Attachment_V_Standard_Construction_Agreement.PDF

PUR-F-407A Rev. 10/2016

City of Casselberry | Finance Department | Procurement Division 95 Triplet Lake Drive, Casselberry, Florida 32707

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ITB-2017-0177 GEE CREEK EROSION CONTROL PROJECT –

PHASE I (SHEET PILING)

STANDARD CONSTRUCTION AGREEMENT

THIS AGREEMENT is made by and between the CITY OF CASSELBERRY, a municipal corporation existing under the laws of the State of Florida, 95 Triplet Lake Drive, Casselberry, Florida 32707, hereinafter referred to as the “OWNER”, and <INSERT FULL NAME AND ADDRESS WITH NO ABBREVIATIONS>, hereinafter referred to as the “CONTRACTOR”.

W I T N E S S E T H:

WHEREAS, the CITY has competitively solicited for Gee Creek Erosion Control Project – Phase I

(Sheet Piling), pursuant to ITB-2017-0177; and

WHEREAS, the CONTRACTOR has exhibited by its response to the solicitation that it is capable of providing the required services; and

WHEREAS, the CONTRACTOR has exhibited by its response to the solicitation that it is capable of providing the required services.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and provisions contained herein, the parties agree as follows:

ARTICLE - 1.00 EXTENT OF AGREEMENT AND DEFINITIONS

The CONTRACTOR accepts the relationship of trust and confidence established between it and the OWNER by this Agreement. The CONTRACTOR covenants with the OWNER to furnish its skill and judgment and to cooperate with the OWNER and OWNER’s employees in furthering the interests of the OWNER. The

CONTRACTOR agrees to furnish efficient business administration and superintendence and use its efforts to complete the Project in the most expeditious and economical manner consistent with the Contract Documents and with the interest of the OWNER.

1.01 The Construction Team

The OWNER, OWNER’s Contact Person, Engineer and the CONTRACTOR, called the “Construction

Team”, shall work jointly through final construction completion and shall be available thereafter should additional services be required in accordance with this Agreement.

1.02 Extent of Agreement

This Agreement, consisting of the contract documents as defined herein, between the OWNER and the

CONTRACTOR supersedes any prior negotiations, representations or agreements. This Contract shall not be superseded by any provision of any of the other Contract Documents and may be amended only by written instrument signed by both OWNER and CONTRACTOR. It is the intention of this Contract to utilize the City of Casselberry, Florida – Utilities Standards & Specifications Manual, is incorporated by reference, May 2011 or subsequent version, Division I “General Requirements and Covenants, Division II “Construction Details” and Division III “Materials” are incorporated by reference to Florida

Department of Transportation, Standard Specifications for Road and Bridge Construction, 2017 or subsequent version, Procurement Standards – 2 CFR 200.317 through 200.326, Appendix II to 2 CFR

Part 200, NRCS Supplement to OSHA Parts 1910 and 1926, except when in conflict with this Contract.

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In case of any such conflict, the terms contained in this Contract shall prevail. Wherever the term

“Department” is utilized in the referenced F.D.O.T. Specification it shall be interpreted to mean

“OWNER” as defined herein. Additionally, the terms “Director” and “Engineer” shall be interpreted to mean the “City of Casselberry Engineer.”

1.03 Review of Agreement

The OWNER and the CONTRACTOR hereby acknowledge that they have fully reviewed this document, its attachment and addenda, and have had the opportunity to consult legal counsel of their choice in the negotiation of this Document. The parties cooperated in the preparation of this document and it shall not be construed against any party as if said party prepared the draft of this document.

1.04 Total Contract

This document incorporates and includes all negotiations, correspondence, conversations, other agreements or understandings applicable to the matters contained herein and the parties agree that there are no commitments, warranties or understandings concerning the subject matter of this agreement that is not contained in this document. Accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements whether oral or written.

1.05 Definitions and Applicable Standards, Specifications, and Grant Funding Regulations

A. Whenever used in this Agreement or other Contract Documents, the following terms shall have the meanings indicated:

1. Addenda - Written or graphic instruments issued prior to the opening of Bids, which clarify, correct or change the bidding documents or the Contract Documents.

2. Agreement - The written agreement between OWNER and CONTRACTOR covering the

Work to be performed; other Contract Documents are attached to the Agreement and made a part thereof as provided therein.

3. Application for Payment - The form accepted by OWNER which is to be used by

CONTRACTOR in requesting progress or final payments and which is to include such supporting documentation as is required by the Contract Documents.

4. Bid - The offer or bid of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed.

5. Bonds - Bid, performance and payment bonds and other instruments of security.

6. Certificate of Insurance - The approved Certificates of Insurance furnished by the party required to furnish such insurance pursuant to this Contract or his carrier or carriers to guarantee that each of the parties are insured in accordance with the terms of this Contract.

7. Change Order - A written order agreed to by the CONTRACTOR approved by the OWNER

Contact Person and the Engineer, and authorized by the OWNER, or a written order issued by the Engineer and acknowledged by the OWNER and the CONTRACTOR pursuant to

Article 14.00 issued after execution of the Contract, authorizing a change in the Work or an adjustment in the Contract sum or the Contract Time.

8. Claim - A Claim is a demand or assertion by one of the parties seeking adjustment or interpretation of contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. Claims must be made by written notice and must specifically detail all facts and issues substantiating the Claim, including all costs and expenses incurred. Claims must be timely filed in accordance with the specific requirements in the General Conditions and under no circumstances whatsoever be based upon actual or

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verbal notice or lack of prejudice to the other party.

9. Contract Documents - The Contract Documents consist of this Agreement, Bid Documents, Drawings, Specifications, City of Casselberry, Florida – Utilities Standards & Specifications

Manual, is incorporated by reference, May 2011 or subsequent version, Division I “General

Requirements and Covenants, Division II “Construction Details” and Division III

“Materials” are incorporated by reference to Florida Department of Transportation, Standard

Specifications for Road and Bridge Construction, 2017 or subsequent version, Procurement

Standards – 2 CFR 200.317 through 200.326, Appendix II to 2 CFR Part 200, NRCS

Supplement to OSHA Parts 1910 and 1926, and all Modifications issued subsequent thereto.

The Contract Documents which constitute the entire Agreement between the OWNER and the CONTRACTOR except for modifications issued after this Agreement. Modifications issued subsequent to execution of this Agreement shall include but not be limited to the following:

a. Change Orders

b. Written Amendments to this Contract signed by the OWNER and the

CONTRACTOR

The Contract Documents shall not be construed to create any contractual relationship of any kind between the Engineer or the OWNER Contact Person and the CONTRACTOR.

Nothing contained in the Contract Documents shall create any contractual relationship between the OWNER, the Engineer, or the OWNER Contact Person and any Subcontractor or Sub-subcontractor.

10. Contract Time - The number of days or the date stated for the completion of the Work.

11. Contract Sum - Means the verified bid amount accepted by the OWNER.

12. CONTRACTOR - The CONTRACTOR is the person or entity identified as such in this

Contract and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term CONTRACTOR means the CONTRACTOR or his authorized representative.

13. Correction Period - The time during which the CONTRACTOR must correct defective Work or remove defective Work from the site and replace it with non-defective Work, all at no cost to the OWNER, pursuant to Paragraph 12.11 of the General Conditions, as supplemented.

14. Day - The term Day as used in the Contract Documents shall mean calendar day unless otherwise specifically designated.

15. Defective - An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment (unless responsibility for the protection thereof has been assumed by OWNER at Substantial Completion in accordance with paragraph 13.6).

16. Drawings - The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by the DESIGN ENGINEER and are referred to in the Contract Documents.

17. Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver.

18. Engineer - The City of Casselberry Engineer or other such Person as may be designated by the OWNER in the future during the term of this agreement. The Engineer is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term Engineer means the OWNER Engineer or his authorized representative.

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19. Excusable Delay - Any delay beyond the control and without the fault or negligence of the

CONTRACTOR, the OWNER, or any other contractor caused by events or circumstances such as, but not limited to, acts of God or of the public enemy, acts of interveners, acts of government other than the OWNER, fires, floods, epidemics, quarantine restrictions, freight embargoes, and hurricanes, tornadoes, or new sink holes. Labor disputes shall give rise only to an inexcusable delay. The sole remedy for Excusable Delay shall be an extension of time and in no circumstances shall additional compensation be paid for such Delays.

20. Field Order - A written order issued by ENGINEER which orders minor changes in the Work in accordance with paragraph 8.3 but which does not involve a change in the Contract Price or the Contract Time.

21. Float or Slack Time - The time available in the progress schedule during which an unexpected activity can be completed without delaying the Substantial Completion of the

Work. Float is not for the exclusive benefit of any one party to the project.

22. General Requirements - Sections of Division 1 of the Specifications.

23. Inexcusable Delay - Any delay caused either (i) by events or circumstances within the control of the CONTRACTOR, such as inadequate crewing, slow submittals, etc., which might have been avoided by the exercise of care, prudence, foresight, or diligence on the part of the

CONTRACTOR, or (ii) by labor disputes.

24. Initiation of Operation - The date when the OWNER actually begins to use the entire work for the purposes for which it was planned, designed and built, thus commencing the

Correction Period, as adjusted by the OWNER. The OWNER shall not be deemed to have accepted the Work until Initiation of Operation.

25. Laws and Regulations; Laws or Regulations - Laws, rules, regulations, ordinances, codes and/or orders.

26. Non-Prejudicial Delay - Any delay impacting a portion of the Work within the available total float or slack time and not necessarily preventing completion of the Work within the Contract

Time.

27. Notice - The term “Notice” as used herein shall mean and include all notices, instructions, claims, approvals, and disapprovals and shall be in writing.

28. Notice of Award of Contract - The written notice by ENGINEER to the apparent successful bidder stating that upon compliance by the apparent successful bidder with the conditions precedent enumerated therein, within the time specified, OWNER will sign and deliver

Agreement.

29. Notice to Proceed - The term “Notice to Proceed” as used herein shall mean a written notice stating the Specified Date of Commencement of the Work.

30. OWNER - The OWNER is the City of Casselberry, Florida as represented by the City

Commission in this Agreement and is referred to throughout the Agreement Documents as if singular in number and masculine in gender. The term OWNER means the OWNER or his authorized designee.

31. OWNER Contact Person - The OWNER Contact Person is OWNER staff designated by the

Engineer to represent the OWNER and provide direct interface with the CONTRACTOR and the Engineer with respect to the OWNER’s responsibilities. The OWNER Contact Person’s duties and responsibilities with respect to the CONTRACTOR are as provided for in this

Contract.

32. Partial Utilization - Placing a portion of the Work in service for the purpose for which it is intended (or a related purpose) before reaching Substantial Completion for all the Work.

33. Plans - Any and all drawings that may be furnished or approved by the OWNER during the progress of the Work.

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34. Prejudicial Delay - Any excusable or compensable delay impacting the Work and exceeding the total float available in the progress schedule, thus preventing completion of the Work within the Contract Time unless the Work is accelerated.

35. Pre-Operational Testing (Check-out testing) - All field inspections, installation checks, water tests, performance tests, and necessary correction required of CONTRACTOR as a condition or conditions to achieving Substantial Completion to demonstrate to the OWNER that individual components of the Work have been properly constructed and do operate in accordance with the Contract Documents.

36. Product Data - Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the CONTRACTOR to illustrate a material, produce or system for some portion of the Work.

37. Project-The Project is the entire construction of the Project ITB-2017-0177, Gee Creek

Erosion Control Project – Phase I (Sheet Piling), as presented in construction plans.

38. Project Material - Materials prepared by or at the direction of the Engineer that may include but are not limited to the following items: the schedules, notes, details, bidding requirements, bidding forms, general requirements, general conditions, supplementary conditions, plans and technical specifications.

39. Project Scope -The Scope of the Project as outlined in the Contract Documents.

40. Resident Project Representative - The authorized representative of ENGINEER who is assigned to the site or any part thereof.

41. Samples - Physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged.

42. Semifinal Inspection – An inspection conducted by the ENGINEER after notice from the

CONTRACTOR and within seven (7) days of Substantial Completion.

43. Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the CONTRACTOR, a Subcontractor, a Sub-subcontractor, manufacturer, supplier or distributor and which illustrate the equipment, material or some portion of the Work and as required by the Contract Documents.

44. Specifications or Technical Specifications - The directions, provisions, and requirements contained in the Project Manuals and Contract Documents together with all written agreements made, or to be made, pertaining to the method and manner of performing the

Work, or the quantities and qualities of material and which are to be furnished under the

Contract Documents.

45. Specified Date of Commencement of the Work - The date established to commence the Work in the Notice to Proceed.

46. Start-Up Testing (Demonstration Testing) - A predefined trial period required as a condition to Initiation of Operation during which CONTRACTOR is to operate the entire Work (or any part thereof agreed to by the OWNER under actual and simulated operating conditions for the purpose (i) of making such minor adjustments and changes to the Work as may be necessary for the Work to comply with the Contract Documents and (ii) of complying with the final test requirements in the Contract Documents.

47. Subcontractor - A Subcontractor is a person or entity who has a direct or indirect contract with a CONTRACTOR to perform any of the Work at the site. The term Subcontractor is referred to throughout the Contract Documents as if singular in number and masculine in gender and means a Subcontractor or his authorized representative. The term Subcontractor does not include any Separate CONTRACTOR or his subcontractors.

48. Sub-subcontractor - A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform any of the Work at the site. The term Sub-

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subcontractor is referred to throughout the Contract Documents as if singular in number and masculine in gender and means a Sub-subcontractor or an authorized representative thereof.

49. Substantial Completion - The date of Substantial Completion of the Work or designated portion thereof is the Date certified by the Engineer when all items of Contract work are completed. In any event, Substantial Completion shall be achieved by the date set forth in

Section 3.01.

50. Supplementary Conditions - The part of the Contract Documents which amends or supplements these General Conditions.

51. Supplier - A manufacturer, fabricator, supplier, distributor, materialman or vendor.

52. Surety - The corporate body which is bound with and for the CONTRACTOR and which engages to be responsible for his payment of all debts pertaining to, and for his acceptable performance of the Work for which he has contracted.

53. Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which have been installed underground to furnish any of the following services or materials;

electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, sewage and drainage removal, traffic or other control systems or water.

54. Unit Price Work - Work to be paid for on the basis of unit prices.

55. Work - Any and all obligations, duties and responsibilities necessary to the successful completion of the Project assigned to or undertaken by the CONTRACTOR under the

Contract Documents, including all labor, materials, equipment, and other incidentals, and the furnishing thereof.

56. Work Directive Change - A written directive to CONTRACTOR, issued on or after the

Effective Date of the Agreement and signed by ENGINEER, ordering an addition, deletion or revision in the Work, or responding to differing or unforeseen physical conditions under which the Work is to be performed as provided in paragraphs 4.1, 4.2 or 4.3 or to emergencies under paragraph 6.23. A Work Directive Change may not change the Contract

Price or the Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Directive Change will be incorporated in a subsequently issued

Change Order following negotiations by the parties as to its effect, if any, on the Contract

Price or Contract Time as provided in paragraph 9.2.

57. Written Amendment - A written amendment of the Contract Documents, signed by OWNER and CONTRACTOR on or after the Effective Date of the Agreement and normally dealing with the non-engineering or non-technical rather than strictly Work-related aspects of the

Contract Documents.

B. Applicable Standards, Specifications and Regulations

The following standards, specifications and/or regulations are hereby incorporated herein by reference:

1. City of Casselberry, Florida – Utilities Standards & Specifications Manual, is incorporated by reference, May 2011 or subsequent version.

2. Division I “General Requirements and Covenants, Division II “Construction Details” and

Division III “Materials” are incorporated by reference to Florida Department of

Transportation, Standard Specifications for Road and Bridge Construction, 2017 or subsequent version.

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1.06 Execution, Correlation and Intent

A. A minimum of one (1) copy of this Agreement shall be signed by the OWNER and the

CONTRACTOR.

B. By executing the Agreement, the CONTRACTOR represents that he has visited the site, familiarized himself with the local conditions under which the Work is to be performed, and correlated his observations with the requirements of the Contract Documents. Familiarity with local conditions shall include, without limitation, (1) the condition and layout of the Project Site and surrounding locale, (2) available labor supply and costs, (3) available subcontractor and suppliers, (4) the prevailing climate, including the impact of rain, (5) available material and equipment and cost, and

(6) other similar issues. CONTRACTOR shall make no Claim for additional time or money based upon its failure to comply with this paragraph.

C. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one (1) shall be as binding as if required by all. Work not covered in the Contract Documents will not be required unless it is consistent therewith and is reasonably inferable therefrom as being necessary to produce the intended results. Unless a contrary meaning is clearly indicated within the

Contract Documents, words and abbreviations which have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

D. The organization of the Specifications into divisions, sections and articles, and the arrangement of

Drawings shall not control the CONTRACTOR in dividing the Work among Subcontractors or in establishing the extent of the Work to be performed by any trade.

ARTICLE - 2.00 CONTRACTOR SERVICES AND RESPONSIBILITIES

2.01 Basic Services and Responsibilities

The CONTRACTOR’s Basic Services and Responsibilities shall include, but are not limited to, those described or specified herein. The services described or specified shall not be deemed to constitute a comprehensive specification having the effect of excluding services not specifically mentioned as follows:

A. Review Contract Documents and bring discrepancies, errors and omissions to the attention of the

Engineer and OWNER Contact Person.

B. Acquaint subcontractors and sub-subcontractors, if any, with the schedule and stress items of work and materials that are critical to the program.

C. Discuss the schedule with potential subcontractors of work before awarding any subcontracts and review each potential subcontractor’s submission and qualifications with regard to the ability of each of the potential subcontractors to perform the work in a good and workmanlike manner and to complete the work in the time set forth in the Contract Documents.

D. Require Subcontractors as a term of their respective Subcontracts to agree to meet the project schedule which applies to each of them.

E. If applicable, advise the Engineer and OWNER Contact Person on the separation of the project into subcontracts for various categories of work. Provide, in such separation, that the work of the subcontractors is coordinated, all requirements for the project have been assigned to appropriate subcontractors or provided by the CONTRACTOR, and proper coordination has been provided for construction.

F. Provide administrative, management, supervision, and related services as required to coordinate work of the Subcontractors with each other and with the activities and responsibilities of the

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Construction Team to complete the Project in accordance with the Contract Documents. Provide sufficient organization, personnel, management and supervision to carry out the requirements of the

Work.

G. Provide cash flow forecast report and updates as needed for the Contract Sum and incorporate approved changes as they occur.

H. Maintain cost accounting records on authorized Work performed under unit costs, additional work performed on the basis of actual costs of labor and materials, other Work requiring accounting records, or allowance costs for materials and any associated labor.

I. Provide a safety program prior to construction start for the Project subject to Engineer’s and

OWNER Contact Person’s review and coordinate the Subcontractor’s participation in the safety program.

J. Be responsible for construction means, methods, techniques, sequences and procedures employed by it and Subcontractors in the performance of the Work and for the failure of it or of any Subcontractor to carry out Work in accordance with the Contract Documents.

K. Consult with the Engineer and OWNER Contact Person for interpretations of the meaning and intent of the Drawings and Specifications.

L. Receive, review, and approve all Shop Drawings, Product Data, Samples and other submittals from the Subcontractors. Coordinate them with information contained in related contract documents and transmit approved submittals consistent with the Contract Documents to the Engineer. Samples will be provided by the CONTRACTOR to the Engineer for approval. Thereafter, samples will be maintained by the CONTRACTOR.

M. The CONTRACTOR shall maintain at the site for the OWNER one record copy of all Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record all changes made during construction, and approved Shop Drawings, Product

Data and Samples. These shall be available to the Engineer and OWNER Contact Person during the

Work and upon completion of the Work shall be delivered to the Engineer for review. The Engineer shall then deliver them to the OWNER Contact Person for the OWNER.

ARTICLE - 3.00 COMMENCEMENT, TIME AND SUBSTANTIAL COMPLETION

3.01 Duration Days

The Work to be performed under this Contract shall commence with the Specified Date of

Commencement and, subject to authorized adjustments, Substantial Completion shall be achieved no later than sixty (60) consecutive calendar days after the issuance of the Notice to Proceed. Project completion shall be no later than ninety (90) consecutive calendar days after the issuance of the Notice to Proceed.

The CONTRACTOR’s substantial completion of the work to be performed, if prior to the sixty (60) consecutive calendar days after the date of specified date of commencement as set forth herein, shall not be the basis for any claim for additional compensation by the CONTRACTOR against the OWNER.

3.02 Time

Time is of the essence in the Contract Documents.

3.03 Start

The CONTRACTOR shall begin the Work on the Specified Date of Commencement in accordance as outlined in the issued Notice to Proceed. The CONTRACTOR shall carry the Work forward expeditiously with adequate forces and shall achieve Substantial Completion of the Project within the

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Contract Time.

3.04 Delays

If the CONTRACTOR is delayed at any time in the progress of the Work by any act or neglect of the

OWNER, or by changes ordered in the Work, or by labor disputes not caused by the CONTRACTOR or beyond the CONTRACTOR’s control, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipatable, unavoidable casualties, or any causes beyond the CONTRACTOR’s control, unforeseen soil, subsurface, or other such conditions, or by delay authorized by the OWNER, or by any other cause not the fault of the CONTRACTOR which the Engineer determines may justify the delay, then the Contract Time shall be extended by Change Order for a reasonable time pursuant to

Paragraph 3.05. Notwithstanding any provision in the Contract Documents to the contrary, an extension of time shall be the sole and exclusive remedy for damages due to delay, including by way of illustration and not limitation loss of profits, loss of use, home office overhead expenses, equipment rental and to all other claims, including delays attributable to breach of contract or tort.

3.05 Claim - for Extension of Time

Any claim, for extension of time shall be made in writing to the Engineer not more than ten (10) days after the occurrence of the event giving rise to the commencement of the delay; otherwise it shall be waived. In the case of a continuing delay only one claim is necessary. The CONTRACTOR shall provide an estimate of the probable effect of such delay on the progress of the Work. If the OWNER

Contact Person and the CONTRACTOR cannot agree as to what is a reasonable extension of time, the

Engineer shall decide what a reasonable time extension is. Any extension of time resulting from the

OWNER Engineer’s decision shall be authorized by Change Order.

3.06 Promptness

No claim for delay shall be allowed on the basis of uncertainty over contract terms so long as more definite interpretations of the Contract Documents are furnished with reasonable promptness after written request is made of them.

ARTICLE - 4.00 CONTRACT SUM

2.01 Compensation

The amount to be paid under this Agreement for services rendered will not exceed <INSERT WRITTEN

WORDS> and <XX>/100 Dollars (<INSERT NUMERICAL AMOUNT IN PARENTHESES>) for the term of this Agreement, in accordance with the pricing schedule set forth in Exhibit “B” which is attached hereto and made a binding part hereof.

2.02 Reduction in Scope

Any reduction in Contract Sum resulting from a decrease in Project Scope shall not be shared with the

CONTRACTOR but shall be credited 100% to the OWNER.

ARTICLE - 5.00 PROGRESS PAYMENTS

5.01 Payment Record

Based upon Applications for Payment submitted by the CONTRACTOR to the Engineer with a copy to the OWNER Contact Person, and Certificates for Payment issued by the Engineer pursuant to this

Article, the OWNER shall make progress payments on account of the Contract Sum to the

CONTRACTOR as provided in the Contract Documents for the period ending five (5) working days

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before the end of the month in accordance with the procedure delineated in this Article.

5.02 Schedule of Values and Work Schedule

Before the first Application for Payment, the CONTRACTOR shall submit to the Engineer a schedule of values allocated to the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Engineer may require. This schedule, unless objected to by the

OWNER or the Engineer shall be used only as a basis for the CONTRACTOR’s Applications for

Payment. In addition to the schedule of values, the CONTRACTOR shall also submit to the Engineer, the required work schedules as set forth in Paragraph 8.14 of this Agreement. No progress payment shall be made by the OWNER unless the CONTRACTOR strictly complies with the provisions of this section.

5.03 Payment Estimate - Submittal and Disposition

The CONTRACTOR shall be required to submit a completed Certification of Previous Payment to

Subcontractors form with each request for partial payment estimate. Failure to submit this required certification will result in the request for partial payment being rejected and returned to the

By the twenty-fifth (25th) of the month, the CONTRACTOR will submit to the Engineer with a copy to the OWNER Contact Person a partial payment estimate filled out, signed and notarized by the

CONTRACTOR covering the Work performed during the month covered by the partial payment estimate and supported by such data as the OWNER, Engineer or the OWNER Contact Person, may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at or near the site, the partial payment estimate shall also be accompanied by such supporting data, satisfactory to the OWNER and the Engineer, as will establish the

OWNER’s title to the material and equipment and protect his interest therein, including applicable insurance. The Engineer will within twenty (20) days (excluding Saturdays, Sundays and holidays) after receipt of each partial payment estimate do one of the following: 1) indicate in writing his approval of payment and present the partial payment estimate together with a certificate for payment to the

OWNER; 2) submit to the OWNER a Certificate for Payment for partial payment recommending payment by the OWNER of such other amounts as the Engineer shall consider is due the

CONTRACTOR, informing the CONTRACTOR, the OWNER and the Engineer of the reason for his recommendation; or 3) return the partial payment estimate to the CONTRACTOR indicating in writing his reasons for refusing to approve payment. In the latter two instances, the CONTRACTOR may make the necessary corrections and resubmit the partial payment estimate. The OWNER will within fifteen

(15) days of approval by the Engineer of a certificate of payment, pay the CONTRACTOR a progress payment on the basis of the approved partial payment estimate.

5.04 Issuance of Certificate for Payment - Representations

The issuance of Certificate of Payment by the Engineer will constitute a representation to the OWNER, based on his observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated; that, to the best of his knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the

Contract Documents correctable prior to completion, and to any specific qualification stated in his

Certificate) and that the CONTRACTOR is entitled to payment in the amount certified. However, by issuing a Certificate for Payment, the Engineer shall not be deemed to represent that he has made

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exhaustive or continuous on-site inspections to check the quality or quantity of the Work or that he has reviewed the construction means, methods, techniques, sequences or procedures, or that he has made any examination to ascertain how or for what purpose the CONTRACTOR has used the monies previously paid on account of the Contract Sum. Issuance of Certificate of Payment does not constitute a waiver of the OWNER’s rights under Paragraph 5.15.

A. Retainage Payment - Except as State Law or current Local Ordinance otherwise provides, the

OWNER shall retain ten percent (10%) of the amount of each payment until final completion and acceptance of all Work covered by the Contract Documents. The OWNER after fifty percent (50%) of the Work has been completed, if he finds that satisfactory progress is being made, may elect to not withhold retainage on the remaining payment estimates, provided that the total retainage on all amounts paid averages five percent (5%) or greater. When the Work is Substantially Complete as set forth herein, the retained amount may be further reduced below five percent (5%) to only that amount necessary to assure completion as provided for in the Contract Documents. The OWNER may reinstate up to ten percent (10%) withholding if the OWNER determines, at his discretion, that the CONTRACTOR is not making satisfactory progress or there is other specific cause for such withholding. Substantial Completion of a portion of the Work does not entitle the CONTRACTOR to a reduction in retainage on the portion which is substantially complete.

5.05 Payments Withheld

A. Engineer Declining to Issue Certificate for Payment

The Engineer may decline to certify payment and may withhold his Certificate in whole or in part, to the extent reasonably necessary to protect the OWNER, if in his opinion he is unable to make representations to the OWNER as provided in Paragraph 5.04, or in order to protect the OWNER as provided in 5.05. If the Engineer is unable to make representations to the OWNER as provided in

Paragraph 5.04 and to certify payment in the amount of the Application, or he is unable to certify payment in the amount of the application to protect the OWNER as provided in 5.05, he will notify the CONTRACTOR as provided in Subparagraph 5.03. If the CONTRACTOR, OWNER Contact

Person and the Engineer cannot agree on a revised amount, the Engineer will promptly issue a

Certificate for Payment for the amount for which he is able to make such representations to the

OWNER. The Engineer may also decline to certify payment or, because of subsequently discovered evidence or subsequent observations, he may nullify the whole or any part of any Certificate for

Payment previously issued or require a bond satisfactory to the OWNER to substitute for such nullification, to such extent as may be necessary in his opinion, to protect the OWNER from loss from the following, including but not limited to:

1. defective work not remedied;

2. third party claims filed or reasonable evidence indicating probable filing of such claims;

3. failure of the CONTRACTOR to make payments properly to Subcontractors for labor, materials or equipment;

4. reasonable evidence that the Work cannot be completed for the unpaid balance of the

Contract Sum;

5. damage to the OWNER or another CONTRACTOR;

6. reasonable evidence that the Work will not be completed within the Contract Time; or

7. persistent failure to carry out the Work in accordance with the Contract Documents;

8. failure of CONTRACTOR to maintain records as per Paragraph 2.01(M).

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When the above grounds in Paragraph 5.05 are removed, payments shall be made for amounts withheld because of them.

5.06 Inclusion of Materials and Equipment in Estimates

As provided for in Paragraph 5.03, payments may be made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site and, if approved in advance by the

OWNER, payments may similarly be made for materials or equipment suitably stored at some other location agreed upon in writing. Payments for materials or equipment stored on or off the site shall be conditioned upon submission by the CONTRACTOR of bills of sale or such other procedures satisfactory to the OWNER to establish the OWNER’s title to such materials or equipment or otherwise protect the OWNER’s interest, including applicable insurance and transportation to the site for those materials and equipment stored off the site. The CONTRACTOR shall be responsible for proper storage of the material and for providing protection from loss of materials or any damage.

5.07 Liens

The CONTRACTOR warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the OWNER either by incorporation in the construction or upon the receipt of payment by the CONTRACTOR, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Paragraph 5.07 as “liens”; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the

CONTRACTOR, or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the CONTRACTOR or such other person.

5.08 Payments to Subcontractors

The CONTRACTOR shall be required to submit a completed certification of previous payment to subcontractors form with each request for partial payment estimate. Failure to submit the required certification will result in the request for partial payment estimate being rejected and returned to the

The CONTRACTOR shall promptly pay each Subcontractor, upon receipt of payment from the

OWNER, out of the amount paid to the CONTRACTOR on account of such Subcontractor’s Work, the amount to which said Subcontractor is entitled, reflecting the percentage actually retained, if any, from payments to the CONTRACTOR on account of such Subcontractor’s Work less any back charges or other items specified in the between the CONTRACTOR and Subcontractor. The CONTRACTOR shall, by an appropriate agreement with each Subcontractor, require each Subcontractor to make payments to his Subcontractors in similar manner. Nothing hereby shall be deemed to make subcontractors, material-men, or other supplies of labor or materials to be parties to this contract, third party beneficiaries thereof, or create privity in any way with the OWNER, either equitable or legal in nature.

5.09 Subcontractors - Obligations of the OWNER

The OWNER shall not have any obligation to pay or to see to the payment of any moneys to any

Subcontractor or Sub-subcontractor except as may otherwise be required by this Contract or law.

5.10 Reserved

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5.11 Payment Upon Substantial Completion

Upon Substantial Completion of the Work and upon application by the CONTRACTOR and certification by the Engineer, the OWNER shall make payment, if any, for such Work as provided in the

Contract Documents.

5.12 Procedures for Final Completion Certificate for Payment

Following the Engineer’s issuance of the Certificate of Substantial Completion of the Work, and the

CONTRACTOR’s completion of the Work, the CONTRACTOR shall forward to the Engineer a final

Application for Payment. Upon receipt, the Engineer will make any necessary evaluations, and will make necessary inspection. When the Engineer finds the Work acceptable under the Contract

Documents and the Contract fully performed, the Engineer will issue a Certificate for Payment which will approve the final payment due the CONTRACTOR. This approval will constitute a representation that, to the best of the Engineer’s knowledge, information and belief, and on the basis of observations and inspections, the Work has been completed in accordance with the Terms and Conditions of the

Contract Documents and that the entire balance found to be due the CONTRACTOR, and noted in said

Certificate, is due and payable. The Engineer’s approval of said project Certificate for Payment will constitute a further representation that the conditions precedent to the CONTRACTOR being entitled to final payment as set forth in Paragraph 5.13 have been fulfilled.

5.13 Conditions Precedent to Final Payment

The final payment shall not become due until the CONTRACTOR submits to the Engineer: 1) an affidavit that all payrolls, bills for materials and equipment, and other indebtedness connected with the

Work for which the OWNER or his property might in any way be responsible, have been paid or otherwise satisfied; 2) consent of surety to final payment; 3) if required by this Contract or applicable law or ordinance, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of liens arising out of the Work, to the extent and in such form as may be designated by the OWNER; 4) items as required by Paragraph 2.01(13) of this Contract; If any

Subcontractor refuses to furnish a release or waiver required by the OWNER, the CONTRACTOR may furnish a bond satisfactory to the OWNER to indemnify OWNER against any such lien. If any such lien remains unsatisfied after all payments are made and a bond satisfactory to the OWNER to indemnify

OWNER against any such lien is not provided by the CONTRACTOR, the CONTRACTOR shall pay on demand to the OWNER all moneys that the OWNER may be compelled to pay in discharging such lien, including all costs and reasonable attorney’s fees.

5.14 Delay Between Substantial and Final Completion

If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the CONTRACTOR or by the issuance of Change Orders affecting final completion, and the

Engineer so confirms, the OWNER shall, upon application by the CONTRACTOR, certified by the

Engineer and without terminating the Contract, make payment of the balance due for that portion of the

Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than the retainage stipulated in the Contract Documents, the written consent of the surety to the payment of the balance due, for that portion of the Work fully completed and accepted, shall be submitted by the CONTRACTOR to the Engineer prior to certification of such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.

5.15 Final Payment - Waiver of Claims by OWNER

The making of Final Payment shall constitute a waiver of all claims by the OWNER except those arising

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from:

1. unsettled liens;

2. faulty or defective work appearing after final payment;

3. failure of the work to comply with the requirements of the Contract Documents; or

4. an error in partial or final payment.

5.16 Final Payment - Waiver of Claims by CONTRACTOR

The acceptance of final payment shall constitute a waiver of all claims by the CONTRACTOR except those previously made in writing and identified by the CONTRACTOR as unsettled at the time of the final Application for Payment.

5.17 Interest Rate

Payments due under the Contract Documents shall conform to the stipulations set forth in the State of

Florida’s Prompt Payment Act (Section 218.70, Florida Statutes). Said Act stipulates in part that the

OWNER may only be charged a 1% per month, 12% per annum maximum lifetime, on any outstanding balances due the CONTRACTOR.

ARTICLE - 6.00 THE ENGINEER

6.01 Responsibilities

The Engineer will provide administration of the Contract Documents as hereinafter described.

6.02 Representation

The Engineer and the OWNER Contact Person will be the OWNER’s Representative in all phases of the

Project. The Engineer will advise and consult with the OWNER. Unless otherwise provided in the

Contract Documents, the OWNER’s instructions to the CONTRACTOR shall be forwarded through the

Engineer. The Engineer will have authority to act on behalf of the OWNER only to the extent provided in the Contract Documents, unless otherwise modified by written instrument signed by the OWNER.

6.03 Site Visits

The Engineer will visit the site at intervals appropriate to the stage of construction to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. However, the Engineer will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.

6.04 Construction Methods

The Engineer, the OWNER Contact Person or any other employee of the OWNER will not be responsible for or have control or charge of construction means, methods, techniques, sequences or procedures, except as mandated by the Contract Documents, or for safety precautions and programs in connection with the Work, and will not be responsible for the CONTRACTOR’s failure to carry out the

Work in accordance with the Contract Documents. The Engineer, the OWNER Contact Person or any other employee of the OWNER will not be responsible for or have control or charge over the acts or omissions of the CONTRACTOR, Subcontractors, Sub-subcontractors, or any of their agents or employees, or any other persons performing any of the work.

6.05 Access to Site

The Engineer and the OWNER Contact Person shall at all times have reasonable access to the Work

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wherever it is in preparation and…