2016-91 CONTRACTOR AGREEMENT
THIS AGREEMENT, made and entered into this A day of (\Jove.,nbet— 2016,
A.D., by and between the City of Clermont, 685 W. Montrose Street, Clermont, Florida
(hereinafter referred to as "OWNER"), and Derelle, Inc., 11520 Nellie Oaks Bend,
Clermont, FL 34711 (hereinafter referred to as "CONTRACTOR").
WITNESSETH: That the parties hereto, for the consideration hereinafter set forth,
mutually agree as follows:
SECTION I - SCOPE OF WORK
The CONTRACTOR shall furnish all labor, materials, equipment, tools, and other
incidentals and perform all of the work described in the specifications entitled:
RFB NO. 16-055 Clermont Gateway Improvements
as prepared by OWNER and its agents shall do everything required by this Contract and
the other Contract Documents contained in the specifications, which are a part of these
Documents.
SECTION II -THE CONTRACT SUM
The OWNER shall pay to the CONTRACTOR, for the faithful performance of the
Contract, in lawful tender of the United States, and subject to addition and deductions as
provided in the Contract Documents, the Price Schedule, attached hereto and incorporated
herein as Exhibit "A". The total contract sum shall not exceed FOUR HUNDRED
SEVENTY ONE THOUSAND, ONE HUNDRED NINETY FOUR DOLLARS AND
55/100 CENTS ($471,194.55).
SECTION III - COMMENCEMENT AND COMPLETION OF WORK
1) The CONTRACTOR shall commence work within 10 calendar days after receipt
of(i) Notice to Proceed, and (ii) receipt of all permits required to perform the work, and
the CONTRACTOR will substantially complete the same within ONE HUNDRED
TWENTY SIX(126)calendar days,unless the period for completion is extended otherwise
by the CONTRACT DOCUMENTS. Substantial Completion as provided herein shall be
the day the project or designated portion thereof is certified by the OWNER's Architect as
sufficiently complete, in accordance with the Contract Documents, so the OWNER can
occupy or utilize the work or designated portion thereof for the use for which it is intended.
2) The CONTRACTOR shall prosecute the work with faithfulness and diligence.
3) The CONTRACTOR further declares he has examined the project site and that
from personal knowledge and experience has made sufficient investigations to fully satisfy
himself that such site is correct and suitable for the work and he assumes full responsibility
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therefore. The provisions of this Contract shall control any inconsistent provisions
contained in the specifications. All Drawings and Specifications have been read and
carefully considered by the CONTRACTOR,who understands the same and agrees to their
sufficiency for the work to be done. It is expressly agreed that under no circumstances,
conditions or situations shall this Contract be more strongly construed against the OWNER
than against the CONTRACTOR and his Surety.
Any ambiguity or uncertainty in the Plans, Drawings or Specifications shall be interpreted
and construed by the OWNER's designated Project Manager after consultation with the
Project Architect,and the OWNER's Project Manager's decision shall be final and binding
upon all parties, provided the OWNER agrees.
It is distinctly understood and agreed that the passing, approval and/or acceptance of any
part of the work or material by the OWNER or by any agent or representative as in
compliance with the terms of this Contract and/or of the Drawings, Plans and
Specifications covering said work shall not operate as a waiver by the OWNER of strict
compliance with the terms of this Contract and/or the Drawings and Specifications
covering said work; and the OWNER may require the CONTRACTOR and/or his Surety
to repair,replace,restore and/or make to comply strictly and in all things with this Contract
and the Drawings and Specifications any and all of said work and/or materials which within
a period of one year from and after the date of the passing, approval, and or acceptance of
any such work or material, are found to be defective or to fail and in any way to comply
with this Contract or with the Drawings and Specifications. This provision shall not apply
to materials or equipment normally expected to deteriorate or wear out and become subject
to normal repair and replacement before their condition is discovered. The
CONTRACTOR shall not be required to do normal maintenance work under the guarantee
provisions. Failure on the part of the CONTRACTOR and/or his Surety,immediately after
Notice to either, to repair or replace any such defective materials and workmanship shall
entitle the OWNER, if it sees fit, to replace or repair the same and recover the reasonable
cost of such replacement and/or repair from the CONTRACTOR and/or his Surety, who
shall in any event be jointly and severally liable to the OWNER for all damages, loss and
expense caused to the OWNER by reason of the CONTRACTOR'S breach of this Contract
and/or his failure to comply strictly and in all things with this Contract and/or his failure to
comply strictly and in all things with this Contract and with the Drawings and
Specifications.
4) As-built drawings, warranties acceptable to OWNER must be submitted to the
OWNER before final payment will be made to the CONTRACTOR.
SECTION IV - AUTHORIZED REPRESENTATIVES
1) Before starting work, CONTRACTOR shall designate a competent, authorized
representative acceptable to OWNER to represent and act for CONTRACTOR and shall
inform OWNER in writing, of the name and address of such representative together with a
clear definition of the scope of his authority to represent and act for CONTRACTOR and
shall specify any and all limitations of such authority. At the Pre-construction Conference,
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SECTION VI - CODE RELATED INSPECTIONS
The CONTRACTOR recognizes that the City of Clermont is the governing jurisdiction
charged with the inspection of improvements to real property for code compliance and the
improvements to be made by.the CONTRACTOR pursuant to this contract may be subject
to inspection by City of Clermont or its agents. The.CONTRACTOR agrees that it will
not assert, as a City-caused delay or as a defense of any delay on the part of the
CONTRACTOR, any good faith action or series of actions on the part of the City or its
agents with regard,to inspections, including, but not limited to the refusal to accept any
portion of the CONTRACTOR's work.
SECTION VII - PARTIAL AND FINAL PAYMENTS
In accordance withthe provisions fully set forth in the Bid Documents and General
Conditions,and subject to additions and deductions as provided,the OWNER shall pay the
CONTRACTOR as follows:
1) CONTRACTOR shall submit a progress payment request by the twentieth(20th)day
of each calendar month h for work performed during the current calendar month,
projected through the 25th. At any time, the OWNER shall have the right as a
condition of making a partial payment hereunder, to require CONTRACTOR to
submit evidence satisfactory to the OWNER that all payrolls,material bills and other
costs incurred by the CONTRACTOR in connection with the.subject progress
payment.request have been paid in full. Upon OWNER's signature accepting the
PARTIAL PAYMENT AUTHORIZATION, the OWNER shall make a partial
payment to the CONTRACTOR, within thirty (30) calendar days, on the basis of a
duly certified and approved estimate by the OWNER and the Architect, for work
performed during the preceding calendar month under the Contract. To insure proper
performance of the Contract, the OWNER shall retain ten percent (10%) of the
amount of each estimate until final completion and acceptance of all work covered
by the Contract.
2) Upon submission by the CONTRACTOR of evidence satisfactory to the OWNER
that all payrolls,material bills and:other costs incurred by the CONTRACTOR in
connection with the construction of the work have been paid in full, and also, after
all guarantees that may be required in the Specifications have been furnished and
are foundacceptable by the OWNER, final payment on account of this Agreement
shall be made within thirty(30) calendar days after completion of all work by the
CONTRACTOR covered by this Agreement and acceptance of such work by the
OWNER.
ARTICLE VIII LIQUIDATED DAMAGES
1) It is mutually agreed that time is of the essence in regard to this Agreement.
Therefore, notwithstanding any other provision contained in the Contract
Documents, should the CONTRACTOR fail to complete the work within the
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specified time as set by the Notice to Proceed, or any authorized extension thereof,
CONTRACTOR shall pay to OWNER the sum of FIVE HUNDRED DOLLARS
($500.00) per calendar day as fixed, agreed and liquidated damages for each
calendar day elapsing beyond the specified time date for beneficial occupancy
(substantial completion) and/or final completion; which sum shall represent the
damages sustained by the OWNER, and shall be considered not as a penalty,but in
liquidation of damages sustained. Contractor shall pay the liquidated damages
amount contained herein. NOTE: Not necessary, this would come out of contract
balance. Contractors pay applications would be reduced to cover anticipated
liquidated damages.
SECTION IX- ADDITIONAL BONDS
It is further mutually agreed between the parties hereto that if, at any time after the
execution of this Agreement and the Surety Bonds hereto attached for its faithful
performance and payment of labor and materials, the OWNER shall deem the Surety or
Sureties upon such bonds to be unsatisfactory, or if, for any reason, such bonds cease to be
adequate to cover the performance and payments of the work, the CONTRACTOR shall,
at his expense, and within seven (7) days after receipt of Notice from the OWNER to do
so, furnish additional bonds, in such form and amounts, and with such Sureties as shall be
satisfactory to the OWNER. In such event, no further payment to the CONTRACTOR
shall be deemed due under this Agreement until such new or additional security for the
faithful performance and for payment of labor and materials of the work shall be furnished
in manner and form satisfactory to the OWNER.
SECTION X—DISPUTE RESOLUTION - MEDIATION
1) Any claim, dispute or other matter in question arising out of or related to this
Agreement shall be subject to mediation as a condition precedent to voluntary arbitration
or the institution of legal or equitable proceedings by either party.
2) The OWNER and CONTRACTOR shall endeavor to resolve claims, disputes and
other matters in question between them by mediation.
3) The parties shall share the mediator's fee and any filing fees equally. The mediation shall
be held in the place where the Project is located,unless another location is mutually agreed
upon. Agreements reached in mediation shall be enforceable as settlement agreements in
any court having jurisdiction thereof.
SECTION XI—INSURANCE AND INDEMNIFICATION RIDER
1) Worker's Compensation Insurance - The CONTRACTOR shall take out and
maintain during the life of this Agreement Worker's Compensation Insurance for all his
employees connected with the work of this Project and, in case any work is sublet, the
CONTRACTOR shall require the subcontractor similarly to provide Worker's
Compensation Insurance for all of the latter's employees unless such employees are
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covered by the protection afforded by the CONTRACTOR. Such insurance shall comply
with the Florida Worker's Compensation Law. In case any class of employees engaged in
hazardous work under this contract at the site of the Project is not protected under the
Worker's Compensation statute, the CONTRACTOR shall provide adequate insurance,
satisfactory to the OWNER, for the protection of employees not otherwise protected.
2) Contractor's Public Liability and Property Damage Insurance-The Contactor shall
take out and maintain during the life of this Agreement Comprehensive General Liability
and Comprehensive Automobile Liability Insurance as shall protect it from claims for
damage for personal injury, including accidental death, as well as claims for property
damages which may arise from operating under this Agreement whether such operations
are by itself or by anyone directly or indirectly employed by it, and the amount of such
insurance shall be minimum limits as follows:
(a) Contractor's Comprehensive General, $1,000,000 Each
($2,000,000 aggregate)
Liability Coverages, Bodily Injury Occurrence, & Property Damage
Combined Single Limit
(b) Automobile Liability Coverages, $1,000,000 Each
Bodily Injury&Property Damage Occurrence,
Combined Single Limit
(c) Excess Liability, Umbrella Form $1,000,000
Each Occurrence, Combined Single Limit
Insurance clause for both BODILY INJURY AND PROPERTY DAMAGE
shall be amended to provide coverage on an occurrence basis.
3) Subcontractor's Public Liability and Property Damage Insurance - The
CONTRACTOR shall require each of his subcontractors to procure and maintain during
the life of this subcontract, insurance of the type specified above or insure the activities of
his subcontractors in his policy, as specified above.
4) "XCU" (Explosion, Collapse, Underground Damage) - The CONTRACTOR's
Liability Policy shall provide "XCU" coverage for those classifications in which they are
excluded.
5) Broad Form Property Damage Coverage, Products & Completed Operations
Coverages - The CONTRACTOR's Liability Policy shall include Broad Form Property
Damage Coverage, Products and Completed Operations Coverage.
6) Contractual Liability Work Contracts - The Constractor's Liability Policy shall
include Contractual Liability Coverage designed to protect the CONTRACTOR for
contractual liabilities assumed by the CONTRACTOR in the performance of this
Agreement.
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7) Indemnification Rider
(a) To cover to the fullest extent permitted by law, the CONTRACTOR shall
indemnify and hold harmless the OWNER, ADG and Ajax Building
Corporation and its agents and employees from and against all claims,damages,
losses and expenses, including but not limited to attorney's fees, arising out of
or resulting from the performance of the Work, provided that any such claim,
damage, loss or expense(1) is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property (other than the Work
itself) , and (2) is caused in whole or in part by any negligent act or omission of
the CONTRACTOR,any subcontractor,anyone directly or indirectly employed
by any of them or anyone for whose acts any of them may be liable. Such
obligation shall not be construed to negate, abridge, or otherwise reduce any
other right to obligation of indemnity which would otherwise exist as to any
party or person described in this Section.
(b) In any and all claims against the OWNER,ADG and Ajax Building Corporation
or any of its agents or employees by any employee of the CONTRACTOR, any
subcontractor, anyone directly or indirectly employed by any of them or anyone
for whose acts any of them may be liable,the indemnification obligations under
this Paragraph shall not be limited in any way by any limitation on the amount
or type of damages, compensation or benefits payable by or for the
CONTRACTOR or any subcontractor under workers' or workmen's
compensation acts, disability benefit acts or other employee benefit acts.
(c) The CONTRACTOR hereby acknowledges receipt of ten dollars and other
good and valuable consideration from the OWNER for the indemnification
provided herein.
8) Builder's Risk Coverage - The CONTRACTOR shall take out and maintain during
the life of this Agreement a"Builder's Risk Policy"completed value form,issued to provide
coverages on an "all risk" basis including theft. This coverage shall not be lapsed or
canceled because of partial occupancy by the OWNER prior to final acceptance of the
Project. The OWNER may elect to take out and maintain this insurance coverage. Should
the OWNER purchase said insurance,the insurance policy shall have a deductible for each
occurrence of$5,000.00. The CONTRACTOR shall be responsible for losses up to the
amount of the deductible.
SECTION XII -TAXES
1) CONTRACTOR shall pay all taxes, levies, duties and assessments of every nature
that may be applicable to any work under this Contract. The Contract Sum and any agreed
variations thereof shall include all taxes imposed by law. CONTRACTOR shall make any
and all payroll deductions required by law. CONTRACTOR herein indemnifies and holds
the OWNER harmless from any liability on account of any and all such taxes,levies,duties,
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assessments and deductions. Such indemnification shall be in accordance with the terms
and conditions of the Indemnification provisions provided herein.
2) OWNER and CONTRACTOR hereby acknowledge that OWNER is a tax-exempt
entity. Where applicable, and so directed by the OWNER, the OWNER reserves the right
to implement, at its convenience, a tax exemption program to buy selected materials and
place the tax savings in line item contingency.
SECTION XIII - SUCCESSORS, ASSIGNS AND ASSIGNMENT
The OWNER and the CONTRACTOR each bind itself, its officers, directors, qualifying
agents,partners, successors, assigns and legal representatives to the other party hereto and
to the partners, successors, assigns and legal representatives of such other party in respect
to all covenants,agreements and obligations contained in the Contract. It is agreed that the
CONTRACTOR shall not assign, transfer, convey or otherwise dispose of the contract or
its right, title or interest in or to the same or any part thereof, or allow legal action to be
brought in its name for the benefit of others,without previous consent of the OWNER and
concurred to by the sureties.
SECTION XIV -NOTICES
All notices shall be in writing and sent by United States mail, certified or registered, with
return receipt requested and postage prepaid,or by nationally recognized overnight courier
service to the address of the party set forth below. Any such notice shall be deemed given
when received by the party to whom it is intended.
CONTRACTOR: Derelle, Inc.
11520 Nellie Oaks Bend
Clermont, FL 34711
Attn: Scott Clark
OWNER: City of Clermont
Attn: City Manager
685 W. Montrose Street
Clermont, FL 34711
SECTION XV—OPTIONAL TERMINATION
1) OWNER may, at its option,terminate the Contract, in whole or in part, at any time
by written notice thereof to CONTRACTOR,whether or not CONTRACTOR is in default.
Upon any such termination, CONTRACTOR hereby waives any claims for damages from
the optional termination, including loss of anticipated profits, on account thereof, but as
the sole right and remedy of CONTRACTOR, OWNER shall pay CONTRACTOR in
accordance with Subparagraphs below, provided, however, that those provisions of the
Contract which by their very nature survive final acceptance under the Contract shall
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remain in full force and effect after such termination.
2) Upon receipt of any such notice, CONTRACTOR and its Surety shall, unless the
notice requires otherwise:
(a) Immediately discontinue work on the date and to the extent specified in the
notice;
(b) Place no further orders or subcontracts for materials,services,or facilities,other
than as may be necessary or required for completion of such portion of work
under the Contract that is not terminated;
(c) Promptly make every reasonable effort to obtain cancellation upon terms
satisfactory to OWNER of all orders and subcontracts to the extent they relate
to the performance of work terminated or assign to OWNER those orders and
subcontracts and revoke agreements specified in such notice;
(d) Assign all Subcontracts required for performance of this Contract to the
OWNER. In anticipation of such a remedy, the CONTRACTOR shall include
in all Subcontracts, equipment leases and purchase order, a provision requiring
the subcontractor, equipment lessor or supplier,to consent to the assignment of
their Subcontract to the OWNER and to agree to the greatest extent possible to
cooperate with the OWNER;
(e) Assist OWNER, as specifically requested in writing, in the maintenance,
protection and disposition of property acquired by OWNER under the Contract;
and
(f) Complete performance of any work that is not terminated.
3) Upon any such termination, OWNER will pay to CONTRACTOR an amount determined
in accordance with the following(without duplication of any item):
(a) All amounts due and not previously paid to CONTRACTOR for work
completed and accepted in accordance with the Contract prior to such notice,
and for work thereafter completed as specified in such notice.
(b) The reasonable cost of settling and paying claims arising out of the termination
of work under subcontracts or orders as provided above.
(c) The verifiable costs incurred as set forth above.
(d) Any other reasonable costs which can be verified to be incidental to such
termination.
4) The foregoing amounts will include a reasonable sum, under all of the
circumstances, as profit for all work satisfactorily performed by CONTRACTOR.
5) CONTRACTOR shall submit within thirty (30) days after receipt of notice of
termination, a proposal for an adjustment to the contract price including all incurred costs
described herein. OWNER shall review, analyze, and verify such proposal, and negotiate
an equitable adjustment, and the Contract shall be amended in writing accordingly.
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not exceed the cost provided in this Florida's Public Records law or as
otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as
authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost,
to the CITY all public records in possession of CONSULTANT upon
termination of the contract and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the
CITY in a format that is compatible with the information technology
systems of the CITY.
(e) IF CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTRACTOR SHALL
CONTACT THE CITY'S CUSTODIAN OF PUBLIC RECORDS AT
CITY CLERK'S OFFICE, (352) 241-7331.
SECTION XVII - CONTRACT DOCUMENTS
The Contract Documents, as stated in the Instructions to Bidders and herein made a part,
are as fully a part of this Contract as if herein repeated.
Document Precedence:
1) Contract Agreement
2) Specifications for RFB 16-055 Clermont Gateway Improvements, including all
addenda.
3) Plans for RFB 16-055 Clermont Gateway Improvements drawings Dated July 15,
2016, including all addenda.
4) All documents contained in RFB No. RFB 16-055 Clermont Gateway
Improvements, and CONTRACTOR's response thereto including, the Instructions to
Bidders and proposal guarantee, if any.
5) Payment and Performance Bonds
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IN WITNESS�, WHEREOF,the parties hereto have executed this Agreement on this
day of IVOverAbe( 2016.
City of Clermont
wt�tr<c, „4tt k , Gail L. Ash., M. or
I
ifs, 1 4 NI
Attest:
, P� r
r ` ;.,Tracy Ackroyd Howe, City Clerk
Derelle, Inc.
By: 4010,-,”
Scott Clark, President
If a corporation, affix corporate
seal and have corporate secretary
attest.,. Attest:
.G/
Corpor. i• Secretary
�`� \1,L1\ 11 1 f\
"' (Name) ted or Typed)
'r So. CA elft �C = �'�..
., 1
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,
EXHIBIT A
SECTION -C
PRICE SCHEDULE
Base Bid
��Final
�Completion Lump Sum Price (as per construction documents)
(Words).1t ULJL, )Niu o MA ,u ,nIn at 1.?-0-4-Art°"`cl
(Figures) $ eJvl71
J ..FJ� C1
U k eke --kt', 'cl:),A vf:$ "P1CAn`�h
1\6 :k,i 0 ern S icte ( - . mos,L- t3 'C3ca Cir �\ C\6. 'I i