Small Project Construction Contract Draft.pdf

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Contract Checklist – Unit Price

Page 1 – Basic Information

1. ☐ Insert City of Sanford’s contract number at the top of page 1.

2. ☐ Purchasing should replace the information in blue highlight under CONTRACTOR on page 1 with the contractor’s name, mailing address, phone number, and its certified general contractor’s license number. Purchasing should ensure that the provision (“Contractor”) that comes after the Contractor’s name is not deleted as that is a defined term that is used throughout the contract.

3. ☐ Purchasing should replace the information in blue highlight under DESIGN PROFESSIONAL on page 1 with the design professional’s name, mailing address, phone number, and license number. Purchasing should ensure that the provision (“Design Professional”) that comes after the Design Professional’s name is not deleted as that is a defined term that is used throughout the contract. The design professional will be responsible for reviewing the construction work and the contractor’s monthly payment applications.

4. ☐ Purchasing should replace the information in blue highlight under PROJECT on page 1 with the project name, project location, and parcel/property description number. Purchasing should ensure that the provision (“Project”) that comes after the project’s description is not deleted as that is a defined term that is used throughout the contract.

Section 1

5. Exhibits. The contract contemplates the following exhibits:

a. ☐ Exhibit A - Drawings and Specifications – This is a required exhibit. Purchasing and/or Project Manager should compile the pertinent drawings and specifications and attach them to the contract as Exhibit A.

b. ☐ Exhibit B - Waiver and Release Forms – This is a required exhibit and is already included at the end of the contract. Each month, the project manager needs to obtain a signed waiver and release form from the contractor. These forms do not need to be filled out when the contract is signed, rather, the project manager will need to fill them out each month. No action required by Purchasing for this Exhibit.

c. ☐ Exhibit C - Insurance Requirements – This is a required exhibit. Purchasing should attach the City’s current insurance requirements for the contract.

d. ☐ Exhibit D - Required Bond Forms – This is a required exhibit. Purchasing should attach the modified AIA payment and performance bond forms to the contract.

e. ☐ Exhibit E - Contractor’s Affidavit as to Public Entity Crimes and Scrutinized Companies. This is a required exhibit. On page 30, Purchasing should replace the information in blue highlight with the contractor’s name. The contractor should execute this affidavit concurrently with the contract.

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f. ☐ Exhibit F - Nongovernmental Entity Human Trafficking Affidavit – This is a required exhibit. On page 33, Purchasing should replace the information in blue highlight with the contractor’s name. The contractor should execute this affidavit concurrently with the contract.

g. ☐ Exhibit G - Foreign Country of Concern Attestation – This is a required exhibit. On page 35, Purchasing should replace the information in blue highlight with the contractor’s name. The contractor should execute this attestation concurrently with the contract.

h. Exhibit __ - Schedule – Section 4.3 provides that a schedule will be attached to the contract, however, this is not a required exhibit. Purchasing and the Project Manager should determine whether a schedule will be attached to the contract.

i. ☐ If the City decides to attach a schedule to the contract, input an alphabetical label in Section 1.2(h), input the alphabetical label in Section 4.3, input the alphabetical label to the exhibit placeholder page on page 36, and attach the schedule to the contract.

ii. ☐ If the City decides not to attach a schedule to the contract, then remove 1.2(h), remove the schedule exhibit placeholder page on page 36, and replace Section 4.3 with the following:

Schedule. Time is of the essence as to the deadlines for performance of the Work. By executing this Contract, Contractor acknowledges and agrees that the Contract Time is a reasonable period of time to complete the Work. Within ten (10) days of the Effective Date, the Contractor shall deliver to the Owner a schedule for completion of the Work that complies with the Contract Time and is acceptable to the Owner (“Schedule”). Any modification to the Schedule or the Contract Time must be approved by Owner.

i. Exhibit __ - Instructions on Criminal Background Check Form – Purchasing to determine whether the Instructions on Criminal Background Check Form is required for this Project.

i. ☐ If the form is required, input an alphabetical label in Section 1.2(i), input the alphabetical label in Section 11.38, input the alphabetical label in the exhibit placeholder page on page 38, and request that the contractor execute the Instructions on Criminal Background Check Form concurrently with the contract.

ii. ☐ If the form is not required, then delete Section 1.2(i) from the contract, delete Section 11.38, and delete the placeholder exhibit page and the form itself on pages 37-40.

j. Exhibit __ - Security and Public Safety Requirements Affidavit – Purchasing should determine whether the Security and Public Safety Requirements Affidavit is required for this Project.

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i. ☐ If the affidavit is required, input an alphabetical label in Section 1.2(j), input the alphabetical label in Section 11.39(b), input the alphabetical label in the exhibit placeholder page on page 41, and request that the contractor execute the Security and Public Safety Requirements Affidavit concurrently with the contract.

ii. ☐ If the affidavit is not required, then delete Section 1.2(j) from the contract, delete Section 11.39, and delete the placeholder exhibit page and the affidavit itself on pages 41-43.

k. Other Exhibits. If Purchasing or the Project Manager desires to add another exhibit that is not already identified here, the exhibit should be identified in Section 1.2.

Section 3

6. ☐ Section 3.1 – Contract Price. Purchasing should replace the information in blue highlight with the total contract price, stated in words and in numbers (for example “One Hundred and Fifty Thousand Dollars and 00/100 ($150,000.00)”). Since this is a unit price contract, the actual amount paid to the contractor will be based on the actual quantities performed. Purchasing should also add the appropriate information to the unit price chart, including the description of the work, the unit of measurement, the unit price, the estimated quantity, and the extended price (which is calculated by multiplying the estimated quantity by the unit price). An example is shown below:

Description of Unit Price Work

Unit Unit Price Estimated Quantity

Extended Price

Lumber LF $10.00/LF 100 $1,000.00 Sand CY $15.00/CY 100 $1,500.00 Estimated Total Price for Unit Price Work $2,500.00______

7. ☐ Section 3.6 – Submission of Applications for Payment. Florida Statutes 218.735(1)(a-b) requires that the City input the name of the individual, the facility, or the office that the Contractor must submit its Application for Payment to. Purchasing and the Project Manager should determine whether the Application for Payment must go to a City employee OR an entity outside of the City (like the Design Professional or the CEI). The City should also note that the deadline to make payment to the Contractor changes based on whether the individual is an agent of the City (like a CEI) or is a City employee. In Section 3.6, Purchasing should replace the blue highlight with the name and contact information of the individual that the Contractor’s Applications for Payment should be sent to.

8. ☐ 3.11 – Substantial Completion. Purchasing should confirm with the Project Manager whether there are any additional requirements for achieving substantial completion. If there are no additional requirements, then this Section does not need to be revised.

Section 4

9. ☐ Section 4.2 – Contract Time. Purchasing should confirm the number of days the contractor has to complete the work. Purchasing should replace the information in blue highlight with the iv appropriate number of days. To avoid ambiguity, the number of days should be written in words and in numbers (for example, “One Hundred and Twenty Days (120 days)”).

10. ☐ Section 4.3 – Schedule. Purchasing should refer to Section 5(h) of this Checklist for instructions on revising Section 4.3.

11. ☐ Section 4.4 – Liquidated Damages. Florida courts have held liquidated damages provisions are enforceable if the actual damages are uncertain at the time of contracting and the amount is reasonable and not a penalty. Purchasing should consult with the Project Manager and other City staff on what amount, per day, to fix liquidated damages at. Purchasing should replace the information in blue highlight with the daily rate for liquidated damages. To avoid ambiguity, the daily rate for liquidated damages should be written in words and in numbers (for example “Two Hundred and Fifty Dollars ($250.00)”).

Section 5

12. ☐ Section 5.5 – Submission of Price Quotes. Purchasing should determine which City employee the contractor’s price quotes for change orders should be sent to. Purchasing should replace the information in blue highlight with the specified individual’s email address. Note, pursuant to Florida Statutes 218.755, the City must reject or approve a price quote within 35 days of receipt of the price quote.

Section 11

13. ☐ Section 11.9 – Designated Representatives. Purchasing should input the name and contact information for the individual that is authorized to act on the City’s behalf. Often, this will be the City Project Manager. Purchasing must also determine who the contractor’s authorized representative is and input their name and contact information.

14. ☐ Section 11.10 – Notices. Purchasing should input the name(s) and contact information of the individuals that written notices should be sent to for the City and for the Contractor.

15. ☐ Section 11.26 – Public Records. Purchasing should ensure that the provision in all capital letters remains in size 14 font, bolded, and in capital letters, per Florida Statutes 119.0701.

16. ☐ Section 11.38 - Instructions on Criminal Background Check Form. Purchasing should refer to Section 5(i) of this Checklist for instructions on revising 11.38.

17. ☐ Section 11.39 - Security and Public Safety Requirements Affidavit. Purchasing should refer to Section 5(j) of this Checklist for instructions on revising 11.39.

Finalized signed contract should include:

a. ☐ Signatures from the City and Contractor and appropriate witnesses to those signatures

b. ☐ All blanks in contract filled in and all color highlighting removed

c. ☐ Appropriate exhibits attached to the contract v

d. Signed copies of the following forms:

i. ☐Contractor’s Affidavit as to Public Entity Crimes and Scrutinized Companies

ii. ☐Nongovernmental Entity Human Trafficking Affidavit

iii. ☐Foreign Country of Concern Attestation

iv. ☐Instructions on Criminal Background Check Form (If Applicable)

v. ☐Security and Public Safety Requirements Affidavit (If Applicable)

CONSTRUCTION CONTRACT (Unit Price) Contract No. __

OWNER

The City of Sanford, Florida, a municipality (“Owner”) 300 Park Avenue Sanford, FL 32771-1788

CONTRACTOR

Contractor’s Name (“Contractor”) Contractor’s License No.

Contractor’s Contact Information

DESIGN PROFESSIONAL

Design Professional’s Name (“Design Professional”) Design Professional’s License No.

Design Professional’s Contact Information

PROJECT

Project Description (“Project”) Project Address and Parcel ID.

This Construction Contract (“Contract”) is made by and between the Owner and Contractor (Owner and Contractor are each individually referred to herein as a “Party” and collectively as the “Parties”) and is effective as of the Effective Date. The Parties, in consideration of the mutual covenants and obligations identified hereunder, the sufficiency of which is hereby acknowledged, do hereby agree as follows:

1. DEFINITIONS AND EXHIBITS

1.1 Definitions. Definitions of capitalized terms and phrases shall have the meanings set forth below and as set forth throughout this Contract.

a. “Contract Documents” shall mean this Contract including exhibits, the Drawings and Specifications, and Modifications issued after the Contract is executed.

b. “Contract Price” shall have the meaning set forth in Section 3.1.

c. “Contractor” shall mean the Contractor that is identified above.

d. “Day” shall mean calendar day.

e. “Drawings and Specifications” shall mean the drawings, plans, and specifications prepared by

Design Professional and attached as Exhibit A.

f. “Design Professional” shall mean to the Design Professional identified above.

g. “Effective Date” shall mean the date of the last signature hereto.

h. “Laws” shall mean all federal, state, municipal, and local laws, statutes, executive orders, administrative orders, rules, standards, regulations, ordinances, notices, requirements, codes and requirements from the authority having jurisdiction.

i. “Indemnitees” shall have the meaning set forth in Section 8.8.

j. “Indemnity Claim” shall have the meaning set forth in Section 8.8.

k. “Modifications” shall mean any amendments to this Contract that are signed by both parties, including but not limited to Change Orders.

l. “Notice of Claim” shall have the meaning set forth in Section 10.1.

m. “Owner” shall mean the City of Sanford, Florida.

n. “Owner’s Rules” shall have the meaning set forth in Section 2.13.

o. “Project” shall mean the construction project identified above.

p. “Schedule” shall have the meaning set forth in Section 4.3.

q. “Subcontractors” shall mean all subcontractors, at any tier, suppliers, laborers, and all other entities or persons that furnish labor, services, materials or equipment, either directly or indirectly, to Contractor for the Project.

r. “Substantial Completion” shall have the meaning set forth in Section 3.11.

s. “Termination for Cause” shall have the meaning set forth in Section 7.2.

t. “Work” shall mean performance of the construction services required by the Contract Documents and includes all labor, services, equipment, and materials to be provided by the Contractor.

1.2 Exhibits. The exhibits to this Contract include:

a. Exhibit A – Drawings and Specifications

b. Exhibit B – Waiver and Release Forms

c. Exhibit C – Insurance Requirements

d. Exhibit D – Required Bond Forms

e. Exhibit E – Contractor’s Affidavit as to Public Entity Crimes and Scrutinized Companies

f. Exhibit F – Nongovernmental Entity Human Trafficking Affidavit

g. Exhibit G – Foreign Country of Concern Attestation

h. Exhibit __ – Schedule

i. Exhibit __, Instructions on Criminal Background Check Form

j. Exhibit __, Security and Public Safety Requirements Affidavit

2. CONTRACTOR’S WORK

2.1 Work. Contractor agrees to furnish and pay for all labor, materials, equipment, tools, services, facilities, and any other things required to perform the Work.

2.2 Warranty. Contractor warrants and guarantees to the Owner that:

a. the Work shall be performed free from defects;

b. the Work shall be performed in accordance with the Contractor’s best skill and attention;

c. the Work shall be performed in strict accordance with all Laws, the Contract Documents, and industry standards;

d. the Work shall be performed in accordance with the highest workmanship standards in the construction field;

e. the Work shall be performed to the complete satisfaction of the Owner, Design Professional, and the

Authority Having Jurisdiction (“AHJ”);

f. the Work shall be performed free from any contamination by hazardous wastes or other hazardous or toxic materials of any kind, including, without limitation, asbestos, PCB’s and other toxic or hazardous chemicals or materials;

g. all materials and equipment furnished will be of good quality, new, merchantable, free from defects, and in strict accordance with all Laws and the Contract Documents.

Any portion of the Work, including materials, or equipment, that does not conform to these requirements shall be considered defective. Contractor shall obtain similar warranties from each of its Subcontractors which shall run in favor of the Owner. The provisions of this Section are supplementary to the provisions in this Contract related to correction of defective Work. Contractor’s warranty obligations will survive final payment or any early termination of this Contract.

2.3 Licensing and Certifications. Contractor represents and warrants that it is lawfully licensed by the State of Florida to perform the services contemplated under this Contract. Contractor shall maintain required licenses and certifications, as required by the State of Florida and any other Laws, at all times Contractor is performing Work. Contractor shall verify that all Subcontractors have the required licensure required by the State of Florida and the Laws and shall not permit any Subcontractor to perform Work if that Subcontractor does not maintain proper licenses and certifications.

2.4 Subcontractors. Any subcontract with a Subcontractor must incorporate the terms of this Contract.

Contractor remains fully responsible for the actions and omissions of all Subcontractors. Subcontracting any portion of the Work to a Subcontractor does not in any way release Contractor from liability to the Owner for the actions or omissions of the Subcontractor. Contractor shall obtain Owner’s written consent before subcontracting any portion of the Work to a Subcontractor. By approving or disapproving of Contractor’s engagement of a Subcontractor, Owner is no way accepting liability or responsibility for the actions or omissions of the Subcontractor.

2.5 Means and Methods. Contractor shall supervise and direct the performance of the Work including any Work performed by Subcontractors at all times. Contractor shall be solely responsible for, and have exclusive control over, the construction means, methods, techniques, and sequences utilized for the Work.

If Contractor contends that a recommended installation procedure, whether set forth in the Drawings and Specifications or if required by a manufacturer: (1) deviates from good construction practice, (2) will affect the warranties provided by Contractor or a Subcontractor, then Contractor shall promptly advise the Design Professional and Owner.

2.6 Documents at the Site. At all times, Contractor shall maintain at the site one copy of the Contract Documents. At all times, Contractor shall also maintain at the site a copy of the Contract Documents marked to indicate field changes and selections made during construction. At all times, Contractor shall maintain at the site one copy of approved shop drawings, product data, samples and similar required submittals. At all times, Contractor shall maintain a copy of the Drawings and Specifications that were approved for permit by the Authority Having Jurisdiction and shall make them accessible to the Design Professional, Owner, and any build inspector.

2.7 Shop Drawings. The Contractor shall review for compliance with the Contract Documents, approve and submit to the Design Professional shop drawings, product data, samples and similar submittals required to be reviewed and approved by the Design Professional.

2.8 Use of the Site and Access. Contractor shall confine operations to the Project site and shall not unreasonably encumber the site with materials or equipment. The Contractor acknowledges the ongoing operations of the Owner and agrees to coordinate the Work with the Owner and conduct the Work in a manner which minimizes or eliminates any adverse impact on the Owner. The Contractor shall provide the Design Professional and Owner access to the Work at all times.

2.9 Safety. Contractor shall be solely responsible for ensuring proper job site safety procedures are utilized and for ensuring the safety of Contractor’s employees and any employees of Subcontractor(s). Contractor is solely responsible for ensuring all of its operations are performed in compliance with all applicable Laws, including but in no way limited to health and safety laws and regulations, including the Occupational Safety and Health Act, and all laws and regulations governing handling and storage of hazardous materials.

Contractor shall supply and use appropriate personal protective equipment and personal safety equipment required by the Laws and shall ensure employees are adequately educated and trained in proper safety procedures and requirements.

2.10 Permits and Licensing. Contractor shall ensure the Work is performed in compliance with all licensing, permitting, and certification requirements imposed by the Laws. Contractor shall pay for all costs associated with obtaining any permits, authorizations, or clearances associated with the Work. The Contractor shall secure and pay for the building, mechanical, electrical and plumbing permits, engineering and inspection charges required by any governmental authority or other person or entity having jurisdiction over the Work.

Said permits shall include, without limitation, both temporary and permanent permits, building permits, certificates of occupancy, curb-breaking permits, highway entrance permits, water permits and all similar permits and certificates. The Contractor will deliver original drawings and specifications to the Building Department and pay the initial plan check fee. If any governmental authority or other person or entity having jurisdiction requires special bonding of Contractor or the posting of any security for any part of the Work (not including Contractor’s performance bond), then Contractor shall pay the premiums for such bond or post such security. The Owner shall be responsible for all capacity charges and impact fees.

2.11 Compliance with Laws. Contractor shall ensure performance of the Work is in accordance with all Laws including but in no way limited to those relating to safety, discrimination, immigration, and fair employment practices, without additional charge or expenses to Owner. Contractor shall be responsible for and shall correct, at its own expense, any violation of the Laws.

2.12 Removal. Owner shall have the right to immediately remove any employee of Contractor or a

Subcontractor that: (1) endangers the safety and wellbeing of people or property; or (2) does not comply with the requirements of this Contract.

2.13 Code of Conduct. Employees of Contractor and Subcontractors shall comply with the following rules at all times they are on the Project site. The following rules shall be referred to herein as “Owner’s Rules.”

a. Tobacco, drugs, and alcohol may not be consumed at any time on the Project site. Any person(s) under the influence of drugs or alcohol or who is using tobacco shall be immediately removed from the Project.

b. Contractor shall require all construction personnel to maintain a neat general appearance at all times. Shirts, trousers, and proper shoes are required apparel. The display of vulgar words, signs, or figures is prohibited. Sandals and flip-flops are prohibited on the Project site.

c. The use of radios, tape players, cd players, boom boxes, sound producing devices, and the like are prohibited on the Project site.

d. Contractor shall require all construction vehicles to adhere to posted speed limits on the Project site and shall only permit construction vehicles to park in spots that Owner has authorized.

e. Proper safety attire must be worn at all times Contractor or any Subcontractor is at the Project site, including hard hats, boots, and other personal protective equipment.

Contractor’s failure to comply with Owner’s Rules may, at Owner’s sole discretion, result in immediate Termination for Cause of Contractor.

2.14 Clean Up. Contractor shall clean up all trash and debris on a daily basis. Trash and debris shall only be disposed of at locations and receptacles authorized by Owner. Unused or excess materials or equipment should only be stored in locations authorized by Owner or removed from the Project site when not being used. If Contractor fails to clean up debris, contaminants, materials, or trash, Owner can clean up using its own forces or a third-party and is entitled deduct the costs of such clean up from the Contract Price.

2.15 Due Diligence. By executing this Contract, Contractor certifies that it has been given an opportunity to: (1) visit the Project site, (2) investigate the nature of the Project site, and (3) review the Contract Documents.

Contractor shall verify all dimensions and actual field conditions before performing Work. Contractor warrants that it has sufficient information about the nature and location of the Work, the character, kind and quality of material to be encountered during the Work, and the character, kind and quantity of equipment needed to perform the Work. Contractor warrants that it can perform Work for the Contract Price. As part of Contractor’s due diligence into the Project and review of the Contract Documents, Contractor shall notify Owner in writing of any conditions which might adversely affect performance of the Work.

2.16 As Built Drawings. Contractor shall prepare as-built drawings that depict the physical conditions actually constructed. All as-built drawings prepared by Contractor shall become the property of Owner. The Contractor shall provide the As-Builts in both paper copy and digital media in the form approved by the Owner.

2.17 Continued Performance. Unless Owner terminates Contractor or suspends the Work, Contractor shall not be entitled to stop performing the Work for any reason. To the extent Contractor stops performing the Work, it shall be considered a material breach of the Contract and Owner shall be entitled to recover any resulting damages incurred from Contractor.

2.18 Ownership of Documents. All reports, drawings, plans, studies, models, sketches, specifications, shop drawings, submittals, or other documents furnished for the Project and prepared by the Contractor or any Subcontractor, including copyrights, trademarks, patents, and all other intellectual property rights (“Project Documents”), are the sole and exclusive property of Owner. Contractor agrees that all Project Documents, whether in final form or draft, are hereby assigned exclusively to Owner, including any copyright, patent, trademark, or other intellectual property rights. Contractor further hereby expressly assigns all of its present and future rights therein to Owner, and agrees to execute and furnish, and to cause all of Contractor’s Subcontractors to execute and furnish, in favor of Owner, separate assignment documents from time to time as requested by Owner. This Section shall survive any termination or expiration of this Agreement.

2.19 No Employment Relationship. Contractor and Contractor’s employees have no employment relationship with Owner.

2.20 Acts and Omissions. Contractor shall be responsible to the Owner for the acts and omissions of

Contractor’s employees, Subcontractors, Subcontractors’ agents and employees, and any other persons or entities performing any part of the Work on behalf of the Contractor or any of its Subcontractors.

2.21 Tax Savings Program. Notwithstanding anything herein to the contrary, because Owner is exempt from sales tax and wishes to generate sales tax savings for the Project, Owner reserves the right to make direct purchases of various construction materials and equipment included in the Work (“Owner Purchased Materials”). Before purchasing materials or equipment for the Project that exceed $5,000.00 in cost, Contractor shall identify in writing to Owner all materials and equipment to be included in the Work that will generate sales tax savings if purchased directly by Owner. Contractor shall comply with the written procedures for Owner Purchased Materials provided by Owner to Contractor and shall incorporate a similar provision to this provision in all of its subcontracts requiring the Subcontractors’ compliance with Owner’s tax savings program. Owner shall execute direct purchase orders with vendors for such Owner Purchased Materials. The purchase orders shall contain Owner’s Consumer Certificate of Exemption number. Owner shall acquire title to all Owner Purchased Materials at the time same are delivered to the Project site. Owner shall obtain insurance on the Owner Purchased Materials and Owner shall assume all risk of loss and theft for the Owner Purchased Materials upon their delivery to the Project site and until they are incorporated into the real property. Vendors shall invoice Owner directly for the Owner Purchased Materials. Owner shall pay vendors directly for the Owner Purchased Materials. Contractor represents and warrants that it will use its best efforts to cooperate with Owner in implementing this sales tax savings program in order maximize cost savings for the Project. Upon the execution of a purchase order, Owner and Contractor shall execute a Change Order decreasing the Contract Price by the total cost, including the saved sales tax, for the materials or equipment purchased directly by Owner under said purchase order. With respect to all direct purchases by Owner, Contractor shall remain responsible for coordinating, installing, inspecting, storing, handling, warranting, receiving and unloading, ensuring accuracy of quantities ordered, protecting, security, cleaning, scheduling, shipping, and quality control for all Owner Purchased Materials. Contractor shall remain responsible for ensuring all Owner Purchased Materials meet the requirements of the Contract Documents. Notwithstanding anything herein to the contrary, Contractor expressly acknowledges and agrees that any materials or equipment directly purchased by Owner pursuant to this Section shall be included within and covered to the same extent as all other warranties and performance guarantees provided by Contractor pursuant to the terms of the Contract Documents, including bonds. The Parties understand that the above Owner direct purchase procedures are generally not available to purchase fabricated materials from a vendor that, in addition to fabricating them, also installs those same fabricated materials into the Project. Owner’s purchase of Owner Purchased Materials shall in no way make Owner liable for the defective or non-conforming installation of Owner Purchased Materials. For avoidance of doubt, 100% of all tax savings resulting from any Owner Purchased Materials shall accrue to the benefit of the Owner only.

2.22 Manufacturer and Subcontractor Warranties. Contractor shall ensure that Owner is a direct beneficiary of all manufacturer and subcontractor warranties that Contractor is required to provide to Owner pursuant to the Contract Documents. Contractor shall perform the Work in such manner as to preserve all manufacturer and subcontractor warranties required by the Contract Documents. Further, Contractor shall comply, and cause its Subcontractors to comply, with all manufacturers’ installation specifications, details, and requirements. Contractor shall purchase, assign, and deliver to Owner, as a condition precedent to final completion, all manufacturer and Subcontractor warranties required by the Contract Documents.

2.23 Owner’s Authority. Owner shall be entitled to make any decision or approval required by this Contract to be made by the Design Professional. Any decision of Owner shall supersede any decision of the Design Professional. Any time Contractor shall be required to notify or report to the Design Professional such notice or report shall also be made to Owner.

2.24 Permits and Related Costs. Contractor shall secure and pay for all permits, fees, licenses, and inspections required by government agencies and/or the AHJ and Contractor acknowledges that these costs are included within the Contract Price.

3. PAYMENT

3.1 Contract Price/Unit Price. Owner shall pay the Contractor the Contract Price for completion of the Work.

The Contract Price shall be determined by multiplying the stated unit prices by the actual quantities performed by the Contractor. Based on the estimated quantities below, the Contract Price shall be Amount in Words ($Amount in Numbers), which is the sum of the extended prices for each of the following facets of the Work. The extended price shall be calculated for each item of unit price work by multiplying the stated unit price times the estimated quantity of Work. Estimated quantities are not guaranteed and are only being used to determine the initial Contract Price. Payment to Contractor for the Work will be based on actual quantities of Work performed. Design Professional will determine the actual quantities of Work performed by the Contractor. Contractor acknowledges and agrees that the stated unit price includes all costs associated with that facet of Work and includes Contractor’s overhead and profit.

Description of Unit Price Work

Unit Unit Price Estimated Quantity

Extended Price

Description of Unit Price Work

Unit (CY, LF, Etc.)

Description of Unit Price Work

Unit (CY, LF, Etc.)

Estimated Total Price for Unit Price Work $______

3.2 Contractor’s Warranties Regarding the Contract Price. Contractor warrants that the Contract can be performed for the Contract Price. Contractor shall pay for all taxes associated with Contractor’s Work. Any costs or expenses incurred by Contractor in excess of the Contract Price are Contractor’s sole responsibility, unless Owner authorizes additional costs or expenses in a Change Order or Construction Change Directive.

Without a Change Order or Construction Change Directive, the Contract Price shall not be adjusted for any reason, including but not limited to an adjustment to account for escalation in costs for materials or labor.

3.3 Schedule of Values. Within ten (10) days of the Effective Date, Contractor shall deliver a schedule of values that allocates the Contract Price into the various portions of the Work (“Schedule of Values”) to the Owner. The Schedule of Values shall be in a form that is acceptable to Owner. The Schedule of Values shall be used as a basis for reviewing the Contractor’s Applications for Payment. The Schedule of Values shall not be changed without the written approval of the Owner. The Schedule of Values shall be approved by the Owner in form and context.

3.4 Local Government Prompt Payment Act. Florida Statutes 218.70 et seq., also known as the Local Government Prompt Payment Act, shall govern this Contract. Owner and Contractor shall comply with the Local Government Prompt Payment Act at all times.

3.5 Application for Payment. Contractor shall submit a notarized application for payment, in the form specified by the Owner, to the individual(s) identified in Section 3.6 (“Application for Payment”). The period covered by the Application for Payment shall be one calendar month ending on the last day of the month. Each Application for Payment shall be based on the Schedule of Values and shall specify the percentage of completion of each portion of the Work as of the end of the period covered in the Application for Payment. Each Application for Payment shall include a signed and notarized waiver and release form, in the form attached as Exhibit B, from Contractor. By submitting an Application for Payment, Contractor certifies and warrants: (1) the Work contemplated by the Application for Payment has been completed in strict accordance with the Contract Documents; (2) at the time payment is made title to the Work contemplated by the Application for Payment shall pass to the Owner free and clear of all liens, security interests, claims, and encumbrances; (3) all amounts owed by the Contractor for Work, materials, services, and equipment furnished pursuant to prior Applications for Payments have been paid by the Contractor from the prior progress payments received from the Owner, and (4) the current amount shown on the Application for Payment is the payment now due. Owner may reject an Application for Payment that does not conform to the requirements of this Contract in accordance with the Local Government Prompt Payment Act.

3.6 Submission of Applications for Payments. Contractor shall submit its Application for Payment to

3.7 Retainage. Owner shall be entitled to withhold five percent (5%) of each progress payment as retainage.

Upon mutual written agreement by Owner and Contractor, Owner may release retainage for a particular portion of the Work prior to Substantial Completion if that portion of the Work is fully and satisfactorily completed and Contractor complies all other requirements of the Contract required for such payment.

3.8 Certification by Design Professional and Payments. The Design Professional shall inspect the Work described in the Application for Payment, determine whether the Work has progressed to the point of completion indicated in the Application for Payment, determine whether the Work described in the Application for Payment is in accordance with the Contract Documents, and certify to the Owner the amount that the Contractor is due, and, if the amount is less than the amount sought in the Application for Payment, the Design Professional shall explain why. Owner shall pay to the Contractor the amount certified by the Design Professional in accordance with the provisions of the Local Government Prompt Payment Act. Payment by Owner shall be made by ACH payment or paper check, at Owner’s discretion. Contractor shall provide Owner with appropriate banking information to initiate a ACH payment.

3.9 Good Faith Dispute. Owner, in its sole discretion, may withhold a portion of any payment due to Contractor if Owner contends there is a good faith dispute regarding performance of the Work, Contractor’s payments to Subcontractors for labor, materials, or services, or damage to the Owner caused by Contractor or a Subcontractor. Within twenty (20) business days of Owner’s receipt of Contractor’s Application for Payment (as provided in Section 3.6), Owner shall provide written notice to Contractor of the amount to be withheld and the reason for withholding. The undisputed portion of any Application for Payment shall be paid in accordance with the Local Government Prompt Payment Act.

3.10 Payments to Subcontractors. Contractor shall comply with the Local Government Prompt Payment Act and shall require all lower tiered subcontractors and suppliers to comply with the Local Government Prompt Payment Act. No later than ten (10) days after Contractor’s receipt of payment from the Owner, Contractor shall remit payment to all Subcontractors. All Subcontractors that receive payment from Contractor shall remit payment to lower-tiered subcontractors in accordance with the Local Government Prompt Payment Act. Owner has the right to request written evidence from Contractor that Contractor has paid Subcontractors in accordance with this Contract and the Local Government Prompt Payment Act.

3.11 Substantial Completion. “Substantial Completion” shall mean the stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents and is capable of being utilized or used for the Owner’s intended use. Additionally, in order to be Substantially Complete, the following conditions must also be met:

a. The Work is complete in accordance with the Contract Documents;

b. A Certificate of Substantial Completion has been issued by the Design Professional;

c. All warranties for the Work, including manufacturer’s and Subcontractor’s warranties, have been assigned to and delivered to Owner.

d. All required occupancy certificates have been issued to the Owner by the Authority Having

Jurisdiction.

3.12 Development of the Punch List.

a. Owner and Contractor shall comply with the provisions of Section 218.735, Florida Statutes, regarding preparation of the punch list.

b. When the Contractor contends it has achieved Substantial Completion, Contractor shall notify the Owner and Design Professional and shall deliver a list of items to be completed or corrected prior to final completion and the estimated cost of completing or correcting each item (“Draft Punch List”). Contractor’s failure to include an item on the Draft Punch List does not relieve Contractor of its obligation to complete all Work in accordance with the Contract Documents. Upon receipt of the Draft Punch List and the foregoing notice from Contractor, Owner and Design Professional shall inspect the Work to determine if Contractor has achieved Substantial Completion. If the Owner or Design Professional determines there are additional items to be completed or corrected before a Certificate of Substantial Completion can be issued, then Design Professional shall inform the Contractor of what items need to be completed or corrected and Contractor must request another inspection by the Design Professional and Owner when Contractor contends the Work is Substantially Complete.

c. No later than thirty (30) days of the date that Substantial Completion is actually achieved: (1) Owner shall review Contractor’s Draft Punch List and advise the Contractor of any additional items that need to be added or estimated costs that need to be changed, (2) Owner and Contractor shall work together in good faith to reach an agreement on a final list of punch list items and the estimated costs to complete or correct each item, and (3) to the extent Owner and Contractor disagree on whether something belongs on the punch list or an estimated cost to complete an item on the final punch list, then the Design Professional’s opinion shall govern. The list of items agreed to by the Owner and Contract to be completed or corrected prior to final payment and the agreed upon cost for each item shall be referred to herein as the “Final Punch List.” The Owner shall approve of the Final Punch List no later than thirty (30) days after the date Substantial Completion is actually achieved and the date so approved shall be referred to herein as “Date of Final Punch List.” Owner shall deliver a copy of the Final Punch List to the Contractor no later than five (5) days after the Date of Final Punch List. The Final Punch List shall set a date by which the Final Punch List items need to be completed or corrected by, which shall not be sooner than thirty (30) days after the date the Owner delivers the Final Punch List to the Contractor.

d. Within twenty (20) business days after the Date of the Final Punch List and a corresponding Application for Payment, Owner shall pay Contractor the remaining balance of the Contract Price, including retainage, but shall be entitled to withhold one hundred and fifty (150) percent of the estimated costs to complete the items on the Final Punch List.

e. The failure to include any corrective work or pending items not yet completed on the Final Punch List does not alter the Contractor’s responsibility to complete the Work in accordance with the Contract Documents.

3.13 Final Completion and Final Payment. Final payment to Contractor, which shall include the amount withheld to complete the items on the Final Punch List, shall be made in accordance with the Local Government Prompt Payment Act. Final payment shall not become due until all of the following have occurred:

a. All Work, including all items on the Final Punch List, is complete and in accordance with the Contract Documents;

b. All trash, debris, materials, and contaminants have been removed from the Project site;

c. All Work has been approved of by Owner and Design Professional;

d. Owner’s receipt and approval of Contractor’s Final Application for Payment;

e. Owner’s receipt of “Contractor’s Final Payment Affidavit,” stating that the Work is complete and all subcontractors and suppliers have been paid in compliance with the Florida Statutes;

f. Owner’s receipt of Contractor’s final waiver and release form in the form attached as Exhibit B;

g. Owner and Design Professional’s receipt of a Consent to Final Payment from Contractor’s Surety;

h. Issuance of a Certificate of Final Completion by Design Professional;

i. Owner and Design Professional’s receipt of record as-built drawings from Contractor;

j. All required directional bore logs, if applicable;

k. Stormwater NYPDES Notice of Termination, if applicable;

l. Owner and Design Professional’s receipt of a written statement that the Contractor knows of no reason that the insurance will not be renewable to cover the period required by the Contract Documents;

m. All warranties, such as manufacturers’ warranties and Subcontractor warranties, have been assigned to and delivered to Owner if not otherwise provided prior to Substantial Completion;

n. Owner and Design Professional’s receipt of operations and maintenance manuals from Contractor;

and

o. Contractor has resolved any “Notices of Nonpayment” received from Subcontractors.

3.14 Final Payment. By accepting final payment, Contractor waives and releases any claims it may have against

Owner related to the Project.

3.15 Acceptance of Defective Work. A progress payment, final payment, or partial or full use of the Project shall not constitute Owner’s acceptance of defective Work that does not conform to the Contract Documents.

4. SCHEDULE

4.1 Commencement of the Work. Contractor shall commence the Work on the date the Owner issues a Notice to Proceed (“Date of Commencement”).

4.2 Contract Time. Subject to adjustments authorized by the Owner, Contractor shall achieve Substantial Completion of the Work, as defined in Section 3.11, within Number of Days in Words (__) days of Date of Commencement (“Contract Time”).

4.3 Schedule. Time is of the essence as to the deadlines for performance of the Work. By executing this Contract, Contractor acknowledges and agrees that the Contract Time is a reasonable period of time to complete the Work. Contractor shall comply with the schedule for the Work attached here as Exhibit __ (“Schedule”). Any modification to the Schedule or the Contract Time must be approved by Owner.

4.4 Liquidated Damages. If the Contractor fails to achieve Substantial Completion by the time set forth in 4.2, then the Contractor agrees to pay the Owner, as liquidated damages, a sum of __________ dollars ($___.00) per calendar day until Substantial Completion of the Work is actually achieved. Such amount is agreed upon as a reasonable measure of the damages that the Owner will sustain from the Contractor’s failure to timely complete the Work. Owner and Contractor recognize the delays, expense, and difficulties involved in proving in an arbitration or judicial proceeding the actual loss suffered by the Owner if the Work is not completed on time and accordingly, instead of requiring such proofs, they agree upon the above-stated amount as liquidated damages for delay (but not as a penalty). The Owner may deduct liquidated damages prescribed herein from any unpaid amounts then or thereafter due to the Contractor. Any liquidated damages not so deducted shall be payable to the Owner by the Contractor upon demand by the Owner plus two percent (2%) interest per month. It is further mutually understood and agreed that the Owner’s assessment of liquidated damages for delays is intended to compensate the Owner solely for Contractor’s failure to timely achieve Substantial Completion of the Work and shall not release the Contractor from liability from any other breach of the requirements of the Contract Documents. If the liquidated damages set forth in the Contract are determined by a court of competent jurisdiction to be unenforceable for any reason, then the Owner instead shall be entitled to recover those actual delay damages that it sustained as a result of the Contractor’s failure to timely achieve Substantial Completion. The Owner’s right to liquidated damages hereunder is self-executing and no claim or notice by the Owner is required as a condition precedent to the Owner’s right to offset liquidated damages from amounts otherwise due to the Contractor or to otherwise pursue recovery of liquidated damages.

4.5 Delays. If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner; (2) any delay or directive to stop Work from the AHJ (provided such delay or directive was not caused by the Contractor or a Subcontractor); (3) by fire or unusual extraordinary adverse weather conditions not reasonably anticipatable; or (4) Acts of God (collectively “Excusable Delay”), then, subject to the other limitations provided in this Section, the Owner shall grant the Contract an extension of the Contract Time equal to the number of days the Excusable Delay spanned, however, in no event shall the Owner adjust the Contract Price as a result of an Excusable Delay. It is the express and bargained for intent of the Parties that the risk of any monetary damages caused by an Excusable Delay described in this Section or any other delays from any other cause are accepted and assumed entirely by Contractor, and in no event shall any claim relating thereto for an increase in the Contract Price be made or recognized.

Contractor’s sole remedy for any delay, impact, disruption, or interruption caused by any of the reasons listed in this Section shall be an extension of the Contract Time only and Contractor waives any right it may have to seek monetary damages or costs as a result of a delay, including but not limited to a claim for extended general conditions, unless the a delay was caused by acts constituting intentional interference by Owner with Contractor’s performance of the Work, and, to the extent that such acts of intentional interference by the Owner continue after Contractor’s written notice to Owner of such interference. The

Owner’s exercise of any of its rights under the Contract, including, without limitation, its rights pertaining to changes in the Work, regardless of the extent or number of such changes, or the Owner's exercise of any of its remedies of suspension of the Work, or requirement of correction or re-execution of any defective Work, shall not under any circumstances be construed as intentional interference with…