Attachment-A-Draft-Contract.pdf

BREVARD COUNTY

BOARD OF COUNTY COMMISSIONERS

PUBLIC WORKS DEPARTMENT

CONTRACT DOCUMENTS

INDIALANTIC STORMWATER

IMPROVEMENTS PHASE 2

REQUEST FOR PROPOSAL

RFP-5-26-06

INDIALANTIC STORMWATER IMPROVEMENTS PHASE 2

SECTION 1 DEFINITIONS AND ABBREVIATIONS

1. DEFINITIONS

2. ABBREVIATIONS

SECTION 2 CONTRACT

1. RECITALS; SCOPE OF THE WORK

2. THE CONTRACT SUM

4. CONTRACTOR'S ACCEPTANCE OF CONDITIONS

5. CONTRACTOR’S WORK

6. SUBCONTRACTORS

7. SEPARATE CONTRACTS

8. DISTRIBUTION OF WORK

9. INDEMNIFICATION; HOLD HARMLESS

10. INSURANCE

11. CHANGE ORDER

12. SUSPENSION AND TERMINATION OF WORK

13. DISPUTE RESOLUTION

14. LIQUIDATED DAMAGES

15. SCOPE OF PAYMENT AND PAY QUANTITY

16. PARTIAL PAYMENTS

17. FINAL PAYMENT

18. GENERAL GUARANTEE

19. AFFIDAVIT AND RELEASE OF LIEN

CERTIFICATION OF CONTRACTOR

APPLICATION FOR PAYMENT

AFFIDAVIT

WAIVER OF RIGHTS AGAINST PUBLIC CONSTRUCTION BOND UPON MONTHLY

PARTIAL PAYMENT

WAIVER OF RIGHTS AGAINST PUBLIC CONSTRUCTION BOND UPON FINAL

PAYMENT

20. RECOVERY RIGHTS SUBSEQUENT TO FINAL PAYMENT

21. DEFECTIVE WORK

22. NO WAIVER OF LEGAL RIGHTS

23. PUBLIC CONSTRUCTION BOND (PAYMENT AND PERFORMANCE)

24. ADDITIONAL BONDS

25. IRON AND STEEL FOR PUBLIC WORKS PROJECTS

26. CONTRACT DOCUMENTS

27. OWNERSHIP OF DRAWINGS

28. COORDINATION OF DRAWINGS AND TECHNICAL SPECIFICATIONS

29. INTENT AND CORRELATION OF DOCUMENTS

30. ALTERATIONS OR MODIFICATIONS IN DRAWINGS AND TECHNICAL

SPECIFICATIONS

31. SURVEYS, PERMITS AND REGULATIONS

32. UNAUTHORIZED ALIEN WORKERS

33. SCRUTINZIED COMPANIES

34. AUDIT RIGHTS

35. PUBLIC RECORDS

36. NOTICE AND SERVICE

37. FAILURE TO PERFORM WORK

38. ASSIGNMENT OF CONTRACT

39. TERMINATION

40. ATTORNEY’S FEES

41. VENUE; GOVERNING LAW

42. WAIVER OF JURY TRIAL

43. CAPTIONS AND PARAGRAPH HEADINGS

44. COMPLIANCE WITH LAWS

45. SEVERABILITY

46. CONSTRUCTION OF CONTRACT

47. INDEPENDENT CONTRACTOR

ATTACHMENT A PRICE SHEET

ATTACHMENT B FDEP GRANT AGREEMENT L0155

SECTION 3 PUBLIC CONSTRUCTION BOND

1-1

SECTION 1

DEFINITIONS AND ABBREVIATIONS

1. DEFINITIONS

Whenever in the Contract Documents, the following terms (or pronouns in place of them) are used, the intent and meaning of such terms shall be interpreted as follows:

1.1 Addendum or Addenda: A written explanation, interpretation, modification, correction, addition, deletion, or modification, affecting the Contract Documents issued by the Owner and distributed to prospective contractors prior to the RFP due date.

1.2 Affidavit: The instrument which is to be signed by the Contractor and submitted to the Owner upon completion of work showing that all bills have been paid. It shall also mean such instrument that may be requested by the Owner incident to partial payments.

1.3 Article: The prime subdivision of a section of these or any other referenced Specifications, Bid Instructions, Special Conditions, Technical Specifications, and General Conditions.

1.4 Request for Proposal (RFP): The Request for Proposal issued by the Owner for the Work. The term “Proposal” shall be the Contractor’s written response to the RFP.

1.5 Bid Security or Bid Bond: The security designated in the RFP to be furnished by the Contractor as a guarantee that the Contractor will enter into the Contract for the work if the Contractor’s Proposal is accepted.

1.6 Bond Release: The date of release of the Public Construction Bond, or other form of security, at the end of the General Guarantee period, which is one calendar year from the date of Final Acceptance.

1.7 Calendar Day: Any day, including Saturdays, Sundays, and holidays, and regardless of the weather conditions.

1.8 Change Order: A written change to the Contract Documents approved by the Owner added to or deleted from the Contract value or scope of work for the project. A Change Order is a signed amendment to the Contract Documents for any of the following:

1. A change in the Scope of Work;

2. The amount of the adjustment in the contract sum, if any; and

3. The extension or the adjustment in the Construction Duration, if any.

1-2

Alternatively, in accordance with Section 218.755, Florida Statutes, as may be amended, if the County receives a price quote for a Change Order requested or issued by the County for construction services, and the Contractor’s price quote conforms to all statutory and contractual requirements for the Work, the County must approve or deny the price quote in writing within thirty-five (35) days of receipt of such quote. The County’s denial must specify the deficiencies in the price quote and the actions necessary to remedy them. The County’s failure to provide such notice will result in the change order and price quote being deemed approved, and the County must pay the Contractor the amount stated in the price quote upon completion of the Change Order.

1.9 Commission: The Board of County Commissioners of Brevard County, Florida, and its designee(s).

1.10 Construction Duration: The time period in calendar days from the Project Initiation Date(s) specified in a Notice(s) to Proceed to achieve Substantial Completion, Final Completion, and any Milestone(s) of the Work, which may be amended by a Change Order.

1.11 Contract Documents: The Contract Documents shall mean and include by incorporation of reference all of the following:

(a) Request for Proposals (RFP Advertisement);

(b) Contractor’s RFP proposal;

(c) Contractor’s RFP Response;

(d) Bid Bond;

(e) Contract with attachments;

(f) Public Construction Bond;

(g) General Conditions;

(h) Special Conditions;

(i) Technical Specifications;

(j) Criteria for Water and Sanitary Sewerage Systems within Brevard County;

(k) Addenda;

(l) Drawings;

(m) Permit(s);

(n) Certificate of Insurance(s);

(o) Change Orders; and

(p) F.D.O.T. Standard Specifications;

(q) Geotechnical Report;

(r) Verified Vertical and Horizontal Data

In any other event of any conflict between the provisions of the above-referenced Contract Documents, the following order of precedence shall apply: (1) Change Orders; (2) Amendments (with those of later date having precedence over those of earlier date); (3) this Contract with attachments;

1-3

(4) Drawings; (5) Technical Specifications; (6) Criteria for Water and Sanitary Sewerage Systems within Brevard County; (7) Special Conditions;

(8) F.D.O.T. Standard Specifications; (9) Permit; (10) General Conditions;

(11) Request for Proposals (RFP), including any attachments and addenda; (12) Contractor’s RFP submittal ; (13) Public Construction Bond;

(14) Certificate(s) of Insurance; ; (15) Bid Bond; (16) any other associated documents, whether or not any of the foregoing listed documents have been attached hereto.

The Contract Documents may also be collectively referred to as the “Contract.”

1.12 Contract Term: The term of this Contract shall remain in full force and effect until the Work contemplated herein has been completed and accepted by the County.

1.13 Contractor: The firm whose Proposal is accepted by the Owner and who has entered into a formal contract with the Owner to furnish the work. The Contractor has the obligation to deliver to the Owner the completed work in compliance with the Contract Documents and in good and workmanlike condition.

1.14 Contractor’s Engineer: A Professional Engineer registered in the State of Florida, other than the Engineer of Record, or its subcontracted consultant, who undertakes the design and drawing of components of the permanent structure as part of a redesign or value engineering change proposals (VECP), or for repair designs and details of the permanent work. The Contractor’s Engineer may also serve as the Specialty Engineer. Any Corporation or Partnership offering engineering services must hold a Certificate of Authorization from the Florida Department of Business and Professional Regulation. Specialty Engineers will not be authorized to perform redesigns or VECP designs of items fully detailed in the plans.

1.15 Drawings: The official approved drawings or plans, or exact reproductions thereof, signed by the Engineer of Record, which show the location, character, dimensions, and details of the work to be done, which are incorporated by reference as part of the Contract Documents.

1.16 Engineer of Record: Jones Edmunds & Associates, Inc. The engineer(s) under whose responsible charge the Drawings and Technical Specifications were prepared.

1.17 Equipment: The machinery and equipment, together with the necessary supplies for upkeep and maintenance, and including the tools and apparatus necessary for the proper construction and acceptable completion of the work.

1-4

1.18 Final Acceptance: The formal notice by the Owner that the Work is 100% complete, including punch list items, and all conditions and requirements of the Contract Documents have been satisfied by the Contractor. Upon Final Acceptance, the County will release the final payment and retainage to the Contractor. Final Acceptance marks the start of the General Guarantee period.

1.19 Final Completion: The date noticed by the Owner, in its sole discretion, upon which work related to the construction of the Project has been completed, including any and all items on any Punchlist.

1.20 Final Payment: Upon Notice of Final Acceptance, the Owner shall make Final Payment in accordance with the Local Government Prompt Payment Act, Section 218.70, Florida Statutes, et seq., as may be amended.

1.21 Force Account Work: Work performed in addition to that set forth in the original contract or contract modifications, and which is paid for on the basis of the actual cost of materials and labor, plus a fixed percentage of such costs.

1.22 General Guarantee: The one-year period after Final Acceptance that the Contractor guarantees the work performed and materials supplied will be free of defects, meets the specified standards, and is suitable for the intended purposes of this Contract.

1.23 Inspections:

(a) Pre-Final Completion Inspection: The official inspection of the Work by the Owner and Engineer of Record to develop the Punchlist.

(b) Final Completion Inspection: The official inspection of the Work by the Owner and Engineer of Record to determine if all Punchlist items have been completed.

(c) General Guarantee Inspection: The official inspection of the Work by the Owner performed before the end of the General Guarantee period to determine if Bond Release can occur.

1.24 Materials: Any substance proposed to be used in conjunction with the construction of any structure, facility or appurtenance, or of other work under the contract.

1.25 Milestone: A portion of Work as defined in the Sequence of Operations, as having a distinct completion date and liquidated damages assessment if not completed in accordance with the Contract Documents.

1.26 Notices:

1-5

(a) Notice of Award: The official notice from the Owner advising the successful Contractor that the Contractor has been awarded the Contract.

(b) Notice to Proceed: The official notice from the Owner to the Contractor instructing the Contractor to commence Work within ten calendar days after the date of notice.

(c) Notice of Substantial Completion: The official notice from the Owner to the Contractor of the date the Work is substantially complete.

(d) Notice of Final Acceptance: The official notice from the Owner to the Contractor of the date the Work has been accepted by the Owner.

1.27 Owner or County: Brevard County, Florida.

1.28 Pay Request: The Contractor’s pay request shall be considered a proper invoice or payment request when all of the following items are accepted by the County:

(a) Signed County pay request form

(b) Supporting quantities

(c) Any required warranties and certifications

(d) Release of Liens or Consent of Surety

1.29 Person: The word "person" shall mean and include any individual, partnership, society, association, joint stock company, corporation, estate, receiver, trustee, assignee, referee, or capacity, whether appointed by a court or otherwise, and any combination of individuals or "persons".

1.30 Plans: See Definition of Drawings.

1.31 Principal: When used in the Bid Bond, the word "Principal" means the same as the word "Contractor". When used in the Public Construction Bond, the word "Principal" means the same as the word "Contractor".

1.32 Pronouns: The masculine pronoun shall include the feminine and neuter, and the singular shall include the plural.

1.33 Provided: As used in the Contract Documents, "provided" shall be understood to mean "provided complete in place", that is, "furnished and installed". Where "as shown", "as indicated", "as detailed", or words of similar import are used, it shall be understood that references to the

1-6

Contract Documents accompanying these documents are intended unless otherwise expressly stated.

1.34 Public Construction Bond (Payment and Performance): The securities furnished by the Contractor and the Surety as a guaranty that the Contractor will fulfill the terms of the Contract in accordance with the Contract Documents. Said bond shall be recorded by the Contractor upon execution of the contract by both parties. All references to Payment and Performance Bonds shall also mean the Public Construction Bond.

1.35 Punchlist: A single list of items and the estimated cost to complete each item on the list required to render the Work complete, satisfactory, and acceptable in accordance with the Contract Documents.

1.36 Resident Construction Monitor: An authorized representative or employee of the Owner assigned to the project to make observations of the work performed by the Contractor.

1.37 F.D.O.T. Standard Specifications: Florida Department of Transportation - "Standard Specifications for Road and Bridge Construction", 2025-2026 edition, except when superseded as otherwise noted.

1.38 State: State of Florida.

1.39 Subcontractor: A firm supplying labor, materials, supplies, equipment, services, and other incidentals used directly or indirectly by the Contractor or Subcontractors. Such a person has contractual relations with the Contractor, but not with the Owner.

1.40 Substantial Completion: The date, as noticed by the Owner, on which the Work, or a portion thereof, is at a level of completion in substantial compliance with the Contract Documents such that all conditions of permits and regulatory agencies have been satisfied, and the Owner can occupy and/or use it in all respects for its intended purpose. Work tasks may include, but are not limited to, as follows:

(a) Sidewalk/pedway

(b) All lanes open to traffic

(c) All asphalt pavement

(d) Temporary striping in the final location installed (100% as if permanent final striping)

(e) Drainage system

(f) All utility work, including clearances; and

(g) Any major item on this contract which individually is equal to or more than five percent of the contract (excluding permanent final striping)

1.41 Superintendent: The Contractor's authorized executive representative, in

1-7 responsible charge of the work at all times.

1.42 Surety: The corporate body which is bound by the Public Construction Bond (Payment and Performance) with and for the Contractor (who is primarily liable) and which engages to be responsible for the Contractor's acceptable performance of the work for which the contract has been made and for the Contractor's prompt payment of all debts pertaining thereto.

1.43 Technical Specifications: The Technical Specifications were signed and sealed by the Engineer of Record for this Project.

1.44 Work or Project: All work activities implied or expressly required to be furnished and/or completed by the Contractor to be in full compliance with the Contract Documents. Identified as the Indialantic Stormwater Improvements, Phase 2.

1.45 Work Order: Written authorization to the Contractor signed by the Owner, concerning performance of work and/or furnishing of materials on a force account basis as provided in the Contract Documents.

2. ABBREVIATIONS

2.1 References in the specifications to technical societies, organizations, or bodies are made in accordance with the following abbreviations:

AASHTO American Association of State Highway and Transportation Officials

ACI American Concrete Institute AISC American Institute of Steel Construction ANSI American National Standards Institute, Inc.

ASHRAE American Society of Heating, Refrigerating and

Air-Conditioning Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWSC American Welding Society Code CFR Code of Federal Regulations CRSI Concrete Reinforcing Steel Institute DFT Dry Film Thickness FDEP Florida Department of Environmental Protection FDOT Florida Department of Transportation FS Federal Specifications IEEE Institute of Electrical and Electronic Engineers NACE National Association of Corrosion Engineers NBFU National Board of Fire Underwriters NBS National Bureau of Standards - US Department of

Commerce NFPA National Fire Protection Association NIOSH The National Institute for Occupational Safety and Health

1-8

OEM Original Equipment Manufacturer OSHA Occupational Safety and Health Act PDS Product Data Sheets PEL Permissible Exposure Limit RCRA The Resource Conservation and Recovery Act RFI Request for Information SDS Safety Data Sheets SJRWMD St. Johns River Water Management District SPR Simplified Practice Recommendations SSPC The Society for Protective Coatings TWA Time Weighted Allowance UL Underwriters Laboratories, Inc.

2.2 In the event that the complete title and abbreviation for a society, organization or body is not listed herein, references to specifications or standards of the unlisted society, organization or body will be made using the full title of the society, organization or body.

2-1

SECTION 2

CONTRACT

This Contract, made and entered into the date of last signature below (“Effective Date”), by and between Brevard County, Florida, a political subdivision of the State of Florida, party of the first part (hereinafter sometimes called the “County” or the "Owner"), and _____________________________________, party of the second part, a business authorized to do business in the State of Florida, with a principal address of _____________________________________________________, (hereinafter called the “Contractor.”)

WITNESSETH:

WHEREAS, the County advertised Request for Proposals RFP-5-26-06 (the “Proposal”) on (INSERT DATE OF ADVERTISMENT) seeking a contractor to construct the INDIALANTIC STORMWATER IMPROVEMENTS PHASE 2 (the “Work” or “Project”), which is incorporated herein by this reference; and

WHEREAS, the Contractor submitted a response to the solicitation for such services and was found to have the most experience and qualifications of the proposers that submitted proposals to the County’s RFP-5-26-06 by the Selection and Negotiation Committee; and

WHEREAS, the Contractor’s response, which is incorporated herein, has been reviewed by the County and is determined to be responsive and responsible, and found to be the most qualified submission; and

WHEREAS, the County has received grant funds to partially fund the Work from the State of Florida Department of Environmental Protection (“FDEP”), and the grant agreement is attached hereto and incorporated herein by this reference; and

WHEREAS, the Contractor acknowledges it is capable of meeting any and all applicable grant requirements in performing the Work under this Contract, and shall enter into any necessary contract amendments to incorporate such agreement (or amendments thereto) and assist the County if/when necessary to help ensure said requirements are fulfilled; and

WHEREAS, the County finds that the work to be completed is in the public interest and serves a public benefit; and

WHEREAS, the Parties hereby enter into this Contract for the services and/or work outlined herein.

NOW, THEREFORE, in consideration of the mutual covenants and premises contained herein, and for good and valuable consideration, the sufficiency of which is hereby acknowledged, the following terms and conditions are hereby mutually agreed to by and between the County and the Contractor.

2-2

1. RECITALS; SCOPE OF THE WORK

1.1 The above recitals are true and correct and incorporated herein by this reference.

1.2 The Contractor shall furnish all labor, materials, equipment, machinery, tools, apparatus, and transportation to perform all of the work in accordance with the Contract Documents. The Drawings and Technical Specifications prepared by the Engineer of Record, entitled INDIALANTIC STORMWATER IMPROVEMENTS PHASE 2, are incorporated herein by this reference.

2. THE CONTRACT SUM

2.1 The Owner shall pay to the Contractor for the faithful and proper performance of the Contract, in lawful money of the United States, and subject to additions and deductions as provided in the Contract Documents.

2.2 Based upon the price shown in the Price Sheet, Attachment A, being a part of these Contract Documents, the aggregate amount of this Contract is _____.___________ for (Base Bid/ Add).

3. COMMENCEMENT AND COMPLETION OF WORK; CONSTRUCTION

DURATION

3.1 The Contractor shall commence work within ten (10) calendar days after issuance of the Notice to Proceed by the Owner but must provide any necessary Certificate(s) of Insurance and bond(s) to the County prior to commencing such work.

3.2 The Work, or portions thereof, shall be completed within the time set forth below. TIME IS OF THE ESSENCE WITH THIS CONTRACT. Liquidated Damages shall be imposed in the amount as set forth below for not achieving the timelines/deadlines established below:

2-3

3.3 Except in the event of an emergency or as otherwise outlined herein, no work shall be performed by the Contractor (1) before sunrise and after sunset; (2) between the hours of 6:00 p.m. and 7:00 a.m.; (3) on Saturday or Sunday; or (4) on any holiday of the Owner, unless otherwise indicated on the Drawings. Nighttime work as shown on the Drawings shall require written permission from the Owner seventy-two (72) hours in advance of starting the work. The Contractor shall not be responsible for inspection fees for work at night as shown on the Drawings. "Regular Working Hours" shall be between 7:00 a.m. and 6:00 p.m. Monday through Friday, excluding Owner holidays. During the Regular Working Hours the generation of noise levels measured at the property/right of way line shall be limited to 98 dB (A-weighted). If construction or maintenance work requires operations during times other than Regular Working Hours, the Contractor shall obtain written permission of the Owner at least seventy-two (72) hours in advance of starting such work, and shall set forth the proposed schedule for overtime to give Owner ample time to arrange for personnel to be at the site of the work. Contractor shall pay for the additional charges to the Owner on account of such overtime work. Such additional charges shall be the obligation of Contractor and no extra payment shall be made by Owner on account of such overtime work. The Contractor shall pay the cost of the Owner’s Resident Construction Monitor at a rate of $100 per hour, per operation, for observation of any

Article Description Unit

Section 1 Definitions

Substantial Completion 300 calendar days from

NTP

Section 2 Contract, 14.

Liquidated Damages

Liquidated Damages for each calendar day after time specified for Substantial Completion

$__________ per calendar day.

Prior to contract execution, this amount will be provided. The amount will be in accordance with the F.D.O.T. Division I Specification 8-10.2:

schedule which is based on the contract award.

Section 1 Definitions

Final Completion 60 calendar days from Substantial Completion

Section 1 Definitions

Construction Duration 360 calendar days, as may be amended

Section 1 Definitions

Final Acceptance

Section 1 Definitions

Bond Release 365 calendar days from Final Acceptance

2-4 work which exceeds the established Regular Working Hours (a ten-hour work day), and for Holidays worked.

Contractor shall reimburse the Owner for additional Engineering and/or Inspection costs incurred as a result of overtime work in excess of the Regular Working Hours as stipulated above. Overtime costs for personnel employed by the Engineer of Record and/or Owner's independent testing laboratory shall be calculated in accordance with the terms of their respective contracts with the Owner.

Each accumulated ten-hour segment of overtime work will deduct one calendar day from the contract period.

3.4 Contractor is not to schedule work on Saturdays or Sundays during the course of this Contract. Unless otherwise agreed to in writing by the Owner, the only work permitted on Saturdays or Sundays is work required in accordance with “Protection of Property and the Public” in the event of an emergency. If such work is required, the Contractor is to notify the Owner as soon as possible, to advise them of the work requirements.

This article in no way affects the time allowed for the Contractor; both Saturdays and Sundays will be considered as calendar days for the determination of the length of the contract.

3.5 Night work must be approved by the Owner. A written request must be submitted to the Owner seventy-two (72) hours in advance. Permitted night work shall limit the generation of noise levels at the property/right of way line to 55 dB (A-weighted) from 6:00 pm to 7:00 am or during the normal daylight work period as specified in the Contract Documents. At the request of the Owner, the Contractor shall monitor its construction noise, and pay all costs associated in acquiring and using the equipment.

Costs associated with noise abatement are incidental to the Contract, were considered by the Contractor at the time of bidding, were factored into the Contractor’s bid price, and shall be the sole responsibility of the Contractor.

3.6 No work shall be performed on legal holidays of the Owner, which for the work shall be defined as follows:

Holiday Calendar Date New Year’s Day January 1 Martin Luther King Jr.’s Birthday 3rd Monday in January Memorial Day Last Monday in May Independence Day July 4 Labor Day 1st Monday in September Veteran’s Day November 11 Thanksgiving 4th Thursday in November Day after Thanksgiving 4th Friday in November

2-5

Christmas Eve Day December 24 Christmas December 25

If any holiday falls on a weekend, the preceding Friday or following Monday will be observed as a holiday. If any holiday falls on a Saturday, the preceding Friday will be observed as a holiday. If any holiday falls on a Sunday, the following Monday will be observed as a holiday.

3.7 It is anticipated that there will be a scheduled event (marathon) in the project vicinity on February 14, 2027, subject to change. The event organizers will set up and take down their own cones/delineators (either southbound lane or pedestrian sidewalk). The Contractor shall not work on this date and shall ensure the project area is secured.

4. CONTRACTOR'S ACCEPTANCE OF CONDITIONS

4.1 The Contractor hereby agrees that the surface and subsurface of the site have been carefully examined. The Contractor acknowledges sufficient test holes have been made, or other subsurface investigations made, and is satisfied that the project site is a correct and suitable one for this work, including all utility areas, and assumes full responsibility therefore.

All Contract Documents have been read and carefully considered by the Contractor, are understood by the Contractor, and are in sufficient enough detail for the Contractor to complete the work. It is expressly agreed that under no circumstances, conditions or situations, shall this Contract be more strongly construed against the Owner than against the Contractor or the Surety.

4.2 Any ambiguity or uncertainty in the Drawings and Technical Specifications shall be interpreted and construed by the Engineer of Record in writing, and such final determination shall be final and binding upon all parties.

4.3 It is distinctly understood and agreed that the passing, approval and acceptance of any part of the work or materials by the Owner, the Engineer of Record, or by any of their agents or representatives for compliance with the terms of the Contract Documents covering said work, shall not operate as a waiver by the Owner of strict compliance with the terms of this Contract.

The Owner may require the Contractor and/or the Surety to repair, replace, restore and/or make the work comply strictly, and in all things, with this Contract. The Contractor shall be responsible for any and all work and/or materials for at least a period of one (1) year from and after the date of the final passing, approval, and acceptance of any such work or material by the Owner and shall ensure any defect or failure to comply with this Contract is remedied. This provision shall not apply to materials or equipment normally expected to deteriorate or wear out and become

2-6 subject to normal repair and replacement before their condition is discovered. The Contractor shall not be required to do normal maintenance work under the guarantee provisions. Failure on the part of the Contractor and the Surety to immediately repair or replace any such defective material(s) and workmanship shall entitle the Owner, in the Owner's sole discretion, to replace or repair the same and, after written notice, recover the reasonable cost of such replacement and repair from the Contractor and the Surety, who shall in any event be jointly and severally liable to the Owner for all damage, loss and expense, including reasonable attorneys’ fees selected by the Owner, caused to the Owner by reason of the Contractor's breach of this Contract and the Contractor's failure to comply strictly and in all things with this . This is not an exclusive remedy.

4.4 The Contractor hereby agrees that normal local weather conditions have been considered in the establishment of the Construction Duration. The Contractor expressly acknowledges that unfavorable working conditions will exist at the work site as a result of normal local weather.

The Contractor shall take into consideration local weather conditions in planning and scheduling of the work to ensure the completion of the work within the Construction Duration provided for herein. No time extensions will be granted for the Contractor’s failure to take into account such weather conditions for the location of the work and for the period of time in which the work is to be accomplished.

4.5 The Contractor hereby acknowledges that no funds received pursuant to this Contract may be expended for lobbying the Legislature, the judicial branch, or a State agency.

5. CONTRACTOR’S WORK

5.1 The Contractor shall itself perform, at a minimum, forty percent of the work, excluding specialty work. In calculating this forty-percent minimum threshold, the Contractor will be credited for the value of materials purchased and supplied by the Contractor for installation by any subcontractor(s).

5.2 The Owner and the Engineer of Record will work with the Contractor to ensure the shop drawings are complete and correct. However, the shop drawings and submittal data will be reviewed two (2) times by the Engineer of Record without costs to the Contractor as part of the normal review process. If, however, additional reviews are needed, the Contractor shall be solely responsible for charges incurred by the Engineer of Record for such additional review. The Engineer of Record shall charge a rate of $104.76 per hour. Such additional costs shall not be back charged to the Owner.

2-7

6. SUBCONTRACTORS

6.1 The Contractor may utilize the services of specialty subcontractors on those parts of the work that, under normal contracting practices, are performed by such specialty subcontractors.

6.2 The Contractor shall not award any work to any subcontractor without prior written approval of the Owner. The Contractor shall be required to submit a list of sublet work and a schedule showing the appropriate pay items to be sublet. Any changes to the sublet work shall require the Contractor to submit a revised sublet work list to the Owner for approval.

The Contractor shall execute all agreements to sublet work in writing and include all pertinent provisions and requirements of the Contract Documents.

The Contractor shall be as fully responsible to the Owner for the acts and omissions of the Contractor's subcontractors, and of persons either directly or indirectly employed by them, as the Contractor is for the acts and omissions of persons directly employed by the Contractor. Nothing contained in the Contract Documents shall create any contractual relations between any subcontractor and the Owner.

6.3 The Contractor shall cause appropriate provisions to be inserted in all subcontracts relative to the work to bind subcontractors to the Contractor by the terms of the Contract Documents insofar as applicable to the work of Subcontractors, and to give the Contractor the same power as regards terminating any subcontract that the Owner may exercise over the Contractor under any provision of the Contract Documents.

6.4 Any resulting subcontract(s) shall specifically include the following language:

“To the extent provided by law, [subcontractor] shall indemnify, defend, and hold harmless Brevard County, Florida, including its officers, agents, and employees, against any actions, claims, or damages arising out of, relating to, or resulting from the negligent, reckless, or intentionally wrongful acts or omissions of the [subcontractor], or any of its officers, agents, or employees, acting within the scope of or in connection with the work contemplated in this agreement.

The foregoing indemnification shall not constitute a waiver of the County’s sovereign immunity protections beyond the limits set forth in Section 768.28, Florida Statutes. Nor shall the same be construed to constitute agreement by [subcontractor] to indemnify the County for the negligent acts or omissions of the County, its

2-8 officers, agents, or employees. [Subcontractor] acknowledges that specific consideration has been received for the foregoing indemnification and hold harmless provision. This indemnification and hold harmless provision shall survive completion, expiration, or termination of this agreement.”

7. SEPARATE CONTRACTS

7.1 The Owner reserves the right to enter into contracts for other goods and services within the area where the Contractor will be conducting its work.

Contractor shall coordinate and cooperate with the Owner and any additional contractor(s). Such coordination efforts shall be made through the Owner to avoid any unnecessary delays. The Contractor shall afford other Owner-directed contractors a reasonable opportunity to utilize the site to complete their respective work and for storage of any necessary materials. In the event of any issues or interference with the Contractor’s obligations under this Contract, the Contractor shall notify the Owner in writing within twenty-four (24) hours of such perceived issue or interference.

7.2 If any part of the Contractor’s work depends for proper execution or results upon the work of any other contractor, the Contractor shall examine and promptly report to the Owner any defects in such work that renders it unsuitable for such proper execution and completion. The Contractor’s failure to so inspect and report any defects or deficiencies to the Owner shall constitute the Contractor’s acceptance, at the Contractor’s own risk, of the other contractor’s work as fit and proper for the reception of the Contractor’s work.

7.3 To ensure the proper execution of the Contractor’s subsequent work, the Contractor shall measure work already in place and shall at once report to the Owner any discrepancy between the executed work and the Contract Documents.

8. DISTRIBUTION OF WORK

8.1 The arrangement of the Contract Documents into sections or paragraphs, with provisions under general titles descriptive of the principal materials or trades covered, is for convenience only. The captions and paragraph headings are for reference only and in no way define, describe, extend, or limit the scope or intent of this Contract. Rather, the subdivisions follow trade practice as far as seems practical without unreasonably complicating or burdening the contractual relationship. Under many divisions it is proper to include items of other trades or types of materials, the use or the installation of which is closely related to the principal subject of that division. Such arrangement shall not operate to make the Owner an arbitrator to establish subcontract limits between Contractor and

2-9

Subcontractor. Such agreements shall be between the Contractor and any subcontractor(s).

8.2 The Contractor and all subcontractors shall study the Contract Documents in sufficient detail to assure that all required items are included. It shall be the Contractor’s responsibility to so arrange and distribute the work that all required items are provided by the proper trades and at the proper times, without controversy as to contract obligation, or as to jurisdiction, and the Contractor shall make all necessary adjustments to this end.

9. INDEMNIFICATION; HOLD HARMLESS

9.1 The Contractor shall indemnify and hold harmless the Owner, the Engineer of Record, and the State of Florida Department of Environmental Protection, and the respective officers, agents, and employees of each, from and against all claims, costs, expenses, and damages arising out of or resulting from the performance of the work, injury or conduct, want of care or skill, negligence, and patent infringement providing that any such claim, damage, loss or expenses (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of property, including the loss of use resulting therefrom and (b) is caused by any negligent, reckless, or intentionally wrongful act or omission of the Contractor, any Subcontractor, any of their respective agents, and anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.

The Contractor’s indemnification obligation hereunder includes the obligation for the payment of attorneys’ fees and costs of, or on behalf of, the County for attorneys as selected or approved by the County.

The obligation of the Contractor under this Paragraph shall not extend to the liability of the Engineer of Record or the Engineer’s officers, agents, or employees arising out of errors or omissions in maps, drawings, opinions, reports, surveys, contract modifications, designs or specifications which have been prepared by the Engineer of Record.

The Contractor acknowledges receipt of specific consideration for this provision.

Nothing contained in this paragraph is intended to nor shall it constitute a waiver of sovereign immunity of the Owner or the protections of or limits on the amounts established pursuant to Section 768.28, Florida Statutes.

This indemnification provision applies to both Owner and third-party claims, and shall survive completion, expiration, or termination of this Contract.

2-10

10. INSURANCE

10.1 The Contractor shall be required to procure and maintain, at its own expense and without cost to the Owner, the following types of insurance:

Workers’ Compensation and Employers Liability Insurance: Workers

Compensation insurance providing statutory benefits as required in the State of Florida. The Contractor shall require any subcontractor, unless such employees are covered by the protection afforded by the Contractor, to provide evidence of this coverage or proof of exemption to the Contractor. Additionally, if the contract requires working on or around a navigable waterway, the Contractor and all subcontractors shall provide evidence of United States Longshoremen’s and Harbor Workers (USL&H) coverage and contingent coverage of Jones Act (Marine Employers Liability) in compliance with Federal statutes, or proof of exemption. The Contractor shall be responsible for compliance with these requirements by each subcontractor, vendor or supplier.

This coverage must include Employer's Liability with a minimum limit of $100,000 for each accident, $100,000 each employee, and $500,000 policy limit for Disease.

Comprehensive General Liability Insurance: General Liability

Insurance shall be provided and maintained with a combined single limit of $1,000,000 for each occurrence and $2,000,000 in the annual aggregate with the Owner, the Engineer of Record, and the Florida Department of Environmental Protection named as additional insureds as follows:

Comprehensive General Liability Insurance, including Products and/or Completed Operations, Explosion Hazard, Collapse Hazard and Underground Property Damage Hazard, Contractual Liability under this contract.

Limits may be satisfied with a combination of primary and umbrella/excess liability coverage subject to approval by Brevard County Risk Management.

Comprehensive Auto Liability Insurance: Auto Liability policy with a $1,000,000 combined single limit for each occurrence covering any auto with the Owner, the Engineer of Record, and the Florida Department of Environmental Protection named as additional insureds.

10.2 Before commencing work, the Contractor shall file with the Owner certificates of such insurance and applicable endorsement pages, acceptable to the Owner. Insurance carriers providing coverage required herein must be licensed or authorized to conduct business in the State of Florida and must possess A.M. Best’s Financial Strength Rating of A- Class VIII or better. The Certificate of Insurance shall name “Brevard

2-11

County” as the Certificate Holder and as being endorsed as an additional insured for all coverages, as shall the “State of Florida”; however, a waiver of subrogation will be accepted by the County in lieu of additional insured status for workers compensation. The Certificate of Insurance will also provide that the Owner shall be notified by the insurer in writing of any reduction, cancellation or substantial change of policy or policies at least thirty (30) days prior to the effective date of such action. The Contractor shall maintain the required insurance coverage provided for herein throughout the term of this Contract.

The policy limits required are to be considered the minimum requirements and shall in no way lessen or limit the liability of the Contractor under the terms of the Contract. Ensuring any subcontractor has appropriate insurance shall be the responsibility of the Contractor.

11. CHANGE ORDER

11.1 A written change to the Contract may be approved by the Owner authorizing an addition, deletion or revision in the work, resulting in an adjustment in the Contract price and/or the Construction Duration issued after execution of the Contract. Additionally, in accordance with Section 218.755, Florida Statutes, as may be amended, if the County receives a price quote for a Change Order requested or issued by the County for construction services, and the Contractor’s price quote conforms to all statutory and contractual requirements for the Work, the County must approve or deny the price quote in writing within thirty-five (35) days of receipt of such quote. The County’s denial must specify the deficiencies of the price quote and actions necessary to remedy those deficiencies. The County’s failure to provide such notice will result in the change order and price quote being deemed approved, and the County must pay the Contractor the amount stated in the price quote upon completion of the Change Order.

11.2 Change of Construction Duration and Claims for Delays

(a) The Construction Duration (or Milestones) may only be changed by a written Change Order agreed to by both parties. Any claim for adjustment of the Construction Duration (or Milestones) shall be based on written notice delivered by the party making the claim to the other party and to the Engineer of Record promptly (but in no event later than thirty days after the occurrence of the event giving rise to the claim and stating the general nature of the claim). Notice of the extent of the claim with supporting data, including, but not limited to, backup for additional compensation requests for any delays and/or loss of efficiency, shall be delivered within sixty days after such occurrence (unless the Owner allows an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by the claimant’s written

2-12 statement that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. No claim for an adjustment in the Construction Duration (or Milestones) and any related equitable adjustment to the Contract Sum will be valid if not submitted in strict accordance with the requirements of this paragraph. Otherwise, such claims will be deemed to have been waived.

(b) All time limits stated in the Contract Documents are of the essence of the contract. In other words, TIME IS OF THE ESSENCE AS

TO ALL APPLICABLE PROVISIONS RELATED TO TIME.

(c) Where Contractor is prevented from completing any part of the work within the Construction Duration (or Milestones) due to delay beyond the control of Contractor, the Construction Duration (or Milestones) will be extended in an amount equal to the time lost due to such delay if a claim is made thereof as provided in paragraph 11.2 (a). Delays beyond the control of Contractor shall include, but are not limited to, acts or neglect by Owner; acts or neglect of utility owners or other entities not under the control or agency of the Contractor performing other work; fires; floods;

epidemics or health emergencies that are not known at the time this Contract is executed; abnormal weather conditions; or acts of God.

Delays attributable to and within the control of a Subcontractor shall be deemed to be delays within the control of Contractor. The Contractor shall also coordinate and cooperate with the Owner and its contractor(s) to ensure other work within the project site are completed in an efficient and effective manner. Such coordination and cooperation shall not be unreasonably withheld or denied by the Contractor, in which case any resulting delays will be considered within the control of the Contractor.

(d) No Damages for Delay: NO CLAIM FOR DAMAGES OR ANY

CLAIM OTHER THAN FOR AN EXTENSION OF TIME SHALL BE

MADE OR ASSERTED AGAINST THE OWNER BY REASON OF

ANY DELAYS. The Contractor shall not be entitled to an increase in the Contract Sum or payment or compensation of any kind from the Owner for direct, indirect, consequential, impact or other costs, expenses or damages, including, but not limited to, costs of acceleration, or inefficiency, arising because of delay, disruption, interference or hindrances from any cause whatsoever, including but not limited to fires, floods, epidemics or health emergencies that are not known at the time this Contract is executed, abnormal weather conditions, acts of God, acts or neglect by utility owners or other contractors performing other work; however, this provision shall not preclude recovery or damages by the Contractor for hindrances or delays due solely to fraud, bad faith, or active

2-13 interference on the part of the County or its agents. Otherwise, the Contractor shall be entitled only to extensions of the Construction Duration as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above.

(e) Construction Duration shall not be extended for rain delays. The Owner may consider granting time extensions as stipulated in Section 8-6.1.1 of F.D.O.T. Specifications for temporary suspension of work due to adverse weather conditions due to catastrophic occurrences.

11.3 Extra Work

(a) The Contractor shall do all extra work that may be ordered in writing by the Owner arising out of the modification of the Drawings and Technical Specifications made or approved by the Owner. For this work, the Contractor shall be paid at the rates named in the Contract for work of a similar nature and character. If the extra work be of a class for which no rate is fixed in the Contract, the actual reasonable cost as determined by the Owner and the Engineer of Record, plus fifteen percent (15.0%) of said cost for profit and general expense shall be paid the Contractor. No claim for extra work shall be allowed unless the same was ordered in writing by the Owner, and the claim was presented by the Contractor at the time of the next estimate or pay application is submitted by the Contractor after the work is completed.

Otherwise, should the Contractor not timely submit its claim for extra work pursuant to the above requirement, the Contractor voluntarily acknowledges it has waived its rights to such claims for extra work.

(b) The Contractor shall guarantee all costs associated with any written claim for extra work for a minimum of thirty calendar days to allow ample time for the County to determine reasonableness.

(c) Except as hereinafter provided, all extra work ordered and performed in accordance with the above paragraph will be paid for at the price in the written order for such work. This price (or rate) shall have been approved by the Owner and mutually agreed by the Contractor and the Engineer of Record to be suitable compensation for the contemplated extra work. However, if the Contractor fails to agree on an equitable price for any extra work ordered, it shall be performed by using labor, tools, equipment, and materials as may be specified by the Owner and will be paid for in the following manner:

(1) For all labor, including a foreman in direct charge of the

2-14 specified operations, the Contractor shall receive a sum equal to the current local rate of wages for every hour that the labor is actually engaged in such work, to which shall be added an amount equal to fifteen percent (15.0%) of such sum, and the total thereof shall be full compensation to the Contractor for general supervision and for furnishing and repairing small tools and ordinary equipment used in doing the extra work. In addition, the Contractor shall be paid the actual wages paid to such labor.

(2) For all materials used, the Contractor shall receive the…