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DRAFT AGREEMENT

For

BID # XX-ITB-25

Project Name

Awarded Contractor

TBD

SECTION 00500

AGREEMENT

THIS AGREEMENT made and entered as of the date of the final signature below and effective the date the notice to proceed is issued, by and between the City of Palm Bay, 120 Malabar Road, SE, Palm Bay, FL 32907 a Florida municipal corporation (CITY) and CONTRACTOR NAME (FEIN ) located at ADDRESS, (CONTRACTOR), (Parties);

WHEREAS, the CITY desires to retain the CONTRACTOR for the Project as expressed in its Bid No. XX-ITB-25: Project Name, and, WHEREAS, the CONTRACTOR has expressed its willingness, ability, capability, experience and time to perform the necessary Work to accomplish the Project at the cost proposed by the CONTRACTOR.

NOW, THEREFORE, the CITY and the CONTRACTOR, in consideration of the mutual covenants and conditions contained herein and for other good and valuable consideration, the receipt and sufficiency is hereby acknowledged, agree as follows:

ARTICLE 1 – DEFINITIONS

Wherever used in this Agreement or in other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural forms:

1.1 Agreement - This written agreement between the CITY and the CONTRACTOR covering the Work to be performed at the cost proposed, including other Contract Documents that are attached to or incorporated in the Agreement.

1.2 Application for Payment - The form accepted by the CITY which is to be used by the CONTRACTOR in requesting progress or final payment and which is to include such supporting documentation as is required by the Contract Documents.

1.3 Approve - The word approve is defined to mean review of the material, equipment or methods for general compliance with the design concepts and with the information given in the Contract Documents. It does not imply a responsibility on the part of the CITY to verify in every detail conformance with plans and specifications.

1.4 Bid - The offer or Bid of the CONTRACTOR submitted on the prescribed form setting forth the total prices for the Work to be performed.

1.5 Bid Documents - The Advertisement for Invitation to bids, the Instructions to Bidders, the Bid Form (with supplemental affidavits and agreements), the Contract Forms, these General Conditions, the Supplementary Conditions, the Specifications, and the Plans, which documents all become an integral part of the Contract Documents.

1.6 Certificate of Substantial Completion - Certificate provided by the CITY certifying that all Work, excluding the punch list items, has been completed, inspected, and accepted by the CITY.

1.7 Change Order - A written order to the CONTRACTOR, signed by the CITY and the CONTRACTOR authorizing an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Time issued on or after the Effective Date of the Agreement.

1.8 CITY - The City of Palm Bay, Florida, including but not limited to its employees, agents, officials, representatives, contractors, subcontractors, volunteers, successors, and assigns, with whom the CONTRACTOR has entered into the Agreement and for whom the Work is to be provided. The

Project Manager, or designee, shall be the authorized agent for the CITY unless otherwise specified.

1.9 Contract Documents – The Contract Documents shall consist of the Drawings, Plans and Specifications, Notice of Award, Bid documents, Notice to Proceed, Certificate(s) of Insurance, Construction Bonds and any additional documents that are required to be submitted under the Agreement, and all amendments, modifications and supplements, change orders and Request For Information (RFI) changes issued on or after the Effective Date of the Agreement; and as further determined in Article 4 of this Agreement.

1.10 Contract Price - The moneys payable by the CITY to the CONTRACTOR in the Agreement submitted by the CONTRACTOR to complete the Work and as stated in this Agreement.

1.11 Contract Time - The number of calendar days stated in the agreement for the completion of the Work. The dates on which the Work shall be started and shall be completed as stated in the Notice to Proceed.

1.12 CONTRACTOR - The person, firm or corporation with whom the CITY has entered into the Agreement, including but not limited to its employees, agents, representatives, contractors, subcontractors, their subcontractors and their other successors and assigns.

1.13 Cost of the Work - means the sum to be paid for the construction and completion of the Work in accordance with this Agreement. (See Contract Price)

1.14 Day - A calendar day of twenty-four (24) hours ending at midnight.

1.15 Defective - An adjective which when modifying the word “Work” refers to Work that is unsatisfactory, faulty, or deficient, or does not conform to the Contract Documents or does not meet the requirements of any inspection, test or approval referred to in the Contract Documents, or has been damaged prior to the Project Manager’s recommendation of final payment.

1.16 Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the Parties to sign and deliver.

1.17 Engineer of Record – A professional engineer who seals drawings, reports, or documents for the Work.

1.18 Final Completion Date – The date the Work is actually and finally completed, including completion of the final punch list, and delivered along with those items specified in the Agreement and the Work is inspected and accepted by the CITY.

1.19 Hazardous Materials - (HAZMAT): Any solid, liquid, or gaseous material that is toxic, flammable, radioactive, corrosive, chemically reactive, or unstable upon prolonged storage in quantities that could pose a threat to life, property, or the environment defined in Section 101(14) of Comprehensive Environmental Response, Compensation and Liability Act of 1980 and in 40 CFR 300.6). Also defined by 49 CFR 171.8 as a substance or material designated by the Secretary of Transportation to be capable of posing an unreasonable risk to health, safety, and property when transported in commerce and which has been so designated. See definition of hazardous substance.

1.20 Hazardous Substance - As defined by Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act; any substance designated pursuant to Section 311(b)

(2) (A) of the Clean Water Act; any element, compound, mixture, solution or substance designated pursuant to Section 102 identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act (but not including any waste listed under Section 307[a] of the Clean Water Act); any hazardous air pollutant listed under Section 112 of the Clean Air Act; and any imminently hazardous chemical substance or mixture pursuant to Section 7 of the Toxic Substances Control Act. The term does not include petroleum, including crude oil or any fraction thereof, which is not otherwise specifically listed or designated as a hazardous substance in the first sentence of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).

1.21 Hazardous Waste - Those solid wastes designated by OSHA in accordance with 40 CFR 261 due to the properties of ignitability, corrosivity, reactivity, or toxicity. Any material that is subject to the Hazardous Waste Manifest requirements of the EPA specified in 40 CFR Part 262.

1.22 Holidays - Those designated non-workdays as established by the City Council of the City of Palm Bay. Includes New Year’s Day, Martin Luther King Jr. Day, President’s Day, Memorial Day, Independence Day, Labor Day, Veteran’s Day, Thanksgiving Day, day after Thanksgiving Day, Christmas Day, or any other holidays as approved by City Council.

1.23 Inspection - The term “inspection” and the act of inspecting means the examination of construction of the Work by the Project Manager or the Project Manager’s designated representative to ensure that it conforms to the design concept and quality expressed in the plans and specifications. This term shall not be construed to mean supervision, superintending and/or overseeing.

1.24 Notice of Award - The written notice by CITY to the CONTRACTOR stating that upon compliance by the CONTRACTOR with the conditions precedent enumerated therein, within the time specified, that the CITY will sign and deliver this Agreement.

1.25 Notice to Proceed - A written notice given by the CITY to the CONTRACTOR fixing the date on which the Contract Time will commence to run and on which the Contract Time will end.

1.26 Plans - The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by the CITY and are referred to in the Contract Documents.

1.27 Pre-Construction Meeting – A meeting scheduled by the Project Manager following issuance of the Notice to Proceed. The purpose of the meeting is to discuss the project plans and specifications, any unusual conditions, federal or state requirements, permit requirements, training (if applicable), and any other items that will result in a better understanding among the involved parties. In addition, the CONTRACTOR will discuss the schedule of operation, type and adequacy of equipment, sources of labor and labor requirements, maintenance of traffic, and precautions for the safety of employees and the public. This meeting must be attended by the Project Manager, the CONTRACTOR, key subcontractors, the CITY inspector, and others as deemed necessary by the Project Manager.

1.28 Premises (otherwise known as Work Site) - means the lands, buildings, facilities, etc. upon which the Work is to be performed.

1.29 Project – The total construction of the Work to be provided as defined in the Contract Documents.

1.30 Project Manager – The employee of the City, or other designated individual who is herein referred to as the Project Manager, will assume all duties and responsibilities and will have the rights and authorities assigned to the Project Manager in the contract Documents in connection with completion of the Work in accordance with this Agreement.

1.31 Proposed Price – The amount proposed by the CONTRACTOR to complete all the Work, which amount induced the CITY to select the CONTRACTOR as the successful Bidder and to whom the Notice of Award will be delivered who be known and considered the successful Bidder.

1.32 Punch List – The CITY’s list of Work yet to be done or be corrected by the CONTRACTOR before the Final Completion date can be determined by the CITY.

1.33 Record Documents - A complete set of all specifications, drawings, addenda, modifications, shop drawings, submittals and samples annotated to show all changes made during the construction process.

1.34 Record Drawings or “As-Builts” - A set of drawings which show significant changes in the work made during construction and which are usually based on drawings marked up in the field and other data furnished by the contractor. These documents will be signed and sealed by the Engineer of Record or a Professional Land Surveyor licensed in the State of Florida.

1.35 Substantially Completed Date – A date that the CITY determines, after the CONTRACTOR has requested in writing, that the Work is ready for an inspection and issuance of a punch list for the Project.

1.36 Work - The entire, completed, delivered product or the various separately- identifiable parts thereof, required to be furnished under the Contract Documents. Work is the result of performing services, furnishing labor and furnishing and incorporating materials and equipment into the product, all as required by the Contract Documents.

ARTICLE 2 - SCOPE OF WORK

2.1 The CONTRACTOR shall furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment, and services of any kind or type necessary to diligently, timely, and fully perform and complete all Work as specified or indicated in the Contract Documents in a good and workmanlike manner. The Project for which the Work under the Contract Documents may be the whole or only part is generally described as follows:

BID # XX-ITB-26

Project Name

2.2 All Work for the Project shall be constructed in accordance with the Drawings and Specifications.

ARTICLE 3 – PROJECT MANAGER

3.1 The Project Manager is hereby designated by the CITY to be:

Project Manager Public Works Department

1050 Malabar Road Palm Bay, Florida 32907

ARTICLE 4 - CONTRACT DOCUMENTS

4.1 The Contract Documents, which comprise the entire Agreement between the CITY and

CONTRACTOR, are incorporated into this Agreement, are made a part hereof and consist of the following:

4.1.1 This Agreement.

4.1.2 Exhibits to this Agreement.

4.1.2.1 Exhibit A - Bid Form / Bid Table

4.1.2.2 Exhibit B - Bonds

4.1.3 Construction Bonds and Certificates of Insurance.

4.1.4 Notice of Award and Notice to Proceed.

4.1.5 General Conditions as amended by the Supplementary Conditions.

4.1.6 Technical Specifications.

4.1.7 Plans

4.1.8 All Addenda

4.1.9 Bid documents.

4.1.10 All applicable provisions of State and Federal Law and any modification, including Change Orders or written amendments duly delivered after execution of Agreement.

4.1.11 Schedule of Completion and Schedule of Values.

4.1.12 Permits on file with the CITY and or those permits to be obtained shall be considered directive in nature and will be considered a part of this Agreement. A copy of all permits shall be given to the CITY for inclusion in the Contract Documents. Terms of permits shall be met prior to acceptance of the Work and release of the final payment.

4.1.13 There are no Contract Documents other than those listed in this Article 4. The Contract Documents may only be altered, amended, or repealed in accordance with the provisions of the terms of this Agreement.

4.2 In the event of any conflict between the documents or any ambiguity or missing specification or instruction, the following priority is established:

Priority 1: Specific direction from the City Manager (or designee).

Priority 2: This Agreement and any attachments.

Priority 3: Invitation to bid and the specifications prepared by the CITY.

Priority 4: CONTRACTOR’S response to the CITY’s Invitation to bid.

Priority 5: Schedule of Completion.

4.3 If during the performance of the Work, CONTRACTOR finds conflict, error, or discrepancy in the Contract Documents, CONTRACTOR shall report it to the Project Manager, in writing, within forty-eight (48) hours of the discovery of the conflict, error, or discrepancy, using the Request for Information Form (Section 00825 of the Bid documents). Before proceeding with the Work affected by the conflict, error, or discrepancy, Contractor shall obtain a written interpretation or clarification from the CITY.

4.4 It is the intent of the specifications and plans to describe a complete Project to be constructed in accordance with the Contract Documents. Any Work that may be reasonably inferred from the specifications or plans as being required to produce the intended result shall be supplied whether or not it is specifically called for. When words that have a well-known technical or trade meaning are used to describe Work, materials, or equipment, such words shall be interpreted in accordance with such meaning. Reference to standard specifications, manuals, or codes of any technical society, organization, or associations, or to the code of any governmental authority, whether such reference be specific or implied, shall mean the latest standard specification, manual, or code in effect as of the Effective Date of this Agreement, except as may be otherwise specifically stated.

No provision, however, of any referenced standard specification, manual, or code (whether or not specifically incorporated by reference in the Contract Documents) shall change the duties and responsibilities of the CITY, the CONTRACTOR, or any of their agents, any subcontractors or employees from those set forth in the Contract Documents.

ARTICLE 5 – CONTRACT TIME

5.1 The CONTRACTOR recognizes that TIME IS OF THE ESSENCE. The Contract Time shall commence on the date set forth in a Notice to Proceed issued by the City to the Contractor. The Work shall be:

Substantially Completed within XXXXXXXXXX (XXX) calendar days after the date when the Contract Time commences to run as provided for in the Notice to Proceed, and

Finally completed on the Final Completion Date and ready for final payment in accordance with this Agreement within XXXXXXXXXX (XXX) calendar days after the date when the Contract Time commences to run as provided in the Notice to Proceed.

ARTICLE 6 - CONTRACT PRICE

6.1 CITY shall pay CONTRACTOR for performance of the Work in accordance with Article 7, subject to additions and deletions by Change Order as provided for in this Agreement, the sum, not to exceed ____________________________.

6.2 The parties expressly agree that the Contract Price is a lump sum price, in accordance with those items in the Bid, which are subject to unit prices.

6.3 The Contract Price constitutes the compensation payable to CONTRACTOR for performing the Work plus any Work done pursuant to a Change Order. All duties, responsibilities and obligations assigned to or undertaken by CONTRACTOR shall be at CONTRACTOR’S expense without change in the Contract Price.

ARTICLE 7 - PAYMENT PROCEDURES

7.1 CONTRACTOR shall submit Applications for Payment in accordance with the Contract Documents.

Applications for Payment will be processed by CITY as provided in the General Conditions (see Section 00700 of the Bid).

7.2 Progress Payments. CITY shall make progress payments on account of the Contract Price on the basis of CONTRACTOR’S monthly Applications for Payment (Section 00840 of the Bid), which shall be submitted by the CONTRACTOR between the first (1st) and the tenth (10th) day after the end of each calendar month for which payment is requested. All progress payments will be made on the basis of the progress of the Work completed and consistent with §218.735 Florida Statutes.

7.3 The CITY may withhold from each progress payment made to the CONTRACTOR an amount not exceeding five percent (5%) of the payment as retainage.

7.4 Prior to Final Completion, progress payments will be made in an amount not to exceed ninety-five percent (95%) of the value of Work completed, less in each case, the aggregate of payments previously made.

7.5 Final Payment. Upon achieving Final Completion of the Work in accordance with the Contract Documents, as they may be supplemented, the CITY shall pay CONTRACTOR an amount sufficient to increase total payments to one-hundred percent (100%) of the Contract Price as may be adjusted by liquidated damages and inspection fees owed by the CONTRACTOR, or other additional charges in accordance with the Contract Documents, unless the City has grounds, pursuant to §218.735(8)(c), Fla. Stat. for withholding all or a portion of the retainage payment;

provided, however, not less than five percent (5%) of the Contract Price shall be retained until

Record Drawings (as-builts), specifications, addenda, modifications and shop drawings, including all manufacturers’ instructional and parts manuals are delivered to and accepted by the CITY.

7.6 The CITY shall make payment to the CONTRACTOR in accordance with the Local Government Prompt Payment Act, Chapter 218, Florida Statutes, to the extent outlined above and incorporated by reference herein, in its entirety.

7.7 The Owner, as a holder of a current Florida Consumer’s Certificate Revenue, may elect to purchase materials and equipment for the Work directly from the supplier of such materials or equipment in order to achieve sales tax savings.

ARTICLE 8 - CONTRACTOR’S REPRESENTATIONS

In order to induce the CITY to enter into this Agreement, CONTRACTOR makes the following representations upon which the CITY has relied:

8.1 CONTRACTOR is qualified in the field of public construction and in particular to perform the Work and services set forth in this Agreement.

8.2 CONTRACTOR has visited the Work site, has conducted extensive tests, examinations and investigations and represents and warrants a thorough and complete familiarization with the nature and extent of the Contract Documents, the Work, locality, soil conditions, moisture conditions and all year-round local weather and climate conditions (past and present), and, in reliance on such tests, examination, and investigations conducted by CONTRACTOR and the CONTRACTOR’S experts, has determined that no conditions exist that would in any manner affect the Proposed Price and that the Project can be completed for the Proposed Price submitted. Furthermore, CONTRACTOR warrants and confirms that it is totally familiar with, understands, and obligates CONTRACTOR to comply with all federal, state and local laws, ordinances, rules, regulations and all market conditions that affect or may affect the cost and price of materials and labor needed to fulfill all provisions of this Agreement or that in any manner may affect cost, progress or performance of the Work.

8.3 CONTRACTOR has also studied carefully all reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Works, and finds and has further determined that no conditions exist that would in any manner affect the Proposed Price and that the Project can be completed for the Proposed Price submitted.

8.4 CONTRACTOR, on its own, has made or caused to be made examinations, investigations, tests and studies of reports and related data in addition to those referred to in Paragraphs 8.2 and 8.3, above, as CONTRACTOR deemed necessary to perform the Work at the Contract Price set by the CONTRACTOR, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents and the Bid made by the CONTRACTOR; and no additional examinations, investigations, tests, reports or similar data are, or will be, required by CONTRACTOR to assure that the Work can be done at the Contract Price set by the

CONTRACTOR.

8.5 CONTRACTOR has correlated the results of all such tests, investigations, reports, observations, examinations, investigations, tests, reports, and data conducted and compiled by the CONTRACTOR and the CONTRACTOR’S experts with the terms and conditions of the Contract Documents.

8.6 CONTRACTOR has given CITY written notice of all conflicts, errors, or discrepancies discovered in the Contract Documents and the written resolution of them by CITY is acceptable to the

CONTRACTOR.

8.7 Labor:

8.7.1 The CONTRACTOR shall provide competent, suitable, qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. The CONTRACTOR shall at all times maintain good discipline and order at the site.

8.7.2 The CONTRACTOR shall, at all times, have a competent superintendent, capable of reading and thoroughly understanding the drawings and specifications, as the CONTRACTOR’S agent on the Project, who shall, as the CONTRACTOR’S agent, supervise, direct and otherwise conduct the Work.

8.7.3 The CONTRACTOR shall designate its superintendent on the job to the CITY, in writing, immediately after receipt of the Notice to Proceed but no later than at the Pre-Construction Meeting. The CONTRACTOR understands and agrees that the superintendent’s physical presence on the job site is indispensable to the successful completion of the Work. If the superintendent is absent from the job site, the Project Manager may deliver written notice to the CONTRACTOR to stop Work or terminate the Contract in accordance with Article 17.

8.7.4 The CONTRACTOR shall assign personnel to the job site that have successfully completed training programs certified relative to trench safety, confined space and maintenance of traffic on all roadways and streets, public or private. A certified “competent person” shall be assigned to the job site daily and at all times. Personnel certified by the International Municipal Signal Association with Florida Department of Transportation qualifications are required to maintain traffic on all roadways and streets, public or private. Failure to pursue the Work with the properly certified supervisory staff may result in notice to stop Work or terminate the Contract in accordance with Article 17.

The CONTRACTOR will designate in writing all Certified personnel immediately after receipt of the Notice to Proceed, but no later than at the Pre-Construction Meeting.

8.7.5 The CONTRACTOR shall perform on the site, and with its own organization perform the equivalent to at least 50% of the total amount of the Work to be performed under this Contract. This percentage may be reduced by a Change Order if, during performance of the Work, the CONTRACTOR requests in writing a reduction and the Project Manager determines that the reduction would be to the advantage of the CITY.

8.8 Materials:

8.8.1 The CONTRACTOR shall furnish all materials, including but not limited to, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water and sanitary facilities, and all other facilities and incidentals necessary for the execution, testing, initial operation and completion of the Work.

8.8.2 All materials and equipment shall be new and of good quality, except as otherwise provided in the Contract Documents. Suppliers shall be selected and paid by the CONTRACTOR;

the CITY reserves the right to approve all suppliers and materials.

8.9 Work Hours:

8.9.1 Except in connection with the safety or protection of persons, or the Work, or property at the site or adjacent thereto, and except if otherwise indicated in the Supplementary Conditions section of the BID, all Work at the site shall be performed during regular working hours between 7:00 a.m. and 6:00 p.m., Monday through Friday. The CONTRACTOR will not permit overtime Work or the performance of Work on Saturday, Sunday or any legal holiday (designated by the City of Palm Bay) without the Project Manager’s written consent at least seventy-two (72) hours in advance of starting such Work.

8.9.2 If the Project Manager permits overtime Work, the CONTRACTOR shall pay for the additional charges to the CITY, as described herein, with respect to such overtime Work.

Such additional charges shall be an additional cost and obligation of the CONTRACTOR and no extra payment shall be made to the CONTRACTOR for overtime Work. The cost to the CONTRACTOR to reimburse the CITY for overtime inspection is established at direct-labor and overtime costs for each person or inspector required. Incidental overtime costs for engineering, testing and other related services will also be charged to the CONTRACTOR at the actual rate accrued.

8.10 Patent Fees and Royalties: The CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation into the Work, or any invention, design, process, product or device which is the subject of patent rights or copyrights held by others.

8.11 Permits: The CONTRACTOR shall obtain and pay for all permits and licenses. The CONTRACTOR shall pay all government charges which are applicable at the time of opening of Bids. It shall be the responsibility of the CONTRACTOR to secure and pay for all necessary licenses and permits of a permanent or temporary nature necessary for the prosecution and completion of the Work.

8.12 Laws and Regulations:

8.12.1 The CONTRACTOR shall give all notices and comply with the terms of this Agreement and all laws, ordinances, rules and regulations applicable to the Work. If the CONTRACTOR observes that the specifications or plans are at variance therewith, the CONTRACTOR shall give the Project Manager prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate modification by Change Order.

8.12.2 If the CONTRACTOR performs any Work knowing or having reason to know that it is contrary to this Agreement and such laws, ordinance, rules and regulations, and without such notice to the Project Manager, the CONTRACTOR shall bear all costs, fees and penalties arising therefrom; and, it shall also be one of the CONTRACTOR’S primary responsibilities to make certain that the specifications and plans are in accordance with such laws, ordinances, rules and regulations.

8.13 Taxes: The CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid by him in accordance with all laws.

8.14 CONTRACTOR Use of Premises:

8.14.1 The CONTRACTOR shall confine construction equipment, the storage of materials and equipment and the operations of workmen to areas permitted by law, ordinances, permits and/or the requirements of the Contract Documents, and shall not encumber the premises with construction equipment or other materials or equipment.

8.14.2 The CONTRACTOR shall not enter upon private or public property for any purpose without first securing the written permission of the property owner, furnishing the Project Manager with a copy of said permission. This requirement will be strictly enforced, particularly with regard to such properties as may be utilized for storage or staging by the CONTRACTOR.

8.14.3 The CONTRACTOR shall conduct all Work in such a manner as to avoid and prevent damage to adjacent private or public property. Any damage to existing structures or property of any kind, including permanent reference markers or property corner markers, or the interruption of a telephone, telecommunications or utility service, shall be immediately repaired or restored by the CONTRACTOR promptly, at CONTRACTOR’S expense and no expense to the CITY.

8.14.4 The CONTRACTOR will preserve and protect all existing vegetation such as trees, shrubs and grass on or adjacent to the site which do not interfere with the Work, as determined by the Project Manager. The CONTRACTOR will be responsible for repairing or replacing anything damaged by the CONTRACTOR including but not limited to any trees, shrubs, lawns, landscaping and structures that may be damaged due to operation of equipment, stockpiling of materials, tracking of grass by equipment or other Work activity. The CONTRACTOR will be liable for and will be required to replace or restore at no expense to the CITY all structures and vegetation not protected or preserved as required herein that may be destroyed or damaged.

8.14.5 During the progress of the Work, the CONTRACTOR shall keep the premises free from accumulations of waste materials, rubbish and debris resulting from the Work. Upon the completion of the Work, or more frequently if so directed by the Project Manager, the CONTRACTOR shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by the CITY. The CONTRACTOR shall restore to their original condition those portions of the site not designated for alteration by the Contract Documents at no cost to the CITY.

8.15 Project Coordination:

8.15.1 The CONTRACTOR shall provide for the complete coordination of the construction effort.

This shall include, but not be limited to, coordination of the following:

Flow of material and equipment from suppliers.

The interrelated Work with affected utility companies.

The interrelated Work with the CITY where tie-ins to existing facilities are required.

The effort of independent testing agencies.

Notice to affected property owners as may be directed by the Project Manager.

8.15.2 Included with its coordination obligations, Contractor shall locate all existing roadways, railways, drainage facilities and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities and utilities being referred to in this Section 2 as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for relocating or temporarily interrupting any Utilities during the construction of the Project.

Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting and protecting all Utilities at all times during the course of the Work.

8.16 Project Record Documents and As-Builts (Record Drawings): The CONTRACTOR shall keep one record copy of all specifications, plans, addenda, modifications, shop drawings and samples at the site, in good order and annotated to show all changes made during the construction process. These shall be available to the Project Manager for examination and shall be delivered to the Project Manager upon completion of the Work. Upon completion of the project and prior to final payment, an as-built (record drawings) of the Project shall be submitted to the Project Manager. The as-built drawings shall be signed and sealed by a Florida Registered Professional Surveyor and Mapper.

8.17 Safety and Protection:

8.17.1 The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. The CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to:

8.17.1.1 All employees working on the project and other persons who may be affected thereby.

8.17.1.2 All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site.

8.17.1.3 Other property at the site or adjacent thereto, including but not limited to trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction.

8.17.2 The CONTRACTOR shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. The CONTRACTOR shall notify owners of adjacent property and utilities when prosecution of the Work may affect them at least seventy-two (72) hours in advance of commencing said Work (unless otherwise required).

All damage, injury, or loss to any property caused, directly or indirectly, in whole or in part by the CONTRACTOR, any subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by the CONTRACTOR. The CONTRACTOR’S duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and accepted by the CITY.

8.17.3 The CONTRACTOR shall provide and maintain Work environments and procedures which will (1) safeguard the public and CITY personnel, property, materials, supplies, and equipment exposed to CONTRACTOR operations and activities; (2) avoid interruptions of CITY operations and delays in project completion dates; and (3) control costs in the performance of this Contract. The CONTRACTOR shall provide appropriate safety barricades, signs, and signal lights; comply with the standards established by the Secretary of Labor for OSHA; ensure that any additional measures the Project Manager determines to be necessary.

8.17.4 Whenever the Project Manager becomes aware of any noncompliance with the requirements of this Agreement or any conditions which pose a serious or imminent danger to the health or safety of the public or CITY personnel, the Project Manager shall notify the CONTRACTOR orally, with written confirmation, and request immediate corrective action.

This notice, when delivered to the CONTRACTOR or the CONTRACTOR’S representative at the Premises, shall be deemed sufficient notice of the noncompliance and the corrective action required. After receiving the notice, the CONTRACTOR shall immediately take corrective action. If the CONTRACTOR fails or refuses to take corrective action promptly, the Project Manager may issue an order stopping all or part of the Work until satisfactory corrective action has been taken. The CONTRACTOR shall not be entitled to any equitable adjustment of the contract price or time because of any stop Work order issued under this Section.

8.18 Emergencies: In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, the CONTRACTOR, without special instruction or authorization from the CITY is obligated to act to prevent threatened damage, injury or loss. The CONTRACTOR shall give the Project Manager prompt written notice of any significant changes in the Work or deviations from the Contract Documents caused thereby.

8.19 Risk of Loss: The risk of loss, injury or destruction shall be on the CONTRACTOR until acceptance of the Work by the CITY. Title to the Work shall pass to the CITY upon acceptance of the Work by the CITY.

8.20 Environmental:

8.20.1 The CONTRACTOR and CONTRACTOR’S experts have fully examined and inspected the Premises and agree to accept the Premises in an “as is” physical condition. The CITY makes no representation or warranty of any kind, including but not limited to, any environmental problems or issues, pollution or contamination on, in or about the Work site.

Further, CONTRACTOR and all entities claiming by, through or under the CONTRACTOR, releases and discharges the CITY from any claim, demand, or cause of action arising out of or relating to the CONTRACTOR’S use, handling, storage, release, discharge, treatment, removal, transport, decontamination, cleanup, disposal and/or presence of any hazardous substances including asbestos on, under, from or about the Premises.

8.20.2 The CONTRACTOR shall not use, handle, store, discharge, treat, remove, transport, or dispose of Hazardous Substances including but not limited to asbestos at, in, upon, under, to or from the Premises until receipt of instructions from the CITY. At such time, a CITY-approved Change Order, which shall not include any profit to the CONTRACTOR, shall authorize the CONTRACTOR to perform such services needed to resolve any such hazardous substance issues.

8.20.3 The CONTRACTOR shall immediately deliver to the Project Manager complete copies of all notices, demands, or other communications received by the CONTRACTOR from any governmental or quasi-governmental authority or any insurance company or board of fire underwriters or like or similar entities regarding, in any manner, alleged violations or potential violations of any Environmental Law or otherwise asserting the existence or potential existence of any condition or activity on the Premises which is or could be dangerous to life, limb, property, or the environment.

8.20.4 For other and additional consideration, the CONTRACTOR hereby agrees, at its sole cost and expense, to indemnify and protect, defend, and hold harmless, the CITY, including but not limited to its respective employees, agents, officials, officers, volunteers, representatives, contractors and subcontractors, successors, and assigns (hereafter the CITY) from and against any and all claims, demands, losses, damages, costs, expenses, including but not limited to mitigation, restoration, and natural restoration expenses, liabilities, assessments, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, causes of action, in law or in equity, remedial action requirements and/or enforcement actions of any kind, including, without limitation, attorneys' fees, expert fees and suit costs for trials and appeals directly or indirectly arising out of or attributable to, in whole or in part, the CONTRACTOR’S use, handling, storage, release, threatened release, discharge, treatment, removal, transport, decontamination, cleanup, disposal and/or presence of a Hazardous Substance on, under, from, to, or about the Premises or any of its employees, agents, invitees, contractors or subcontractors, or any other activity carried on or undertaken on or off the Premises by or on behalf of the CONTRACTOR in connection with the use, handling, storage, release, threatened release, discharge, treatment, mitigation, natural resource restoration, removal, transport, decontamination, cleanup, disposal and/or presence or any Hazardous Substance including asbestos located, transported, or present on, undue, from, to, or about the Premises. This indemnity is intended to be operable under all laws that apply to this Agreement.

8.20.5 The scope of the CONTRACTOR’S indemnity obligations includes, but is not limited to: (a) all consequential damages; (b) the cost of any required or necessary repair, cleanup, or detoxification of the applicable real estate and the preparation and implementation of any closure, remedial or other required plan, including without limitation; (i) the costs of removal or remedial action incurred by the United States government or the State of Florida or response costs incurred by any other person, or damages from injury to, destruction of, or loss of, natural resources, including the cost of assessing such injury, destruction, or loss, incurred; (ii) the clean-up costs, fines, damages, or penalties incurred pursuant to any applicable provisions of law; and (iii) the cost and expenses of abatement, correction or cleanup, fines, damages, response costs, or penalties which arise from the provisions of any other statute, law, regulation, code, ordinance, or legal requirement, state or federal;

and (c) liability for personal injury or property damage arising under any statutory or common law tort theory, including damages assessed for the maintenance of a public private nuisance, response costs, or for the carrying on of an abnormally dangerous activity.

8.21 No Damages for Delays: No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatsoever, including those for which City 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 City. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. CONTRACTOR’S sole remedy, if any, against City 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. In no event shall City be liable to Contractor whether in contract, warranty, tort (including negligence or strict liability) or otherwise for any extended corporate overhead impact, extended project overhead impacts, project support services, mobilization, demobilization, soft costs, lost profits, special, indirect, incidental, or consequential damages of any kind or nature whatsoever, related to or arising out of any interruption, interference, inefficiency, suspension, or delay in the commencement or progress of the Work.

8.22 Force Majeure and Extensions of Time: 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 God or of the public enemy, acts of government, fires, floods, epidemics, quarantine regulation, strikes, lockouts, or weather conditions that are abnormal for the period of time in which the Contractor is seeking an extension, which could not have been reasonably anticipated and had an adverse impact on the critical path of the scheduled Work, Contractor shall notify City 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.

Notwithstanding the foregoing, the CONTRACTOR’S schedule shall allow the number of days it deems necessary for rain and bad weather when the Contractor prepares its schedule. Contractor and City acknowledge that any Project site rain gauge measurements will not be relied upon for determining rain fall amounts.

8.22.1 Notwithstanding the foregoing, the City shall have the right, at any time, whether or not Contractor is behind schedule, to order Contractor to accelerate its Work. In the event that the City orders Contractor to accelerate its Work and Contractor (i) is not behind schedule and (ii) believes that acceleration will increase the cost of performance, Contractor shall be required to submit a Claim for an increase Contract Time and Price pursuant to the Contract Documents. Any such Claim shall be based exclusively and solely on actual and direct increased field costs associated with such acceleration only.

8.22.2 Inclement weather, continuous rain for less than three (3) consecutive days or the acts or omissions of subcontractors, third-party contractors, materialmen, suppliers or their subcontractors, shall not be considered acts of force majeure.

8.23 All of CONTRACTOR’S duties, obligations, and responsibilities set forth in the Contract Documents shall flow down and apply equally to all the CONTRACTOR’S subcontractors and suppliers in the same manner as the Contractor is bound to the City. CONTRACTOR shall be obligated to inform all subcontractors of all the provisions of this Agreement, provide them with a copy of this Agreement, obtain written proof thereof, and ensure that all subcontracts contain a similar flow down provision binding the subcontractor to the Contractor in the same way that the Contractor is bound to the City.

ARTICLE 9 – CITY’S RESPONSIBILITIES

9.1 The CITY shall furnish the data required of the CITY under the Contract Documents promptly and shall make payments to the CONTRACTOR after they are due as provided in Article 7.

9.2 The CITY’s duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in the Contract Documents.

9.3 Technical Clarifications and Interpretations:

9.3.1 The CITY shall issue such written clarifications or interpretations of the Contract Documents as it may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. Should the CONTRACTOR fail to request interpretation of questionable items in the Contract Documents, the CITY shall not entertain any excuse for failure to execute the Work in a satisfactory manner.

9.3.2 The CITY shall interpret and decide matters concerning performance under the requirements of the Contract Documents, and shall make decisions on all claims, disputes or other matters in question. Written notice of each claim, dispute or other matter will be delivered by claimant to the other Party but in no event later than five (5) days after the occurrence of the event and written supporting data will be submitted to the other Party within five (5) days after such occurrence. All written decisions of the CITY on any claim or dispute will be final and binding.

9.4 The CONTRACTOR shall perform all Work to the satisfaction of the CITY in accord with the Contract Documents and not to exceed the Contract Price. In cases of disagreement or ambiguity, the CITY shall decide all questions, difficulties, and disputes of whatever nature, which may arise under or by reason of this Agreement, or the quality, amount and value of the Work, and the CITY’s decisions on all claims, questions and determination are final.

ARTICLE 10 - BONDS AND INSURANCE

10.1 Bonds: The CONTRACTOR shall furnish certified copy of the recorded Construction Bonds meeting the approval of the CITY, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all the CONTRACTOR’S obligations under the Contract Documents. The CITY will not make a payment to the CONTRACTOR until the CONTRACTOR has complied with this requirement. These Bonds shall remain in effect one (1) year after the date of final payment, except as otherwise provided by law. All Bonds shall be furnished and provided by the surety and shall be in substantially the same form as prescribed by the Contract Documents and be executed by such sureties as (i) are licensed to conduct business in the State of Florida, and (ii) are named in the current list of Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies as published in Circular 570 (as amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department and (iii) otherwise meet the requirements of the CITY and as set forth herein that apply to sureties. All Bonds and other documents signed by an agent must be accompanied by a certified copy of the authority to act on behalf of the surety.

10.2 Maintenance Bond: (Or Not Applicable to this Solicitation.) A Surety Bond legally issued, meeting the approval of the CITY, with the CITY named as owner and the CONTRACTOR as principal in an amount not less than the Contract Price of such improvements, that contains the condition that the CONTRACTOR shall maintain and make all repairs to the improvements constructed by him, at his own expense and free of charge to the CITY, for the period of one (1) year after the date of acceptance of the Work by reason of any imperfection of the material used or by reason of any defective workmanship, or any improper, imperfect or defective preparation of the base upon which any such improvements shall be laid; provided that the Construction Bond and Payment Bond and…