ITB-2019-0502_DRAFT_General_Construction_Agreement_7.15.19.pdf

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

Phone: 407-262-7700, Ext. 1142 | procurement@casselberry.org

ITB-2019-0502 – PW 1708 Howell Park Water Treatment Plant Rehab

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GENERAL CONSTRUCTION AGREEMENT

BETWEEN

CITY OF CASSELBERRY, FLORIDA

AND

CONTRACTOR

mailto:procurement@casselberry.org

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TABLE OF CONTENTS

ARTICLE TITLE PAGE NUMBER

1.00 Extent of Agreement and Definitions 4

2.00 Scope of Work 7

3.00 Contract Time 7

4.00 Contract Sum 8

5.00 Progress Payments 9

6.00 The Owner’s Representative 13

7.00 The Owner 15

8.00 The Contractor 15

9.00 Subcontractors 22

10.00 Miscellaneous Provisions 23

11.00 Protection of Persons and Property 26

12.00 Insurance 27

13.00 Changes in the Work 31

14.00 Correction of Work/Warranty 34

15.00 Termination and Suspension of Work; Correction of Work 37

16.00 Severability 39

17.00 Compliance with State and Local Requirements 39

18.00 Assignment of Contract 40

19.00 Non-Appropriations 41

20.00 Employment Eligibility Verification (E-Verify) 41

21.00 Project Managers 41

22.00 Equal Opportunity Employer 41

23.00 Owner as Municipal Corporation 42

24.00 Administrative Provisions 42

25.00 Arms-Length Negotiations 42

26.00 Integration/Amendment 42

27.00 Non-Exclusive Agreement 42

28.00 Ownership and Rights in Data 42

29.00 Mediation 43

30.00 Counterparts 43

31.00 Grant Funding Compliance (NOT APPLICABLE) 43

32.00 Special Disaster Relief and Recovery Provisions 43

EXHIBIT TITLE PAGE NUMBER

A Scope of Work - Procedural Documents and Specifications 56 B Pricing Schedule 57 C Contractor Certification Regarding Scrutinized Companies 58 D Plans and Drawings 59 E Change Order 60 F Payment Bond 61 G Performance Bond 63 H Notice to Proceed 65

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EXHIBIT TITLE PAGE NUMBER

I Application for Payment 66 J Certification of Substantial Completion 68 K Certification of Completion 70 L Contractor’s Release of Lien 71 M Contractor’s Final Release of Lien 73

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GENERAL CONSTRUCTION AGREEMENT

THIS AGREEMENT is made by and between the CITY OF CASSELBERRY, a municipal corporation existing under the laws of the State of Florida, 95 Triplet Lake Drive, Casselberry, Florida 32707, hereinafter referred to as the “OWNER”, and CONTRACTOR NAME AND ADDRESS hereinafter referred to as the

“CONTRACTOR”.

W I T N E S S E T H:

WHEREAS, the CITY has competitively solicited ITB-2019-0502, titled PW 1708 Howell Park Water Treatment Plant Rehab.

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

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

ARTICLE 1.00 EXTENT OF AGREEMENT AND DEFINITIONS

1.01 The Construction Team

The OWNER and the Owner’s Representative (if applicable) and the CONTRACTOR, called the “Construction Team”, shall work jointly through final construction completion and shall be available thereafter should additional services be required in accordance with this Agreement.

The Contractor accepts the relationship of trust and confidence established with the OWNER by this Agreement. He Covenants with the Owner to furnish his best skill and judgement and to cooperate with the Construction Team in furthering the interests of the Owner. He agrees to furnish efficient business administration and superintendence and to use his best efforts to perform the Work in the best and soundest way and in the most expeditious and economical manner consistent with the interests of the Owner.

1.02 Contract Documents

This Agreement and General Conditions to the Agreement, consisting of the contract documents as defined herein, between the OWNER and the CONTRACTOR supersedes any prior negotiations, representations or agreements. This Contract shall not be superseded by any provision of any of the other Contract Documents and may be amended only by written instrument signed by both OWNER and

CONTRACTOR.

1.03 Supplemental Documents

The Contractor understands that the documents identified below are incorporated by reference and become an integral part of this contract:

a) The City of Casselberry’s solicitation documents and Contractor’s response.

b) The City of Casselberry - Utilities Standards & Specifications Manual -http://www.casselberry.org/documentcenter/view/1325

c) Division I, Division II and Division III – Florida Department of Transportation (FDOT) Standards http://www.casselberry.org/documentcenter/view/1325

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Specifications for Road and Bridge Construction, January 2018 as amended, when applicable.

d) Special Disaster Relief and Recovery Provisions – Federal Emergency Management (FEMA)

Required Documents.

1.04 Definitions

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

1. Application for Payment: The form accepted by the OWNER which is to be used by the CONTRACTOR in requesting progress or final payments and which is to include such supporting documentation as is required by the Contract Documents. For purposes of this Contract, the CONTRACTOR shall use American Institute of Architects (AIA) Document G702-1992 Application and Certification for Payment, and AIA G703-1992, Continuation Sheet as the standard Application for Payment forms.

2. Bid: The offer or bid of the CONTRACTOR submitted on the prescribed form setting forth the prices for the Work to be performed.

3. Bonds: Bid, performance and payment bonds and other instruments of security.

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

5. Change Order: A written document agreed to by the CONTRACTOR and approved by the OWNER, or a written order issued by the Owner’s Representative and acknowledged by the OWNER and the CONTRACTOR, authorizing a change in the Work, adjustment in the Contract Price or the Contract Time.

6. Construction Engineering & Inspection (CEI): CEI services refers to the person or professional firm hired to manage the contract administration, inspection, and materials sampling and testing for the term of the construction project. May also be referred to as the Owner’s Representative.

7. Contract Documents: The official documents setting forth the entire agreement to include: bid information, requirements and contractual obligations for the Project and includes the Invitation to Bid, the General Conditions, the Supplemental General Conditions, the Scope of Work, ITB Addenda, Standard Instructions and Special Instructions for Vendors, Plans, Drawings, Exhibits, General Requirements, Technical Specifications, Bid Forms, Record of Award by Board, Bonds, Notice of Award, Notices(s) to Proceed, Supplements, Representations and Certifications, Certificates, Project Forms, Closeout Forms, Purchase Order(s), Change Order(s), Field Order(s), and any additional documents the submission of which is required by this Project.

8. Contract Time: The original time between commencement and completion, including any milestone dates thereof, as established in this Contract, as may be amended by Change Order.

9. Contractor: The person, firm, or corporation with whom the CITY has contracted and who is responsible for the acceptable performance of the Work and for the payment of all legal debts pertaining to the Work herein. All references in the Contract Documents to third parties under contract or control of Contractor shall be deemed to be a reference to Contractor.

10. Correction Period: The time during which the CONTRACTOR must correct defective Work or remove defective Work from the site and replace it with non-defective Work, all at no cost to the

OWNER.

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

12. Excusable Delay: Any delay beyond the control and without the fault or negligence of the CONTRACTOR, the OWNER, or any other contractor caused by events or circumstances such as, but not limited to, acts of God or of the public enemy, acts of interveners, acts of government

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other than the OWNER, fires, floods, epidemics, quarantine restrictions, freight embargoes, and hurricanes, tornadoes, or new sink holes. Labor disputes shall give rise only to an inexcusable delay. The sole remedy for Excusable Delay shall be an extension of time and in no circumstances shall additional compensation be paid for such Delays.

13. Field Order: A written order issued by the OWNER which orders minor changes in the Work in accordance but which does not involve a change in the Contract Price or the Contract Time.

14. Float or Slack Time: The time available in the progress schedule during which an unexpected activity can be completed without delaying the Substantial Completion of the Work. Float is not for the exclusive benefit of any one party to the project.

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

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

17. Notice to Proceed: Written notice to Contractor authorizing the Commencement of the activities or work identified in the notice or as described in the Contract Documents.

18. Owner: The City of Casselberry.

19. Owner’s Project Representative: The Owner’s Project Representative, also referred to as the

Owner’s Representative, is the Owner’s Agent, who will act as directed by and under the supervision of the Owner, and who will confer with the Owner, Architect, or Engineer, as applicable. The CEI may be contracted as the Owner’s Project Representative.

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

21. Plans or Drawings: The official graphic representations of this Project that are a part of the Contract Documents.

22. Project: The entire construction Project as presented in the Contract Documents, including the Work described herein.

23. Specifications or Technical Specifications: The directions, provisions, and requirements contained in the Project Manuals and Contract Documents together with all written agreements made, or to be made, pertaining to the method and manner of performing the Work, or the quantities and qualities of material and which are to be furnished under the Contract Documents.

24. Subcontractor: A person, firm or corporation having a direct contract with Contractor including one who furnishes material worked to a special design according to the Contract Documents, but does not include one who merely furnishes Materials not so worked.

25. Substantial Completion: The date, as certified in writing by Consultant and as finally determined by Contract Administrator in its sole discretion, on which the Work, or a portion thereof, is at a level of completion in substantial compliance with the Contract Documents such that all conditions of permits and regulatory agencies have been satisfied and the CITY or its designee can enjoy use or occupancy and can use or operate it in all respects for its intended purpose. A Certificate of Occupancy (or a Temporary Certificate of Occupancy (TCO) or other alternate municipal authorization for limited or conditional occupancy acceptable to the Contract Administrator) must be issued for Substantial Completion to be achieved, however, the issuance of a Certificate of Occupancy or the date thereof are not to be determinative of the achievement or date of Substantial Completion.

26. Surety: The surety company or corporate body which is bound by the performance bond with and for the CONTRACTOR who is primarily liable, and which surety company or individual is responsible for Contractor’s acceptable performance of the Work under this contract and for the payments of all debts pertaining thereto in accordance with Section 255.05, Florida Statutes.

27. Work: The construction and services required by the Contract Documents, whether completed or

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partially completed, and includes all other labor, materials, equipment and services provided or to be provided by Contractor to fulfill Contractor’s obligations. The Work may constitute the whole or a part of the Project.

28. Supporting Documents: Supplemental documents are identified and incorporated herein by reference, including but not limited to, City of Casselberry Utilities Standards & Specifications, FDOT Standards for Road Construction (2018), Federal Emergency Management Assistance Requirements and all Exhibits referenced in this Contract.

1.05 Execution, Correlation and Intent

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

B. The Contract documents shall be followed in strict accordance as to Work, performance, material, and dimensions except when the Owner’s Representative may authorize, in writing, an exception, in which case the City shall be notified.

C. Dimensions given in figures are to hold preference over scaled measurements from the drawings;

however, all discrepancies shall be resolved by the Owner’s Representative. The Contractor shall not proceed when in doubt as to any dimension or measurement, but shall seek clarification from the Owner’s Representative.

D. The organization of the Specifications into divisions, sections and articles, and the arrangement of Drawings shall not control the CONTRACTOR in dividing the Work among Subcontractors or in establishing the extent of the Work to be performed by any trade.

ARTICLE 2.00 SCOPE OF WORK

Contractor hereby agrees to furnish all of the labor, materials, equipment, services, and incidentals necessary to perform all of the Work described in the Contract Documents and related thereto for the Project.

ARTICLE 3.00 CONTRACT TIME

3.01 Time is of the essence throughout this Contract. The Work to be performed under this Contract shall commence with the Specified Date of Commencement and is subject to authorized adjustments.

Substantial Completion shall be achieved no later than THREE HUNDRED FIVE DAYS (305) consecutive calendar days upon the issuance of the Notice to Proceed and/or the City issued Purchase Order. Final completion at SIXTY (60) consecutive calendar days after substantial completion.

3.02 The CONTRACTOR’s Substantial Completion of the work to be performed, if prior to the Three Hundred

Five (305) consecutive calendar days after the date of specified date of commencement as set forth herein, shall not be the basis for any claim for additional compensation by the CONTRACTOR against the OWNER. No compensation incentive for early completion.

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

3.04 Upon failure of Contractor to obtain Substantial Completion within the deadline stated in Subsection 3.01, plus approved time extensions, Contractor shall pay to City the sum of One Thousand Six Hundred Sixty- Five Dollars ($1,665.00) for each calendar day after the deadline for Substantial Completion, plus any approved time extensions, until Substantial Completion is obtained. After Substantial Completion, should Contractor fail to complete the remaining Work within the deadline stated in Subsection 3.2, plus approved time extensions thereof, Contractor shall pay to City the sum equal to fifty percent (50%) of the

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applicable amount for each calendar day after the deadline for Final Completion, plus any approved extensions, until Final Completion is obtained. These amounts are not penalties but are liquidated damages to City for its inability to obtain full beneficial use/occupancy of the Project. Liquidated damages are hereby fixed and agreed upon between the Parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by City as a consequence of such delay, and both Parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of Contractor to complete this Contract on time. The above-stated liquidated damages shall apply separately to each portion of the Project for which a deadline for completion is given.

Applicable liquidated damages are the amounts established in the following schedule:

Original Contract Amount Daily Charge Per Calendar Day $50,000 and under ........................................................$956 Over $50,000 but less than $250,000............................$964 $250,000 but less than $500,000.................................$1,241 $500,000 but less than $2,500,000..............................$1,665 $2,500,000 but less than $5,000,000...........................$2,712 $5,000,000 but less than $10,000,000.........................$3,447 $10,000,000 but less than $15,000,000.......................$4,866 $15,000,000 but less than $20,000,000.......................$5,818

3.05 City is authorized to deduct liquidated damages from monies due to Contractor for the Work under this

Contract or as much thereof as City may, in its sole discretion, deem just and reasonable.

3.06 Contractor shall be responsible for reimbursing the CITY, in addition to liquidated damages, for all costs incurred by Owner’s Representative in administering the construction of the Project beyond the completion date specified above, plus approved time extensions. Owner’s Representative’s construction administration costs shall be pursuant to the contract between CITY and Owner’s Representative, a copy of which is available upon request of the Contract Administrator. All such costs shall be deducted from the monies due Contractor for performance of Work under this Contract by means of unilateral credit Change Orders issued by CITY as costs are incurred by Owner’s Representative and agreed to by CITY.

3.07 Change to Contract Time - Extensions to the Contract Time for delays caused by the effects of inclement weather shall be submitted as a Request for Contract Amendment to change the Contract Time. These time extensions are justified only when rains or other inclement weather conditions or related adverse soil conditions result in Contractor being unable to work at least fifty percent (50%) of the normal workday on controlling items of work identified on the accepted schedule or updates due to adverse weather conditions.

ARTICLE 4.00 CONTRACT SUM

4.01 Fixed Contract

A. Payment. The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor’s performance of the Contract. The Contract Sum shall be ______________ Dollars and Zero Cents ($____________), subject to additions and deductions as provided in the Contract Documents.

B. Alternates. The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner with the following provisions.

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C. Unit Prices. Unit prices, if any, are reflected in the Contractor’s Bid.

ARTICLE 5.00 PROGRESS PAYMENTS

5.01 Payment Record

Based upon Applications for Payment submitted by the CONTRACTOR to the OWNER or Owner’s Representative and Certificates for Payment issued by the OWNER or Owner’s Representative pursuant to this Article, the OWNER shall make progress payments on account of the Contract Sum to the CONTRACTOR as provided in the Contract Documents for the period ending five (5) working days before the end of the month in accordance with the procedure delineated in this Article.

5.02 Schedule of Values and Work Schedule

Before the first Application for Payment, the CONTRACTOR shall submit to the OWNER or Owner’s Representative a schedule of values allocated to the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the OWNER may require. This schedule, unless objected to by the OWNER shall be used only as a basis for the CONTRACTOR’s Applications for Payment. In addition to the schedule of values, the CONTRACTOR shall also submit to the OWNER, the required work schedules as set forth in Section 8.14 of this Agreement. No progress payment shall be made by the OWNER unless the CONTRACTOR strictly complies with the provisions of this section.

5.03 Payment Estimate; Submittal and Disposition

The CONTRACTOR shall be required to submit a completed Certification Disbursement of Previous Periodic Payment (700-010-38) to Subcontractors form with each request for partial payment estimate.

Failure to submit this required certification will result in the request for partial payment being rejected and returned to the CONTRACTOR.

By the twenty-fifth (25th) of the month, the CONTRACTOR will submit to the OWNER with a copy to the Owner’s Representative a partial payment estimate filled out, signed and notarized by the CONTRACTOR covering the Work performed during the month covered by the partial payment estimate and supported by such data as the OWNER, or the Owner’s Representative, may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at or near the site, the partial payment estimate shall also be accompanied by such supporting data, satisfactory to the OWNER, as will establish the OWNER’s title to the material and equipment and protect his interest therein, including applicable insurance. The Owner’s Representative will within twenty (20) days (excluding Saturdays, Sundays and holidays) after receipt of each partial payment estimate do one of the following: 1) indicate in writing his approval of payment and present the partial payment estimate together with a certificate for payment to the OWNER; 2) submit to the OWNER a Certificate for Payment for partial payment recommending payment by the OWNER of such other amounts as the Owner’s Representative shall consider is due the CONTRACTOR, informing the CONTRACTOR and the OWNER and of the reason for his recommendation; or 3) return the partial payment estimate to the CONTRACTOR indicating in writing his reasons for refusing to approve payment. In the latter two instances, the CONTRACTOR may make the necessary corrections and resubmit the partial payment estimate. The OWNER will within fifteen (15) days of approval by the Owner’s Representative of a certificate of payment, pay the CONTRACTOR a progress payment on the basis of the approved partial payment estimate.

5.04 Issuance of Certificate for Payment; Representations

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The issuance of Certificate of Payment by the Owner’s Representative will constitute a representation to the OWNER, based on his observations at the site and the data comprising the Application for Payment, that the Work has progressed to the point indicated; that, to the best of his knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to the results of any subsequent tests required by or performed under the Contract Documents, to minor deviations from the Contract Documents correctable prior to completion, and to any specific qualification stated in his Certificate) and that the CONTRACTOR is entitled to payment in the amount certified. However, by issuing a Certificate for Payment, the Owner’s Representative shall not be deemed to represent that he has made exhaustive or continuous on-site inspections to check the quality or quantity of the Work or that he has reviewed the construction means, methods, techniques, sequences or procedures, or that he has made any examination to ascertain how or for what purpose the CONTRACTOR has used the monies previously paid on account of the Contract Sum. Issuance of Certificate of Payment does not constitute a waiver of the OWNER’s rights under Section 5.15.

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

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

5.05 Payments Withheld

A. The Owner’s Representative may decline to certify payment and may withhold his Certificate in whole or in part, to the extent reasonably necessary to protect the OWNER, if in his opinion he is unable to make representations to the OWNER as provided in Section 5.04, or in order to protect the OWNER as provided herein. If the Owner’s Representative is unable to make representations to the OWNER as provided in Section 5.04 and to certify payment in the amount of the Application, or he is unable to certify payment in the amount of the application to protect the OWNER as provided in Section 5.05, he will notify the CONTRACTOR as provided in Section 5.03. If the CONTRACTOR, Owner’s Representative and the OWNER cannot agree on a revised amount, the Owner’s Representative will promptly issue a Certificate for Payment for the amount for which he is able to make such representations to the OWNER. The Owner’s Representative may also decline to certify payment or, because of subsequently discovered evidence or subsequent observations, he may nullify the whole or any part of any Certificate for Payment previously issued or require a bond satisfactory to the OWNER to substitute for such nullification, to such extent as may be necessary in his opinion, to protect the OWNER from loss from the following, including but not limited to:

1. Defective work not remedied;

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

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

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4. Reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;

5. Damage to the OWNER or another CONTRACTOR;

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

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

8. Failure of CONTRACTOR to maintain records.

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

5.06 Inclusion of Materials and Equipment in Estimates

As provided for in Section 5.03, payments may be made on account of materials or equipment not incorporated in the Work but delivered and suitably stored at the site and, if approved in advance by the OWNER, payments may similarly be made for materials or equipment suitably stored at some other location agreed upon in writing. Payments for materials or equipment stored on or off the site shall be conditioned upon submission by the CONTRACTOR of bills of sale or such other procedures satisfactory to the OWNER to establish the OWNER’s title to such materials or equipment or otherwise protect the OWNER’s interest, including applicable insurance and transportation to the site for those materials and equipment stored off the site. The CONTRACTOR shall be responsible for proper storage of the material and for providing protection from loss of materials or any damage.

5.07 Liens

The CONTRACTOR warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the OWNER either by incorporation in the construction or upon the receipt of payment by the CONTRACTOR, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Subsection 5.07 as “liens”; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the CONTRACTOR, or by any other person performing Work at the site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the CONTRACTOR or such other person.

5.08 Payments to Subcontractors

The CONTRACTOR shall be required to submit a completed Certification Disbursement of Periodic Previous Payment to Subcontractors form (700-010-38) with each request for partial payment estimate.

Failure to submit the required certification will result in the request for partial payment estimate being rejected and returned to the CONTRACTOR.

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

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5.09 Subcontractors - Obligations of the OWNER

The OWNER shall not have any obligation to pay or to see to the payment of any moneys to any Subcontractor or Sub-subcontractor except as may otherwise be required by this Contract or law.

5.10 Payment Upon Substantial Completion

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

5.11 Procedures for Final Completion Certificate for Payment

Following the Owner’s Representative issuance of the Certificate of Substantial Completion of the Work, and the CONTRACTOR’s completion of the Work, the CONTRACTOR shall forward to the Owner’s Representative a final Application for Payment. Upon receipt, the Owner’s Representative will make any necessary evaluations, and will make necessary inspection. When the Owner’s Representative finds the Work acceptable under the Contract Documents and the Contract fully performed, the Owner’s Representative will issue a Certificate for Payment which will approve the final payment due the CONTRACTOR. This approval will constitute a representation that, to the best of the Owner’s Representative knowledge, information and belief, and on the basis of observations and inspections, the Work has been completed in accordance with the Terms and Conditions of the Contract Documents and that the entire balance found to be due the CONTRACTOR, and noted in said Certificate, is due and payable. The Owner’s Representative approval of said project Certificate for Payment will constitute a further representation that the conditions precedent to the CONTRACTOR being entitled to final payment as set forth in Subsection 5.13 have been fulfilled.

5.12 Conditions Precedent to Final Payment

The final payment shall not become due until the CONTRACTOR submits to the OWNER or the Owner’s Representative: 1) an affidavit that all payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the OWNER or his property might in any way be responsible, have been paid or otherwise satisfied; 2) consent of surety to final payment; 3) if required by this Contract or applicable law or ordinance, and other documentation establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of liens arising out of the Work, to the extent and in such form as may be designated by the OWNER; 4) items as required herein this Contract; If any Subcontractor refuses to furnish a release or waiver required by the OWNER, the CONTRACTOR may furnish a bond satisfactory to the OWNER to indemnify OWNER against any such lien. If any such lien remains unsatisfied after all payments are made and a bond satisfactory to the OWNER to indemnify OWNER against any such lien is not provided by the CONTRACTOR, the CONTRACTOR shall pay on demand to the OWNER all moneys that the OWNER may be compelled to pay in discharging such lien, including all costs and reasonable attorney’s fees.

5.13 Delay Between Substantial and Final Completion

If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the CONTRACTOR or by the issuance of a Contract modification (Change Order) affecting final completion, the OWNER shall, upon application by the CONTRACTOR, certified by the OWNER and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than

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

5.14 Final Payment - Waiver of Claims by the OWNER

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

1. Unsettled liens;

2. Faulty or defective work appearing after final payment;

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

4. An error in partial or final payment.

5.15 Final Payment - Waiver of Claims by the CONTRACTOR

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

ARTICLE 6.00 THE OWNER’S REPRESENTITIVE

6.01 Responsibilities

The Owner’s Project Representative, hereinafter referred to as Owner’s Representative, will provide administration of the Contract Documents as hereinafter described.

6.02 Representation

The Owner’s Representative will be involved in all phases of the Project. The Owner’s Representative will advise and consult with the OWNER. Unless otherwise provided in the Contract Documents, the OWNER’s instructions to the CONTRACTOR shall be forwarded through the Owner’s Representative.

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

6.03 Site Visits

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

6.04 Construction Methods

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

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with the Contract Documents. The Owner’s Representative or any other employee of the OWNER will not be responsible for or have control or charge over the acts or omissions of the CONTRACTOR, Subcontractors, Sub-subcontractors, or any of their agents or employees, or any other persons performing any of the work.

6.05 Access to Site

The Owner and the Owner’s Representative shall at all times have reasonable access to the Work wherever it is in preparation and progress. The CONTRACTOR shall provide facilities for such reasonable access so the Owner’s Representative may perform their functions under the Contract Documents.

6.06 Interpreter

The Owner’s Representative will be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder of the CONTRACTOR.

6.07 Reasonable Time

The Owner’s Representative will render interpretations necessary for the proper execution or progress of the Work, with reasonable promptness and in accordance with any time limit agreed upon. The CONTRACTOR may make written request to the Owner’s Representative for such interpretations. The decision of the Owner’s Representative shall be final and binding upon the CONTRACTOR.

6.08 Claims Decisions

Claims, disputes and other matters in question between the CONTRACTOR and the OWNER shall be referred initially to the OWNER’s Representative for review. The Owner’s Representative shall make a recommendation to the OWNER, and after consultation with all parties, the OWNER will render a decision in writing with reasonable promptness. The decision of the OWNER shall be final and binding.

6.09 Reasonable Intent

All interpretations and decisions of the Owner’s Representative shall be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. In his capacity as interpreter and judge, he will endeavor to secure faithful performance and will not be liable for the result of any interpretation or decision rendered in good faith in such capacity.

6.10 Reject Work

The OWNER will have authority to reject Work which does not conform to the Contract Documents.

Whenever, in the Owner’s Representative opinion, it is considered necessary or advisable for the implementation of the intent of the Contract Documents, the Owner’s Representative will have authority to require special inspection or testing of the Work in accordance with Subsection 10.08 whether or not such Work be installed or completed. However, nothing shall give rise to any duty or responsibility of the OWNER to the CONTRACTOR, any Subcontractor, any of their agents or employees, or any other person performing any of the Work due to the Owner’s Representative’s authority to act nor any decision made in good faith to exercise or not to exercise such authority.

ARTICLE 7 THE OWNER

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7.01 Permits and Fees

Unless otherwise modified by the Special Provisions, the OWNER shall pay for permits, governmental fees, licenses and inspections necessary to the proper execution and completion of the Work and which may be legally required to complete the project.

7.02 Rights of Way and Easements

The OWNER shall provide for necessary rights of way or easements, which are required for the construction of the project.

7.03 Furnish Information

Information under the OWNER’s control shall be furnished by the OWNER with reasonable promptness to avoid delay in the orderly progress of the Work.

7.04 Drawings and Specifications

The CONTRACTOR will be furnished, free of charge, two (2) full size copies of Drawings for the execution of the Work. Additional copies of the drawings/plans may be purchased from the OWNER by the CONTRACTOR at his expense.

ARTICLE 8.00 CONTRACTOR

8.01 Review of Contract Documents

The CONTRACTOR shall carefully study and compare the Contract Documents and shall at once report to the Owner’s Representative any error, inconsistency or omission he may discover. The OWNER shall not be liable for damages resulting where the CONTRACTOR knew or should have known of such error, inconsistency or omission and nevertheless proceeded without informing the OWNER. Unless otherwise provided for by the Contract Documents, the CONTRACTOR shall perform no portion of the Work at any time without Contract Documents for such portion of the Work including Construction Drawings and Construction Specifications and, where required, approved Shop Drawings or Samples for such portion of the Work.

8.02 Supervision of Work and Construction Documents

In addition to the other responsibilities set forth herein, the CONTRACTOR shall have the following responsibilities pursuant to the contract document. The services described shall not be deemed to constitute a comprehensive specification having the effect of excluding services not specifically mentioned as follows:

A. The CONTRACTOR shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract. The CONTRACTOR agrees to furnish all the necessary labor, materials, equipment, tools and services necessary to perform and complete in an acceptable manner all work required for the construction of the Project, in strict compliance with the Contract Documents.

B. Discuss the schedule with potential subcontractors of work before awarding any subcontracts and

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

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

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

E. Provide administrative, management, supervision, and related services as required to coordinate work of the Subcontractors with each other and with the activities and responsibilities of the Construction Team to complete the Project in accordance with the Contract Documents. Provide sufficient organization, personnel, management and supervision to carry out the requirements of the Work.

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

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

H. Provide a safety program prior to construction start for the Project subject to Owner’s Representative review and coordinate the Subcontractor’s participation in the safety program.

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

J. Consult with the Owner’s Representative for interpretations of the meaning and intent of the Drawings and Specifications. Consult with the Owner’s Representative for interpretations of the meaning and intent of the Drawings and Specifications.

K. Receive, review, and approve all Shop Drawings, Product Data, Samples and other submittals from the Subcontractors. Coordinate them with information contained in related contract documents and transmit approved submittals consistent with the Contract Documents to the Owner’s Representative.

Samples will be provided by the CONTRACTOR to the OWNER for approval. Thereafter, samples will be maintained by the CONTRACTOR.

L. The CONTRACTOR shall maintain at the site for the OWNER one record copy of all Plans, Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record all changes made during construction, and approved Shop Drawings, Product Data and Samples. These shall be available to the Owner’s Representative during the Work and upon completion of the Work shall be delivered to the Owner’s Representative for review. The Owner’s Representative shall then deliver them to the OWNER.

M. The CONTRACTOR shall be responsible to the OWNER for the acts or omissions of his employees, subcontractors, sub-subcontractors, their agents and employees, as well as other persons performing any of the Work under a contract with the CONTRACTOR. References in the Contract Documents to the acts or omissions of the CONTRACTOR shall include the acts and omissions of his employees, subcontractors, sub-subcontractors, their agents and employees, as well as any other persons performing the Work under contract with the CONTRACTOR.

N. The CONTRACTOR shall not be relieved from his obligations to perform the Work in accordance with the Contract Documents by the activities or duties of the Owner’s Representative in his administration of the Contract Documents, or by inspections, tests or approvals required or performed by persons other than the CONTRACTOR.

O. The CONTRACTOR shall provide and maintain in a neat and uniform condition, such

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accommodations for the use of his employees as may be necessary to comply with the requirements of the State Board of Health.

P. The CONTRACTOR shall conduct his work so as to interfere as little as possible with business or public travel. He shall, at his own expense, whenever necessary or required, maintain barricades, maintain lights, and take such other precautions as may be necessary to protect life and property, and he shall be liable for all damages occasioned in any way by his act or neglect or that of his agents or employees.

Q. The CONTRACTOR shall see that his activities and the activities of his Subcontractors shall meet any applicable noise abatement performance standards for dewatering pumps, air compressors and other construction equipment as set forth in the Seminole County and/or City of Casselberry Noise Ordinance, if applicable.

R. Precaution shall be exercised at all times for the protection of persons and property. The safety provisions of applicable laws shall be observed. Machinery, equipment, and other hazards shall be guarded in accordance with the safety provisions of the F.D.O.T. Specifications, to extent that such provisions are consistent with applicable law and with the scope of work herein.

S. The CONTRACTOR shall submit for OWNER approval a Maintenance of Traffic Plan prior to the beginning of construction. The Maintenance of Traffic Plan shall be approved by the OWNER or the Owner’s Representative.

T. As applicable to the project, the CONTRACTOR shall have a responsible person available near the work site on a twenty-four (24) hour basis, seven (7) days a week, in order that he may be contacted in case of emergencies in compliance with Section 5-8.3 of the F.D.O.T. Standard Specifications for Road and Bridge Construction. This responsible person’s name and phone number will be provided to the Florida Highway Patrol and local law enforcement agencies for contact in case of emergency.

The CONTRACTOR shall have a worksite traffic supervisor, certified by the American Traffic Safety Services Association Worksite Traffic Supervisor Certification Program or an equal, who will be responsible for compliance with Section 5-8.4 of the F.D.O.T. Standard Specifications for Road and Bridge Construction.

U. The CONTRACTOR shall be responsible for having a professional land surveyor perform the initial job layout work locating all storm water drainage structures, piping, etc. in relation to existing utilities.

This is being done in an effort to reduce conflicts with existing utilities during construction and if any conflicts are found, to allow time for correction prior to actual commencement of construction operations.

V. Upon completion of all required work under this contract, the CONTRACTOR shall be responsible for having a professional land surveyor submit a set of signed and sealed Record Drawings (As-Builts) to the OWNER, which reflect any and all changes, as well as existing conditions.

8.03 Labor and Materials

A. Unless otherwise provided in the Contract Documents, the CONTRACTOR shall provide and pay for all labor, materials, subcontracts, equipment, tools, construction equipment and machineries, transportation and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not…