Item C31
. Revised 1/91
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 2-16-00
Division:
Public Works
Bulk Item: Yes X
No
Department: Enqineerinq
AGENDA ITEM WORDING: Approval of contract with community Asphalt for
Sugar loaf Blvd. Paved Pathway, and authorization for Mayor to execute same.
ITEM BACKGROUND: This project is on our Seven Year Road and Bicycle Path
Plan.
PREVIOUS RELEVANT BOCC ACTION: Several years ago the BOCC asked for this
project to be included in our Seven Year Plan. The latest plan, approved by
the BOCC on January 19, 2000, includes this project this fiscal year. A
budget of $300,000 has been established.
STAFF RECOMMENDATION: Approval as stated above.
TOTAL COST: $234.268.80
BUDGETED: Yes X No
Transportation-Impact Fees will
reimburse gas tax revenue.
COST TO COUNTY: $234.268.80
REVENUE PRODUCING:Yes
No X AMOUNT PER MONTH
YEAR
Item Prepared By:
ng ___ Risk Management___
APPROVED BY: county Atty ___
County
nqinee~~q
Dent pierce
Department
,.,,/ ""- J U 0
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included:~ To Follow:
Not Required: ___
Agenda Item #: l"('il
DISPOSITION:
MO~~OE COUNTY BOARD OF COUNTY COM1\fiSSIONERS
CONTRACT SUMMARY
Contract #
Contract with: (I')m 111/1 r11 '-Ij.....iJ ~ ~ 1-1- Effective Date: _,_,_
Expiration Date:_'_'_
Contract PurposelDescription: (70t1~+ruL-h~~ /"If' ,<;t~jo.r-/oQF (3nu/p{}Qrd
?out.d ~'1{.WQY D^ 51A..5arIDc.{' ~ ..!:/
Contract Manager: ~ ~""- 1f'1"O'Ss#......
J ~8IDe)
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(EXI. )
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G:"II\SI(\ee.r. ~
(Department)
Agenda Deadline:..:lJ '2.. , 0 0
~NTRAcr COSTS .
Total Dollar Value of Contract: $23 Zc, g . ~ Current Year Portion: $
BUdgeted? Yes v No Account Codes: Ib2 - 2.'2.5"0(0 - 5~o - {n~C -Kq'g~3C
Grant: $
County Match: $
Estimated Ongoing Costs: $
(Not iDcluded in dollar value above)
ADDmONAL COSTS
'yr For:
(eg. mainteDanc:e. utilities. janitorial. salaries. etC.)
CONTRACT REVIEW
Changes
Date In Needed Reviewer
/ Yes No n f\
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SECTION 00500
FIXED PRICE CONTRACT BElWEEN OWNER AND CONTRACTOR
THIS AGREEMENT is made by and between Monroe County, 5100 College Road,
Stock Island, Key West, Florida 33040 (hereinafter referred to as "owner") and Community
Asphalt (hereinafter referred to as "contractor") for construction of SUGARLOAF
BOULEV ARD PAVED P A THW A y, SUGARLOAF KEY, (hereinafter referred to as the
"Project"), the owner and the contractor hereby agreeing as follows:
ARTICLE I
THE CONTRACT AND THE CONTRACT DOCUMENTS
1.1 The Contract
1.1.1 The contract between the owner and the contractor, of which this agreement is a part,
consists of the contract documents. It shall be effective on the date this agreement is
executed by the last party to execute it.
1.2 The Contract Documents
1.2.1 The contract documents consist of this agreement, the Request for Bid, the
Conditions of the Contract, the General Requirements, the Technical Specifications, the
drawings provided by the Contractor, all change orders, any addenda and field orders
issued hereafter, any other amendments hereto executed by the parties after the execution
of this Agreement. Documents not enumerated in this paragraph 1.2.1 are not contract
documents and do not form part of this contract.
1.3 Entire Agreement
1.3.1 This contract, together with the contractor's public construction bond for the Project,
constitute the entire and exclusive agreement between the owner and the contractor with
reference to the Project. Specifically, but without limitation, this contract supersedes any
bid documents and all prior written or oral communications, representations and
negotiations, if any, between the owner and contractor.
1.4 No Privity with Others
1.4.1 Nothing contained in this contract shall create, or be interpreted to create, privity or
any other contractual agreement between the owner and any person or entity other than the
contractor.
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FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500- 1
1.5 Intent and Interpretation
1.5.1 The intent of this contract is to require complete, correct and timely execution of the
work. Any work that may be required, implied or inferred by the contract documents, or
anyone or more of them, as necessary to produce the intended result shall be provided by
the contractor for the contract price.
1.5.2 This contract is intended to be an integral whole and shall be interpreted as internally
consistent. What is required by anyone contract document shall be considered as required
by the county commissioners.
1.5.3 When a word, term or phrase is used in this contract, it shall be interpreted or
construed, first, as defined herein, second, if not defined, according to its generally accepted
meaning in the construction industry; and third, if there is no generally accepted meaning
in the construction industry, according to its common and customary usage.
1.5.4 The words "include," "includes," or "including," as used in this contract, shall be
deemed to be followed by the phrase, "without limitation."
1.5.5 The specification herein of any act, failure, refusal, omission, event, occurrence or
condition as constituting a material breach of this contract shall not imply that any other,
nonspecific act, failure, refusal, omission, event, occurrence or condition shall be deemed
not to constitute a material breach of this contract.
1.5.6 Words or terms used as nouns in this contract shall be inclusive of their singular and
plural forms, unless the context of their usage clearly requires a contrary meaning.
1.5.7 The contractor shall have a continuing duty to read, carefully study and compare
each of the contract documents, the shop drawings and the product data and shall give
written notice to the owner of any inconsistency, ambiguity, error or omission which the
contractor may discover with respect to these documents before proceeding with the
affected work. The issuance, or the express or implied approval by the owner of the
contract documents, shop drawings or product data shall not relieve the contractor of the
continuing duties imposed hereby, nor shall any such approval be evidence of the
contractor's compliance with this contract.
1.5.8 Neither the organization of any of the contract document into divisions, sections,
paragraphs, articles (or other categories), nor the organization or arrangement of the design,
shall control the contractor in dividing the work or in establishing the extent or scope of the
work to be performed by subcontractors.
1/25100
FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-2
1.6 Ownership of Contract Documents
1.6.1 The contract documents, and each of them, shall remain the property of the owner.
The contractor shall have the right to keep one record set of the contract documents upon
completion of the project; provided, however, that in no event shall contractor use, or
permit to be used, any or all of such contract documents on other projects without the
owner's prior written authorization.
ARTICLE II
THE WORK
2.1 The contractor shall perform all of the work required, implied or reasonably inferable
from, this contract.
2.2 The term "work" shall mean whatever is done by or required of the contractor to
perform and complete its duties under this contract, including the following: construction
and design of the whole project; furnishing of any required surety bonds and insurance;
and the provision or furnishing of labor, supervision, services, materials, supplies,
equipment, fixtures, appliances, facilities, tools, transportation, storage, power, the payment
of any applicable sales and use taxes; royalties and product license fees; permits and
licenses required of the contractor, fuel, heat, light, cooling and all other utilities as required
by this contract. The work to be performed by the contractor is generally described as
follows:SUGARLOAF BOULEVARD PAVED P ATHW A y.
ARTICLE III
CONTRACT TIME
3.1 Time and Liquidated Damages
3.1.1 The contractor shall commence work to be performed under this Contract no later
than ten (10) calendar days from Notice to Proceed and shall be substantially completed no
later than one hundred twenty (120)calendar days from the Commencement Date. The
Contractor also agrees to be complete and ready for final payment no later than thirty (30)
calendar days from the Substantial Completion Date.
3.1.2 The Owner and the Contractor recognize that time is of the essence in this Contract
and that the Owner will suffer financial loss if the Work is not completed within the times
specified above. They also recognize the delays, expense and difficulties involved in
proving in a legal proceeding the actual loss suffered by Owner if the Work is not
completed on time. Accordingly, instead of requiring such proof, Owner and Contractor
agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay
Owner two-hundred dollars ($200.00) for each day that expires after the time specified
above for Substantial Completion until the Work is substantially complete.
1/25/00
FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-3
3.1.3 The Owner and Contractor agree that work on the project will be continuous from
the commencement date through to the completion date. Any demobilization once work
has started requires prior approval by the Owner.
3.2 Substantial Completion
3.2.1 "Substantial Completion" shall mean that stage in the progression of the work when
the work is sufficiently complete in accordance with this contract that the owner can enjoy
beneficial use or occupancy of the work and can utilize the work for its intended purpose.
Substantial Completion shall be determined by the County Engineer.
3.3 Time is of the Essence
3.3.1 All limitation of time set forth in the contract documents are of the essence of this
contract.
ARTICLE IV
CONTRACT PRICE
4.1 The Contract Price
4.1.1 The owner shall pay, and the contractor shall accept, as full and complete payment
for all of the work required herein, the fixed sum of $ 234,268.80. The sum set forth in this
paragraph 4.1 shall constitute the contract price which shall not be modified except by
change order as provided in this contract.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 Schedule of Values
5.1.1 Within ten (10) calendar days of the effective date hereof, the contractor shall submit
to the owner and to the County Engineer a schedule of values allocating the contract price
to the various portions of the work. The contractor's schedule of values shall be prepared in
such form, with such detail, and supported by such data as the County Engineer or owner
may require to substantiate its accuracy. The contractor shall not imbalance its schedule of
values nor artificially inflate any element thereof. The violation of this provision by the
contractor shall constitute a material breach of this contract. The schedule of values shall be
used only as a basis for the contractor's applications for payment and shall only constitute
such basis after it has been acknowledged in writing by the County Engineer and the
owner.
5.2 Payment Procedure
5.2.1 The owner shall pay the contract price to the contractor as provided below.
5.2.2 Progress Payments - Based upon the contractor's applications for payment and upon
certificates for payment subsequently issued to the owner, the owner shall make progress
payments to the contractor on account of the contract price.
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FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-4
5.2.3 Thirty days after commencement of the work, and every thirty days thereafter until
completion of the project, the contractor may submit an application for payment to the
County Engineer in such form and manner, and with such supporting data and content, as
the owner or the County Engineer may require. Therein, the contractor may request
payment for ninety percent (90%) of that portion of the contract price properly allocable to
contract requirements properly provided, labor, materials and equipment properly
incorporated in the work plus ninety percent (90%) of that portion of the contract price
properly allocable to materials or equipment properly stored onsite (or elsewhere if
approved in advance in writing by the owner) for subsequent incorporation in the work,
less the total amount of previous payments received from the owner. Payment for stored
materials and equipment shall be conditioned upon the contractor's proof satisfactory to the
owner, that the owner has title to such materials and equipment and shall include proof of
required insurance. Such application for payment shall be signed by the contractor and
shall constitute the contractor's representation that the work has progressed to the level for
which payment is requested in accordance with the schedule of values, that the work has
been properly installed or performed in full accordance with this contract, and that the
contractor knows of no reason why payment should not be made as requested. Thereafter,
the County Engineer will review the application for payment and may also review the work
at the project site or elsewhere to determine whether the quantity and quality of the work is
as represented in the application for payment and is as required by this contract. The
County Engineer shall determine and certify to the owner the amount properly owing to
the contractor. The owner shall make partial payments on account of the contract price to
the contractor within twenty (20) days following the receipt by Monroe County Engineer, of
each application for payment. The amount of each partial payment shall be the amount
certified for payment by the County Engineer less such amounts, if any, otherwise owing by
the contractor to the owner or which the owner shall have the right to withhold as
authorized by this contract. The County Engineer's certification of the contractor's
application for payment shall not preclude the owner from the exercise of any of its rights
as set forth in paragraph 5.3 hereinbelow.
5.2.4 The contractor warrants that all payments to subcontractors have been made as
certified on the application for payment and that title to all work covered by an application
for payment will pass to the owner no later than the time of payment. The contractor
further warrants that upon submittal of an application for payment, all work for which
payments have been received from the owner shall be free and clear of liens, claims,
security interest 01' other encumbrances in favor of the contractor or any other person or
entity whatsoever.
5.2.5 The contractor shall promptly pay each subcontractor, out of the amount paid to the
contractor on account of such subcontractor's work, the amount to which such
subcontractor is entitled. If the contractor does not pay the subcontractor the amount due,
the subcontractor may only seek payment from the contractor's public construction bond
surety. In no event is the owner obligated to pay any subcontractor an amount owed to it
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FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-5
by the contractor. Language similar to this paragraph 5.2.5 must appear in all contracts
between the contractor and its subcontractors.
5.2.6 No progress payment, nor any use or occupancy of the project by the owner, shall be
interpreted to constitute an acceptance of any work not in strict accordance with this
contract.
5.3 Withheld Payment
5.3.1 The owner may decline to make payment, may withhold funds, and, if necessary,
may demand the return of some or all of the amounts previously paid to the contractor, to
protect the owner from loss because of:
(a) defective work not remedied by the contractor nor, in the opinion of the
owner, likely to be remedied by the contractor;
(b) claims of third parties against the owner or the owner's property;
(c) failure by the contractor to pay subcontractors or others in a prompt and
proper fashion;
(d) evidence that the balance of the work cannot be completed in accordance with
the contract for the unpaid balance of the contract price;
(e) evidence that the work will not be completed in the time required for
substantial or final completion;
(f) persistent failure to carry out the work in accordance with the contract;
(g) damage to the owner or a third party to whom the owner is, or may be, liable.
In the event that the owner makes written demand upon the contractor for amounts
previously paid by the owner as contemplated in this subparagraph 5.3.1, the contractor
shall promptly comply with such demand.
5.4 Unexcused Failure to Pay
5.4.1 If within twenty (20) days after the date established herein for payment to the
contractor by the owner, the owner, without cause or basis hereunder, fails to pay the
contractor any amount then due and payable to the contractor, then the contractor may
after seven (7) additional days' written notice to the owner and the County Engineer, and
without prejudice to any other available rights or remedies it may have, stop the work until
payment of those amounts due from the owner have been received.
1/25/00
FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-6
5.5 Substantial Completion
5.5.1 When the contractor believes that the work is substantially complete, the contractor
shall submit written notice that the project is ready for substantial completion inspection.
The County Engineer, on the basis of contractor's notice, shall determine that the work is in
fact substantially complete. The County Engineer will prepare a certificate of substantial
completion which shall establish the date of substantial completion, shall state the
responsibilities of the contractor for project security, maintenance, utilities, damage to the
work, and insurance, and shall fix the time within which the contractor shall complete the
items listed therein. The certificate of substantial completion shall be submitted to the
contractor for written acceptance of the responsibilities assigned to them in such certificate.
Upon substantial completion of the work and execution by both the owner and the
contractor of the certificate of substantial completion, the owner shall pay the contractor an
amount sufficient to increase total payments to the contractor to one hundred percent
(100%) of the contract price less five percent (5%) retention and less three hundred percent
(300%) of the reasonable cost as determined by the owner and the County Engineer for
completing all incomplete work, correcting and bringing into conformance all defective and
nonconforming work, and handling all unsettled claims. The certificate of substantial
completion shall not be signed by the County Engineer unless accompanied by a signed
certificate of occupancy from all governing authorities.
5.6 Completion and Final Payment
5.6.1 When all of the work is finally complete and the contractor is ready for a final
inspection, it shall notify the owner thereof in writing. Thereupon, the County Engineer
will make final inspection of the work and, if work is complete in full accordance with this
contract and this contract has been fully performed, the County Engineer will promptly
issue a final certificate for payment certifying to the owner that the project is complete and
the contractor is entitled to the remainder of the unpaid contract price, less any amount
withheld pursuant to this contract. Guarantees required by the contract shall commence on
the date of final completion of the work. If the County Engineer is unable to issue its final
certificate for payment and is required to repeat its final inspection of the work, the
contractor shall bear the cost of such repeat final inspection(s) which cost may be deducted
by the owner from the contractor's final payment.
5.6.1.1 If the contractor fails to achieve final completion within the time fixed therefor by the
County Engineer in its certificate of substantial completion, the contractor shall pay the
owner the sum of two-hundred dollars per day for each and every calendar day of
unexcused delay in achieving final completion beyond the date set forth herein for final
completion of the work. Any sums due and payable hereunder by the contractor shall be
payable, not as a penalty, but as liquidated damages representing an estimate of delay
damages likely to be sustained by the owner, estimated at or before the time of executing
this contract. When the owner reasonably believes that final completion will be inexcusably
delayed, the owner shall be entitled, but not required, to withhold from any amounts
otherwise due the contractor an amount then believed by the owner to be adequate to
recover liquidated damages applicable to such delays. If and when the contractor
1/25/00
FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-7
overcomes the delay in achieving final completion, or any part thereof, for which the owner
has withheld payment, the owner shall promptly release to the contractor those funds
withheld, but no longer applicable, as liquidated damages.
5.6.2 The contractor shall not be entitled to final payment unless and until it submits to the
County Engineer its affidavit that all payrolls, invoices for materials and equipment, and
other liabilities connected with the work for which the owner, or the owner's property
might be responsible, have been fully paid or otherwise satisfied; releases and waivers of
lien from all subcontractors of the contractor and of any and all parties required by the
owner; and the consent of surety to final payment. The affidavits, releases and waivers
required from subcontractors and materialmen are for the administrative convenience of the
owner only. They do not create an obligation on the part of the owner to assure that any
subcontractor or materialman is paid. If unpaid, subcontractors and materialmen must seek
payment from the contractor's public construction bond surety.
5.6.3 The owner shall make final payment of all sums due the contractor per Section 01027
of the Technical Specifications Project Manual.
5.6.4 Acceptance of final payment shall constitute a waiver of all claims against the owner
by the contractor except for those claims previously made in writing against the owner by
the contractor, pending at the time of final payment, and identified in writing by the
contractor as unsettled at the time of its request for final payment.
ARTICLE VI
THE OWNER
6.1 Information and Services Required from Owner
6.1.1 The owner shall furnish to the contractor, at the time of executing this contract, any
and all written and tangible material in its possession concerning conditions below ground
at the site of the project. Such written and tangible material is furnished to the contractor
only in order to make complete disclosure of such material and for no other purpose. By
furnishing such material, the owner does not represent, warrant, or guarantee its accuracy
either in whole, in part, implicitly or explicitly, or at all, and shall have no liability therefor.
The owner shall also furnish surveys, legal limitations and utility locations (if known), and a
legal description of the project site.
6.1.2 Excluding fees normally the responsibility of the contractor, the owner shall obtain
all permits, approvals, easements, and the like required for construction and shall pay for
necessary assessments and charges required for construction, use or occupancy of
permanent structures or for permanent changes in existing facilities.
6.1.3 The owner shall furnish the contractor, free of charge, ~copies of the contract
documents for execution of the work. The contractor will be charged, and shall pay the
owner, $ 25.00 per additional set of contract documents which it may require.
1/25/00
FIXED PRICE CONTRACT BETWEEN OWNER AND CONTRACTOR
00500-8
6.2 Right to Stop Work
6.2.1 If the contractor persistently fails or refuses to perform the work in accordance with
this contract, the owner may order the contractor tostop the work, or any described portion
thereof, until the cause for stoppage has been corrected, no longer exists, or the owner
orders that work be resumed, in such event, the contractor shall immediately obey such
order.
6.3 Owner's Right to Perform Work
6.3.1 If the contractor's work is stopped by the owner under paragraph 6.2, and the
contractor fails within three (3) days of such stoppage to provide adequate assurance to the
owner that the cause of such stoppage will be eliminated or corrected, then the owner may,
without prejudice to any other rights or remedies the owner may have against the
contractor, proceed to carry out the subject work. In such a situation, an appropriate
change order shall be issued deducting from the contract price the cost of correcting the
subject deficiencies. If the unpaid portion of the contract price is insufficient to cover the
amount due the owner, the contractor shall pay the difference to the owner.
ARTICLE VII
THE CONTRACTOR
7.1 The contractor is again reminded of its continuing duty set forth in
subparagraph 1.5.7. The contractor shall perform no part of the work at any time without
adequate contract documents or, as appropriate, approved shop drawings, product data or
samples for such portion of the work. If the contractor performs any of the work knowing it
involves a recognized error, inconsistency or omission in the contract documents without
such notice to the County Engineer, the contractor shall bear responsibility for such
performance and shall bear the cost of correction.
7.2 The contractor shall perform the work strictly in accordance with this contract.
7.3 The contractor shall supervise and direct the work using the contractor's best skill,
effort and attention. The contractor shall be responsible to the owner for any and all acts or
omissions of the contractor, its employees and others engaged in the work on behalf of the
contractor.
7.4 The contractor shall provide competent, suitably qualified personnel to survey and
layout the Work and perform construction as required by the Contract Documents.
Contractor shall at all times maintain good discipline and order at the site. Except in
connection with the safety or protection of persons or the Work or property at the site or
adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at
the site shall be performed during regular working hours, and contractor shall not permit
overtime work or the performance of Work on Saturday, Sunday or any legal holiday
without Owner's written consent given after prior written notice to County Engineer.
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7.5 Warranty
7.5.1 The contractor warrants to the owner that all labor furnished to progress the work
under this contract will be competent to perform the tasks undertaken, that the product of
such labor will yield only first-class results, that materials and equipment furnished will be
of good quality and new unless otherwise permitted by this contract, and that the work will
be of good quality, free from faults and defects and in strict conformance with this contract.
All work not conforming to these requirements may be considered defective.
7.6 The contractor shall obtain and pay for all fees and licenses necessary and ordinary
for the work. The contractor shall secure and pay for all licenses, inspections and surveys
required by Federal, State, or Municipal bodies having jurisdiction over the project for the
proper execution and completion of the work which are customarily secured after execution
of the contract and which are legally required at the time bids are received. The contractor
shall comply with all lawful requirements applicable to the work and shall give and
maintain any and all notices required by applicable law pertaining to the work.
7.7 Supervision
7.7.1 The contractor shall employ and maintain at the project site only competent
supervisory personnel. Absent written instruction from the contractor to the contrary, the
superintendent shall be deemed the contractor's authorized representative at the site and
shall be authorized to receive and accept any and all communications from the owner or the
County Engineer.
7.7.2 Key supervisory personnel assigned by the contractor to this project shall be
furnished in writing at the preconstruction meeting.
7.8 The contractor, within fifteen (15) days of commencing the work, shall submit to the
owner and the County Engineer for their information the following:
7.8.1 The contractor's schedule for completing the work. The contractor's schedule shall
be revised no less frequently than monthly (unless the parties otherwise agree in writing)
and shall be revised to reflect conditions encountered from time to time and shall be related
to the entire project. Each such revision shall be furnished to the owner and the County
Engineer. Failure by the contractor to strictly comply with the provisions of this paragraph
shall constitute a material breach of this contract.
7.8.2 A preliminary schedule of shop drawing submissions.
7.8.3 A preliminary schedule of values for all of the Work which will include quantities
and prices of items aggregating the Contract Price and will subdivide the Work into
component parts in sufficient detail to serve as the basis for progress payments during
construction. Such prices will include an appropriate amount of overhead and profit
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applicable to each item of Work which will be confirmed in writing by CONTRACTOR at
the time of submission.
7.9 The contractor shall continuously maintain at the site, for the benefit of the owner
and the County Engineer, one record copy of this contract marked to record on a current
basis changes, selections and modifications made during construction. Additionally, the
contractor shall maintain at the site for the owner and the County Engineer the approved
shop drawings, product data, samples, other similar required submittals and an office for
their use. Upon final completion of the work, all of these record documents shall be
delivered to the owner.
7.10, Shop Drawings, Product Data and Samples
7.10.1 Shop drawings, product data, samples and other submittals from the contractor do
not constitute contract documents. Their purpose is merely to demonstrate the manner in
which the contractor intends to implement the work in conformance with information
received from the contract documents.
7.10.2 The contractor shall not perform any portion of the work requiring submittal and
review of shop drawings, product data or samples unless and until such submittal shall
have been approved by the County Engineer. Approval by the County Engineer, however,
shall not be evidence that work installed pursuant thereto conforms with the requirements
of this contract.
7.11 Cleaning the Site and the Project
7.11.1 The contractor shall keep the site reasonably clean during performance of the work.
Upon final completion of the work, the contractor shall clean the site and the project and
remove all waste, together with all of the contractor's property therefrom.
7.12 Access to Work
7.12.1 The owner and the County Engineer shall have access to the work at all times from
commencement of the work through final completion. The contractor shall take whatever
steps necessary to provide access when requested.
7.13 Indemnity
7.13.1 To the fullest extent permitted by law, the contractor shall indemnify and hold
harmless the owner from and against liability, claims, damages, losses and expenses,
including attorneys' fees, arising out of or resulting from performance of the work,
provided that such liability, claims, damage, loss or expense is attributable to bodily injury,
sickness, disease or death, or to injury to or destruction of tangible property (other than the
work itself) including loss of use resulting therefrom, but only to the extent caused in whole
or in part by negligent acts or omissions of the contractor, a subcontractor, anyone directly
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or indirectly employed by them or anyone for whose acts they may be liable, regardless of
whether or not such liability, claim, damage, loss or expense is caused in part by a party
indemnified hereunder. The indemnification required by this paragraph 7.13 is
independent of the contractor's obligation to purchase the insurance described in
Article XIII and is not limited or modified by the terms of those insurance policies.
7.13.2 In claims against any person or entity indemnified under this paragraph 7.13 by an
employee of the contractor, a subcontractor, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the indemnification obligation under this
paragraph 7.13 shall not be limited by a limitation on amount or type of damage,
compensation or benefits payable by or for the contractor or a subcontractor under workers'
compensation acts, disability benefit acts or other employee benefit acts.
7.13.3 The contractor shall defend suits or claims for infringement of patent rights and shall
hold the owner and County Engineer harmless from loss on account thereof, but shall not
be responsible for such defense or loss when a particular design, process or product of a
particular manufacturer or manufacturers is required by the contract. However, if the
contractor has reason to believe that the required design, process or product is an
infringement of a patent, the contractor shall be responsible for such loss unless such
information is promptly furnished to the County Engineer.
ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 Claims by the Contractor
8.1.1 All contractor claims shall be initiated by written notice and claim to the owner and
the County Engineer. Such written notice and claim must be furnished within three (3)
days after occurrence of the event, or the first appearance of the condition, giving rise to the
claim.
8.1.2 Pending final resolution of any claim of the contractor, the contractor shall diligently
proceed with performance of this contract and the owner shall continue to make payments
to the contractor in accordance with this contract. The resolution of any claim under this
paragraph 8.1 shall be reflected by a change order executed by the owner, the County
Engineer and the contractor.
8.1.3 Claims for Additional Costs - If the contractor wishes to make a claim for an increase
in the contract price, as a condition precedent to any liability of the owner therefor, the
contractor shall give the County Engineer written notice of such claim within three (3) days
after the occurrence of the event, or the first appearance of the condition, giving rise to such
claim. Such notice shall be given by the contractor before proceeding to execute any
additional or changed work. The failure by the contractor to give such notice and to give
such notice prior to executing the work shall constitute a waiver of any claim for additional
compensation.
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8.1.3.1 In connection with any claim by the contractor against the owner for compensation
in excess of the contract price, any liability of the owner for the contractor's costs shall be
strictly limited to direct costs incurred by the contractor and shall in no event include
indirect costs or consequential damages to the contractor. The owner shall not be liable to
the contractor for claims of third parties, including subcontractors, unless and until liability
of the contractor has been established therefor in a court of competent jurisdiction.
8.1.4 Claims for Additional Time-If the contractor is delayed in progressing any task
which at the time of the delay is then critical or which during the delay becomes critical, as
the sole result of any act or neglect to act by the owner or someone acting on the owner's
behalf, or by changes ordered in the work, unusual delay in transportation, unusually
adverse weather conditions not reasonably anticipatable, fire or any causes beyond the
contractor's control, then the date for achieving substantial completion of the work shall be
extended upon the written notice and claim of the contractor to the owner and the County
Engineer, for such reasonable time as the County Engineer may determine. Any notice and
claim for an extension of time by the contractor shall be made not more than three (3) days
after the occurrence of the event or the first appearance of the condition giving rise to the
claim and shall set forth in detail the contractor's basis for requiring additional time in
which to complete the project. In the event the delay to the contractor is a continuing one,
only one notice and claim for additional time shall be necessary. If the contractor fails to
make such claim as required in this subparagraph, any claim for an extension of time shall
be waived. In no event is the contractor entitled to additional compensation for any delay
described in this paragraph 8.1.4 or other paragraphs.
8.2 Field Orders
8.2.1 The County Engineer shall have authority to order minor changes in the work not
involving a change in the contract price or in contract time and not inconsistent with the
intent of the contract. Such changes shall be effected by field order and shall be binding
upon the contractor. The contractor shall carry out such field orders promptly.
ARTICLE IX
SUBCONTRACTORS
9.1 Definition
9.1.1 A subcontractor is an entity that has a direct contract with the contractor to perform a
portion of the work.
9.2 Award of Subcontracts
9.2.1 Upon execution of the contract, the contractor shall furnish the owner in writing, the
names of persons or entities proposed by the contractor to act as a subcontractor on the
project. The owner shall promptly reply to the contractor, in writing, stating any objections
the owner may have to such proposed subcontractor. The contractor shall not enter into a
subcontract with a proposed subcontractor with reference to whom the owner has made
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timely objection. The contractor shall not be required to subcontract with any party to
whom the contractor has objection.
9.2.2 All subcontracts shall afford the contractor rights against the subcontractor which
correspond to those rights afforded to the owner against the contractor herein, including
those rights afforded to the owner by subparagraph 12.2.1 below.
ARTICLE X
CHANGES IN THE WORK
10.1 Changes Permitted
10.1.1 Changes in the work within the general scope of this contract, consisting of
additions, deletions, revisions, or any combination thereof, may be ordered without
invalidating this contract, by change order or by field order.
10.1.2 Changes in the work shall be performed under applicable provisions of this contract
and the contractor shall proceed promptly with such changes.
10.2 Change Order Defined
10.2.1 Change order shall mean a written order to the contractor executed by the owner
and the County Engineer, issued after execution of this contract, authorizing and directing a
change in the work or an adjustment in the contract price or the contract time, or any
combination thereof. The contract price and the contract time may be changed only by
change order.
10.3 Changes in the Contract Price
10.3.1 Any change in the contract price resulting from a change order shall be determined
as follows: (a) by mutual agreement between the owner and the contractor as evidenced by
(1) the change in the contract price being set forth in the change order, (2) such change in the
contract price, together with any conditions or requirements related thereof, being initialed
by both parties and (3) the contractor's execution of the change order; or (b) if no mutual
agreement occurs between the owner and the contractor, then, as provided in
subparagraph 10.3.2 below.
10.3.2 If no mutual agreement occurs between the owner and the contractor as
contemplated in subparagraph 10.3.1 above, the change in the contract price, if any, shall
then be determined by the County Engineer on the basis of the reasonable expenditures or
savings of those performing, deleting or revising the work attributable to the change,
including, in the case of an increase or decrease in the contract price, an allowance for direct
job site overhead of 5%, and profit 5%.
10.3.3 If unit prices are provided in the contract, and if the quantities contemplated are so
changed in a proposed change order that application of such unit prices to the quantities of
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work proposed will cause substantial inequity to the owner or to the contractor, the
applicable unit prices shall be equitably adjusted.
10.4 Minor Changes
10.4.1 The County Engineer shall have authority to order minor changes in the work not
involving a change in the contract price or an extension of the contract time and not
inconsistent with the intent of this contract. Such minor changes shall be made by written
field order, and shall be binding upon the owner and the contractor. The contractor shall
promptly carry out such written field orders.
10.5 Effect of Executed Change Order
10.5.1 The execution of a change order by the contractor shall constitute conclusive
evidence of the contractor's agreement to the ordered changes in the work, this contract as
thus amended, the contract price and the contract time. The contractor, by executing the
change order, waives and forever releases any claim against the owner for additional time
or compensation for matters relating to or arising out of or resulting from the work
included within or affected by the executed change order.
10.6 Notice to Surety; Consent
10.6.1 The contractor shall notify and obtain the consent and approval of the contractor's
surety with reference to all change orders if such notice, consent or approval is required by
the contractor's surety or by law. The contractor's execution of the change order shall
constitute the contractor's warranty to the owner that the surety has been notified of, and
consents to, such change order and the surety shall be conclusively deemed to have been
notified of such change order and to have expressly consented thereto.
ARTICLE XI
UNCOVERING AND CORRECTING WORK
11.1 Uncovering Work
11.1.1 If any of the work is covered contrary to the County Engineer's request or to any
provisions of this contract, it shall, if required by the County Engineer or the owner, be
uncovered for the County Engineer's inspection and shall be properly replaced at the
contractor's expense without change in the contract time.
11.1.2 If any of the work is covered in a manner not inconsistent with subparagraph 11.1.1
above, it shall, if required by the County Engineer or owner, be uncovered for the County
Engineer's inspection. If such work conforms strictly with this contract, costs of uncovering
and property replacement shall by change order be charged to the owner. If such work
does not strictly conform with this contract, the contractor shall pay the costs of uncovering
and proper replacement. .
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11.2 Correcting Work
11.2.1 The contractor shall immediately proceed to correct work rejected by the County
Engineer as defective or failing to conform to this contract. The contractor shall pay all costs
and expenses associated with correcting such rejected work, including any additional
testing and inspections.
11.2.2 If within one (1) year after final completion of the work any of the work is found to
be defective or not in accordance with this contract, the contractor shall correct it promptly
upon receipt of written notice from the owner. This obligation shall survive final payment
by the owner and termination of this contract. With respect to work first performed and
completed after substantial completion, this one-year obligation to specifically correct
defective and nonconforming work shall be extended by the period of time which elapses
between substantial completion and completion of the subject work.
11.2.3 Nothing contained in this paragraph 11.2 shall establish any period of limitation with
respect to other obligations which the contractor has either under this contract or under the
laws of the State of Florida. Establishment of the one-year time period in subparagraph
11.2.2 relates only to the duty of the contractor to specifically correct the work.
11.3 Owner May Accept Defective or Nonconforming Work
11.3.1 If the owner chooses to accept defective or nonconforming work, the owner may do
so. In such event, the contract price shall be reduced by the greater of (a) the reasonable
cost of removing and correcting the defective or nonconforming work and (b) the difference
between the fair market value of the project as constructed and the fair market value of the
project had it not been constructed in such a manner as to include defective or
nonconforming work. If the remaining portion of the unpaid contract price, if any, is
insufficient to compensate the owner for its acceptance of defective or nonconforming work,
the contractor shall, upon written demand from the owner, pay the owner such remaining
compensation for accepting defective or nonconforming work.
ARTICLE XII
CONTRACT TERMINATION
12.1 Termination by the Contractor
12.1.1 If the work is stopped for a period of ninety (90) days by an order of any court or
other public authority, or as a result of an act of the Government, through no fault of the
contractor or any person or entity working directly or indirectly for the contractor, the
contractor may, upon ten (10) days' written notice to the owner and the County Engineer,
terminate performance under this contract and recover from the owner payment for the
actual reasonable expenditures of the contractor (as limited in Subparagraph 10.3.2 above)
for all work executed and for materials, equipment, tools, construction equipment andbmachinery actually purchased or rented solely for the work, less any salvage value of
any such items.
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12.1.2 If the owner shall persistently or repeatedly fail to perform any material obligation to
the contractor for a period of fifteen (15) days after receiving written notice from the
contractor of its intent to terminate hereunder, the contractor may terminate performance
under this contract by written notice to the County Engineer and the owner. In such event,
the contractor shall be entitled to recover from the owner as though the owner had
terminated the contractor's performance under this contract for convenience pursuant to
subparagraph 12.2.1 hereunder.
12.2 Termination by the Owner
12.2.1 For Convenience:
12.2.1.1 The owner may for any reason whatsoever terminate performance under this
contract by the contractor for convenience. The owner shall give written notice of such
termination to the contractor specifying when termination becomes effective.
12.2.1.2 The contractor shall incur no further obligations in connection with the work
and the contractor shall stop work when such termination becomes effective. The
contractor shall also terminate outstanding orders and subcontracts. The contractor shall
settle the liabilities and claims arising out of the termination of subcontracts and orders.
The owner may direct the contractor to assign the contractor's rights, title and interest
under terminated orders or subcontracts to the owner or its designee.
12.2.1.3 The contractor shall transfer title and deliver to the owner such completed or
partially completed work and materials, equipment, parts, fixtures, information and
contract rights as the contractor has.
12.2.1.4 (a) The contractor shall submit termination claim to the owner and the
County Engineer specifying the amounts due because of the termination for convenience
together with costs, pricing or other data required by the County Engineer. If the contractor
fails to file a termination claim within one (1) year from the effective date of termination, the
owner shall pay the contractor, an amount derived in accordance with subparagraph (c)
below.
(b) The owner and the contractor may agree to the compensation, if any,
due to the contractor hereunder.
(c) Absent agreement to the amount due to the contractor, the owner shall
pay the contractor the following amounts:
(i) Contract prices for labor, materials, ~quipment and other
services accepted under this contract;
(ii) Reasonable costs incurred in preparing to perform and in
performing the terminated portion of the work, and in terminating the contractor's
performance, plus a fair and reasonable allowance for overhead and profit thereon (such
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profit shall not include anticipated profit or consequential damages); provided however,
that if it appears that the contractor would have not profited or would have sustained a loss
if the entire contract would have been completed, no profit shall be allowed or included and
the amount of compensation shall be reduced to reflect the anticipated rate of loss, if any;
(iii) Reasonable costs of settling and paying claims arising out of the
termination of subcontracts or orders pursuant to subparagraph 12.2.1.2 of this paragraph.
These costs shall not include amounts paid in accordance with other provisions hereof.
The total sum to be paid the contractor under this subparagraph 12.2.1 shall not
exceed the total contract price as properly adjusted, shall be reduced by the amount of
payments otherwise made, and shall in no event include duplication of payment.
12.2.2 For Cause:
12.2.2.1 If the contractor persistently or repeatedly refuses or fails to prosecute the
work in a timely manner, supply enough properly skilled workers, supervisory personnel
or proper equipment or materials, or if it fails to make prompt payment to subcontractors or
for materials or labor, or persistently disregards laws, ordinances, rules, regulations or
orders of any public authority having jurisdiction, or otherwise is guilty of a substantial
violation of a material provision of this contract, then the owner may by written notice to
the contractor, without prejudice to any other right or remedy, terminate the employment
of the contractor and take possession of the site and of all materials, equipment, tools,
construction equipment and machinery thereon owned by the contractor and may finish the
work by whatever methods it may deem expedient. In such case, the contractor shall not be
entitled to receive any further payment until the work is finished.
12.2.2.2 If the unpaid balance of the contract price exceeds the cost of finishing the
work, such excess shall be paid to the contractor. If such cost exceeds the unpaid balance,
the contractor shall pay the difference to the owner. This obligation for payment shall
survive the termination of the contract.
12.2.2.3 In the event the employment of the contractor is terminated by the owner for
cause pursuant to subparagraph 12.2.2 and it is subsequently determined by a Court of
competent jurisdiction that such termination was without cause, such termination shall
thereupon be deemed a termination for convenience under subparagraph 12.2.1 and the
provisions of subparagraph 12.2.1 shall apply.
ARTICLE XIII
INSURANCE
13.1 The insurance required under this contract is set forth in Section 00900 of the Project
Manual.
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ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law
14.1.1 This contract is governed by the laws of the State of Florida. Venue for any litigation
arising under this contract must be in Monroe County, Florida.
14.2 Successors and Assigns
14.2.1 The owner and contractor bind themselves, their successors, assigns and legal
representatives to the other party hereto and to successors, assigns and legal representatives
of such other party in respect to covenants, agreement and obligations contained in this
contract. The contractor shall not assign this contract without written consent of the owner.
14.3 Surety Bonds
14.3.1 The contractor shall furnish the public construction bond in the amount and form set
forth in Section 255.05, Florida Statutes.
14.4 Public Entity Crime Statement
14.4.1 A person or affiliate who has been placed on the convicted vendor list following a
conviction for public entity crime may not submit a bid on a contract to provide any goods
or services to a public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit bids on leases of
real property to public entity, may not be awarded or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with any public entity, and may not
transact business with any public entity in excess of the threshold amount provided in
Section 287.017 of the Florida Statutes, for CATEGORY TWO for a period of 36 months from
the date of being placed on the convicted vendor list.
14.5 Trench Safety
14.5.1 If applicable to the project, the contractor shall comply with all relevant provisions of
the Trench Safety Act (Secs. 553.60-553.64, Fla. Stat.).
14.6 Contingency
14.6.1 Monroe County's performance and obligation to pay under this contract is
contingent upon an annual appropriation by the Board of County Com.ni.issioners.
14.7 Effective Date
14.7.1 This contract will take effect as provided in 1.1.1.
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IN WITNESS WHEREOF, each party has caused this Agreement to be executed by
its duly authorized representative this day of , 2000.
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
By
Deputy Clerk
Mayor/Chairman
Date
(SEAL)
Attest:
CONTRACTOR
By:
By:
\
Title:
Title:
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