Addenda to Contract w/ITT Flortronex 05/21/2010 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 May 21, 2010
From: Calvin Teague
District Manager
Enclosed for your records is a copy of the Agreement with ITT Water Equipment Technologies
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:
Mr. Daniel Tripaldi
Treasury Accountant
Clerk of the Circuit Court
2671 Airport Road RECEIVED
Court Plaza III
Naples, Florida 34112-3016 JUN 2 1 2011
Mr. Leo Ochs, Jr. FINANCE
Collier County Manager
Governmental Center
3301 East Tamiami Trail
Administration Building
Naples, Florida 34112
_
I
1
i
Addenda to Contract between ITT Flowtronex and Port
of the Islands Community Improvement District
1. Agreement: Payments to the Contractor
a. Add the following: "Retainage on earned progress payments shall be paid
upon final completion or 365 days following delivery of the equipment to
the project site, whichever is sooner."
3. General Conditions: Assignment
a. Reword the first sentence and second sentences of section 18.1 to read as
follows: This Agreement or any part thereof shall not be assigned without
the prior consent in writing of the Owner and Contractor. Any attempt to
assign or otherwise transfer this Agreement or any part herein, without the
consent of both parties, shall be void.
6 iv
ns rd t art Date
ITT Flo ronex
C7,4e.isdiew_____ 14
Michelle R. Brown Date
Notary Public
:iR4''r -1 MICHELLE R.BROWN
* ` MY COMMISSION EXPIRES
..rk E+" March 26,2014
EXHIBIT F
AGREEMENT
PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT
MEMBRANE SYSTEM SUPPLY, INSTALLATION AND STARTUP
PORT OF THE ISLANDS WTP
THIS AGREEMENT made this day of , 2010, by and between
Port of the Islands Community Improvement District, hereinafter called the "OWNER", and
ITT Water Equipment Technologies Division, Flowtronex PSI, Inc., a Nevada Corporation
hereafter called the " CONTRACTOR".
WITNESSETH:
WHEREAS, OWNER has contracted with Hole Montes, Inc., hereinafter called the
ENGINEER, to perform those duties of ENGINEER as listed in the Contract Documents.
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:
Agreement (pages C1 to C7)
Proposal including Bid Schedule with prices (pages P1 to P5) and as amended on May 14, 2010
and stated in Tom Morgan's email of May 11, 2010
General Conditions (pages GC1 to GC25)
Request for Proposal-Membrane System Supply, Installation and Startup (pages 1 to 8 and
Appendix 1 and Exhibits A through G)
Addenda 1 and 2
CONTRACTOR Technical Proposal dated April 1, 2010
Collier County Utilities Standards Manual, 2008 (Incorporated by Reference)
SECTION 3 - CONTRACT AMOUNT
A. Th CONTRACTOR agree to receive d cep he unit prices as submi d in 's Bid
Propo I as full corn ensation ork contemplat and e aced in this C ct; also
for all los mage arising o of ature of the w oresaid or from the a i of the
elem n s or om any unforeseen diffic ies or obstru ' r s which may rise o e
March 2010 AGREEMENT
POI WTP MEMBRANE SYSTEM SUPPLIER
C-1
EXHIBIT F
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 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 earned 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
March 2010 AGREEMENT
POI WTP MEMBRANE SYSTEM SUPPLIER
C-4
EXHIBIT F
IN WITNESS WHEREOF, the parties hereto have caused this Instrument to be executed
in four original count., . reo. -nd year first above written.
eAcivl
l a'j fifl��►.rt.c+•7 Tee' 6.
(SEAL) -_ TT a
CONTRACTOR
ATTEST:
J e
By`�i��G4 -`ii tc
Title: Owt.S Title: ,4emrc.rat of /11•fn9 .�`�'
ATTEST:
Approved this T r day offl_0 4fr1010.
By: (t) A (
OWNER (J
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 GA 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.
IN WITNESS IVHEREOF, I have hereunto set my hand and affixed my official seal this
-i day of cP ember , 2010.
My commission expires:
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March 2010 •°.............."" '..' AGREEMENT
POI WTP MEMBRANE SYSTEM SUPPLIER
C-6
EXHIBIT E
PROPOSAL
MEMBRANE SYSTEM SUPPLY, INSTALLATION AND STARTUP
PORT OF THE ISLANDS WATER TREATMENT PLANT
PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT
THIS BID IS SUBMITTED TO:
PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT
1. The undersigned BIDDER proposes and agrees, if this Bid is accepted, to enter into an
agreement with the Port of the Islands Community Improvement District, OWNER, in the
form included in the Contract Documents to perform and furnish all Work as specified or
indicated in the Contract Documents, for the Contract Price, and within the Contract
Time indicated in this Bid, and in accordance with the other terms and conditions of the
Contract Documents.
2. This Bid will remain subject to acceptance for 90 days after the day of Bid opening_
BIDDER will sign and submit the Agreement within fifteen (15) days after the date of
OWNER's Notice of Award.
.3_ In submitting this Bid, BIDDER represents, as more fully set forth in the Agreement that:
(a) BIDDER has examined copies of all the Bidding Documents and of the following
Addenda (receipt of all which is hereby acknowledged):
Date Addenda Number
/ / kr,' ://0
3 i= (-/
(b) BIDDER has familiarized itself with the nature, and extent of the Contract
Documents, Work, site, locality, and all local conditions and Laws and
Regulations that in any manner may affect cost, progress, performance or
furnishing of the Work.
(c) BIDDER has obtained and carefully studied (or assumes responsibility for
obtaining and carefully studying) all such examinations, investigations,
explorations, tests and studies (in addition to or to supplement those referred to
in (c) above) which pertain to the subsurface or physical conditions at the site or
otherwise may affect the cost, progress, performance or furnishing of the Work at
the Contract Price, within the Contract Time and in accordance with the other
terms and conditions of the Contract Documents, including specifically the •
provisions of the General Conditions; and no additional examinations,
investigations, explorations, tests, reports or similar information or data are, or
will be, required by BIDDER for such purposes.
•
November 2008 PROPOSAL
POI WTP MEMBRANE SYSTEM SUPPLIER
P-I
EXHIBIT E
(d) BIDDER has reviewed and checked all information and data shown or indicated
on the Contract Documents, with respect to existing Underground Facilities, at or
contiguous to the site and assumes responsibility for the accurate location of said
Underground Facilities. No additional examinations, investigations, explorations,
tests, reports or similar information or data in respect of said Underground
Facilities are, or will be, required by BIDDER in order to perform and furnish the
Work at the Contract Price, within the Contract Time, and in accordance with the
other terms and conditions of the Contract Documents.
(e) BIDDER has correlated the results of all such observations, examinations,
investigations, explorations, tests, reports and studies with the terms and
conditions of the Contract Documents.
(f) BIDDER has given ENGINEER written notice of all conflicts, errors or
discrepancies that it has discovered in the Contract Documents, and the written
resolution thereof by ENGINEER is acceptable to BIDDER.
(g) This Bid is genuine and not made in the interest of, or on behalf of, any
undisclosed person, firm or corporation, and is not submitted in conformity with
any agreement or rules of any group, association, organization or corporation;
BIDDER has not directly or indirectly induced or solicited any other Bidder to
submit a false or sham Bid; BIDDER has not solicited or induced any person, firm
or corporation to refrain from bidding; and BIDDER has not sought by collusion to
obtain for itself any advantage over any other Bidder or over OWNER.
4. BIDDER acknowledges and agrees that the quantity of work to be done as stated on the
Bid Schedule, which commences on the next page, are approximate only and not
. guaranteed. The OWNER does not assume any responsibility that the final quantities
shall remain in strict accordance with the estimated quantifies, nor shall the BIDDER, if
awarded the Contract, plead misunderstanding or deception because of such estimate of
quantities or if the character, location of the Work, or other conditions pertaining thereto.
BIDDER acknowledges and agrees that the City has the authority to modify, without
cause or justification, final quantities from any of the quantities, or any combination
thereof, stated on the Bid Form by plus or minus thirty (30%) without any change in the
BIDDER'S unit pricing.
•
February,2010 PROPOSAL
POI WTP MEMBRANE SYSTEM SUPPLIER
P-2
EXHIBIT E
BID SCHEDULE
MEMBRANE SYSTEM SUPPLY, INSTALLATION AND STARTUP
PORT OF THE ISLANDS WATER TREATMENT PLANT
PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT
Bidder proposes to furnish and install the following--in -accordance with the Contract
Documents and the enclosed technical proposal, which was specified in the Request for
Proposals.
NO. DESCRIPTION TOTAL PRICE
1 All work including insurance,
performance and payment t�C
bonds described in the $ G1 'Al r too
contract documents
2 Allowance for additional work
to be performed at
Owner's written direction $75,000.00
(Allowance may or may not be
utilized in part or in full)
TOTAL BID PRICE $ a
ADDITIVE BID ITEM
All work to add one additional
identical RO skid and
associated equipment and -
appurtenances including
startup and testing $ !r
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TOTAL BID PRICE WITH ADDITIVE BID ITEM $ 3 , I
Februay,2010 PROPOSAL
POI WTP MEMBRANE SYSTEM SUPPLIER
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EXHIBIT D
GENERAL TERMS AND CONDITIONS
PORT OF THE ISLANDS COMMUNITY IMPROVEMENT DISTRICT
MEMBRANE SYSTEM SUPPLY, INSTALLATION AND STARTUP
PORT OF THE ISLANDS WTP
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 the 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.
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
March, 2010 GENERAL TERMS AND CONDITIONS
POI WTP MEMBRANE SYSTEM SUPPLIER
GC-1
EXHIBIT D
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; 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 (Not Used)
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 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.
March,2010 GENERAL TERMS AND CONDITIONS
POI WTP MEMBRANE SYSTEM SUPPLIER
GC-2
EXHIBIT D
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.
3.4 The Progress Schedule shall be prepared in full and complete coordination with the
general contractor's schedule for the new water treatment plant at Port of the Islands.
Each update for the Contractor's schedule shall be coordinated with the general
contractor's schedule. The Contractor will be provided a copy of the general contractor's
pre-construction schedule and each schedule updates.
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 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
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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 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:
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(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 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
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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.
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 activities of Contractor at the
Project site including, but not limited to, the following:
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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 approved shop drawings shall be available to
the Engineer for reference. Upon completion of the Work and as a condition precedent
to Contractors 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
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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.
8.4 During periods when Contract Work is underway at the site, the Contractor shall
provide the designated project manager to attend bi-weekly project meetings at the site.
During all other periods in the execution of this Contract, the Contractor shall make
available the project manager to participate in the bi-weekly project meetings via
telephone conference.
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.
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
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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 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.
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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 courts in Collier County,
Florida, which courts have sole and exclusive jurisdiction on all such matters.
12. OTHER WORK.
12.1 Owner will 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.
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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.
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;
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(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;
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 Aggregate
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
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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 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.
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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 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.
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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 therefore 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.
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
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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.
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 therefore. 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
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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.
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,
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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 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,
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
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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.
26.3 The Contractor shall designate one project manager who shall be the primary point of
contact for all technical aspects and field construction of the Work.
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.
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.
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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
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
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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.
30.3 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.
30.4 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.
30.5 Contractor shall comply with the following:
30.5.1 All Owner facilities are smoke free. Smoking is strictly prohibited;
30.5.2 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;
30.5.3 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;
30.5.4 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;
30.5.5 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;
30.5.6 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;
30.5.7 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
30.5.8 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.
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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 Un iform 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.
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.
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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 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
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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 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.
35. BONDS
Contractor shall provide Performance and Payment Bonds, in a form acceptable to the
Owner, in the amount of 100% of the Contract Amount, the cost of which to be paid by
Contractor. The Performance and Payment Bonds shall be underwritten by a surety
authorized to do business in the State of Florida and otherwise acceptable to Owner;
provided, however, the surety shall be rated as "A-" or better as to general policy holders
rating and Class V or higher rating as to financial size category and the amount required
shall not exceed 5% of the reported policy holders surplus, all as reported in the most
current Best Key Rating Guide, published by A.M. Best Company, Inc. of 75 Fulton
Street, New York, New York 10038. Should the contract amount be less than $500,000,
the requirements of Section 287.0935, F.S. shall govern the rating and classification of
the surety.
END OF SECTION
March,2010 GENERAL TERMS AND CONDITIONS
POI WTP MEMBRANE SYSTEM SUPPLIER
GC-25
K,