_Example_Contract_Evergreen_Ln.pdf

SAMPLE CONTRACT

Clay County Agreement/Contract No.

AGREEMENT FOR “Evergreen Ln to School Pedestrian Improvement Project”

This Agreement for (“Agreement”) is made and entered into as of the day of , 202 (“Effective Date”) by and between

(“Contractor”), and Clay County, a political subdivision of the State of Florida (the “County”).

RECITALS

WHEREAS, on , the County and the State of Florida

Department of Transportation (“Department”) entered into a Local Agency Program Agreement, Clay County Agreement No.: , FPN No.: , Department

Contract No.: , in relation to the

; and

WHEREAS, on , the County and the Department entered into a Local

Agency Program Agreement, Clay County Agreement No.: , FPN Nos.:

, Department Contract No.: (“LAP Agreement”), as amended, in relation to the construction and oversight of

; and

WHEREAS, the Department has agreed to fund the construction of up to the maximum amount set forth in the LAP Agreement, as it may be amended from time to time; and

WHEREAS, the County issued a Request for Bid, Bid No. (“Bid”), to solicit and engage a contractor to perform the construction of ; and

WHEREAS, the Contractor responded to the Bid with a proposal to offer the requested services (“Contractor’s Response”); and

WHEREAS, the County evaluated and ranked the proposals submitted, and the County selected the Contractor as the lowest responsive, responsible qualified contractor; and

WHEREAS, the Contractor is licensed and prequalified with the Department to provide the requested services; and

WHEREAS, the parties hereby acknowledge and expressly agree that the terms and conditions of the Bid including all Addendums and Attachments thereto, including, but not limited to, the LAP Specifications Package and Supplemental Specifications Package

(“Specifications”), the Contract Plans, and the Contractor’s Response apply to this Agreement and are incorporated herein by reference; and

WHEREAS, federal funds provided to the County through the LAP Agreement, as amended, will be used to fund the services provided under this Agreement; and

WHEREAS, the Contractor desires to provide the services to the County as set forth in this Agreement.

NOW THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged and all objections to the sufficiency and adequacy of which are hereby waived, the parties agree as follows:

SECTION 1. THE PROJECT

1.1. The Contractor shall furnish and deliver all material and equipment and perform all work and labor required to perform the improvements along in accordance with the Specifications and Contract Plans (the “Project”).

1.2. Federal funds will be used to fund all or a portion of the Project. Performance under the

Agreement is subject to 2 C.F.R. Part 200.

1.3. For purposes of the Project, the County Representative shall be Howard Wanamaker, County Manager, and the Project Manager shall be Richard Smith, Director of Engineering, or designee.

SECTION 2. SCOPE OF WORK

2.1. The scope of work to be performed and provided by the Contractor for the Project is set forth in the Bid Scope of Work, attached hereto as Attachment , and the Specifications and

Contract Plans incorporated herein by reference. The term “Work” means the scope of work to be provided and services rendered, whether completed or partially completed, or labor, supplies, materials, equipment and the like constructed, delivered or installed under this Agreement. The

Work includes, but is not limited to, .

2.2. In providing the Work, the Contractor must:

a. Be familiar with the Work, deadlines, requirements, Specifications, Contract Plans, and the conditions under which the Work is to be completed.

b. Obtain all permissions, permits, licenses, and inspections as may be applicable and necessary for the prosecution of the Work.

c. Coordinate work days and hours with the Project Manager.

d. Coordinate with the Project Manager all inspection(s). Complete any items on the punch list generated from the inspection(s).

e. Conduct business in a manner that reflects favorably at all times on the Work and the goodwill and reputation of the County.

2.3. The Contractor and its subcontractors must meet the Department prequalification requirement(s) in the appropriate work classes throughout the term of this Agreement. The

Contractor shall submit any new applications or documents as required to the Department to maintain its certificate of qualification with the Department.

2.4. Within ten (10) calendar days of the Effective Date of this Agreement, the Contractor shall provide to the Project Manager for review and approval, a detailed critical path method schedule for the Work showing substantial and final completion by the Final Completion Date

(“Project Schedule”). The Project Schedule may otherwise be updated as necessary, but the

Contractor shall not make material changes which increase the Final Completion Date. The approval of the Project Schedule by the Project Manager in no way attests to the validity of the assumptions, logic constraints, dependency relationships, resource allocations, manpower and equipment, and any other aspect of the proposed schedule. The Contractor is and shall remain responsible for the planning and execution of the Work in order to meet the Final Completion

Date.

2.5. The Contractor must meet with the Project Manager on a regular basis as arranged by the parties to review the status of the Work, the progress of the Project, upcoming critical activities, and overall performance. In addition to the regular meetings, the Contractor must also provide to the Project Manager monthly progress reports detailing the status of the Project and overall progress of the Work in accordance with the Project Schedule, identifying forecasted Work to be performed, and timeframe of the Work.

2.6. Within thirty (30) calendar days after reaching Substantial Completion of the Project, the

Contractor and the County shall develop and deliver a list of items and the cost to complete each item on the list required to render the Project complete, satisfactory, and acceptable (“Punch

List”) in accordance with Section 218.735(7), Florida Statutes. The failure to include any corrective work or pending items not yet completed on the Punch List does not alter the responsibility of the Contractor to complete all of the Work under the Agreement. All items that require correction under the Agreement which are identified after the preparation and delivery of the Punch List remain the obligation of the Contractor. Upon completion of all items on the Punch

List, the Contractor may submit a payment request for any remaining retainage withheld by the

County as described in the Payment Procedures Section.

2.7. In entering into this Agreement, the Contractor represents that it now has or will secure all equipment and personnel required to perform all Work under this Agreement. The Contractor shall assign such personnel as are necessary to assure faithful prosecution and timely delivery of the Work pursuant to the requirements of this Agreement. The Contractor shall ensure that the personnel assigned to perform the Work comply with the terms of this Agreement, have current licenses and permits required to perform the Work, and are fully qualified and capable to perform their assigned tasks. The Contractor shall submit in writing to the Project Manager the names of key personnel assigned to the Project.

2.8. The Contractor shall perform the Work using the degree of care and skill ordinarily exercised by similarly practicing professionals performing similar services under similar conditions in the same or similar geographic area and in compliance with all applicable laws

(“Standard of Care”).

2.9. The parties agree that the County shall retain the absolute right to eliminate any or all

Work associated with the Project without penalty or liability for any claims for unearned or future anticipated overhead or profits.

2.10. The County may conduct performance evaluations at any time during performance of the

Work or soon after the completion of any Work to ensure compliance with the Agreement. One or more evaluations may be conducted solely at the discretion of the County.

SECTION 3. ADDITIONAL WORK AND FEES

3.1. If the County identifies or the Contractor recommends any additional work, materials, or services to be provided by the Contractor that are not covered under this Agreement but are beneficial to the Project, such additional work, materials, or services, including scope, timing, and fees of any additional services must be mutually agreeable between the County and the

Contractor and authorized in writing by the County.

SECTION 4. TERM AND TIMELY PERFORMANCE

4.1. The parties hereto mutually understand and agree that time is of the essence in the performance and completion of the Project. The Contractor agrees to timely perform all Work as provided for in this Agreement.

4.2. The date on which days will begin to be charged to the Project shall be the date the

County issues an initial Notice to Proceed to the Contractor for the Project (“Notice to Proceed

Date”).

4.3. The Contractor shall achieve Substantial Completion of the Project no later than 525 calendar days from the Notice to Proceed Date (“Substantial Completion Date”). As used herein

Substantial Completion shall mean the achievement of beneficial occupancy or use of the

Project. The Contractor shall achieve Final Completion of the Project no later than 570 calendar days from the Notice to Proceed Date (“Final Completion Date”). As used herein Final

Completion shall mean completion of the Punch List items after Substantial Completion. The

Substantial and Final Completion Date shall be extended only upon subsequent written agreement of the parties.

4.4. Upon the effective date of termination or expiration of the Agreement, the Contractor shall provide to the County all documents, including, but not limited to, notes, files, evaluations, reports, studies, estimates, data, specifications, surveys, calculations, drawings, artwork files, plans, maps, summaries, and other records, materials, and data relating to this Agreement (other than working papers) that have been accumulated by the Contractor, provided to the Contractor by the County, and/or prepared or developed by the Contractor or by any subconsultant or subcontractor on behalf of the County and for which the Contractor has been paid to provide and perform the Work required to produce such documents. The Contractor agrees to provide these documents to the County within ten business days of the County’s request in such format and/or arrangement as requested by the County, including, but not limited to, electronic and/or physical copies. The Contractor shall also require that all subconsultants or subcontractors hired or otherwise engaged by the Contractor to provide Work in connection with this Agreement agree in writing to be bound by this provision.

SECTION 5. PAYMENT FOR WORK

5.1. The total price for the completion of the Project is estimated to be $

(“Contract Price”). The Contract Price is based on the estimated quantities at the unit costs and lump sum amounts set forth in the Price Table attached hereto as Attachment . The Contract

Price includes the Work performed by the Contractor and its subcontractors, travel, overtime, man-hours, materials, equipment, supplies, labor, overhead, profit, and all other costs, expenses and reimbursables associated with the Contractor’s performance of the Work to complete the

Project.

5.2. Payments will be made by the County to the Contractor for Work performed at the unit costs and lump sum amounts for the items in the quantities actually provided in accordance with Attachment , upon presentation of an Invoice submitted to the County in accordance with Section 6. All partial estimates and payments found to be in error shall be subject to correction in the estimates and payments subsequent thereto, and in the final estimate and payment.

SECTION 6. PAYMENT PROCEDURES

6.1. As used in this Section, the term “Act” means the Local Government Prompt Payment

Act set forth in Part VII of Chapter 218, Florida Statutes; the term “Invoice” means a statement, invoice, bill, draw request or payment request submitted by the Contractor under the Agreement;

and the term “Submittal Date” means, with respect to an Invoice, the submittal date thereof to the

Paying Agent. Invoices shall be submitted to Clay County Comptroller’s office (“Paying Agent”) by Email at invoices@clayclerk.com or U.S. Mail at Clay County BOCC, PO Box 988, Green

Cove Springs, FL 32043 ATTN: Accounts Payable with a copy to the Project Manager. All payments will be governed by the Act.

6.2. The Contractor shall submit an Invoice to the Paying Agent no more than once per month based on the amount of the Work done or completed for the Project. All partial

Invoices/estimates and payments shall be subject to correction when submitted, and/or, in the subsequent estimates and payments, and the final estimate and payment.

6.3. The amount of the monthly payment shall be the total value of the Work rendered for the

Project to the date of the Invoice for the Work actually authorized and performed and quantities mailto:invoices@clayclerk.com of materials actually used rather than the estimated price, less an amount retained, less requests previously submitted and payments made. The amount retained shall be determined in accordance with Section 218.735, Florida Statutes, as follows:

1) The County may withhold from each monthly and/or progress payment due to be made to the Contractor under this Agreement an amount not to exceed 5 percent of said payment.

2) Within 20 business days after the Punch List is created, the Contractor may submit a payment request for all retainage previously withheld by the County less an amount equal to 150 percent of the estimated cost to complete the items on the

Punch List.

3) Upon completion of all items on the Punch List, the Contractor may submit a payment request for all remaining retainage withheld by the County. If a good faith dispute exists as to whether one or more items identified on the Punch List have been completed pursuant to the Agreement, the County may continue to withhold an amount not to exceed 150 percent of the total costs to complete such items.

6.4. Invoices shall be signed by the Contractor and must include the following information and items:

a. The Contractor’s name, address and phone number, including payment remittance address.

b. The Invoice number and date.

c. Reference to the Agreement by its title and number as designated by the County and

Purchase Order number, if applicable.

d. The period of the Work covered by the Invoice.

e. The total amount of payment requested, the total amount previously requested, and the total amount paid to date.

f. Supporting documentation necessary to satisfy auditing requirements (both pre-audits and post-audits), for cost and Work completion.

g. The Contractor must provide any additional documents, certificates, records, updates, or information as needed to support or document the Invoice as may be requested by the County.

6.5. Upon receipt of an Invoice submitted under this Section, the Paying Agent and/or Project

Manager shall date stamp the Invoice as received. Thereafter, the Paying Agent and/or Project

Manager shall review the Invoice and may also review the Work as delivered, installed, performed or to be performed to determine whether the quantity and quality of the Work is as represented in the Invoice and is as required by this Agreement. If the Paying Agent and/or

Project Manager determines that the Invoice does not conform with the applicable requirements of this Agreement or that the Work within the scope of the Invoice has not been properly delivered, installed, performed or to be performed in full accordance with this Agreement, the

Paying Agent and/or Project Manager shall notify the Contractor in writing within 20 business days after the improper Invoice is received that the Invoice is improper and indicate what corrective action on the part of the Contractor is needed to make the Invoice proper. If an Invoice is rejected by the County as set forth herein and the Contractor submits an Invoice that corrects the deficiency, the corrected Invoice must be paid or rejected within 10 business days after the date the corrected Invoice is stamped as received

6.6. By the submittal of an Invoice hereunder, the Contractor shall have been deemed to have warranted to the County that all Work for which payments have been previously received from the County shall be free and clear of liens, claims, security interests or other encumbrances in favor of the Contractor or any other person or entity for failure to make payment.

6.7. The parties will attempt to settle any payment dispute arising under this Section through consultation and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the parties, if necessary. If the dispute concerning payment of an

Invoice remains unresolved within 30 calendar days following the Submittal Date, then the

Project Manager shall schedule a meeting between the Contractor’s representative and the

Project Manager with the County Manager, to be held no later than 45 calendar days following the Submittal Date, and shall provide written notice to the Contractor regarding the date, time and place of the meeting no less than 7 calendar days prior thereto. At the meeting, the

Contractor’s representative and the Project Manager shall submit to the County Manager their respective positions regarding the dispute, including any testimony and documents in support thereof. The County Manager shall issue a written decision resolving the dispute within 60 calendar days following the Submittal Date, and serve copies thereof on the Contractor’s representative and the Project Manager.

6.8. Prior to submitting an Invoice, the Contractor shall certify that all subcontractors and suppliers having any interest or performing any of the Work have received their pro rata share of previous periodic payments to the Contractor for all Work completed and materials supplied.

This certification shall be in the form designated by the County. The Contractor shall within 10 business days of receipt of progress payments pay all subcontractors and suppliers performing any of the Work or supplying any of the materials with respect to the Work their pro rata shares of the payment for all Work completed and materials supplied. The term “subcontractor”, as used herein, shall mean a person(s) or firm(s) that enters into a contract with the Contractor for the performance of any part of the Agreement and also includes persons or firms supplying materials or equipment incorporated into the Work for which partial payment has been made by the

County, and work done under equipment rental contracts.

6.9. Final Payment. Subsequent to completion of the Work and prior to final payment, final accounting of the total amount of all payments shall be provided by the Contractor. Utilizing the final accounting of costs and the Contractor’s records as needed, the County shall, within a reasonable time, conduct a review of all costs presented. The amount of final payment is to be made subject to the County agreeing with the final accounting of cost and payment of Work of the Contractor. Neither the acceptance of the Work nor payment by the County shall be deemed to be a waiver of the County’s right to enforce any obligations of the Contractor hereunder or to the recovery of damages for defective Work not discovered by the County at the time of final inspection. The County retains the right to recover damages for the recovery of defective or deficient Work not discovered by County at the time of final inspection. It is understood and agreed to by the parties that final payment is not due and payable and the

County shall not be obligated to remit final payment under the Agreement until the following items have been completed and/or submitted to and approved by the County in proper form and substance:

a. Final accounting addressed above;

b. Completion of Punch List along with any punch list generated from final inspection;

c. Final acceptance by the County of the Project;

d. As-Built plans (if applicable);

e. Releases of Liens or equivalent proof of payments to subcontractors and suppliers;

f. Contractor’s warranty and any warranties from third parties; and

g. Certificate of Final Payment.

6.10. It is agreed and understood that the acceptance of the final payment by the Contractor shall be considered as a release in full of all claims against the County or any of its officers, principals, employees, members or agents arising out of, or by reason of, Work done or material furnished under this Agreement.

SECTION 7. CHANGE ORDERS

7.1. Change Orders shall be used when necessary to clarify the Work, to provide for a change in the Work, to provide for an adjustment to the Contract Price, to provide for a time extension, to settle contract claims, to provide for unforeseen circumstances, and to make the Project functionally operational in accordance with the intent of the Agreement. Prior to requesting approval of a Change Order, the Contractor shall review the costs of any proposals and negotiate in good faith with any affected subcontractors in order to advise the County of the validity and reasonableness of such Change Order request. No work or services covered by a Change Order shall be performed before the County approves the Change Order. The Change Order shall set forth the prices or amount to be agreed upon and/or the amount of time to be granted for an extension and any other pertinent information. No payment shall be made on a Change Order request unless the County has executed an approval of the Change Order. In addition, the County shall make no payment for any unauthorized work or services. If authorization is not previously given, the Contractor hereby agrees to waive the claim for such extra compensation. However, such notice or accounting shall not in any way be construed as proving the validity of the claim.

7.2. Change Orders must set forth the basis for the change or requested adjustment supported by sufficient substantiating data to permit evaluation by the County. Additionally, if a Change

Order requests a time extension, the Change Order must set forth the circumstances justifying a time extension supported by sufficient substantiating data to permit evaluation by the County.

Change Orders shall not be used for time extensions requested by the Contractor under circumstances or conditions attributable to the Contractor.

SECTION 8. INSURANCE AND BONDS

8.1. The Contractor shall maintain throughout the term of this Agreement and completion of any Work and during any renewal or extension term(s) of this Agreement or as required herein insurance of the following types and with such terms and limits:

a. Commercial General Liability

Coverage must be afforded under a Commercial General Liability policy with limits not less than:

• $1,000,000 each occurrence and $2,000,000 aggregate for Bodily Injury, Property

Damage, and Personal and Advertising Injury

• $1,000,000 each occurrence and $2,000,000 aggregate for Products and

Completed Operations

• $50,000 each occurrence for Damage to Rented Premises

• $5,000 Medical Expenses (any one person)

Commercial and General Liability policy must include coverage for contractual liability and independent contractors.

b. Business Automobile Liability

Coverage must be afforded for all Owned, Hired, Scheduled, and Non-Owned vehicles for Bodily Injury and Property Damage in an amount not less than $1,000,000 combined single limit each accident. If the Contractor does not own vehicles, the

Contractor shall maintain coverage for Hired and Non-Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy.

c. Workers’ Compensation and Employer’s Liability

Any person or entity performing work for or on behalf of the County must provide

Workers’ Compensation and Employer’s Liability insurance in limits not less than:

• Workers Compensation Statutory limits

• Employers Liability $100,000 Each Accident

$500,000 Disease Policy

$100,000 Disease-Each Employee

Exceptions and exemptions may be allowed by the County Manager, if they are in accordance with Florida Statutes.

The Contractor waives, and the Contractor shall ensure that its insurance carrier waives, all subrogation rights against the County, its employees, agents, boards, and commissions, for all losses or damages. The County requires the policy to be endorsed with WC 00 03 13 Waiver of our Right to Recover from Others or equivalent.

The Contractor must be in compliance with all applicable State and federal workers’ compensation laws, including the U.S. Longshore Harbor Workers’ Act and the Jones

Act, if applicable.

For any Contractor who has exempt status as an individual, the County requires proof of Workers’ Compensation insurance coverage for that Contractor’s employees, leased employees, volunteers, and any workers performing work.

d. Umbrella/Excess Insurance

If the Contractor’s primary insurance policy/policies do not meet the minimum requirements, the Contractor may provide an Umbrella/Excess insurance policy to comply with the insurance requirements.

8.2. Providing and maintaining adequate insurance coverage is a material obligation of the

Contractor. Prior to commencement of the Work, the Contractor must deliver valid certificates of insurance for the required insurance coverage to the County’s Purchasing Department.

8.3. The certificates of insurance for the required coverages, with the exception of Workers’

Compensation and Employer’s Liability, shall name “Clay County, a political subdivision of the State of Florida, and The Board of County Commissioners, Clay County, Florida, its employees, agents, boards and commissions, as their interests may appear” as “Additional

Insureds.” The coverage shall contain no special limitation on the scope of protection afforded to the County, its employees, agents, officials, boards, and commissions. The certificates of insurance shall indicate if coverage is provided under a claims-made or occurrence form. If any coverage is provided on a claims-made form, the certificates of insurance will show a retroactive date, which should be the same date of the initial Agreement or prior. The Agreement number, Bid number, event dates, and/or other identifying reference must be listed on the certificates of insurance.

8.4. The Certificate Holder on the certificates of insurance should read as follows: “Clay

County Board of County Commissioners, P.O. Box 1366, Green Cove Springs, FL 32043” or as otherwise designated by the County’s Purchasing Department.

8.5. The certificates of insurance shall be provided to the County with a thirty (30) day notice of cancellation; ten (10) days’ notice if cancellation is for nonpayment of premium. In the event that the insurer is unable to accommodate the cancellation notice requirement, it shall be the responsibility of the Contractor to provide the proper notice. Such notification will be in writing by registered mail, return receipt requested, and addressed to the Certificate Holder. In the event the Agreement term goes beyond the expiration date of any insurance policy, the Contractor shall provide the County’s Purchasing Department with an updated certificate of insurance no later than ten (10) days prior to the expiration of the insurance currently in effect. The County reserves the right to suspend the Agreement until this requirement is met. If any required insurance coverage is canceled, terminated, or revoked, the Contractor agrees to immediately suspend its operations until replacement insurance is obtained and verified.

8.6. The Contractor agrees to furnish a sufficient and satisfactory Performance Bond and

Payment Bond in the sum of not less than 100% of the Contract Price as security for the faithful performance and payment of all of the Contractor’s obligations under the Agreement. These

Bonds shall remain in effect until one year after the date when final payment hereunder becomes due, except as provided otherwise by laws or regulations, or by specific provisions of the

Agreement. All Bonds shall be in compliance with, and in the form prescribed by, Section

255.05, Florida Statutes. Within ten (10) business days following the Effective Date of this

Agreement, and prior to the Contractor commencing any Work, the Contractor shall cause the

Bonds required herein to be recorded in the public records of the County with the Clay County

Clerk of Court and Comptroller at the Contractor’s sole expense, and shall deliver a certified copy of the recorded Bonds to the County’s Purchasing Department. Performance and Payment

Bonds must be increased in accordance with any change order increases on the Project.

8.7. In addition to all other rights and remedies which the County may have under this

Agreement, under the Bonds, and under applicable principles of law or equity, the County shall have the right to recover the full amount of the Bond(s) in the event the Contractor shall at any time abandon any of the Work, or otherwise default in its performance obligations under this

Agreement, regardless of whether the default occurs prior to, on or after the Final Completion

Date. The provisions of the sentence immediately preceding are supplemental to all other rights and remedies of the County arising under this Agreement, under the Bonds, and under applicable principles of law or equity, and shall not be deemed to be or construed as any limitation on or in derogation of the same, with the exception that the County may not be reimbursed more than once for the same claim.

SECTION 9. INDEMNIFICATION; SOVEREIGN IMMUNITY

9.1. To the fullest extent permitted by law, the Contractor shall indemnify, defend, and hold harmless the County and the Department, including their officers, agents, and employees, against any actions, liabilities, claims, or damages, including, but not limited to, reasonable attorney’s fees, arising out of, relating to, or resulting from negligent, reckless, intentional, or wrongful acts of Contractor, or any persons employed or utilized by the Contractor, acting within the scope of their office or employment, in connection with the rights granted to or exercised by the

Contractor hereunder, to the extent and within the limitations of Section 768.28, Florida

Statutes.

9.2. The foregoing indemnification provisions shall be subject to and within the limitations set forth in Section 768.28, Florida Statutes and shall not constitute a waiver of the County’s or the

Department’s sovereign immunity. Nor shall the same be construed to constitute agreement by the Contractor to indemnify the County for the negligent acts or omissions of the County, its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by the Contractor to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties.

9.3. The provisions in this Section shall survive the termination or expiration of this

Agreement.

SECTION 10. DEFAULT AND TERMINATION

10.1. Default by Contractor. If the Contractor breaches any covenant made by it hereunder;

fails to satisfactorily perform any condition, provision, or obligation of this Agreement; fails to make progress so as to endanger performance under the terms and conditions of this Agreement;

fails to perform or begin Work on time or as directed by the Project Manager; fails to comply with the Project Schedule; fails to perform the Work with sufficient and/or properly skilled workmen or with sufficient materials or equipment; performs the Work unsuitably or neglects or refuses to remove materials or to perform anew such Work as may be rejected as unacceptable and unsuitable, or discontinues the prosecution of the Work, or fails to resume Work which has been discontinued within a reasonable time after notice to do so; fails to make payment to subcontractors or suppliers in accordance with the Agreement or in accordance with the respective agreements between the Contractor and the subcontractors or suppliers; fails to comply with applicable rules, laws and regulations; or whenever the Contractor ceases operation, dissolves its corporation, or otherwise no longer provides the required Work under the terms of this Agreement, the County may consider the Contractor to be in default and may assert a default claim by giving the Contractor a written Notice of Default. Except for a default by the Contractor for failing to comply with applicable laws, rules, and regulations, which must be cured immediately, the Contractor shall have ten (10) calendar days after receipt of the Notice of

Default to either cure the default or, if the default is not curable within ten (10) calendar days, provide a written cure plan to the County describing how and when the default will be cured, which the County in its sole discretion may approve or disapprove. The Contractor will begin implementing the cure plan immediately after receipt of notice by the County that it approves the plan. If the Contractor fails to cure or the County does not approve the cure plan, then the

County may terminate this Agreement for cause.

10.2. Termination for Cause. Upon the failure or inability of the Contractor to cure the default as provided above, unless otherwise agreed in writing, the County may, at its option, without releasing or waiving its rights and remedies against the Contractor’s sureties and without prejudice to any other right or remedy it may be entitled to hereunder or by law, terminate this

Agreement, in whole or in part, for cause immediately upon written Notice of Termination by the

County Representative to the Contractor. In the event the County terminates the Agreement, in whole or in part, because of default by Contractor, the County may procure goods, services, materials, and/or work similar to those terminated, and the Contractor shall be liable for any damages, expenses, and costs incurred due to this action. If it is determined that the Contractor was not in default or that the default was excusable (e.g. failure due to causes beyond the control of, or without the fault or negligence of the Contractor), the rights and obligations of the parties shall be those as provided in the provision for Termination for Convenience.

10.3. Termination for Convenience. The County may whenever the interests of the County so require, terminate the Agreement, in whole or in part, for the convenience of the County. The

County Representative shall give thirty (30) calendar days prior written Notice of Termination to the Contractor, specifying when the termination is to become effective. In the event of any such termination, the Contractor shall be paid by the County for all Work actually and timely rendered up to receipt of the notice of termination, together with any retainage withheld, and thereafter until the date of termination, the Contractor shall be paid only for such Work as is specifically authorized in writing by the County.

10.4. Unless directed differently in the Notice of Termination, the Contractor shall incur no further obligations in connection with the terminated work and shall stop work to the extent specified and on the date given in the Notice of Termination. Additionally, unless directed differently, the Contractor shall terminate outstanding orders and/or subcontractor agreements related to the terminated work and shall transfer all services/work in progress, completed work, and other materials related to the terminated work to the County. The Contractor must also deliver to the County all documents as set forth above in the Term Section.

10.5. The parties may agree to terminate this Agreement for their mutual convenience through a written amendment of this Agreement. The amendment will state the effective date of the termination and the procedures for proper close-out of this Agreement.

10.6. Termination of this Agreement or a portion hereof under the provisions incorporated herein shall not relieve the Contractor of its responsibilities for the completed portion or concerning any just claims arising out of the Work performed.

10.7. Force Majeure. Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to a “Force

Majeure”. For purposes of this Agreement, the term “Force Majeure” means any cause, action or agency delaying or preventing the performance of a party’s obligation(s) under this Agreement which is beyond the reasonable control or foreseeability of such party including, but not limited to, natural disasters, wars, power failures, fires, floods, explosion, internet outages and other acts of God. Upon notice of a force majeure event, the party whose performance under this

Agreement is affected thereby shall: (i) promptly notify the other party by the quickest means available, explaining the nature and expected duration thereof; and (ii) use reasonable efforts to diligently remedy the interruption or delay, provided that the interruption or delay is reasonably capable of being remedied by that party. In the event that any event of Force Majeure occurs, the

Contractor may request a reasonable extension of time for performance of its Work.

SECTION 11. LIQUIDATED DAMAGES

11.1. The Contractor must adhere to the Final Completion Date for the Project as provided herein. In the event the Project is not completed by the Final Completion Date, a liquidated damage amount based on the daily liquidated damage charges established in FDOT’s Standard

Specifications for Road and Bridge Construction Section 8-10 FY 2024-25 will be enforced as further defined below. The parties agree that such liquidated damages are not a penalty.

11.2. The parties hereto mutually understand and agree that time is of the essence in the performance of this Agreement and that the County will incur damages if the Contractor’s Work is not completed on time. The Contractor shall at all times carry out its duties and responsibilities as expeditiously as possible and shall begin, perform, and complete its Work so the Project is completed by the Final Completion Date. The parties agree that the total amount of the County’s damages, in whole or in part, due to the Contractor’s failure to complete the Project, will be difficult, if not impossible, to definitely ascertain and quantify, because this is a public construction project that will, when completed, benefit the public by improving traffic flow and increasing public safety.

11.3. Should the Contractor fail to complete the Project by the Final Completion Date, it is mutually agreed to and understood by both parties that the Contractor shall pay to the County, not as a penalty but as liquidated damages, the sum of $1,685.00 per calendar day for each and every day after the scheduled Final Completion Date for the Project until final completion is achieved. This liquidated damages provision shall apply and remain in full force and effect in the event that the Contractor is terminated by the County for default and shall apply until final completion has been achieved by any completing contractor or County forces. The County shall have the right to apply as payment on such liquidated damages any money that is due to the

Contractor by the County. Notwithstanding the foregoing, the Contractor shall have no liability for any liquidated damages due to or arising from (a) any County delay, for which the Contractor has delivered to the County prior written notice describing the delay and its cause, unless such delay is due to the Contractor’s breach hereunder; (b) the withholding on the part of the County through the Project Manager of any consent, direction or approval required by the County hereunder which causes delay on the part of the Contractor and for which the Contractor has delivered to the County prior written notice describing the delay and its cause; and (c) delays caused by and directly attributable to any event of Force Majeure for which the Contractor has delivered to the County prior written notice describing the delay and its cause. The Final

Completion Date for the Project shall be tolled for a period of time equal to the aggregate of all delays arising under the sentence immediately preceding, including any extensions authorized by an approved Change Order.

11.4. Permitting the Contractor to continue and to finish the Project after the expiration of the time allowed, shall in no way act as a waiver on the part of the County of the liquidated damages due under the Agreement.

11.5. The parties agree that, although such liquidated damages are difficult to ascertain, the above amount has been agreed upon by the parties as the reasonable approximation of the amount of damages the County would suffer due to the Contractor’s breach as addressed above.

The County’s decision to recover liquidated damages shall not be construed as a waiver of any legal remedies the County may have as to any subsequent default or breach under this

11.6. The provisions in this Section shall survive the termination or expiration of this

SECTION 12. COMPLIANCE WITH APPLICABLE LAW AND REGULATIONS

12.1. The Contractor acknowledges that federal funds will be used to fund all or a portion of the Project.

12.2. The Contractor acknowledges that the County as a recipient of federal funding must complete financial, performance, and compliance reporting as may be required. The Contractor agrees to support the County’s efforts to comply with any reporting obligations.

12.3. All expenditures of state or federal financial assistance must be in compliance with the laws, rules and regulations applicable to expenditures of State funds, including but not limited to, the Reference Guide for State Expenditures.

12.4. The Contractor acknowledges that the Department shall have the right to review and approve all contracts and documents associated with the Project. The Contractor also agrees to provide the Department’s authorized representatives access to construction or other work sites pertaining to the Work being performed under this Agreement.

12.5. In performance of the Work, the Contractor is bound by and shall comply and require its subcontractors to comply with all terms and conditions of this Agreement and all federal, state, and local laws, regulations, executive orders, and specifications applicable to the Work performed under this Agreement, including, but not limited to, the Florida Department of

Transportation, FY 2024-25 Standard Specifications for Road and Bridge Construction and applicable Interim Revisions (IRs) and Florida Department of Transportation, FY 2024-25

Standard Specifications for Road and Bridge Construction. Any express reference in this

Agreement to a particular statute, rule, regulation, or specification in no way implies that no other statute, rule, regulation, or specification applies. Any violation of these laws, rules, regulations, or specifications shall constitute a material breach of this Agreement and shall entitle the County to terminate this Agreement upon delivery of written notice of termination to the Contractor as outlined herein.

12.6. The Contractor hereby certifies that the Certification for Disclosure of Lobbing Activities on Federal-Aid Contracts attached hereto as Attachment _, Disclosure of Lobbying Activities attached hereto as Attachment , Non-Collusion Declaration and Compliance with 49 CFR

§29 attached hereto as Attachment , Required Contract Provisions and Certification

Regarding Debarment attached hereto as Attachment _, Certification regarding Debarment, Suspension, Ineligibility attached hereto as Attachment _, and Conflict of Interest Disclosure

Form attached hereto as Attachment _ that were executed by the Contractor in response to the

Bid are still valid and are incorporated herein by reference.

12.7. The Contractor further acknowledges that performance under the Agreement is subject to

2 CFR Part 200, entitled “Uniform Administrative Requirements, Cost Principles and Audit

Requirements for Federal Awards,” including Appendix II. The Contractor agrees to comply with 2 CFR Part 200 to the extent applicable to the Work provided by the Contractor under this

12.8. The Contractor is bound by and shall comply with the provisions contained in FHWA

1273 attached hereto as Attachment and the Davis-Bacon Act wage requirements as set forth in Attachment attached hereto. The Contractor shall attach these provisions and incorporate them into any subcontractor agreement.

12.9. The Contractor must comply with all requirements imposed by Title VI of the Civil

Rights Act of 1964, the regulations of the U.S. Department of Transportation issued thereunder, and the assurance by the Contractor thereto. The Contractor agrees to comply with Appendices A and E attached hereto as Attachment . The Contractor shall require all subcontractors to comply with the provisions contained in Appendices A and E and shall attach and incorporate them into all subcontractor agreements.

12.10. If the Contractor, with the funds authorized by this Agreement, enters into any contracts or agreements with any third parties or subcontractors, then any such contract or agreement may require review and approval by the County and the Department and to the extent applicable to the Work performed under this Agreement, must include the criteria and provisions in this

Agreement and accompanying attachments.

SECTION 13. AUTHORITY TO SUSPEND WORK

13.1. The County Representative and/or Project Manager shall have the authority to suspend the Work, wholly or in part, for such period or periods as may be deemed necessary, due to unsuitable weather, budgetary constraints, conditions which are considered unfavorable for the prosecution of the Work, or if the County is prevented or enjoined from proceeding with the

Work either before or after the start of any Work by reason of any litigation or other reason beyond the control of the County. In the event of any such suspension, the Contractor shall not be entitled to make or assert a claim for damage by reason of said delay, but time for completion of the Project will be extended to such reasonable time as the County may determine and will be set forth in writing. The Contractor shall be paid for all Work rendered up to the date of suspension and for all Work so rendered after cessation of the suspension and resumption of the Work. The suspension or delay of Work, regardless of whether caused by the actions or inactions of the County, does not give rise to any claim by the Contractor against the County.

SECTION 14. SAFEGUARDS, PRESERVATION OF PROPERTY, AND FAILURE

TO RESTORE DAMAGED PROPERTY AND RISK OF LOSS

14.1. The Contractor shall maintain a safe and secure worksite for the duration of the Work.

The Contractor shall maintain all areas in a neat and presentable condition. The Contractor shall also maintain sufficient safeguards against the occurrence of accidents, injuries or damage to any person or property around the Work to include establishing barricades, fencing, or any other means necessary to protect the public during the Work and secure all equipment, tools, and related materials.

14.2. The Contractor shall preserve from damage all property, structures, utilities, services, roads, trees, and shrubbery along the line of the Work, or which is in the vicinity of or is in any way affected by the Work, the removal or destruction of which is not called for by the scope of work. This applies to public and private property. The Contractor shall be held responsible for immediately repairing or replacing, at its own expense, such property to the satisfaction of the

County which is damaged by reason of the Contractor’s Work on or around such property. When adjacent property is affected or endangered by any Work done under this Agreement, it shall be the responsibility of the Contractor to take whatever steps are necessary for the protection of the adjacent property.

14.3. In case of failure on the part of the Contractor to restore and/or replace such property, or to make good such damage or injury, the County Representative and/or Project Manager may upon 48 hours’ notice, proceed to repair, rebuild or otherwise restore such property, as may be deemed necessary, and the cost thereof will be deducted from any monies due or which may become due to the Contractor under the Agreement. Nothing in this provision shall prevent the Contractor from receiving proper compensation for the removal, damage or replacement of any public or private property as long as such work is authorized by the

County Representative and/or Project Manager, provided that such property has not been damaged as a result from the performance of the Work or through fault of the Contractor, its employees or agents.

SECTION 15. AUDIT OF CONTRACTOR’S RECORDS

15.1. All records, expenditures, and payments connected with this Agreement must be retained for a period of at least five (5) years following the date of final payment and close-out of all pending matters. In the event of litigation or settlement of claims arising from the performance of this Agreement, the Contractor agrees to maintain all records until the County, the Department, the State of Florida Chief Financial Officer, the State of Florida Auditor General (or designee), or any of their authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related to the litigation or settlement of claims.

15.2. All records, expenditures, and payments under this Agreement are subject to examination and/or audit by the County, the Department, the State…