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Water Treatment Plant Agmt 12/17/2010 Port of the Islands Community Improvement District Severn Trent Services, Management Services Division 210 North University Drive, Suite 702— Coral Springs—Florida 33071 (954) 753-5841 —(954) 345-1292 Fax June 16, 2011 Memorandum To: Mr. Robert Dick Severn Trent Services, Inc. 5726 Corporation Circle Fort Myers, Florida 33905 Reference: Document from Minutes of Meeting Held December 17, 2010 From: Calvin Teague District Manager Enclosed for your records is a copy of the Agreement with Cardinal Contractors, Inc. which was approved in minutes of the above-referenced meeting of the Port of the Islands Community Improvement District's Board of Supervisors. Please be sure to make this document available for public access during normal business hours. If you have any questions, please contact Janice Swade at (954) 753-5841. Cc: For informational purposes only: fAr. Daniel Tripaldi Treasury Accountant Clerk of the Circuit Court 2671 Airport Road Court Plaza III RECEIVED Naples, Florida 34112-3016 JUN 21 2011 Mr. Leo Ochs, Jr. Collier County Manager FINANCE Governmental Center 3301 East Tamiami Trail Administration Building Naples, Florida 34112 AGREEMENT PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT WATER TREATMENT PLANT THIS AGREEMENT made this day of , 2010, by and between Port of the Islands Community Improvement District, hereinafter called the "OWNER", and Cardinal Contractors, Inc. hereafter called the "CONTRACTOR". WITNESSETH: WHEREAS, OWNER has heretofore solicited bids for all the work and improvements and for the doing of all things included within the hereinafter specified improvements; and WHEREAS, OWNER has contracted with Hole Montes, Inc., hereinafter called the ENGINEER, to perform those duties of ENGINEER as listed in the Contract Documents. WHEREAS, OWNER did on the 17th day of December, 2010, find that CONTRACTOR was the lowest responsive, responsible bidder for the hereinafter specified construction work and did award CONTRACTOR a contract for said construction work, NOW, THEREFORE, for and in consideration of their mutual promises, covenants, undertakings and agreements, the parties hereto do hereby agree as follows: SECTION 1 - WORK TO BE DONE BY CONTRACTOR CONTRACTOR agrees, at his own cost and expense, to do all the work and furnish all the labor, material, equipment and all the work and improvements required for in full accordance with and in compliance with the hereinafter specified Contract Documents, and including all Addenda for said work, and to do, at his own cost and expense, all other things required of the CONTRACTOR by said Contract Documents of said work. SECTION 2 - CONTRACT DOCUMENTS The Contract Documents herein named include all of the following component parts, all of which are as fully a part of this contract as if herein set out verbatim, or, if not attached, as if hereto attached: Invitation to Bid (pages 11 to 12) Instructions to Bidders (pages IB-1 to IB-5) Proposal including Bid Schedule and Trench Safety Act (pages P1 to P9) Agreement (pages C1 to C8) General Conditions (pages GC1 to GC25) November 2010 POI WATER TREATMENT PLANT AGREEMENT C-1 Supplemental General Conditions (page SC-1) Contract Technical Specifications Contract Drawings G01 through 106 (116 sheets) Any and all Addenda to the foregoing. (Numbers 1 to 3 ) SECTION 3 - CONTRACT AMOUNT A. The CONTRACTOR agrees to receive and accept the unit prices as submitted in his Bid Proposal as full compensation for the work contemplated and embraced in this Contract; also for all loss or damage arising out of the nature of the work aforesaid or from the action of the elements or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the work until its acceptance by the OWNER, and for all risks of every description connected with the work; also for well and faithfully completing the work, and the whole thereof, in the manner and according to and in compliance with the Contract Documents and the requirements of the ENGINEER under them; also for any and all other things required by the Contract Documents. B. The OWNER shall pay the CONTRACTOR for performance of the Work in accordance with the Contract Documents in current funds as follows: For all items listed on the Bid Schedule, which is attached and made a part of this Agreement, installed and measured in accordance with the Contract Documents, payment for each item shall be the unit price bid for each item multiplied by the measured quantity. The cost of the Contract based on the estimated quantities shown on the Bid Schedule is three million four hundred seventeen thousand five hundred sixty- three dollars($3,417,563.00). C. The above-mentioned quantities and totals on unit price items and the Total Contract Amount submitted in his Bid Schedule are approximate only, being hereinabove referenced for the purpose of establishing the face amount of bonds to be provided by the Contractor. Payment of work covered by the above unit price items will be made only on the basis of actual quantities of work complete in place as authorized and as measured in the Contract Documents. SECTION 4 — BONDS A. If the surety for any bond furnished by CONTRACTOR is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the Contractor shall, within five (5) calendar days thereafter, substitute at its cost and expense another bond and surety, both of which shall be subject to the OWNER'S approval. SECTION 5 —STARTING AND COMPLETION A. The CONTRACTOR shall, and agrees to, commence work at the site within 14 calendar days after the issuance by the OWNER of a written Notice to Proceed, and November 2010 POI WATER TREATMENT PLANT AGREEMENT C-2 to fully complete all work to the point of final acceptance by the OWNER, and to complete doing all the other things required of him by the Contract Documents on or before and not later than 300 calendar days from the date when the Contract Time commences to run. CONTRACTOR shall, and agrees to, furnish and deliver to OWNER with execution of award of this Contract, the insurance certificates and policies of insurance required of him by the provisions of the Contract Documents, and to do, prior to starting work, all other things which are required of him by the Contract Documents as a prerequisite of starting work. The Work shall be substantially completed within 300 days after the date indicated in the Notice to Proceed, and finally completed and ready for final payment within 360 days after the date indicated on the Notice to Proceed. Substantial completion shall include receipt of a Certificate(s) of Occupancy from Collier County and the appropriate regulatory authorities. B. OWNER and CONTRACTOR recognize that, since time is of the essence for this Agreement, OWNER will suffer financial loss if CONTRACTOR fails to achieve Substantial Completion within the time specified above, as said time may be adjusted as provided for herein. In such event, the total amount of OWNER'S damages, will be difficult, if not impossible, to definitely ascertain and quantify. Should CONTRACTOR fail to achieve Substantial Completion within the number of calendar days established herein, OWNER shall be entitled to assess, as liquidated damages, but not as a penalty, Eight Hundred Dollars and No Cents ($800.00) for each calendar day thereafter until Substantial Completion is achieved. Further, in the event Substantial Completion is reached, but the CONTRACTOR fails to reach Final Completion within the required time period. OWNER shall also be entitled to assess and CONTRACTOR shall be liable for all actual damages incurred by OWNER as a result of CONTRACTOR failing to timely achieve Final Completion. The Project shall be deemed to be substantially completed on the date the ENGINEER issues a Certificate of Substantial Completion pursuant to the terms hereof. CONTRACTOR hereby expressly waives and relinquishes any right which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the OWNER'S actual damages at the time of contracting if CONTRACTOR fails to Substantially or Finally Complete the Work within the required time periods. C. When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday. D. For all contracts, regardless of whether the Contract Time is stipulated in calendar days or working days, the OWNER will count default days in calendar days. November 2010 POI WATER TREATMENT PLANT AGREEMENT C-3 E. The OWNER has the right to apply any amounts due CONTRACTOR under this Agreement or any other agreement between OWNER and CONTRACTOR, as payment on such liquidated damages due under this Agreement in OWNER'S sole discretion. Notwithstanding anything herein to the contrary, OWNER retains its right to liquidated damages due under this Agreement even if CONTRACTOR, at OWNER'S election and in its sole discretion, is allowed to continue and to finish the Work, or any part of it, after the expiration of the Contract Time including granted time extensions. F. In the event CONTRACTOR defaults on any of its obligations under the Agreement and OWNER elects to complete the Work, in whole or in part, through another contractor or its own forces, the CONTRACTOR and its surety shall continue to be liable for the liquidated damages under the Agreement until OWNER achieves Substantial and Final Completion of the Work. OWNER will not charge liquidated damages for any delay in achieving Substantial or Final Completion as a result of any unreasonable action or delay on the part of the OWNER. G. The OWNER shall consider the Agreement complete when the CONTRACTOR has completed in its entirety all of the Work and the OWNER has accepted all of the Work and notified the CONTRACTOR in writing that the Work is complete. Once the OWNER has approved and accepted the Work, CONTRACTOR shall be entitled to final payment in accordance with the terms of the Contract Documents. H. CONTRACTOR shall be liable to OWNER to the extent OWNER incurs damages from a third party as a result of the CONTRACTOR'S failure to fulfill all of its obligations under the Contract Documents. OWNER'S recovery of any delay related damages under this Agreement through the liquidated damages does not preclude OWNER from recovering from CONTRACTOR any other non-delay related damages that may be owed to it arising out of or relating to this Agreement. SECTION 6 — PAYMENTS TO CONTRACTOR A. The OWNER agrees with said CONTRACTOR to employ, and does hereby employ, the said CONTRACTOR to provide the materials and do all the work and do all other things hereinabove mentioned according to the terms and conditions hereinabove contained or referred to for the prices aforesaid, and hereby contracts to pay the same at the time, in the manner and upon the conditions set forth or referred to in the Contract Documents; and the said parties for themselves, their heirs, executors, administrators, successors and assigns, do hereby agree to the full performance of the covenants herein contained. B. The CONTRACTOR shall, on the 1st day of each calendar month make an estimate of the value of the work performed in accordance with this Contract since the last preceding estimate was made. The CONTRACTOR shall then prepare and submit the estimate to the ENGINEER on the periodical estimate for partial payment forms. Number of copies to be submitted will be determined by the ENGINEER after construction has started. The estimates shall be signed by the ENGINEER and November 2010 POI WATER TREATMENT PLANT AGREEMENT CA approved by the OWNER, and after such approval, the OWNER, subject to the Contract Documents, will pay or cause to be paid an amount equal to the approved estimated value of the work performed less a retained amount in accordance with the following schedule. 1) Prior to Substantial Completion progress payments will be in an amount equal to ninety percent (90%) of the Work completed and materials and equipment not incorporated in the Work but delivered and suitably stored, less in each case the aggregate of payments previously made. 2) Upon Substantial Completion, OWNER shall pay an amount sufficient to increase total payments to CONTRACTOR to ninety-five (95%) of the Contract price, less such amounts as ENGINEER shall determine, based on the amount of work required to completely finish the construction and restoration. SECTION 7 — NOTICES A. All notices required or made pursuant to this Agreement by the CONTRACTOR to the OWNER shall be deemed duly served if delivered by U.S. Mail, E-mail or Facsimile, addressed to the following: OWNER: Ronald E. Benson, Ph.D., P.E. Hole Montes, Inc. 950 Encore Way Naples FL, 34110 Phone: 239-254-2000 Fax: 239-254-2097 CONTRACTOR: William J. McDevitt, President Cardinal Contractors, Inc. 10405 Technology Terrace Sarasota FL 34211 SECTION 8— MODIFICATION No modification or change to the Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it. SECTION 9 —SUCCESSORS AND ASSIGNS Subject to other provisions hereof, the Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the Agreement. November 2010 POI WATER TREATMENT PLANT AGREEMENT C-5 SECTION 10—GOVERNING LAW The Agreement shall be interpreted under its performance governed by the laws of the State of Florida. SECTION 11 — NO WAIVER The failure of the OWNER to enforce at any time or for any period of time any one or more of the provisions of the Agreement shall not be construed to be and shall not be a waiver of any such provision or provisions or of it right thereafter to enforce each and every such provision. SECTION 12 — ENTIRE AGREEMENT Should any provision of the Agreement be determined by a court to be unenforceable, such a determination shall not affect the validity or enforceability of any other section or part thereof. SECTION 13— SEVERABILITY Should any provision of the Agreement be determined by a court to be unenforceable, such a determination shall not affect the validity or enforceability of any other section or part thereof. SECTION 14 — CONSTRUCTION Any doubtful or ambiguous language contained in this Agreement shall not be construed against the party who physically prepared this Agreement. The rule sometimes referred to as "fortius contra proferentum" (pursuant to which ambiguities in a contractual term which appears on its face to have been inserted for the benefit of one of the parties shall be construed against the benefited party) shall not be applied to the construction of this Agreement. November 2010 P01 WATER TREATMENT PLANT AGREEMENT C-6 (SEAL) Cflk1JIXU C2r-i-cQSJtC.., CONTRACTOR ATTEST: By: .01 r Title: VICE `b EE5I DE1 T Title �� rVt TT EST: I jApprov this 3nf). da of 201.07 OWN IMPORTANT NOTE: If the Contractor is a corporation, the legal name of the corporation shall be set forth above together with a signature of the officer or officers authorized to sign Contracts on behalf of the Corporation; if Contractor is a co-partnership, the true name of the firm shall be set forth above together with the signatures of all the partners; and if Contractor is an individual, his signature shall be placed above. If signature is by an agent other than an officer of a corporation or a member of a partnership, a power-of-attorney must be attached hereto. Signature of Contractor shall also be acknowledged before a Notary Public or other person authorized by law to execute such acknowledgement. STATE OF FLORIDA COUNTY OF Before me, the undersigned authority, this day personally appeared to me well- known and known to me to be the individuals described in and who executed the foregoing Agreement as and respectively, of the Corporation named in the foregoing Agreement on behalf of and in the name of said Corporation as such officers; that the seal affixed to said Agreement is the Corporate seal of said Corporation and that it was affixed thereto by due and regular corporate authority; that they are duly authorized by said Corporation to execute said Agreement and that said Agreement is the free act and deed of said Corporation. N WITNESWHEREOF, I have hereunto set my hand and affixed my official seal this 7 day o (l,f1j , 201 I i My commission expires: 0 9y(i), Uv1c,n -� L4U RICH RE'' otary Public _ Z. Notary Public.,State f Florida My comm.expires Oct.8,2012 POI WATER TREATMENT PLANT November2010�� Comm.No.DD829351 AGREEMENT C-7 GENERAL TERMS AND CONDITIONS PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT WATER TREATMENT PLANT 1. INTENT OF CONTRACT DOCUMENTS. 1.1 It is the intent of the Contract Documents to describe a functionally complete Project (or portion thereof) to be constructed in accordance with the Contract Documents. Any work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not specifically called for. When words which have a well known technical or trade meaning are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association or to the laws or regulations of any governmental authority having jurisdiction over the Project, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, law or regulation in effect at the time the Work is performed, except as may be otherwise specifically stated herein. 1.2 If before or during the performance of the Work Contractor discovers a conflict, error or discrepancy in the Contract Documents, Contractor immediately shall report same to the Engineer in writing and before proceeding with the Work affected thereby shall obtain a written interpretation or clarification from the Engineer. Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing any portion of the Work. 1.3 Drawings are intended to show general arrangements, design and extent of Work and are not intended to serve as shop drawings. Specifications are separated into divisions for convenience of reference only and shall not be interpreted as establishing divisions for the Work, trades, subcontracts, or extent of any part of the Work. In the event of a discrepancy between or among the drawings, specifications or other Contract Document provisions, Contractor shall be required to comply with the provision which is the more restrictive or stringent requirement upon the Contractor, as determined by the Engineer. Unless otherwise specifically mentioned, all anchors, bolts, screws, fittings, fillers, hardware, accessories, trim and other parts required in connection with any portion of the Work to make a complete, serviceable, finished and first quality installation shall be furnished and installed as part of the Work, whether or not called for by the Contract Documents. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-1 2. INVESTIGATION AND UTILITIES. 2.1 Subject to Section 2.3 below, Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling and storage of materials; availability and quality of labor; water and electric power; availability and condition of roads; work area; living facilities; climatic conditions and seasons; physical conditions at the work-site and the project area as a whole; topography and ground surface conditions; nature and quantity of the surface materials to be encountered; subsurface conditions; equipment and facilities needed preliminary to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation. 2.2 Contractor shall locate all existing roadways, railways, drainage facilities and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities and utilities being referred to in this Sub-Section 2.2 as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for relocating or temporarily interrupting any Utilities during the construction of the Project. Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting and protecting all Utilities at all times during the course of the Work. The Contractor is responsible for coordinating all other utility work so as to not interfere with the prosecution of the Work (except those utilities to be coordinated by the Owner as may be expressly described elsewhere in the Contract Documents). 2.3 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by Contractor as part of its scope of site investigative services required pursuant to the terms of the Contract Documents, then Contractor shall provide Owner with prompt written notice thereof before conditions are disturbed and in no event later than three (3) calendar days after first observance of such conditions. Owner and Engineer shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in Contractor's cost of, or time required for, performance of any part of the Work, Owner will acknowledge and agree to an equitable adjustment to Contractor's compensation or time for performance, or both, for such Work. If Owner determines that the conditions at the site are not materially different from those indicated in the Contract November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-2 Documents or not of an unusual nature or should have been discovered by Contractor as part of its investigative services, and that no change in the terms of the Agreement is justified, Owner shall so notify Contractor in writing, stating its reasons. Claims by Contractor in opposition to such determination by Owner must be made within seven (7) calendar days after Contractor's receipt of Owner's written determination notice. If Owner and Contractor cannot agree on an adjustment to Contractor's cost or time of performance, the dispute resolution procedure set forth in the Contract Documents shall be complied with by the parties. 3. SCHEDULE. 3.1 The Contractor, within ten (10) calendar days after receipt of the Notice of Award, shall prepare and submit to Engineer, for their review and approval, a progress schedule for the Project (herein "Progress Schedule"). The Progress Schedule shall relate to all Work required by the Contract Documents, and shall utilize the Critical Path method of scheduling and shall provide for expeditious and practicable execution of the Work within the Contract Time. The Progress Schedule shall indicate the dates for starting and completing the various stages of the Work. 3.2 The Progress Schedule shall be updated monthly by the Contractor. All monthly updates to the Progress Schedule shall be subject to the Engineer's review and approval. Contractor shall submit the updates to the Progress Schedule with its monthly Applications for Payment noted below. The Engineer's review and approval of the submitted Progress Schedule updates shall be a condition precedent to the Owner's obligation to pay Contractor. 3.3 All work under this Agreement shall be performed in accordance with the requirements of all Collier County Noise Ordinances then in effect. Unless otherwise specified, work will generally be limited to the hours of 7:00 a.m. to 5:00 p.m., Monday through Friday. No work shall be performed outside the specified hours without the prior approval of the Owner. 4. PROGRESS PAYMENTS. 4.1 Prior to submitting its first monthly Application for Payment, Contractor shall submit to Engineer, for their review and approval, a schedule of values based upon the Contract Price, listing the major elements of the Work and the dollar value for each element. After its approval by the Engineer, this schedule of values shall be used as the basis for the Contractor's monthly Applications for Payment. This schedule shall be updated and submitted each month along with a completed copy of the Application for Payment form signed by the Contractor's authorized representative. 4.2 Prior to submitting its first monthly Application for Payment, Contractor shall provide to the Engineer the list of its Subcontractors and materialmen submitted November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-3 with its Bid showing the work and materials involved and the dollar amount of each subcontract and purchase order. Contractor acknowledges and agrees that any modifications to the list of Subcontractors submitted with Contractor's Bid and any subsequently identified Subcontractors are subject to Owner's prior written approval. The first Application for Payment shall be submitted no earlier than thirty (30) days after the Commencement Date. 4.3 Unless expressly approved by Owner in advance and in writing, said approval at Owner's sole discretion, Owner is not required to make any payment for materials or equipment that have not been incorporated into the Project. If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location, and such payment and storage have been agreed to by Owner in writing, the Application for Payment also shall be accompanied by a bill of sale, invoice or other documentation warranting that the Owner has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, together with evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect Owner's interest therein, all of which shall be subject to the Owner's satisfaction. Thereafter, with each subsequent Application for Payment, Contractor also shall complete and submit to Owner as part of its Application for Payment, the Stored Materials Record. 4.4 Contractor shall submit six (6) copies of its monthly Application for Payment to the Engineer or his or her designee, as directed by Owner. After the date of each Application for Payment is stamped as received, the Engineer, shall either: (1) Indicate its approval of the requested payment; (2) indicate its approval of only a portion of the requested payment, stating in writing its reasons therefore; or (3) return the Application for Payment to the Contractor indicating, in writing, the reason for refusing to approve payment. 4.5 Owner shall retain ten percent (10%) of the gross amount of each monthly payment request. Such sum shall be accumulated and not released to Contractor until final payment is due unless otherwise agreed to by the Owner. The Engineer shall have the discretion to establish, in writing, a schedule to periodically reduce the percentage of cumulative retainage held through out the course of the Project schedule. Owner reserves the right to reduce the amount of the retainage withheld subject to the guidelines as set forth in the Owner's Purchasing Policy. 4.6 Monthly payments to Contractor shall in no way imply approval or acceptance of Contractor's Work. 4.7 Each Application for Payment shall be accompanied by a Release and Affidavit, acknowledging Contractor's receipt of payment in full for all materials, labor, equipment and other bills that are then due and payable by Owner with respect to the current Application for Payment. Further, to the extent directed by Owner November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-4 and in Owner's sole discretion, Contractor shall also submit a Release and Affidavit from each Subcontractor, sub-subcontractor, or supplier acknowledging that each Subcontractor, sub-subcontractor or supplier has been paid in full through the previous month's Application for Payment. The Owner shall not be required to make payment until and unless these affidavits are furnished by Contractor. 4.8 Contractor agrees and understands that funding limitations exist and that the expenditure of funds must be spread over the duration of the Project at regular intervals based on the Contract Amount and Progress Schedule. Accordingly, prior to submitting its first monthly Application for Payment, Contractor shall prepare and submit for Engineer's review and approval, a detailed Project Funding Schedule, which shall be updated as necessary and approved by Owner to reflect approved adjustments to the Contract Amount and Contract Time. No voluntary acceleration or early completion of the Work shall modify the time of payments to Contractor as set forth in the approved Project Funding Schedule. 4.9 Notwithstanding anything in the Contract Documents to the contrary, Contractor acknowledges and agrees that in the event of a dispute concerning payments for Work performed under this Agreement, Contractor shall continue to perform the Work required of it under this Agreement pending resolution of the dispute provided that Owner continues to pay Contractor all amounts that Owner does not dispute are due and payable. 5. PAYMENTS WITHHELD. 5.1 The Engineer may decline to approve any Application for Payment, or portions thereof, because of subsequently discovered evidence or subsequent inspections that reveal non-compliance with the Contract Documents. The Engineer may nullify the whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due Contractor under this Agreement or any other agreement between Owner and Contractor, to such extent as may be necessary in the Owner's opinion to protect it from loss because of: (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents by Contractor. 5.2 If any conditions described in 5.1. are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor's expense. Provided, however, in the event of an emergency, Owner shall not be required November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-5 to provide Contractor any written notice prior to rectifying the situation at Contractor's expense. Owner also may offset against any sums due Contractor the amount of any liquidated or non-liquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other agreement between Contractor and Owner. 6. FINAL PAYMENT. 6.1 Owner shall make final payment to Contractor after the Work is finally inspected and accepted by Engineer as set forth with Section 20.1 herein, provided that Contractor first, and as an explicit condition precedent to the accrual of Contractor's right to final payment, shall have furnished Owner with a properly executed and notarized copy of the Release and Affidavit, as well as a duly executed copy of the Surety's consent to final payment and such other documentation that may be required by the Contract Documents and the Owner. 6.2 Contractor's acceptance of final payment shall constitute a full waiver of any and all claims by Contractor against Owner arising out of this Agreement or otherwise relating to the Project, except those previously made in writing in accordance with the requirements of the Contract Documents and identified by Contractor as unsettled in its final Application for Payment. Neither the acceptance of the Work nor payment by Owner shall be deemed to be a waiver of Owner's right to enforce any obligations of Contractor hereunder or to the recovery of damages for defective Work not discovered by the Engineer at the time of final inspection. 7. SUBMITTALS AND SUBSTITUTIONS. 7.1 Contractor shall carefully examine the Contract Documents for all requirements for approval of materials to be submitted such as shop drawings, data, test results, schedules and samples. Contractor shall submit all such materials at its own expense and in such form as required by the Contract Documents in sufficient time to prevent any delay in the delivery of such materials and the installation thereof. 7.2 Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by Owner if sufficient information is submitted by Contractor to allow the Owner to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by Owner from anyone other than Contractor and all such requests must be submitted by Contractor to Engineer within thirty (30) calendar days after Notice of Award is received by Contractor, unless otherwise mutually agreed in writing by Owner and Contractor. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-6 7.3 If Contractor wishes to furnish or use a substitute item of material or equipment, Contractor shall make application to the Engineer for acceptance thereof, certifying that the proposed substitute shall adequately perform the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application shall state that the evaluation and acceptance of the proposed substitute will not prejudice Contractor's achievement of substantial completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for the Project) to adapt the design to the proposed substitute and whether or not incorporation or use by the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair and replacement service shall be indicated. The application also shall contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs for redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Engineer in evaluating the proposed substitute. The Engineer may require Contractor to furnish at Contractor's expense additional data about the proposed substitute. 7.4 If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure of construction acceptable to the Engineer, if Contractor submits sufficient information to allow the Engineer to determine that the substitute proposed is equivalent to that indicated or required by the Contract Documents. The procedures for submission to and review by the Engineer shall be the same as those provided herein for substitute materials and equipment. 7.5 The Engineer shall be allowed a reasonable time within which to evaluate each proposed substitute and, if need be, to consult with the Engineer. No substitute will be ordered, installed or utilized without the Engineer's prior written acceptance which shall be evidenced by a Change Order, a Work Directive Change, a Field Order or an approved Shop Drawing. The Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. The Owner will record time required by the Engineer in evaluating substitutions proposed by Contractor and making changes in the Contract Documents occasioned thereby. Whether or not the Owner accepts a proposed substitute, Contractor shall reimburse Owner for the charges of the Engineer for evaluating each proposed substitute. 8. DAILY REPORTS, AS-BUILTS AND MEETINGS. 8.1 Unless waived in writing by Owner, Contractor shall complete and submit to Engineer on a weekly basis a daily log of the Contractor's work for the preceding week in a format approved by the Engineer. The daily log shall document all November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-7 activities of Contractor at the Project site including, but not limited to, the following: 8.1.1 Weather conditions showing the high and low temperatures during work hours, the amount of precipitation received on the Project site, and any other weather conditions which adversely affect the Work; 8.1.2 Soil conditions which adversely affect the Work; 8.1.3 The hours of operation by Contractor's and Sub-Contractor's personnel; 8.1.4 The number of Contractor's and Sub-Contractor's personnel present and working at the Project site, by subcontract and trade; 8.1.5 All equipment present at the Project site, description of equipment use and designation of time equipment was used (specifically indicating any down time); 8.1.6 Description of Work being performed at the Project site; 8.1.7 Any unusual or special occurrences at the Project site; 8.1.8 Materials received at the Project site; 8.1.9 A list of all visitors to the Project 8.1.10 Any problems that might impact either the cost or quality of the Work or the time of performance. The daily log shall not constitute nor take the place of any notice required to be given by Contractor to Owner pursuant to the Contract Documents. 8.2 Contractor shall maintain in a safe place at the Project site one record copy of the Contract Documents, including, but not limited to, all drawings, specifications, addenda, amendments, Change Orders, Work Directive Changes and Field Orders, as well as all written interpretations and clarifications issued by the Engineer, in good order and annotated to show all changes made during construction. The annotated drawings shall be continuously updated by the Contractor throughout the prosecution of the Work to accurately reflect all field changes that are made to adapt the Work to field conditions, changes resulting from Change Orders, Work Directive Changes and Field Orders, and all concealed and buried installations of piping, conduit and utility services. All buried and concealed items, both inside and outside the Project site, shall be accurately located on the annotated drawings as to depth and in relationship to not less than two (2) permanent features (e.g. interior or exterior wall faces). The annotated drawings shall be clean and all changes, corrections and dimensions shall be given in a neat and legible manner in a contrasting color. The "As-Built" record documents, together with all approved samples and a counterpart of all November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-8 approved shop drawings shall be available to the Engineer for reference. Upon completion of the Work and as a condition precedent to Contractor's entitlement to final payment, these "As-Built" record documents, samples and shop drawings shall be delivered to Engineer by Contractor for Owner. 8.3 Contractor shall keep all records and supporting documentation which concern or relate to the Work hereunder for a minimum of five (5) years from the date of termination of this Agreement or the date the Project is completed or such longer period as may be required by law, whichever is later. Owner, or any duly authorized agents or representatives of Owner, shall have the right to audit, inspect and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the document retention period noted above; provided, however, such activity shall be conducted only during normal business hours. 9. CONTRACT TIME AND TIME EXTENSIONS. 9.1 Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and material-men, as well as coordinating its Work with all work of others at the Project Site, so that its Work or the work of others shall not be delayed or impaired by any act or omission by Contractor. Contractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures, as well as coordination of all portions of the Work under the Contract Documents, and the coordination of Owner's suppliers and contractors as set forth in Paragraph 12.2. herein. 9.2 Should Contractor be obstructed or delayed in the prosecution of or completion of the Work as a result of unforeseeable causes beyond the control of Contractor, and not due to its fault or neglect, including but not restricted to acts of Nature or of the public enemy, acts of government, fires, floods, epidemics, quarantine regulation, strikes or lockouts, Contractor shall notify the Owner in writing within forty-eight (48) hours after the commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which Contractor may have had to request a time extension. 9.3 No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which Owner may be responsible, in whole or in part, shall relieve Contractor of its duty to perform or give rise to any right to damages or additional compensation from Owner. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if any, against Owner will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-9 9.4 In no event shall any approval by Owner authorizing Contractor to continue performing Work under this Agreement or any payment issued by Owner to Contractor be deemed a waiver of any right or claim Owner may have against Contractor for delay damages hereunder. 10. CHANGES IN THE WORK. 10.1 Owner shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, Contractor shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, or as expressly set forth herein, no addition or changes to the Work shall be made except upon written order of Owner, and Owner shall not be liable to the Contractor for any increased compensation without such written order. No officer, employee or agent of Owner is authorized to direct any extra or changed work orally. Any alleged changes must be approved by Owner in writing prior to starting such items. Owner will not be responsible for the costs of any changes commenced without Owner's express prior written approval. Failure to obtain such prior written approval for any changes will be deemed: (i) a waiver of any claim by Contractor for such items and (ii) an admission by Contractor that such items are in fact not a change but rather are part of the Work required of Contractor hereunder. 10.2 A Change Order shall be issued and executed promptly after an agreement is reached between Contractor and Owner concerning the requested changes. Contractor shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount and Contract Time shall be adjusted in the Change Order in the manner as Owner and Contractor shall mutually agree. 10.3 If Owner and Contractor are unable to agree on a Change Order for the requested change, Contractor shall, nevertheless, promptly perform the change as directed by Owner in a written Work Directive Change. In that event, the Contract Amount and Contract Time shall be adjusted as directed by Owner. If Contractor disagrees with the Owner's adjustment determination, Contractor must make a claim pursuant to Section 11 of these General Conditions or else be deemed to have waived any claim on this matter it might otherwise have had. 10.4 In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the Contractor's reasonable direct labor and material costs and reasonable actual equipment costs as a result of the change (including allowance for labor burden costs) plus a maximum ten percent (10%) markup for all overhead and profit. In the event such change Work is performed by a Subcontractor, a maximum ten percent (10%) markup for all overhead and profit for all Subcontractors' and sub-subcontractors' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (5%) markup thereon by the Contractor for all of its overhead and profit, for a total maximum markup of fifteen percent (15%). All November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-10 compensation due Contractor and any Subcontractor or sub-subcontractor for field and home office overhead is included in the markups noted above. Contractor's and Sub-Contractor's bond costs associated with any change order shall be included in the overhead and profit expenses and shall not be paid as a separate line item. 10.5 Owner shall have the right to conduct an audit of Contractor's books and records to verify the accuracy of the Contractor's claim with respect to Contractor's costs associated with any Change Order or Work Directive Change. 10.6 The Engineer shall have authority to order minor changes in the Work not involving an adjustment to the Contract Amount or an extension to the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes may be effected by Field Order or by other written order. Such changes shall be binding on the Contractor. 11. CLAIMS AND DISPUTES. 11.1 Claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between Owner and Contractor arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim. 11.2 Claims by the Contractor shall be made in writing to the Engineer and Owner within forty-eight (48) hours from when the Contractor knew or should have known of the event giving rise to such Claim or else the Contractor shall be deemed to have waived the Claim. Written supporting data shall be submitted to the Engineer within fifteen (15) calendar days after the occurrence of the event, unless the Owner grants additional time in writing, or else the Contractor shall be deemed to have waived the Claim. All Claims shall be priced in accordance with the provisions of Subsection 10.4. 11.3 The Contractor shall proceed diligently with its performance as directed by the Owner, regardless of any pending Claim, action, suit or administrative proceeding, unless otherwise agreed to by the Owner in writing. Owner shall continue to make payments in accordance with the Contract Documents during the pendency of any Claim. 11.4 Any legal suit or action must be brought in the appropriate Federal or State courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 12. OTHER WORK. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-11 12.1 Owner may perform other work related to the Project at the site by Owner's own forces, have other work performed by utility owners or let other direct contracts. If the fact that such other work is to be performed is not noted in the Contract Documents, written notice thereof will be given to Contractor prior to starting any such other work. If Contractor believes that such performance will involve additional expense to Contractor or require additional time, Contractor shall send written notice of that fact to Owner and Engineer within forty-eight (48) hours of being notified of the other work. If the Contractor fails to send the above required forty-eight (48) hour notice, the Contractor will be deemed to have waived any rights it otherwise may have had to seek an extension to the Contract Time or adjustment to the Contract Amount. 12.2 Contractor shall afford each utility owner and other contractor who is a party to such a direct contract (or Owner, if Owner is performing the additional work with Owner's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work and shall properly connect and coordinate its Work with theirs. Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of the Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this paragraph are for the benefit of such utility owners and other Contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. 12.3 If any part of Contractor's Work depends for proper execution or results upon the work of any other contractor or utility owner (or Owner), Contractor shall inspect and promptly report to Engineer in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. Contractor's failure to report will constitute an acceptance of the other work as fit and proper for integration with Contractor's Work. 13. INDEMNIFICATION AND INSURANCE. 13.1 To the maximum extent permitted by Florida law, Contractor shall indemnify and hold harmless Owner and its officers and employees from any and all liabilities, claims, damages, penalties, demands, judgments, actions, proceedings, losses or costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, whether resulting from any claimed breach of this Agreement by Contractor or from personal injury, property damage, direct or consequential damages, or economic loss, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of Contractor or anyone employed or utilized by the Contractor in the performance of this Agreement. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-12 13.2 The duty to defend under this Article 13 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the Contractor, Owner and any indemnified party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to Contractor. Contractor's obligation to indemnify and defend under this Article 13 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the Owner or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. 13.3 Contractor shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts set forth in the Contract Documents. Further, the Contractor shall at all times comply with all of the terms, conditions, requirements and obligations set forth under the Contract Documents. 14. CONTRACTOR'S LIABILITY INSURANCE 14.1 Contractor shall purchase and maintain such comprehensive general liability and other insurance as is appropriate for the Work being performed and furnished and as will provide protection from claims set forth below which may arise out of or result from Contractor's performance and furnishing of the Work and Contractor's other obligations under the Contract Documents, whether it is to be performed or furnished by Contractor, by any Subcontractor, by anyone directly or indirectly employed by any of them to perform or furnish any of the Work, or by anyone for whose acts any of them may be liable: 14.2 Claims under workers' or workmen's compensation, disability benefits and other similar employee benefit acts; 14.3 Claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; (1) State: Statutory (2) Applicable Federal (e.g. Longshoreman's): Statutory (3) Employer's Liability: $1,000,000 14.4 Claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 14.5 Claims for damages insured by personal injury liability coverage which are sustained (a) by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or (b) by any other person for any other reason; November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-13 14.6 Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; 14.7 Claims arising out of operation of Laws or Regulations for damages because of bodily injury or death of any person or for damage to property; and (1) Bodily Injury and Property Damage: $1,000,000 (Including completed operations and products Combined Single Liability) Each Occurrence Limit and Aggregate (2) Property Damage liability insurance will provide Explosion, Collapse and Underground coverages where applicable. (3) Include Broad Form CGL Endorsement. (4) Personal Injury: $1,000,000 Annual Aggregrate 14.8 Claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. (1) Bodily Injury and Property Damage: $1,000,000 Combined Single Limit Each Occurrence and Aggregate The insurance required by this paragraph shall include the specific coverages and be written for not less than the limits of liability and coverages provided in the Contract Documents, or required by law, whichever is greater. The comprehensive general liability insurance shall include completed operations insurance. All of the policies of insurance so required to be purchased and maintained (or the certificates or other evidence thereof) shall contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least thirty days' prior written notice has been given to Owner and Engineer by certified mail. All such insurance shall remain in effect until final payment and at all times thereafter when Contractor may be correcting, removing or replacing defective Work. In addition, Contractor shall maintain such completed operations insurance for at least two years after final payment and furnish Owner with evidence of continuation of such insurance at final payment and one year thereafter. 14.9 Flood Insurance: The Contractor must acquire Flood Insurance made available to it under the National Flood Insurance Act of 1968, as amended, beginning with the period of construction and maintain such insurance until the project is complete and accepted by the Owner. The amount of insurance required is the November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-14 total project cost, excluding facilities which are uninsurable under the National Flood Insurance Program and excluding the cost of land, or the maximum limit of coverage made available under the National Flood Insurance Act, whichever is less. 15. OWNER'S LIABILITY INSURANCE Contractor shall include the Owner and Engineer and the consultants, agents, and employees in the Contractor's general liability and automobile liability policies as additional insureds. Contractor shall be responsible for the purchase of an "Installation Floater" to cover stored materials. Such insurance shall carry a limit equal to 100% of the value of said property and shall become effective upon payment by the Owner for materials stored. Contractor shall provide proof that said coverages are in force by providing appropriately endorsed certificates of insurance. Owner as trustee shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within fifteen days after the occurrence of loss to Owner's exercise of this power. If such objection be made, Owner as trustee shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If required in writing by any party in interest, Owner as trustee shall, upon the occurrence of an insured loss, give bond for the proper performance of such duties. 16. COMPLIANCE WITH LAWS. 16.1 Contractor agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, worker's compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify Engineer in writing. To the extent any law, rule, regulation, code, statute, or ordinance requires the inclusion of certain terms in this Agreement in order for this Agreement to be enforceable, such terms shall be deemed included in this Agreement. Notwithstanding anything in the Contract Documents to the contrary, it is understood and agreed that in the event of a change in any applicable laws, ordinances, rules or regulations subsequent to the date this Agreement was executed that increases the Contractor's time or cost of performance of the Work, Contractor is entitled to a Change Order for such increases, except to the extent Contractor knew or should have known of such changes prior to the date of this Agreement. 17. CLEANUP AND PROTECTIONS. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-15 17.1 Contractor agrees to keep the Project site clean at all times of debris, rubbish and waste materials arising out of the Work. At the completion of the Work, Contractor shall remove all debris, rubbish and waste materials from and about the Project site, as well as all tools, appliances, construction equipment and machinery and surplus materials, and shall leave the Project site clean and ready for occupancy by Owner. 17.2 Any existing surface or subsurface improvements, including, but not limited to, pavements, curbs, sidewalks, pipes, utilities, footings, structures, trees and shrubbery, not indicated in the Contract Documents to be removed or altered, shall be protected by Contractor from damage during the prosecution of the Work. Subject to the Section 2.3 above, any such improvements so damaged shall be restored by Contractor to the condition equal to that existing at the time of Contractor's commencement of the Work. 18. ASSIGNMENT. 18.1 Contractor shall not assign this Agreement or any part thereof, without the prior consent in writing of Owner. Any attempt to assign or otherwise transfer this Agreement, or any part herein, without the Owner's consent, shall be void. If Contractor does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward Contractor all of the obligations and responsibilities that Contractor has assumed toward Owner. 19. PERMITS, LICENSES AND TAXES. 19.1 The Contractor will pay for all permits and fees, including license fees, permit fees, impact fees or inspection fees applicable to the Work. 19.2 All permits, fees and licenses necessary for the prosecution of the Work which are not issued by the Owner shall be acquired and paid for by the Contractor. 19.3 Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. 20. TERMINATION FOR DEFAULT. 20.1 Contractor shall be considered in material default of the Agreement and such default shall be considered cause for Owner to terminate the Agreement, in whole or in part, as further set forth in this Section, if Contractor: (1) fails to begin the Work under the Contract Documents within the time specified herein; or (2) fails to properly and timely perform the Work as directed by the Engineer or as provided for in the approved Progress Schedule; or (3) performs the Work unsuitably or neglects or refuses to remove materials or to correct or replace such Work as may be rejected as unacceptable or unsuitable; or (4) discontinues the prosecution of the Work; or (5) fails to resume Work which has been suspended within a reasonable time after being notified to do so; or (6) becomes November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-16 insolvent or is declared bankrupt, or commits any act of bankruptcy; or (7) allows any final judgment to stand against it unsatisfied for more than ten (10) days; or (8) makes an assignment for the benefit of creditors; or (9) fails to obey any applicable codes, laws, ordinances, rules or regulations with respect to the Work; or (10) materially breaches any other provision of the Contract Documents. 20.2 Owner shall notify Contractor in writing of Contractor's default(s). If Owner determines that Contractor has not remedied and cured the default(s) within seven (7) calendar days following receipt by Contractor of said written notice or such longer period of time as may be consented to by Owner in writing and in its sole discretion, then Owner, at its option, without releasing or waiving its rights and remedies against the Contractor's sureties and without prejudice to any other right or remedy it may be entitled to hereunder or by law, may terminate Contractor's right to proceed under the Agreement, in whole or in part, and take possession of all or any portion of the Work and any materials, tools, equipment, and appliances of Contractor, take assignments of any of Contractor's subcontracts and purchase orders, and complete all or any portion of Contractor's Work by whatever means, method or agency which Owner, in its sole discretion, may choose. 20.3 If Owner deems any of the foregoing remedies necessary, Contractor agrees that it shall not be entitled to receive any further payments hereunder until after the Project is completed. All moneys expended and all of the costs, losses, damages and extra expenses, including all management, administrative and other overhead and other direct and indirect expenses (including Engineer and attorneys' fees) or damages incurred by Owner incident to such completion, shall be deducted from the Contract Amount, and if such expenditures exceed the unpaid balance of the Contract Amount, Contractor agrees to pay promptly to Owner on demand the full amount of such excess, including costs of collection, attorneys' fees (including appeals) and interest thereon at the maximum legal rate of interest until paid. If the unpaid balance of the Contract Amount exceeds all such costs, expenditures and damages incurred by the Owner to complete the Work, such excess shall be paid to the Contractor. The amount to be paid to the Contractor or Owner, as the case may be, shall be approved by the Engineer, upon application, and this obligation for payment shall survive termination of the Agreement. 20.4 The liability of Contractor hereunder shall extend to and include the full amount of any and all sums paid, expenses and losses incurred, damages sustained, and obligations assumed by Owner in good faith under the belief that such payments or assumptions were necessary or required, in completing the Work and providing labor, materials, equipment, supplies, and other items therefor or re-letting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments pertaining to or arising out of the Work hereunder. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-17 20.5 If, after notice of termination of Contractor's right to proceed pursuant to this Section, it is determined for any reason that Contractor was not in default, or that its default was excusable, or that Owner is not entitled to the remedies against Contractor provided herein, then the termination will be deemed a termination for convenience and Contractor's remedies against Owner shall be the same as and limited to those afforded Contractor under Section 19 below. 20.6 In the event (i) Owner fails to make any undisputed payment to Contractor within thirty (30) days after such payment is due or Owner otherwise persistently fails to fulfill some material obligation owed by Owner to Contractor under this Agreement, and (ii) Owner has failed to cure such default within fourteen (14) days of receiving written notice of same from Contractor, then Contractor may stop its performance under this Agreement until such default is cured, after giving Owner a second fourteen (14) days written notice of Contractor's intention to stop performance under the Agreement. If the Work is so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the Contractor or its Subcontractors or their agents or employees or any other persons performing portions of the Work under contract with the Contractor or any Subcontractor, the Contractor may terminate this Agreement by giving written notice to Owner of Contractor's intent to terminate this Agreement. If Owner does not cure its default within fourteen (14) days after receipt of Contractor's written notice, Contractor may, upon fourteen (14) additional days' written notice to the Owner, terminate the Agreement and recover from the Owner payment for Work performed through the termination date, but in no event shall Contractor be entitled to payment for Work not performed or any other damages from Owner. 21. TERMINATION FOR CONVENIENCE AND RIGHT OF SUSPENSION. 21.1 Owner shall have the right to terminate this Agreement without cause upon seven (7) calendar days written notice to Contractor. In the event of such termination for convenience, Contractor's recovery against Owner shall be limited to that portion of the Contract Amount earned through the date of termination, together with any retainage withheld and reasonable termination expenses incurred, but Contractor shall not be entitled to any other or further recovery against Owner, including, but not limited to, damages or any anticipated profit on portions of the Work not performed. 21.2 Owner shall have the right to suspend all or any portions of the Work upon giving Contractor not less than two (2) calendar days' prior written notice of such suspension. If all or any portion of the Work is so suspended, Contractor's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in the Contract Documents. In no event shall the Contractor be entitled to any additional compensation or damages. Provided, however, if the ordered suspension exceeds six (6) months, the Contractor shall have the right to terminate the Agreement with respect to that portion of the Work which is subject to the ordered suspension. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-18 22. COMPLETION. 22.1 When the entire Work (or any portion thereof designated in writing by Owner) is ready for its intended use, Contractor shall notify Engineer in writing that the entire Work (or such designated portion) is substantially complete. Within a reasonable time thereafter, Owner, Contractor and Engineer shall make an inspection of the Work (or designated portion thereof) to determine the status of completion. If Owner, after conferring with the Engineer, does not consider the Work (or designated portion) substantially complete, Engineer shall notify Contractor in writing giving the reasons therefor. If Owner, after conferring with the Engineer, considers the Work (or designated portion) substantially complete, Engineer shall prepare and deliver to Contractor a Certificate of Substantial Completion which shall fix the date of Substantial Completion for the entire Work (or designated portion thereof) and include a tentative punch-list of items to be completed or corrected by Contractor before final payment. Owner shall have the right to exclude Contractor from the Work and Project site (or designated portion thereof) after the date of Substantial Completion, but Owner shall allow Contractor reasonable access to complete or correct items on the tentative punch-list. 22.2 Upon receipt of written certification by Contractor that the Work is completed in accordance with the Contract Documents and is ready for final inspection and acceptance, Engineer will make such inspection and, if they find the Work acceptable and fully performed under the Contract Documents shall promptly issue a final Certificate for Payment, recommending that, on the basis of their observations and inspections, and the Contractor's certification that the Work has been completed in accordance with the terms and conditions of the Contract Documents, that the entire balance found to be due Contractor is due and payable. Neither the final payment nor the retainage shall become due and payable until Contractor submits: (1) Receipt of Contractor's Final Application for Payment. (2) Release and Affidavit. (3) If required by Owner, other data establishing payment or satisfaction of all obligations, such as receipts, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by Owner. Owner reserves the right to inspect the Work and make an independent determination as to the Work's acceptability, even though the Engineer may have issued its recommendations. Unless and until the Owner is completely satisfied, neither the final payment nor the retainage shall become due and payable. 23. WARRANTY. 23.1 Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any subcontractor or materialmen supplying November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-19 materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, within one (1) year after Substantial Completion, any Work is found to be defective or not in conformance with the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner. Contractor shall also be responsible for and pay for replacement or repair of adjacent materials or Work which may be damaged as a result of such replacement or repair. Further, in the event of an emergency, Owner may commence to correct any defective Work, without prior notice to Contractor, at Contractor's expense. These warranties are in addition to those implied warranties to which Owner is entitled as a matter of law. 23.2 No later than 30 days prior to expiration of the warranty, the Engineer, or another representative of the Owner, shall conduct an inspection of the warranted work to verify compliance with the requirements of the Agreement. The Contractor's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the Contractor to correct the cited deficiencies shall be grounds for the Owner to disqualify the Contractor from future bid opportunities with the Owner, in addition to any other rights and remedies available to Owner. 24. TESTS AND INSPECTIONS. 24.1 Owner, Engineer, their respective representatives, agents and employees, and governmental agencies with jurisdiction over the Project shall have access at all times to the Work, whether the Work is being performed on or off of the Project site, for their observation, inspection and testing. Contractor shall provide proper, safe conditions for such access. Contractor shall provide Engineer with timely notice of readiness of the Work for all required inspections, tests or approvals. 24.2 If the Contract Documents or any codes, laws, ordinances, rules or regulations of any public authority having jurisdiction over the Project requires any portion of the Work to be specifically inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish Engineer the required certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the Engineer. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-20 24.3 Contractor is responsible, without reimbursement from Owner, for re-inspection fees and costs; to the extent such re-inspections are due to the fault or neglect of Contractor. 24.4 If any Work that is to be inspected, tested or approved is covered without written concurrence from the Engineer, such work must, if requested by Engineer, be uncovered for observation. Such uncovering shall be at Contractor's expense unless Contractor has given Engineer timely notice of Contractor's intention to cover the same and Engineer has not acted with reasonable promptness to respond to such notice. If any Work is covered contrary to written directions from Engineer, such Work must, if requested by Engineer, be uncovered for Engineer's observation and be replaced at Contractor's sole expense. 24.5 The Owner shall charge to Contractor and may deduct from any payments due Contractor all engineering and inspection expenses incurred by Owner in connection with any overtime work. Such overtime work consisting of any work during the construction period beyond the regular eight (8) hour day and for any work performed on Saturday, Sunday or holidays. 24.6 Neither observations nor other actions by the Engineer or Engineer nor inspections, tests or approvals by others shall relieve Contractor from Contractor's obligations to perform the Work in accordance with the Contract Documents. 25. DEFECTIVE WORK. 25.1 Work not conforming to the requirements of the Contract Documents or any warranties made or assigned by Contractor to Owner shall be deemed defective Work. If required by Engineer, Contractor shall as directed, either correct all defective Work, whether or not fabricated, installed or completed, or if the defective Work has been rejected by Engineer, remove it from the site and replace it with non-defective Work. Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including, but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby, and shall hold Owner harmless for same. 25.2 If the Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others and such Work is not otherwise required to be inspected or tested, Contractor, at Engineer's request, shall uncover, expose or otherwise make available for observation, inspection or tests as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is defective, Contractor shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction (including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals), and Owner shall be entitled to an appropriate decrease in the Contract Amount. If, however, such November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-21 Work is not found to be defective, Contractor shall be allowed an increase in the Contract Amount and/or an extension to the Contract Time, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction. 25.3 If any portion of the Work is defective, or if Contractor fails to supply sufficient skilled workers, suitable materials or equipment or fails to finish or perform the Work in such a way that the completed Work will conform to the Contract Documents, Engineer may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. The right of Engineer to stop the Work shall be exercised, if at all, solely for Owner's benefit and nothing herein shall be construed as obligating the Engineer to exercise this right for the benefit of Design Builder or any other person. 25.4 Should the Owner determine, at its sole opinion, it is in the Owner's best interest to accept defective Work, the Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to the Owner's evaluation of and determination to accept defective Work. If such determination is rendered prior to final payment, a Change Order shall be executed evidencing such acceptance of such defective Work, incorporating the necessary revisions in the Contract Documents and reflecting an appropriate decrease in the Contract Amount. If the Owner accepts such defective Work after final payment, Contractor shall promptly pay Owner an appropriate amount to adequately compensate Owner for its acceptance of the defective Work. 25.5 If Contractor fails, within a reasonable time after the written notice from Engineer, to correct defective Work or to remove and replace rejected defective Work as required by Engineer or Owner, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any of the provisions of the Contract Documents, Owner may, after seven (7) days written notice to Contractor, correct and remedy any such deficiency. Provided, however, Owner shall not be required to give notice to Contractor in the event of an emergency. To the extent necessary to complete corrective and remedial action, Owner may exclude Contractor from any or all of the Project site, take possession of all or any part of the Work, and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Project site and incorporate in the Work all materials and equipment stored at the Project site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Engineer and their respective representatives, agents, and employees such access to the Project site as may be necessary to enable Owner to exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of Owner in exercising such rights and remedies shall be charged against Contractor, and a Change Order shall be issued, incorporating the necessary revisions to the Contract Documents, including an appropriate decrease to the Contract Amount. Such direct, indirect and consequential costs shall include, but not be limited to, fees and charges of engineers, architects, November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-22 attorneys and other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of Contractor's defective Work. Contractor shall not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by Owner of Owner's rights and remedies hereunder. 26. SUPERVISION AND SUPERINTENDENTS. 26.1 Contractor shall plan, organize, supervise, schedule, monitor, direct and control the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents. Contractor shall keep on the Work at all times during its progress a competent resident superintendent, who shall be subject to Owner's approval and not be replaced without prior written notice to Engineer except under extraordinary circumstances. The superintendent shall be employed by the Contractor and be the Contractor's representative at the Project site and shall have authority to act on behalf of Contractor. All communications given to the superintendent shall be as binding as if given to the Contractor. Owner shall have the right to direct Contractor to remove and replace its Project superintendent, with or without cause. 26.2 Contractor shall have a competent superintendent, who is fluent in reading and writing English, on the project at all times whenever contractor's work crews, or work crews of other parties authorized by the Engineer are engaged in any activity whatsoever associated with the Project. Should the Contractor fail to comply with the above condition, the Engineer shall, at his discretion, deduct from the Contractor's monthly pay estimate, sufficient moneys to account for the Owner's loss of adequate project supervision, not as a penalty, but as liquidated damages for services not rendered. 27. PROTECTION OF WORK. 27.1 Contractor shall fully protect the Work from loss or damage and shall bear the cost of any such loss or damage until final payment has been made. If Contractor or any one for whom Contractor is legally liable for is responsible for any loss or damage to the Work, or other work or materials of Owner or Owner's separate contractors, Contractor shall be charged with the same, and any moneys necessary to replace such loss or damage shall be deducted from any amounts due Contractor. 27.2 Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-23 27.3 Contractor shall not disturb any benchmark established by the Owner or Engineer with respect to the Project. If Contractor, or its subcontractors, agents or anyone for whom Contractor is legally liable, disturbs the Owner or Engineer's benchmarks, Contractor shall immediately notify Engineer. The Owner or Engineer shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by Owner associated therewith. 28. EMERGENCIES. 28.1 In the event of an emergency affecting the safety or protection of persons or the Work or property at the Project site or adjacent thereto, Contractor, without special instruction or authorization from Owner or Engineer is obligated to act to prevent threatened damage, injury or loss. Contractor shall give Engineer written notice within forty-eight (48) hours after Contractor knew or should have known of the occurrence of the emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. If the Engineer determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations. If Contractor fails to provide the forty-eight (48) hour written notice noted above, the Contractor shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time. 29. USE OF PREMISES. 29.1 Contractor shall maintain all construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in and permitted by the Contract Documents and other lands and areas permitted by law, rights of way, permits and easements, and shall not unreasonably encumber the Project site with construction equipment or other material or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or any land or areas contiguous thereto, resulting from the performance of the Work. 30. SAFETY. 30.1 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 30.1.1 All employees on or about the project site and other persons and/or organizations who may be affected thereby; 30.1.2 All the Work and materials and equipment to be incorporated therein, whether in storage on or off the Project site; and November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-24 30.1.3 Other property on Project site or adjacent thereto, including trees, shrubs, walks, pavements, roadways, structures, utilities and any underground structures or improvements not designated for removal, relocation or replacement in the Contract Documents. 30.2 Contractor shall comply with all applicable codes, laws, ordinances, rules and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. Contractor shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of underground structures and improvements and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation or replacement of their property. Contractor's duties and responsibilities for the safety and protection of the Work shall continue until such time as the Work is completed and final acceptance of same by Owner has occurred. 28.3. Contractor shall designate a responsible representative located on a full time basis at the Project site whose duty shall be the prevention of accidents. This person shall be Contractor's superintendent unless otherwise designated in writing by Contractor to Owner. 28.4 Alcohol, drugs and all illegal substances are strictly prohibited on any Owner property. All employees of Contractor, as well as those of all subcontractors and those of any other person or entity for whom Contractor is legally liable (collectively referred to herein as "Employees"), shall not possess or be under the influence of any such substances while on any Owner property. Further, Employees shall not bring on to any Owner property any gun, rifle or other firearm, or explosives of any kind. 28.5 Contractor shall comply with the following: 28.5.1 All Owner facilities are smoke free. Smoking is strictly prohibited; 28.5.2 Contractor shall strictly limit its operations to the designated work areas and shall not permit any Employees to enter any other portions of Owner's property without Owner's expressed prior written consent; 28.5.3 All Employees are prohibited from distributing any papers or other materials upon Owner's property, and are strictly prohibited from using any of Owner's telephones or other office equipment; 28.5.4 All Employees shall at all times comply with the OSHA regulations with respect to dress and conduct at the Project site. Further, all Employees shall comply with the dress, conduct and facility regulations issued by Owner's officials onsite, as said regulations may be changed from time to time; November 2010 P01 WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-25 28.5.5 All Employees shall enter and leave Owner's facilities only through the ingress and egress points identified in the site utilization plan approved by Owner or as otherwise designated, from time to time, by Owner in writing; 28.5.6 When requested, Contractor shall cooperate with any ongoing Owner investigation involving personal injury, economic loss or damage to Owner's facilities or personal property therein; 28.5.7 The Employees may not solicit, distribute or sell products while on Owner's property. Friends, family members or other visitors of the Employees are not permitted on Owner's property; and 28.5.8 At all times, Contractor shall adhere to Owner's safety and security regulations, and shall comply with all security requirements at Owner's facilities, as said regulations and requirements may be modified or changed by Owner from time to time. 31. PROJECT MEETINGS. Prior to the commencement of Work, the Contractor shall attend a pre-construction conference with the Engineer and others as appropriate to discuss the Progress Schedule, procedures for handling shop drawings and other submittals, and for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. During the prosecution of the Work, the Contractor shall attend any and all meetings convened by the Engineer or Owner with respect to the Project, when directed to do so by Engineer. The Contractor shall have its subcontractors and suppliers attend all such meetings (including the pre-construction conference) as may be directed by the Engineer. 32. MAINTENANCE OF TRAFFIC POLICY. The Contractor shall provide and erect Traffic Control Devices as prescribed in the current edition of the Manual On Uniform Traffic Control Devices (MUTCD), where applicable on local roadways and as prescribed in the Florida Department of Transportations Design Standards (DS), where applicable on state roadways. The Contractor will be responsible for obtaining copies of all required manuals, MUTCD, FDOT Roadway & Traffic Design Standards Indexes, or other related documents, so to become familiar with their requirements. Strict adherence to the requirements of the Maintenance of Traffic ("MOT") policy will be enforced under this Contract. All costs associated with the Maintenance of Traffic shall be included on the line item on the bid page. If MOT is required, MOT is to be provided within ten (10) days of receipt of Notice to Proceed. November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-26 33. SALES TAX SAVINGS AND DIRECT PURCHASE. 33.1 Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. 33.2 Bidder represents and warrants that it is aware of its statutory responsibilities for sale tax under Chapter 212, Florida Statutes, and for its responsibilities for Federal excise taxes. 34. SUBCONTRACTS. 34.1 Contractor shall review the design and shall determine how it desires to divide the sequence of construction activities. Contractor will determine the breakdown and composition of bid packages for award of subcontracts, and shall supply a copy of that breakdown and composition to Owner and Engineer for their review and approval prior to submitting its first Application for Payment. Contractor shall take into consideration such factors as natural and practical lines of severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, community relations and any other factors pertinent to saving time and costs. 34.2 A Subcontractor is any person or entity who is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Contractor. Contractor shall be solely responsible for and have control over the Subcontractors. Contractor shall negotiate all Change Orders, Work Directive Changes, Field Orders and Requests for Proposal, with all affected Subcontractors and shall review the costs of those proposals and advise Owner and Engineer of their validity and reasonableness, acting in Owner's best interest, prior to requesting approval of any Change Order from Owner. All Subcontractors performing any portion of the Work on this Project must be "qualified", meaning a person or entity that has the capability in all respects to perform fully the Agreement requirements with respect to its portion of the Work and has the integrity and reliability to assure good faith performance. 34.3 In addition to those Subcontractors identified in Contractor's bid that were approved by Owner, Contractor also shall identify any other Subcontractors, including their addresses, licensing information and phone numbers, it intends to utilize for the Project prior to entering into any subcontract or purchase order and prior to the Subcontractor commencing any work on the Project. The list identifying each Subcontractor cannot be modified, changed, or amended without prior written approval from Owner. Any and all Subcontractor work to be self- performed by Contractor must be approved in writing by Owner in its sole discretion prior to commencement of such work. Contractor shall continuously November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-27 update that Subcontractor list, so that it remains current and accurate throughout the entire performance of the Work. 34.4 Contractor shall not enter into a subcontract or purchase order with any Subcontractor, if Owner reasonably objects to that Subcontractor. Contractor shall not be required to contract with anyone it reasonably objects to. Contractor shall keep on file a copy of the license for every Subcontractor and sub- subcontractor performing any portion of the Work, as well as maintain a log of all such licenses. All subcontracts and purchase orders between Contractor and its Subcontractors shall be in writing and are subject to Owner's approval. Further, unless expressly waived in writing by Owner, all subcontracts and purchase orders shall (1) require each Subcontractor to be bound to Contractor to the same extent Contractor is bound to Owner by the terms of the Contract Documents, as those terms may apply to the portion of the Work to be performed by the Subcontractor, (2) provide for the assignment of the subcontract or purchase order from Contractor to Owner at the election of Owner upon termination of Contractor, (3) provide that Owner will be an additional indemnified party of the subcontract or purchase order, (4) provide that Owner will be an additional insured on all liability insurance policies required to be provided by the Subcontractor except workman's compensation and business automobile policies, (5) assign all warranties directly to Owner, and (6) identify Owner as an intended third-party beneficiary of the subcontract or purchase order. Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the Subcontractor will be bound. Each Subcontractor shall similarly make copies of such documents available to its sub-subcontractors. 34.5 Each Subcontractor performing work at the Project Site must agree to provide field (on-site) supervision through a named superintendent for each trade (e.g., general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in its subcontract or purchase order. In addition, the Subcontractor shall assign and name a qualified employee for scheduling direction for its portion of the Work. The supervisory employees of the Subcontractor (including field superintendent, foreman and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five years. The Subcontractor shall include a resume of experience for each employee identified by it to supervise and schedule its work. 34.6 Unless otherwise expressly waived by Owner in writing, all subcontracts and purchase orders shall provide: 34.6.1 That the Subcontractor's exclusive remedy for delays in the performance of the subcontract or purchase order caused by events beyond its control, including delays claimed to be caused by Owner or Engineer or attributable to Owner or Engineer and including claims November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-28 based on breach of contract or negligence, shall be an extension of its contract time. 34.6.2 In the event of a change in the work, the Subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 10% for overhead and profit. 34.6.3 The subcontract or purchase order, as applicable, shall require the Subcontractor to expressly agree that the foregoing constitute its sole and exclusive remedies for delays and changes in the Work and thus eliminate any other remedies for claim for increase in the contract price, damages, losses or additional compensation. Further, Contractor shall require all Subcontractors to similarly incorporate the terms of this Section 33.6 into their sub-subcontracts and purchase orders. 34.6.4 Each subcontract and purchase order shall require that any claims by Subcontractor for delay or additional cost must be submitted to Contractor within the time and in the manner in which Contractor must submit such claims to Owner, and that failure to comply with such conditions for giving notice and submitting claims shall result in the waiver of such claims. END OF SECTION November 2010 POI WATER TREATMENT PLANT GENERAL TERMS AND CONDITIONS GC-29 SUPPLEMENTAL CONDITIONS The General Conditions are modified for this specific project and construction Agreement as noted below. Article 10 Insert the following new Article 10.7 on page GC-11: 10.8 When computing the cost for a Contract Change, the cost for construction equipment shall be based on the actual rental cost or, if owned or leased by the Contractor or an affiliate, the current Blue Book value for the same equipment adjusted for local market conditions. The cost for each piece of equipment will be based on the time that equipment is actually on the site and will exclude travel time to and from the site. If the equipment is on site for one month, a minimum time period of one month shall be used in calculating the unit cost. Likewise, if the equipment is on site for less than two weeks, a minimum time period of one week shall be used in calculating the unit cost. If the equipment is idle as a result of the Contract Change, the unit cost shall be no more than one-half of the normal unit cost. Article 22 Add the follow new Article 22.3 on page GC-19: 22.3 During the Contractor's execution of the Contract Work, the Owner may utilize some portions of the Contract Work, and such utilization may occur prior to Substantial Completion certification of those portions. During such utilization, the Owner will be responsible for associated power and chemical costs. However the Contractor will be responsible for operation and maintenance of such portions during the partial utilization period. The warranty period for these portions will not commence until Substantial Completion is certified for those portions of the Contract Work. General A. If requested, the Contractor will be provided reproductions of the Contract Drawings, Specifications and documents. The Contractor shall pay the full cost of such reproduction at the time of document delivery. B. The Contract Drawings identify the required survey reference points. The Contractor shall provide all other survey and survey certification required to complete the Contract Work including preparation of signed and sealed as-built drawings and the associated digital files in DWG format. END OF SUPPLEMENTAL CONDITIONS November 2010 SC-1 POI WATER TREATMENT PLANT SUPPLEMENTAL CONDITIONS