Contract_Draft-South-Street-Sidewalk-Construction_2-4-2026.pdf

Contract 26-001 | Page 1

>Contractor

South Street Sidewalk Construction from US 41/Cleveland Avenue to SR 739/Fowler Street Rebid (FDOT 438101-2-58-01)

CONSTRUCTION AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

DRAFT

Contract 26-001 | Page 2

Table of Contents

1. TERM

2. NOTICES

2.1. NOTICES BY CONTRACTOR TO CITY

2.2. NOTICES BY CITY TO CONTRACTOR

2.3. CHANGE OR ADDRESS OF RECORD

3. CONTRACT DOCUMENTS

4. CONTRACT AMOUNT

5. CONTRACT TIME

6. REPRESENTATION OF THE CONTRACTOR

7. REPRESENTATION OF THE CITY

8. OBLIGATION OF THE CONTRACTOR

8.1. EQUIPMENT

8.2. INSPECTION AND TESTING

8.3. PERMITS/TAXES/LICENSES/ORDINANCES

8.4. PROGRESS REPORTS

8.5. CITY’S PROJECT MANAGER

8.6. PROTECTION OF LOSS/DAMAGE

8.7. QUALITY CONTROL

8.8. SAFETY

8.9. SUBCONTRACTORS

8.10. WARRANTY

8.11. DOCUMENTS

8.12. EMPLOYEES

8.13. CONTRACTOR’S PROJECT MANAGER

8.14. PROCORE SOFTWARE

9. OBLIGATION'S OF THE CITY

9.1. DESIGNATION OF CITY’S REPRESENTATIVE

9.2. AVAILABILITY OF CITY INFORMATION

9.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

9.4. ACCESS TO CITY PROPERTY

9.5. PLANS REVIEW

10. TIME AND SCHEDULE OF PERFORMANCE

10.1. NOTICE TO PROCEED/PURCHASE ORDER

10.2. TIME OF PERFORMANCE

Contract 26-001 | Page 3

10.3. CONTRACTOR WORK SCHEDULE

10.4. FAILURE TO PERFORM IN A TIMELY MANNER

10.5. LIQUIDATED DAMAGES

11. CONFLICT OF INTEREST

12. LAWS / VENUE

12.1. BACKGROUND SCREENING

12.2. CYBERSECURITY

12.3. E-VERIFY

12.4. FLORIDA CIVIL RIGHTS ACT (FCRA)

12.5. FLORIDA PUBLIC RECORDS LAW

12.6. HUMAN TRAFFICKING

12.7. IMPROPER USE OF CITY FACILITIES

12.8. PUBLIC ENTITY CRIMES

12.9. SCRUTINIZED COMPANIES

13. INSURANCE

13.1. COMPREHENSIVE AUTOMOBILE LIABILITY

13.2. COMMERCIAL GENERAL LIABILITY

13.3. WORKERS COMPENSATION AND EMPLOYERS LIABILITY

13.4. INSURANCE CERTIFICATE REQUIRED

13.5. INSURANCE TERMS AND CONDITIONS

14. WAIVER OF BREACH

15. OWNERSHIP OF DOCUMENTS

16. HEADINGS

17. TERMINATION

18. RESERVATION OF RIGHTS

19. AMENDMENTS/MODIFICATIONS

20. PROHIBITION AGAINST CONTINGENT FEES

21. PAYMENT

21.1. DISCOUNTS

21.2. INVOICING

21.3. METHOD OF PAYMENT

21.4. DIRECT MATERIAL PURCHASE

21.5. PAYMENT DISPUTE RESOLUTION

22. LAP AGREEMENT PROVISIONS

22.18. INDEMNIFICATION AND HOLD HARMLESS AGREEMENT:

22.21. TERMINATION

Contract 26-001 | Page 4

23. GENERAL CONDITIONS

23.1. ACCEPTANCE OF MATERIALS/SERVICES

23.2. ADDITIONAL SERVICES

23.3. AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

23.4. ANTITRUST

23.5. ASSIGNMENT/TRANSFER/SUBCONTRACTS

23.6. FORCE MAJEURE

23.7. PURCHASE ORDERS

23.8. RELATIONSHIP BETWEEN THE PARTIES

23.9. SEVERABILITY

23.10. TAXES

23.11. NOTICE OF CLAIM / WAIVER OF REMEDIES / NO DAMAGES FOR DELAY

24. THIRD-PARTY BENEFICIARIES

25. ACCEPTANCE

Exhibits List CONTRACTORS SUBMITTAL With FDOT FORMS Human Trafficking Affidavit w37503031 Federal Terms for LAP Construction

EXHIBIT

Compliance with the Davis-Bacon Act

Payment Bond Performance Bond Project Security Payment Application Sublet Work Certification Field Order Work Directive Change Form1 Change Order Project Closeout Checklist Certificate of Substantial Completion Statement of Guarantee Warranty of Title Certification of Contributory Assets

Exhibit R Appendices A and E

Contract 26-001 | Page 5

This Agreement between the City of Fort Myers, Florida (hereafter called City), executing this Agreement, and TBD (hereafter called Consultant).

The Contract may be cancelled or terminated as provided in the Contract documents. Any amendments to this Contract must be in writing.

RECITALS

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 South Street Sidewalk Construction from US 41/Cleveland Avenue to SR 739/Fowler Street Rebid (FDOT 438101-2-58- 01).

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:

1. TERM

This Agreement is effective on the date as indicated on the Notice to Proceed and continues through >enddate, unless amended by a change order.

The City has the right to cancel or terminate this contract as described in these documents.

2. NOTICES

2.1. NOTICES BY CONTRACTOR TO CITY

All notices required and/or made pursuant to this Agreement to be given by the Contractor to the City shall be in writing and shall be given to the following electronic email addresses of record:

procurementservices@fortmyers.gov, cc@fortmyers.gov, and legalservice@fortmyers.gov.

Copy to:

City Attorney's Office, City of Fort Myers, 2200 Second Street, Fort Myers, FL 33901

DRAFT

mailto:procurementservices@fortmyers.gov mailto:clerk@cityftmyers.com mailto:legalservice@fortmyers.gov

Contract 26-001 | Page 6

2.2. NOTICES BY CITY TO CONTRACTOR.

All notices required and/or made pursuant to this Agreement to be given by the City to the Contractor shall be made in writing and shall be provided electronically to the email address below:

Contractor's Name: >[TBD]

Point of Contact: >[TBD]

Address: >[TBD]

Phone:>[TBD]

Email: >[TBD]

2.3. CHANGE OR ADDRESS OF RECORD

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

3. CONTRACT DOCUMENTS

The Contract Documents, which comprise the entire agreement between the City and the Consultant concerning the Work consist of this document plus: Attachment A-Scope of Services, Attachment B-Bid Schedule/ Schedule of Values and Exhibits. Also incorporated by reference are: the solicitation document, Drawings/Plans (if applicable), addenda (if applicable), all Purchase Orders issued pursuant to the Solicitation documents, all amendments that may after the date of award be executed by the City. If this is a continuing contract, 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.

If there is a conflict between the contract and solicitation the more stringent applies. The order of Precedence is as follows:

3.1. Amendments issued after contract execution, incorporated by reference

3.2. Permits (if applicable), incorporated by reference

3.3. This Agreement

3.4. Solicitation addenda and written questions/answers via OpenGov Q&A, incorporated by reference.

3.5. Solicitation, incorporated by reference.

3.6. Consultant's submittal, incorporated by reference.

3.7. Drawings or Plans (if applicable), incorporated by reference.

3.8. All Purchase Orders issued under the Solicitation, incorporated by reference.

3.9. Certificates of Insurance, incorporated by reference.

Any inconsistencies in this solicitation or contract shall be resolved by giving precedence to the order above.

Contract 26-001 | Page 7

4. CONTRACT AMOUNT

Contractor shall complete all work as specified in the Solicitation Documents.

The City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds as follows:

$ [TBD].

5. CONTRACT TIME

The Work will be substantially completed within 180 calendar days from the date of the Notice to Proceed and finally completed within 210 calendar days from the date of the Notice to Proceed.

6. REPRESENTATION OF THE CONTRACTOR

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

6.1. 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.

6.2. 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.

6.3. 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 found in the solicitation; and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are, or will be, required by Contractor for such purposes.

6.4. 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.

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

6.6. 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. 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.

Contract 26-001 | Page 8

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.

8. OBLIGATION OF 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.

8.1. EQUIPMENT

The Contractor is solely responsible for all damage or loss by fire, theft or otherwise, to materials, tools, equipment, and consumables, left on City property by the Contractor.

8.2. INSPECTION AND TESTING

If the Contract Documents or any codes, laws, ordinances, rules or regulations are of any public authority having jurisdiction over the Project requests any portion of the Work to be specifically inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish to the City the requested certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the City.

8.3. PERMITS/TAXES/LICENSES/ORDINANCES

The Contractor shall, at their own expense, obtain all necessary permits, give all notices, pay all license fees and taxes, comply with all applicable local, State and Federal laws, ordinances, rules, and regulations.

All permits, fees and licenses necessary for the completion of the Work, which are not issued by City, shall be acquired and paid for by the Contractor. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work.

The Contractor agrees to obtain and maintain throughout the terms of this Agreement all such licenses as are required to do business in the State of Florida and in Lee County, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the services provided and performed by the Contractor.

8.4. PROGRESS REPORTS

When requested by the City, the Contractor shall furnish such reports as required.

8.5. CITY’S PROJECT MANAGER

An authorized representative of the City or Project Manager (the “Project Manager”) may be assigned to oversee all assigned work for adherence to projected schedules, as well as the quality of work from the start date through the project’s completion. All work is subject to inspection throughout the life of the

Contract 26-001 | Page 9 project and before the submittal of final payment.

All services will be approved by the Project Manager. All work modifications require written approval by the Project Manager. No work will proceed until authorized by the Project Manager and the Contractor has received a purchase order (PO) from Procurement Services. At times Contractor will meet the Project Manager at the worksite, at no cost, to verify information, requirements, make recommendations, or verify specifications.

The Project Manager assigned to this Solicitation is Suzanne Acton and they can be reached after a NOTICE OF AWARD is issued at sacton@fortmyers.gov or (239) 416-3002.

8.6. PROTECTION OF LOSS/DAMAGE

The Contractor shall fully protect the Work from loss or damage during construction and shall bear the cost of any such loss or damage until final payment has been made. If Contractor or anyone for whom Contractor is legally liable is responsible for any loss or damage to the work, or other work or materials of City’s separate Contractors, Contractor shall be charged with the same, and any monies necessary to replace such loss or damage shall be deducted from any amounts due the Contractor.

Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the integrity of the structure, nor shall Contractor subject any part of the work or adjacent property to stresses or pressures that will endanger it.

Contractor shall not disturb any benchmark established by the City with respect to the Project. If Contractor, or its Subcontractor/Subconsultants, agents or anyone, for whom Contractor is legally liable, disturbs the City’s benchmarks, Contractor shall immediately notify City. The City shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by City associated therewith.

In the event of any emergency affecting the safety or protection of persons or the Work or property at the Project site or adjacent thereto, Contractor, without special instruction or authorization from the City is obligated to act to prevent threatened damage, injury or loss. Contractor shall give the City written notice within forty-eight (48) hours after the occurrence of the emergency, if Contractor believes there are significant changes in the Work or variations from the Contract Documents have been caused thereby.

If the City determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations.

If Contractor fails to provide the forty-eight (48) hour written notice noted above, the Contractor shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time.

8.7. QUALITY CONTROL

The Contractor shall institute and maintain throughout the contract period a properly documented quality control program designed to ensure that the materials are provided in accordance with the contract. The program shall include providing daily supervision and conducting frequent inspections of the Contractor's staff and ensuring that accurate records are maintained. The records so created shall be open to inspection by the City.

8.8. SAFETY

8.8.1. The Contractor shall take all necessary precautions for the safety of the City's and Contractor's employees and the general public and shall erect and properly maintain at all times all necessary

Contract 26-001 | Page 10 vehicular and facility safeguards for the protection of the workmen and public. If necessary, the Contractor shall post signs warning against hazards in and around the work site.

8.8.2. Contractor acknowledges and agrees that they will have the sole responsibility for compliance with all requirements of the Federal Occupational Safety and Health Act of 1970, and all State and local safety and health regulations.

8.8.3. Unless otherwise stipulated in the Solicitation, all manufactured items and fabricated assemblies shall comply with applicable requirements of Occupational Safety and Health Act and any standards thereunder.

8.8.4. Contractor will supply Safety Data Sheets (SDS) with each initial delivery of any materials defined by the State of Florida or the Federal Government as being toxic, harmful, or hazardous.

8.9. SUBCONTRACTORS

The Contractor shall perform all of its obligations and functions under the Contract by means of its own employees, or by a duly qualified subcontractor, which is approved in advance by the City. In the event a subcontractor is employed, the Contractor shall continuously monitor the subcontractor’s performance, shall remain fully responsible to ensure that the subcontractor performs as required and itself perform or remedy any obligations or functions, which the subcontractor fails to perform properly.

8.10. WARRANTY

Contractor warrants that all equipment, materials and workmanship, whether furnished by Contractor or its Subcontractor/Subconsultants, will comply with the City's specifications, drawings and other requirements. The Contractor warrants that the Work including equipment and materials provided shall conform to professional standards of care and practice in effect at the time the Work is performed, be of the highest quality, and be free from all faults, defects or errors. Whenever required by the specifications of the Solicitation, the Contractor warrants that all equipment and materials provided shall be new. If the Contractor is notified in writing of a fault, deficiency or error in the Work provided within one (1) year from final completion of the work, the Contractor shall, at the City's option, either reperform such portions of the Work to correct such fault, defect or error, at no additional cost to the City, or refund to the City, the charge paid by the City, which is attributable to such portions of the faulty, defective or erroneous Work, including the costs for reperformance of the work provided by other suppliers.

8.11. DOCUMENTS

8.11.1. All documents, including but not limited to, drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations and estimates, prepared by Contractor as instruments of service pursuant to this Agreement, shall be the City's sole property. The Contractor will have the license to use items listed above during the course of the project. City agrees that all documents of any nature furnished to City or City's agents or designees, if not paid for, will be returned upon demand and will not be used by the City for any purpose whatsoever.

8.11.2. Upon the completion or termination of this Agreement, as directed by the City, Contractor shall deliver to the City copies or originals of all records, documents, drawings, notes, tracings, plans, AutoCAD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for Contractor under this Agreement ("Project Documents"). City shall specify whether the originals or copies of such Project Documents are to be delivered by Contractor. The Contractor shall be solely responsible for all costs associated with delivering to City the Project Documents. Contractor, at its own expense, may retain copies of the Project Documents for its files and internal use.

8.11.3. Contractor shall keep such full and detailed records as may be reasonably necessary to reflect: a)

Contract 26-001 | Page 11 proper financial management under this Agreement; and b) the Services performed, including, when applicable, testing, sampling and investigatory services performed by Contractor. Such records will be subject to review by the City on the condition that the City identifies, in writing, those documents requested. Documents will be available for inspection at mutually agreeable times for a period of two (2) years after the Services have been completed, or longer where required by law.

8.11.4. Notwithstanding anything in this Agreement to the contrary and without requiring the City to pay any additional compensation, Contractor hereby grants to the City a nonexclusive, irrevocable license in all of the Project Documents for the City's use on this Project. Contractor warrants to the City that it has full right and authority to grant this license to the City. Further, Contractor consents to the City's use of the Project Documents to complete the Project following Contractor's termination for any reason or to perform additions to or remodeling, replacement or renovations of the Project. Contractor also acknowledges the City may be making Project Documents available for review and information to various third parties and hereby consents to such use by the City.

8.12. EMPLOYEES

8.12.1. QUALIFIED PERSONNEL

The Contractor agrees that any work to be performed relate to a work which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to engage in such work, to employ and/or retain only qualified personnel to be in responsible charge of all work to be provided pursuant to this Agreement.

The Contractor shall employ people to work at the City’s facilities who are neat, clean, well-groomed and courteous.

8.12.2. REMOVAL OF PERSONNEL

The Contractor agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the Contractor's Project Manager, or any other personnel employed or retained by the Contractor, or personnel of the Subconsultant/Subcontractor engaged by the Contractor to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the City shall request, in writing, be removed, which request may be made by the City with or without cause.

However, notwithstanding the above, nothing herein shall interfere with the Contractor's right to terminate its employees or employees’ right to terminate their employment with the Contractor.

8.13. CONTRACTOR’S PROJECT MANAGER

The Contractor agrees to employ and designate, in writing, a qualified and, if required by law, a licensed professional to serve as the Contractor's Project Manager. The Contractor's Project Manager shall be authorized and responsible to act on behalf of the Contractor with respect to directing, coordinating and administering all aspects of the work to be provided and performed under this Agreement and Amendment(s) thereto. The Contractor's Project Manager shall have the full authority to bind and obligate the Contractor on any matter arising under this Agreement and its Amendment(s) unless substitute arrangements have been furnished to the City in writing. The Contractor agrees that the Project Manager shall devote whatever time is required to satisfactorily direct, supervise and manage the work provided and performed by the Contractor throughout the entire period this Agreement is in effect.

The person selected by the Contractor to serve, as the Contractor's Project Manager shall be subject to the prior approval and acceptance of the City.

8.14. PROCORE SOFTWARE

The Contractor shall submit to the City, for review, through Procore an electronic PDF’s of each Shop Drawing, including fabrication, erection, layout, and setting Drawings, and such other Drawings as are required under the

Contract 26-001 | Page 12 various sections of the Specifications. Similarly, the Contractor shall submit electronic PDF’s of manufacturer’s descriptive data for materials, equipment, and fixtures including catalog sheets showing dimensions, performance characteristics, and capacities; wiring diagrams and controls; schedules; and other pertinent information as required.

Those Drawings not acceptable will be returned to the Contractor for correction and resubmittal.

9. OBLIGATION'S OF THE CITY

9.1. 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.

9.2. AVAILABILITY OF CITY INFORMATION

9.2.1. 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.

9.2.2. 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.

9.3. AVAILABILITY OF CITY'S DESIGNATED REPRESENTATIVES

The City agrees that the City Representative shall be available within a reasonable period of time, with reasonable prior notice given by the NO VALUE, 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 NO VALUE.

9.4. 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 NO VALUE's normal office and/or field workdays and/or work hours.

9.5. PLANS REVIEW

If applicable, 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.

Contract 26-001 | Page 13

10. TIME AND SCHEDULE OF PERFORMANCE

10.1. NOTICE TO PROCEED/PURCHASE ORDER

Following the execution of this Agreement by both parties, and after the Contractor has complied with the insurance requirements set forth hereinafter, the City shall issue the Contractor a Written Notice to Proceed. Following the issuance of such Notice to Proceed, the Contractor shall be authorized to commence work, and the Contractor thereafter shall commence work promptly and shall carry on all such services and work as may be required in a timely and diligent manner to completion.

10.2. 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 subcontractor(s) and/or subconsultant(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) 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 determine with the Contractor, within 7 days, the length of extension and legitimacy of cause.

10.3. 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 NO VALUE’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.

10.4. 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.

10.5. LIQUIDATED DAMAGES

The "Commencement Date” shall be established in the Notice to Proceed to be issued by the City. Contractor shall commence the work upon the issuance of the Notice to Proceed. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by Contractor prior to the commencement Date shall be at the sole risk of Contractor.

The Work shall be substantially completed within the time agreed upon by the City and Contractor. The date of substantial completion of the Work (or designated portions thereof) is the date certified by the City when construction is sufficiently complete, in accordance with the Contract Documents, so the City can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended. The Work shall reach final completion and be ready for final acceptance by the City within the time specified.

The Work under this contract will be substantially completed within 180 calendar days after the notice to proceed is issued and final completion will occur within 210 calendar days after notice to proceed is

Contract 26-001 | Page 14 issued.

The City and Contractor recognize that since time is of the essence for any work under this Agreement, the City will suffer financial loss if the Work is not substantially completed with the time specified. Should Contractor fail to substantially complete the Work within the specified time period, the City shall be entitled to assess as liquidated damages but not as a penalty, an amount specified below for each calendar day thereafter until substantial completion is achieved:

Total Contract Amount Per Day $299,999 and under......................................................$904 $300,000 but less than $2,000,000..............................$1,685 $2,000,000 but less than $5,000,000...........................$2,667 $5,000,000 but less than $10,000,000.........................$3,813 $10,000,000 but less than $20,000,000.......................$5,021 $20,000,000 but less than $40,000,000.......................$7,442 $40,000,000 and over...............$10,224 plus 0.00005 of any amount over $40 million (Round to nearest whole dollar) The Project shall be deemed to be substantially completed on the date the Yes issues a Certificate of Substantial Completion pursuant to the terms hereof. Contractor hereby expressly waives and relinquishes any right which it may have to seek the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the City’s actual damages at the time of contracting if Contractor fails to substantially complete the Work in a timely manner.

When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a legal Holiday, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday.

11. 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 subcontractors, 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 subcontractor 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 subcontractor 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 subcontractor 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 subcontractor under this Agreement, then the Contractor or subcontractor agrees to promptly terminate such representation. Contractor shall require each of such subcontractors 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

Contract 26-001 | Page 15 representation, the City may consider such failure as justifiable cause to terminate this Agreement.

12. LAWS / VENUE

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.

12.1. BACKGROUND SCREENING

Per, requires background screening for individuals who work or volunteer in positions of trust with vulnerable populations, including children, the elderly, and individuals with disabilities. The law primarily applies to certain types of employment, volunteer positions, and licensure processes. Specific groups required to undergo screening under this statute include Employees of Certain Health Care and Social Services Agencies, Volunteers Working with Vulnerable Populations, Employees and Contractors for Public and Private Schools, Personnel in Residential Care Facilities, Other Positions Identified by Specific Statutes.

12.1.1. Background Screening Notice

As part of the application process for South Street Sidewalk Construction from US 41/Cleveland Avenue to SR 739/Fowler Street Rebid (FDOT 438101-2-58-01), candidates are required to undergo background screening in compliance with Florida Statute Chapter 435. This statute mandates Level 1 or Level 2 background checks, depending on the nature of the position, to ensure the safety and well-being of vulnerable populations, including children, the elderly, and individuals with disabilities.

12.1.2. Requirements

12.1.2.1. Level 1 background screening includes employment history checks and a statewide criminal background check through the Florida Department of Law Enforcement (FDLE);

12.1.2.2. Level 2 background screening involves a national fingerprint-based criminal history check through the Federal Bureau of Investigation (FBI), along with checks of sexual offender and predator databases.

12.1.3. Disqualifying Offenses

Certain criminal convictions may disqualify you from employment in this position. These include, but are not limited to violent crimes, sexual offenses, drug-related felonies.

12.1.4. Exemption Process

If you have a prior conviction that would normally disqualify you from this position, you may be eligible to apply for an exemption from disqualification under certain conditions, demonstrating rehabilitation and good conduct.

12.1.5. Re-screening

Periodic re-screening may be required during your employment to ensure ongoing compliance with the requirements of Florida Statute Chapter 435.

12.2. CYBERSECURITY

https://www.flsenate.gov/Laws/Statutes/2021/Chapter435 https://www.flsenate.gov/Laws/Statutes/2021/Chapter435

Contract 26-001 | Page 16

Contractor must be aware of Florida Statute 119.0725.

12.3. E-VERIFY

12.3.1. During the term of this Contract, the Contractor shall fully comply with Florida Statute Sec.

448.095, which includes but is not limited to, registering with and utilizing the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all new employees and requiring an affidavit from any Subcontractor/Subconsultants stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees and does not employ, contract with or subcontract with an unauthorized alien.

12.4. FLORIDA CIVIL RIGHTS ACT (FCRA)

The Contractor shall comply with provisions of Florida Statutes Chapter 760 the Florida Civil Rights Act (FCRA), that protects individuals from discrimination in employment, housing, and public accommodations based on characteristics such as race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

12.5. FLORIDA PUBLIC RECORDS LAW

The parties acknowledge and agree that all provisions of the Florida Public Records Law, Chapter 119, are and shall be binding and enforced at all times with regard to all actions and activities under this Agreement. Contractor recognizes that in contracting with the City, it has the burden of complying with the Florida Public Records Laws, Chapter 119, for any documents in its possession. Nothing in this Agreement shall prohibit or restrict or create any liability on the City for complying in good faith with the Florida Public Records Law, Chapter 119 of the Florida Statutes:

To the extent that Contractor may meet the definition of a “Contractor” as defined by Section 119.0701, Florida Statutes, it will:

12.5.1. Keep and maintain public records required by the public agency to perform the service.

12.5.2. Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

12.5.3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Contractor does not transfer the records to the public agency.

12.5.4. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Contractor or keep and maintain public records required by the public agency to perform the service. If the Contractor transfers all public records to the public agency upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

If the Contractor has questions regarding the

DRAFT

https://www.flsenate.gov/Laws/Statutes/2022/0119.0725 https://www.flsenate.gov/Laws/Statutes/2021/Chapter760/PART_I https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01

Contract 26-001 | Page 17 application of Chapter 119, Florida Statutes, to the Contractor's duty to provide public records relating to this contract, contact the City's Custodian of Public Records at c/o City Clerk, (239) 321-7042, jgravitt@fortmyers.gov 2200 Second Street., Fort Myers, FL 33901.

12.6. HUMAN TRAFFICKING

Effective July 1, 2024, pursuant to §787.06(13), Florida Statutes, when a contract is executed, renewed, or extended between a nongovernmental entity and a governmental entity, the nongovernmental entity must provide the governmental entity with an affidavit signed by an officer or a representative of the nongovernmental entity under penalty of perjury attesting that the nongovernmental entity does not use coercion for labor or services. Prior to contract execution, extension or renewal, the nongovernmental entity shall complete and submit the form under the attachment section.

12.7. IMPROPER USE OF CITY FACILITIES

The Contractor will not use, nor suffer or permit any person to use in any manner whatsoever, City facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Contractor or if the City or its authorized representative shall deem any conduct on the part of the Contractor to be objectionable or improper, the City shall have the right to suspend the Contract of the Contractor. Should the Contractor fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension may continue until the violation is cured. The Contractor further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the City.

12.8. PUBLIC ENTITY CRIMES

The City will comply with Section 287.133 of the Florida State Statute including not conducting business in excess of the threshold amount provided in s. 287.017 for Category Two:

"A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, or Subcontractor/Subconsultants under a contract with any public entity in excess of the threshold amount provided in s. 287.017 for Category Two for a period of 36 months from the date of being placed on the convicted vendor list."

12.9. SCRUTINIZED COMPANIES

Pursuant to Florida Statute Section 287.135, Contractor certifies at the time it submits a bid or proposal for a contract or before the Contractor enters into or renews a contract with the City for goods or services of any amount, the Contractor must certify that it is not participating in a boycott of Israel. Any contract for goods or services, regardless of amount, entered into or renewed on or after July 1, 2025, may be terminated at the option of the City if the Contractor is found to have been placed on the Scrutinized Companies or Other Entities that Boycott Israel List or is engaged in a boycott of Israel.

If Contract exceeds $1M use both clauses.

DRAFT

mailto:jgravitt@cityftmyers.com https://www.flsenate.gov/Laws/Statutes/2018/287.133

Contract 26-001 | Page 18

Pursuant to Florida Statute Section 287.135, Contractor certifies at the time it submits a bid or proposal for a contract or before the Contractor enters into or renews a contract with the City for goods or services of $1 million dollars or more, that the Contractor is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in Iran Terrorism Sectors List and that it does not have business operations in Cuba or Syria. Any contract for goods or services of $1 million dollars or more entered into or renewed on or after July 1, 2018, may be terminated at the option of the Contractor if the Contractor is found to have submitted a false certification as provided under Florida Statute 287.135(5), been placed on the Scrutinized Companies with Activities in Sudan List, been engaged in business operations in Cuba or Syria, or has been placed on a list pursuant to Florida Statute 215.473, relating to scrutinized active business operations in Iran.

13. INSURANCE

The awarded Contractor (and its subcontractors to the same extent and on the same terms as set forth below for Contractor) shall maintain the following coverages and furnish the certificate of insurance on the policies and renewals thereof which indicate that insurance coverage has been obtained meeting the requirements of the contract.

13.1. COMPREHENSIVE AUTOMOBILE LIABILITY

This insurance shall be written in comprehensive form and shall protect the Contractor and the additional insureds against all claims for injuries to members of the public and damage to property of others arising from the use of motor vehicle and shall cover operation on or off the site of all motor vehicles licensed for highway use, whether they are owned, non-owned, or hired. The liability limits shall not be less than:

13.1.1. Minimum limits of $1,000,000 combined single limit liability.

13.1.2. Coverage shall include owned vehicles, hired, leased, non-owned vehicles, employee non-ownership.

13.1.3. Notice of Cancellation and/or Restriction - The policy must be…