Agreement.ModifiedA_LAPwith_FPID.docx

MODIFIED FORM A: STANDARD AGREEMENT FOR

ARCHITECT/ENGINEER DESIGNED CONSTRUCTION

THIS AGREEMENT is made and entered into by and between Escambia County, a political subdivision of the State of Florida ("County"), with administrative offices at 221 South Palafox Place, Pensacola, Florida 32502, and ____________________________, a [foreign OR Florida] for-profit [corporation OR limited liability company] authorized to conduct business in the State of Florida (“Contractor”), FEI/EIN _____________, with a principal address of _____________________________, relating to the Contractor’s performance of all work ("Work") in connection with ______________________________, P.D. _____________ ("Project"), as detailed in the Contract Documents hereafter specified.

WITNESSETH:

NOW, THEREFORE, in consideration of the mutual terms and conditions, promises, covenants and payments hereinafter set forth, the County and the Contractor agree as follows:

1.2 In case of any inconsistency or conflict among the provisions of the Agreement and any other terms and conditions of any documents comprising the Contract Documents, the provisions of the Agreement shall control. Concerning the Contract Documents, the order of precedence shall be as follows: 1) the Agreement, including Amendments; 2) Exhibits; 3) Change Orders; 4) Work Directive Changes; and 5) Field Orders. The Contract Documents listed above represent the entire and integrated agreement between the parties hereto, and supersede prior negotiations, representations, or agreements, either written or oral.

1.3 LAP Agreement Required Contract Provisions.

This Project is funded, in whole or in part, with funding provided by the Florida Department of Transportation pursuant to a Local Agency Program (LAP) Agreement (FPN #__430468-1_), the terms of which are incorporated by reference herein, and is subject to the requirements set forth therein. By executing this Agreement, Contractor acknowledges it has received a copy of the LAP Agreement as part of the solicitation documents and agrees to comply with all applicable provisions of the LAP Agreement, including, but not limited to, the “LAP Agreement Required Contract Provisions” set forth in Exhibit H, attached hereto and incorporated herein. Contractor shall also comply with all applicable procedures, guidelines, manuals, standards, and directives as described in the FDOT Local Agency Program Manual.

1.4 Form FHWA-1273 Required Contract Provisions.

This project is funded, in whole or in part, with Federal-aid funds and is subject to the requirements of Federal Highway Administration (FHWA) revised Form FHWA-1273 “Required Contract Provisions for Federal-Aid Construction Contracts,” attached hereto and incorporated herein as Exhibit I. By executing this Agreement, Contractor agrees to comply with all applicable provisions and include these requirements in all contracts with subcontractors performing work on the project.

SECTION 2. SCOPE OF WORK. Contractor agrees to furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely, and fully perform and complete in a good workmanlike manner the Work required by the Contract Documents.

SECTION 3. CONTRACT AMOUNT. In consideration of the faithful performance by Contractor of the covenants in this Agreement to the full satisfaction and acceptance of County, County agrees to pay, or cause to be paid, to Contractor in accordance with the terms of this Agreement the following amount (herein "Contract Amount"): [Contract Amount]

SECTION 4. BONDS.

4.1 Contractor shall provide Performance and Payment Bonds, in the form prescribed in Exhibit B, in the amount of 100% of the Contract Amount, the cost of which to be paid by Contractor. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to County; provided, however, the surety shall be rated as "A-" (excellent) or better as to general policy holders rating and Class V or higher rating as to financial size category and the amount required shall not exceed 5% of the reported policy holder’s surplus, all as reported by A.M. Best Company, Inc. at ambest.com.

4.2 If the surety for any bond furnished by Contractor is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the Contractor shall, within five (5) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the County's approval. Failure by Contractor to maintain the Performance and Payment Bonds in full force and effect at all times, including the warranty period, shall be grounds for termination of this Agreement.

4.3 Pursuant to §255.05, Florida Statutes, the Contractor shall be required to execute and record the Performance and Payment Bonds. The bonds must state the name and principal business address of both the Principal and the Surety and a description of the Project sufficient to identify it.

SECTION 5. CONTRACT TIME AND LIQUIDATED DAMAGES.

5.1 Time is of the essence in the performance of the Work under this Agreement. The "Commencement Date" shall be established in the Notice to Proceed to be issued by the County. Contractor shall commence the Work within ten (10) calendar days from the Commencement Date. Contractor shall provide not less than 48 hours’ notice prior to beginning the Work. No Work shall be performed by the Contractor 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. No Work under this Agreement shall commence until certificates of insurance are approved by the County. (See Exhibit A, ¶13.2)

5.2 The Work shall be substantially complete within ______ ( ) calendar days from the Commencement Date. The Work shall be fully completed and deemed ready by the County for final completion within ______ ( ) calendar days from the Substantial Completion Date. The Contract Time shall be the time period from the Commencement Date to the date of final completion totaling _____ ( ) calendar days (herein "Contract Time").

5.3 County and Contractor recognize that, since time is of the essence for this Agreement, the County will suffer financial loss if the Work is not substantially complete within the time specified above. Should Contractor fail to substantially complete the Work within the time period specified above or any authorized extension thereof granted by County, County shall be entitled to assess, as liquidated damages, but not as a penalty, $_____ for each calendar day thereafter until substantial completion is achieved. The Project shall be deemed substantially complete by the County on the date the County’s Architect/Engineer issues a Certificate of Substantial Completion.

5.4 Contractor hereby expressly waives and relinquishes any right it may have to characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the County's actual damages at the time of contracting if Contractor fails to substantially complete the Work in accordance with the progress schedule.

5.5 When any period of time is referenced to 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 day made a legal holiday by the law of the applicable jurisdiction, 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.

SECTION 6. NOTICES.

6.1 Unless otherwise notified in writing of a new address, notices, applications for payment, and payments shall be sent to each party at the below listed addresses. Rejection, or other refusal by the addressee to accept, or the inability of the courier service, or the United States Postal Service to deliver because of a changed address of which no notice was given, shall be deemed to be receipt of the notice sent.

6.2 All notices required or made pursuant to this Agreement by either party shall be in writing and delivered by hand or by United States Postal Service, first class mail, postage pre-paid, return receipt requested, or by other private courier service such as Federal Express.

6.3 Notices to the County shall be sent to:

Escambia County Attn: County Administrator 221 Palafox Place, Suite 420 Pensacola, FL 32502

Applications for Payment to the County shall be sent to:

Attn: ____________________

With copy to:

enginvoices@myescambia.com [or relevant department]

6.4 Payments and Notices to the Contractor shall be sent to:

Attn: ____________________

6.5 Either party may change its above noted address by giving the other party at least ten (10) calendar days prior written notice in accordance with the requirements of this Section.

SECTION 7. INDEPENDENT CONTRACTOR. In the performance of this Agreement hereunder, Contractor is an independent contractor. Contractor shall not hold itself out as an employee, agent, or servant of the County; and Contractor shall not have the power or authority to bind the County in any promise, agreement, or representation, other than as specifically provided in the Agreement or as may be expressly provided hereafter in writing by an authorized official of the County.

SECTION 8. MODIFICATION. No modification or change to the Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it.

SECTION 9. SUCCESSORS AND ASSIGNMENT. This Agreement, or any interest herein, shall not be assigned, transferred, or otherwise encumbered, under any circumstances, by Contractor without the prior written consent of the County. However, the Agreement shall run with the Escambia County Board of County Commissioners and its successors.

SECTION 10. GOVERNING LAW. The Agreement shall be interpreted under and its performance governed by the laws of the State of Florida and the parties agree that venue shall be in Escambia County, Florida for any matter which is the subject of this Agreement.

SECTION 11. NO WAIVER. The failure of the County to enforce at any time or for any period of time any one or more of the provisions of the Agreement shall not be construed to be and shall not be a waiver of any such provision or provisions or of its right thereafter to enforce each and every such provision.

SECTION 12. ENTIRE AGREEMENT. The parties hereto agree and represent that the Agreement comprises the full and entire agreement between the parties affecting the Work, and no other agreement or understanding of any nature concerning the same has been entered into or will be recognized, and that all negotiations, acts, work performed, or payments made prior to the execution hereof shall be deemed merged, integrated, and superseded by the Agreement.

SECTION 13. SEVERABILITY. Should any provision of the Agreement be determined by a court of competent jurisdiction to be unenforceable, such a determination shall not affect the validity or enforceability of any other section or part thereof.

SECTION 14. SURVIVAL. The respective obligations of the parties which, by their nature, would continue beyond the termination or expiration of this Agreement, including, without limitation, the Contractor’s obligations regarding public records, bonding, warranties, and indemnification, shall survive any such termination or expiration of the Agreement.

SECTION 15. PUBLIC RECORDS. The Contractor acknowledges that this Agreement and any related financial records, audits, reports, plans correspondence, and other documents may be subject to disclosure to members of the public pursuant to Chapter 119, Florida Statutes. Contractor shall maintain all such public records and, upon request, provide a copy of the requested records or allow the records to be inspected within a reasonable time. Contractor shall also ensure that any public records that are exempt or exempt and confidential from disclosure are not disclosed except as authorized by law. Upon the expiration or termination of the Agreement, Contractor agrees to maintain all public records for a minimum period of five (5) fiscal years in accordance with the applicable records retention schedules established by the Florida Department of State. In the event the Contractor fails to abide by the provisions of Chapter 119, Florida Statutes, the County may, without prejudice to any other right or remedy and after giving the Contractor and surety, if any, seven days written notice, during which period the Contractor still fails to allow access to such documents, terminate the contract. In such case, the Contractor shall not be entitled to receive any further payment. Reasonable terminal expenses incurred by the County may be deducted from any payments left owing the Contractor (excluding monies owed the Contractor for subcontractor work).

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:

221 Palafox Place, Suite 420 Pensacola, Florida 32502

(850) 595-4947

SECTION 16. EMPLOYMENT ELIGIBILITY VERIFICATION. In accordance with §448.095, Florida Statutes, Contractor shall register with and utilize the E-Verify System operated by the United States Department of Homeland Security (DHS) to verify the employment eligibility of all new employees hired during the term of the Agreement and shall expressly require any subcontractors performing work or providing services pursuant to this Agreement to likewise utilize the E-Verify System to verify the employment eligibility of all new employees hired by the subcontractor during the term of this Agreement. If Contractor enters into a contract with a subcontractor performing work or providing services on its behalf, Contractor shall also require the subcontractor to provide an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Information on registration for and use of the E-Verify Program can be obtained via the internet at the DHS website: http://www.dhs.gov/E-Verify.

SECTION 17. PROHIBITION AGAINST CONTRACTING WITH SCRUTINIZED COMPANIES.

In accordance with §287.135, Florida Statutes, by executing this Agreement, Contractor hereby certifies that Contractor is not on the Scrutinized Companies that Boycott Israel List created pursuant to §215.4725, Florida Statutes, and is not engaged in a boycott of Israel as defined in §215.4725, Florida Statutes. Further, Contractor acknowledges that if Contractor is found to have submitted a false certification, has been placed on the Scrutinized Companies that Boycott Israel List; or has been engaged in a boycott of Israel then the County reserves the right to immediately terminate this Agreement.

If the Contract Amount is $1 million dollars or more, by executing this Agreement, Contractor further certifies that Contractor is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to §215.473, Florida Statutes; and Contractor is not engaged in business operations in Syria as defined in §287.135(1)(c), Florida Statutes. Further, Contractor acknowledges that if Contractor is found to have submitted a false certification, has been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has been engaged in business operations in Syria then the County reserves the right to immediately terminate this Agreement.

SECTION 18. FOREIGN GIFTS/CONTRACTS. [Contract amount $100,000 or more] In accordance with §286.101, Florida Statutes, by executing this Agreement, Contractor certifies it has timely disclosed to the County and the Florida Department of Financial Services (DFS) any current or prior interest of, contract with, or grant or gift received from a “foreign country of concern” as defined in §286.101(1)(b), Florida Statutes, if such interest, contract, grant or gift has a value of $50,000 or more and such interest existed at any time or such contract, grant or gift was received or in effect during the previous five (5) years. Reporting information can be obtained via the internet at the DFS website: http://www.myfloridacfo.com/Transparency.

SECTION 19. THIRD PARTY BENEFICIARIES. This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties hereto.

SECTION 20. AUTHORITY. Any individual executing this Agreement on behalf of a corporate or governmental party represents and warrants that he/she is duly authorized to execute and deliver this Agreement on behalf of said party, in accordance with any duly adopted action of the governing board of said party, as may be applicable and in accordance with applicable law, and that this Agreement is binding upon said party in accordance with its terms.

SECTION 21. ANNUAL APPROPRIATION. Pursuant to the requirements of Florida law and Article II of Chapter 46, Escambia County Code of Ordinances, the County’s performance and obligation to fund this Agreement shall be contingent upon an annual appropriation by the Escambia County Board of County Commissioners.

[SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature:

COUNTY:

BOARD OF COUNTY COMMISSIONERS ESCAMBIA COUNTY, FLORIDA

Witness: _______________________ Date:

BCC Approved:

CONTRACTOR:

[LLC]

Witness: ______________________ By: ______________________________

Witness: ______________________ Date: ___________________________

OR

[CORPORATION]

By: _____________________________

ATTEST:

By:__________________________ Its: President Corporate Secretary [SEAL] Date:___________________________

Form A: Revised 2023

EXHIBIT A

GENERAL TERMS AND CONDITIONS

Section 1. INTENT OF CONTRACT DOCUMENTS.

1.1. It is the intent of the Contract Documents to describe a functionally complete Project (or portion thereof) to be constructed in accordance with the Contract Documents. Any work, materials, or equipment that may be reasonably inferred from the Contract Documents as being required to produce the intended result shall be supplied whether specified or not. When words that have a well-known technical or trade meaning are used to describe work, materials, or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization, or association, or to the laws or regulations of any governmental authority having jurisdiction over the Project, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, law, or regulation in effect at the time the Work is performed, except as may be otherwise specifically stated herein.

1.2. During the performance of the Work, if Contractor discovers a conflict, error, or discrepancy in the Contract Documents, Contractor shall immediately report same to the County or Architect/Engineer in writing and, before proceeding with the Work affected thereby, shall obtain a written interpretation or clarification from the County or Architect/Engineer. Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing any portion of the Work.

1.3. Drawings are intended to show general arrangements, design, and extent of Work and are not intended to serve as shop drawings. Specifications are separated into divisions for convenience of reference only and shall not be interpreted as establishing divisions for the Work, trades, subcontracts, or extent of any part of the Work. In the event of a discrepancy between or among the drawings, specifications, or other Contract Document provisions, Contractor shall be required to comply with the provision that is the more restrictive or stringent requirement upon the Contractor, as determined by the County or Architect/Engineer. Unless otherwise specifically mentioned, all anchors, bolts, screws, fittings, fillers, hardware, accessories, trim, and other parts required in connection with any portion of the Work to make a complete, serviceable, finished, and first quality installation shall be furnished and installed as part of the Work, whether specified or not.

1.4. "Architect/Engineer", where referenced in the Contract Documents, shall mean the County’s Architect/Engineer or designated representative thereof.

Section 2. INVESTIGATION AND UTILITIES.

2.1. Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling, and storage of materials; availability and quality of labor; water and electric power; availability and condition of roads; work area; living facilities; climatic conditions and seasons; physical conditions at the work-site and the Project area as a whole; topography and ground surface conditions; nature and quality of the surface materials to be encountered; subsurface conditions; equipment and facilities needed prior to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation.

2.2. Contractor shall locate all existing roadways, railways, drainage facilities, and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities, and utilities being referred to as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for relocating or temporarily interrupting any Utilities during the construction of the Project. Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting, and protecting all Utilities at all times during the course of the Work.

Section 3. SCHEDULE(S).

3.1. Within ten (10) calendar days after receipt of the Notice of Award, Contractor shall prepare and submit to the County for its review and approval a progress schedule for the Project (herein "Progress Schedule"). The Progress Schedule may be provided in an electronic format. The Progress Schedule shall relate to all Work required by the Contract Documents and shall provide for expeditious and practicable execution of the Work within the Contract Time. The Progress Schedule shall indicate the dates for starting and completing the various stages of the Work and dates of Shop Drawing Submittals. Contractor shall also submit a complete list of all its proposed subcontractors and materialmen, showing the work and materials involved and the dollar amount of each proposed subcontract and purchase order.

3.2. The Progress Schedule shall be updated monthly by Contractor. All monthly updates to the Progress Schedule shall be subject to the County's review and approval. Contractor shall submit the updates to the Progress Schedule with its Applications for Payment as noted below. The County's review and approval of the Progress Schedule updates shall be a condition precedent to the County's obligation to pay Contractor.

3.3. Prior to submitting its first Application for Payment, Contractor shall submit to the County for its review and approval a schedule of values for the Project (herein “Schedule of Values”) based upon the Contract Amount and Progress Schedule listing the major elements of the Work and the dollar value for each element, which shall be used as the basis for the Contractor's Applications for Payment. This Schedule of Values shall be updated as necessary and approved by the County to reflect approved adjustments to the Contract Amount and Contract Time. The Schedule of Values shall be submitted with each Application for Payment as noted below. Unless otherwise agreed to in writing, no voluntary acceleration or early completion of the Work shall modify the time of payments to Contractor as set forth in the approved Schedule of Values.

Section 4. PROGRESS PAYMENTS.

4.1. Contractor may request payment by the submission of an Application for Payment in the form attached as Exhibit D. Contractor shall submit a completed and notarized copy of each Application for Payment on or before the 25th day of each month for work performed during the previous month. Applications received after the 25th day of each month shall be considered for payment as part of the next month's Application. The first Application for Payment shall be submitted no earlier than thirty (30) calendar days after the Commencement Date.

4.2. Each Application for Payment shall be accompanied by the Schedule of Values, Progress Schedule, and an executed and notarized Release and Affidavit in the form attached as Exhibit E, showing that all materials, labor, equipment, and other bills associated with that portion of the Work for which payment is being requested have been paid in full. The County shall not be required to make payment until and unless the required documentation is furnished by Contractor.

4.3. If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location agreed to by the County in writing, the Application for Payment will subdivide the work into component parts in sufficient detail to serve as the basis for a progress payment and shall also be accompanied by a bill of sale, invoice, or other documentation warranting that upon payment by County, the County shall receive the materials and equipment free and clear of all liens, charges, security interests, and encumbrances, together with evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect the County's interest therein, all of which shall be subject to the County's prior written approval.

4.4. If an Application for Payment is approved, in whole or in part, the County will remit payment within twenty-five (25) business days after the date the Application is stamped as received. Provided, however, in no event will the County be obligated to pay an amount greater than that portion of the Application for Payment approved by the County.

If an Application for Payment does not meet the requirements of the Contract Documents, the County will reject the Application, in whole or in part, within twenty (20) business days after the date the Application is stamped as received indicating, in writing, the reason for refusing to approve payment. In the event of a total or partial rejection, the Contractor may make the necessary corrections and resubmit the Application for Payment.

If the revised Application is approved, in whole or in part, the County will remit payment within ten (10) business days after the date the revised Application is stamped as received. If the revised Application does not meet the requirements of the Contract Documents, the County will reject the revised Application, in whole or in part, within ten (10) business days after the date the revised Application is stamped as received indicating, in writing, the reason for refusing to approve payment. In the event of a total or partial rejection, the Contractor may make the necessary corrections and resubmit the Application for Payment as provided above.

4.5. Dispute Resolution Procedure. If a revised Application for Payment is rejected by the County, in whole or in part, the Contractor may submit a written request to the County Administrator, 221 Palafox Place, Suite 420, Pensacola, Florida 32502, for an administrative decision within two (2) business days of receiving notice of rejection. Within five (5) business days after receiving the request, the County Administrator will render a decision and provide written notice to the Contractor.

If the administrative decision is disputed, the Contractor may submit a written request to the County Administrator, 221 Palafox Place, Suite 420, Pensacola, Florida 32502, for an administrative hearing before the Dispute Resolution Committee (DRC) within two (2) business days of receiving said decision. A hearing shall be scheduled within ten (10) business days from the date the request is received, and the Contractor will be provided with written notice of the hearing date. The DRC may, within its discretion, render a decision at the hearing or may elect to mail a written decision to the Contractor within a period not to exceed two (2) business days from the hearing date. The DRC’s decision shall be considered administratively final.

County shall retain ten percent (10%) of the gross amount of each monthly payment request or ten percent (10%) of the portion thereof approved by the County for payment, whichever is less. Such sum shall be accumulated and not released to Contractor until completion of the Project as provided in Section 19. Any interim interest on such sums shall accrue to County. At the County’s sole discretion, a percentage of the amount retained from the gross amount of each monthly payment may be reduced prior to completion of the Project and said percentage released to the Contractor upon receiving a certificate of substantial completion and approval from the Architect/Engineer.

b) If the Contract Amount is in excess of $200,000.00, the following shall apply:

County shall retain five percent (5%) of the gross amount of each monthly payment request or five percent (5%) of the portion thereof approved by the County for payment, whichever is less. Such sum shall be accumulated and not released to Contractor until completion of the Project as provided in Section 19. Any interim interest on such sums shall accrue to County. At the County’s sole discretion, a percentage of the amount retained from the gross amount of each monthly payment may be reduced prior to completion of the Project and said percentage released to the Contractor upon receiving a certificate of substantial completion and approval from the Architect/Engineer. This subsection shall not apply if the Project is paid, in whole or in part, with federal funds and subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act.

4.7. Monthly payments to Contractor, including the release of any portion or percentage of sums retained prior to final completion of the Project, shall in no way imply approval or acceptance of Contractor's Work. The County shall not pay or release any amounts that are the subject of a good faith dispute, claim, or demand.

4.8. Applications for Payment will not be approved unless all submittals required by the Contract documents, up to that point, are provided and “As-Built” record documents are maintained as required by Section 8 herein.

4.9. All payments under this Agreement and interest on any late payments shall be governed by the Local Government Prompt Payment Act, §§ 218.70, et seq., Florida Statutes, as amended.

Section 5. PAYMENTS WITHHELD. The Architect/Engineer or County may decline to approve any Application for Payment, or portions thereof, because of subsequently discovered evidence or subsequent inspections. The Architect/Engineer or County may nullify the whole or any part of any approval for payment previously issued and County may withhold any payments otherwise due Contractor under this Agreement or any other agreement between County and Contractor, to such extent as may be necessary in the County's opinion to protect it from loss because of: (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials, or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents. If these conditions are not remedied or removed, County may, after seven (7) calendar days written notice, rectify the same at Contractor's expense. County also may offset against any sums due Contractor the amount of any liquidated or unliquidated obligations of Contractor to County, whether relating to or arising out of this Agreement or any other agreement between Contractor and County.

Section 6. FINAL PAYMENT.

6.1. County shall issue final payment to Contractor within thirty (30) calendar days after the Work is finally inspected and accepted by County and the Architect/Engineer in accordance with Section 19 herein, provided that Contractor first, and as an explicit condition precedent to the accrual of Contractor's right to final payment, shall have furnished County with all documentation that may be required by the Contract Documents or the County.

6.2. Contractor's acceptance of final payment shall constitute a full waiver of any and all claims by Contractor against County arising out of this Agreement or otherwise relating to the Project, except those previously made in writing and identified by Contractor as unsettled at the time of the final Application for Payment. Neither the acceptance of the Work nor payment by County shall be deemed to be a waiver of County's right to enforce any obligations of Contractor hereunder or to the recovery of damages for defective Work not discovered by the Architect/Engineer or County at the time of final inspection.

Section 7. SUBMITTALS AND SUBSTITUTIONS.

7.1. Contractor shall carefully examine the Contract Documents for all requirements for approval of materials to be submitted such as shop drawings, data, test results, schedules, and samples. When submitted for the County’s review, Shop Drawings shall bear the Contractor’s certification that the Contractor has reviewed, checked, and approved the Shop Drawings and that they are in conformance with the requirements of the Contract Documents. Contractor shall submit all such materials at its own expense and in such form as required by the Contract Documents in sufficient time to prevent any delay in the delivery of such materials and the installation thereof.

7.2. Prior to submitting its first Application for Payment, Contractor shall provide the County with digital photographs via electronic mail, USB flash drive, secure file sharing link, or other form of electronic transmission showing any pre-existing conditions located within the worksite and the Project area as a whole.

7.3. When materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function, and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by County if sufficient information is submitted by Contractor to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted from anyone other than Contractor, and all such requests must be submitted by Contractor within thirty (30) calendar days after the Contractor receives the Notice to Proceed.

7.4. If Contractor wishes to furnish or use a substitute item of material or equipment, Contractor shall make application to the County for acceptance thereof, certifying that the proposed substitute shall perform adequately the functions and achieve the results called for by the general design, be similar and of equal substance to that specified, and be suited to the same use as that specified. The application shall state that the evaluation and acceptance of the proposed substitute will not prejudice Contractor's achievement of substantial completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with County for the Project) to adapt the design to the proposed substitute, and whether or not incorporation or use by the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair, and replacement service shall be indicated. The application also shall contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs for redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the County in evaluating the proposed substitute. The County may require Contractor to furnish at Contractor's expense additional data about the proposed substitute.

7.5. When a specific means, method, technique, sequence, or procedure of construction is indicated in or required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, sequence, technique, or procedure of construction acceptable to the County, if Contractor submits sufficient information to allow the County to determine that the substitute proposed is equivalent to that indicated or required by the Contract Documents. The procedures for submission to and review by the County shall be the same as those provided herein for substitute materials and equipment.

7.6. The County shall be allowed a reasonable time within which to evaluate each proposed substitute. The County shall be the sole judge of acceptability, and no substitute will be ordered, installed, or utilized without the County's prior written acceptance, which shall be evidenced by either a Change Order or an approved Shop Drawing. The County may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute.

Section 8. DAILY REPORTS, AS-BUILTS, AND MEETINGS.

8.1. Unless waived in writing by the County, along with each Application for Payment, Contractor shall submit to the County, on a monthly basis, a daily log of the Contractor's Work for the preceding month in a format approved by the County. The daily log shall document all activities of Contractor at the Project site including, but not limited to, the following:

The daily log shall not constitute or take the place of any notice required by Contractor to County or Architect/Engineer pursuant to the Contract Documents.

8.2. Contractor shall maintain in a safe place at the Project site one record copy of the Contract Documents, as well as all shop drawings and other Contractor submittals and all written interpretations and clarifications issued by the County or the Architect/Engineer, in good order and annotated to show all changes made during the Project. The annotated drawings shall be continuously updated by the Contractor throughout the prosecution of the Work to accurately reflect all field changes that are made to adapt the Work to field conditions, changes resulting from Change Orders, Work Directive Changes and Field Orders, and all concealed and buried installations of piping, conduit, and utility services. All buried and concealed items, both inside and outside the Project site, shall be accurately located on the annotated drawings as to depth and in relationship to not less than two (2) permanent features (e.g. interior or exterior wall faces). The annotated drawings shall be clean, and all changes, corrections, and dimensions shall be given in a neat and legible manner in a contrasting color. The "AsBuilt" record documents, together with all approved samples and a counterpart of all approved shop drawings shall be available to County for reference. Upon completion of the Work, and as a condition precedent to Contractor's entitlement to final payment, Contractor shall deliver the "As-Built" record documents, samples, and shop drawings to the County.

8.3. Contractor shall keep all records and supporting documentation which concern or relate to the Work hereunder for a minimum of five (5) years from the date of termination of this Agreement or the date the Project is completed, whichever is later. County, or any duly authorized agents or representatives of County, shall have the right to audit, inspect, and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the five (5) year period noted above; provided, however, such activity shall be conducted only during normal business hours.

Section 9. CONTRACT TIME AND TIME EXTENSIONS.

9.1. Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and materialmen, as well as coordinating its Work with all work of others at the Project Site, so that its Work or the work of others shall not be delayed or impaired by any act or omission of Contractor. Contractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures, as well as coordination of all portions of the Work under the Contract Documents.

9.2. Should Contractor be obstructed or delayed in the prosecution of or completion of the Work as a result of unforeseeable causes beyond the control of Contractor, and not due to its fault or neglect, including but not restricted to acts of God or of the public enemy, acts of government, fires, floods, epidemics, quarantine regulations, strikes or lockouts, Contractor shall notify the County in writing within forty-eight (48) hours after the commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which Contractor may have had to request a time extension. Any additional supporting data with specific details of Work which was delayed shall be submitted to the County within ten (10) business days after the occurrence of the delay, unless the County grants additional time in writing for such submittals, or else the Contractor shall be deemed to have waived any right which Contractor may have had to request a time extension.

9.3. No interruption, interference, inefficiency, suspension, or delay in the commencement or progress of the Work from any cause whatsoever, including those for which County may be responsible, in whole or in part, shall relieve Contractor of its duty to perform or give rise to any right to damages or additional compensation from County. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if any, against County will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion.

9.4. Requests for delays due to adverse weather conditions must meet all of the following conditions:

Section 10. CHANGES IN THE WORK.

10.1. The County shall have the right at any time during the progress of the Work to increase or decrease the Work. After being notified of a change, Contractor shall promptly submit an itemized estimate of any cost or time increases or decreases it foresees as a result of the change. Except in an emergency endangering life or property or as expressly set forth herein, no addition or changes to the Work shall be made except upon written order of County, and the County shall not be liable to the Contractor for any increased compensation without such written order. No officer, employee, or agent of the County is authorized to orally direct any changes in the Work.

10.2. A Change Order, in the form attached as Exhibit F to this Agreement, shall be issued and executed after an agreement is reached between the Contractor and County. Contractor shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount shall be adjusted in the Change Order as mutually agreed to by the parties.

10.3. If the County and Contractor are unable to agree on a Change Order for the requested change, Contractor shall, nevertheless, promptly perform the change as directed by County in a written Work Directive Change. In that event, the Contract Amount and Contract Time shall be adjusted as directed by the County. If Contractor disagrees with the County's adjustment determination, Contractor must make a claim pursuant to Section 11 herein or else be deemed to have waived any claim on this matter.

10.4. In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the Contractor's reasonable direct labor and material costs and reasonable actual equipment costs as a result of the change (including allowance for labor burden costs) plus a maximum ten percent (10%) markup for all overhead and profit. In the event such Work is performed by a subcontractor, a maximum ten percent (10%) markup for all overhead and profit for all subcontractors' and sub-subcontractors' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (5%) markup thereon by the Contractor for all of its overhead and profit, for a total maximum markup of fifteen percent (15%). All compensation due Contractor and any subcontractor or sub-subcontractor for field and home office overhead is included in the markups noted above.

10.5. The County shall have the right to conduct an audit of Contractor's books and records to verify the accuracy of the Contractor's claim with respect to Contractor's costs associated with any Change Order.

10.6. The County shall have the authority to order minor changes in the Work not involving an adjustment to the Contract Amount and not inconsistent with the intent of the Contract Documents. Such changes may be affected by Field Order or by other written order. Such changes shall be binding on the Contractor.

Section 11. CLAIMS AND DISPUTES.

11.1. A Claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, extension of time, or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between County and Contractor arising out of or relating to the Contract Documents.