows: 1. DESCRIPTION OF WORK - CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of the City of Winter Springs WTP #3 Electrical Improvements. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions and Sections contained in the Project Manual; the Drawings as listed on the Bid Form and Index to Drawings; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are incorporated into this Contract by this reference. 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. Contractor's Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Instructions to Bidders f. Drawings g. Advertisement 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 Agreement or specifications, the OWNER at its sole discretion will interpret the intent ofthe Agreement and work descriptions 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. When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the OWNER. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. 5. CONTRACT TIME - The CONTRACTOR shall begin work within 10 days after the issuance of a written Notice to Proceed and shall complete the work within 90 calendar days from the date of the Notice to Proceed. Extensions, if any, are authorized by OWNER, and may only be granted in writing. 6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving in a legal 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 $500.00 for each day that expires after the time specified in Paragraph 5 for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this proVision. 7. CONTRACT PRICE. UNIT PRICE CONTRACT - The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of Two Hundred Eighty-one Thousand One Hundred Twenty-four Dollars, ($ 281.124.00). 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 his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. 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, 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 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. Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exercise any other remedy the OWNER may have by operation oflaw, 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 9. 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; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; 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. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 10. 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 oflaw, the parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable 11. PROGRESS PAYMENTS - OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of application for payments submitted to the OWNER or OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance with the Contract Documents. Progress payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion ofthe City of Winter Springs, Contractor's work is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price throughout the project. The OWNER shall release 50% of the amount withheld upon issuance ofthe Substantial Completion Certificate. The remaining 50% of the amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. 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 a complete release ofliens arising out the contract, or receipt releases oflien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such claims. By making payments OWNER does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding claims ofliens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. 13. 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, Gregory A Bishop or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract. b. Inspections. Opinions. and Pro2:ress Reports. The OWNER shall be kept familiar with the progress and quality of work by CONTRACTOR and my 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 W orksite 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. 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. Reiection and Stoppa2:e 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. 14. PROGRESS MEETING - 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. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follows: a. Responsibilitv 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 Emplovment. 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. Furnishin2: 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. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 16. 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. Ifupon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notifY CONTRACTOR who shall take immediate steps to remedy the situation. c. 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. 17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. PROHffiITION 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. 19. 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. 20. INDEMNIFICATION - For all Work performed pursuant to this Agreement, the CONTRACTOR agrees to the fullest extent permitted by law, to indemnifY and hold harmless the OWNER and its commissioners, employees, officers, and OWNER attorneys (individually and in their official capacity) from and against all claims losses damages personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative, trial and appellate proceedings), directly or indirectly arising from: a. Any default under this Agreement by CONTRACTOR; b. Any negligent act, omission or operation of work related to all Work performed under this Agreement by CONTRACTOR, and its employees, principals, agents, independent contractors, and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from CONTRACTOR's and its employees, partners, contractors, and agents on the performance of the Work being performed under this Agreement; d. CONTRACTOR's, and its employees, partners, contractors, and agents failure to comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to CONTRACTOR's and its employees, partners, contractors, and agents performance under this Agreement; e. Any fraud and misrepresentation conducted by CONTRACTOR and its employees, partners, contractors, and agents on the OWNER under this Agreement. 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 commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or operation of work related to the Work under this Agreement whether the Work be performed by the CONTRACTOR, or anyone directly or indirectly employed by them. In all events the OWNER and its commissioners, employees, officers, and City Attorney 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. 21. 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. 22. 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. 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in accordance with Florida law and to the satisfaction of OWNER, in an amount specified in the Contract Documents. 24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. 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 $2,000,000 combined single limit bodily injury and minimum $2,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate ofInsurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. 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 shall be an additional named insured on all stipulated insurance policies as its interest may appear, from time to time. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in these paragraphs for sections 21 and 24 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Seminole County, Florida. 26. 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. 27. ATTORNEY'S FEES - Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non-prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 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. 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 31. SOVEREIGN IMMUNITY - Nothing contained in 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. 32. HEADINGS - Paragraph headings are for the convenience ofthe 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, postage prepaid to: For CONTRACTOR: For OWNER: City of Winter Springs Capitol Projects Coordinator, Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party written notice of the change. Signed, Sealed and Delivered in the presence of: CONTRACTOR: Awardee. Name Title Business Address City, State Zip Date OWNER: CITY OF WINTER SPRINGS By: Ronald W. McLemore City Manager 1126 East State Road 434 Winter Springs, FL. 32708 407-327-1800 A TT ACHMENT NO. 2 cph February 2, 2006 1117 East Robinson Street Orlando, Florida 32801 Phone, 407.425.0452 Fax: 407.648.1036 Mr. Kipton Lockcuff. P.E. City of Winter Springs 1126 East State Road 434 Winter Springs, Forida 32708 Re: City of Winter Springs Water Treatment Plant #3 - Electrical System Improvements Engineer's Bid Review CPH Project No. W04121 Dear Mr. Lockcuff: We received copies of the bid package from the City for the bidder on the above referenced project. Only one bid was received for the project. From our review of the bid tabulation. it appears that the prices from Florida Industrial Electric reflect an understanding of the work required by the plans and specifications. No mathematical errors were found in their bid and their bid package appears to be in order. There are no MBElWBE requirements for this project. In an effort to review previous related work, CPH Engineers contacted three references provided by Florida Industrial Electric. A telephone review/check of their listed references indicates that the work performed in the field was of good quality and in accordance with the specifications. We are attaching, for the City's use, a copy of the references and reference interview notes. Based on our review of the available data (completed bid package and contractor supplied references), we have no objection to the City proceeding with the award of the bid to Florida Industrial Electric in the amount of 5281.240.00. Please note that we have not reviewed any financial data as we are not accounting professionals. If such a review is required, we recommend either a review by your Finance Department or your financial adviser/accountant The contractor bonds and insurance as required by the specifications will be reviewed prior to execution of the agreement. Please contact us if additional information is needed concerning the above. Sincerely, CPH ENGINEERS, INC. Scott Breitenstein, P.E. Project Manager J:\W04121\WordIRECOMMENDATlON LETTER.doc ' Feb. 2 2006_ 3:34PM- CPH REFERENCE CHECKLIST CITY OF WINTER SPRINGS WATER TREATMENT PLANT #3-ELECTRICAL SYSTEM IMPROVMENTS ATTACHED IS THE AGREEMENT THAT IS FULLY EXECUTED. PER GREG BISHOP, THE ONLY DIFFERENCE BETWEEN BOTH AGREEMENTS WAS IN THE COMMISSION AGENDA ITEM THERE WAS AN ERROR IN THE NUMBER OF DAYS OF THE AGREEMENT. THE AGREEMENT ATTACHED THAT IS FULLY EXECUTED IS FOR 240 DAYS. AND THE AGENDA ITEM CONTRACT IS FOR A TERM OF 90 DAYS, WHICH PER GREG BISHOP, WAS INCORRECT. THE FONT SIZE AND LAYOUT IS ALSO DIFFERENT BETWEEN BOTH AGREEMENTS. CITY OF WINTER SPRINGS FLORIDA '1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 utility ~ Public works Department THIS AGREEMENT MADE THIS ,~'~.[1L DAY OF L. OF WINTER SPRINGS of 1126 East State Road 434, Winter S 2006 between the CITY of Florida, herein referred to as OWNER and Florida Industrial E ec~tricFlncaa 327r~' Seminole County' State as CONTRACTOR, a person duly licensed as a Contractor in the State of Florida, as followsa~ herein referred to 1. DESCRIPTION OF WORK -CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of the City of Winter Springs WTP #3 Electrical Improvements. 2. CONTRACT DOCUMENTS -The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions and Sections contained in the Project Manual; the Drawings as listed on the Bid Form and Index to Drawings; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are incorporated into this Contract by this reference. 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 fdlowing order: a. Contractor's Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Instructions to Bidders f. Drawings g. Advertisement Any inconsistency in the work description shall be darfied by the OWNER and performed by the CONTRACTOR. 4. AGREEME INTERPRETATION - At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and work descriptions 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. When the material, artide, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR wilt be responsible for all coordination necessary to accommodate the materiel, ar'tide, or equipment being provided without additional cost to the OWNER. A substitute material, artide, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. ' • • Page 2 City of Winter Springs WTP #3 Electrical Improvements 6. CONTRACT TIME -The CONTRACTOR shall begin work in 70 days after the issuance of a written Notice to Proceed and shall complete the werk withi lendar days from the date of the Notice to Proceed. Extensions, if an ,are authorized b OWN Y Y nd may only be granted in writing. 6. LIQUIDATED DAMAGES -OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER wil! suffer finanaal loss if the Work is not substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in acxordance with the General Conditions. They also recognize the delays, expense, and d~ff'iculties irndved 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 r uiri an such ~ n9 Y proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER 5500.00 for each day that expires after the time specified in Paragraph 5 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. 7. CONTRACT PRICE UNR PRICE CONTRACT -The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of Truro Hundred Eighty-one Thousand One Hundred Twenty-flour Dollars (a 281_ 124.0~~,. 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 his 13id, which shall be as fully a part of the Contract as if attached or repeated herein. 8. TERMINATION: DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES -The OWNER reserves the nght to revoke and terminate this P~reement and rescind all rights and privileges associated with this Agreement, without penalty, in the fdlowing 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 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, Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exercise any other remedy the OWNER may have by operation of law, without limi#ation, 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 accordarxe with the provisions of this Agreement, for Work properly performed prior to the effecctivve date ~ termination • Page 3 City of Winter Springs WTP #3 Electrical Improvements 9. FORCE MAJEURE -Any delay or failure of either party in the perfomlance of its required obligations hereunder shall be excused if and to the extent caused b acts of God; , tags; strikes exce Y fire' flood; windstorm; explosion; riot; war; Sabo ( pt involving CONTRACTOR's labor forc;e); extraordinary breakdoHm of or damage to OWNER 's affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and/or state. law or regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto sha!! be diligent in attempting to remave such cause or causes. if any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this agreement. 10. SEVERABIUTY . 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 parties, at the sde distxetion and option of the OWNER, shaft negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforoeab~iiy of the remaining parts of this Agreement shall otherwise be fuAy enforceable 11. PROGRESS PAYMENTS -OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of applipation for payments submitted to the OWNER or OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance with the Contract Documents. Progress payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Corrtractor's work is not progressing satisfactorily. 12. FINAf_ PAYMENT -OWNER shall withheld up to 10% of the Contract Price throughout the project. The OWNER shall release 50% of the amount withheld upon issuance of the Substantial Completion Certificate. The remaining 50% of the amount withheld shat( be released with the Final Payment after the issuance of the Final Completion Certificate. 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 a complete release of liens arising out the contract, or receipt releases of lien fully cx~vering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such claims. By making payments OWNER does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding claims of liens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. • Page 4 City of Winter Springs WTP #3 Electrical Improvements 13. -The duties and authority of the OWNER areas a. General Administratbn of Contract. The primary, function of the OWNER is to provide the genera! administration of the contract: In performance of these duties, Gregory A. Bishop or his authorized represerrtative 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 Proarass Reno, The OWNER shall be kept familiar with the progress and quality of the wwk 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 fpr Inspections. The OWNER shall be given free access to the wnrksite at all times during wtxk 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. d. Intemretation 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 Sbppaae of Work. The OWNER shall have authority to reject woric wfiich 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. Qavment 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 cert~cates for progress paymenrts arxi final payments in accordance with the terms of the Contract Documents. 14. PROGRESS MEETING -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. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the proiect herein are as fdlows: a. Responsibitity for Supervision and Construction. CONTRACTOR shall be solely responsible for alf 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 suffident skill to perform the job for which he was employed. c. Fumishina of Labor Materials etc CONTRACTOR shall provide arxi pay for all labor, materials and equipment, including toils, construction equipment and machi water', transportation, and all other facilities and work necessa far the ~' utilities, including on the ry Proper completion of work project in accordance with the Contract Documents. • Page 5 City of Winter Springs WTP #3 Electrical Improvements d. Pa~rnent of Taxes• Procurement of Li and Permiffi. 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 alt trade or professional licenses required by law for CONTRACTOR to undertake the contract work. e. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 16. 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. ff upon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. ff OWNER deterrnines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. c. ff 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. 17. THIRD PA~2TY RIGHTS -Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. 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 oontlngent upon or resulting from the award or making of this Agreement. 19. NO JOINT VENTt~RE -Nothing herein shall be deemed to create a joint venture or prindpal-agent relatonship 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. 20. INDEMNIFICATION -For all Work performed pursuant to this Agreement, the CONTRACTOR agrees to the fullest extent permitted by law, to indemnify and hold harmless the OWNER and its commissioners, employees, officers, and OWNER attorneys (individually and in their offidal capactty} from and against all claims, losses, damages, personal injuries (including but not limited #o death), or liability (including reasonable attorney's fees through any and all administrative, trial and appellate procxedings), directly or indirectly arising from: a. Any default under this Agreement by CONTRACTOR; b. Any negligent act, omission or operation of work related to all Work performed under this Agreement 6y CONTRACTOR, and its employees, princlpals, agents, independent contractors, and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from CONTRACTOR's and its employees, partners, contractors, and agents on the performance of the Work being performed under this Agreement; • Page 6 City of Winter Springs WTP #3 Electrical Improvements d. CONTRACTOR's, and its employees, partners, oontradors, and agents failure to comply with the provisions of any federal, state, or iopl laws, ordinance, or regulations applicable to CONTRACTOR's and its employees, partners, contractors, and agents performance under this Agreement; e. Any fraud and misrepresentation conducted by CONTRACTOR and its employees, partners, contractors, and agents on the OWNER under this Agreement. 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 daims of Inability and all suits and actions of every name and description that may be brought against the OWNER or its commissioners, employees, officers, aril City Attomey which may result from any negligent act, omission or operation of work rated to the Work under this Agreement whether the Work be performed by the CONTRACTOR, or anyone directly or indirectly employed by them. In all events the OWNER and its commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and induded with this indemnification provided herein. 27. 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. 22. 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 Dopy 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. 23. BOND -CONTRACTOR shalt supply a rnateriats, performance and payment bond(s) in acx;ordance with Florida law and to the satisfaction of OWNER, in an amount specified in the Contract Documents. 24. INSURANCE -During the term of this ~reement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. 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 daims 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 $2,000,000 combined single limit bodily injury and minimum $2,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from daims for damages for body injury, inducting wrongful death, as well as from daims from • Page 7 City of Winter Springs WTP #3 Electrical Improvements property damage, which may arise from the ownership, use, or maintenance of owned and non- owned automobiles, inducting rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shatl maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's LiatHlity Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement Special Requirements. Current, valid insurance polities meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. Renewal certficates 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 modfication of any stipulated insurance coverage. The OWNER shall be an additional named insured on all stipulated Insurance policies as its interest may appear, from time tho time. Independent Associates and Consultants, All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in these paragraphs for sections 21 and 24. 25. 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 Seminoe County, Florida. 26. GOVERNING LAW 8 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. 27. ATTORNEY'S FEES -Should either party bring an action to enforce any of the temps of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non-prevailing party the costs and expenses of such action inducting, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 28. NOTICES -Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 29. WORK IS A P~2IVATE UNDERTAKING -With regard to any and all Wark 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 ,arty 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 irrfom~ation and program, audio or video tape, Photograph, or other writing of the CONTRACTOR is subject to the provisions of Chapter • Page 8 City of Winter Springs WTP #3 Electrical Improvements 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. The CONTRACTOR acknowledges that the OWNER is a Florida munidpal 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 shat! comply with the Florida Public Records Law. 31. SOVEREIGN IMMUNITY -Nothing corrtair>ed in 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. 32. HEADINGS -Paragraph headings are for the convenience of the parties only and are not to be construed as part of this ~reement. 33. INTEGRATION: MODIFICATION -The drafting, execution, and delivery of this ~reement 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 uNess expressly referred to herein. Modifications of this Agreement shall oNy 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 ~reement shah 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. D NG -OWNER and CONTRACTOR each represent that they have both shared equally in drafting this Agreement and no party shalt be favored or disfavored regarding the interpretation of this ~reement 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, postage prepaid to: For CONTRACTOR: For OWNER: City of Winter Springs Capitd Projects Coordinator, Pudic Works Departmerrt 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the. notice address by providing the other party written notice of the change. ' • Pa 9 Ci of Winter S 9e ty prings WTP #3 Electrical Improvements Signed, Sealed and Delivered in the presence of: i~ CONTRACTOR: I IY~i '~~M~,~...,rt Lbw ~ Business Address ~.,r,~,u ~~~ ~~ ~1~m ~ City, State Zip Date_~Z.~ L ~- ~ ~ ~ OWNER: CITY OF WINTER SPRINGS ~~tl ~1.~ :~e%~ By: Ronald W. McLemore City Manager 1126 East State Road 434 Winter Springs, FL. 32708 407-327-1800 , . CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 Utility I Public Works Deparbnent THIS AGREEMENT MADE THIS to T7I DAY OF A,o R/ L. , 2006 between the CITY OF WINTER SPRINGS of 1126 East State Road 434, Winter Springs, Rorida 32708, Seminole County, State of Florida, herein referred to as OWNER and Florida Industrial Electric, Inc, State of Rorida, herein referred to as CONTRACTOR, a person duly licensed as a Contractor in the State of Rorida, as follows: 1. DESCRIPTION OF WORK - CONTRACTOR shall perform the IM:>rk, in accordance with the Contract Documents for the construction of the City of Winter Springs WTP #3 Electrical Improvements. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions and Sections contained in the Project Manual; the Drawings as listed on the Bid Form and Index to Drawings; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are incorporated into this Contract by this reference. 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. Contractor's Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Instructions to Bidders f. Drawings g. Advertisement Any inconsistency in the IM:>rk description shall be darified by the OWNER and performed by the CONTRACTOR. 4. AGREEMENT INTERPRETATION - At its discretion, during the course of the IM:>rk, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and IM:>rk descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry out the IM:>rk in accordance with the decision of the OWNER. When the material, artide, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the IM:>rk is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, artide, or equipment being provided without additional cost to the OWNER. A substitute material, artide, or equipment is allowed if it is reasonably eqUivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. · Page 2 City of Winter Springs WTP #3 Electrical Improvements 5. CONTRACT TIME - The CONTRACTOR shall begin work within 10 days after the issuance of a witten Notice to Proceed and shall complete the work within 240 calendar days from the date of the Notice to Proceed. Extensions, if any, are authorized by OWNER, and may only be granted in witing. 6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial lass if the Work is not substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties 'involved in proving in a legal 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 $500.00 for each day. that expires after the time specified in Paragraph 5 for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. 7. CONTRACT PRICE. UNIT PRICE CONTRACT - The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of Two Hundred Eighty-one Thousand One Hundred Twenty-four Dollars, ($ 281.124.00), Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit Prices induded as a part of his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. 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, 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 witten 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 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. Notwithstanding the aforementioned, in the event of a 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 · Page 3 City of Winter Springs WTP #3 Electrical Improvements 9. 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; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; 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. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 10. 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 parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable 11. PROGRESS PAYMENTS - OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of appli~tion for payments submitted to the OWNER or OWNER's Project Manager, by CONTRACTOR as the IM:>rk progresses, and in accordance with the Contract Documents. Progress payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcOntractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Contractor's IM:>rk is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price throughout the project. The OWNER shall release 50% of the amount withheld upon issuance of the Substantial Completion Certificate. The remaining 50% of the amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. OWNER shall make final payment to CONTRACTOR within thirty (30) days after the IM:>rk is fully and property 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 a complete release of liens arising out the contract, or receipt releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such daims. By making payments OWNER does not waive daims induding but not limited to those relating to: a. Faulty IM:>rk appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding daims of liens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. · Page 4 City of Winter Springs WTP #3 Electrical Improvements 13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER are as follo'v\lS: 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, Gregory A. Bishop or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract b. Insoections. ODinions. and Proaress ReooMs. The OWNER shall be kept familiar with the progress and quality of the YoUrk by CONTRACTOR and may make periodic visits to the oork 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 oork in accordance with the Contract Documents. c. Access to Worksite for InsDeCtions. The OWNER shall be given free access to the YoUrksite at all times during oork 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 oork progress, and any such inspections shall not waive Owner's daim regarding defective oork by Contractor. d. Intemretation of Contract Documents: Decisions on DisDutes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on daims and disputes between Contractor and Owner. e. Reiection and StoDDaae of Work. The OWNER shall have authority to reject oork which in its opinion does not conform to the Contract Documents, and in this connection may stop the oork or a portion thereof, when necessary. f. Payment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the oork 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. 14. PROGRESS MEETING - OWNER'S Project Manager may hold periodic progress meetings on a monthly basis, or more frequenUy if required by the OWNER, during the term of oork 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. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follo'v\lS: a. Resoonsibilitv for Suoervision and Construction. CONTRACTOR shall be solely responsible for all construction under this contract, induding the techniques, sequences, procedures and means, for the coordination of all oork. CONTRACTOR shall supervise and direct the YoUrk, and give it all attention necessary for such proper supervision and direction. b. DisciDline and EmDlovment. CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for oork on the project any person unfit or without sufficient skill to perform the job for which he was employed. c. Fumishina of Labor. Materials. etc. CONTRACTOR shall provide and pay for all labor, materials and equipment, induding tools, construction eqUipment and machinery, utilities, induding water, transportation, and all other facilities and oork necessary for the proper completion of oork on the project in accordance with the Contract Documents. · Page 5 City of Winter Springs WTP #3 Electrical Improvements d. Payment of Taxes: Procurement of Licenses and Pennits. CONTRACTOR shall secure all licenses and permits necessary for proper completion of the 'M>rk, 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 'M>rk. e. CONTRACTOR will provide ~itten guarantee for 'M>rk and materials for one (1) calendar year after acceptance by OWNER. 16. ASSIGNMENT. CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, ~itten consent of the OWNER. a. If upon receiving ~itten approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall. be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. . c. 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. 17. THIRD PARTY RIGHTS. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. PROHIBITION AGAINST CONTINGENT FEES. CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee 'M>rking 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 'M>rking solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 19. 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 'M>uld indicate any such relationship with the other party. 20. INDEMNIFICATION. For all Work performed pursuant to this Agreement, the CONTRACTOR agrees to the fullest extent permitted by law, to indemnify and hold harmless the OWNER and its commissioners, employees, officers, and OWNER attorneys (individually and in their official capacity) from and against all daims, losses, damages, personal injuries (induding but not limited to death), or liability (induding reasonable attorney's fees through any and all administrative, trial and appellate proceedings), directly or indirectly arising from: a. Any default under this Agreement by CONTRACTOR; b. Any negligent act, omission or operation of'M>rk related to all Work performed under this Agreement by CONTRACTOR, and its employees, principals, agents, independent contractors, and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from CONTRACTOR's and its employees, partners, contractors, and agents on the performance of the Work being performed under this Agreement; · Page 6 City of Winter Springs WTP #3 Electrical Improvements d. CONTRACTOR's, and its employees, partners, contractors, and agents failure to comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to CONTRACTOR's and its employees, partners, contractors, and agents performance under this Agreement; e. Any fraud and misrepresentation conducted by CONTRACTOR and its employees, partners, contractors, and agents on the OWNER under this Agreement. 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 daims of liability and all suits and actions of every name and description that may be brought against the OWNER or its commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or operation of oork related to the Work under this Agreement whether the Work be performed by the CONTRACTOR, or anyone directly or indirectly employed by them. In all events the OWNER and its commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and induded with this indemnification provided herein. 21. 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 oork provided hereunder. 22. 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 Rorida prior to the execution of this Agreement. c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the oork 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. 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in accordance with Rorida law and to the satisfaction of OWNER, in an amount specified in the Contract Documents. 24. INSURANCE. During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. 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 daims 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 $2,000,000 combined single limit bodily injury and minimum $2,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from daims for damages for bodily injury, induding lNrongful death, as well as from daims from .. · Page 7 City of Winter Springs WTP #3 Electrical Improvements property damage, which may arise from the ownership, use, or maintenance of owned and non- owned automobiles, induding rented automobiles whether such operations be by the CONTRACTOR or by anyone direcUy or indirecUy employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall also be a 3O-day advance witten notification to the OWNER in the event of cancellation or modification of any stipulated insurance coverage. The OWNER shall be an additional named insured on all stipulated insurance policies as its interest may appear, from time to time. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in these paragraphs for sections 21 and 24. 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Seminole County, Florida. 26. GOVERNING LAW & VENUE . This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the la\IVS 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. 27. ATTORNEY'S FEES - Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be entiUed, to the extent permitted by law, to recover from the non-prevailing party the costs and expenses of such action induding, but not limited to, reasonable attorney's fees, whether at setUement, trial or on appeal. 28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 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 witing of the CONTRACTOR and its independent contractors and associates related, direcUy or indirecUy, 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 witing of the CONTRACTOR is subject to the provisions of Chapter · Page 8 City of Winter Springs WTP #3 Elecbicallmprovements 119, Florida Statutes, and may not be destroyed without the specific W'itten 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 oorking hours of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and/or audit The CONTRACTOR acknoVviedges 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. 31. SOVEREIGN IMMUNITY - Nothing contained in 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. 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, W'itten 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 W'iting 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 W'iting 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, postage prepaid to: For CONTRACTOR: For OWNER: City of Winter Springs Capitol Projects Coordinator, Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party W'itten notice of the change. · Page 9 City of Winter Springs WTP #3 Electrical Improvements Signed, Sealed and Delivered in the presence of: ~8~p / CONTRACTOR: CdxJ~ ;:: -g ~.a.~ _~-r Title 1(pf;;p N "..I.rHZ. --wz." Ii Business Address ~M~~, f="t.- v,':/t1:;/ City, State Zip Date ~\L tt,~~b OWNER: CITY OF WINTER SPRINGS ~tA/. /}?~~ By: onald W. McLemore City Manager 1126 East State Road 434 Winter Springs, FL. 32708 407-327-1800 ATTACHED IS THE AGREEMENT THAT ORIGINALLY WENT TO THE CITY COMMISSION ON FEBRUARY 26, 2006 AS CONSENT 405. PER GREG BISHOP, THE ONLY DIFFERENCE BETWEEN BOTH AGREEMENTS WAS IN THE COMMISSION AGENDA ITEM THERE WAS AN ERROR IN THE NUMBER OF DAYS OF THE AGREEMENT. THE AGREEMENT ATTACHED FROM THE AGENDA ITEM WAS FOR 90 DAYS. THE ACTUAL TERM OF THE AGREEMENT, AS NOTED IN THE FULLY EXECUTED AGREEMENT, IS 240 DAYS. THE FONT SIZE AND LAYOUT IS ALSO DIFFERENT BETWEEN BOTH AGREEMENTS. Attachment No. 1 AGREEMENT FORM THIS AGREEMENT MADE THIS DAY OF , 2006 between the CITY OF WINTER SPRINGS of 1126 East State Road 434, Winter Springs, Florida 32708, Seminole County, State of Florida, herein refereed to as OWNER and Florida Industrial Electric, Inc, State of Florida, herein referred to as CONTRACTOR, a person duly licensed as a Contractor in the State of Florida, as follows: DESCRIPTION OF WORK -CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of the City of Winter Springs WTP #3 Electrical Improvements. 2. CONTRACT DOCUMENTS -The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions and Sections contained in the Project Manual; the Drawings as listed on the Bid Form and Index to Drawings; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are incorporated into this Contract by this reference. 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. Contractor's Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Instructions to Bidders f. Drawings g. Advertisement 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 Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and work descriptions 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. When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cast to the OWNER. A substitute material, article, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. 5. CONTRACT TIME -The CONTRACTOR shall begin work within 10 da after the issuance of a written Notice to Proceed and shall complete the work wit ' alendar days from the date of the Notice to Proceed. Extensions, if any, are authorize by OWNER, and may only be granted in writing. 6. LIQUIDATED DAMAGES -OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving in a legal 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 $500.00 for each day that expires after the time specified in Paragraph S for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. 7. CONTRACT PRICE. UNIT PRICE CONTRACT -The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of Two Hundred Eighty-one Thousand One Hundred Twenty-four Dollars, ($ 281,124.00). 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 his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. TERMINATION: DEFAULT BY CONTRACTOR AND OWNER'SREMEDIES - The OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, 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 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. Notwithstanding the aforementioned, in the event of a 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 9. 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; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such parry to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 1d. SEVERABII.ITY - 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 parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable 11. PROGRESS PAYMENTS -OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of application for payments submitted to the OWNER or OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance with the Contract Documents. Progress payments maybe withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Contractor's work is not progressing satisfactorily. 12. FINAL PAYMENT -OWNER shall withhold up to 10% of the Contract Price throughout the project. The OWNER shall release 50% of the amount withheld upon issuance of the Substantial Completion Certificate. The remaining 50% of the amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. 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 a complete release of liens arising out the contract, or receipt releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such claims. By making payments OWNER does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding claims of liens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. 13. 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, Gregory A. Bishop or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract. b. Insuections. Oainions, and Progress Resorts. The OWNER shall be kept familiar lxrith the nrnnrc>ec and rn.alitcr nfthP ~x,nrlr }w C`(1NTR Af''Tl1R and may malrc. 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. 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. Rejection 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. 14. PROGRESS MEETING -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. 15. 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 rnn+rn n4 ~nt~»mnt~4n d. Payment of Tages: 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. CONTRACTOR will provide written guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 16. 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. If upon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts andlor omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. c. 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. 17. THIRD PARTY RIGHTS -Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. 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. 19. 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. 20. INDEMNIFICATION -For all Work performed pursuant to this Agreement, the CONTRACTOR agrees to the fullest extent permitted by law, to indemnify and hold harmless the OWNER and its commissioners, employees, officers, and OWNER attorneys ~inrlivirlnally and in their n~rial ranaritv~ frnm a~rl atrainct all rlaimc lneePe riamanPc personal injuries (including but not limited to death}, or liability (including reasonable attorney's fees through any and all administrative, trial and appellate proceedings), directly or indirectly arising from: a. Any default under this Agreement by CONTRACTOR; b. Any negligent act, omission or operation of work related to all Work performed under this Agreement by CONTRACTOR, and its employees, principals, agents, independent contractors, and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from CONTRACTOR'S and its employees, partners, contractors, and agents on the performance of the Work being performed under this Agreement; d. CONTRACTOR's, and its employees, partners, contractors, and agents failure to comply with the provisions of any federal, state, or local laws, ordinance, or regulations applicable to CONTRACTOR'S and its employees, partners, contractors, and agents performance under this Agreement; e. Any fraud and misrepresentation conducted by CONTRACTOR and its employees, partners, contractors, and agents on the OWNER under this Agreement. 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 maybe, of any and all claims of liability and ail suits and actions of every name and description that maybe brought against the OWNER or its commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or operation of work related to the Work under this Agreement whether the Work be performed by the CONTRACTOR, or anyone directly or indirectly employed by them. In all events the OWNER and its commissioners, employees, officers, and City Attorney 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. 21. 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. 22. 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 cazry 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 rC1NTR Af;TnR Tn cnnnnrt of cam rPnrPCPntatinn ['.nNTR AC~T(1R aorPPC 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. 23. BOND -CONTRACTOR shall supply a materials, performance and payment bond(s) in accordance with Florida law and to the satisfaction of OWNER, in an amount specified in the Contract Documents. 24. INSURANCE -During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. 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 $2,000,000 combined single limit bodily injury and minimum $2,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. 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 shall be an additional named insured on all stipulated insurance policies as its interest may appear, from time to time. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the inc~iranra r~rn~ncinnc rnntainr~r~ in tl~PCP naranr-a»hc fnr ePrtinne 71 anri 7d 25. 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. 26. 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. 27. ATTORNEY'SFEES -Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non-prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, trial or on appeal. 28. NOTICES -Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 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, parrners, 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, photogaph, 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. 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 RPrnrrl• ('(1NTR A(`TC1R shall rnmt~ly urith +ha Flnrir~a Pnhlir RPrnr~c T aw 31. SOVEREIGN IMMUNITY -Nothing contained in this Agreement shall be construed as a waiver of the OWNER's right to sovereign immunity under Section 7b8.28, Florida Statutes, or other limitations imposed on the OWNER's potential liability under state or federal law. 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, postage prepaid to: For CONTRACTOR: For OWNER: City of Winter Springs Capitol Projects Coordinator, Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party written notice of the change. Signed, Sealed and Delivered in the presence of: CONTRACTOR: Awardee. Name Title Business Address City, State Zip Date OWNER: CITY OF WINTER SPRINGS By: Ronald W. McLemore City Manager 1126 East State Road 434 Winter Springs, FL. 32708 407-327-1800