MASTER_Construction_Contract,_26-B-54LL,_C2072.pdf

CONSTRUCTION CONTRACT

Between

THE COUNTY OF VOLUSIA

AND

TBD

Contract No. C-2072 ITB No. 26-B-54LL

County of Volusia Purchasing and Contracts Division

123 West Indiana Avenue, Room 302 Deland, Florida 32720-4608 www.volusia.org/purchasing http://www.volusia.org/purchasing

TABLE OF CONTENTS

ARTICLE 1 - THE CONTRACT DOCUMENTS & PERMITS

ARTICLE 2 - CONTRACTOR’S SERVICES AND TERM

ARTICLE 3 - SCOPE OF WORK AND CLAIMS

ARTICLE 4 - COMPENSATION; PAYMENTS; PUNCHLIST

ARTICLE 5 - PERSONNEL OF CONTRACTOR AND SUBCONTRACTORS

ARTICLE 6 - INSURANCE AND BONDS

ARTICLE 7 - DISPUTE RESOLUTION

ARTICLE 8 - TERMINATION AND SUSPENSION

ARTICLE 9 - LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY

ARTICLE 10 - GOVERNMENT COMPLIANCE

ARTICLE 11 - MISCELLANEOUS PROVISIONS

CONSTRUCTION CONTRACT FOR BIRD FLIGHT CAGE POOLS FOR

THE COUNTY OF VOLUSIA

THIS CONTRACT is made and entered into by and between the COUNTY OF VOLUSIA, FLORIDA, a body corporate and politic and a political subdivision of the State of Florida, with its principal office located at 123 West Indiana Avenue, Deland, Florida 32720-4613 (the “County”);

and _____________________________________, a corporation duly authorized to conduct business in the State of Florida, with its principal office located at _________________________________ (the “Contractor”).

RECITALS:

WHEREAS, the County desires to retain the Contractor in accordance with ITB No. 26-B-54LL, (the “ITB”) to perform all work (“Work”) in connection with the construction of Bird Flight Cage Pools (“Project”); and

WHEREAS, Contractor is competent and qualified to furnish the specified services to the County and desires to provide such services according to the terms and conditions set forth herein; and

NOW THEREFORE, in consideration of the mutual covenants, and considerations set forth in the Contract, the County and Contractor agree as set forth herein.

ARTICLE 1 - THE CONTRACT DOCUMENTS & PERMITS

1.1 The “Contract” between the County and Contractor consist of the Contract Documents which shall include the following: this Contract, the General Conditions, the Special Conditions, the Contractor’s Bid Documents, the Contract Plans and Technical Specifications (Contract Plans), Specifications, and related forms and appendices, Addenda issued prior to execution of this Contract, Modifications issued after execution of this Contract, all of which form the Contract and are incorporated herein.

1.2 Exhibits.

1.2.1 The exhibits listed below are incorporated into and made a part of this Contract.

1.2.1.1 Exhibit “A”, General Conditions

1.2.1.2 Exhibit “B”, Special Conditions (if applicable)

1.2.1.3 Exhibit “C”, Bid Documents and Insurance Requirements

1.2.1.4 Exhibit “D”, Marine Science Center Drawings

1.3 Permits. The Contractor shall obtain and pay for any permits as required to perform the

Work and complete the Project through the City of Ponce Inlet.

1.3.1 Building Permit

1.3.2 Electrical Permit

1.3.3 Plumbing Permit

1.4 Authority for Contracting.

1.4.1 By executing this Contract, the Contractor represents that it has visited the site, familiarized itself with the local conditions under which the Work is to be performed, and correlated its observations with the requirements of the Contract Documents.

The Contractor and each Subcontractor shall evaluate and satisfy themselves as to the conditions and limitations under which the Work is to be performed, including, without limitation:

1.4.1.1 The location, conditions, layout and nature of the Project site and surround,

1.4.1.2 Anticipated labor supply and costs,

1.4.1.3 Availability and cost of materials, tools, equipment, and other similar issues, and

1.4.1.4 The County assumes no responsibility or liability for the physical condi-tions or safety of the Project site or any improvements located on the Project site. The Contractor shall be solely responsible for providing a safe place for the performance of the Work and the County shall not be required to make any adjustment in either the agreed amount of the Contract Price or the Contract Time in connection with any failure by the Contractor or any Subcontractor to comply with the requirements hereof.

1.4.2 This Contract between the County and the Contractor is intended solely for the benefit of the County and the Contractor and no other persons or entities. The services to be performed hereunder shall be performed by the Contractor's own staff, unless otherwise authorized by the County. The employment of, contract with, or use of the services of any other person or firm by the Contractor, as consultant or otherwise, shall be subject to the prior written approval of the County.

Such approval shall not be construed as constituting a Contract between the County and any such person or firm. Failure to obtain such approval or the use of unauthorized persons, firms, consultants, or subcontractors shall constitute a material breach of this Contract.

1.4.3 In the event the parties hereto enter into a subsequent Modification specifically modifying this Contract between County and Contractor, it is expressly agreed that such modification shall take precedence over this Contract to the extent of the modification only.

1.4.4 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all.

1.4.5 Work not covered in the Contract Documents shall not be required unless it is consistent therewith and is reasonably inferable there from as being necessary to produce the intended results.

1.4.6 Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

1.4.7 The organization of the Technical 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 Work to be performed by any one of them.

1.4.8 Order of Precedence. If Contractor finds a conflict, error or discrepancy in the

Contract Documents, it shall call it to the Architect/Engineer's attention, in writing, and request the Architect/Engineer's interpretation and direction before proceeding with the Work affected thereby. Such notice shall be provided by the Contractor to the Architect in a timely fashion so as not to cause additional costs due to delay.

In resolving such conflicts, errors and discrepancies, the documents shall be given precedence in the following order:

1.4.8.1 Modifications to the Contract

1.4.8.2 Contract between the County and Contractor

1.4.8.3 Exhibit A, General Conditions

1.4.8.4 Exhibit B, Special Conditions

1.4.8.5 Exhibit D, Marine Science Center Drawings

1.4.8.6 Exhibit C, Bid Documents and Insurance Requirements

1.4.8.7 Contractor’s Bid Proposal

1.4.9 In the case of conflicts between drawings or between provisions of the specifications, the more detailed or specific of the conflicting provisions or representations shall take precedence. For example, where figured dimensions are shown on the drawings, they shall take precedence over scaled distances and scaled dimensions, and detail drawings shall govern over general drawings.

1.4.10 In those cases where it is not reasonably clear which of the conflicting provisions or representations is the more detailed or specific, the Contractor shall be deemed to have estimated on, and agreed to provide, the greater quantity or better quality of materials and work unless he shall have, prior to submitting the Contract Price, asked for and obtained a written decision of the A/E as to which quantity or quality or method or materials shall be required.

ARTICLE 2 - CONTRACTOR’S SERVICES AND TERM

2.1 The Contractor agrees during the term of this Contract to timely complete the Project.

Contractor shall provide all survey, permits, labor, supervision, and equipment necessary to provide for construction services in accordance with specifications provided by the

County in Exhibit “D”, Marine Science Center Drawings, other contract documents prepared by Volusia County, and all applicable building codes.

2.2 The Contractor shall diligently proceed with the completion of the Project in accordance with the date expressly set forth in the Notice to Proceed.

2.3 Liquidated Damages. If applicable, should the Contractor fail to timely meet the Work requirements of the Project by the Completion Date, the parties hereto agree that as liquidated damages, and not as penalty, the Contractor shall pay to the County ONE HUNDRED and NO/100 ($100.00) for each day after the Completion Date, until the Project is completed, as certified by the County Project Manager. The dollar amount for liquidated damages will be determined by the level of risk to the County. Liquidated damages will only be assessed to recover actual cost incurred by the County.

2.4 Term. The Work to be performed under this Contract shall be substantially completed within sixty (60) days after delivery of notice from the County to Contractor to proceed (“Notice to Proceed”). The Work shall be fully completed thirty (30) days after the actual date of substantial completion for a total contract time of ninety (90) days after the Notice to Proceed.

2.5 Contractor shall at all times diligently pursue completion of the Work and shall make all commercially reasonable efforts to avoid delay in progress of the Work. Contractor shall promptly notify County if Contractor experiences any delay in performance of the Work.

2.6 In the event that the Contractor shall fall behind schedule at any time, for any reason, and such delay is adversely affecting the County’s timely occupation of the Project for its intended purpose, the County shall be entitled to direct acceleration or re-sequencing of the Work to bring the Project back on schedule. The Contractor shall reserve in each of its subcontracts entered into in connection with the Project, a right to accelerate consistent with the Contractor’s obligations hereunder.

2.7 In the event the Contractor determines that the Completion Date cannot be met by re-sequencing the work, then the Contractor shall immediately provide the County, and in any event within three (3) days after the date of receipt of the County’s instruction for re-sequencing or accelerating, a plan to complete the Project in the shortest possible time.

No approval by the County of any plan for re-sequencing or accelerating of the work submitted by the Contractor pursuant to this clause shall constitute a waiver by the County of its rights of recovery of liquidated damages as a result of delayed Project completion.

2.8 Change in the Work. The County may order changes in the service consisting of additions, deletions, or other revisions within the general scope of the Contract, insurance and bond requirements, as applicable. No claims may be made by the Contractor to change the amount of Contract Price of the Contractor or other adjustments to the Work, unless such changes or adjustments have been made by written Modification/Change Order to this Contract and duly executed by the County.

If the Contractor believes that any particular service is not within the Work described in this Contract, is a material change, or will otherwise require more compensation to the Contractor, the Contractor shall immediately notify the County Project Manager in writing, of this belief. If the County Project Manager determines that the particular work is within the Work, the Contractor shall continue with the work at the cost stated for the work within the scope. The Contractor shall assert a right to an adjustment under this clause within thirty (30) days from the date of receipt of the written order and the assertion shall be written and shall be sent in accordance with the notice requirements of Section 11.2 - Notice. No additional work shall be performed, or extra materials purchased until a Modification/Change Order to this Contract has been fully executed by all parties.

A Price quote for a Change Order will not be considered valid and will be rejected unless it is received in response to a written County request, and the County will not make any such request until the County and the Contractor have first established agreement about the contents and administrative requirements of the proposed Change Order, which will include at a minimum details about the proposed modifications to the scope of work, available budget and appropriations applicable to the change, and all other requirements established by the County proceeding with the Change Order.

2.8.1 Changes in the Work shall be made in accordance with Section 3.10 of the Exhibit

A, General Conditions.

2.9 Acceptance of Work. Inspection of the finished work shall be performed by the County to determine the acceptability of the work for payment. As a result of said inspections, the County will provide the Contractor with a “punch list” of items, and an estimated cost to complete each item on the list per paragraphs 4.2.14 and 4.3 below of this contract, considered by the County to be substandard. If after twenty (20) days the Contractor fails to remedy all punch list items to the satisfaction of the County, the County may, but shall not be obligated to cause all such remaining items to be remedied through the use of other contractors and deduct the cost.

2.10 Release of Liens. The Contractor shall deliver to the County, a complete release of liens arising out of each project before the final request for payment is made. If any liens remain unsatisfied after all payments are made, the Contractor shall refund to the County such amount as the County may be compelled to pay in discharging such liens, including all costs and reasonable attorney’s fees.

2.11 Responsibility of the Contractor.

2.11.1 All work shall be scheduled and performed during normal business hours (Monday to Friday, 8:00 a.m. to 5:00 p.m. EST) unless otherwise approved by the County.

2.11.2 The Contractor and County shall be jointly responsible for verifying unit quantities per project or per phase of each project. The Contractor shall be responsible for verifying the quantities and the removal of all materials identified in the project description, survey, plans, specifications and other contract documents. When asbestos removals are indicated, the requirement is to remove all regulated or non-friable asbestos-containing material from the locations and systems noted in the Project description, survey, plans, specifications and other contract documents.

The requirement shall also to include incidental accessories that are a part of the system.

2.11.3 General Provisions. The Contractor shall supervise and direct the Work, using its best skill and attention. The Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract including coordination of the work of all Subcontractors.

2.11.3.1 Unless otherwise provided in the Contract Documents, Contractor shall furnish and pay for all labor, materials, equipment, tools, construction equipment and machinery, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated in the Work. The Contractor shall check all materials entering the Project site, including materials furnished under trade contracts, and labor performing any portion of the Work and shall keep full detailed accounts of such materials and labor.

2.11.3.2 Manufactured articles, materials and equipment shall be applied, installed, connected, erected, cleaned and conditioned in accordance with manufacturers' recommendations. Likewise, materials and equip-ment shall be stored in accordance with manufacturers' recommenda-tions, or in such a manner as to ensure the preservation of their quality and fitness for incorporation in the Work. When considered necessary by the Architect, such materials and equipment shall be placed on wooden platforms or other elevated surfaces, and/or shall be placed under cover. Stored materials and equipment shall be located so as to facilitate prompt inspection.

2.11.3.3 Manage, schedule and direct the Work including the activity of

Subcontractors and coordinate the performance of the Work, such as to complete the Project in accordance with County's objectives of cost, timeliness and quality.

2.11.3.4 The Contractor shall not be relieved from its obligations to perform the

Work in strict accordance with the Contract Documents either by the activities or duties of the County or its representatives, or by inspections, tests or approvals required or performed by persons other than the Contractor, unless such deviation shall have been approved by the County in writing.

2.11.4 Contractor's Project Site Organization. Maintain a competent full-time staff at the Project site to coordinate and direct the Work and the progress of the Subcontractors on the Project. Identify an on-site senior staff member (Project Manager) to represent Contractor on a daily basis with authority to negotiate change orders and contract modifications on behalf of Contractor so as not to delay the progress of the Work. The Project Manager shall represent Contractor and all communications given to the Project Manager shall be as binding as if given to Contractor. Important communications shall be confirmed in writing. Other communications shall be so confirmed on written request in each case.

2.11.4.1 Key Management Personnel. All of Contractor's on-site management and supervisory personnel shall be approved by the County prior to assignment to the Project and shall not be removed or replaced without County's consent. The County shall have the right to direct the Contractor to remove or replace any on-site personnel whose perfor-mance becomes unsatisfactory to the County. In such event the Contractor shall promptly replace such personnel.

2.11.4.2 Superintendence. The Contractor shall employ a competent Project

Superintendent and necessary assistants who shall be in attendance at the Project site during the progress of the Work. It shall be the responsibility of the Project Manager and Superintendent to coordinate the work of all Trade Contractors under contract with the Contractor.

2.11.4.3 Labor Relations. Develop, implement and administer as necessary an effective labor relations program for the Project in order to avoid labor disputes during performance of the Contract.

2.11.4.4 The Contractor shall at all times enforce strict discipline and good order among its employees and all Subcontractors under direct or indirect contract with the Contractor and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to it.

2.11.4.5 The Contractor shall be responsible to the County for the acts and omissions of its employees, Subcontractors and their agents and employ-ees, and other persons performing any of the Work under a direct or indirect contract with the Contractor.

2.11.4.6 Review the Project Schedule with the Subcontractors and, if necessary, expand the level of detail to incorporate specific Subcontractor input consistent with the overall completion requirements.

2.11.4.6.1 Provide regular monitoring and updating of the Project Sched-ule and various sub-networks as construction progresses.

Identify potential variances between scheduled and probable milestone dates.

2.11.4.6.2 Review schedule for work not started or incomplete, take appropriate measures and action to meet the scheduled milestone dates.

2.11.4.6.3 Provide summary reports of each monitoring and document all changes.

2.11.4.6.4 Include regular schedule updates and reporting as part of the Progress Reports required in Exhibit “D”, Marine Science Center Drawings.

2.11.4.6.5 Display the current Project Schedule in the on-site office for review at progress meetings.

2.11.4.7 Determine the adequacy of the Subcontractors labor force and equipment and the availability of materials and supplies to meet the Project Schedule. Take necessary corrective actions when these require-ments are not being met by any Subcontractor and advise the County of same.

2.11.4.8 Give all notices required by and exercise best efforts to ensure that all

Work is performed and constructed so that it complies with the applicable laws and ordinances, the Plans and Specifications, requirements of regulatory agencies having jurisdiction on the Project including, without limitation, the requirements of the National Fire Prevention Association (NFPA), the State Fire Marshall, and the Occupational Safety and Health Administration (OSHA), and all codes governing public buildings, without, however, assuming any of the A/E's responsibilities for design in accordance therewith. The Contractor shall be responsible for performing all Work so that it is satisfactory to the regulatory agencies required to inspect and approve the Work. It is not the responsibility of Contractor to make certain that the Contract Documents are in accordance with applicable laws, statutes, building codes and regulations unless such laws, statutes, building codes and regulations bear upon the performance of the Work by the Contractor. However, should the Contractor become aware of any conflicts, inconsistencies, or omissions in the Plans and Specifications which might result in work inconsistent with the requirements of such regulatory agencies, the Contractor shall, at once, notify the County and request its written instruction and interpretation of the Plans and Specifications. If the Contractor performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the County, it shall assume full responsibility therefore and shall bear all costs attributable thereto.

2.11.5 New Material. The Contractor represents and warrants that the goods, materials, supplies, or components offered to the County under this contract are new, not used or reconditioned, and are not of such age or so deteriorated as to impair their usefulness or safety and that the goods, materials, supplies, or components offered are current production models of the respective manufacturer.

2.11.6 The Contractor shall be responsible for obtaining, and include in their price, any/all permits and licenses necessary to perform any/all work specified. The Contractor shall act as the Owner's representative for purposes of preparing and submitting all required notifications, obtaining required permits, and paying all fees associated therein with the project.

2.11.7 The County, the Contractor shall maintain a current copy of one or all of the following documents at a particular job site:

2.11.7.1 Occupational Safety and Health Administration, Title 29, Code of Federal

Regulations:

2.11.7.1.1 Section 1926.58 - Safety and Health Regulations for

Construction.

2.11.7.1.2 Section 1910.1200 - Hazard Communication.

2.11.7.1.3 Section 1910 Subpart S - Electrical (with copy of SBBC approved Lock-out Tag-out procedures for electrical, mechanical, pneumatic and hydraulic systems).

2.11.7.1.4 Section 1910 Subpart D - Walking Working Surfaces.

2.11.7.1.5 Section 1926.58 - Temporary Power.

2.11.7.1.6 Environmental Protection Agency Title 40 CFR Part 61

NESHAP:

2.11.7.1.6.1 Subpart A - General Provisions.

2.11.7.1.7 Florida Statutes:

2.11.7.1.7.1 Chapter 553 – Building Construction Standard.

2.11.8 The Contractor shall be responsible for compliance of all relevant local, State, and

Federal regulations including but not limited to the above-mentioned regulations.

Where compliance with two or more industry standards or sets of requirements is specified and overlapping if those different standards or requirements establishes different or conflicting levels of quality, protection or service, the most stringent requirement is intended and shall be enforced. Except to the extent that more explicit or more stringent requirements are written directly into the contract documents, applicable standards of the construction industry have the same force and effect and are made part of the contract documents.

2.11.9 Hazardous Materials. The Contractor shall provide medical monitoring to any of his employees or agents that may be exposed to hazardous materials or substances in excess of background levels during any phase of a project. The Contractor shall assume full responsibility and liability for compliance with all applicable federal, state, and local regulations pertaining to the protection of workers, visitors to the site, and persons occupying areas adjacent to the site. The Contractor shall hold the County of Volusia harmless for failure to comply with any applicable safety and health regulation on the part of himself, his employees, and/or his Subcontractors.

2.11.10 Utilities. The Contractor shall be responsible for determining the adequacy of available utilities on-site. Where utilities are not available or are inadequate at the job site, the Contractor shall provide at their own expense, all necessary temporary utilities required for the work specified.

2.11.11 Demolition Activities, Asbestos. When applicable, if the structure qualifies, the Contractor shall at least ten (10) working days prior to the start of demolition activities, submit written notification of demolition of regulated asbestos (DEP FORM 62-257.900(1)) in accordance with FAC Chapter 62-257 via certified mail to:

Florida Department of Environmental Protection Air Program 3319 Maguire Blvd., Suite 232 Orlando, FL 32803-3767

2.11.11.1 The Contractor shall clean the work area at the end of each day's demolition activities. All visible debris shall be properly containerized prior to leaving the work area. The work area shall be secured after termination of the workday to prevent entry. The Contractor shall transport and dispose of asbestos waste in full compliance with 40 CFR 61, SUBPART A, 49 CFR 171 and 49 CFR 172 and disposal in a proper location including all fees related to disposal (i.e. tipping fees). The Contractor shall not be permitted to use County trash receptacles.

2.11.11.2 The Contractor shall be responsible for using engineering controls and work practice methods in accordance with 29 CFR 1926.

2.11.12 During the Project, the Contractor is responsible for security, fire safety and damage to equipment and other County property losses incurred by the Contractor and his labor force.

2.11.13 The County reserves the right to monitor/inspect, request work modifications, cease work or to have personnel removed from County property throughout the duration of this Contract.

2.11.14 The Contractor shall be responsible for the professional and technical accuracy of all services furnished by the Contractor and its Sub-Contractors under this Contract.

2.11.15 The Contractor shall serve as an expert witness for the County in any legal proceedings arising in connection with this Contract, if the County so requests.

2.12 Representative of County. All services authorized under this Contract shall be under the direction of the County Representative, who shall have final decision authority for all phases of the services, including general direction, review and approval of the services.

2.13 Representative of Contractor. Contractor shall, at all times during the normal work week, designate or appoint, one or more Project Managers who are authorized to act on behalf of Contractor regarding all matters involving the conduct of the performance pursuant to this Contract and Project, and shall keep the County Project Manager continually advised of such designation.

2.14 Continuing the Work. The Contractor shall carry on the Work and adhere to the progress schedule during all disputes of this Contract with the County. No Work shall be delayed or postponed pending resolution of any disputes of this Contract, except as specifically set forth herein, or as the County and Contractor may otherwise agree in writing.

2.14.1 Informal Dispute Resolution: If a dispute arises between the parties concerning a Request for Information, Change Order, Field Change Orders, a unit price or quantity of any material(s), the cost of labor, or interpretation of the specifications in any Contract Document, regardless of whether or not a change in said unit price or quantity of any material(s), cost of labor, or interpretation of the specifications would result in an increase, decrease, or no change in the total Contract Price of this Contract, and the parties (i.e., Contractor’s designated representative and County’s designated representatives (i.e., Architect/Engineer and County Project Manager) are unable to resolve such dispute within five (5) calendar days of notice from the other party of the dispute, then within five (5) calendar days thereafter, the applicable Project Manager and Consultant for the County and Project Manager for the Contractor shall promptly bring the disputed matter to an informal mediation conference at a date, time, and location mutually agreeable to all parties.

The County and Contractor shall negotiate in an effort to resolve the dispute without the necessity of any formal proceeding.

2.14.2 Formal Dispute Resolution: See Article 7 of this Contract.

2.14.3 Each party agrees to bear its own costs and attorney’s fees relating to any dispute resolution procedures described in this section including without limitation attorney’s fees and costs, and any travel or related expenses of personnel or senior management whose presence may be deemed necessary to resolve such issues, disputes or controversies.

2.15 Deliverables. The Contractor shall deliver to the County any and all reports and any other deliverable required under the Project in a format approved by the County.

2.16 Time is of the Essence. Time is of the essence for all Projects performed in accordance herewith.

2.17 Standards. The Contractor shall be responsible for the professional quality and the accuracy of all deliverables and services provided under this Contract and shall, without additional compensation, correct any errors in the same. Deliverables prepared by the Contractor in response to the requirements of this Contract shall, unless otherwise provided for in this Contract, be thoroughly researched for accuracy of content, be grammatically correct and not contain errors, be numerically accurate, be submitted in the format approved in advance by the County Project Manager and be submitted for advance review and comment by the County Project Manager. The cost of correcting errors, correcting report data, or making other revisions required to bring the deliverable into compliance with the requirements of this Contract shall be borne solely by the Contractor.

2.18 Value Engineering. The Contractor shall review the plans and specifications as prepared by the A/E and perform value engineering services. The County Representative, the A/E and the Contractor shall review the proposed changes and the County shall determine which shall be incorporated into the plans and specifications. As an optional service, the Contractor may be called upon to develop these changes into drawing formats generally compatible with the existing plans and specifications. The fee for this optional work will be determined when required.

2.19 Project Site Facilities. Review the Plans and Specifications to ensure that they contain provision for all temporary facilities required for the performance, management, inspection and supervision of the Work.

ARTICLE 3 - SCOPE OF WORK AND CLAIMS

3.1 The intent of the Contract Documents is to provide for the construction and completion in every detail of the Work described in the Contract Documents. Contractor shall furnish all labor, materials, equipment, tools, transportation, and supplies required to completely perform the Work and complete the Project in accordance with the Contract Documents.

The Work under this Contract consist of removal of two existing in-ground pools and design, construct and install two new pools at the Marine Science Center located at 4965 South Peninsula Drive, Ponce Inlet, FL 32127.

3.2 Changes in the Work shall made in accordance with Section 10.4 of the General

Conditions.

3.3 Claims by Contractor. When the Contractor deems that extra compensation or a time extension is due beyond that agreed to by the County, whether due to delay, additional work, altered work, differing site conditions, breach of Contract, or for any other cause, the Contractor shall follow the procedures set forth in these Contract Documents for preservation, presentation and resolution of the claim.

3.3.1 Submission of timely notice of intent to file a claim, time extension request, and the certified written claim, together with full and complete claim documentation, are each a condition precedent to the Contractor bringing any court, arbitration, or other formal claims resolution proceeding against the County for the items and for the sums or time set forth in the Contractor’s written claim. The failure to provide such notice of intent, time extension request, written claim and full and complete claim documentation within the time required shall constitute a full, complete, absolute and irrevocable waiver by the Contractor of any right to additional compensation or a time extension for such claim. Content of Written Claim. As a condition precedent to the Contractor being entitled to additional compensation or a time extension under the Contract Documents, for any claim, the Contractor shall submit a written claim to the County which will include for each individual claim, at a minimum, the following information:

3.3.1.1 A detailed factual statement of the claim providing all necessary dates, locations, and items of work affected and included in each claim.

3.3.1.2 The date or dates on which actions resulting in the claim occurred or conditions resulting in the claim became evident.

3.3.1.3 Identification of all pertinent documents and the substance of any material oral communications relating to such claim and the name of the persons making such material oral communications.

3.3.1.4 Identification of the provisions of the Contract Documents which support the claim and a statement of the reasons why such provisions support the claim, or alternatively, the provisions of the Contract Documents which allegedly have been breached and the actions constituting such breach.

3.3.1.5 A detailed compilation of the amount of additional compensation sought and a breakdown of the amount sought as follows:

3.3.1.5.1 Documented additional job site labor expenses.

3.3.1.5.2 Documented additional cost of materials and supplies.

3.3.1.5.3 A list of additional equipment costs claimed, including each piece of equipment and the rental rate claimed for each.

3.3.1.5.4 Any other additional direct costs or damages and the documents in support thereof.

3.3.1.5.5 Any additional indirect costs or damages and all

documentation in support thereof.

3.3.1.6 A detailed compilation of the specific dates and the exact number of calendar days sought for a time extension, the basis for entitlement to time for each day, all documentation of the delay, and a breakout of the number of days claimed for each identified event, circumstance, or occurrence.

3.3.2 Compensation for Delay. Notwithstanding anything to the contrary contained in the Contract Documents, additional Contract Time shall be the Contractor’s sole remedy for any delay other than to perform extra work caused by the County unless the delay shall have been caused by acts constituting willful or intentional interference by the County with the Contractor’s performance of the work and then only where such acts continue after Contractor’s written notice to the County of such interference. The parties anticipate that delays may be caused by or arise from any number of events during the performance of the Contract, including, but not limited to, work performed, work deleted, change orders, supplemental Contracts, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right-of-way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, suspensions of work by the County pursuant to the Contract Documents, shop drawing approval process delays, expansion of the physical limits of the Project to make it functional, weather, weekends, holidays, special events, suspension of Contract Time, or other events, forces or factors sometimes experienced in construction work. Such delays or events and their potential impacts on the performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract and shall not be deemed to constitute willful or intentional interference with the Contractor’s performance of the work without clear and convincing proof that they were the result of a deliberate act, without reasonable and good-faith basis, and specifically intended to disrupt the Contractor’s performance.

3.3.3 Non-Recoverable Items. The parties agree that for any claim the County will not have liability for the following items of damages or expense:

3.3.3.1 Loss of profit, incentives or bonuses;

3.3.3.2 Any claim for other than extra work or delay;

3.3.3.3 Consequential damages, including, but not limited to, loss of bonding capacity, loss of bidding opportunities, diminution of business value, loss of credit standing, cost of financing, interest paid, loss of other work or insolvency;

3.3.3.4 Acceleration costs and expenses, except where the County has expressly and specifically directed the Contractor in writing “to accelerate at the County’s expense”; nor

3.3.3.5 Attorney fees, claims preparation expenses and costs of litigation.

ARTICLE 4 - COMPENSATION; PAYMENTS; PUNCHLIST

4.1 Compensation. As consideration for the Contractor satisfactorily completing the Project in accordance with the terms and conditions of this Contract, the County agrees to pay the Contractor a dollar amount equal to Contractor’s Contract Sum TBD ($0.00).

Contractor agrees that the Contract Price includes the entire Cost of the Work for the Project at the time of execution of this Contract.

4.1.1 The Contract Price shall not be adjusted because of errors or omissions which are not the fault of the County in computing the Project costs which result in an increase in the cost to Contractor to perform this Contract or because the time for completion varies from the original estimate, including completion or substantial completion of this Contract prior to the scheduled or Contract completion date or on account of County’s election to furnish any of the Work.

4.2 Payments. In each invoice for payment, the Contractor shall certify as follows:

4.2.1 Contractor shall deliver with the invoice, as a condition precedent to payment thereof, waivers of lien for each of its Subcontractors.

4.2.2 The County shall promptly review each invoice for payment and make such exceptions, as the County reasonably deems necessary or appropriate under the state of circumstances then prevailing.

4.2.3 Based upon the approved invoice, the County shall make payment to Contractor in the amount approved, subject, however, to the provisions of this Section 4.2.

The payment of any invoice for payment by the County does not constitute approval or acceptance of that part of the Project to which such payment relates or relieve the Contractor of any of its obligations hereunder with respect hereto.

4.2.4 In accordance with Florida Statute § 255.078, the County shall retain five percent

(5%) of the gross amount of each monthly payment request. Such sum shall be accumulated and not released to Contractor until final payment is due. Any interim interest on such sums shall accrue to the County.

4.2.5 Contractor shall submit a monthly Application for Progress Payment to the County, which may require execution of a separate or integrated Contractor’s Release and Affidavit. The period covered by each Application for Progress Payment shall be one calendar month unless otherwise agreed in writing. The County shall process the Application for Progress Payment in accordance with the Local Government Prompt Payment Act; Florida Statutes §218.70-.80 and the Contract Documents.

4.2.6 The Application for Progress Payment shall be in accordance with Exhibit A General Conditions 3.14 supported by documents and data as required by the County to substantiate its accuracy. The Contractor and County shall agree on a schedule of values as a basis for reviewing the Contractor’s Applications for Progress Payment.

4.2.7 Subject to other provisions of the Contract Documents, the amount of each payment shall be determined by multiplying the percentage of completion of a designated portion of the Work as listed in the agreed schedule of values, by the lump sum Contract Price allocated to that portion of the Work, less retainage, or in the case of a unit price pay item, by multiplying the unit price per item by the number of units incorporated into the Project, less retainage. Where items are listed for payment as lump sum units and the Contract Plans do not show estimates of component quantities, the Contractor is solely responsible for his own estimates of such quantities. For those items having variable final pay quantities that are dependent on actual field conditions, use and measurement, the quantities shown in the Plans and in the proposal, form are approximate and provide only a basis for calculating the bid upon which the County awarded the Contract.

4.2.8 Contractor shall include in its Application for Progress Payment, that portion of the

Contract Price properly allocable to materials and equipment delivered and suitably stored at the Project site for incorporation into completed construction, less retainage.

4.2.9 Retainage shall be withheld in accordance with Florida Statute §218.735.

Contractor may submit a payment request for all retainage withheld in accordance with §218.735(7)(e); after submission of the final invoice.

4.2.10 Contractor shall pay its subcontractors and suppliers in accordance with Florida

Statute §218.735(6). Contractor shall require its subcontractors to pay all of the subcontractor’s subcontractors in accordance with §218.735(6).

4.2.11 Per Florida Statute §255.05(11), the County may condition payment of a Progress

Payment or Final Payment on the production of a release, waiver or like documentation from a claimant demonstrating that the claimant does not have an outstanding claim against the contractor, the surety, the payment bond, or the County for payments due on labor services or materials furnished on the project unless the Contractor provides the County with a written consent from the surety regarding the Project or payment in question. No party requiring a release from a claimant may require use of a form other than those specified in Florida Statute §255.05(2)(b-c).

4.2.12 Contractor shall prepare and submit an Application for Final Payment when Contractor believes in good faith that Substantial Completion of the Work has been achieved. The County shall review the application and perform a Substantial Completion inspection. Per Florida Statute §255.077(4), the County may withhold up to one-hundred fifty percent (150%) of the estimated cost to complete Punch list items if Contractor has not completed items on the Punch list. If the County determines that the Project is Substantially Complete, the County will have the right to occupy and use the Project and shall have the right to exclude Contractor from the Project (or a specified part thereof) , but shall allow Contractor reasonable access to complete or correct items on the list of incomplete items/punch list.

4.2.13 Within thirty (30) days of certification of Substantial Completion, the County shall provide Contractor a preliminary list of items required to render the Work complete, satisfactory and acceptable to the County, (i.e., the “Punchlist”). The Contractor shall provide any comments, including Contractors estimated time to complete all items on the list, to the County in writing within five (5) days of receipt of the preliminary list from the County. The County shall review the Contractors written comments and deliver to Contractor a final list of items within five (5) days of receipt of Contractor’s comments. Contractor shall perform all items on the final list within thirty (30) days of receipt from the County unless otherwise agreed in writing by the County. The County shall determine the estimated costs of the Punchlist items using the factors contained in paragraph 4.3, Cost of the Work, of this Contract.

4.2.14 Contractor shall notify the County and the Project Manager that the Project is ready for Final Inspection upon completion of all items on the final list. The County will then schedule the Final Inspection, in coordination with the Contractor. The Final Inspection shall be conducted by the County, within ten (10) days of the Contractor’s notification to the County. Following the Final Inspection, the County shall provide the Contractor a list of any additional items for corrective action and conduct an additional inspection, if necessary, to ensure that the Work has been completed.

4.2.15 The County reserves the right, if it discovers an error in the partial or final quantity estimates used for payments, or if it discovers that the Contractor performed defective Work or used defective materials, after the Final Payment has been made, to claim and recover from the Contractor or his surety, or both, by process of law, such sums as may be sufficient to correct the error or make good the defects in the Work and materials.

4.2.16 Contractor shall retain all records pertaining to the Project for a period of three years from the date of the County’s final acceptance of the Project. Upon request, Contractor shall make all such records available to the County or its representative.

For the purpose of this Article, records include all books of account, supporting documents, and papers that the County deems necessary to ensure compliance with the Contract.

4.2.17 Any provisions hereof to the contrary notwithstanding, the County shall not be obligated to make current payment to the Contractor hereunder if any one of the following conditions exists:

4.2.17.1 The Contractor fails to prosecute the Work in an efficient, timely, and workmanlike manner and in strict accordance with the provisions of the Contract Documents; or

4.2.17.2 The Contractor fails to use an adequate number of qualified personnel and sufficient equipment to complete the Project without undue delay; or

4.2.17.3 The Contractor fails to make prompt payments to its Subcontractors, suppliers, materialmen, or laborers; or

4.2.17.4 The Contractor is otherwise in default of any of its obligations hereunder or otherwise is in default under any of its contractual requirements; or

4.2.17.5 The Contractor failed to provide a certified letter of the proper removal of lead and/or asbestos; or

4.2.17.6 Any discrepancies between the County’s records and the Contractor’s submittals must be rectified, to County’s satisfaction, by the Contractor before the County makes payment on those items. The Contractor shall only issue invoices for services rendered. Pursuant to Chapter 218, Florida Statutes, the County will pay interest not to exceed two percent (2%) per month on all undisputed invoices not paid within twenty (20) business days after receipt and acceptance of the service, and receipt by the County of a properly completed invoice, whichever is later.

Invoices for payments hereunder shall be submitted to the Project Manager.

4.2.17.7 To be deemed proper, all invoices shall comply with the requirements set forth in this Contract, Exhibit A General Conditions Section 3.14, and shall be submitted on the form and pursuant to instructions prescribed by the County.

4.3 Cost of the Work. The Cost of the Work shall include, without limitation, the cost items set forth as follows:

4.3.1 The cost of all materials, supplies and equipment incorporated in the Work and the cost of transportation and storage thereof. The County, at its sole discretion, may make payment for materials, supplies or equipment stored off-site;

4.3.2 Payments made by the Contractor to its Subcontractors for work performed for the

Project under trade or subcontract contracts;

4.3.3 The cost, including transportation and maintenance, of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workers, which are used and consumed in the performance of the Work and the cost, less salvage value, on items used but not consumed which remain the property of the Contractor. This cost shall not include the cost of materials, supplies, equipment, temporary facilities and hand tools furnished by Subcontractors as part of their trade work which shall be incorporated in the trade contracts cost;

4.3.4 Rental charges of all necessary motor vehicles, machinery and equipment, including hand tools, whether rented from the Contractor or others, and including transportation and delivery costs, installation, maintenance, repair and replacement, and dismantling and removal, at rental charges consistent with those prevailing in the area of the Project;

4.3.5 Actual cost, without mark-up, of the premium for all insurance and bonds which the

Contractor is required to provide pursuant to this Contract;

4.3.6 Sales, use, gross receipt, or similar taxes related to the performance of the Work, imposed by any governmental authority and for which the Contractor is liable;

4.3.7 Building and operating permit fees, inspection and filing fees, sewer and water fees and deposits lost for causes other than Contractor's own negligence;

4.3.8 Losses, expenses or damages to the extent not compensated by insurance or otherwise,…