8-GENERAL CONDITIONS.pdf

GENERAL CONDITIONS

Article 1 - Definitions

Article 2 - Preliminary Matters

Article 3 - Contract Documents: Intent and Reuse

Article 4 - Availability of Lands, Physical Conditions and Reference Points

Article 5 – Work by Others

Article 6 – Project Manager’s Status

Article 7 – Payment to the Contractor and Completion

Article 8 – Miscellaneous

ARTICLE 1 - DEFINITIONS

Wherever used in these General Conditions or in the other Contract documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof and are in addition to those Definitions as described in Section 00500:

Addenda - Written or graphic instruments issued by the City to prospective Bidders prior to the opening of Bids which clarify, correct or change the Bid documents. Addenda will be distributed, as defined in the Instructions to Bidders, (Section 00100).

Bonds - Bid, Public Construction, Performance, Payment Bonds and other instruments of security.

General Requirements – Division 1 of the Technical Specifications.

Modification - (a) A written amendment to the Contract Documents signed by both parties, and (b) a Change Order. A modification may only be issued after the effective date of the Agreement.

Notice of Intended Award –The Notice of Consideration for Award for Bid will be posted at least five (5) business days in advance of such award. Bidders are responsible to check the following locations for updates on this Bid’s status: on the bulletin board located in the main lobby of the City Hall building at 120 Malabar Road SE, Palm Bay, FL 32907; on the City’s Web Page located at http://www.palmbayfl.gov/procurement. Notice of Award, and Tabulation sheets are available Online.

Product - The term “Product” as used in these Contract Documents refers to material, systems and equipment to be provided by the Contractor.

Shop Drawings - All drawings, diagrams, illustrations, schedules and other data which are specifically prepared by Contractor, a subcontractor, manufacturer, fabricator, supplier or distributor to illustrate some portion of the work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a manufacturer, fabricator, supplier or distributor and submitted by the Contractor to illustrate material or equipment for some portion of the Work.

Subcontractor - An individual, firm or corporation having a direct contract with the Contractor or with any other subcontractor for the performance of a part of the Work.

ARTICLE 2 - PRELIMINARY MATTERS

Delivery of Bonds and Insurance Certificates:

2.1 When the Contractor delivers the executed agreements to the City, the Contractor shall also deliver to the City such Bonds as the Contractor may be required to furnish.

Before any work is started, the Contractor shall deliver to the City, certificates (and other evidence of insurance requested by the City) which the Contractor is required to purchase and maintain in accordance with Article 10.

Notice of Commencement:

2.2 The City intends to file a Notice of Commencement in accordance with Section 713.13 of the Florida Statutes. No work shall be done at the site before the Notice of Commencement has been filed.

Before Starting:

2.3 Before undertaking each part of the Work, the Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures. The Contractor shall promptly report in writing to the Engineer any conflict, error or discrepancy which the Contractor may discover. The Contractor shall not be liable, however, to the City for failure to report any conflict, error or discrepancy in the plans and specifications, unless the Contractor has actual knowledge thereof or should reasonably have known thereof.

Preconstruction Conference:

2.4 A conference will be held to:

a) Establish a working understanding between parties.

b) Establish procedures for handling shop drawings and other submittals.

c) Establish procedures for processing applications for payment.

d) Review the CONTRACTOR’S anticipated construction progress schedule which shall show on a monthly or weekly basis, the percent of the work to be completed and the dollar value of such work.

e) Establish the date for the start of construction.

f) Review safety issues.

Project Data and Samples:

2.5 The Contractor shall submit to the Engineer for review and approval, all samples required by Contract Documents. Samples shall be stamped with the approval of the Contractor and identified clearly as to material, manufacturer, pertinent catalog numbers and the use for which intended.

The Contractor shall make corrections required by the Engineer and resubmit new samples for review and approval. Where a sample is required by the specifications, no related work shall commence until the submittal has been reviewed and approved by the Engineer.

Certifications:

2.6 Whenever a standard of quality is established by a reference specification, the Contractor shall submit a certificate by the manufacturer that the material supplied meets the requirements of both the project and reference specification.

Layout Data:

2.7 The Contractor shall lay out the Work at the location and to the lines and grades shown on the plans. Survey notes indicating the information and measurements used in establishing locations and grades shall be kept in notebooks and furnished to the Engineer with the record drawings for the project.

ARTICLE 3 - CONTRACT DOCUMENTS: INTENT AND REUSE

3.1 The Contract Documents comprise the entire Agreement between the City and the Contractor concerning the Work. They may be altered only by a Modification or Change Order.

3.2 The Contract Documents are complementary; what is called for by one is as binding as if called for by all. If, during the performance of the work, the Contractor finds a conflict, error or discrepancy in the Contract Documents, he shall report it to the Engineer in writing at once and before proceeding with the Work affected thereby; however, the Contractor shall not be liable to the City for failure to report any conflict, error or discrepancy in the specifications or plans unless the Contractor had actual knowledge thereof or should reasonably have known thereof.

3.3 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 reasonably be 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 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 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 at the time of opening 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 change the duties and responsibilities of the City, the Contractor, or any of their agents or employees from those set forth in the Contract Documents. Clarifications and interpretations of the Contract Documents shall be issued by the Engineer as provided for in Paragraph 6.3.

3.4 The Contract Documents will be governed by the laws of the City of Palm Bay, the County of Brevard and the State of Florida.

ARTICLE 4 - AVAILABILITY OF LANDS, PHYSICAL CONDITIONS AND REFERENCE POINTS

4.1 The City shall furnish the lands upon which the Work is to be performed, rights-of-way for access thereto, and such other lands which are designated for the use of by the Contractor. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the City, unless otherwise provided in the Contract Documents. The Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. After completion of the Contract, these lands will be returned to a condition as good or better than their original condition at no additional cost to the City.

Unforeseen Physical Conditions:

4.2 The Contractor shall promptly notify the Engineer in writing of any subsurface or latent physical conditions at the site or in an existing structure differing materially from those indicated or referred to in the Contract Documents. In the event of any unforeseen subsurface or latent physical conditions at the site or other differing site condition, the Contractor should not alter such condition until verified by the Engineer. The Engineer will promptly review those conditions and if further investigation or tests are necessary, shall obtain the necessary additional investigations and tests and furnish copies to the Contractor. If the Engineer finds that the results of such investigations or tests indicate that there are subsurface or latent physical conditions which differ materially from those intended in the Contract Documents, and which could not reasonably have been anticipated by the Contractor, a Change Order may be issued incorporating the necessary revisions.

Reference Points:

4.3 The Engineer may provide engineering surveys for construction to establish reference points which in his judgment are necessary to enable the Contractor to proceed with the Work. The Contractor shall be responsible for laying out the work, shall protect and preserve the established reference points and shall make no change or relocations without the prior written approval of the Engineer.

The Contractor shall report to the Engineer whenever any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations and shall be responsible for replacement or relocation of such reference points by professionally qualified personnel. A copy of the survey, signed and sealed by a Florida Registered Professional Land Survey and Mapper, showing replacement or relocation will be given to the Engineer upon completion.

ARTICLE 5 - WORK BY OTHERS

5.1 The City may perform additional work related to the project by itself or let other direct contracts therefore which shall contain General Conditions similar to these. The Contractor shall afford the City and/or the other contractors who are parties to such direct contracts reasonable opportunity for the introduction and storage of materials and equipment and the execution of work, and shall properly connect and coordinate his work with theirs.

5.2 If any part of the CONTRACTOR’S work depends, for proper execution or results, upon the work of the City and/or any other contractor, the Contractor shall inspect and promptly report to the Engineer in writing any patent or apparent defects or deficiencies in such work that render it unsuitable for such proper execution and results of the work. The CONTRACTOR’S failure so to report shall constitute an acceptance of the other work as fit and proper for integration with the CONTRACTOR’S work except for latent or non-apparent defects and deficiencies in the other work.

ARTICLE 6 – PROJECT MANAGER’S STATUS

Clarification and Interpretations:

6.1 The Project Manager will issue with reasonable promptness such written clarifications or interpretations of the Contract Documents (in the form of plans or otherwise) as the Project Manager may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents.

Rejection of Defective Work:

6.2 The Project Manager will have the authority to disapprove or reject Work which is defective and will also have authority to require special inspection or testing of the Work.

Decisions on Disagreements:

6.3 The Project Manager will be the initial interpreter of the Contract Documents and judge of the acceptability of the work thereunder. Claims, disputes and other matters relating to the acceptability of the work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of the work shall be referred initially to the Project Manager in writing with a request for a formal decision in accordance with this paragraph, which the Project Manager will render in writing within a reasonable time. Written notice of such claim, dispute and other matter shall be delivered by the claimant to the Project Manager within fifteen (15) days of the occurrence of the event giving rise thereto and written supporting data will be submitted to the Project Manager within thirty (30) days of such occurrence unless the Project Manager allows an additional period of time to ascertain more accurate data. In his capacity as interpreter, the Project Manager will not show partiality to the City or the Contractor and will not be personally liable in connection with any interpretation or decision rendered in good faith in such capacity.

6.4 The rendering of a decision by the Project Manager pursuant to Paragraph 6.3 with respect to any such claim, dispute or other matter (except any which have been waived by the making or acceptance of final payment as provided in Paragraph 7.5) will be condition precedent to any exercise by the City or the Contractor of such rights or remedies as either may otherwise have under the Contract Documents or at law in respect of any such claim, dispute or other matter.

Limitations on Project Manager’s Responsibilities:

6.5 Neither the Project Manager’s authority to act under this Article 8 or elsewhere in the Contract Documents nor any decision made by the Project Manager in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of the Project Manager to the Contractor, any subcontractor, any manufacturer, fabricator, supplier or distributor, or any of their agents or employees or any other person performing any of the Work.

6.6 Whenever in the Contract Documents the terms “as ordered”, “as directed”, “as required”, “as allowed”, or terms of like effect or import are used, or the adjectives “reasonable”, “suitable”, “acceptable”, “proper”, or “satisfactory” or adjectives of like effect or import are used, to describe requirements, direction, review or judgment of the Project Manager as to the work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the work for compliance with Contract Documents (unless there is a specific statement indicating otherwise).

The use of any such term or adjective never indicates that the Project Manager shall have authority to supervise or direct performance of the work or authority to undertake responsibility contrary to the provisions of Paragraphs 6.3and 6.4.

6.7 The Project Manager will not be responsible for the CONTRACTOR’S means, methods, techniques, sequences of procedures of the work, or the safety precautions and programs incident thereto, and the Project Manager will not be responsible for the CONTRACTOR’S failure to perform the Work in accordance with the Contract Documents.

6.8 The Project Manager will not be responsible for the acts or omissions of the Contractor or of any subcontractors, or of the agents or employees of any the Contractor or subcontractor, or of any other persons at the site otherwise performing any of the Work.

ARTICLE 7 - PAYMENT TO THE CONTRACTOR AND COMPLETION

Review of Applications for Progress Payment:

7.1 The Project Manager will, within twenty (20) working days after receipt of each application for payment, either indicate in writing a recommendation of payment or return the application to the Contractor indicating in writing the Project Manager’s reasons for refusing to recommend payment.

In the latter case, the Contractor may make the necessary corrections and resubmit the application.

The City shall make payment to the Contractor in accordance with the Local Government Prompt Payment Act, Chapter 218, Florida Statutes.

The City may withhold or, on account of subsequently discovered evidence, nullify the whole or a part of any payment to such extent as may be necessary to protect the City from loss on account of:

a) Defective work not remedied.

b) Claims filed or reasonable evidence indicating probable filing of claims.

c) Failure of the Contractor to make payments properly to subcontractors or suppliers for material or labor.

d) A reasonable doubt that the Contract can be completed for the balance then unpaid.

e) Damage to another by the Contractor.

Final Inspection and Application for Payment:

7.2 Upon written notice from the Contractor that the Work is complete, the Project Manager will make a final inspection with the Contractor and will notify the Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. The Contractor shall immediately take such measures as are necessary to remedy such deficiencies.

7.3 The Contractor shall provide documents and such other data and schedules as the Project Manager may reasonably require, together with complete and legally effective releases or waivers (satisfactory to the City) of all liens arising out of or filed in connection with the Work. In lieu thereof and as approved by the City, the Contractor may furnish receipts or releases in full; an affidavit of the Contractor that the releases and equipment for which a lien could be filed, and that all payrolls, materials and equipment bills, and other indebtedness connected with the Work for which the City or its property might in any way be responsible, have been paid or otherwise satisfied; and consent of the Surety, if any, to final payment. If any subcontractor, manufacturer, fabricator, supplier or distributor fails to furnish a release or receipt in full, the Contractor may furnish a Bond or other collateral satisfactory to the City to indemnify the City against any lien.

Final Payment and Acceptance:

7.4 If, on the basis of the Project Manager’s final inspection and review of the final application for payment, the Project Manager is satisfied that the Work has been completed and the Contractor has fulfilled all of his obligations under the Contract documents, the Project Manager will, within twenty (20) working days after receipt of the final application, approve the application for payment.

Thereupon, the Project Manager will give written notice to the Contractor that the Work is acceptable. Otherwise, the Project Manager will return the application to the Contractor, indicating in writing the reasons for refusing to recommend final payments, in which case the Contractor shall make the necessary corrections and resubmit the application. If the application and accompanying documentation are appropriate as to form and substance, the City shall make payment to the Contractor in accordance with the Local Government Prompt Payment Act, Chapter 218, Florida Statutes.

7.5 If, through no fault of the Contractor, final completion of the Work is significantly delayed and if the Project Manager so confirms, the City shall, upon receipt of the CONTRACTOR’S final application for payment and recommendation of the Project Manager, and without terminating the agreement, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by the City for Work not fully completed or corrected is less than the retainage stipulated in the agreement, and if Bonds have been furnished as required, the written consent of the Surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Project Manager with the application for such payment. Such payment shall be made under the terms and conditions governing final payments, except that it shall not constitute a waiver of claims.

The CONTRACTOR’S Continuing Obligation:

7.6 The CONTRACTOR’S obligation to perform and complete the Work in accordance with the Contract documents shall be absolute. Neither recommendation of any progress or final payment by the Project Manager, nor the issuance of a Certificate of Substantial Completion, nor any payment by the City to the Contractor under the Contract documents, nor any use of the Work or any part thereof by the City, nor any act of acceptance by the City, nor any failure to do so, nor any correction of defective work by the City shall constitute an acceptance of Work not in accordance with the Contract Documents or a release of the CONTRACTOR’S obligation to perform the Work in accordance with the Contract Documents.

Waiver of Claims:

7.7 The making and acceptance of final payment shall constitute:

a) A waiver of all claims by the City against the Contractor, except claims arising from unsettled liens, from defective Work appearing after final inspection pursuant to Section 00500 Paragraph 11.6 or from failure to comply with the Contract documents of the terms of any special guarantees specified therein; however, it shall not constitute a waiver by the

b) City of any rights with respect to the CONTRACTOR’S continuing obligations under the Contract documents and

c) A waiver of all claims by the Contractor against the City other than those previously made in writing and still unsettled.

ARTICLE– 8 MISCELLANEOUS

Giving Notice:

8.1 Whenever any provisions of the Contract Documents require the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice.

Computation of Time:

8.2 When any period of time is referred to in the contact documents by days, it shall 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 a legal holiday, such a day shall be omitted from the computation.

General:

8.3 Should the City or the Contractor suffer injury or damage to his person or property because of any error, omission or act of the other party or of any of the other party’s employees or agents or others for whose acts the other party is legally liable, claim shall be made in writing to the other party within a reasonable time of the first observance of such injury or damage.

Executive Order 11246 As Amended by Executive Order 11375:

8.4 During the performance of this Contract, the Contractor agrees as follows:

a) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include but not be limited to the following employment, upgrading, or transfer, recruitment or recruitment advertising, layoff, or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.

b) The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Contracting Officer setting forth the provisions of this nondiscrimination clause.

c) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin.

d) The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other Contract or understanding, a notice, to be provided by the Contracting Officer, advising the labor union or workers’ representative of the CONTRACTOR’S commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

e) The Contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and the rules, regulations, and relevant orders of the Secretary of Labor.

f) The Contractor will furnish all information and reports required by Executive Order No.

11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books for purposes of investigation to ascertain compliance with such rules, regulations and orders.

g) In the event of the CONTRACTOR’S noncompliance with the nondiscrimination clauses of this Contract or with any of such rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further government Contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

h) The Contractor will include the provisions of Paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the Contracting Agency may direct as a means of enforcing such provisions including sanctions for noncompliance, provided however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Contracting Agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States.

Certification of Non-segregated Facilities:

8.5 The Contractor certifies that he does not maintain or provide for his employees any segregated facilities at any of his establishments, and that he does not permit his employees to perform their services at any location, under his control where segregated facilities are maintained. The Contractor certifies further that he will not maintain or provide for his employees any segregated facilities at any of his establishments, and that he will not permit his employees to perform their services at any location under his control where segregated facilities are maintained. The Contractor agrees that a breach of this certification will be a violation of the Equal Opportunity clause in any Contract resulting from acceptance of this Bid. As used in this Certificate, the term “segregated facilities” means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, time clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin, because of habit, local customer, or otherwise. The contractor agrees that (except where he has obtained identical certification from proposed subcontractors for specific time periods) he will obtain identical certifications from proposed subcontractors prior to the award of subcontractors exceeding $10,000 which are not exempt from the provisions of the Equal Opportunities clause, and that he will retain such certifications in his files.