Y23-706_FDOT_LAP_Volume_3.pdf

Volume III: Draft Contract Table of Contents Page: 1 of 6

Orange County, Florida Procurement Division

Volume III: Draft Contract

IFB#: Y23-706-MB 2

Project Title: LAKE APOPKA TRAIL CONNECTOR PROJECT 4

FPN: 441447-1-58-01 FAN:D522 090 B

TABLE OF CONTENTS

Article 1: Definitions ..................................................................................................... 1 8

Article 2: Documents

Section A: Ownership of Documents ............................................................................... 3 10

Section B: Documents

1. Contract Documents .................................................................................................. 3 12

2. Priority of Documents

Section C: Federally Required Attachments .................................................................... 4 14

1. FHWA-1273

2. U.S. Department of Labor Prevailing Wage Determination ....................................... 5 16

Section D: Record Drawings

1. Generally ................................................................................................................... 5 18

2. As-Built Plans

Article 3: Interpretation and Intent ............................................................................... 5 20

Section A: Generally

Section B: Request for Interpretation ............................................................................... 6 22

Section C: County’s Regulatory Authority

Article 4: Contract Amount, Bonding, and Payment ................................................. 7 24

Section A: Contract Amount

1. Generally ................................................................................................................... 7 26

2. Unit Price Contract

3. Maximum Contract Amount ....................................................................................... 7 28

4. Estimated Quantities

5. Basis of Payment ....................................................................................................... 7 30

Section B: Bonding

Section C: Payment ............................................................................................................ 8 32

1. Pay Items

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Orange County, Florida Procurement Division

2. Progress Payments ................................................................................................... 8 34

3. Schedule of Values

4. Progress Schedule .................................................................................................... 9 36

5. Progress Payment Update Schedules CPM

6. Progress Payment Narrative Report ........................................................................ 10 38

7. Schedule and Report Format

8. Project Manager Review ......................................................................................... 11 40

9. Final Schedule Update

10. Application For Progress Payment .......................................................................... 11 42

11. Contractor's Warranty of Title

12. Approval of Payments ............................................................................................. 13 44

13. Final Inspection for Payment

14. Approval of Final Payment ...................................................................................... 14 46

15. Contractor's Continuing Obligation

16. Waiver Of Claims ..................................................................................................... 15 48

17. Prompt Payment to Subcontractors

18. Utilities ..................................................................................................................... 16 50

19. Availability of Funds

Article 5: Starting, Prosecution, and Completion of Work ...................................... 16 52

Section A: Starting the Work

1. Preconstruction Conference .................................................................................... 16 54

2. Notice to Proceed

3. Time of Commencement and Final Completion....................................................... 17 56

4. Availability of Lands

Section B: Prosecution of the Work ............................................................................... 17 58

1. Submission of Working Schedule

2. Work Hours.............................................................................................................. 18 60

3. Compliance with Time Requirements

4. Video Survey ........................................................................................................... 19 62

5. Project Progress Aerial Photographs

Section C: Completion ..................................................................................................... 19 64

1. Substantial Completion

2. Partial Utilization ...................................................................................................... 20 66

3. Final Inspection

Article 6: Miscellaneous Terms and Conditions ...................................................... 21 68

Section A: Contractor’s Responsibilities

1. Project Owner Status During Construction .............................................................. 21 70

2. Supervision and Superintendence

3. Labor, Materials, and Equipment ............................................................................. 22 72

4. Substitute Material or Equipment

5. Patent Fees and Royalties ...................................................................................... 23 74

6. Site Investigation

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Orange County, Florida Procurement Division

7. Laws and Regulations ............................................................................................. 24 76

8. Certifications/Permit Compliance

9. Use Of Premises ..................................................................................................... 24 78

10. Maintenance of Traffic/Use of Public Roads and Streets

11. Care of Trees, Shrubs, and Grass ........................................................................... 25 80

12. Use of Explosives

13. Damage to Existing Structures and Utilities ............................................................. 26 82

14. Federally or State Designated Listed Species

15. Cleaning Up ............................................................................................................. 26 84

16. Unforeseen Subsurface Conditions

Section B: Subcontractors and Suppliers ..................................................................... 27 86

1. General Requirements

2. County Objections ................................................................................................... 28 88

Section C: Safety and Protection

1. Generally ................................................................................................................. 29 90

2. Protection of Property

3. Off-Site Staging and Storage ................................................................................... 31 92

4. Emergencies

5. Supervision for Emergencies ................................................................................... 32 94

6. Hurricane Preparedness

7. Asbestos Free Materials .......................................................................................... 32 96

8. Tobacco Free Campus

Section D: Reference Points ........................................................................................... 33 98

1. Generally

2. Specific Staking Requirements ................................................................................ 34 100

3. Benchmarks

4. Control Points .......................................................................................................... 35 102

5. Property Corners

6. Public Land Corners ................................................................................................ 36 104

7. National Geodetic Survey (N.G.S.) / United States Coast & Geodetic Survey (U.S.C. &

G.S.) Monuments .................................................................................................... 36 106

Section E: As-Built Plan Requirements

1. Qualifications of Surveyor and Mapper or Engineer ................................................ 36 108

2. Improvements

3. As-Built Survey ........................................................................................................ 37 110

4. Deliverables

Section F: Shop Drawing and Samples .......................................................................... 39 112

Section G: Utility Coordination

Section H: Work by Others .............................................................................................. 43 114

Section I: Change Orders (Alteration of Plans or of Character of Work)

Section J: Claims (Control of Work) ............................................................................... 44 116

3. Contractor Self Performance Requirements

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Orange County, Florida Procurement Division

Section K: Extensions of Contract Time

Section L: Value Engineering .......................................................................................... 45 118

1. Intent and Objective

2. Subcontractors ........................................................................................................ 46 120

3. Data Requirements:

4. Processing Procedures ........................................................................................... 46 122

5. Computations for Change in Contract Cost of Performance

6. Computations for Collateral Costs ........................................................................... 47 124

7. Sharing Arrangement

Section M: Suspension of Work...................................................................................... 48 126

Section N: Verbal Orders

Section O: Warranty and Guarantee, Acceptance of Defective Work .......................... 49 128

1. Warranty and Guarantee

2. Tests and Inspections .............................................................................................. 50 130

3. Access to the Work

4. Uncovering Work ..................................................................................................... 50 132

5. Notice to Cure

6. Correction or Removal of Defective Work ............................................................... 51 134

7. Acceptance of Defective Work

8. Neglected Work by Contractor ................................................................................. 52 136

9. Independent Materials Testing

Section P: Patents and Royalties ................................................................................... 52 138

Section Q: Nondiscrimination

Section R: Records and Audits ....................................................................................... 53 140

1. Covered Records and Supporting Documents

2. Duty to Maintain Records ........................................................................................ 54 142

3. Right to Inspect and Audit Records

4. Overpricing or Overcharges..................................................................................... 55 144

5. State Auditing and Inspector General Requirements

6. Public Records ........................................................................................................ 56 146

7. Flow-Down Requirement

Section S: Supplemental Terms and Conditions........................................................... 57 148

Article 7: State/Federal Terms and Conditions

Section A: Federal Terms ................................................................................................ 57 150

Section B: Suspension and Debarment

Section C: Control of Materials ....................................................................................... 58 152

Section D: Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment .................................................................................. 58 154

Section E: Conflicts of Interest

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Orange County, Florida Procurement Division

1. General Requirements ............................................................................................ 58 156

2. Flow Down Requirement

Section F: E-Verify ........................................................................................................... 59 158

Section G: Florida Convicted/Suspended/Discriminatory Complaints

Section H: Scrutinized Companies ................................................................................. 59 160

Section I: Disadvantaged Business Enterprises (“DBEs”)

1. Generally ................................................................................................................. 60 162

2. Required Contract and Subcontract DBE Assurance Language

3. Flow-Down Requirement ......................................................................................... 61 164

Section J: FDOT Contract

Article 8: Insurance, Indemnification, and Liability ................................................. 61 166

Section A: Insurance

1. General Requirements ............................................................................................ 61 168

2. Workers’ Compensation

3. Commercial General Liability ................................................................................... 62 170

4. Business Automobile Liability

5. Contractor’s Pollution Liability.................................................................................. 63 172

6. Schedule of Limits

7. Additional Insured .................................................................................................... 63 174

8. Waiver of Subrogation

9. Cancellation or Change of Coverage ....................................................................... 64 176

10. Risk of Loss

11. Joint Ventures .......................................................................................................... 64 178

12. Delivery of Certificates

13. Flow Down Requirement ......................................................................................... 65 180

Section B: Indemnification

1. State Indemnification Provision ............................................................................... 65 182

2. Section 725.06, F.S., Indemnification

3. Survivability ............................................................................................................. 66 184

4. Flow Down Requirement

Section C: Liability ........................................................................................................... 66 186

1. Indemnification for Tort Actions/Limitation of Liability

2. Limitation on Damages ............................................................................................ 66 188

Section D: Liquidated Damages

Section E: Third-Party Claims ......................................................................................... 68 190

Article 9: Termination

Section A: Authority to Terminate .................................................................................. 68 192

Section B: Termination for Cause

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Orange County, Florida Procurement Division

Section C: Termination for Convenience ....................................................................... 70 194

Section D: Contractor’s Option to Rescind Contract

Article 10: General Contract Provisions (Alphabetical Order) ................................ 70 196

Section A: Assignments and Successors

Section B: Attorneys’ Fees and Costs ........................................................................... 71 198

Section C: Conflicts

Section D: Construction and Representations .............................................................. 71 200

Section E: Counterparts and Electronic Transmission of Signatures

Section F: Electronic Signatures .................................................................................... 71 202

Section G: Governing Law

Section H: Headings ........................................................................................................ 72 204

Section I: Jury Waiver

Section J: Notice .............................................................................................................. 72 206

Section K: Remedies

Section L: Severability ..................................................................................................... 72 208

Section M: Signatory

Section N: Survivorship ................................................................................................... 73 210

Section O: Use of County and Contractor Logos

Section P: Venue .............................................................................................................. 73 212

Section Q: Waiver

Section R: Written Modification ...................................................................................... 73 214

Article 11: Entire Agreement

Volume III Appendix: Contract Exhibits .................................................................... 75 216

Construction Bid Package | IFB# Y23-706-MB Volume III: Draft Contract Page: 1 of 75

Volume I: Invitation for Bids (“IFB”) 218

IFB No. Y23-706-MB

CONTRACT NO: TBD

ORANGE COUNTY, FLORIDA

CONSTRUCTION CONTRACT

This Contract (the “Contract”) is made by and between ORANGE COUNTY, FLORIDA, a political subdivision of the State of Florida, with its principal place of business located at 201 South Rosalind, Avenue, Orlando, Florida, 32801 (the “County”), and TBD, a TBD, with its 226 principal place of business located at TBD (the “Contractor”). The County and the Contractor may be referred to in this Contract individually as “party” or collectively as “parties”. 228

NOW, THEREFORE, the County and the Contractor, for the consideration set forth within 230 this Contract, hereby agree as follows:

Article 1: Definitions 234 The definitions set forth in Vol. I., Art. 1., Sec. A. (“Definitions”) of the Bid Package for IFB#

Y23-706-MB are hereby incorporated into this Contract by reference. In addition to such definitions, the following words and expressions (or pronouns used in their stead) defined in this Article shall, wherever they appear in the Contract Documents, to be construed as follows unless a different meaning is clear from the context. 238

“Approve”, “Approval”, “Accept”, “Accepted”, “Acceptance”, or any other derivations of 240 these terms, when used within the Specifications, or in references to actions taken by the County or its representatives with respect to submittals made by or work performed by the Contractor, 242 shall mean that the County or its representatives finds no exception with the submittal or the Work provided/performed by the Contractor. Acceptance or approval by the County or its 244 representative shall not relieve the Contractor of any responsibility for conformance to the intent of the plans and specifications, for the accuracy of dimensions, for conformity of dimensions and 246 details, or for adherence to generally accepted engineering and construction practices.

"Change Order" shall mean a written order to the Contractor, signed by the County, authorizing an addition, deletion or revision in the Work, or an adjustment in the Contract Amount or the 250 Contract Time issued after execution of the Contract.

"Contractor" shall mean the “Selected Bidder” (and vice versa), whether a corporation, firm, individual or any combination thereof, and its (or their) successors, personal representatives, 254 executors, administrators, and assigns.

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"Contract Amount" shall mean the total monies payable to the Contractor under the Contract Documents. The term "Contract Price" where used in the Contract Documents refers to the 258 “Contract Amount”.

“Contract Float” shall mean the number of days that an activity or a sequence of activities does not necessarily have to start or end on the scheduled dates to maintain the schedule, or as a 262 minimum, the number of days that an activity may be delayed from its early start date without delaying completion of the Work beyond the Contract Time for Substantial Completion or Final 264 Acceptance.

"Contract Time" will mean the number of calendar days stated in the Contract for the completion of the Work and shall begin on the date the County issues its Notice to Proceed and 268 end on the date of Final Completion.

"Defective Work" shall mean: (A) work that is unsatisfactory, deficient, or damaged, does not conform to the Contract Documents, or does not meet the requirements of any inspection, test 272 or approval; or (B) work associated with punch list items that the Contractor fails to complete within a reasonable time after issuance of the punch list by the Project Manager. 274

"Final Acceptance" shall mean acceptance of the Work by the County upon the expiration of 276 the correction period required by the Contract Documents.

"Final Completion" shall mean acceptance of the Work by the County as evidenced by its signature upon Final Certificate of Completion and approval thereof by the County. The Final 280 Certificate of Completion shall be signed only after the County has assured itself by tests, inspection, or otherwise that all of the provisions of the Contract have been carried out to its 282 satisfaction.

"Notice to Proceed" shall mean the written notice given by the County to Contractor fixing the date the Contract Times will commence to run. 286

“Record Schedule” shall mean the timetable of predicted tasks, milestones, task durations, 288 deadlines and the start and end dates of the Work indicated in a Progress Schedule accepted by the County and provided to the County prior to the first progress payment. County acceptance 290 of a revised and/or updated Progress Schedule will result in a revised Record Schedule, if so noted in the County’s written acceptance, that will be used to evaluate progress and delays 292 occurring after the acceptance of the revised Record Schedule.

"Shop Drawings" shall mean all drawings, diagrams, illustrations, brochures, schedules, and other data which are prepared by the Contractor, a Subcontractor, a manufacturer, supplier, or 296 distributor and which illustrate the equipment, material and/or some portion of the Work.

"Substantial Completion" shall mean the stage in the progress of the Work when the Work, or designated portions thereof, may still require minor modifications or adjustments but, in the 300 County’s opinion, the Work has progressed to the point such that all parts of the Work under

Volume III: Draft Contract Page: 3 of 75 consideration are fully operational and usable for intended purposes, as evidenced by a 302 Certificate of Substantial Completion approved by the County.

Article 2: Documents Section A: Ownership of Documents 306

All specifications, drawings, and copies thereof furnished by the County shall remain the property of the County. Such documents shall not be used on another project and, with the exception of 308 those sets which has been signed in connection with execution of this Contract, shall be returned to the County upon completion of the Project. 310

Copies of documents, records, materials, or other reproduction requests will be charged in 312 accordance with Orange County’s fee schedule. Copyrighted materials may be inspected but cannot be copied or reproduced per Federal law. 314

Section B: Documents 316

1. Contract Documents The following documents (the “Contract Documents”) are hereby incorporated into this Contract, whether by reference or by physical attachment, and therefore serve as a material part of this agreement between the parties:

A. The Orange County Invitation for Bids/Project Manual;

B. The Bid Package for IFB No. Y23-706-MB dated TBD, including but not limited to Volume I: Invitations for Bids (“IFB”) and Volume II: Project-Specific Information and any forms, documents, incorporated references, or other attachments thereto which are attached hereto as EXH-7: Bid Package, C. The following addendums issued by the County:

Table 1: Addendums Addenda No. Issue Date

D. The Contractor’s Bid Response dated TBD, which is attached hereto as EXH-8:332 Contractor’s Bid Response;

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E. All Project-related specifications and drawings, including the drawings bearing the title:

“TBD”;336

F. The Contractor’s Payment and Performance Bond documents;338

G. The Contractor’s Certificates of Insurance; and340

H. Any applicable state, federal, or local laws or regulations, regardless of whether a specific342 reference to such has been made within the body of this Contract.

2. Priority of Documents

The order of precedence of items and documents is as follows:346

A. This Contract B. Permits348

C. Supplemental Conditions/Special Provisions D. Specifications/Technical Provisions350

E. Drawings/Plans F. Road Design, Structures, and Traffic Operations Standards (If applicable)352

G. Divisions II and III of FY 2023-24 Florida Department of Transportation (FDOT) Standard Specifications for Road and Bridge Construction, and supplements thereto (unless354 otherwise noted) and as found in DOC-5: Technical Provisions/Specifications which is attached to Volume II: Project-Specific Information of this Bid Package356

H. Select provisions of Division I of FY 2023-24 Florida Department of Transportation (FDOT) Standard Specifications for Road and Bridge Construction, as found in EXH-3:358 FDOT Division I Specifications for Local Agencies

I. The Contractor’s Bid Response360

J. Instructions to Bidders

Section C: Federally Required Attachments

1. FHWA-1273364

The Federal Government requires that FHWA-1273 be physically attached and incorporated into every Federal-Aid Construction Contract. This provision acknowledges that FHWA-1273 366 is appropriately attached and hereby incorporated into this Contract as EXH-2: FHWA-1273

– Required Contract Provisions Federal-Aid Construction Contracts.368

For more information regarding this requirement, refer to Section 7-1.1 of EXH-3: FDOT 370 Division I Specifications Package for Local Agencies.

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2. U.S. Department of Labor Prevailing Wage Determination The Federal Government requires that the current U.S. Labor Prevailing Wage Determination374 be physically attached and incorporated into every Federal-Aid Construction Contract. This provision acknowledges that the current U.S. Labor Prevailing Wage Determination is376 appropriately attached and hereby incorporated into this Contract as EXH-4: U.S. Labor Prevailing Wage Determination.378

For more information regarding this requirement, refer to Section 7-16 of EXH-3: FDOT380 Division I Specifications Package for Local Agencies.

Section D: Record Drawings

1. Generally384

The Contractor shall keep one record copy of all Specifications, Drawings, Addenda, Change Orders, and Shop Drawings at the site in good order, and annotated and marked on a current 386 basis to indicate the progress of the work done and to show all changes made during the construction process or conditions varying from the Bid Response. These shall be available 388 to the Project Manager for inspection throughout construction and shall be delivered to the Project Manager upon completion of the Work, but prior to final payment. 390

2. As-Built Plans392

As-Built Plans shall be used for no purpose other than recording changes, shall be updated at least once weekly, and shall be stored separate and apart from plans used on a routine 394 basis. Such plans shall show locations and elevations of paving, swales, ditches, pipes, and structures constructed and all relocated or reset property corners, section corners, and ¼ 396 section corners.

The As-Built Plans shall be available to the Project Manager upon request. Upon the completion of the Project the Contractor shall submit to the Project Manager one set of signed 400 and sealed As-Built Plans and PDF file on CD. These As-Built Plans shall delineate all revised information in bold notation and otherwise comply with the provisions of Art. 6., Sec. 402 E. (“As-Built Plans Requirements”) of this Contract.

Article 3: Interpretation and Intent Section A: Generally 406

The Project shall be constructed in accordance with the Contract Documents, specifically including but not limited to DOC-3: Supplemental Conditions/Special Provisions and DOC-408 5: Technical Provisions/Specifications as attached to Volume II: Project-Specific Information of the Bid Package, the Drawings, and the Specifications. 410

The County makes no representation or warranty of any nature whatsoever to the Contractor 412 concerning the Contract Documents. Such documents are complementary; what is called for by one is as binding as if called for by all. 414

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Work, materials, or equipment described in words which so applied have a well-known technical 416 or trade meaning shall be deemed to refer to such recognized standards. In case of conflict, the more stringent requirements shall take precedence and govern. 418

Duties and obligations imposed by this Contract and the rights and remedies available 420 hereunder, and, in particular but without limitation, the warrants, guarantees, and obligations imposed upon the Contractor and the rights and remedies available to the County thereunder 422 shall be in addition to and not a limitation of any otherwise imposed or available by law, by special guarantee, or other provisions of Contract Documents. 424

Section B: Request for Interpretation 426

If the Contractor finds a conflict, error, or discrepancy in the Contract Documents, it shall call it to the Project Manager's attention in writing before proceeding with the Work affected thereby. 428 Any work that may reasonably be inferred from the Specifications or Drawings as being required to produce the intended result shall be supplied regardless of whether it is specifically called for. 430

Written clarifications or interpretations (which shall be consistent with or reasonably inferable 432 from the Contract Documents) will be issued in response to a Contractor Request for Interpretation (“RFI”) or as the Project Manager or Professional may otherwise determine 434 necessary.

The County shall be provided with a reasonable amount of time, at least 10 business days, to respond to any RFI submitted by the Contractor. Any delay in responding to the RFI cannot be 438 used as a reason to make a claim for any additional compensation, including delay claims.

If the Contractor believes a written clarification or interpretation justifies an increase in Contract Amount or Contract Time, the Contractor shall make a claim for such increase in accordance 442 with Art. 6., Sec. J. (“Claims (Control of Work)”) of this Contract.

If the Contractor is authorized by the County to proceed with the Work involved before full agreement is reached on (1) whether any increases are due at all; or (2) the extent of any such 446 increases (if any are determined to be due), the Contractor shall furnish actual cost records to the Project Manager daily. 448

Section C: County’s Regulatory Authority 450

In the event that the County exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, laws, or 452 ordinances shall be deemed to have occurred pursuant to the County’s authority as a governmental body and shall not be attributable in any manner to the County as a party to this 454 Contract.

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Article 4: Contract Amount, Bonding, and Payment Section A: Contract Amount 458

1. Generally The County shall pay the Contractor in current funds, and in accordance with the progress460 payment schedule as stated herein, for the performance of the Work, subject to additions and deductions by Change Order as provided in the Contract Documents, the Contract462 Amount of $TBD at the unit prices set forth in EXH-8: Contractor’s Bid Response.

All measurements for payment shall be based on the completed work performed in strict accordance with Contract Documents. All work completed under this contract shall be466 measured by the Contractor or its representatives in the presence of the Project Manager.

2. Unit Price Contract

This is a Unit Price Contract, and the base bid is the sum of all Pay Item totals. The County470 reserves the right to correct errors in the Pay Item totals arising from incorrect extensions.

See Vol. I., Art. 1., Sec. G.2. (“Bid Errors”) of the Bid Package for more information.472

No price adjustments shall be made on this Contract to the bid price of any products or474 materials including but not limited to gasoline, diesel, or other fuels, or to bituminous materials, including asphalt, due to fluctuations in market prices, changes in suppliers, or for476 any other reason.

3. Maximum Contract Amount

The Contractor shall provide written notification to the County’s Project Manager when 90%480 of the total contract amount has been reached. The Contractor shall not proceed beyond 100% of the total Contract Amount unless duly authorized by a written change order.482

4. Estimated Quantities484

This Contract is based on estimated quantities. The contractor shall only be paid for materials installed in the work in accordance with the applicable unit prices for the specific work 486 element (line item). No payment shall be made for excess materials delivered to the jobsite and not incorporated into the work. Therefore, it shall be the contractor’s responsibility to 488 determine the quantities of materials necessary to perform the project to its completion.

5. Basis of Payment

In the event of conflict, each reference to Basis of Payment in the Specifications is hereby492 superseded by the conditions contained in DOC-5: Technical Provisions/Specifications and all other conditions related to Basis of Payment contained in Contract Documents, unless494 otherwise directed by the Project Manager.

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Section B: Bonding The bonding provisions and requirements of Vol. I., Art. 2., Sec. E. (“Bonding”) of the Bid498 Package are hereby incorporated into and serve as a material part of this Contract.

Additionally, if the Surety Company on any bond furnished by the Contractor is declared bankrupt, becomes insolvent, has its right to do business terminated in any State where any part 502 of the Project is located, or ceases to meet the requirements imposed by this Contract, the Contractor shall, within 5 days after such occurrence, substitute another Bond with another 504 Surety Company both of which shall comply with the applicable provisions of this Contract.

Section C: Payment

1. Pay Items508

The cost of all equipment, materials, and labor for temporary or permanent facilities necessary to construct the improvements identified in the plans, specifications, or other 510 Contact Documents shall be deemed to be included in the various items making up the Contract Amount. No separate payment shall be made to the Contractor for any such 512 equipment, materials and labor for which a separate Pay Item has not been provided. No adjustments shall be made on this contract to the bid price of any product or material, 514 including gasoline, diesel or other fuels, and bituminous materials, including asphalt, due to fluctuations in market prices, changes in suppliers, or any other reasons. 516

2. Progress Payments518

Based upon Applications for Payment submitted to the Project Manager by the Contractor and Certificates for Payment issued by the Project Manager the County shall make progress 520 payments on account of the Contract Amount to the Contractor as provided in the Contract Documents as follows: 522

Not later than 30 days following approval of an Application for Payment, 95% of the portion 524 of the Contract Amount properly allocable to labor, materials, and equipment incorporated in the Work and 95% of the portion of the Contract Amount properly allocable to materials and 526 equipment suitably stored at the Site or at some other location agreed upon in writing, for the period covered by the Application for Payment, less the aggregate of previous payments 528 made by the Owner.

When the completion of the Work ascertained as payable exceeds 50% of the total Contract Amount, the retainage percentage withheld may be reduced to less than 5%. Retainage 532 percentage less than 5% shall be determined by the Project Manager and authorized by written Change Order issued by the County. Upon Final Completion of the entire Work, a 534 sum sufficient to increase the total payments to 100% of the Contract Amount, less such amounts as the County shall determine for all incomplete work and unsettled claims as 536 provided in the Contract Documents.

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3. Schedule of Values The Contractor shall submit a Schedule of Values for the work including quantities and unit540 prices totaling the total Contract Amount prior to both receipt of the Notice to Proceed and commencing Work on the Project. The Schedule of Values shall be in a form satisfactory to542 the County.

The Schedule of Values shall subdivide the Work into sufficient detail to serve as the basis for progress payments during construction. Upon acceptance of the Schedule of Values by546 the Project Manager, it may be incorporated into the form of Application for Payment prescribed by the County.548

The Contractor shall not imbalance its Schedule of Values, nor shall it artificially inflate any550 element thereof. The violation of this provision by the Contractor shall constitute a material breach of this contract.552

4. Progress Schedule554

The Contractor’s Progress Schedule shall utilize the Critical Path Method (“CPM”). The Contractor’s Progress Schedule shall be prepared using software approved by the County; 556 the software shall be specifically intended for the preparation of construction schedules incorporating a critical path. The software used by the Contractor must be approved in 558 advance by the County. The Contractor shall submit a Progress Schedule CPM (both in hard printed copy with network diagrams and electronic disc files) prior to both receipt of the Notice 560 to Proceed and commencing Work on the Project.

The Progress Schedule CPM shall clearly identify all controlling items of Work and activities defined as the critical path, which if delayed or prolonged, will delay the time of completion 564 of the Contract. The critical path shall include a minimum 10% float time as part of the Contract Time for unforeseen conditions. The Contractor shall provide additional float time 566 above the required minimum 10% based on its experience, understanding of the scope, and inspection of the Site. 568

5. Progress Payment Update Schedules CPM570

If requested by the Project Manager, the Contractor shall submit an Update Schedule CPM to the Project Manager concurrent with each Application for Payment. The Update Schedule 572 CPM shall focus on the period from the last Update Schedule CPM to the current Update Schedule CPM submitted with the Application for Payment. Activities that have either started 574 or finished shall be reported as they actually occurred and designated as complete, if actually completed. For activities in progress that are forecasted to complete longer than planned, 576 the remaining durations shall be revised, not the original durations. All out of sequence activities shall be reviewed and their relationships either verified or changed. 578

The Contractor’s failure to submit a Progress Payment Schedule CPM and Progress 580 Payment Narrative Report when requested by the Project Manager, with an Application for Payment shall be sufficient reason for rejection of the Progress Payment request. 582

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If the Project Manager rejects the Progress Payment Update Schedule CPM or the Progress 584 Payment Narrative Report (as discussed below), the entire Progress Payment request shall be rejected and must be resubmitted with the corrected Progress Payment Update Schedule 586 CPM and Progress Payment Narrative Report.

6. Progress Payment Narrative Report

When requested by the Project Manager each Update Schedule CPM shall be accompanied590 by a written Narrative Report. The Narrative Report shall describe the physical progress during the report period, plans for continuing the Work during the forthcoming report period,592 actions planned to correct any delays, and a detailed explanation of potential delays or problems and their estimated impact on performance, milestone completion dates, the594 forecasted completion date, and the forecasted substantial completion date. In addition, alternatives for possible schedule recovery to mitigate any potential delays shall be596 discussed.

If required by the Project Manager, the Contractor’s Progress Payment Narrative Report shall include a detailed list of all outstanding Contract Claims with a detailed description of each600 Contract Claim. The Narrative Report shall follow the outline set forth below:

Contractor’s Narrative Report Outline:

A. Contractor’s dated transmittal letter.604

B. Work completed during the report period.

C. Description of the current critical path.606

D. Description of problem areas.

E. Current and anticipated delays:608

(1) Cause of the delay

(2) Corrective action and schedule adjustments to correct the delay.610

F. Impact of the delay on other activities, milestones, and completion dates. Changes in construction sequences.612

G. Pending items and status thereof:

(1) Permits.614

(2) Change orders.

(3) Time extensions.616

H. A list of all outstanding Contract Claims and a detailed description of each Contract Claim.

I. Contract completion date status:618

(1) Ahead of schedule and number of days.

(2) Behind schedule and number of days.620

Volume III: Draft Contract Page: 11 of 75

7. Schedule and Report Format622

The Contractor shall submit the Progress Schedule CPM, Progress Payment Update Schedules CPM, and the Progress Payment Narrative Report to the Project Manager on 624 both: (A) electronic disc files; and (B) printed copies of the network diagrams and narrative reports. 626

8. Project Manager Review628

The Project Manager will review the Contractor’s Progress Schedule CPM, Progress Payment Update Schedules CPM, and Progress Payment Narrative Reports. 630

The Project Manager may accept or reject Update Schedule CPMs or Narrative Reports. 632 Rejected Update Schedule CPMs and Narrative Reports shall be corrected and re-submitted to the Project Manager. 634

9. Final Schedule Update636

The Contractor within 15 days after Substantial Completion shall submit a final update of the schedule with actual start and actual finish dates for all activities and controlling items of 638 Work identified as the critical path (the “Final Schedule Update”). This Final Schedule Update shall be accompanied by a certification signed by the Contractor stating: 640

“To the best of my knowledge, the enclosed final update of the Progress 642 Schedule reflects the actual start and completion dates of the activities and controlling items of Work on the critical path.” 644

10. Application For Progress Payment646

Applications for Payment shall be processed in accordance with Sections 218.70 through 218.80, F.S., otherwise known as the Local Government Prompt Payment Act. 648

The Project Manager will provide written notice to the Contractor identifying the name, 650 address, phone number, and email address of the agent or employee the Contractor shall submit payment requests or invoices to. This notice will be provided no later than 10 days 652 after issuance of the Notice to Proceed.

Not more often than once a month, on a date established at the Project Pre Construction Conference, the Contractor may submit to the Project Manager for review the County's 656 standard Application for Payment form filled out and signed by the Contractor covering the Work completed as of the date of application and supported by such data as the Project 658 Manager may reasonably require.

If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the 662 Application for Payment shall also be accompanied by such supporting data, satisfactory to the Project Manager, as will establish the County's title to the material and equipment and 664 protect its interest therein, including applicable insurance, partial Consent of Surety, and detailed inventory listing of stored material. Each such request shall include the submittal by 666

Volume III: Draft Contract Page: 12 of 75 the Contractor of: (A) a detailed, itemized inventory listing the material stored at the Site for which payment is requested; (B) documentation to indicate and substantiate the cost or value 668 attributed to the items included in the stored material inventory list; and (C) the County's "Responsibility And Liability For Materials And Equipment Not Included In The Work" form 670 executed by the Contractor. Failure to provide proper supporting documentation may subject the Applicant for Payment to rejection. 672

All progress payments will be subject to the retainage percentage specified in the Contract 674 Documents that will be issued in the final payment after acceptance by the County of the Work. 676

Based upon Applications for Payment submitted to the Project Manager by the Contractor 678 and Certificates for Payment issued by the Project Manager, the County will make progress payments on account of the Contract Amount to the Contractor as provided in the Contract 680 Documents as follows:

In the timeframes outlined in Section 218.735(2), F.S., 95% of the portion of the Contract Amount properly allocable to labor, materials and equipment incorporated in the Work and 684 95% of the portion of the Contract Amount properly allocable to materials and equipment suitably stored at the site or at some other location agreed upon in writing, for the period 686 covered by the application for payment, less the aggregate of previous payments made by the Owner. When the completion of the Work ascertained as payable exceeds 50% of the 688 total contract amount the retainage percentage withheld may be reduced to less than 5%.

Upon Final Completion of the entire Work, a sum sufficient to increase the total payments to 100% of the Contract Amount, less such amounts as the Owner shall determine for all 692 incomplete work and unsettled claims as provided in the Contract Documents.

The Contractor may, at the discretion of the County's Project Manager, be required to have applications for Progress Payments accompanied by a written Consent of Surety to Partial 696 Payment. The Contractor shall include the following certification on each Application for Progress Payments and the Application for Final Payment: 698

"The undersigned Contractor certifies that the Work covered by this Application 700 for Payment has been done or completed in accordance with the Contract Documents, that all amounts have been paid by Contractor for work, supplies, 702 materials, or equipment for which previous Certificates for Payment were issued, and that the current payment shown herein is now due". 704

11. Contractor's Warranty of Title706

The Contractor warrants and guarantees that title to all work, materials, and equipment covered by an Application for Payment, whether incorporated in the Project or not, has 708 passed to the County prior to the making of the Application for Payment, free and clear of all liens, claims, security interests, and encumbrances; and that no work, materials, or 710

Volume III: Draft Contract Page: 13 of 75 equipment covered by an Application for Payment is in any manner encumbered or has any interest retained therein by the seller, the Contractor, or any other person or entity. 712

12. Approval of Payments714

The Project Manager will, within 20 business days after receipt of each Application for Payment, either indicate their approval of payment or return such application to the 716 Contractor indicating in writing the reason for refusing to approve payment. In the latter case, the Contractor may make the necessary corrections and re-submit the Application for 718 Payment. The County will pay the Contractor the amount approved within the time frame set forth in the Local Government Prompt Payment Act. 720

In the event the Contractor and the Project Manager do not achieve mutual agreement on 722 the basis or amount of the payment, and should the Contractor be unwilling to make the necessary corrections or modifications and re-submit the Application, then the County, to 724 avoid delay in paying the Contractor the amount the County has determined the Contractor is entitled to receive, shall approve and process the Application for Payment by making such 726 adjustments thereto as the County deems appropriate to pay the Contractor only for the amounts not in dispute. 728

In the event a dispute arises involving payments or invoices that have been rejected by the 730 Project Manager and resubmitted by the Contractor and that cannot be resolved in accordance with Section 218.735(3), F.S., the Orange County Payment/Invoice Disputes 732 Resolution Process Procedures shall be used the resolve the dispute. Such procedures may be obtained by contacting the Procurement Division at (407)-836-5635. 734

The Project Manager's approval of any payment requested in an Application for Payment 736 shall constitute a representation by them to the County that, based on the Project Manager's on site observations of the Work in progress and on their review of the application for 738 payment and the supporting data, the Work has progressed to the point indicated; that, to the best of their knowledge, information, and belief, the quality of the Work is in accordance 740 with the Contract Documents (subject to an evaluation of the Work as a functioning Project upon Substantial Completion, to the results of any subsequent tests called for in their 742 approval); and that the Contractor is entitled to payment of the amount approved.

However, by approving any such payment, the Project Manager will not thereby be deemed to have represented that they made exhaustive or continuous on-Site inspections to…