AGREEMENT-CONSTRUCTION_(7.13.26).docx

CONSTRUCTION AGREEMENT

between

CITY OF FORT MYERS, FLORIDA

and >[Contractor]

Contents

This CONSTRUCTION AGREEMENT is made and entered into on the effective date (the date assigned in the Notice to Proceed) between the City of Fort Myers, Florida, a municipal corporation in the State of Florida hereinafter referred to as the "City", and >Contractor hereinafter referred to as " Contractor".

RECITALS

WHEREAS, the City desires to obtain the Services of said Contractor to provide and perform Services as further described hereinafter concerning the solicitation to be referred to and identified as Mill & Replace Asphalt Resurfacing, ITB 026-070, the Contractor hereby agrees to provide and Asphalt perform the services required and necessary to complete the services and work as set forth in these documents, and WHEREAS, the Contractor hereby certifies that Contractor has been granted and possesses valid, current licenses to do business in the State of Florida, in Lee County, and the City of Fort Myers, issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Contractor pursuant to this Agreement; and NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

ARTICLE 1 – DEFINITIONS

ADDENDA - A written change, addition, alteration, correction, or revision to a solicitation.

ADDITIONAL SERVICES - Any additional services that the City may request and authorize, in writing, which are not included in the initial Scope of Services.

AMENDMENT/SUPPLEMENTAL AGREEMENT - A formal, written change to an executed contract that modifies, adds to, or deletes terms, conditions, scope of work, period of performance, pricing, or other provisions. [All Contract Amendments must be executed by authorized representatives of both the Contractor and the City to be valid and enforceable. Verbal agreements or informal communications shall not be considered binding amendments.

APPROVAL - When applied to approval from the City, this term shall mean approval which is, at a minimum, evidenced by a written document authored or initialed by the City and subject to the formalities imposed by specific provisions in this Contract.

BONDS - Solicitation, Performance, and Payment Bonds and other instruments of security furnished by the Contractor and their Surety in accordance with the Contract Documents and in accordance with Florida Law.

CHANGE ORDER - A written directive issued after contract execution that modifies the scope of work, contract price, contract time, or other terms and conditions of the construction contract. A Change Order must be authorized in writing by the City, approved by City Council, and executed by the Contractor before the additional or revised work is performed.

Construction Change Order: A written directive issued after contract execution that modifies the scope of work, contract price, or contract time of a construction contract. Must be approved in writing by the City and executed prior to performing revised work.

Purchase Order (PO) Change Order: A written change to a previously issued Purchase Order (goods/services) that adjusts quantities, delivery schedules, or pricing. Must be authorized under City procurement procedures. Becomes an official amendment to the original PO once approved.

CITY – The City of Fort Myers, a municipal corporation within the State of Florida, its officers, officials, agents, and representatives. Also known as Owner.

COMMENCEMENT DATE - is the Notice to Proceed Date shown in the Notice to Proceed.

CONTRACT ADMINISTRATOR – The City employee designated in the Contract Documents who is responsible for the day-to-day administration and oversight of the contract on behalf of the City. The Contract Administrator serves as the primary point of contact for the Contractor, monitors contractor performance, ensures compliance with contract terms, reviews invoices or applications for payment, and coordinates with other departments as necessary. The Contract Administrator does not have authority to amend the contract, approve Change Orders, or bind the City unless expressly authorized in writing.

CONTRACT PRICE - The total monies payable by City to the Contractor under the terms and conditions of the Contract Documents.

CONTRACT TIME - The number of calendar days in the Construction Phase stated in the Contract Documents for the completion of the Work, including Saturdays, Sundays and Holidays, commencing with the date of Notice to Proceed, and ending with scheduled date of Final Acceptance.

DAY - One (1) calendar day when used in the Contract, measured from midnight to the next midnight.

DEFECTIVE - Work that is unsatisfactory, deficient, or faulty; that fails to conform to the requirements of the Contract Documents; that does not meet applicable standards, tests, inspections, or approvals referenced in the Contract; or that has been damaged prior to final payment, unless such damage is the City's responsibility after Substantial Completion.

DRAWINGS/PLANS - Drawings and plans showing the character and scope of the Work to be performed, and which have been prepared or approved by the AE and are referred to in the Contract Documents. “Plans” generally refer to an overall subject, while “Drawings” refer to specifics.

EFFECTIVE DATE - The date indicated in the Notice to Proceed on which it becomes effective, but if no such date is indicated, it is the date on which the Contract is executed by the final party.

FINAL COMPLETION - The point at which all work required under the contract, including punch list items, cleanup, testing, inspections, and submission of all closeout documentation (such as warranties, as-builts, O&M manuals, and lien releases), has been fully and satisfactorily completed by the Contractor. Final Completion must be verified and accepted in writing by the City and is a prerequisite for Final Acceptance and final payment.

NOTICE OF AWARD - The written notice by the City to the apparent successful Contractor notifying them that they were the top choice for the project and should expect to be contacted by the Department to begin negotiations.

NOTICE TO PROCEED - A written notice given by the City to the Contractor (with a copy to AE, if applicable) fixing the date on which the Contract Time will commence to run and on which the Contractor shall start to perform his obligations under the Contract Documents.

PROCUREMENT DIRECTOR - Chief Procurement Officer representing the City.

PROJECT - The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part as indicated elsewhere in the Contract Documents.

PROJECT MANAGER - The Project Manager is the individual designated in writing by the City to act as the City's representative and liaison for this Agreement. The Project Manager shall provide coordination, guidance, review, recommendations, and communication between the City and the Contractor regarding the Professional Services, work, and materials to be provided under this Agreement, including all authorized Amendments, Supplemental Agreements, and Change Orders.

The Contractor refers to the individual or firm providing Professional Services under this Agreement, who, by executing this Agreement, assumes full legal responsibility for performing all required services, work, and materials. This includes the work of all Subcontractors engaged by the Contractor.

The Project Manager shall not issue any verbal or written instruction to the Contractor that modifies or affects:

1. The Scope of Services to be performed;

2. The schedule for commencement or completion of services;

3. The compensation due to the Contractor.

The Project Manager is responsible for reviewing all Contractor requests related to payment for completed work and expenses and shall make recommendations based on the terms of this Agreement and any approved Amendments, Supplemental Agreements, or Change Orders.

SITE – The area on which the Contractor's construction Work is to be performed and such other areas that may be designated as such by the Final Construction Documents, and upon which the Project and associated improvements are to be constructed by the Contractor.

SOLICITATION - An Invitation to Bid, Request for Proposals, Request for Statement of Qualifications, or any document used to obtain submissions for the purpose of entering into a contract.

SCOPE - Written technical descriptions of materials, equipment, services, construction, standards, and workmanship as requested to explain the needs of the City.

SUBCONTRACTOR - Any individual, firm, or entity engaged by the Contractor to perform a portion of the work or provide services, labor, or materials under the terms of the Contract. Subcontractors are not in direct contractual privity with the City and shall operate under the supervision and responsibility of the Contractor. The Contractor remains fully liable for the performance of all Subcontractors and must obtain prior written approval from the City before engaging any Subcontractor, as required by the Contract Documents.

SUBMITTAL - all documents, drawings, diagrams, schedules, samples, test results, and related data prepared by the Contractor or its team. This includes work by Subcontractors, manufacturers, suppliers, or distributors.

Submittals show details of the Work and may include brochures, product sheets, charts, and instructions. They describe materials, equipment, or systems proposed for use.

SUBSTANTIAL COMPLETION - The stage in the progress of the Work when the Project, or a designated portion thereof, is sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work for its intended purpose. Substantial Completion shall be established by a written certificate issued by the City or its designated representative and may be subject to the completion of minor punch list items. Substantial Completion triggers the start of certain obligations, such as the warranty period, and may allow for partial release of retainage, as permitted by the contract.

SUPPLEMENTAL CONDITIONS - The part of the Contract Documents which amends or supplements General Conditions.

SURETY - A pledge or guarantee by an insurance company, bank, individual, or corporation on behalf of the Contractor that protects against default or failure of the contracted Contractor to satisfy the contractual obligations.

UNDERGROUND FACILITIES - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services or materials, electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, sewage and drainage removal, traffic or other control systems or water.

WORK - The entire completed construction, or the various separately identified 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 construction, all as required by the Contract Documents.

ARTICLE 2 – TERM

This Agreement will be in effect on the effective date and shall end >__ days later, unless amendments have otherwise been executed.

The City has the right to cancel or terminate this contract as described in these documents.

ARTICLE 3 – CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the Contract Manager concerning the Work consist of this document plus: Attachment A-Scope of Services, Attachment B-Bid Schedule/ Schedule of Values. Documents listed in 3.1 below are also incorporated by reference.

3.1. Order of Precedence

In the event of any conflict, ambiguity, or inconsistency among the Contract Documents, the documents shall control in the following order of precedence, with the document highest in priority governing over any lower-listed document: (1) Duly executed Amendments, Change Orders, and Supplemental Agreements (in chronological order, most recent first); (2) This Construction Agreement, including all exhibits and attachments expressly incorporated herein; (3) Construction Supplemental Conditions (if applicable); (4) Plans and Drawings, including approved revisions; (5) Technical Specifications; (6) Addenda issued prior to receipt of Submittals; (7) The Solicitation (RFP/ITB) Documents, excluding the Contractor’s proposal; (8) The Contractor’s Proposal/Submittal, excluding any terms expressly rejected by the City; (9) The Purchase Order, if issued separately.

In the event of a conflict between Drawings and Specifications, the Specifications shall govern unless otherwise expressly stated. Larger-scale drawings shall govern over smaller-scale drawings in the event of dimensional conflicts.

No provision of the Contractor’s Proposal shall modify or supersede the requirements of the Solicitation or Contract Documents unless expressly accepted in writing by the City in the executed Agreement or subsequent Amendment.

ARTICLE 4 – NOTICES

4.1. Notices by Contractor to City.

All notices required and/or made pursuant to this Agreement to be given by the Contractor to the City shall be in writing and shall be given to the following electronic email addresses of record:

procurementservices@fortmyers.gov, cc@fortmyers.gov, and legalservice@fortmyers.gov.

Copy to:

City Attorney's Office, City of Fort Myers, 2200 Second Street, Fort Myers, FL 33901

4.2. Notices by City to Contractor.

All notices required and/or made pursuant to this Agreement to be given by the City to the Contractor shall be made in writing and shall be provided electronically to the email address below:

Contractor’s Name: >[Contractor] Point if Contact: >[contact] Mailing Address: >[address] Phone: >[phone] Email: >[email]

4.3. Change or Address of Record

Either party may change its address of record by written notice to the other party given in accordance with the requirements of this Article.

ARTICLE 5 - SCOPE OF SERVICES / WORK

The Contractor hereby agrees to provide and perform the Services required necessary to complete the services and work as set forth in these documents.

ARTICLE 6 – CONTRACT AMOUNT AND TIME

Contractor shall complete all Work as specified or indicated in the Contract Documents.

6.1. Contract Amount

>project specific City shall pay Contractor for completion of the Work in accordance with the Contract Documents in the amount of >Contract Amount ($xxxx.xx).

6.2. Contract Time & Liquidated Damages

6.2.1. Substantial/Final Completion. The Work will be substantially completed within >___ calendar days from the date of the Notice to Proceed and finally completed within >___ calendar days from the date of the Notice to Proceed.

6.2.2. Liquidated Damages. Liquidated Damages

The "Commencement Date” shall be established in the Notice to Proceed to be issued by the City. Contractor shall commence the work upon the issuance of the Notice to Proceed. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by Contractor prior to the commencement Date shall be at the sole risk of Contractor.

The Work shall be substantially completed within the time agreed upon by the City and Contractor. The date of substantial completion of the Work (or designated portions thereof) is the date certified by the City when construction is sufficiently complete, in accordance with the Contract Documents, so the City can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended. The Work shall reach final completion and be ready for final acceptance by the City within the time specified.

The Work under this contract will be substantially completed within Substantial Completion calendar days after the notice to proceed is issued and final completion will occur within final completion calendar days after notice to proceed is issued.

The City and Contractor recognize that since time is of the essence for any work under this Agreement, the City will suffer financial loss if the Work is not substantially completed with the time specified. Should Contractor fail to substantially complete the Work within the specified time period, the City shall be entitled to assess as liquidated damages but not as a penalty, an amount specified below for each calendar day thereafter until substantial completion is achieved:

Total Contract Amount Per Day $299,999 and under......................................................$904 $300,000 but less than $2,000,000..............................$1,685 $2,000,000 but less than $5,000,000...........................$2,667 $5,000,000 but less than $10,000,000.........................$3,813 $10,000,000 but less than $20,000,000.......................$5,021 $20,000,000 but less than $40,000,000.......................$7,442 $40,000,000 and over...............$10,224 plus 0.00005 of any amount over $40 million (Round to nearest whole dollar) The Project shall be deemed to be substantially completed on the date the Architect/Engineer issues a Certificate of Substantial Completion pursuant to the terms hereof. Contractor hereby expressly waives and relinquishes any right which it may have to seek the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the City’s actual damages at the time of contracting if Contractor fails to substantially complete the Work in a timely manner.

When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a legal Holiday, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday.

ARTICLE 7 - RESERVED

ARTICLE 8 – NO THIRD-PARTY BENEFICIARIES

Both parties explicitly agree, and this Agreement states that no third-party beneficiary status or interest is conferred to, or inferred to, any other person or entity.

ARTICLE 9 - ASSIGNMENT, TRANSFER AND SUBCONTRACTS

The Contractor shall not assign or transfer any of its rights, benefits, or obligations, except for transfers that result from:

9.1. the merger or consolidation of the Contractor with a third party; or

9.2. the disestablishment of the Contractor 's professional practice and the establishment of the successor Contractor.

Nor shall the Contractor subcontract any of its service obligations hereunder to third parties without prior written approval of the City. The Contractor shall have the right, subject to the City’s prior written approval, to employ other persons and/or firms to serve as Subcontractor to City in connection with the Contractor performing services and work pursuant to the requirements of this Agreement. The Contractor must notify the Procurement Services Department of any change, complete a new vendor registration form, provide an updated W-9, provide an updated certificate of insurance, provide a new E-Verify Memorandum of Understanding, and provide written notification of such change on official company letterhead.

ARTICLE 10 – REPRESENTATION OF THE CONTRACTOR

In order to induce City to enter into this Agreement Contractor makes the following representations:

10.1. Contractor has familiarized themselves with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

10.2. Contractor has studied carefully all reports of exploration and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions (if applicable) and the General Conditions, and accepts the determination set forth in the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which Contractor is entitled to rely.

10.3. Contractor has obtained and carefully studied (or assumes responsibility for obtaining and carefully studying) all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in "Time and Schedule of Performance" which pertain to the subsurface or physical conditions, at or contiguous to, the site or otherwise may affect the cost, progress, performance or furnishing of the Work as Contractor considers necessary for the performance or furnishing of the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions found in the solicitation; and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are, or will be, required by Contractor for such purposes.

10.4. Contractor has reviewed and checked all information and data shown, or indicated on the Contract Documents, with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are, or will be, required by Contractor in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the General Conditions.

10.5. Contractor has correlated the results of all such observations, examinations, tests, reports and studies with the terms and conditions of the Contract Documents.

10.6. Contractor has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Contractor.

ARTICLE 11 – REPRESENTATION OF THE CITY

The Contractor in providing and performing the services and work required pursuant to this Agreement, and Amendments thereto, shall only represent the City in the manner and to the extent specifically set forth in writing in this Agreement or Amendments thereto, and as provided in any written Supplemental Agreement(s), and Change Order(s) issued there under.

In the event the Contractor’s services or work involves construction contract administrative support services, the Contractor is not authorized to act on the City’s behalf, and shall not act on the City’s behalf, in such a manner as to result in change(s) to (1) the cost or compensation to be paid the construction Contractor, or (2) the time for completing the work as required and agreed to in the construction contract, or (3) the scope of the work set forth in the construction contract documents, unless such representation is specifically provided for, set forth and authorized in this Agreement or Amendment thereto.

The City will neither assume nor accept any obligation, commitment, responsibility or liability, which may result from representation by the Contractor, not specifically provided for and authorized as stated hereinabove.

ARTICLE 12 - RELATIONSHIP BETWEEN PARTIES

This Contract does not create an employer/employee relationship between the City and Contractor. Contractors are independent of the City and will be in control of the means and the method in which the requested work is performed. Contractor will be solely responsible for payment of all federal, state, and local income tax, and self-employment taxes, arising from this Contract. The City will not make deductions from payments due, for such taxes, or for social security, unemployment insurance, worker’s compensation, or other employment or payroll taxes. Contractor will also be responsible for the performance of their Subcontractors.

ARTICLE 13 - OBLIGATIONS OF THE CONTRACTOR

13.1. Contract Documents

Contractor has familiarized themselves with the nature and extent of the Contract Documents, Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work.

13.2. Warranty

Contractor warrants that all equipment, materials and workmanship, whether furnished by Contractor or its Subcontractor, will comply with the City's specifications, drawings and other requirements. The Contractor warrants that the Work, including equipment and materials, provided shall conform to professional standards of care and practice in effect at the time the Work is performed, be of the highest quality, and be free from all faults, defects or errors. Whenever required by the specifications of the Solicitation, the Contractor warrants that all equipment and materials provided shall be new. If the Contractor is notified in writing of a fault, deficiency or error in the Work provided within one (1) year from final completion of the work, the Contractor shall, at the City's option, either reperform such portions of the Work to correct such fault, defect or error, at no additional cost to the City, or refund to the City, the charge paid by the City, which is attributable to such portions of the faulty, defective or erroneous Work, including the costs for reperformance of the work provided by other suppliers.

The duties imposed upon the Contractor by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

13.3. Conflicts, Errors, or Discrepancies

Contractor has given City written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents, and the written resolution thereof by City is acceptable to Contractor.

13.4. Equipment

The Contractor is solely responsible for all damage or loss by fire, theft or otherwise, to materials, tools, equipment, and consumables, left on City property by the Contractor.

13.5. Inspections and Testing

If any codes, laws, ordinances, rules or regulations are of any public authority having jurisdiction over the Project requests the Work to be specifically inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish to the City the requested certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the City.

13.6. Discrimination

Contractor certifies that they will:

13.6.1. Implement an employment nondiscrimination policy prohibiting discrimination in the performance of the contract in the hiring, discharging, promoting or demoting, matters of compensation, or any other employment-related decision or benefit on account of actual or perceived race, ethnicity, color, religion, gender, disability, age, military status, sexual orientation, gender identity, gender expression, or marital or familial status;

13.6.2. Not discriminate in the performance of the contract on account of actual or perceived race, ethnicity, color, religion, national origin, gender, disability, age, military status, sexual orientation, gender identity, gender expression, or marital or familial status;

13.6.3. Provide a harassment-free workplace, with any allegation of harassment given priority attention and action by management;

13.6.4. Incorporate the foregoing requirements in all subcontracts related to its contract with the City.

13.7. Name Change

If a firm changes its legal business structure through a merger, acquisition, or sale; has a legal name change, a change in principal location of conducting business; a change in status with the Secretary of State filing, a change in officers, or any other change that affects the structure of the business; a change in the level of service being offered, the nature of the products or service offered; or any deviation from what was presented by the firm to the City when being considered for this contract; the firm shall immediately notify the City's Procurement Services Department at procurementservices@fortmyers.gov.

13.8. Patents, Royalties and Copyrights

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 in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work, and if to the actual knowledge of the City, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Contract Documents.

13.9. Permits, Taxes, Licenses

The Contractor shall, at their own expense, obtain all necessary permits, give all notices, pay all license fees and taxes, comply with all applicable local, State and Federal laws, ordinances, rules, and regulations.

All permits, fees and licenses necessary for the completion of the Work, which are not issued by City, shall be acquired and paid for by the Contractor. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work.

The Contractor agrees to obtain and maintain throughout the terms of this Agreement all such licenses as are required to do business in the State of Florida and in Lee County, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the services provided and performed by the Contractor.

13.10. Record Retention

Contractor will keep and maintain adequate records and documents applicable to the project at the Contractor's expense for a minimum of five (5) years from date of final payment, unless the Contractor is notified in writing by the City of the need to extend the retention period. Books and accounts shall be open to investigation upon request.

The City shall be entitled to audit the books and records of a Contractor or any Subcontractor to the extent that such books and records relate to the performance of the contract or any subcontract. The Contractor and its Subcontractor shall retain and maintain financial records and other records relating to the contract for a period of five (5) years from the date of final payment under the contract and by the Subcontractor for a period of five (5) years from the date of final payment under the subcontract or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 5-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 5-year period, whichever is later.

13.11. Subcontractors

The Contractor shall perform all of its obligations and functions under the Contract by means of its own employees, or by a duly qualified Subcontractor, which is approved in advance by the City. In the event a Subcontractor is employed, the Contractor shall continuously monitor the Subcontractor’s performance, shall remain fully responsible to ensure that the Subcontractor performs as required and itself perform or remedy any obligations or functions, which the Subcontractor fails to perform properly.

13.12. Contractor to Repair Property Damage Caused by the Contractor The Contractor agrees to promptly repair and/or replace, or cause to have repaired and/or replaced, at its sole cost and expense and in a manner acceptable to and approved by the City, any property damage arising out of, or caused by, the misconduct or negligent acts of the Contractor, or of its Subcontractor. Contractor obligation under this sub-article does not apply to property damage caused in whole or in part by any other Contractor engaged directly by the City.

The City reserves the right, should the Contractor fail to make such repairs and/or replacement within a reasonable period of time, to cause such repairs and/or replacement to be made by others and for all costs and expenses associated with having such repairs and/or replacement done to be paid for by the Contractor, or by the Contractor reimbursing the City for all such costs and expenses.

13.13. Safety

13.13.1. The Contractor shall take all necessary precautions for the safety of the City's and Contractor's employees and the general public and shall erect and properly maintain at all times all necessary vehicular and facility safeguards for the protection of the workmen and public. If necessary, the Contractor shall post signs warning against hazards in and around the work site.

13.13.2. Contractor acknowledges and agrees that they will have the sole responsibility for compliance with all requirements of the Federal Occupational Safety and Health Act of 1970, and all State and local safety and health regulations.

13.13.3. Unless otherwise stipulated in the Solicitation, all manufactured items and fabricated assemblies shall comply with applicable requirements of Occupational Safety and Health Act and any standards thereunder.

13.14. Safety Data Sheets (SDS)

Contractor will supply Safety Data Sheets (SDS) with each initial delivery of any materials defined by the State of Florida or the Federal Government as being toxic, harmful, or hazardous.

13.15. Contractor’s Project Manager

The Contractor agrees to employ and designate, in writing, a qualified and, if required by law, a licensed professional to serve as the Contractor 's Project Manager. The Contractor 's Project Manager shall be authorized and responsible to act on behalf of the Contractor with respect to directing, coordinating and administering all aspects of the work to be provided and performed under this Agreement and Amendment(s) thereto. The Contractor's Project Manager shall have the full authority to bind and obligate the Contractor on any matter arising under this Agreement and its Amendment(s) unless substitute arrangements have been furnished to the City in writing. The Contractor agrees that the Project Manager shall devote whatever time is required to satisfactorily direct, supervise and manage the work provided and performed by the Contractor throughout the entire period this Agreement is in effect. The person selected by the Contractor to serve as the Contractor 's Project Manager shall be subject to prior approval and acceptance of the City.

13.16. Truth-In-Negotiations Certificate

The City may request that the Contractor execute a "Truth-in-Negotiations Certificate". The Certificate shall state that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time this Agreement is executed. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the City determines the contract price was increased due to inaccurate, incomplete or non-current wage rates of other factual unit costs.

13.17. Quality Control

Contractor shall institute and maintain throughout the contract period a properly documented quality control program designed to ensure that the materials are provided in accordance with the contract. The program shall include providing daily supervision and conducting frequent inspections of the Contractor's staff and ensuring that accurate records are maintained. The records so created shall be open to inspection by the City.

13.18. Work Correction

See Construction Supplemental Conditions

13.19. Reports

13.19.1. Contractor has studied carefully all reports of exploration and tests of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions (if applicable) and the Terms & Conditions, and accepts the determination set forth in the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which Contractor is entitled to rely.

13.19.2. All reports and documents written for the City shall be submitted in an electronic format that is completely compatible to the City's software. All photos, exhibits, graphs, tables, etc. contained within any report or document shall be provided separately in a file format compatible to the City's software.

13.19.3. when requested by the City, the Contractor shall furnish progress reports as required.

13.19.4. Examinations, Investigations, and Tests

13.19.4.1. The Contractor has obtained (or takes responsibility for obtaining) and reviewed all necessary examinations, investigations, tests, and reports related to subsurface or physical site conditions that may impact the cost, progress, or performance of the work. These studies supplement those referenced in the "Time and Schedule of Performance" section. The Contractor affirms that no additional studies or data will be needed to complete the work at the agreed Contract Price, within the Contract Time, and in compliance with the Contract Documents, including the Solicitation Conditions in the solicitation.

13.19.4.2. Contractor has reviewed and checked all information and data shown, or indicated on the Contract Documents, with respect to existing Underground Facilities at or contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional examinations, investigations, explorations, tests, reports, studies or similar information or data in respect of said Underground Facilities are, or will be, required by Contractor in order to perform and furnish the Work at the Contract Price, within the Contract Time, and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of the Term & Conditions.

13.19.4.3. Contractor has correlated the results of all such observations, examinations, tests, reports and studies with the terms and conditions of the Contract Documents.

13.20. Reserved

13.21. Qualified Personnel

The Contractor agrees that any work to be performed relate to a work which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to engage in such work, to employ and/or retain only qualified personnel to be in responsible charge of all work to be provided pursuant to this Agreement.

The Contractor shall employ people to work at the City’s facilities who are neat, clean, well-groomed and courteous.

13.22. Removal of Personnel

The Contractor agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the Contractor's Project Manager, or any other personnel employed or retained by the Contractor, or personnel of the Subcontractor engaged by the Contractor to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the City shall request, in writing, be removed, which request may be made by the City with or without cause. However, notwithstanding the above, nothing herein shall interfere with the Contractor's right to terminate its employees or employees’ right to terminate their employment with the Contractor.

13.23. Equipment

The Contractor is solely responsible for all damage or loss by fire, theft or otherwise, to materials, tools, equipment, and consumables, left on City property by the Contractor.

13.24. Reserved

13.25. Reserved

13.26. Additional Services

Should the City request the Contractor to provide and perform Services for this project, which are not set forth in the Scope, the Contractor agrees to provide and perform such Additional Services as may be agreed to in writing by both parties to this Agreement.

Such Additional Services shall constitute a continuation of the Services covered under this Agreement and shall be provided and performed in accordance with the covenants, terms, and provisions set forth in this Agreement and Amendment thereto.

Additional Services shall be administered and authorized as "Supplemental Agreements" or "Change Orders" under the Agreement. The Contractor shall not provide or perform, nor shall the City incur or accept any obligation to compensate the Contractor for any Additional Services unless, and until, a written "Supplemental Agreement" or "Change Order" shall have been agreed to and executed by both parties.

Each such "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the Scope of the Additional Services requested; (2) the basis of compensation; and (3) the period of time and/or schedule for performing and completing said Additional Services.

The duties and obligations imposed upon the Contractor by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

ARTICLE 14 – OBLIGATIONS OF THE CITY

14.1. Designation of City’s Representative

The City agrees, after the execution of this Agreement, to promptly advise the Contractor, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the Contractor by the City’s Contract Administrator.

The City agrees, after the execution of this Agreement, to promptly advise the Contractor, in writing, of the person designated to serve and act as the City’s Representative. Such notification shall be provided to the Contractor by the City’s Contract Administrator.

All services will be approved by the City’s Representative. All work modifications require written approval by the City’s Representative. No work will proceed until authorized by the City’s Representative and the Contractor has received a purchase order (PO) from Procurement Services. At times Contractor will meet the City’s Representative at the worksite, at no cost, to verify information, requirements, make recommendations, or verify specifications.

The City’s Representative assigned to this project is Shaun McDonald and they can be reached after a NOTICE OF AWARD is issued at smcdonald@fortmyers.gov or 239-321-7462.

14.2. Availability of City Information

14.2.1. Project Guidelines and Criteria

Guidelines to the Contractor regarding requirements the City has established, or suggests relative to the Project including, but not limited to, such items as: goals, objectives, constraints, and any special financial, budgeting, space, site, operational, equipment, technical, construction, time and scheduling criteria are set forth in "Project Guidelines and Criteria" is attached and made a part of this Agreement.

14.2.2. City to Provide Pertinent Reference Material

At the Contractor’s request, the City agrees to provide to the Contractor, at no cost, all pertinent information known to be available to the City to assist the Contractor in providing and performing the required services. Such information may include, but not be limited to: previous reports, plans, drawings and specifications, maps; property, boundary, easement, right-of-way, topographic, reference monuments, control points, plats and related survey data; data prepared, or services furnished by others to the City such as sub-surface investigations, laboratory tests, inspections of natural and man-made materials, property appraisals, studies, designs and reports.

14.3. Availability of City Designated Representatives

The City agrees that the City Representative shall be available within a reasonable period of time, with reasonable prior notice given by the Contractor, to meet and/or consult with the Contractor on matters pertaining to the services to be provided and performed by the Contractor. The City further agrees to respond within a reasonable period-of-time to written requests submitted by the Contractor.

14.4. Access to City Property

The City agrees to provide the Contractor with access within a reasonable period of time to City property, facilities, buildings and structures, to enable the Contractor to provide and perform the required Services and work pursuant to this Agreement. Such rights of access shall not be exercised in such a manner, or to such an extent, as to impede or interfere with City operations, or the operations carried on by others under a lease, or other contractual arrangement with the City, or in such a manner as to adversely affect public health and safety. Such access may, or may not be, within the Contractor's normal office and/or field workdays and/or work hours.

14.5. Plans Review

If applicable, Plan reviews by City staff is only for conformance with the design concept of the project and for compliance with the information given in the contract documents, and shall not extend to means, methods, techniques, sequences, or procedures of construction or to safety precautions or programs incident. The review does not relieve the Contractor from responsibility for errors or omissions or from responsibility for having the design comply with the provisions of all codes having jurisdiction.

ARTICLE 15 – TIME AND SCHEDULE OF PERFORMANACE

15.1. Notice to Proceed / Purchase Order

Following the execution of this Agreement by both parties, and after the Contractor has complied with the insurance requirements set forth hereinafter, the City shall issue the Contractor a Written Notice to Proceed.