construction_contract-draft.pdf

CONSTRUCTION CONTRACT AND FORMS

1. WITNESSETH

THIS AGREEMENT is dated as of the ____________ day of ________________ in the year 20____ by and between THE CITY OF FORT MYERS hereinafter called CITY) and TBD (hereinafter called Contractor).

City and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows:

WITNESSETH

WHEREAS, the City desires to obtain the Services of said Contractor to provide and perform Services as further described hereinafter concerning the solicitation to be referred to and identified as: ***.

WHEREAS, the Contractor hereby certifies that Contractor has been granted and possesses valid, current licenses to do business in the State of Florida, in Lee County, and the City of Fort Myers, issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Contractor pursuant to this Agreement; and

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

2. Contract Documents

The Contract Documents, which comprise the entire agreement between the City and the Contractor concerning the Work consist of: 1) The advertised solicitation document, any addenda (if applicable), “Exhibit A” 2) The Respondents submittal, “Exhibit B” and also incorporate by reference: Drawings/Plans (if applicable), all Purchase Orders issued pursuant to the Solicitation documents, all amendments that may after the date of award be executed by the Contractor and the City, Certificates of Insurance, any other Solicitation Documents.

These items constitute the entire contract/agreement between the parties hereto and shall supersede, replace and nullify any and all prior agreements or understandings, written or oral, relating to the matters set forth herein, and any such prior agreements or understandings shall have no force or effect whatever on this Agreement.

3. Work

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

4. Contract Time

A. The Work will be substantially completed within *** consecutive calendar days from the date when the Contract Time commences and finally completed within *** consecutive calendar days from the date when the Contract Time commences to run.

B. Liquidated Damages. City and Contractor recognize that time is of the essence of this Agreement and that City will suffer financial loss if the Work is not completed within the times specified in the paragraph above, plus any extensions thereof allowed. They also recognize the delays, expense and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by City if the Work is not completed on time. Accordingly, instead of requiring any such proof, City and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay City *** for each day that expires after the time specified above for Substantial Completion if Contractor shall neglect, refuse or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by City, Contractor shall pay City *** for each day that expires after the time specified in the paragraph above for completion and readiness for final payment.

5. Contract Price

City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds as follows:$120,000.00

6. Contractor's Representation

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

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

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

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

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

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

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

7. Obligations of the City

7.1. DESIGNATION OF CITY’S REPRESENTATIVE

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

7.2. AVAILABILITY OF CITY INFORMATION

CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

A. PROJECT GUIDELINES AND CRITERIA

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

B. CITY TO PROVIDE PERTINENT REFERENCE MATERIAL

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

7.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

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

7.4. ACCESS TO CITY PROPERTY

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

7.5. PLAN REVIEWS

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

8. Payment Procedures

Contractor shall submit Applications for Payment as stipulated in the General Conditions. Applications for Payment will be processed by AE as provided in the General Conditions.

8.1. Progress Payments

City shall make progress payments on account of the Contract Price on the basis of Contractor’s Applications for Payment as recommended by AE, on or about the 20th day of each month during construction as provided below. All progress payments will be based on the progress of the Work measured by the schedule of values established (and in the base of Unit Price Work) based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements.

a) Prior to Substantial Completion, progress payments will be made monthly, but, in each case, less the aggregate of payments previously made and less such amounts as AE shall determine, or City may withhold payment.

b) Upon Substantial Completion, in an amount sufficient to increase total payments to Contractor to 90 % of the Contract Price, less such amounts as AE shall determine, or City may withhold, in accordance withhold payment.

8.2. Final Payment

. Upon final completion and acceptance of the Work of the General Conditions, City shall pay the remainder of the Contract Price as recommended by AE.

8.3. Interest

All money not paid when due as provided in the General Conditions shall bear interest at the maximum rate allowed by law at the place of the Project.

9. Time and Schedule of Performance

9.1. TIME OF PERFORMANCE

Should the Contractor be obstructed or delayed in the execution or completion of its obligations under this Agreement and its Amendment(s), as a result of causes beyond the control of the Contractor, or its Sub-Contractor(s) and/or Sub-Contractor(s), and not due to their fault or neglect, the Contractor shall notify the City, in writing, within five (5) calendar days after the commencement of such delay, stating the cause(s) thereof and requesting an extension of the Contractor’s time of performance. Upon receipt of the Contractor’s request for an extension of time, the City will begin determination with the Contractor to length of extension and legitimacy of cause.

9.2. CONTRACTOR WORK SCHEDULE

The Contractor shall be required, as a condition of this Agreement, to prepare and submit to the City, on a monthly basis, commencing with the issuance of the Notice to Proceed, a Contractor’s Work Schedule. Said Schedule shall be updated at each pay request. The Work Schedule shall set forth the time and manpower scheduled for all of the various phases and/or tasks required to provide, perform and complete all of the services and work required for completion of the various phases, and/or tasks of the project services set forth and described in this Agreement, pursuant to this Agreement in such a manner that the Contractor’s planned and actual work progress can be readily determined. The Contractor’s Work Schedule of planned and actual work progress shall be updated and submitted by the Contractor to the City on a monthly basis.

9.3. FAILURE TO PERFORM IN A TIMELY MANNER

Notwithstanding anything to the contrary in paragraph "Contractor Work Schedule" above, should the Contractor fail to commence, provide, perform and/or complete any of the services and work required pursuant to this Agreement in a timely and diligent manner, the City may consider such failure as justifiable cause to terminate this Agreement. As an alternative to termination, the City at its option, may, upon written notice to the Contractor, withhold any or all payments due and owing to the Contractor, not to exceed the amount of the compensation for the work in dispute, until such time as the Contractor resumes performance of his obligations in such a manner as to get back on schedule in accordance with the time and schedule of performance requirements set forth in the Agreement, or any Supplemental Agreement(s), or Change Order(s) or Amendment(s) issued thereto. Contractor shall not be responsible for failure to perform in a timely manner due to causes outside Contractor’s reasonable control.

10. Conflict of Interest

The Contractor represents that to the best of its knowledge and belief, it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. The Contractor further agrees that no person having any such interest shall be employed or engaged by the Contractor for said performance.

If Contractor, for itself and on behalf of its Sub-Contractors, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by Contractor or such Sub-Contractor under this Agreement, then it will promptly bring such potential conflict of interest to the City'S attention, in writing. The City will then advise the Contractor, in writing, within ten (10) calendar days as to the period-of-time required by the City to determine if such a conflict of interest exists. If the City determines that there is a conflict of interest, Contractor or such Sub- Contractor shall decline the representation upon written notice by the City.

If the City determines that there is no such conflict of interest, then the City shall give its written consent to such representation. If Contractor or Sub-Contractor accepts such a representation without obtaining the City'S prior written consent, and if the City subsequently determines that there is a conflict of interest between such representation and the work being performed by Contractor or such Sub-Contractor under this Agreement, then the Contractor or Sub-Contractor agrees to promptly terminate such representation. Contractor shall require each of such Sub-Contractors to comply with the provision of this Section.

Should the Contractor fail to advise or notify the City, as provided hereinabove, of representation which could, or does, result in a conflict of interest, or should the Contractor fail to discontinue such representation, the City may consider such failure as justifiable cause to terminate this Agreement.

11. Assignment, Transfer and Sub-contracts

The Contractor shall not assign or transfer any of its rights, benefits or obligations hereunder, without prior written approval from the City, except for transfers that result from: (1) the merger or consolidation of Contractor with a third party; or (2) the disestablishment of the Contractor’s practice and the establishment of a successor Contractor, or consulting organization. Nor shall the Contractor sub-contract any of its service obligations hereunder to third parties, except as otherwise authorized in this Agreement or Amendment(s) thereto, without prior written approval of the City. The Contractor shall have the right, subject to the City’s prior written approval, to employ other persons and/or firms to serve as Sub-Contractors and/or Sub-Contractors to Contractor in connection with Contractor providing and performing services and work pursuant to the requirements of this Agreement. The City shall have the right and be entitled to withhold such approval. Such approval shall not be unreasonably withheld.

In the event that the Contractor in providing and performing the services and work required pursuant to this Agreement, Contractor intends to engage the assistance of the Sub-Contractor(s) and/or Sub- Contractor(s).

12. Applicable Law

Unless otherwise specified, this Agreement shall be governed by the laws, rules, and regulations of the State of Florida, or the laws, rules, and regulations of the United States when providing services funded by the United States Government. The parties hereby irrevocably consent to the exclusive jurisdiction and venue of the State or Federal courts in Lee County, Florida, for any and all claims or causes of action arising from or related to this Agreement.

13. Covenants Against Discrimination

13.1. FOR PROJECTS WITH FUNDS APPROPRIATED FROM GENERAL CITY REVENUES

The Contractor for itself, its successors in interest, and assigns as part of the consideration, does hereby covenant and agree that in the furnishing services to City, no person on the grounds of race, religion, national origin, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The Contractor shall make every effort to comply with any MBE goals, which have been established for this project.

13.2. FOR PROJECTS WITH FUNDS APPROPRIATED EITHER IN PART OR WHOLLY FROM FEDERAL, STATE SOURCES OR OTHER SOURCES

The Contractor for itself, its successors in interest, and assigns as part of the consideration, does hereby covenant and agree that in the furnishing services to City, no person on the grounds of race, national origin, religion, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. The Contractor shall comply with the Office of Federal Contract Compliance Programs (OFCCP) and Executive Order 11246 Affirmative Action. Contractor who are uncertain of their obligations regarding MBE for this project must obtain a copy of all relevant federal, state or other grantor’s guidelines from the City Procurement Services. The failure of the Contractor to adhere to relevant guidelines shall subject the Contractor to any sanctions, which may be imposed upon the City.

14. Insurance

See "Indemnification and Insurance" within the solicitation.

15. Duties and Obligations Imposed on the Contractor

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

16. Representation of the City

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

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

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

17. Waiver of Breach

Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach and shall not be construed to be a modification of the terms of this Agreement.

18. Ownership of Documents

All documents such as drawings, tracings, notes, computer files, photographs, plans, specifications, maps, evaluations, reports and other records and data relating to this project, other than working papers, specifically prepared or developed by the Contractor under this Agreement, shall be property of the Contractor until the Contractor has been paid for providing and performing the services and work required to produce such documents.

Upon completion or termination of this Agreement, or upon the issuance by the City of a written Change Order deleting all or portions of the scope of services or task(s) to be provided or performed by the Contractor, all of the above documents, to the extent requested in writing by the City, shall be delivered by the Contractor to the City within seven (7) calendar days of the City making such a request. In the event the City gives the Contractor a written Notice of Termination of all, or part of, the services or work required, or upon the issuance to the Contractor by the City of a written Change Order deleting all, or part of, the services or work required, the CONTRACTOR shall deliver to the City the requested documents as set forth hereinabove, with the mutual understanding and commitment by the City that compensation earned or owing to the Contractor, for services or work provided or performed by the Contractor prior to the effective date of any such termination or deletion, will be paid to the Contractor within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order. Effective date of any such termination or deletion will be paid to the Contractor within thirty (30) calendar days of the date of issuance of the Notice of Termination or Change Order.

The Contractor, at its expense, may make and retain copies of all documents delivered to the City for reference and internal use. The Contractor shall not, and agrees not to, use any of these documents, and data and information contained therein, on any other project, or for any other client, without the prior expressed written permission of the City.

Any use by the City of said documents, and data and information contained therein, obtained by the City under the provisions of this Agreement, for any purpose not within the scope of this Agreement, shall be at the risk of the City, and without liability to the Contractor. The City shall be liable, and agrees to be liable for, and shall indemnify, defend and hold the Contractor harmless for any and all claims, suits, judgments or damages, losses and expenses including court costs, expert witness and consultation services, and attorneys' fees arising out of the City's use of such documents in a manner contrary to the provisions set forth hereinabove.

19. Maintenance of Records

See General Conditions within the attached solicitation.

20. Headings

The HEADINGS of the Articles, Sections, Exhibits, Attachments, Phases or Tasks, as contained in this Agreement, are for the purpose of convenience only and shall not be deemed to expand, limit or change the provisions contained in such Articles, Sections, Exhibits, Attachments, Phases or Tasks.

21. Notices and Address of Record

A. All notices from the City to the Contractor shall be deemed duly served if electronically transmitted to the Contractor at the following address:

TBD

Attn: > ***

B. All notices from the Contractor to the City shall be deemed duly served if electronically transmitted to the City at the following address:

City of Fort Myers Email: cfmpurchasing@cityftmyers.com, clerk@cityftmyers.com, and leg@cityftmyers.com

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

22. Termination

This Agreement will terminate once the agreement is fully satisfied and accepted by the City. This Agreement may also be terminated by the City at its convenience, or due to the fault of the Contractor, by the City giving thirty (30) days written notice to the CONTRACTOR.

If the Contractor is adjudged bankrupt or insolvent; if it makes a general assignment for the benefit of its creditors; if a trustee or receiver is appointed for the Contractor or for any of its property; if it files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws; if it disregards the authority of the City’s designated representatives; if it otherwise violates any provisions of this Agreement; or for any other just cause, the City may, without prejudice to any other right or remedy, and after giving the Contractor a thirty (30) calendar day written notice, terminate this Agreement.

In addition to the City’s contractual right to terminate this Agreement in its entirety, as set forth above, the City may also, at its convenience, stop, suspend, supplement or otherwise change all, or any part of, the Scope Of Services, or the Project Guidelines and Criteria, or as such may be established by Supplemental Agreement or Change Order. The City shall provide written notice to the Contractor in order to implement a stoppage, suspension, supplement or change.

The Contractor may request that this Agreement be terminated by submitting a written notice to the City dated not less than thirty (30) calendar days prior to the requested termination date and stating the reason(s) for such a request. However, the City reserves the right to accept, or not accept, the termination request submitted by the Contractor, and no such termination request submitted by the Contractor shall become effective unless, and until, Contractor is notified, in writing, by the City of its acceptance.

CONTRACTOR TO DELIVER MATERIALS ON TERMINATION

Upon termination, the Contractor shall deliver to the City all papers, drawings, models, and other material in which the City has exclusive rights by virtue hereof or of any business done, or services or work performed or provided by the Contractor on behalf of the City.

mailto:cfmpurchasing@cityftmyers.com mailto:clerk@cityftmyers.com mailto:leg@cityftmyers.com

23. Amendments/Modifications

Modifications to covenants, terms and provisions of this Agreement may be amended upon the mutual acceptance thereof, by both parties and shall only be valid when issued in writing as a properly executed Amendment(s), or Supplemental Agreement(s), or Change Order(s). In the event of any conflicts between the requirements, provisions, and/or terms of this Agreement and any written Amendment(s), Supplemental Agreement(s), and/or Change Order(s), the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

In the event the City issues a purchase order, memorandum, letter, or other instruments covering the Services, work and materials to be provided and performed pursuant to this Agreement, it is hereby specifically agreed and understood that such purchase order, memorandum, letter or other instruments are for the City's internal control purposes only, and any and all terms, provisions and conditions contained therein, whether printed or written, shall in no way modify the covenants, terms and provisions of this Agreement and shall have no force or effect thereon.

No modification, waiver, or termination of the Agreement, or of any terms thereof, shall impair the rights of either party.

24. Prohibition Against Contingent Fees

The Contractor warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this agreement, and that he has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of this Agreement.

25. Acceptance

IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement on the dates shown below to be effective the day and year first shown above.

SIGNATURE PAGE TO FOLLOW

City OF FORT MYERS, FLORIDA a Municipal Corporation ATTEST:

By: ____________________________________ _________________________________

Kevin B. Anderson, Mayor Mary Hagemann, CMC, City Clerk

Date: __________________________________

By: ____________________________________

Marty K. Lawing, City Manager

Date: __________________________________

APPROVED AS TO FORM:

Grant Williams Alley, City Attorney

TBD

___________________________________ BY: _____________________________________

(Witness) (Authorized Signature)

(Witness) (Title)

DATE: __________________________________

CORPORATE SEAL:

Attachments:

A - EXHIBIT A

B - EXHIBIT B

C - Form 1

D - Form 2

E - Form 3

F - Form 4

G - Form 5

H - Form 6

I - Form 7

J - Form 8

K - Form 9

L - Form 10

M - Form 11

N - Form 12

O - Form 13

P - Form 14

Q - Form 15

R - Form 16

S - Form 17

T - Form 18