CONSTRUCTION AGREEMENT

THIS CONSTRUCTION AGREEMENT (“Agreement”), made and entered into on the ____ day of __________, ____ (“Effective Date”) by and between Click here to enter text. (“Contractor”) (herein referred to as the “Contractor”) and the City of St. Petersburg, Florida, (herein referred to as the “City”), (hereinafter referred to collectively as the “Parties”).

WITNESSETH:

NOW, THEREFORE in consideration of the promises and covenants contained herein, the Parties agree as follows:

1. Contractor Duties.

The Contractor shall furnish all material and perform all of the Work (as hereinafter defined) for:

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for the City, in full and complete accordance with this Agreement (including its exhibits) and the Contract Documents. “Contract Documents” means, collectively, the General Conditions (which are attached hereto), the Specifications, the Plans and Drawings, the Solicitation Documents, and the Bid (as those terms, i.e., Specifications, Plans and Drawings, Solicitation Documents, and Bid are defined in the General Conditions). A more detailed description of the Work is set forth in Exhibit A, which is attached to this Agreement and made a part hereof.

2. The Contract. This Agreement and the Contract Documents form the contract (“Contract”) between the City and the Contractor.

3. Term. The Contract commences on the Effective Date and, unless earlier terminated as provided herein, remains in full force and effect until Final Completion (as defined in the General Conditions) and the expiration of all warranty periods and the satisfactory completion of all warranty-related work.

4. Schedule. The Contractor proposes and agrees to commence the Work described in the Notice to Proceed under the Contract on the date indicated in the Notice to Proceed, and to reach Substantial Completion (as defined in the General Conditions) within the applicable time frame set forth in the Notice to Proceed.

5. Punch List. When the Contractor believes the Work has reached Substantial Completion, Contractor shall request the Project Manager to schedule an inspection of the Work. Upon receipt of the request, the Project Manager will (i) perform the inspection and, provided the Project Manager agrees that the Work has reached Substantial Completion, (ii) within thirty (30) calendar days after the Work has reached Substantial Completion, develop a list of items required to render the Work complete, satisfactory, and acceptable, including the estimated cost to complete each item on the list (hereinafter, “Punch List”). The estimated cost to complete each item on the Punch List will be determined by mutual agreement between the City and Contractor or, if no agreement is reached, by decision of the City. Within five (5) calendar days after the Project Manager finishes developing and reviewing the Punch List, the Project Manager will deliver it to the Contractor. Upon receipt of the Punch List from the Project Manager, the Contractor shall complete all items on the Punch List within thirty (30) calendar days after the City submits the Punch List to the Contractor unless a longer period of time is identified in the Punch List. When the Contractor believes that it has satisfactorily completed all items on the Punch List, the Contractor shall so notify the Project Manager to review the completed Work.

6. Public Construction Bond.

A. Contractor shall furnish a public construction bond (and, as applicable, any riders thereto) for the Work pursuant to the Contract (“Public Construction Bond”), which Public Construction Bond must be in the form provided by the City and must be approved by the City Attorney’s Office. The Public Construction Bond must be executed by a surety company duly authorized to do business in the State of Florida. The amount of the Public Construction Bond must be equal to the full amount of the Payment as security for the faithful performance of the Contract and as security for the payment by the Contractor of all persons performing the Contract. In lieu of the Public Construction Bond, the Contractor may furnish to the City an alternative form of security in the form of cash, money order, certified check, cashier’s check, or a security of a type listed in Chapter 625, Part II, of the Florida Statutes and acceptable to the City Attorney. Any such alternative form of security is subject to the same conditions as those applicable to the Public Construction Bond required by the Contract and Chapter 255 of the Florida Statutes. Alternative forms of security will be returned to the Contractor not later than thirty (30) calendar days following the expiration of the guarantee period.

B. The Public Construction Bond must remain in effect for at least one year beyond the date of Final Completion.

7. Payment. Provided the Contractor faithfully performs its obligations contained in the Contract, the City hereby agrees to pay the Contractor an amount not to exceed Click here to enter text. dollars ($Click here to enter text.) (“Payment”) in accordance with the pricing set forth in Exhibit B, which is attached hereto and made a part of this Agreement. The Contractor shall invoice the City on a monthly basis to the City department identified in paragraph 29, and the City shall pay such invoices within twenty (20) business days after receipt (provided the Contractor is in compliance with the terms and conditions of the Contract and further provided that none of the conditions set forth in paragraph 9 are present), subject to retainage as set forth in paragraph 8. Such invoices must contain a detailed description of materials furnished and Work performed. There will be no increase in the Payment except through an amendment to the Contract made in accordance with the Contract. All payments and invoices must be in accordance with the Local Government Prompt Payment Act, Chapter 218, Part VII, Florida Statutes.

8. Retainage. Unless otherwise agreed upon by the Parties in writing, the City’s payments are subject to a retainage as set forth in this paragraph. When paying invoices, the City will retain five percent (5%) of the amount stated in each invoice until Substantial Completion. Within twenty (20) business days after the final Punch List is created, the City will make payment of the remaining balance of the Contract that includes all retainage previously withheld, less an amount equal to 150 percent of the estimated cost to complete all items on the Punch List. Such payment may be adjusted for Work that is incomplete, not in accordance with the requirements of the Contract, the subject of a good faith dispute made in writing pursuant to the Contract, or the subject of a claim brought pursuant to section 255.05, Florida Statutes. Upon Final Completion, the City will make payment for the completed Work, including the release of all remaining retainage withheld to date, unless a portion of such retainage has been forfeited pursuant this Agreement or applicable Laws (as defined hereinafter). Such payment shall be adjusted for Work that is incomplete, or not in accordance with the requirements of the Contract, or the subject of a good faith dispute made in writing pursuant to the Contract.

9. City’s Right to Decline, Reduce, or Delay Payments. The City has the right to decline, reduce, or delay the processing of any payment requests or to nullify, delay, or reduce the whole or any part of any payment previously issued, to such extent as the City deems necessary to adequately protect the City in the event of any of the following: (1) defective or damaged Work not being expediently remedied; (2) third party claims filed or evidence indicating probable filing of such claims; (3) failure of Contractor to promptly pay any subcontractors for labor or materials; (4) written notice from the surety that its prior consent has been revoked or that the City should withhold from the Payment any specified amount (in addition to the regular retainage amount); (5) evidence that the Work cannot be completed for the unpaid balance of the Contract; (6) damage to the City or another contractor; (7) persistent failure to carry out the Work in accordance with the Contract Documents; (8) persistent failure to comply with orders of the City; (9) evidence that liquidated damages will be assessed against the Contractor; (10) failure of the Contractor to accelerate its Work to get back on schedule; or (11) breach of the Contract.

10. Liquidated Damages. Time is of the essence in the Contract. The Parties agree that it would be extremely difficult and impractical under known and anticipated facts and circumstances to ascertain and fix the actual damages the City would incur if Contractor does not achieve Substantial Completion within the time stipulated in the Notice to Proceed. Therefore, Contractor and its surety are liable for and shall pay to the City the sums hereafter stipulated as fixed, agreed and acknowledged as reasonable liquidated damages, not as a penalty, for each calendar day of delay until the Work reaches Substantial Completion, in the aggregate amount of $Click here to enter text. per calendar day. These liquidated damages are the City’s sole and exclusive damages for Contractor’s delay of the Work.

11. Guarantee of Work. Upon completion of the Work and acceptance by the City in accordance with the Contract, the Contractor, together with the surety, fully and unconditionally warrants and guarantees all materials and labor (workmanship) incorporated into the Work for a period of not less than one (1) year after Substantial Completion. This guarantee is in addition to any manufacturer’s guarantees or warranties exceeding this period.

12. Severability. In the event that any provision or portion of the Contract (including any Contract Document) is found to be invalid or unenforceable, then such provisions or portion thereof must be performed in accordance with applicable Laws. The invalidity or unenforceability of any provision or portion of the Contract (including any Contract Document) will not affect the validity or enforceability of any other provision or portion of the Contract.

13. Warranty of Parties. Each party to the Contract represents and warrants to the other party that (i) it is a duly organized, qualified and existing entity under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing this Agreement on behalf of a party to so execute the same and fully bind the party on whose behalf he/she is executing.

14. Indemnification.

1. The Contractor agrees to indemnify, hold harmless, assume legal liability for, save and defend the City, its officers, employees, contractors, subcontractors, materialmen, elected and appointed officials, representatives and agents (collectively, “Indemnified Parties”) from and against any and all claims, liens, suits, actions, damages, liability, assertions of liability, losses, costs and expenses in law or in equity, of every kind and nature whatsoever, (collectively, “Claims”), whether or not a lawsuit is filed, including but not limited to costs, expenses and attorneys’ and experts’ fees at trial and on appeal and Claims for bodily injury or death of persons and or damage to property, which Claims may occur or be alleged to have occurred by or on account of or arising out of (i) the negligence, recklessness, or intentional wrongful misconduct of Contractor, its subcontractor(s), employees, agents or representatives in the performance of the Contract; or (ii) the failure of Contractor, its subcontractor(s), employees, agents or representatives to comply with applicable Laws arising out of the Contract; or (iii) any act, omission, or default of the Contractor, its subcontractor(s), employees, agents or representatives arising from Contractor’s performance of the Contract.

1. The City will promptly notify Contractor of any Claim(s) against the Indemnified Parties. Contractor may control the defense of any Claim(s) subject to the foregoing indemnification to the extent of the indemnification. Contractor may also settle any such Claim(s) provided that Contractor pays the entire amount of such settlement and there is no finding of fault against the Indemnified Parties.

1. The provisions of this paragraph are independent of, and will not be limited by, any insurance required to be obtained by Contractor or its subcontractor(s) pursuant to the Contract or otherwise obtained by Contractor or its subcontractor(s).

15. Insurance.

A. Contractor shall carry the following minimum types and amounts of insurance at its own expense throughout the Term:

(i) Commercial general liability insurance in an amount of at least One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate in occurrences form. This policy must include coverage for bodily injury, property damage, personal and advertising injury, products and completed operations, and contractual liability under the Contract.

(ii) Commercial automobile liability insurance of $1,000,000 combined single limit covering all owned, hired and non-owned vehicles.

(iii) Workers’ Compensation insurance as required by Florida law and Employers’ Liability Insurance in an amount of at least $100,000 each accident, $100,000 per employee, and $500,000 for all diseases.

B. All of Contractor’s insurance policies, except Workers’ Compensation, must name the Indemnified Parties as additional insureds.

C. All policies must provide that the City will be provided notice at least thirty (30) calendar days prior to any cancellation, reduction or material change in coverage.

D. Contractor shall provide the City with Certificates of Insurance on a standard ACORD form, or similar form acceptable to the City, reflecting all required coverage. At the City’s request, Contractor shall provide copies of current policies with all applicable endorsements.

E. All insurance required must be on a primary and noncontributory basis and must be provided by responsible insurers licensed in the State of Florida and rated at least A- in the then current edition of AM Best’s Rating Services, or similar rating agency acceptable to the City.

F. If the insurance carried by Contractor has broader coverage than required in this Agreement, then that broader coverage, including but not limited to additional insured requirements, is deemed to be the requirement in this Agreement. If Contractor’s insurance limits are greater than the minimum limits set forth herein, then Contractor’s insurance limits are deemed to be the required limits in this Agreement.

G. Contractor hereby waives all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This provision is intended to waive fully, and for the benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

H. The City reserves the right to change or alter the above insurance requirements as it deems necessary.

16. Amendment. The Contract may be amended only in writing executed by the Parties.

17. Entire Agreement. The Contract constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, whether oral or written, between them.

18. Change Orders.

A. Either party may propose additions, deletions or modifications to the Work (“Work Adjustment”) in whatever manner such party determines to be reasonably necessary for proper compliance with the Contract. Proposals for Work Adjustments must be submitted to the non-requesting party in the form agreed to by the Parties. Work Adjustments must be effectuated through a written document describing the addition, deletion, or revision of the Work, and any accompanying decrease in Payment, if applicable, which document must be executed by authorized representatives of the Parties (“Change Order”).

B. There will be no increase in the Payment on account of any Work Adjustment made necessary or appropriate as a result of the mismanagement, improper act, or other failure of the Contractor or its employees, agents or subcontractors to properly perform their obligations and functions under the Contract.

C. In the event the Contractor proposes a Work Adjustment and the City does not approve such Work Adjustment, the Contractor will continue to perform the original Work in accordance with the terms and conditions of the Contract.

D. Notwithstanding anything to the contrary contained in the Contract, there will be no increase in the Payment except pursuant to an amendment to the Contract made in accordance with the Contract.

E. Any work performed by the Contractor that is not set forth in the Notice to Proceed will be at no additional cost to the City.

19. Compliance with Laws. The Contractor shall comply at all times with all federal, state, and local statutes, rules, regulations and ordinances, the federal and state constitutions, and the orders and decrees of lawful authorities having jurisdiction over the matter at issue (collectively, “Laws”), including but not limited to Florida laws regarding public records. Contractor hereby makes all certifications required under Florida Statute section 287.135. The Contractor shall also comply with all applicable City policies and procedures. In the event Contractor performs any Work that is contrary to any Laws, Contractor will bear all related costs, including but not limited to any costs associated with re-performing any Work as necessary to ensure compliance with applicable Laws.

20. Small Business Enterprise Program. If the Payment is equal to or greater than fifty thousand dollars ($50,000), then Contractor agrees to be subject to and shall comply with the requirements for designating a percentage of the Work for small business enterprises (as defined in Section 2-232 of the St. Petersburg City Code), or making a good faith effort to do so, as those requirements are set forth in Chapter 2, Article V, Division 4, of the St. Petersburg City Code, as may be amended from time to time (collectively, “SBE Requirements”). The SBE Requirements are hereby incorporated into the Contract as Contractor’s obligations under the Contract. Accordingly, Contractor shall (i) ensure that Click or tap here to enter text. percent of the Work, including the cost of materials, goods and supplies, be performed or provided by City-certified Small Business Enterprises and (ii) comply with all other SBE Requirements. Failure to comply with the SBE Requirements will result in consequences for non-compliance set forth in Chapter 2, Article V, Division 4 of the St. Petersburg City Code, including but not limited to the forfeiture of retainage. The City’s written notice to Contractor of failure to comply with the SBE Requirements constitutes a good faith dispute made pursuant to the Contract.

21. Force Majeure. In the event that either party hereto is delayed or hindered in or prevented from the performance required hereunder by reason of strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God, or other reason of like nature not the fault of the party delayed in performing work or doing acts (“Permitted Delay”), such party will be excused for the period of time equivalent to the delay caused by such Permitted Delay. Notwithstanding the foregoing, any extension of time for a Permitted Delay will be conditioned upon the party seeking an extension of time delivering written notice of such Permitted Delay to the other party within ten (10) calendar days of the event causing the Permitted Delay.

22. Permits. The Contractor shall secure, at no additional cost to the City (unless such cost is already included in the Payment), construction permits, licenses, governmental charges and inspection fees, and all public utility charges which are applicable and necessary for the execution of the Work.

23. No Construction against Preparer of Agreement. The Contract has been prepared by the City and reviewed by the Contractor and its professional advisors. The City, the Contractor and Contractor’s professional advisors believe that the Contract expresses their agreement and that it should not be interpreted in favor of either the City or the Contractor or against the City or the Contractor merely because of their efforts in preparing it.

24. Non-appropriation. The obligations of the City as to any funding required pursuant to the Contract is limited to an obligation in any given year to budget, appropriate and pay from legally available funds, after monies for essential city services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not prohibited from pledging any legally available non-ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge will be prior and superior to any obligation of the City pursuant to the Contract.

25. Governing Law and Venue. The Contract must be interpreted and construed in accordance with the laws of the State of Florida and the Contract inures to and is binding upon the Parties hereto, their successors, and assigns. Venue for any action brought in state court must be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court must be in the Middle District of Florida, Tampa Division, unless a division is created in St. Petersburg or Pinellas County, in which case the action must be brought in that division.

26. Assignment. The Contractor shall make no assignment of any of its rights, duties, or obligations under the Contract without the City’s prior written consent, which consent may be withheld by the City in its sole and absolute discretion. Any assignment in violation of this paragraph is void and of no effect.

27. Subcontractors. The hiring or use of subcontractors in connection with the performance of the Contractor’s obligations under the Contract is permitted. The Contractor is solely responsible for ensuring that any subcontractor retained by the Contractor acts in a manner consistent with and in accordance with the terms and conditions of the Contract. In no event will the Contractor’s retention of a subcontractor relieve the Contractor of any of its duties, obligations or representations under the Contract. The Contractor shall promptly pay all subcontractors and suppliers. Nothing in the Contract creates any contractual relationship between any subcontractor and the City or any obligation on the part of the City to pay or to see to the payment of any monies due any subcontractor, except as may otherwise be required by applicable Laws. The City may furnish to any subcontractor, to the extent practicable, evidence of amounts paid to the Contractor for specific work done. The Contractor agrees to bind specifically every subcontractor to the applicable terms and conditions of the Contract, including but not limited to the General Conditions, for the benefit of the City.

28. Termination.

A. The Contract may be terminated at any time by the City for convenience upon thirty (30) calendar days written notice to the Contractor. Additionally, the City may terminate the Contract as provided in Florida Statute sections 287.135 and 488.095. If the Contract is terminated by the City for convenience, the City shall pay the Contractor costs and fees for Work performed provided up to the effective date of termination, provided such costs and fees are owed to the Contractor pursuant to the Contract.

B. The City may terminate the Contract upon written notice to the Contractor in the event the Contractor defaults on any of the terms and conditions of the Contract and such failure continues for a period of thirty (30) calendar days following notice from the City specifying the default; provided, however, that the City may immediately terminate the Contract, without providing the Contractor with notice of default or an opportunity to cure, if the City determines that the Contractor has failed to comply with any of the terms and conditions of the Contract related to safety, indemnification or insurance coverage.

29. Notices. Unless and to the extent otherwise provided in the Contract, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other must be in writing and will be deemed given and delivered on the date delivered in person, upon the expiration of five (5) calendar days following the date mailed by registered or certified mail, postage prepaid, return receipt requested to the address provided below, or upon the date delivered by overnight courier (signature required) to the address provided below.

CITY:

City of St. Petersburg Procurement and Supply Management Department P. O. Box 2842 St. Petersburg, FL 33731 Phone: 727-893-4109 Attention: Stephanie Scarbrough, Esq.

CONTRACTOR:

Click here to enter text.

Attn: Click here to enter text.

30. Waiver. The City is not responsible or liable for and the Contractor hereby waives all claims against the City for injury or death to persons or damage or destruction of property or other interest of Contractor, regardless of the cause. All of the Contractor’s property of every kind and description which may at any time be on City property will be at the Contractor’s sole risk.

31. Order of Precedence. In the event of an inconsistency or conflict between or among the documents referenced herein, the following order of precedence governs: (i) this Agreement, exclusive of its exhibits; (ii) the General Conditions; (iii) the Notice to Proceed; (iv) the Exhibits to this Agreement; then (v) all other Contract Documents.

32. Books and Public Records.

A. Contractor must maintain financial records related to the Contract in accordance with the Contract and generally accepted accounting principles and must comply with Florida laws regarding public records, including but not limited to Chapter 119, Florida Statutes (collectively, “Florida Public Records Laws”). Without limiting the generality of the foregoing, Contractor must: (i) keep and maintain complete and accurate books and records related to the Contract for the retention periods set forth in the most recent General Records Schedule GS1-SL for State and Local Government Agencies, or the retention period required pursuant to Florida Public Records Laws, whichever is longer, (ii) make all books and records related to the Contract open to examination, audit and copying by the City (including but not limited to independent auditors retained by the City) within a reasonable time after a request not to exceed three (3) business days, (iii) at the City’s request, provide all electronically stored public records to the City in a format approved by the City, (iv) ensure that any books and records or portions thereof that the City has designated in writing as confidential or proprietary and therefore exempt from disclosure under Florida Public Records Laws are not disclosed except as authorized by applicable Laws for the Term and following the expiration or earlier termination of the Contract, and (v) comply with all other applicable requirements of Florida Public Records Laws. Contractor’s obligations under this paragraph 32 survive the expiration or earlier termination of the Contract.

B. IF CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF FLORIDA PUBLIC RECORDS LAWS AS TO CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THE CONTRACT, CONTACT THE CITY CLERK’S OFFICE (THE CUSTODIAN OF PUBLIC RECORDS) AT (727) 893-7448, CITY.CLERK@STPETE.ORG, OR 175 FIFTH ST. N., ST. PETERSBURG FL 33701.

33. Discharges by Contractor and Corrective Action Plans

A. The spill or discharge of any substance (e.g., wastewater, fully or partially treated reclaimed water, line or tank wash water, etc.) by Contractor or its employees, agents or subcontractors in violation of applicable Laws (“Discharge”) constitutes a default of the Contract.

B. In the event of a Discharge, Contractor shall immediately (i) report the Discharge to the Project Manager and the City’s Emergency Dispatch Center (727-893-7261) and (ii) control, contain, and stop the Discharge.

C. Within fifteen (15) days of a Discharge, the Contractor shall submit to the City a proposed corrective action plan for preventing future Discharges. Upon the City’s acceptance of a corrective action plan, Contractor’s compliance with such plan will automatically become a term of the Contract. Contractor’s failure to comply with the corrective action plan, or Contractor’s failure to prepare a corrective action plan that is acceptable to the City, constitutes a default of the Contract. Contractor’s compliance with a corrective action plan does not relieve Contractor of liability for damages as set forth below. In the event of a conflict between the Contract and the corrective action plan, the Contract prevails.

D. In addition to Contractor’s indemnity obligations under the Contract that may arise in connection with a Discharge, Contractor agrees that the following damages will be readily ascertainable and that the appropriate remedy is the recovery of actual damages from Contractor. Such actual damages include: (i) damage to property (City and third-party) arising from a Discharge, (ii) fines imposed on the City by the Florida Department of Environmental Protection (“FDEP”), including fines imposed on the City pursuant to Consent Order OGC 16-1280 between the City and FDEP, and (iii) costs incurred by the City as a result of such Discharge, including costs imposed on the City pursuant to Consent Order OGC 16-1280 between the City and FDEP. In addition to those readily ascertainable damages set forth above, the Contractor acknowledges that the City will suffer other indirect damages (including reputational damages) due to a Discharge that are not readily ascertainable and agrees that the Contractor shall pay the aggregate amount of $5,000 per Discharge to the City as agreed reasonable and proportionate liquidated damages, not as a penalty. The parties acknowledge that the recovery of liquidated damages and actual damages constitutes a combination of remedies rather than an impermissible election of remedies under Florida law.

E. The City will deduct all damages owed by Contractor pursuant to this paragraph from amounts due to Contractor under the Contract. In the event that the amount owed to Contractor is less than the amount of damages Contractor is required to pay the City pursuant to this paragraph, Contractor shall remit the amount of such damages owed to the City pursuant to this paragraph within ten (10) days after receipt of an invoice from the City.

F. The obligations and liabilities of Contractor resulting from a Discharge as set forth in this paragraph do not limit Contractor’s other obligations and liabilities set forth in the Contract or under applicable Laws.

34. Execution of Agreement. This Agreement may be executed in any number of counterparts, each of which is deemed to be an original, and such counterparts collectively constitute a single original Agreement. Additionally, each party is authorized to sign this Agreement electronically using any method authorized by applicable law or City policy, including any of the following: (i) a typed name on an electronic document; (ii) an image of a physical signature sent via email, fax, or other electronic transmission method; (iii) clicking a button to indicate agreement or acceptance in an electronic signature system; or (iv) a handwritten signature that is digitally captured on a touch device such as a tablet or smartphone.

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IN WITNESS WHEREOF the Parties hereto have executed this Agreement on the day and date first above written.

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By:

Print:

Title:__________________________

CITY OF ST. PETERSBURG, FLORIDA:

By: ___________________________ Stephanie Scarbrough, Esq., Director Procurement & Supply Management

City Clerk (Designee)

Provisions of Contract Approved:

By:

Print:

Project Manager Approved as to Form and Content:

City Attorney (Designee)

(Acknowledgment of Contractor)

Under penalties of perjury, I declare that I am authorized by the Company to execute the foregoing Agreement.

By:

Print:

00784771 C-01 light construction + GCs (January 2025) General Conditions

0. Definitions.

Bid – The solicitation response the Contractor submitted on the prescribed proposal form setting forth the prices for the Work to be performed.

Final Completion - The status of completion of the Work which, in the written opinion of the Project Manager, is fully satisfactorily completed, so that all of the Work under the Notice to Proceed has been achieved by the Contractor as required under the Contract in accordance with the Specifications, including all Punch List items.

Plans and Drawings - All tracings, drawings, or reproductions thereof furnished by the City pertaining to the Project and such detailed supplemental drawings as may be issued by the City as the Work proceeds.

Project Manager - An individual employed by the City and assigned to manage and administer the Contract.

Notice to Proceed - A written notice given by the Project Manager to the Contractor fixing the date on which the Contractor is to commence performance of, and reach Substantial Completion of, the Work set forth therein in accordance with the Contract.

Site(s) - The area(s) on which the Contractor's operations are carried out and such other adjacent areas that may be designated as such by the Contract.

Solicitation Documents - All documents included in the solicitation issued by the City for the Work, including but not limited to the Notice to Bidders, Invitation to Bid, and Instructions to Bidders, and any addenda thereto.

Specifications - Those portions of the Contract Documents consisting of written (general or detailed) technical descriptions of materials, equipment, construction systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto.

Substantial Completion - The status of completion of the Work which, in the written opinion of the Project Manager, is sufficiently complete, in accordance with the Contract, so that the Work can be utilized for the purposes for which it was intended.

Work - The construction and services required by the Contract, whether completed or partially completed, including all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations.

0. Use of Site(s). The Contractor shall confine its equipment, the storage of materials and equipment, and the operations of its workers to the areas permitted by applicable Laws, permits, or the requirements of the Contract. The Contractor shall not unreasonably encumber the Site(s) with materials and equipment. Any loss or damage to the Contractor's or any subcontractor's equipment is solely at the risk of the Contractor.

The Contractor shall not load or permit any part of any structure to be loaded in any manner that will endanger the structure. The Contractor may not subject any part of the Work, the Site, or adjacent property to stresses or pressures that will endanger them.

0. Safety and Protection. The Contractor is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Contractor shall take all necessary precautions for the safety of and will provide the necessary protection to prevent damage, injury, or loss to:

All employees on the Work and other persons who may be affected by it.

All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the Site. The Contractor assumes all risk of loss for stored equipment or materials, irrespective of whether the Contractor has transferred the title of the stored equipment or materials to the City.

Other property at the Site or adjacent to it, including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction.

The Contractor shall erect and maintain, as required by the conditions and progress of the Work, all necessary safeguards for safety and protection. Contractor shall notify owners of adjacent property and utilities when execution of Work may affect them prior to starting work. All damage, injury, or loss to any property caused directly or indirectly, in whole or in part by the Contractor, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable must be remedied by the Contractor.

The Contractor shall designate a responsible member of its organization whose duty is the prevention of accidents at the Site. This person must be the Contractor's superintendent unless otherwise designated in writing by the Contractor to the Project Manager.

0. Emergencies. In emergencies affecting the safety of persons, the Work or property at the Site or adjacent thereto, the Contractor, without special instructions or authorization from the Project Manager if time or circumstances do not permit, is obligated to prevent or mitigate threatened damage, injury, or loss. The Contractor shall give the Project Manager written notice that the emergency provision has been invoked and shall state the reasons therefore within twenty-four (24) hours after the incident. If the Contractor believes the emergency resulted in additional Work, a claim for a Work Adjustment may be submitted in accordance with the procedures set forth in the Contract.

Contractor shall immediately notify the Project Manager of all events involving personal injuries to any person on the Site, whether or not such person was engaged in the construction of the Work, and shall file a written report on such person(s) and any other event resulting in property damage of any amount within 5 days after the occurrence.

The Project Manager, upon learning of an emergency situation, may direct the Contractor to call out work crews, equipment and materials to prevent threatened damage, injury or loss.

0. Clean Up. The Contractor shall maintain the Site free from accumulations of waste materials, rubbish, and other debris resulting from the Work on a daily basis or as required by the Project Manager. At the completion of the Work, the Contractor shall remove all waste materials, rubbish, and debris from the Site as well as all tools, construction equipment and machinery, and surplus materials and will leave the Site clean and ready for occupancy by the City. In addition to any other rights available to City under the Contract, the Contractor's failure to maintain the Site may result in withholding of any amounts due Contractor. The Contractor will restore to original condition those portions of the Site not designated for alteration by the Contract.

0. Warranty and Guarantee. In addition to the warranties and guarantees set forth in the Agreement and the Contract Documents or any manufacturer's guarantees, Contractor, together with its surety, warrants and guarantees to the City that for a period of one year after Substantial Completion, all materials and equipment will be new unless otherwise specified by the City and that all Work will be of good quality, performed in a workmanlike manner, free from faults or defects, and in accordance with the requirements of the Contract and any inspections, tests, or approvals referred to in these General Conditions. All unsatisfactory Work, all faulty Work and all Work not conforming to the requirements of the Contract Documents or such inspections, tests, approvals, or all applicable building, construction and safety requirements will be considered defective. Notice of all defects must be given to the Contractor by the Project Manager. All defective Work, whether or not in place, may be rejected, corrected, or accepted as provided in the Contract.

Should defects develop during the guarantee period, the Contractor shall upon written notice of such defects, promptly remedy the defects and reimburse the City for all damage to other work if caused by the defects or caused by correcting the defects of the Work. During the guarantee period, the payment to the City of its claims for material and labor and other expenses will be a prerequisite to the release of the sureties on the Public Construction Bond. All representations and guarantees made in the Contract survive final payment and termination or completion of the Contract.

0. Tests and Inspections. If the Contract or applicable Laws require any Work to specifically be inspected, tested, or approved by someone other than the Contractor, the Contractor shall give the Project Manager timely notice of readiness therefore. The testing firm(s) (if assigned by the City to the Work) and all such inspections, tests, or approvals provided for by the City must be identified in writing by the Project Manager to the Contractor. All other inspections, tests or approvals will be at the Contractor's expense, including additional expenses for inspection and tests required as a result of delays by the Contractor or hours worked in excess of 40 hours per week. For all required inspections, tests, and approvals on any Work prepared, performed, or assembled away from the Site, the Contractor will furnish the Project Manager with the required Certificates of Inspection, testing, or approval. All such tests will be in accordance with the methods prescribed by the American Society for Testing and Materials or such other applicable organizations as may be required by applicable Laws or the Contract Documents. Materials or Work in place that fail to pass acceptability tests must be retested at the direction of the Project Manager and at the Contractor's expense. Neither observations by the Project Manager or any City Inspector nor inspections, tests, or approvals by persons other than the Contractor will relieve the Contractor of its obligations to perform the Work in accordance with the requirements of the Contract.

0. Access to the Work. For the duration of the Contract, the Project Manager and its representatives, other designated representatives of the City, and authorized representatives of any regulatory agency must at all times be given access to the Work. The Contractor shall provide proper facilities for such access and observation of the Work and also for any inspection or testing by others.

0. Uncovering the Work. If any Work required to be inspected, tested or approved is covered prior thereto without the prior written approval of the Project Manager, or if any Work is covered contrary to the request of the Project Manager, the Work must, if requested by the Project Manager, be uncovered for observation, inspection, testing or approval and replaced at the Contractor's expense.

If any Work has been covered which the Project Manager has not specifically requested to observe, or if the Project Manager considers it necessary or advisable that covered Work be inspected or tested by others, the Contractor, upon written request of the Project Manager, shall uncover, expose, or otherwise make available for observation, inspection, or testing that portion of the Work in question, furnishing all necessary labor, material, and equipment. If it is found that such Work is defective, the Contractor will bear the expense of such uncovering, exposure, observation, inspection, testing, and satisfactory reconstruction. If, however, such Work is not found to be defective, the Contractor will be allowed an increase in the Payment and/or the time to perform the Work, directly attributable to such uncovering, exposure, observation, inspection, testing, and reconstruction, if Contract requests such increase. Any increase in the Payment or time to perform the Work will be effectuated through a written amendment to the Contract in accordance with the Contract.

0. Stop Work. When Work is defective or when the Contractor fails to supply sufficient skilled workmen or suitable materials or equipment, or make prompt payments to any subcontractors for labor, materials, or equipment, or if the Contractor violates any provisions of the Contract, the Project Manager may order the Contractor to stop the Work until the cause for such order has been eliminated. However, this right of the Project Manager to stop the Work does not give rise to any duty on the part of the Project Manager to exercise this right for the benefit of the Contractor or any other party. The Contractor will have no right to claim an increase in the Payment or the time to perform the Work or other damages for a stop work order under this paragraph.

0. Correction or Removal of Defective Work. When directed by the Project Manager, the Contractor shall promptly, at no additional cost to the City and as specified by the Project Manager, either correct the defective Work whether fabricated, installed, or completed, or remove it from the Site and replace it with non-defective Work. If the Contractor does not correct such defective Work or remove and replace such defective Work within a reasonable time, all as specified in a written notice from the Project Manager, the City may have the deficiency corrected. All direct and indirect costs of such correction must be paid by the Contractor or deducted from payment to Contractor. The Contractor will also bear the expense of correcting or removing and replacing all Work of others destroyed or damaged by the correction, removal, or replacement of the defective Work.

If, after approval of final payment and prior to the expiration of the applicable guarantee or warranty period or such longer period of time as may be prescribed by law or by the terms of any applicable special guarantee required by the Contract, any Work is found to be defective, incomplete, or otherwise not in accordance with the Contract, the Contractor shall promptly, at no additional cost to the City and in accordance with the City's written instructions, either correct such defective Work, or if it has been rejected by the City, remove it from the Site and replace it with non-defective Work. If the Contractor does not promptly comply with the terms of such instructions, the City may have the defective Work corrected, removed, or replaced. All direct and indirect costs of such action will be paid by the Contractor.

0. Acceptance of Defective Work. If, instead of requiring correction or removal and replacement of defective Work, the City prefers to accept it, the City may do so. In such case, if acceptance occurs prior to approval of final payment, an amendment to the Contract incorporating the necessary revisions, including an appropriate reduction in the Payment, will be issued in accordance with the Contract. If the City’s acceptance occurs after approval of final payment, the Contractor shall pay to the City an appropriate sum to compensate for the defect in the Work.

0. Neglected Work by Contractor. If the Contractor neglects to execute the Work in accordance with the Contract, the Project Manager may direct the Contractor to submit a recovery plan and take specific corrective actions including, but not limited to, employing additional workmen, and/or equipment, and working extended hours and additional days, all at no additional cost to the City in order to get the Work back on schedule. If the Contractor fails to correct the deficiency or take appropriate corrective action, the City may terminate the Contract or Contractor's right to proceed with that portion of Work and have the Work done by others. The cost of completion under such procedure will be charged against the Contractor. A Change Order and/or an amendment to the Contract, as applicable, will be issued incorporating the necessary revisions in the Contract, including an appropriate reduction in Payment if applicable. If the payments due the Contractor are insufficient to cover such amount, the Contractor shall pay the difference to the City.

0. Contractor's Warranty of Title. If at any time there is evidence of any claim for which, if established, the City might become liable, and which is chargeable to Contractor, or if Contractor incurs any liability to the City, or the City has any claim or demand against Contractor, whether or not reduced to judgment or award, of any kind or for any reason, whether related to or arising out of the Contract or any other agreement between the Contractor and the City, the City will have the right to retain out of any payment due, or which may become due, under the Contract or any other agreement between the Contractor and the City, an amount sufficient to indemnify the City against such claim, and/or to compensate the City for and fully satisfy such liability, claim or demand, and charge or deduct all cost of defense or collection with respect thereto, including reasonable attorney fees. Should any claim develop after final payment has been made, the Contractor shall refund to the City all monies that the latter may be compelled to pay in discharging such claims or incurred in collecting said monies from the Contractor.

0. Contractor's Continuing Obligation. The Contractor's obligation to perform the Work in accordance with the Contract is absolute. Neither approval of any progress or final payment, a written notice from the Project Manager that Substantial Completion or Final Completion has occurred, any payment by the City to the Contractor under the Contract, any use of the Work or any part thereof by the City, any act of acceptance by the City, nor any correction of defective Work by the City constitutes an acceptance of Work not in accordance with the Contract.

0. Waiver of Claims by Contractor. The Contractor’s acceptance of final payment constitutes a waiver of any and all claims by the Contractor against the City.

0. Suspension of Work. The Project Manager may at any time…