Appendix II - Agreement.pdf

FDACS-01577 Rev. 05/26

FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

CONSTRUCTION PROJECT AGREEMENT

BETWEEN OWNER AND CONTRACTOR

FDACS PROJECT NO: 1116

SOLICITATION NO: ITB DOA 26 27 40

STATE FLAIR CODES: 4210############

Org Code and EO: #### Category: ######, Year: ####/##

PROJECT NAME AND LOCATION: Conner Lab Corridor Structural Improvement 3125 Conner Blvd.

Tallahassee, Florida 32399

CONTRACTOR: Name Mailing Address City, State Zip Code

ARCHITECT-ENGINEER: Architects Lewis + Whitlock 206 West Virginia St.

Tallahassee, Florida 32301

CONSTRUCTION PROJECT AGREEMENT BETWEEN OWNER AND CONTRACTOR

THIS CONSTRUCTION PROJECT AGREEMENT (Agreement) for Construction Services is made and entered into on ______________________________, by and between the Florida Department of Agriculture and Consumer Services, hereinafter called the Owner, and

Contract Name Mailing Address City, State Zip Code

FEDERAL TAX ID NUMBER: ##-######

hereinafter called the Contractor.

ARTICLE 1: THE PROJECT TEAM AND EXTENT OF AGREEMENT

The Contractor accepts the relationship of trust and confidence established with the Owner by this Agreement, covenants with the Owner to furnish its best skill and judgment and to cooperate with the Architect-Engineer in furthering the interests of the Owner. The Contractor agrees to furnish efficient business administration and superintendence, and to use its best efforts to complete the Project in the most sound, expeditious, and economical manner consistent with the interest of the Owner and the terms of this Agreement.

1.1 THE PROJECT TEAM

The Contractor, the Owner, and the Architect-Engineer, called the Project Team, shall work jointly through final construction completion and shall be available thereafter should additional services be required. The Architect- Engineer will provide leadership on technical matters relating to design and the Contractor shall provide leadership to the Project Team on all matters relating to construction with support from the Owner.

The specific representatives of the Project Team are shown in Exhibit A, attached.

1.2 EXTENT OF AGREEMENT

This agreement entered into between the Owner and the Contractor is for the completion of the Conner Lab Corridor Structural Improvement (Project No. 1116) (Project), and supersedes any prior negotiations, representations, or agreements not included or incorporated into this Agreement. The following documents are incorporated into and made part of this Agreement: (i) Appendix I – 100% Construction Documents (Construction Documents and/or Specifications); (ii) Florida Department of Agriculture and Consumer Services ITB DOA 26 27 40 dated _______________________ (Bid Solicitation); and (iii) Contractor’s response and bid submission for ITB DOA 26 27 40 (Bid Submission) together with the Bid Solicitation are collectively referred to herein as the (Bid Documents). Any reference herein to a document (including this Agreement) is to that document as duly modified or amended from time to time. By executing this Agreement, the Owner and contractor each acknowledge and agree to all requirements herein.

This Agreement may be amended only by written instrument signed by both Owner and Contractor, except that the Construction Documents and Specifications may be amended by the Architect-Engineer in accordance with Article 3.6 hereof. In the event of a conflict or inconsistency between any of the documents referenced in this Article 1.2, the controlling document(s) in order of precedence will be:

(1) This Agreement (including all attachments and exhibits attached hereto),

(2) Construction Documents and/or Specifications,

(3) Bid Solicitation, and

(4) Bid Submission.

1.3 DEFINITIONS

Architect-Engineer – The Architect-Engineer shall be the Owner’s designated representative for all design and technical matters, who will issue instructions to the Contractor and will assist in administering of this Agreement. The Architect-Engineer’s interpretations and decisions shall be final regarding the Construction Documents and Specifications, provided that any changes to the Construction Documents or Specifications are effectuated pursuant to Article 3.6 hereof or by change order in accordance with Article 8.1 hereof. If no Architect-Engineer is listed in

Exhibit A to this Agreement, then the Owner will deal directly with the Contractor in the administering of this Agreement.

Contractor – The Contractor, responsible for the Project, shall be the single point of interface for all work trades and subcontractors for the duration of the Project. For the purposes hereunder, the Contractor (as well as its employees, contractors, subcontractors, etc.) is an independent contractor, and is not and shall not by its performance hereunder be deemed or construed under any circumstance to be an employee, agent, representative, or servant of the Owner or the State of Florida.

Cost of the Project – Costs set forth in Articles 7.1.2 and 7.1.3 which are incurred by Contractor and directly related to the Project.

Final Completion – Work on the Project has progressed to a stage where the Project is fully and finally complete in accordance with this Agreement, as determine and certified in writing by the Architect-Engineer and the Owner.

Notice to Proceed – The term Notice to Proceed shall mean a written work order based on a defined scope of work prepared by the Project Manager and issued to the Contractor. The Notice to Proceed shall be issued upon or after the execution date of this Agreement and all work performed pursuant to the Notice to Proceed shall be included in the amount set forth in the Construction Contract Price identified in Exhibit B.

Owner – The State of Florida, Department of Agriculture and Consumer Services, acting through its Commissioner or those persons designated by the Commissioner to act in its behalf. The entity that will occupy, use, and own the Project upon Substantial Completion is the Owner. The funds with which the compensation for work performed in connection with the Project will be paid are under the control of the Owner, based on approval of each payment by the Division of Administration, Florida Department of Agriculture and Consumer Services. All duties of the Owner hereinafter shall be performed by the Florida Department of Agriculture and Consumer Services.

Owner’s Representatives – The Project Manager and their superiors or designees.

Permitting Authority – The local authority with jurisdiction over the area in which the Project is located.

Project – The Project is the total and sum of all work to be performed by the Contractor and its subcontractors under this Agreement. The Project consists of all permitting, construction services and work, and code inspections necessary to fully complete the (insert name and number of project) under this Agreement and for the amount set forth in Exhibit B.

Project Manager – The person designated by the Owner to provide direct interface with the Contractor with respect to the Owner’s responsibilities. (See Exhibit A.)

State – The State of Florida.

Substantial Completion – Work on the Project has progressed to the stage where (i) the Project, including mechanical, electrical, and equipment installations, can be occupied or used by the Owner for its intended purpose;

(ii) any remaining work can be done without interfering with the Owner’s use; and (iii) formal instruction on all major equipment operation and maintenance, both verbal and written, along with As-Built reproducible drawings have been given to the Owner. The Architect-Engineer will issue a certificate of Substantial Completion in the form of Exhibit E in accordance with Article 2.2.9(8) hereof.

ARTICLE 2: CONTRACTOR’S SCOPE OF WORK

The Contractor is responsible for fully and satisfactorily completing the Project, which shall include, but is not limited to, those services described or specified herein. The services described or specified shall not be deemed to constitute an exhaustive specification with the intended purpose or effect of excluding services or responsibilities not specifically mentioned. The Owner and Contractor acknowledge and agree that the Owner is contracting with the Contractor to perform or cause to be performed all work and services necessary to complete the Project.

2.1 GENERAL

The Contractor represents and warrants that it has thoroughly reviewed this Agreement and all other documents related to the Project made available by the Owner and/or Architect-Engineer; visited and thoroughly inspected the Project site and familiarized itself with local conditions under which the Project will be constructed and operated;

familiarized itself with surveys or other As-Built drawings that indicate the location of existing buildings, streets, utilities, equipment, components, conditions, and other attributes having or likely to have an impact on the Project;

familiarized itself with pertinent Project dates, the Project schedule and any special requirements; and gathered any other information necessary for a thorough understanding of the Project.

If the Project involves modifications to any existing structure(s) on the Project site, the Contractor represents that it has also reviewed all plans, specifications, record drawings, and As-Built drawings applicable to the Project and has thoroughly inspected existing conditions at the Project site to identify any deficiencies. Claims by the Contractor resulting from the Contractor’s failure to familiarize itself with the Project site or pertinent documents shall be deemed waived.

2.2 CONSTRUCTION

2.2.1 Contractor’s Staff

The Contractor shall maintain sufficient off-site support staff and competent full-time staff at the Project site authorized to act on behalf of the Contractor to coordinate, inspect, and provide general direction of the work and progress of the subcontractors and shall provide no less than those personnel during construction that are set forth in Exhibit C to this agreement. The Contractor shall not change any of those persons names in Exhibit C unless mutually agreed to by the Owner and Contractor. In such case, the Owner shall have the right of approval of the qualifications of replacement personnel. Such approval will not be unreasonably withheld. The Owner also retains the right to review the need and effectiveness of any employee or employees assigned by the Contractor, should the Project Manager question the need for the employee or employees.

The Contractor shall supervise and direct work at the project site. The Contractor shall, at a minimum, staff the project with personnel who shall:

(1) supervise and coordinate the Contractor’s personnel and act as its primary liaison with the Owner and Architect-Engineer.

(2) coordinate trade contractors and suppliers, and supervise site construction services;

(3) be familiar with all trade divisions and trade contractor’s scopes of work, all applicable building codes, and this Agreement;

(4) check, review, and coordinate shop drawings and materials delivered to the site, regularly review all work on the Project to determine its compliance with this Agreement, and periodically confer with the Architect-Engineer and Owner to assure acceptable levels of quality;

(5) prepare and maintain Project records, including process documents;

(6) schedule and conduct weekly progress meetings with subcontractors to review such matters as job site safety, job procedures, schedule, construction project, shop drawing status, and other information as necessary;

(7) schedule and conduct bi-weekly or monthly progress meetings with the Owner and Architect- Engineer to review such matters as construction progress, schedule, and other information as necessary; and

(8) make provision for Project security to protect the project site and materials stored off-site against theft, vandalism, fire, and accidents.

2.2.2 Lines of Authority

The Contractor shall establish and maintain lines of authority for their personnel and shall provide a description of such lines of authority to the Owner and all other affected parties such as the code inspectors of the Permitting Authority, the subcontractors, the Architect-Engineer, and the Owner’s representatives, to provide general direction of the work and progress of the various phases and subcontractors. The Owner and Architect-Engineer may attend meetings between the Contractor and its subcontractors; however, such attendance shall not diminish either the authority or responsibility of the Contractor to administer the subcontractor.

2.2.3 Schedule Provisions

The Contractor shall provide subcontractors and the Owner, its representatives, and the Architect-Engineer with copies of the project schedule based on the deadlines for Substantial Completion and Final Completion provided herein and all construction progress must be updated monthly as required by the Owner. Further, such schedule must be expanded for the construction period, setting forth all milestones, beginning and finishing dates, subcontractor and supplier responsibilities for performance, and the relationships of their work to the balance of the Project. The Contractor shall also continue to provide current scheduling information and provide direction and coordination regarding milestones, beginning and finishing dates, responsibilities for performance, and the relationships of the work of the subcontractors and suppliers to the Project to enable them to perform their respective tasks so that the development of the construction progresses in a smooth and efficient manner in conformance with the overall project schedule. The schedule shall include all phases of the construction work, material supplies, long lead procurement, approval of shop drawings, change orders in progress, schedules for change orders, and performance testing requirements.

They shall advise the Owner, its representatives, and the Architect-Engineer of their requested participation in any meeting or inspection giving each at least one-week notice unless such notice is made impossibly by conditions beyond their control. They shall hold job-site meetings at least once each month with the Project Team and at least once each week with the subcontractors, or more frequently as required by work progress, to review progress discuss problems and their solutions, and coordinate future work with all subcontractors.

The Contractor shall cause its subcontractors and suppliers to comply with the project schedule and applicable sub-schedules. The Contractor shall obtain and review schedules from subcontractors and suppliers, coordinate sub-schedules with the overall project schedule, and enforce compliance with all applicable schedules to ensure timely completion of the Project. If at any time the Project is delayed, then (i) the Owner will have all rights set forth herein, as well as all remedies at law or in equity, and (ii) the Contractor shall immediately notify the Owner of the probable cause(s) and possible alternatives and make recommendations to minimize expense and/or delay to the Owner.

2.2.4 Bonds

In accordance with the provisions of Section 255.05, Florida Statutes (F.S.), the Contractor shall provide to the Owner, a 100% Performance Bond and a 100% Labor and Material Payment Bond (collectively, Bonds) each (i) issued by a Surety Company (Surety Company) acceptable to the Owner, and (ii) in an amount no less than the Contract Price.

To be acceptable to the Owner, the Contractor shall provide Bonds issued by a Surety Company that complies with the following provisions:

(1) The Surety Company shall have a currently valid Certificate of Authority issued by the State of Florida, Department of Financial Services, Office of Insurance Regulation, authorizing it to write surety bonds in the State of Florida.

(2) The Surety Company shall have a currently valid Certificate of Authority issued by the United States

Department of Treasury under Sections 9304 to 9308 of Title 31 of the United State Code.

(3) The Surety Company shall be in full compliance with the provisions of the Florida Insurance Code.

(4) The Surety Company shall have at least twice the minimum surplus and capital required by the

Florida Insurance Code at the time the invitation to bid is issued.

(5) If the Contract Price exceeds $500,000, the Surety Company shall also comply with following provision:

(A) The Surety Company shall have at least the following minimum ratings in the latest issue of Best’s Key Rating Guide.

CONTRACT PRICE

POLICY HOLDER’S

RATING

REQUIRED

FINANCIAL RATING

$500,000 TO $1,000,000 A- CLASS I

$1,000,000 TO $2,000,000 A- CLASS II

$2,000,000 TO $5,000,000 A- CLASS III

$5,000,000 TO $10,000,000 A- CLASS IV

$10,000,000 TO $25,000,000 A- CLASS V

$25,000,000 TO $50,000,000 A- CLASS VI

$50,000,000 TO $100,000,000 A- CLASS VII

(B) The Surety Company shall not expose itself to any loss on any one risk in an amount exceeding ten percent (10%) of its surplus to policyholders, provided:

1. Any risk or portion of any risk being reinsured shall be deducted in determining the limitation of the risk as prescribed in this section, provided that the reinsuring carrier is authorized to do such business by the State of Florida, Department of Financial Services, Office of Insurance Regulation.

2. In the case of the surety insurance company, in addition to the deduction for reinsurance, the amount assumed by any co-surety, the value of any security deposited, pledged, or held subject to the consent of the surety and for the protection of the surety, shall be deducted.

Further the Contractor shall submit the Bond to the Owner in the form set forth below and ensure that no deviations from this form are made:

PUBLIC CONSTRUCTION BOND

BY THIS BOND, We ______________, as Principal and ________________, a corporation, as Surety, are bound to the Florida Department of Agriculture and Consumer Services, herein called Owner, in the sum of $__________________, for payment of which we bind ourselves, our heirs, personal representatives, successors, and assigns, jointly and severally.

THE CONDITION OF THIS BOND is that if Principal:

1. Performs the contract dated __________________, _______, between

Principal and Owner for construction of ___________________________________, the contract being made a part of this bond by reference, at the times and in the manner prescribed in the contract; and

2. Promptly makes payments to all claimants, as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials, or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the contract; and

3. Pays Owner all losses, damages, expenses, costs, and attorney’s fees, including appellate proceedings, that Owner sustains because of a default by Principal under the contract; and

4. Performs the guarantee of all work and materials furnished under the contract for the time specified in the contract, then this bond is void; otherwise, it remains in full force.

Any action instituted by a claimant under this bond for payment must be in accordance with the notice and time limitation provisions in Section 255.05(2), Florida

Statutes.

Any changes in the contract documents and compliance or noncompliance with any formalities under the contract connected with the changes does not affect Surety’s obligation under this bond.

DATED ON _________________, _________.

(Name of Principal)

BY (As Attorney in Fact)

(Name of Surety)

2.2.5 Quality Control

The Contractor shall develop and maintain a program, acceptable to the Owner and Architect-Engineer, to assure quality control of the construction. The Contractor shall supervise the work of all subcontractors and provide instructions to each when their work does not conform to the requirements of this Agreement and the Contractor shall continue to exert its influence and control over each subcontractor to ensure that corrections are made in a timely manner so as not to affect the efficient progress of the work. The Contractor shall promptly reject any work: which is defective (whether by reason of defective materials, workmanship, or both); which does not conform to this Agreement (including the Construction Documents and Specifications); or which does not comply with any applicable law, statute, building code, rule, or regulation or any public authority or agency. Should disagreement occur between the Contractor, the Owner, or the Architect-Engineer over acceptability of work, the Owner shall be the final judge of acceptability. The acceptance of any work by the Owner will not preclude the subsequent rejection thereof if such work is found to be defective after installation.

2.2.6 Subcontractor Interfacing

The Contractor shall be the single point of interface with all subcontractors for the Owner and all of the Owner’s agents and representatives for the Project including the Architect-Engineer. The Contractor shall review the costs of all change orders and requests for proposals with all affected subcontractors and advise the Owner and Architect-Engineer of their validity and reasonableness, acting in the Owner’s best interest prior to requesting written approval of each change order from the Owner. Before any work is begun on any change order, a written authorization from the Owner must be issued. However, when health and safety are threatened, the Contractor shall act immediately and reasonably to remove the threat to health and safety.

They shall also carefully review all shop drawings and then forward the same to the Architect-Engineer for review and actions. The Architect-Engineer will transmit them back to the Contractor who will then issue the shop drawings to the affected subcontractor for fabrication or revision. The Contractor shall maintain a suspense control system to promote expeditious handling. The Contractor shall request the Architect- Engineer to make interpretations of the drawings or specifications requested by the subcontractors and shall maintain a suspense control system to promote timely response. The Contractor shall advise the Project Manager and Architect-Engineer when timely response is not occurring on any of the above.

2.2.7 Permits

The Contractor shall secure all necessary building permits from the Permitting Authority and all necessary utility connection permits, the cost of which will be considered a direct cost item.

2.2.8 Job Site Requirements

(1) The Contractor shall provide for each of the following activities as part of the Contract Price:

(A) Maintain a log of daily activities, including manpower records, weather, delays, major decisions, etc.

(B) Maintain a roster of companies on the Project with names and telephone numbers of key personnel.

(C) Establish and enforce job rules governing parking, clean-up, use of facilities, and worker discipline.

(D) Provide labor relations management for a harmonious, productive project.

(E) Provide a safety program for the Project to meet OSHA requirements. Monitor for subcontractor compliance without relieving them of responsibilities to perform work in accordance with the best acceptable practice.

(F) Provide a quality control program as developed under Article 2.2.5 hereinabove.

(G) Provide miscellaneous office supplies that support the construction efforts which are used by the Contractor’s own forces.

(H) Any other activities applicable to the job site and required hereunder to be performed by the Contractor.

(2) The Contractor shall provide personnel and equipment or shall arrange for separate subcontracts to provide each of the following as a direct cost item:

(A) Schedule the services of independent testing laboratories and provide the necessary testing of materials to ensure conformance to contract requirements.

(B) The printing and distribution of all required bidding documents and shop drawings, including the sets required by the Permitting Authority’s inspectors.

(C) Any other materials or services required hereunder and applicable to personnel, equipment, or separate subcontracts.

2.2.9 Job Site Administration

The Contractor shall provide as part of their contract price, job site administrative functions during construction to assure proper documentation including, but not limited to, such things as the following:

(1) Job Meetings – Hold weekly progress and coordination meetings to provide for an easy flowing project. Implement procedures and assure timely submittals, expedite processing approvals, and return of shop drawings, samples, etc. Coordinate and expedite critical ordering including delivery of materials, work sequences, inspection and testing, labor allocation, etc. Review and coordinate each subcontractor’s work. Review and implement revisions to the project schedule. Monitor and promote safety requirements. In addition, regular project status meetings will be held between the Architect- Engineer, Owner, and Contractor either biweekly or monthly, whichever is designated by the Project Manager.

Use the job site meeting as a tool for pre-planning of work and enforcing schedules and for establishing procedures, responsibilities, and identification of authority for all to clearly understand.

Identify person(s) responsible for follow-up on any problems, delayed items, or questions, and record course for solution. Revisit each pending item at each subsequent meeting until resolution is achieved. Require all present to make any problems or delaying events known to those present for appropriate attention and resolution.

(2) Shop Drawing Submittals/Approvals – Provide staff to check shop drawings and to implement procedures for submittal and transmittal to the Architect-Engineer of such drawings for action, and closely monitor their submittal and approval process.

(3) Material and Equipment Expediting – Provide staff to closely monitor material and equipment deliveries, perform quality control checking, and implement follow-up procedures on supplier commitments of all subcontractors.

(4) Payments to Subcontractors – Develop and implement a procedure for review, processing, and payment of applications by subcontractors for progress and final payments.

(5) Document Interpretation – Refer all questions for interpretation of the documents prepared by the

Architect-Engineer to the Architect-Engineer.

(6) Reports and Project Site Documents – Record the progress of the Project. Submit monthly written progress reports to the Owner and the Architect-Engineer summarizing the progress of the Project, including information on the subcontractor’s work; the percentage of completion; schedule updates;

and digital progress photographs, logs for Request for Information, Change Orders, submittals/shop drawings, and deficiencies. Keep a daily log available to the Owner, the Architect-Engineer, and the Permitting Authority inspectors.

(7) Subcontractor’s Progress – Prepare periodic punch lists for subcontractor’s work including unsatisfactory or incomplete items and schedules for their completion.

(8) Substantial Completion – Ascertain when the work or designated portions thereof are ready for the

Owner’s and Architect-Engineer’s Substantial Completion inspection. Upon written request to Project Team, the Project Team will establish an agreed date to conduct an on-site Substantial Completion inspection of the Project in accordance with this Agreement.

Following the on-site Substantial Completion inspection by the Project Team, if the Owner and Architect-Engineer determine that Substantial Completion has been achieved in accordance with Construction Documents, the Architect-Engineer will submit a certificate of Substantial Completion to the Owner for review and approval. Then a certificate of Substantial Completion (see Exhibit E) and punch list of incomplete or unsatisfactory items will be issued to Contractor.

From the Architect-Engineer’s punch list of incomplete or unsatisfactory items, within forty-five (45) days, Contractor shall prepare a schedule for their completion indicating completion dates along with the estimated cost to complete each item for the Owner’s review and approval. The estimated cost to complete each item on the punch list will be described in detail and developed in coordination with the Project Team with final approval by the Owner.

(9) Final Completion – Monitor the subcontractor’s performance on the completion of the Project and provide notice to the Owner and Architect-Engineer that the work is ready for final inspection. Secure and transmit to the Owner, through the Architect-Engineer, all required guarantees, affidavits, releases, bonds and waivers, manuals, record drawings, and maintenance books including the Final Completion form shown in Exhibit F.

(10) Start-Up – With the Owner’s personnel, direct the checkout of utilities, operations, systems, and equipment for readiness and assist in their initial start-up and testing by the trade subcontractors.

(11) Record Drawings – During the progress of the work, the Contractor shall require the plumbing, utility, sitework, air conditioning, heating, ventilating, elevator, and electrical subcontractors to record on their field sets of drawings the exact locations, as installed, of all conduits, pipe, and duct lines whether concealed or exposed which were not installed exactly as shown on the contract drawings.

The Contractor shall also record all drawing revisions that have been authorized by Change Order that affect wall or partition locations, door and window locations, and other template changes. The exact routing of conduit runs shall be shown on these drawings.

Each drawing shall be noted “As-Built” and shall bear the date and name of the subcontractors that performed the work. Where the work was installed exactly as shown on the contract drawings, the sheets shall not be disturbed except as noted above.

The Contractor shall review the completed As-Built drawings and ascertain that all data furnished on the drawings are accurate and truly represent the work as actually installed. When manholes, boxes, underground conduits, plumbing, hot or chilled water lines, inverts, etc. are involved as part of the work, the Contractor shall furnish true elevations and locations, all properly referenced by using the original benchmark used for the institution or for this Project.

2.2.10 Administrative Records

The Contractor will maintain files and records for review by the Owner and Architect-Engineer upon request such as, but not limited to, the following:

Contracts or Purchase Orders Lab Test Reports Shop Drawings Insurance Certificates and Bonds Submittal/Approval Logs Contract Changes Equipment Purchase/Delivery Logs Material Purchase/Delivery Logs Contract Drawings & Specifications w/Addenda Technical Standards Warranties and Guarantees Design Handbooks Cost Accounting Records: As-Built Marked Prints

- Labor Costs Operating & Maintenance Instruction Manuals

- Material Costs Daily Progress Reports

- Subcontractor Payment Monthly Progress Reports

- Exception Report Correspondence Files

- Equipment Costs Transmittal Records

- Cost Proposal Requests Bid/Award Information

- Payment Request Records Punch Lists Meeting Minutes Schedule and Updates Cost-Estimates Suspense Files of Outstanding Requirements

The Project records shall be available at all times to the Owner and Architect-Engineer for reference or review.

2.2.11 Owner Occupancy

The Contractor shall provide services during construction, which will provide a smooth and successful Owner occupancy of the Project. The Contractor shall provide consultation and project management to facilitate Owner occupancy and provide transitional services to get the work, as completed by the Contractor, “online” in such conditions as well as satisfy Owner operational requirements.

The Contractor shall conduct their preliminary punch list inspection and coordinate the completion of all punch list work to be done with Owner occupancy requirements in mind.

The Contractor shall catalog operational and maintenance requirements of equipment to be operated by maintenance personnel and convey these to the Owner in such a manner as to promote their usability. They shall provide operational training in equipment use for building operators.

The Contractor shall secure required guarantees and warranties, assemble, and deliver same to the Owner in a manner that will facilitate their maximum enforcement and assure their meaningful implementation.

The Contractor shall continuously review As-Built drawings and mark up progress prints to provide as much accuracy as possible.

The Owner will not occupy or take control of the Project until the above items discussed in this Article 2.2.11 have been completed and the Substantial Completion, Start-Up, Record Drawing, and Warranty requirements specified in paragraphs 2.2.9(8), 2.2.9(10), 2.2.9(11), and 2.2.12 have been completed to the Owner’s satisfaction excluding the requirements for a warranty inspection specified after Owner Occupancy.

2.2.12 Warranty

Where any work is performed by the Contractor’s own forces or by subcontractors under contract with the Contractor, the Contractor shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in this Agreement, and that such work will be of good quality, free from improper workmanship and defective materials, and in conformance with this Agreement. With respect to the same work, the Contractor further agrees to correct all work found by the Owner to be defective in material and workmanship or not in conformance with this Agreement for a period of one (1) year from the date of Substantial Completion or for such longer periods of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications. The Contractor shall collect and deliver to the Owner any specific written warranties given by others as required by this Agreement. Also, the Contractor shall conduct, jointly with the Owner and Architect-Engineer, a warranty inspection at a specified period of time after the date of Owner Occupancy.

ARTICLE 3: OWNER’S RESPONSIBILITIES

3.1 OWNER’S INFORMATION

The Owner shall cause to be provided full information regarding the Owner’s requirements for the Project.

3.2 OWNER’S REPRESENTATIVE

The Owner shall designate a representative who shall be fully acquainted with the Project and shall define the lines of Owner authority to approve Change Orders. This Owner-designated representative shall render decisions promptly and furnish information expeditiously.

3.3 SITE SURVEY AND REPORTS

The Owner shall provide for the furnishing for the site of the Project all surveys required to complete the Project describing the physical characteristics, soil reports, and subsurface investigations, legal limitations, utility locations, and a legal description.

3.4 EASEMENTS

The Owner shall pay for easements required by governmental authority(ies) for the construction, use, or occupancy of permanent structures or for permanent changes in existing facilities, as part of the Agreement.

3.5 LEGAL SERVICES

The Owner shall furnish such legal services as may be necessary for providing the items set forth in Article 3.4.

3.6 DRAWINGS AND SPECIFICATIONS

The Contractor will be furnished a reproducible set of all copies of Construction Documents and Specifications (including any amendments or modifications thereto) reasonably necessary and ready for printing. The Architect- Engineer may amend the Construction Documents and Specifications from time to time by delivering copies of such amendment(s) to the Contractor and Project Manager (subject only to Owner’s right to reject such amendment(s) upon its review of same).

3.7 COST OF SURVEYS & REPORTS

The services, information, surveys, and reports required by the above paragraphs shall be furnished with reasonable promptness in accordance with the approved schedule at the Owner’s expense, and the Contractor shall be entitled to rely upon the accuracy and completeness thereof.

3.8 PROJECT FAULT DEFECTS

If the Owner becomes aware of any fault or defect in the Project or non-conformance with the Construction Documents and Specifications, prompt written notice shall be given to the Contractor and Architect-Engineer.

3.9 FUNDING

The Owner shall furnish in accordance with the established schedule, reasonable evidence satisfactory to the Contractor that sufficient funds will be available and committed for the Construction Contract Price. The Contractor shall not commence any work unless authorized in writing by the Owner.

3.10 LINES OF COMMUNICATION

The Owner and Architect-Engineer shall communicate with the Contractor’s subcontractors or suppliers only through the Contractor, except with regard to disputed matters arising between the Contractor and the Owner.

3.11 LINES OF AUTHORITY

The Owner shall establish and maintain lines of authority for its personnel and shall provide a description thereof to the Contractor.

ARTICLE 4: PERMITTING AND INSPECTION

Before work on the Project can begin, it is necessary by statute for the Contractor to obtain a Building Permit. In addition, construction will be inspected for quality, code compliance, and compliance with Construction Documents and Specifications by inspectors working for the Permitting Authority. The building permitting and code inspection requirements shall be described in Articles 4.1 through 4.2 hereinafter. The Contractor shall fully cooperate and coordinate with the Permitting Authority during the course of the Project.

For all new construction and modifications to existing state facilities, permits are required per Sections 633.206 and 633.218, F.S.

4.1 BUILDING PERMITS

The Contractor is obligated to obtain and pay for a building permit from the local authority for construction applicable to this State facility and from the State Fire Marshal. The State Fire Marshal has jurisdiction over any new construction, renovations, or alterations to any existing state-owned building or state-leased space in order to ensure compliance with uniform fire safety standards. The State Fire Marshal has jurisdiction of all State facilities.

In the case of building, mechanical, plumbing, electrical, and other internal system permits and connection permits, the Contractor is obligated to obtain such permits and pay such fees.

The Contractor has determined the permits and fees required by any entity having jurisdiction over any part of the Project and has included all costs associated therewith as part of the Contract Price.

4.2 CODE INSPECTIONS

All projects will require detailed code compliance inspections by the local authorities with jurisdiction over the area in which the Project is located. The disciplines normally include, but are not limited to, structural, mechanical, electrical, plumbing, and general building. The Contractor shall make all permits, drawings, specifications, previous inspection reports, and Change Orders (if any) available to code inspectors. The Contractor shall provide a copy of each inspection report to the Architect-Engineer and Owner within five (5) days of the Contractor’s receipt thereof.

ARTICLE 5: SUBCONTRACTS

5.1 DEFINITION

A subcontractor is a person or organization who has a direct contract with the Contractor to perform any of the work at the project site. Nothing contained in this Agreement shall create any contractual relation between the Owner or Architect-Engineer and any subcontractor.

5.2 PROPOSALS

Subject to Article 7, the Contractor shall request and receive proposals from subcontractors and suppliers and will award those contracts to the qualified low bidder after review of each proposal and is satisfied that the subcontractor is qualified to perform the work. The Contractor shall provide to the Owner the Contractor’s List of Subcontractors in the form of Exhibit D attached hereto, which shall list by name and general Project responsibility (trade) each subcontractor who will be utilized by the Contractor to provide goods and services with respect to the Project. The Contractor shall not enter into any agreement with any subcontractor or supplier to which the Owner raises a reasonable, timely objection; and the Contractor shall promptly notify the Owner in writing of any proposed replacements, the reasons therefore, and the name and qualifications of the proposed replacement. The Owner shall have the right, in its reasonable discretion, to reject any proposed replacement.

5.3 REQUIRED SUBCONTRACTORS’ QUALIFICATIONS AND SUBCONTRACT CONDITIONS

5.3.1 Subcontractual Relations

By an appropriate written agreement, the Contractor shall require each subcontractor to the extent of the work to be performed by the subcontractor to be bound to the Contractor by the terms of this Agreement and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by this Agreement, assumes toward the Owner and the Architect-Engineer. Said agreements shall preserve and protect the rights of the Owner and Architect-Engineer under this Agreement with respect to the work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each subcontractor to enter into similar agreements with their sub-subcontractor. Where appropriate, the Construction Manager shall require each subcontractor to enter into similar agreements with their sub-subcontractor and such further subcontractors of any tier.

The Contractor shall make available to each proposed subcontractor, prior to the execution of a subcontract, copies of this Agreement to which the subcontractor will be bound by this Article 5.3 and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with this Agreement. Each subcontractor shall similarly make copies of this Agreement available to his sub-subcontractors.

5.3.2 Subcontract Requirements

(1) On all subcontracts where the bid exceeds $100,000, the Construction Manager shall require subcontractors to provide a 100% performance bond and a 100% labor and material payment bond from a surety company authorized to do business in the State of Florida by the Department of Financial Services, Office of Insurance Regulation. If the Construction Manager wishes to award subcontracts to subcontractors unable to supply this bonding, the Owner’s prior written consent must be obtained.

(2) On all subcontracts where the bid exceeds $200,000.00, each subcontractor must provide proof of their experience to perform the trade and a financial statement to the Contractor. The subcontractors’ financial condition must demonstrate that adequate fixed and liquid assets and equipment are available to properly perform the subcontract.

(3) Workforce – The subcontractor must agree to perform no less than 15% of the Project construction work utilizing its own employees.

(4) Subcontractor Experience – The subcontractor must have successfully completed no less than two projects of similar size and complexity within the last five (5) years.

(5) Supervision – The subcontractor must agree to provide field (on-site) supervision through a named superintendent for each trade (general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in the subcontract. In addition, the subcontractor shall assign and name a qualified employee for scheduling direction for its work. The supervisory employees of the subcontractor (including field superintendent, foreman, and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five (5) years. The subcontractor shall include a resumé of experience for each employee they have identified to supervise and schedule the work.

(6) All subcontracts shall provide:

(A) LIMITATION OF REMEDY - NO DAMAGES FOR DELAY – That the subcontractor’s exclusive remedy for delays in the performance of the contract caused by events beyond its control, including delays claimed to be caused by the Owner or Architect-Engineer or attributable to the Owner or Architect-Engineer and including claims based on breach of contract or negligence, shall be an extension of its contract time.

In the event of a change in the work, the subcontractor’s claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 15% for overhead and profit and bond costs.

Each subcontract shall require the subcontractor to expressly agree that the foregoing constitute the sole and exclusive remedies for delays and changes in the work and thus eliminate any other remedies for claim for increase in the contract price, damages, losses, or additional compensation.

(B) Each subcontract shall require that any claims by a subcontractor for delay or additional cost must be submitted to the Contractor within the time and in the manner in which the Contractor must submit such claims to the Owner, and that failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims.

5.4 RESPONSIBILITIES FOR ACTS AND OMISSIONS

The Contractor shall be responsible to the Owner for the acts and omissions of Contractor’s employees, agents, suppliers, subcontractors of any tier, and the agents and employees of any of the foregoing, who perform any of the work or supply any materials with respect to the Project.

5.5 SUBCONTRACTS TO BE PROVIDED

The Contractor shall provide a copy of each subcontract, including any amendments or supplementary conditions, to the Owner upon request.

ARTICLE 6: SCHEDULE, TIME OF COMMENCEMENT, AND SUBSTANTIAL COMPLETION

6.1 SUBSTANTIAL COMPLETION DEADLINE, FINAL COMPLETION DEADLINE

At the time a Notice to Proceed is issued to the Contractor, a Substantial Completion deadline (the Substantial Completion Deadline) and a Final Completion deadline (the Final Completion Deadline) shall be fixed based on the deadlines provided for same in the Bid Documents. The Contractor agrees to complete construction of the Project in strict accordance with the Substantial Completion Deadline and Final Completion Deadline. The Contractor acknowledges that failure to attain Substantial Completion and Final Completion of the Project by the Substantial Completion Deadline and Final Completion Deadline, respectively, may result in substantial damages to the Owner, for all of which damages the Contractor shall be liable.

6.2 LIQUIDATED DAMAGES

(1) In the event that Substantial Completion does not occur by the Substantial Completion Deadline and/or Final Completion does not occur by the Final Completion Deadline, and inasmuch as failure to complete the Project by such deadline will result in substantial injury to the Owner, and as damages arising from such failure cannot be calculated with any degree of certainty, it is hereby agreed that, if the Project is not completed by one or both of the foregoing deadlines, the Contractor shall pay to the Owner, as liquidated damages for such delay and not as a penalty, _____________ dollars ($________) for each calendar day elapsing between the deadline fixed for completion and the actual date of completion.

(2) The liquidated damages shall be payable in addition to any excess expenses or costs payable by the

Contractor to the Owner under this Agreement and shall not preclude the recovery of damages by the Owner under other provisions of this Agreement, except claims based on Contractor’s delays in Substantial Completion or Final Completion.

(3) The Owner’s right to receive liquidated damages shall in no manner affect the Owner’s right to terminate this Agreement, as provided herein. The Owner’s exercise of the right to terminate shall not release the Contractor from the obligation to pay said liquidated damages.

(4) When the Owner reasonably believes (1) that Substantial Completion will be inexcusably delayed or

(2) that the Contractor will fail to achieve Final Completion by the Final Completion Deadline, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor the daily amount specified for liquidated damages as described above for each calendar day of the unexcused delay.

6.3 EFFECTIVE DATE OF WARRANTIES

Warranties called for by this Agreement or by the Construction Documents or Specifications shall commence on the date of Substantial Completion of the Project.

ARTICLE 7: CONTRACTOR’S COMPENSATION

7.1 CONTRACT PRICE

In consideration of the Contractor’s performance hereunder, the Owner agrees to pay the Contractor the fixed price designated as the TOTAL CONSTRUCTION CONTRACT PRICE in Exhibit B (Contract Price, Contract Sum, Construction Contract Price). The Owner shall pay and the Contractor shall accept as full and complete payment for the Contractor’s timely and complete performance of its obligations herein the Contract Price. The Contract Price includes the aggregate amount of all allowances and any unit price items to be furnished or installed.

Payment of any costs to complete the Project which would cause the Contract Price to be exceeded shall be the responsibility of the Contractor without reimbursements by the Owner.

The Contract Price may be modified only by Change Order as provided in Article 8 hereof.

7.1.1 Construction Fee

Prior to construction, the Owner will direct the Contractor in writing with issuance of a Notice to Proceed to commence with construction. The Contractor’s compensation for work or services performed during construction shall be as described in Exhibit B. The Contract Price shall be invoiced and paid based on milestones in the project payment schedule. Following the issuance of the Notice to Proceed by the Owner, monthly payments shall become due upon the Owner’s and Architect-Engineer’s receipt of a request for payment from the Contractor in the form of Exhibit G, and the final monthly payment shall be paid only when construction of the Project reaches Final Completion and occupancy of the Project accepted by the Owner.