8-11.0 - Standard Form Construction Agreement Tarpon Springs 2023.11.09.doc

CONSTRUCTION AGREEMENT

for

STIPULATED SUM

between

THE CITY OF TARPON SPRINGS (AS OWNER)

And

XXXXXXXXX (AS CONTRACTOR)

TABLE OF CONTENTS FOR GENERAL CONDITIONS

Page

Article I-- Definitions

GC-1

1.1 Definitions

GC-1

A. Acceptance

GC-1

B. Application for Payment

GC-1

C. Architect/Engineer

GC-1

D. Change Order

GC-1

E. Compensable Delay

GC-1

F. Contractor’s Personnel

GC-1

G. Construction Services

GC-1

H. Contract Sum

GC-1

I. Construction Team

GC-1

J. Contract Time

GC-1

K. Days

GC-1

L. Defective

GC-2

M. Excusable Delay

GC-2

N. Field Directive

GC-2

O. Final Completion Date

GC-2

P. Float or Slack Time

GC-2

Q. Force Majeure

GC-2

R. Inexcusable Delay

GC-2

S. Non-prejudicial Delay

GC-2

T. Notice to Proceed

GC-2

U. Owner

GC-2

V. Owner’s Project Representative

GC-2

W. Payment and Performance Bond

GC-3

X . Permitting Authority

GC-3

Y. Prejudicial Delay

GC-3

Z. Progress Report

GC-3

AA. Project

GC-3

BB. Project Costs

GC-3

CC. Project Manager

GC-3

DD . Project Plans and Specifications

GC-3

EE. Project Schedule

GC-3

FF. Project Site

GC-3

GG. Pre-operation Testing

GC-3

HH. Procurement Ordinance

GC-4

II. Punch List Completion Date

GC-4

JJ. Subcontractor

GC-4

KK. Substantial Completion and Substantially Complete

GC-4

LL. Substantial Completion Date

GC-4

MM. Unit Price Work

GC-4

NN. Work

GC-4

OO. Work Directive Change

GC-4

Article II-- Relationship and Responsibilities

GC-5

2.1 Relationship between Contractor and Owner

GC-5

A. Purpose

GC-5

B. Construction Team

GC-5

C. Response to Invitation for Bid

GC-5

2.2 General Contractor Responsibilities

GC-5

A. Personnel

GC-5

B. Cooperation with Architect/Engineer

GC-5

C. Timely Performance

GC-6

D. Duty to Defend Work

GC-6

E. Trade and Industry Terminology

GC-6

2.3 Project Schedule

GC-6

2.4 Construction Services

GC-7

A. Construction of Project

GC-7

B. Notice to Proceed

GC-7

C. Quality of Work

GC-7

D. Materials

GC-8

E. Accountability for Work

GC-8

F. Contract Sum

GC-8

G. Governing Specifications

GC-8

H. Adherence to Project Schedule

GC-8

I. Superintendent

GC-8

J. Work Hours

GC-9

K. Overtime-Related Costs

GC-9

L. Insurance, Overhead and Utilities

GC-9

M. Cleanliness

GC-9

N. Loading

GC-9

O. Safety and Protection

GC-9

P. Emergencies

GC-10

Q. Substitutes

GC-10

R. Survey and Stakes

GC-11

S. Suitability of Project Site

GC-11

T. Project Specification Errors

GC-12

U. Remediation of Contamination

GC-12

V. Interfacing

GC-13

W. Job Site Facilities

GC-13

X. Weather Protection

GC-13

Y. Performance and Payment Bond

GC-14

Z. Construction Phase; Building Permit; Code Inspection

GC-14

(1) Building Permit

GC-14

(2) Code Inspections

GC-14

(3) Contractor’s Personnel

GC-14

(4) Lines of Authority

GC-15

AA. Quality Control

GC-15

BB. Management of Subcontractors

GC-15

CC. Job Requirements

GC-16

DD. As-Built Drawings

GC-17

EE. Progress Reports

GC-17

FF. Contractor’s Warranty

GC-18

GG Apprentices

GC-18

HH Schedule of Values

GC-18

II. Other Contracts

GC-19

Article III-- Compensation

GC-19

3.1 Compensation

GC-19

A. Adjustments

GC-19

B. Valuation

GC-19

C. Unit Price Work

GC-19

3.2 Schedule of Compensation

GC-20

A. Periodic Payments for Services

GC-20

B. Payment for Materials and Equipment

GC-20

C. Credit toward Contract Sum

GC-20

3.3 Invoice and Payment

GC-20

A. Invoices

GC-20

B. Additional Information; Processing of Invoices

GC-20

C. Architect/Engineer’s Certificate

GC-21

D. Warrants of Contractor with Respect to Payments

GC-21

E. All Compensation Included

GC-21

Article IV-- Subcontractors

GC-21

4.1 Subcontracts

GC-21

A. Subcontracts Generally

GC-21

B. No Damages for Delay

GC-22

C. Subcontractual Relations

GC-22

D. Insurance; Acts & Omissions

GC-22

4.2 Relationship and Responsibilities

GC-22

4.3 Payments to Subcontractors; Monthly Statements

GC-23

A. Payment

GC-23

B. Final Payment of Subcontractors

GC-23

4.4 Responsibility for Subcontractors

GC-23

4.5 Contingent Assignment of Subcontractors

GC-23

Article V-- Changes in Work

GC-24

5.1 General

GC-24

5.2 Minor Changes in the Work

GC-24

5.3 Emergencies

GC-24

5.4 Concealed Conditions

GC-24

5.5 Hazardous Materials

GC-25

5.6 Change Orders; Adjustments to Contract Sum

GC-25

A. Change Orders Generally

GC-25

5.7 Unit Prices

GC-26

5.8 Owner-Initiated Changes

GC-26

5.9 Unauthorized Work

GC-26

5.10 Defective Work

GC-26

5.11 Estimates for Changes

GC-26

5.12 Form of Proposed Changes

GC-26

5.13 Changes to Contract Time

GC-26

Article VI-- Role of Architect/Engineer

GC-27

6.1 General

GC-27

A. Retaining

GC-27

B. Duties

GC-27

C. Termination

GC-27

6.2 Administration

GC-27

A. Site Visits

GC-27

B. Reporting

GC-28

6.3 Interpretation of Project Plans and Specifications

GC-28

6.4 Rejection of Non-Conforming Work

GC-28

6.5 Correction of Work

GC-28

6.6 Timely Performance of Architect/Engineer

GC-28

Article VII-- Owner’s Rights and Responsibilities

GC-29

7.1 Project Site; Title

GC-29

7.2 Project Plans and Specifications; Architect/Engineer

GC-29

7.3 Surveys; Soil Tests and Other Project Site Information

GC-29

7.4 Information; Communication; Coordination

GC-30

7.5 Governmental Body

GC-30

7.6 Pre-Completion Acceptance

GC-30

7.7 Ownership and Use of Drawings, Specifications and Other Instruments of Service

GC-30

7.8 Owner’s Project Representative

GC-31

A. Responsibilities

GC-31

B. Limitations

GC-31

Article VIII-- Resolution of Disagreements; Claims for Compensation

GC-32

8.1 Owner to Decide Disputes

GC-32

8.2 Finality

GC-32

8.3 No Damages for Delay

GC-32

8.4 Permitted Claims Procedure

GC-32

8.5 Contract Claims and Disputes

GC-33

8.6 Claims for Consequential Damages

GC-33

Article IX—Indemnity

GC-34

9.1 Indemnity

GC-34

A. Indemnification Generally

GC-34

B. Claims by Employees

GC-34

9.2 Duty to Defend

GC-34

Article X-- Accounting Records; Ownership of Documents

GC-35

10.1 Accounting Records

GC-35

10.2 Inspection and Audit

GC-35

10.3 Access

GC-35

10.4 Ownership of Documents

GC-35

Article XI-- Public Contract Laws

GC-35

11.1 Equal Opportunity Employment

GC-35

A. Employment

GC-35

B. Participation

GC-36

11.2 Immigration Reform and Control Act of 1986

GC-36

11.3 No Conflict of Interest

GC-36

A. No Interest in Business Activity

GC-36

B. No Appearance of Conflict

GC-36

11.4 Truth in Negotiations

GC-36

11.5 Public Entity Crimes

GC-37

Article XII-- Force Majeure, Fire or Other Casualty

GC-37

12.1 Force Majeure

GC-37

A. Unavoidable Delays

GC-37

B. Concurrent Contractor Delays

GC-37

C. Notice; Mitigation

GC-37

12.2 Casualty; Actions by Owner and Contractor

GC-37

12.3 Approval of Plans and Specifications

GC-38

12.4 Notice of Loss or Damage

GC-38

Article XIII-- Representations, Warranties and Covenants

GC-38

13.1 Representations and Warranties of Contractor

GC-38

13.2 Representations of the Owner

GC-41

Article XIV-- Termination and Suspension

GC-42

14.1 Termination for Cause by Owner

GC-42

A. Nonperformance

GC-43

B. Insolvency

GC-43

C. Illegality

GC-43

D. Rights of Owner

GC-43

14.2 Termination without Cause by Owner

GC-43

A. Release of Contractor

GC-43

B. Waiver of Protest

GC-44

14.3 Suspension without Cause

GC-44

14.4 Termination Based Upon Abandonment, Casualty or Force Majeure

GC-44

14.5 Vacation of Project Site; Delivery of Documents

GC-44

14.6 Termination by the Contractor

GC-44

CONSTRUCTION AGREEMENT

FOR STIPULATED SUM

ITB# XXXXXXX-B-JL

Description THIS AGREEMENT (“Agreement”) is made and entered into by and between the City of Tarpon Springs, a Florida municipal corporation, referred to herein as “Owner”, and the firm of _________________________, incorporated in the State of ______ and registered and licensed to do business in the State of Florida (license #________), referred to herein as “Contractor.”

WHEREAS, the Owner intends to construct ITB# XXXXXXX, Description, the aforementioned improvements being hereinafter referred to and defined as the “Project”; and

WHEREAS, in response to Owner’s Invitation for Bid No. XXXXXXX (the “IFB”), Contractor has submitted its Bid (the “Contractor’s Bid”) to provide the aforementioned construction services.

NOW THEREFORE, the Owner and the Contractor, in consideration of the mutual covenants hereinafter set forth, the sufficiency of which is hereby acknowledged, agree as follows:

1.

Contract Documents. The Contract Documents consist of:

· this Agreement and attached Exhibits,

· the General Conditions,

· the Supplementary Conditions (if any),

· the Special Conditions (if any),

· the Drawings (the titles of which are attached hereto as Exhibit A),

· the Specifications (the titles of which are attached hereto as Exhibit B),

· any Addenda issued prior to execution of this Agreement,

· the Invitation for Bid (including any Instructions to Bidders, Scope of Work, Bid Summary, Supplements, and Technical Specifications),

· any interpretations issued pursuant to the Invitation for Bid,

· the Contractor’s Bid,

· the permits,

· the notice of intent to award,

· the Notice to Proceed,

· the purchase order(s) (if any),

· any other documents listed in this Agreement, and

· Modifications [to include written Amendment(s), Change Order(s), Work Directive Change(s) and Field Directive(s)] issued after execution of this Agreement.

These form the Agreement, and are as fully a part of the Agreement as if attached or repeated herein. This Agreement represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. No other documents shall be considered Contract Documents. In the event of conflict between them, the document listed first shall control any later-listed document, except that the Specifications shall control over all other documents.

2.

Work. The Contractor shall fully execute the Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others.

3.

Date of Commencement and Substantial Completion.

A. Date of Commencement. The date of commencement of the Work shall be the date fixed in a Notice to Proceed issued by the Owner.

B.

Contract Time. The Contract Time shall be measured from the date of commencement.

C.

Substantial Completion. The Contractor shall achieve Substantial Completion of the entire Work not later than Eighteen (18) Months from the date of commencement, or as follows:

Portion of Work

Substantial Completion Date

[staff or consulting engineer to provide after taking into account timeline proposed in Bid] subject to adjustments of this Contract Time as provided in the Contract Documents.

Time is of the essence in the Contract Documents and all obligations thereunder. If the Contractor fails to achieve Substantial Completion of the Work within the Contract Time and as otherwise required by the Contract Documents, the Owner shall be entitled to retain or recover from the Contractor, as liquidated damages and not as a penalty, the sum of $611.00 per calendar day, commencing upon the first day following expiration of the Contract Time and continuing until the actual date of Substantial Completion. The Contractor agrees that such liquidated damages will not constitute a penalty, but were instead calculated to be a reasonable estimate of damages the Owner will incur as a result of delayed completion of the Work. The Owner may deduct liquidated damages as described in this paragraph from any unpaid amounts then or thereafter due the Contractor under this Agreement. Any liquidated damages not so deducted from any unpaid amounts due the Contractor shall be payable to the Owner at the demand of the Owner, together with interest from the date of the demand at the maximum allowable rate.

4.

Contract Sum.

A.

Payment. The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum shall be XXXXXXXXX Dollars and XXXX Cents ($XXXXXXXXXXXX), subject to additions and deductions as provided in the Contract Documents.

B.

Alternates. The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner. (State the numbers or other identification of accepted alternates. If decisions on other alternates are to be made by the Owner subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.)

C.

Unit Prices. Unit prices, if any, are reflected in the Contractor’s Bid.

5.

Payments.

A. Progress Payments.

(1) Based upon Applications for Payment submitted to the Architect/Engineer by the Contractor and Certificates for Payment issued by the Architect/Engineer, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents.

(2) The period covered by each Application for Payment shall be one calendar month ending on the last day of the month.

(3) Payments shall be made by Owner in accordance with the requirements of Florida Statutes § 218.735.

(4) Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect/Engineer may require. This schedule, unless objected to by the Owner or Architect/Engineer, shall be used as a basis for reviewing the Contractor’s Applications for Payment.

(5) Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment.

(6) Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows:

i. Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent (5.00%). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 3.3.B. of the General Conditions;

ii. Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), supported by paid receipts, less retainage of five percent (5.00%);

iii. Subtract the aggregate of previous payments made by the Owner; and

iv. Subtract amounts, if any, for which the Architect/Engineer has withheld or nullified an Application for Payment, in whole or in part as provided in Section 3.3.C. of the General Conditions.

(7) The progress payment amount determined in accordance with Section 5.A(6) shall be further modified under the following circumstances:

i. Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect/Engineer shall determine for incomplete Work, retainage applicable to such work and unsettled claims.

ii. Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Section 3.2.B. of the General Conditions.

(8) Reduction or limitation of retainage, if any, shall be as follows:

Notwithstanding the foregoing, upon completion of at least 50% of the Work, as determined by the Architect/Engineer and Owner, the Owner shall reduce to five percent (5%) the amount of retainage withheld from each subsequent progress payment.

(9) Except with the Owner’s prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.

B.

Final Payment. Final Payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when:

(1) The Contractor has fully performed the Work except for the Contractor’s responsibility to correct Work as provided in Section 2.4.C. of the General Conditions, and to satisfy other requirements, if any, which extend beyond final payment; and

(2) A final Application for Payment has been approved by the Architect/Engineer.

6.

Termination or Suspension.

A.

Termination. The Agreement may be terminated by the Owner or the Contractor as provided in Article XIV of the General Conditions.

B.

Suspension by Owner. The Work may be suspended by the Owner as provided in Article XIV of the General Conditions.

7.

Other Provisions.

A.

Substantial Completion Defined. Substantial Completion shall be defined as provided in Article I of the General Conditions. In the event a temporary certificate of occupancy or completion is issued establishing Substantial Completion, the Contractor shall diligently pursue the issuance of a permanent certificate of occupancy or completion.

B.

Project Meetings. There shall be a project meeting, at the jobsite or other location acceptable to the parties, on a regularly scheduled basis. The meeting will be attended by a representative of the Contractor, Architect/Engineer and Owner. These representatives shall be authorized to make decisions that are not otherwise contrary to the requirements of this Agreement.

C.

Weather. Any rainfall, temperatures below 32 degrees Fahrenheit or winds greater than 25 m.p.h. which actually prevents Work on a given day, shall be considered lost time and an additional day added to the Contract Time, provided no work could be done on site, and provided written notice has been submitted to the Owner by the Contractor documenting same.

D.

Shop Drawings; Critical Submittals. In consideration of the impact of timely review of submittals and shop drawings on the overall progress of the Work, it is hereby agreed that the Owner shall cause his agents and design professionals to accomplish the review of any particular “critical” submittals and/or shop drawings and return same to the Contractor within fourteen (14) days.

E.

Applications for Payment. Applications for Payment shall be submitted once monthly at regular intervals and shall include detailed documentation of all costs incurred.

F.

Punch List. Within 30 days after obtainment of Substantial Completion, the Owner shall generate a “punch list” of all work items requiring remedial attention by the Contractor. Within 5 days thereafter the Architect/Engineer shall assign a fair value to the punch list items, which sum shall be deducted from the next scheduled progress payment to the Contractor. Upon satisfactory completion of the punch list items, as certified by the Architect/Engineer, the previously deducted sum shall be paid to the Contractor.

G. Closeout documentation. Within 30 days after obtainment of Substantial Completion and before final payment, Contractor shall gather and deliver to Owner all warranty documentation, all manufacturer’s product and warranty literature, all manuals (including parts and technical manuals), all schematics and handbooks, and all as-built drawings.

H.

Governing Provisions; Conflicts. In the event of a conflict between this Agreement and the Specifications or as between the General Conditions and the Specifications, the Specifications shall govern.

I. Immigration Compliance; E-Verify. Contractor acknowledges that it is responsible for complying with the provisions of the Immigration Reform and Control Act of 1986, U.S.C. § 1324, et seq., and regulations relating thereto. Failure to comply with the above statutory provisions shall be considered a material breach and shall be grounds for immediate termination of this Agreement. The Contractor’s employment of unauthorized aliens is a violation of § 274(e) of the Federal Immigration and Employment Act. The Contractor shall utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired during the term of this Agreement, and shall require the same verification procedure of any Subcontractors authorized by the Owner. Pursuant to Florida Statutes § 448.095(2), beginning January 1st 2021, Contractor shall register with and use the E-Verify system to verify the work authorization status of all newly hired employees. Contractor’s contract with the Owner cannot be renewed unless, at the time of renewal, Contractor certifies in writing to the Owner that it has registered with and uses the E-Verify system. If Contractor enters into a contract with a subcontractor, the subcontractor must provide the contractor with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien and Contractor shall maintain a copy of such affidavit for the duration of the contract. If Contractor develops a good faith belief that any subcontractor with which it is contracting has knowingly violated Florida Statutes § 448.09(1) (making it unlawful for any person knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within the state, an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States) Contractor shall terminate the contract with the subcontractor. If the Owner develops a good faith belief that Contractor has knowingly violated Florida Statutes § 448.09(1) (making it unlawful for any person knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within the state, an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States) Owner shall terminate this contract. Pursuant to Florida Statutes § 448.095(2)(c)(3), termination under the above-circumstances is not a breach of contract and may not be considered as such.

J.

Owner Direct Purchases. As authorized by Florida Statutes § 212.08(6), Florida Administrative Code § 12A-1.094, and Florida Department of Revenue Tax Information Publication 13A01-01, the Owner reserves the right to require the Contractor to assign some or all of its subcontracts or other agreements with material suppliers directly to the City. This process will be referred to as Owner Direct Purchases (ODP) and is a method that may be utilized to create savings for the Owner. The Owner saves the amount of the sales tax when it purchases material/equipment required for a construction project directly from the manufacturer/supplier (material/equipment cost only), and simultaneously decreases the amount of the contract for the cost of the materials/equipment plus the sales tax. If the Owner elects to invoke this process, the contract cost reduction will be accomplished through the issuance of a deductive change order.

8.

Insurance and Bonding. If and to the extent required by the Invitation for Bid documents, the Contractor shall furnish insurance coverage for (but not necessarily limited to) workers’ compensation, commercial general liability, auto liability, excess liability, and builder’s risk. The Contractor shall furnish to the Owner all appropriate policies and Certificate(s) of Insurance. The Contractor shall also post a Payment and Performance Bond for the Contract Sum, within ten (10) days following notification of intent to award, and otherwise in accordance with the Invitation for Bid documents.

9.

Independent Contractor. The Contractor acknowledges that it is functioning as an independent contractor in performing under the terms of this Agreement, and it is not acting as an employee of the Owner.

10.

Entire Agreement. This Agreement (inclusive of the Contract Documents incorporated herein by reference) represents the full agreement of the parties.

11.

Amendments; Waivers; Assignment.

A.

Amendments.

This Agreement may be amended only pursuant to an instrument in writing that has been jointly executed by authorized representatives of the parties hereto.

B.

Waivers. Neither this Agreement nor any portion of it may be modified or waived orally. However, each party (through its governing body or properly authorized officer) shall have the right, but not the obligation, to waive, on a case-by-case basis, any right or condition herein reserved or intended for the benefit or protection of such party without being deemed or considered to have waived such right or condition for any other case, situation, or circumstance and without being deemed or considered to have waived any other right or condition. No such waiver shall be effective unless made in writing with an express and specific statement of the intent of such governing body or officer to provide such waiver.

C.

Assignment. The rights and obligations of either party to this Agreement may be assigned to a third party only pursuant to a written amendment hereto.

12.

Validity. Each of the Owner and Contractor represents and warrants to the other its respective authority to enter into this Agreement.

13.

Covenant To Defend. Neither the validity of this Agreement nor the validity of any portion hereof may be challenged by any party hereto, and each party hereto hereby waives any right to initiate any such challenge. Furthermore, if this Agreement or any portion hereof is challenged by a third party in any judicial, administrative, or appellate proceeding (each party hereby covenanting with the other party not to initiate, encourage, foster, promote, cooperate with, or acquiesce to such challenge), the parties hereto collectively and individually agree, at their individual sole cost and expense, to defend in good faith its validity through a final judicial determination or other resolution, unless all parties mutually agree in writing not to defend such challenge or not to appeal any decision invalidating this Agreement or any portion thereof.

14.

Disclaimer of Third-Party Beneficiaries; Successors and Assigns. This Agreement is solely for the benefit of the parties hereto, and no right, privilege, or cause of action shall by reason hereof accrue upon, to, or for the benefit of any third party. Nothing in this Agreement is intended or shall be construed to confer upon or give any person, corporation, partnership, trust, private entity, agency, or other governmental entity any right, privilege, remedy, or claim under or by reason of this Agreement or any provisions or conditions hereof. This Agreement shall be binding upon, and its benefits and advantages shall inure to, the successors and assigns of the parties hereto.

15.

Construction.

A.

Headings and Captions. The headings and captions of articles, sections, and paragraphs used in this Agreement are for convenience of reference only and are not intended to define or limit their contents, nor are they to affect the construction of or be taken into consideration in interpreting this Agreement.

B.

Legal References. All references to statutory sections or chapters shall be construed to include subsequent amendments to such provisions, and to refer to the successor provision of any such provision. References to “applicable law” and “general law” shall be construed to include provisions of local, state and federal law, whether established by legislative action, administrative rule or regulation, or judicial decision.

16.

Severability. The provisions of this Agreement are declared by the parties hereto to be severable. In the event any term or provision of this Agreement shall be held invalid by a court of competent jurisdiction, such invalid term or provision should not affect the validity of any other term or provision hereof; and all such terms and provisions hereof shall be enforceable to the fullest extent permitted by law as if such invalid term or provision had never been part of this Agreement; provided, however, if any term or provision of this Agreement is held to be invalid due to the scope or extent thereof, then, to the extent permitted by law, such term or provision shall be automatically deemed modified in order that it may be enforced to the maximum scope and extent permitted by law.

17.

Governing Law; Venue. This Agreement shall be governed by the laws of the State of Florida. Venue for any petition for writ of certiorari or other court action allowed by this Agreement shall be in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida.

18.

Attorney’s Fees and Costs. In any claim dispute procedure or litigation arising from this Agreement, including any appellate proceedings, each party hereto shall be solely responsible for paying its attorney’s fees and costs without regard to the outcome of such procedure or litigation.

19.

Notices. All notices, comments, consents, objections, approvals, waivers, and elections under this Agreement shall be in writing and shall be given only by hand delivery for which a receipt is obtained, or certified mail, prepaid with confirmation of delivery requested, or by electronic mail with delivery confirmation. All such communications shall be addressed to the applicable addressees set forth below or as any party may otherwise designate in the manner prescribed herein.

To the Owner:

Janina Lewis, Procurement Services Director

City of Tarpon Springs

342 E. Pine Street

Tarpon Springs, FL 34689 jlewis@ctsfl.us

To the Contractor:

XXXXXXXx Notices, comments, consents, objections, approvals, waivers, and elections shall be deemed given when received by the party for whom such communication is intended at such party’s address herein specified, or such other physical address or email address as such party may have substituted by notice to the other.

20. Exhibits. Exhibits to this Agreement are as follows:

Exhibit A—Drawings

Exhibit B—Specifications

Exhibit C—Affidavit of No Conflict

Exhibit D—Certificate(s) of Insurance

Exhibit E—Payment and Performance Bond

Exhibit F—Standard Forms

1—Application for Payment 2—Certificate of Substantial Completion 3—Final Reconciliation / Warranty / Affidavit

4—Change Order

WHEREFORE, the parties hereto have executed this Agreement as of the date last executed below.

Name of Contractor

By: __________________________

Printed Name: _________________

Title: _________________________

Date: _________________________

CITY OF TARPON SPRINGS

By: __________________________

Printed Name: ______________ ____ Title: Mayor Date: _________________________ Attest: _______________________

City Clerk

City Attorney: __________________

GENERAL CONDITIONS

of the

CONSTRUCTION AGREEMENT

GENERAL CONDITIONS

ARTICLE I

DEFINITIONS

1.1 Definitions. For purposes of the Contract Documents, the following terms shall have the following meanings.

A. Acceptance: The acceptance of the Project into the Owner’s operating public infrastructure.

B. Application for Payment: The form approved and accepted by the Owner, which is to be used by Contractor in requesting progress payments or final payment and which is to include such supporting documentation as is required by the Contract Documents.

C. Architect/Engineer: XXXXXXX, Inc, a Florida corporation, registered and licensed to do business in the State of Florida.

D. Change Order: A written order signed by the Owner, the Architect/Engineer and the Contractor authorizing a change in the Project Plans and/or Specifications and, if necessary, a corresponding adjustment in the Contract Sum and/or Contract Time, pursuant to Article V.

E. Compensable Delay: Any delay beyond the control and without the fault or negligence of the Contractor resulting from Owner-caused changes in the Work, differing site conditions, suspensions of the Work, or termination for convenience by Owner.

F. Contractor’s Personnel: The Contractor’s key personnel designated by Contractor.

G. Construction Services: The Construction Services to be provided by Contractor pursuant to Section 2.4, in accordance with the terms and provisions of the Contract Documents.

H. Contract Sum: The total compensation to be paid to the Contractor for Construction Services rendered pursuant to the Contract Documents, as set forth in Contractor’s Bid, unless adjusted in accordance with the terms of the Contract Documents.

I. Construction Team: The working team established pursuant to Section 2.1.B.

J. Contract Time: The time period during which all Construction Services are to be completed pursuant to the Contract Documents, to be set forth in the Project Schedule.

K. Days:

Calendar days except when specified differently. When time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or legal holiday, such day will be omitted from the computation.

L. Defective:

When modifying the term “Work”, referring to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or that does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or that has been damaged prior to Owner’s approval of final payment (unless responsibility for the protection thereof has been assumed by Owner).

M. Excusable Delay:

Any delay beyond the control and without the negligence of the Contractor, the Owner, or any other contractor caused by events or circumstances such as, but not limited to, acts of God or of a public enemy, fires, floods, freight embargoes, acts of government other than Owner or epidemics. Labor disputes and above average rainfall shall give rise only to excusable delays.

N. Field Directive:

A written order issued by Owner which orders minor changes in the Work not involving a change in Contract Time, to be paid from the Owner’s contingency funds.

O. Final Completion Date: The date upon which the Project is fully constructed and all Work required on the Project and Project Site is fully performed as verified in writing by the Owner.

P. Float or Slack Time:

The time available in the Project Schedule during which an unexpected activity can be completed without delaying substantial completion of the Work.

Q. Force Majeure: Those conditions constituting excuse from performance as described in and subject to the conditions described in Article XII.

R. Inexcusable Delay:

Any delay caused by events or circumstances within the control of the Contractor, such as inadequate crewing, slow submittals, etc., which might have been avoided by the exercise of care, prudence, foresight or diligence on the part of the Contractor.

S. Non-prejudicial Delay: Any delay impacting a portion of the Work within the available total Float or Slack Time and not necessarily preventing Substantial Completion of the Work within the Contract Time.

T. Notice to Proceed:

Written notice by Owner (after execution of Contract) to Contractor fixing the date on which the Contract Time will commence to run and on which Contractor shall start to perform the Work.

U. Owner: City of Tarpon Springs, a Florida municipal corporation.

V. Owner’s Project Representative: The individual designated by Owner to perform those functions set forth in Section 7.8.

W. Payment and Performance Bond: The Payment and Performance Bond security posted pursuant to Section 2.4.Y to guarantee payment and performance by the Contractor of its obligations hereunder.

X. Permitting Authority: Any applicable governmental authority acting in its governmental and regulatory capacity which is required to issue or grant any permit, certificate, license or other approval which is required as a condition precedent to the commencement or approved of the Work, or any part thereof, including the building permit.

Y. Prejudicial Delay:

Any excusable or compensable delay impacting the Work and exceeding the total float available in the Project Schedule, thus preventing completion of the Work within the Contract Time unless the Work is accelerated.

Z. Progress Report:

A report to Owner that includes all information required pursuant to the Contract Documents and submitted in accordance with Section 2.4.EE, hereof.

AA. Project: The total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by Owner and by separate contractors. For the purposes of the Contract Documents, the term Project shall include all areas of proposed improvements and all areas which may reasonably be judged to have an impact on the Project.

AB. Project Costs: The costs incurred by the Contractor to plan, construct and equip the Project and included within, and paid as a component of, the Contract Sum.

AC. Project Manager: Subject to the prior written consent of Owner, the individual designated to receive notices on behalf of the Contractor, or such other individual designated by the Contractor, from time to time, pursuant to written notice in accordance with the Contract Documents.

AD. Project Plans and Specifications: The one hundred percent (100%) construction drawings and specifications prepared by the Architect/Engineer, and any changes, supplements, amendments or additions thereto approved by the Owner, which shall also include any construction drawings and final specifications required for the repair or construction of the Project, as provided herein.

AE. Project Schedule: The schedule and sequence of events for the commencement, progression and completion of the Project, developed pursuant to Section 2.3., as such schedule may be amended as provided herein.

AF. Project Site: The site depicted in the Project Plans and Specifications, inclusive of all rights of way, temporary construction easements or licensed or leased sovereign lands.

AG. Pre-operation Testing: All field inspections, installation checks, water tests, performance tests and necessary corrections required of Contractor to demonstrate that individual components of the Work have been properly constructed and do operate in accordance with the Contract Documents for their intended purposes.

AH. Procurement Ordinance: The Tarpon Springs Procurement Code, Article XII, Chapter 2, of the Tarpon Springs Code, as amended from time to time, and any implementing regulations associated therewith.

AI. Punch List Completion Date: The date upon which all previously incomplete or unsatisfactory items, as identified by the Contractor, the Architect/Engineer and/or the Owner are completed in a competent and workmanlike manner, consistent with standards for Work of this type and with good building practices in the State of Florida.

AJ. Subcontractor: Any individual (other than a direct employee of the Contractor) or organization retained by Contractor to plan, construct or equip the Project pursuant to Article IV.

AK. Substantial Completion and Substantially Complete: The stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use; provided, however, that as a condition precedent to Substantial Completion, the Owner has received all certificates of occupancy or completion and other permits, approvals, licenses, and other documents from any governmental authority which are necessary for the beneficial occupancy of the Project.

AL. Substantial Completion Date: The date on which the Project is deemed to be Substantially Complete, as evidenced by receipt of (i) the Architect/Engineer’s certificate of Substantial Completion, (ii) written Acceptance of the Project by the Owner, and (iii) approvals of any other authority as may be necessary or otherwise required.

AM. Unit Price Work: Work to be paid for on the basis of unit prices.

AN. Work: The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the Project.

AO. Work Directive Change: A written directive to Contractor, issued on or after the effective date of the Agreement pursuant to Section 5.8 and signed by Owner’s Project Representative, ordering an addition, deletion or revision in the Work, or responding to differing or unforeseen physical conditions under which the Work is to be performed or responding to emergencies.

ARTICLE II

RELATIONSHIP AND RESPONSIBILITIES

2.1 Relationship between Contractor and Owner. The Contractor accepts the relationship of trust and confidence established with Owner pursuant to the Contract Documents. The Contractor shall furnish its best skill and judgment and cooperate with Owner and Owner’s Project Representative in furthering the interests of the Owner. The Contractor agrees to provide the professional services required to complete the Project consistent with the Owner’s direction and the terms of the Contract Documents. All services provided hereunder by Contractor, either directly or through Subcontractors, shall be provided in accordance with sound construction practices and applicable professional construction standards.

A.

Purpose. The purpose of the Contract Documents is to provide for the provision of construction services for the Project on the Project Site by the Contractor, and construction of the Project by the Contractor in accordance with the Project Plans and Specifications. The further purpose of the Contract Documents is to define and delineate the responsibilities and obligations of the parties to the Contract Documents and to express the desire of all such parties to cooperate together to accomplish the purposes and expectations of the Contract Documents.

B. Construction Team. The Contractor, Owner and Architect/Engineer shall be called the “Construction Team” and shall work together as a team commencing upon full execution of the Contract Documents through Substantial Completion. As provided in Section 2.2, the Contractor and Architect/Engineer shall work jointly through completion and shall be available thereafter should additional services be required. The Contractor shall provide leadership to the Construction Team on all matters relating to construction. The Contractor understands, acknowledges and agrees that the Architect/Engineer shall provide leadership to the Construction Team on all matters relating to design.

C. Response to Invitation for Bid. The Contractor acknowledges that the representations, statements, information and pricing contained in its Bid have been relied upon by the Owner and have resulted in the award of this Project to the Contractor.

2.2 General Contractor Responsibilities. In addition to the other responsibilities set forth herein, the Contractor shall have the following responsibilities pursuant to the Contract Documents:

A. Personnel. The Contractor represents that it has secured, or shall secure, all personnel necessary to perform the Work, none of whom shall be employees of the Owner. Primary liaison between the Contractor and the Owner shall be through the Owner’s Project Representative and Contractor’s Project Manager. All of the services required herein shall be performed by the Contractor or under the Contractor’s supervision, and all personnel engaged in the Work shall be fully qualified and shall be authorized or permitted under law to perform such services.

B. Cooperation with Architect/Engineer. The Contractor’s services shall be provided in conjunction with the services of the Architect/Engineer. In the performance of professional services, the Contractor acknowledges that time is critical for Project delivery. The Contractor acknowledges that timely construction utilizing the services of an Architect/Engineer and a Contractor requires maximum cooperation between all parties.

C.

Timely Performance. The Contractor shall perform all services as expeditiously as is consistent with professional skill and care and the orderly progress of the Work, in accordance with the Project Schedule. Verification of estimated Project Schedule goals will be made as requested by the Owner.

D. Duty to Defend Work. In the event of any dispute between the Owner and any Permitting Authority that relates to the quality, completeness or professional workmanship of the Contractor’s services or Work, the Contractor shall, at its sole cost and expense, cooperate with the Owner to defend the quality and workmanship of the Contractor’s services and Work.

E. Trade and Industry Terminology. It is the intent of the Contract Documents to describe a functionally complete Project (or part 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 will 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, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of opening of Bids, except as may be otherwise specifically stated. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of Owner or Contractor, or any of their agents or employees from those set forth in the Contract Documents. Computed dimensions shall govern over scaled dimensions.

2.3 Project Schedule. The Contractor, within ten (10) days after being awarded the Contract, shall prepare and submit for the Owner’s and Architect/Engineer’s information a Contractor’s construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of Work.

A. The Project Schedule shall show a breakdown of all tasks to be performed, and their relationship in achieving the completion of each phase of Work, subject to review of Owner and Architect/Engineer and approval or rejection by Owner. The Project Schedule shall show, at a minimum, the approximate dates on which each segment of the Work is expected to be started and finished, the proposed traffic flows during each month, the anticipated earnings by the Contractor for each month and the approximate number of crews and equipment to be used. The Project Schedule shall include all phases of procurement, approval of shop drawings, proposed Change Orders in progress, schedules for Change Orders, and performance testing requirements. The Project Schedule shall include a construction commencement date and Project Substantial Completion Date, which dates shall accommodate known or reasonably anticipated geographic, atmospheric and weather conditions.

B. The Project Schedule shall serve as the framework for the subsequent development of all detailed schedules. The Project Schedule shall be used to verify Contractor performance and to allow the Owner’s Project Representative to monitor the Contractor’s efforts.

C. The Project Schedule may be adjusted by the Contractor pursuant to Article V. The Owner shall have the right to reschedule Work provided such rescheduling is in accord with the remainder of terms of the Contract Documents.

D.

The Contractor shall prepare a submittal schedule, promptly after being awarded the Contract and thereafter as necessary to maintain a current submittal schedule, and shall submit the schedule(s) for the Architect/Engineer’s approval. The Architect/Engineer’s approval shall not be unreasonably delayed or withheld. The submittal schedule shall (1) be coordinated with the Contractor’s construction schedule, and (2) allow the Architect/Engineer reasonable time to review submittals. If the Contractor fails to submit a submittal schedule, the Contractor shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of submittals.

E.

The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect/Engineer.

2.4 Construction Services. The Contractor shall provide the following Construction Services:

A. Construction of Project. The Contractor shall work from the receipt of a Notice to Proceed through the Substantial Completion of the Project in accordance with the terms of the Contract Documents to manage the construction of the Project. The Construction Services provided by the Contractor to construct the Project shall include without limitation (1) all services necessary and commensurate with established construction standards, and (2) all services described in the Invitation for Bid and the Bid.

B. Notice to Proceed. A Notice to Proceed may be given at any time within thirty (30) days after the effective date of the Agreement. Contractor shall start to perform the Work on the date specified in the Notice to Proceed, but no Work shall be done at the site prior to the issuance of the Notice to Proceed.

C. Quality of Work. If at any time the labor used or to be used appears to the Owner as insufficient or improper for securing the quality of Work required or the required rate of progress, the Owner may order the Contractor to increase its efficiency or to improve the character of its Work, and the Contractor shall conform to such an order. Any such order shall not entitle Contractor to any additional compensation or any increase in Contract Time. The failure of the Owner to demand any increase of such efficiency or any improvement shall not release the Contractor from its obligation to secure the quality of Work or the rate of progress necessary to complete the Work within the limits imposed by the Contract Documents.