Item F09
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: November 15, 2006
Division: Engineering
Bulk Item: Yes -X- No
Department: Facilities Development
Staff Contact Person:
lefty Barnett
AGENDA ITEM WORDING: Approval to award bid and enter into a contract with Charley Toppino
& Sons for the Big Pine Key Park Retaining Wall Removal and Basin Filling.
ITEM BACKGROUND: On October 5, 2006, a bid opening was held with three contractors
responding. The Lowest bid came from Charley Toppino & Sons (see attached Tabulation Sheet).
Certain information was omitted from Charley Toppino & Son's Proposal, such as references, financial
statement, etc., however the office of the County Attorney deemed this information unnecessary due to
our experience with them.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval as stated above, to award bid and enter into a contract
with Charley T oppino & Sons, and to waive requirements for information not furnished in the bidding
documents as unnecessary due to our experience with them.
TOTAL COST: $973.619.50
BUDGETED: Yes --X- No
COST TO COUNTY: $973.619.50
SOURCE OF FUNDS: One-Cent Infrastructure
REVENUE PRODUCING: Yes_ No X AMO*ERMONTH_ Year
I of/v , W
APPROVED BY: County Atty5flo/ OMB/Purchasing . sk Management _
DOCUMENTATION:
Included
X
Not Required_
DISPosmON:
AGENDA ITEM #
Revised 8/06
MONROE COUNTY
FACILITIES DEVELOPMENT
MEMORANDUM
TO: David Koppel
County Engineer
FROM: Ann Riger, Contracts Administr
Facilities Development
DATE: October 30, 2006
RE: Agenda Item - Big Pine Key Park Wall Removal and Basin Filling
AGENDA ITEM WORDING: Approval to award bid and enter into a contract with
Charley Toppino & Sons for the Big Pine Key Park Retaining Wall Removal and Basin
Filling.
ITEM BACKGROUND: On October 5, 2006, three contractors submitted bids for the
above project. Pinewood Wastewater Services Inc. bid price is $1,236,250.00, RA.T.
Construction, Inc., $982,000.00, and Charley Toppino & Sons, $973,619.50. All three
bidders omitted some kind of information requested in bidding. Charley Toppinos, &
Sons, the lowest bidder, omitted references and fmancial statements. Because Monroe
County has had successful business transactions with them in the past, the information
was deemed unnecessary.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDA nONS: Approval as stated above.
Thank: you. If you have any questions, please contact me at ext. 4439.
AR
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Charley Toppino & Sons Contract #_
Effective Date: 11/15/06
Expiration Date:
o Contract Purpose/Description:
For the Big Pine Key Park Retaining Wall Removal & Basin Filling
Contract Manager: Ann Riger 4439 Facilities Develop/Stop #1
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 11/15/06 Agenda Deadline: 10/31/06
CONTRACT COSTS
Total Dollar Value of Contract: $ 973,639.50 Current Year Portion: $ 973,639.50 /
Budgeted? Yesrg} No 0 Account Codes: 25000-560630-CC0202-_-_
Grant: $ N/A _-_-_-_-_
County Match: $ N/A _-_-_-_-_
- - - -
-----
ADDITIONAL COSTS
Estimated Ongoing Costs: $~yr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Division Director
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Big Pine Key Park Wall & Basin
Section 00500
Standard Form of Agreement
Between Owner and Contractor
where the basis of payment is a STlPULA TED SUM
AGREEMENT
made as of the Fifteenth day of November in the year of Two Thousand and Six
(In Words, indicate day, month and year.)
BETWEEN the Owner:
(Name and address)
Monroe County Board of County Commissioners
1100 Simonton Street
Key West, Florida 33040
and the Contractor:
(Name and address)
Charley Toppino & Sons
P.O. Box 787
Key West, FL 33041
For the following Project: Big Pine Key Park Retaining Wall Removal & Basin Filling
(Include detailed description of project, MM31 and the Intersection of
location, address and scope) Sands Road and Atlantis Drive
Facilities Development is:
(Name and address)
The Director of Facilities Development
Monroe County Facilities Development
1100 Simonton Street
Second Floor - Room 2-216
Key West, Florida 33040
The Architect is:
(Name and Address)
N/A
The Owner and Contractor agree as set forth below.
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-1
Big Pine Key Park Wall & Basin
ARTICLE 1
The Contract Documents
The Contract Documents consist of this Agreement, Conditions of the Contract (General,
Supplementary and other Conditions), Bid Documents, Contractors response, Drawings,
Specifications, Addenda issued prior to execution of this Agreement, Alternates as accepted by
Owner, other documents listed in this Agreement and Modifications issued after execution of
this Agreement: these form the Contract, and are as fully a part of the Contract as if attached to
this Agreement or repeated herein. The Contract represents the entire and integrated
agreement between the parties hereto and supersedes prior negotiations, representations or
agreements, either written or oral. An enumeration of the Contract Documents, other than
Modifications, appears in Article 9.
ARTICLE 2
The Work of this Contract
The Contractor shall execute the entire Work described in the Contract Documents, except to
the extent specifically indicated in the Contract Documents to be the responsibility of others, or
as follows:
Scope of Work as specified in the Project Manual for this project, Section 00300, to include:
1. Remove pressure treated wood pole retaining wall and dispose of legally off site.
2. Remove concrete seawall and slabs to 24" below final grade.
3. Fill and compact basin and entry canal.
4. Finish grade area to adjacent elevation + .25 ft.
5. Fill required estimated to be 24,756 cy.
ARTICLE 3
Date of Commencement and Substantial Completion
3.1 The date of commencement is the date from which the Contract Time of Paragraph 3.2
is measured, and shall be the date of this Agreement, as first written above, unless a different
date is stated below or provision is made for the date to be fixed in a notice to proceed issued
by the Owner.
Unless the date of commencement is established by a notice to proceed issued by the Owner,
the Contractor shall notify the Owner, through the Director of Facilities Development, in writing
not less than five days before commencing the Work.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
(Insert the calendar date or number of calendar days after the date of commencement. Also
insert any requirements for earlier Substantial Completion of certain portions of the Work, if not
stated elsewhere in the Contract Documents.)
180 calendar days from date of Commencement.
subject to adjustments of the Contract Time as provided by the Contract Document.
Liquidated Damages will be assessed as provided in Sec. 00350.
ARTICLE 4
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-2
Big Pine Key Park Wall & Basin
Contract Sum
4.1 The owner shall pay the Contractor in current funds for the Contractor's performance of
the Contract the Contract Sum of Nine Hundred Seventy-Three Thousand, Six Hundred
Nineteen Dollars and 50/100 ($973,619.50), subject to additions and deductions as
provided in the Contract Documents.
4.2 The Contract Sum is based upon the following alternates, if any, which are described in
the Contract Documents and are hereby accepted by the Owner:
(State the numbers or other identification of accepted alternates. If decisions on other
alternates are to be made by the Owner subsequent to the execution of this Agreement,
attach a schedule of such other alternates showing the amount of each and the date
until which that amount is valid.)
4.3 Unit prices, if any, are as follows:
N/A
ARTICLE 5
Progress Payments
5.1 Based upon Applications for Payment submitted by the Contractor to the Director of
Facilities Development, the Owner shall make progress payments on account of the Contract
Sum to the contractor as provided below and elsewhere in the Contract Documents.
5.2 The period covered by each Application for payment shall be one calendar month ending
on the last day of the month.
5.3 Payment shall be made according to the Local Government Prompt Payment Act, Sec.
218.70 et. seq. Florida Statutes.
5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by
the Contractor in accordance with the Contract Documents. The Schedule of Values shall
allocate the entire Contract Sum among the various portions of the Work and be prepared in
such form and supported by such data to substantiate its accuracy as the Director of Facilities
Development may require. This schedule, unless objected to by the Director of Facilities
Development, shall be used as a basis for reviewing the Contractor's Applications for Payment.
5.5 Applications for Payment shall indicate the percentage of completion of each portion of
the Work as of the end of the period covered by the Application for Payment.
5.6 Subject to the provisions of the Contract Documents, the amount of each progress
payment shall be computed as follows:
5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as
determined by multiplying the percentage completion of each portion of the Work by the share
of the total Contract Sum allocated to that portion of the Work in the Schedule of Values, less
retainage of Ten percent (10%) Pending final determination of cost to the Owner of changes in
the Work, amounts not in dispute may be included in applications for Payment. The amount of
credit to be allowed by the Contractor to the Owner for a deletion or change which results in a
net decrease in the Contract Sum shall be actual net cost as confirmed by the Director of
Facilities Development. When both additions and credits covering related Work or substitutions
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-3
Big Pine Key Park Wall & Basin
are involved in a change the allowance for overhead and profit shall be figured on the basis of
net increase, if any, with respect to that change.
5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the completed
construction (or, if approved in advance by the Owner, suitably stored off the site at a location
agreed upon in writing), less retainage of Ten percent (10%):
5.6.3 Subtract the aggregate of previous payments made by the Owner; and
5.6.4 Subtract amounts, if any, for which the Director of Facilities Development has withheld or
nullified an Appliciaion for Payment as provided in Paragraph 9.5 of the General conditions.
5.7 The progress payment amount determined in accordance with Paragraph 5.6 shall be
further modified under the following circumstances:
5.7.1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total
payments to Ninety percent (90%) of the Contract Sum, less such amounts as the Director of
Facilities Development recommends and determines for incomplete Work and unsettled claims;
and
5.7.2 Add, if final completion of the Work is thereafter materially delayed through no fault of
the Contractor, any additional amounts payable in accordance with Subparagraph 9.10.3 of the
General Conditions.
5.8 Reduction or limitation of retainage, if any, shall be as follows:
(If it is intended, prior to Substantial,completion of the entire Work, to reduce or limit the
retainage resulting from the percentages inserted in Subparagraphs 5.6. 1 and 5.6.2 above, and
this is not explained elsewhere in the Contract Documents, insert here provisions for such
reduction or limitations)
ARTICLE 6
Final Payment
Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the
Owner to the Contractor when (1) the Contract has been fully performed by the Contractor
except for the Contractor's responsibility to correct nonconforming Work as provided in
Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, if any, which
necessarily survive final payment: and (2) a final Project Application for Payment has been
issued by the Contractor: such final payment shall be made by the Owner not more than 20
days after the issuance of a complete and correct final Application for Payment, or as follows:
ARTICLE 7
Miscellaneous Provisions
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-4
Big Pine Key Park Wall & Basin
7.1 Where reference is made in this Agreement to a provision of the General Conditions or
another Contract Document, the reference refers to that provision as amended or supplemented
by other provisions of the Contract Documents.
7.2 Not Used.
7.3 Temporary facilities and services:
(Here insert temporary facilities and services which are different from or in addition to those
included elsewhere in the Contract Documents.)
7.4 Monroe County's performance and obligation to pay under this contract is contingent
upon an annual appropriation by the Board of County Commissioners.
7.5 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
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, for CATEGORY TWO for a period of 36 months from the
date of being placed on the convicted vendor list.
7.6 The following items are included in this contract:
a) Contractor shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted
accounting principles consistently applied. Each party to this agreement or their
authorized representatives shall have reasonable and timely access to such records
of each other party to this agreement for public records purposes during the term of
the agreement and for four years following the termination of this agreement. If an
auditor employed by the County or Clerk determines that monies paid to the
Contractor pursuant to this agreement were spent for purposes not authorized by
this agreement, the Contractor shall repay the monies together with interest
calculated pursuant to sec. 55.03, FS, running from the date the monies were paid
to Contractor.
b) Governing Law, Venue, Interpretation, Costs, and Fees: This Agreement shall be
Governed by and construed in accordance with the laws of the State of Florida
applicable to contracts made and to be performed entirely in the State. In the event
that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the County and Contractor agree
that venue shall lie in the appropriate court or before the appropriate administrative
body in Monroe County, Florida. The parties waive their rights to trial by jury.
c) Severability. If any term, covenant, condition or provision of this Agreement (or the
application thereof to any circumstance or person) shall be declared invalid or
unenforceable to any extent by a court of competent jurisdiction, the remaining
terms, covenants, conditions and provisions of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law unless the enforcement of
the remaining terms, covenants, conditions and provisions of this Agreement would
prevent the accomplishment of the original intent of this Agreement. The County
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-5
Big Pine Key Park Wall & Basin
and Contractor agree to reform the Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken
provision.
d) Attorney's Fees and Costs. The County and Contractor agree that in the event any
cause of action or administrative proceeding is initiated or defended by any party
relative to the enforcement or interpretation of this Agreement, the prevailing party
shall be entitled to reasonable attorney's fees, court costs, as an award against the
non-prevailing party, and shall include attorney's fees, court costs, in appellate
proceedings. Mediation proceedings initiated and conducted pursuant to this
Agreement shall be in accordance with Florida Rules of Civil Procedure and usual
and customary procedures required by the circuit court of Monroe County.
e) Binding Effect. The terms, covenants, conditions and provisions of this Agreement
shall bind and inure to the benefit of the County and Contractor and their respective
legal representatives, successors, and assigns.
f) Authority. Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary County and corporate action, as required by law.
g) Claims for Federal or State Aid. Contractor and County agree that each shall be,
and is, empowered to apply for, seek, and obtain federal and state funds to further
the purpose of this Agreement; provided that all applications, requests, grant
proposals, and funding solicitations shall be approved by each party prior to
submission.
h) Adjudication of Disputes or Disagreements. County and Contractor agree that all
disputes and disagreements shall be attempted to be resolved by meet and confer
sessions between representatives of each of the parties. If no resolution can be
agreed upon within 30 days after the first meet and confer session, the issue or
issues shall be discussed at a public meeting of the Board of County
Commissioners. If the issue or issues are still not resolved to the satisfaction of the
parties, then any party shall have the right to seek such relief or remedy as may be
provided by this Agreement or by Florida law. This agreement and its interpretation
is not subject to arbitration.
i) Cooperation. In the event any administrative or legal proceeding is instituted against
either party relating to the formation, execution, performance, or breach of this
Agreement, County and Contractor agree to participate, to the extent required by
the other party, in all proceedings, hearings, processes, meetings, and other
activities related to the substance of this Agreement or provision of the services
under this Agreement. County and Contractor specifically agree that no party to this
Agreement shall be required to enter into any arbitration proceedings related to this
Agreement.
j) Nondiscrimination. County and Contractor agree that there will be no discrimination
against any person, and it is expressly understood that upon a determination by a
court of competent jurisdiction that discrimination has occurred, this Agreement
automatically terminates without any further action on the part of any party, effective
the date of the court order. County or Contractor agree to comply with all Federal
and Florida statutes, and all local ordinances, as applicable, relating to
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-6
Big Pine Key Park Wall & Basin
nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights
Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or
national origin; 2) Title IX of the Education Amendment of 1972, as amended (20
USC ss. 1681-1683, and 1685-1686), which prohibits discrimination on the basis of
sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794),
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination
Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on
the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255),
as amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to nondiscrimination
on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of
1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil
Rights Act of 1968 (42 USC s. et seq.) as amended, relating to nondiscrimination in
the sale, rental or financing of housing; 9) The Americans with Disabilities Act of
1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Any other nondiscrimination
provision in the Federal or State statutes which may apply to the parties to, or the
subject matter of, this Agreement.
k) Covenant of No Interest. County and Contractor covenant that neither presently has
any interest, and shall not acquire any interest, which would conflict in any manner
or degree with its performance under this Agreement, and that only interest of each
is to perform and receive benefits as recited in this Agreement.
I) Code of Ethics. County agrees that officers and employees of the County recognize
and will be required to comply with the standards of conduct for public officers and
employees as delineated in Section 112.313, Florida Statutes, regarding, but not
limited to, solicitation or acceptance of gifts; doing business with one's agency;
unauthorized compensation; misuse of public position, conflicting employment or
contractual relationship; and disclosure or use of certain information.
m) No Solicitation/Payment. The County and Contractor warrant that, in respect to
itself, it has neither employed nor retained any company or person, other than a
bona fide employee working solely for it, to solicit or secure this Agreement and that
it has not paid or agreed to pay any person, company, corporation, individual, or
firm, other than a bona fide employee working solely for it, any fee, commission,
percentage, gift, or any other consideration contingent upon or resulting from the
award or making of this Agreement. For the breach or violation of the provision, the
Contractor agrees that the County shall have the right to terminate this Agreement
without liability and, at its discretion, to offset from monies owed, or otherwise
recover, the full amount of such fees, commission, percentage, gift, or
consideration.
n) Public Access. The County and Contractor shall allow and permit reasonable
access to, and inspection of, all documents, papers, letters or other materials in its
possession or under its control subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the County and Contractor in conjunction with
this Agreement; and the County shall have the right to unilaterally cancel this
Agreement upon violation of this provision by Contractor.
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-7
Big Pine Key Park Wall & Basin
0) Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida
Statutes, the participation of the County/Owner in this Agreement and the
acquisition of any commercial insurance coverage, self insurance coverage, or local
government liability insurance pool coverage shall not be deemed a waiver of
immunity to the extent of liability coverage, nor shall any contract entered into by the
County be required to contain any provision for waiver.
p) Privileges and Immunities. All of the privileges and immunities from liability,
exemptions from laws, ordinances, and rules and pensions and relief, disability,
workers' compensation, and other benefits which apply to the activity of officers,
agents, or employees of any public agents or employees of the County, when
performing their respective functions under this Agreement within the territorial limits
of the County shall apply to the same degree and extent to the performance of such
functions and duties of such officers, agents, volunteers, or employees outside the
territorial limits of the County.
q) Legal Obligations and Responsibilities: Non-Delegation of Constitutional or
Statutory Duties. This Agreement is not intended to, nor shall it be construed as,
relieving any participating entity from any obligation or responsibility imposed upon
the entity by law except to the extent of actual and timely performance thereof by
any participating entity, in which case the performance may be offered in
satisfaction of the obligation or responsibility. Further, this Agreement is not
intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by
Florida constitution, state statute, and case law.
r) Non-Reliance by Non-Parties. No person or entity shall be entitled to rely upon the
terms, or any of them, of this Agreement to enforce or attempt to enforce any third-
party claim or entitlement to or benefit of any service or program contemplated
hereunder, and the County and the Contractor agree that neither the County nor the
Contractor or any agent, officer, or employee of either shall have the authority to
inform, counsel, or otherwise indicate that any particular individual or group of
individuals, entity or entities, have entitlements or benefits under this Agreement
separate and apart, inferior to, or superior to the community in general or for the
purposes contemplated in this Agreement.
s) Attestations. Contractor agrees to execute such documents as the County may
reasonably require, to include a Public Entity Crime Statement, an Ethics
Statement, and a Drug-Free Workplace Statement.
t) No Personal Liability. No covenant or agreement contained herein shall be deemed
to be a covenant or agreement of any member, officer, agent or employee of
Monroe County in his or her individual capacity, and no member, officer, agent or
employee of Monroe County shall be liable personally on this Agreement or be
subject to any personal liability or accountability by reason of the execution of this
Agreement.
u) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be regarded as an original, all of which taken
together shall constitute one and the same instrument and any of the parties hereto
may execute this Agreement by singing any such counterpart.
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-8
Big Pine Key Park Wall & Basin
v) Section Headings. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the interpretation
of any provisions of this Agreement.
Special Conditions, if any are detailed in Section 00990 of the Project Manual for this Project.
ARTICLE 8
Termination or Suspension
8.1 The Contract may be terminated by the Owner as provided in Article 14 of the General
Conditions.
Article 9
Enumeration of Contract Documents
9.1 The Contract Documents, except for Modifications issued after execution of this
Agreement, are enumerated as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner and
Contractor.
9.1.2 The General Conditions are the General Conditions of the Contract for Construction.
9.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project
Manual dated Auqust 2006.
9.1.4 The General Specifications are those contained in the Project Manual dated Auqust 2006.
As listed in Table of Contents, Section 00001 of the Project Manual for this project, and
include sections 00030, 00100, 00110, 00163, 00300, 00350, 00400, 00500, 00501,
00750,00970,00980,00990,01010,01015,01020,01027,01040,01050,01200,
01301,01310,01370,01385,01395,01400,01410,01421,01500,01510,01520,
01550,01560,01590,01595,01600,01630,01640,01700,01710,01720,01740,
02070,02230,02300.
9.1.5 The Drawings issued by the Monroe County Engineering Division, for the Big Pine Key Park
Retaining Wall Removal & Basin Filling.
9.1.6 The Addenda, if any, are as follows:
Number 1 Dated September 25,2006 Pages 3
9.1.7 N/A
BALANCE OF PAGE INTENTIONAllY lEFT BLANK,
SIGNATURE PAGE TO FOllOW.
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-9
Big Pine Key Park Wall & Basin
This Agreement is entered into as of the day and year first written above and is executed in at least four
original copies of which one is to be delivered to the Contractor, one to Facilities Development for use in
the administration of the Contract, and the remainder to the Owner.
Execution by the Contractor must be by a person with authority to bind the entity.
SIGNATURE OF THE PERSON EXECUTING THE DOCUMENT MUST BE NOTARIZED AND
WITNESSED BY ANOTHER OFFICER OF THE ENTITY.
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Deputy Clerk
By
Mayor/Chairman
Date
(SEAL)
CONTRACTOR
Charley Toppino & Sons
Attest:
Print Name:
By: GJ~G ~~
Print name:r:a.tiHlf~(? :(:6 1"1 tAl D
(f UtJ .
By:
Title:
Title:
Date:
Date: fOr ~ 8'- P (p
Or:
Witness 1:
Date:
Print Name:
Witness 2:
Date:
Print Name:
MONROE COUNTY ATTORNEY
APPRO ED AS TO FORM:
STATE OF FLORID~
COUNTY OF ~
On thi~~ay of Oc _ ,200 ,before me ,the undersigned notary public,
Personally appeared F~ r,~~ ,known to me to be the
Person whose name is subscribed ab e or who produced 117 tt..
As identification, and acknowledged that he/she is the person who executed the
abov on ract with Monroe County for the construction of the Murray E. Nelson
Go m nt and C ural nter for the purposes therein contained.
SU M. GRIMSLEY
ASSISTA COUNTY ATTORNEY
Date / () -/0 - 0 b
ANN M. RlGER
"\ MY COMMISSION I DO 302215
.0-: EXPIRES: JIiy 21, 200l
Booded 1hnJ HolIlY PItllIc lJndIlWriWs
Nota;;fubliC ?
,v___ fYJ _ ; bLiL
Print Name h /
My commission expires: 7 I og
, .
Seal
END OF SECTION 00500
10/12/2006
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-10
. .,....-....... .....,1JI "'....,. II I "'1"'\ . .... V r .....1"\ u ...... . I .. ~ ~ U I""V'\ I ~ '" I;;. I 4/21/2006
PRODUCER THIS CERTIFICr IS ISSUED AS A MATTER OF INFORMATION
Seitlin ONLY AND Ct ..:RS NO RIGHTS UPON THE CERTIFICATE
9800 NW 41 Street, Suite #300 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
Miami FL 33178 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
(305) 591-0090 (305) 593-6993
INSURERS AFFORDING COVERAGE NAIC#
INSURED INSURER A: Bridgefie1d Employers 10701
Charley Toppino &. Sons, Inc. &. INSURER B: Westchester Surplus Lines Ins 10172
Monroe Concrete Products Inc. National Casualty Company
'P.O. Box 787 INSURER c: 11991
Key West FL 33041 INSURER 0:
I INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POUCIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
'~;: ~~~ ""DC POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
GENERAL LIABILITY EACH OCCURRENCE $ 1 000 000
-
B ~ ~MERCIAl GENERAL LIABILITY G22037407001 2/2/2006 2/2/2007 PREMISES Ea occurence 1 $ 50,000
- CLAIMS MADE W OCCUR MED EXP (Any 0"'" personl $ 5,000
- PERSONAL & ADV INJURY $ 1,000,000
GENERAL AGGREGATE $ 2,000,000
GEN'L AGGRE~ LIMIT An PER: PRODUCTS - COMP/OP AGG $ 2,000,000
I POLICY X ~~ LOC
AUTOMOBILE UABlLlTY COMBINED SINGLE LIMIT
I- $
C ANY AUTO CAOO196848 2/2/2006 2/2/2007 (Ea accident) 1,000,000
I----
ALL OWNED AUTOS BOOlL Y INJURY
- $
~ SCHEDULED AUTOS (Per person)
~ HIRED AUTOS BODILY INJURY
( . i $
NON-ONNED AUTOS ~;,{ . ,f ".. ( I (Per accident)
- )\( t ;::.. ,,)
.
..\ ,)..:~ ' .( PROPERTY DAMAGE $
. t.: .., (Per accident)
GARAGE UABlLlTY I AUTO ONLY - EA ACCIDENT $
R ANY AUTO OTHER THAN EAACC $
AUTO ONLY: AGG $
~ESSIUMBRElLA LIABILITY EACH OCCURRENCE $ 5,000,000
B X OCCUR 0 CLAIMS MADE G22037419001 2/2/2006 2/2/2007 AGGREGATE $ 5,000,000
$
~ DEDUCTIBLE $
X RETENTION $ 10.000 $
A WORKERS COMPENSATION AND 830-35707 1/14/2006 1/14/2007 I T~~~W-~ I IOJ~
EM PLOVERS' LIABILITY E.L. EACH ACCIDENT 1,000,000
~Y PROPRIETORIPARTNERlEXECUT/VE $
OFACERlMEM8ER EXCLUDED? E.L. DISEASE - EA EMPLOYEE $ 1,000,000
~~~~SbeIow E.L. DISEASE - POliCY LIMIT $ 1,000,000
OTHER
OESCRIPllON OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPEOAL PROVISIONS
RB. BIG COPPITr PARK, BIG PIlm ltEY PARK PROJECT. PROJECT 10604
CBRTIFICATE BOLDER IS ADDITIONAL ~SURBD AS RESPECTS GENERAL LIABILITY AND AUTOMOBILE LIABILITY AS
RBQUIRED BY WRITTD CONTRACT SUBJECT TO THE POLICY TERNS, CONDITIONS, LIMITATIONS AND EXCLUSIONS.
CERTIFICATE HOLDER
CANCELLATION
SHOULD At('( OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS NOnCE TO THE CERnACATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO 00 SO SHALL
1100 SIMONTON ST IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
KEY WEST FL 33040 AUTHORIZED REPRESENTATIVE
I
ACORD 25 (2001/08)
@ ACORD CORPORATION 1988
Big Pine Key Park Wall & Basin
Section 00750
General Conditions of the Contract for
Construction
Where Facilities Development is Not a Constructor
Table of Articles
1. General Provisions 8. Time
2. Owner 9. Payments and Completion
3. Contractor 10. Protection of Persons and
Property
4. Administration of the Contract 11. Insurance and Bonds
5. Subcontractors 12. Uncovering and Correction of
Work
6. Construction by Owner or By Other 13. Miscellaneous Provisions
Contractors
7. Changes in the Work 14. Termination or Suspension of
the Contract
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General Conditions of the Contract for Construction
00750-11
Big Pine Key Park Wall & Basin
ARTICLE 1
GENERAL PROVISIONS
1.1 Basic Definitions
1.1.1 The Contract Documents: The Contract Documents consist of the Agreement
between Owner and Contractor, Conditions of the Contract (General, Supplementary
and other Conditions), Drawings, Specifications, addenda issued prior to execution of
the Contract, Owners bid documents, Contractor's payment and performance bond,
other documents listed in the Agreement and Modifications issued after execution of the
Contract, and the Contractor's bid and supporting documentation. A Modification is (1) a
written amendment to the Contract signed by both parties, (2) a Change Order, (3) a
Construction Change Directive or (4) a written order for a minor change in the Work.
1.1.2 The Contract: The Contract represents the entire and integrated agreement
between the parties hereto and supersedes prior negotiations, representations or
agreements, either written or oral. The Contract may be amended or modified only by a
Modification. The Contract Documents shall not be construed to create a contractual
relationship of any kind (1) between Facilities Development and the Contractor (2)
between the Owner and a Subcontractor, (3) between any persons or entities other than
the Owner and Contractor. The Owner shall, however, be entitled to enforce the
obligations under the Contract intended to facilitate performance of the duties of
Facilities Development.
1.1.3 The Work: The term "Work" means the construction and services required by
the Contract Documents, whether completed or partially completed, and includes all
other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a
part of the Project.
1.1.4 The Project: The Project is the total construction of which the Work performed
under the Contract Documents may be the whole or a part and which may include
construction by other Contractors and by the Owner's own forces including persons or
entities under separate contracts not administered by Facilities Development.
1.1.5 The Drawings: The Drawings are the graphic and pictorial portions of the
Contract Documents, wherever located and whenever issued, showing the design,
location and dimensions of the Work, generally including plans, elevations, sections,
details, schedules and diagrams.
1.1.6 The Specifications: The Specifications are that portion of the Contract
Documents consisting of the written requirements for materials, equipment, construction
systems, standards and workmanship for the Work, and performance of related services.
1.1.7 The Project Manual: The Project Manual is the volume which contains the
bidding requirements, sample forms, Conditions of the Contract and Specifications.
1.2 Execution, Correlation and Intent
1.2.2 Execution of the Contract by the Contractor is a presentation that the Contractor
has visited the site, become familiar with local conditions under which the Work is to be
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General Conditions of the Contract for Construction
00750-12
Big Pine Key Park Wall & Basin
performed and correlated personal observations with requirements of the Contract
Documents.
1.2.3 The intent of the Contract Document is to include all items necessary for the
proper execution and completion of the Work by the contractor. The Contract
Documents are complementary, and what is required by one shall be as binding as if
required by all; performance by the Contractor shall be required only to the extent
consistent with the Contract Documents and reasonably inferable from them as being
necessary to produce the intended results.
1.2.4 Organization of the Specifications into divisions, sections and articles, and
arrangement of Drawings shall not control the Contractor in dividing the Work among
Subcontractors or in establishing the extent of Work to be performed by any trade.
1.2.5 Unless otherwise stated in the Contract Documents, words which have well-
known technical or construction industry meanings are used in the Contract Documents
in accordance with such recognized meanings.
1.2.6 Where on any of the drawings a portion of the Work is drawn out and the
remainder is indicated in outline, the parts drawn out shall also apply to all other like
portions of the Work.
1.3 Not Used.
1.4 Capitalization
1.4.1 Terms capitalized in these General Conditions include those which are (1)
specifically defined, (2) the titles of numbered articles and identified references to
Paragraphs, Subparagraphs and Clauses in the document or (3) the titles of other
documents published by the American Institute of Architects.
1.5 Interpretation
1.5.1 In the interest of brevity the Contract Documents frequently omit modifying words
such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or
an article is absent from one statement and appears in another is not intended to affect
the interpretation of either statement.
ARTICLE 2
OWNER
2.1 Definition
2.1.1 The Owner is Monroe County. The term "Owner" means the Owner or the
Owner's authorized representative.
2.2 Information and Services Required of the Owner
2.2.2 The owner shall furnish surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a legal description of the
site.
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General Conditions of the Contract for Construction
00750-13
Big Pine Key Park Wall & Basin
2.2.3 Except for permits and fees which are the responsibility of the Contractor under
the Contract Documents, the Owner shall secure and pay for necessary approvals,
easements, assessments and charges required for construction, use or occupancy of
permanent structures or for permanent changes in existing facilities. Unless otherwise
provided under the Contract Documents, the Owner, through Facilities Development,
shall secure and pay for the building permit.
2.2.4 Information or services under the Owner's control shall be furnished by the
Owner with reasonable promptness to avoid delay in orderly progress of the Work.
2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be
furnished, free of charge, such copies of Drawings and Project Manuals as are
reasonably necessary for execution of the Work.
2.2.6 The Owner shall forward all communications to the Contractor through Facilities
Development.
2.2.7 The foregoing are in addition to other duties and responsibilities of the Owner
enumerated herein and especially those in respect to Article 6 (Construction by Owner
or by Other Contractors), Article 9 (Payments and Completion) and Article 11 (Insurance
and Bonds).
2.3 Owner's Right to Stop the Work
2.3.1 If the Contractor fails to correct Work which is not in accordance with the
requirements of the contract Documents as required by Paragraph 12.2 or persistently
fails to carry out Work in accordance with the Contract Documents, the Owner, by
written order signed personally or by an agent specifically so empowered by the Owner,
may order the Contractor to stop the Work, or any portion thereof, until the cause for
such order has been eliminated; however, the right of the Owner to stop the Work shall
not give rise to a duty on the part of the Owner to exercise this right for the benefit of the
Contractor or any other person or entity.
2.4 Owner's Right to Carry Out the Work
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within a three-day period after receipt of written notice
from the Owner to commence and continue correction of such default or neglect with
diligence and promptness, the Owner may after such three-day period give the
Contractor a second written notice to correct such deficiencies within a three-day period.
If the Contractor within such second three-day period after receipt of such second notice
fails to commence and continue to correct any deficiencies, the Owner may, without
prejudice to other remedies the Owner may have, correct such deficiencies. In such
case an appropriate Change Order shall be issued deducting from payments then or
thereafter due the Contractor the cost of correcting such deficiencies, including
compensation for another contractor or subcontractor or Facilities Development's and
their respective consultants' additional services and expenses made necessary by such
default, neglect or failure. If payments then or thereafter due the Contractor are not
sufficient to cover such amounts, the Contractor shall pay the difference to the Owner.
In the event of clean-up issues, Owner has right to provide a minimum of 24 hours
notice. In the event of safety issues determined to be of a serious nature, as determined
by Facilities Development, notice will be given, and contractor is required to rectify
deficiency immediately.
10/12/2006
General Conditions of the Contract for Construction
00750-14
Big Pine Key Park Wall & Basin
ARTICLE 3
CONTRACTOR
3.1 Definition
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is
referred to throughout this Agreement as if singular in number. The term "Contractor"
means the Contractor or the Contractor's authorized representative.
3.1.2 The plural term "Contractors" refers to persons or entities who perform
construction under Conditions of the Contract that are administered by Facilities
Development, and that are identical or substantially similar to these Conditions.
3.2 Review of Contract Documents and Field Conditions by Contractor
3.2.1 The Contractor shall carefully study and compare the Contract Documents with
each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2
and shall at once report to Facilities Development errors, inconsistencies or omissions
discovered. The Contractor shall not be liable to the Owner, or Facilities Development
for damage resulting from errors, inconsistencies or omissions in the Contract
Documents unless the Contractor recognized such error, inconsistency or omission and
knowingly failed to report it to Facilities Development. If the Contractor performs any
construction activity knowing it involves a recognized error, inconsistency or omission in
the Contract Documents without such notice to Facilities Development, the Contractor
shall assume appropriate responsibility for such performance and shall bear an
appropriate amount of the attributable costs for correction.
3.2.2 The Contractor shall take field measurements and verify field conditions and shall
carefully compare such field measurements and conditions and other information known
to the Contractor with the Contract Documents before commencing activities. Errors,
inconsistencies or omissions discovered shall be reported to Facilities Development at
once.
3.2.3 The Contractor shall perform the Work in accordance with the Contract
Documents and submittals approved pursuant to Paragraph 3.12.
3.3 Supervision and Construction Procedures
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best
skill and attention. The Contractor shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under this Contract, subject to overall coordination
of Facilities Development as provided in Subparagraph 4.6.3.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the
Contractor's employees, Subcontractors and their agents and employees, and other
persons performing portions of the Work under a contract with the Contractor.
3.3.3 The Contractor shall not be relieved of obligations to perform the Work in
accordance with the Contract Documents either by activities or duties of Facilities
Development in their administration of the Contract, or by test, inspections or approvals
required or performed by persons other than the Contractor.
10/12/2006
General Conditions of the Contract for Construction
00750-15
Big Pine Key Park Wall & Basin
3.3.4 The Contractor shall inspect portions of the Project related to the Contractor's
Work in order to determine that such portions are in proper condition to receive
subsequent work.
3.3.5 The Contractor shall verify that the Construction Documents being worked with
are the most recent and updated available, including all Addenda information. Also the
Contractor will perform the work strictly in accordance with this contract.
3.4 Labor and Materials
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for labor, materials, equipment, tools, construction equipment and
machinery, water, heat, utilities, transportation, and other facilities and services
necessary for proper execution and completion of the Work, whether temporary or
permanent and whether or not incorporated or to be incorporated in the Work.
3.4.2 The Contractor shall enforce strict discipline and good order among the
Contractor's employees and other persons carrying out the Contract. The Contractor
shall not permit employment of unfit persons or persons not skilled in tasks assigned to
them.
3.4.3 The Contractor is responsible for the conduct of his employees at all times.
Misconduct, destruction of property, unsafe practices, or violation of any Federal or State
regulations including abuse of alcohol or drugs, will be cause for permanent dismissal
from the project. If any Contractor's employee is determined to be detrimental to the
Project, as deemed by Facilities Development, the Contractor will remove and/or replace
the employee at the request of Facilities Development. Employees dismissed from the
project will be transported from the job site at the Contractor's expense.
3.4.4 The Contractor shall be totally responsible for the security of his work, materials,
equipment, supplies, tools, machinery, and construction equipment.
3.4.5 The Contractor shall be responsible for complete, timely and accurate field
measurements as necessary for proper coordination, fabrication and installation of his
materials and equipment. The Contractor agrees to cooperate with Facilities
Development, if required, to accommodate any discovered variations or deviations from
the Drawings and Specifications so that the progress of the Work is not adversely
affected.
3.5 Warranty
3.5.1 The Contractor warrants to the Owner, and Facilities Development that materials
and equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be free
from defects not inherent in the quality required or permitted, and that the Work will
conform with the requirements of the Contract Documents. Work not conforming to
these requirements, including substitutions not properly approved and authorized, may
be considered defective. The Contractor's warranty excludes remedy for damage or
defect caused by abuse, modifications not executed by the Contractor, improper or
insufficient maintenance, improper operation, or normal wear and tear under normal
usage. If required by Facilities Development, the Contractor shall furnish satisfactory
evidence as to the kind and quality of materials and equipment.
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General Conditions of the Contract for Construction
00750-16
Big Pine Key Park Wall & Basin
3.6 Taxes
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work or
portions thereof provided by the Contractor which are legally enacted when bids are
received or negotiations concluded, whether or not yet effective or merely scheduled to
go into effect.
3.7 Permits, Fees and Notices
3.7.1 The Contractor shall secure and pay for all permits. impact fees, governmental
fees, 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 Owner will not assess any County buildino
permit or County impact fees. The Contractor will be responsible for any other building
permit costs or impact fees required for this project. The Contractor shall secure and
pay for all building and specialty permits including plumbing, electrical, HVAC, etc.
3.7.2 The Contractor shall comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on performance of the
Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents
are in accordance with applicable laws, statutes, ordinances, building codes, and rules
and regulations. However, if the Contractor observes that portions of the Contract
Documents are at variance therewith, the Contractor shall promptly notify Facilities
Development and Owner in writing, and necessary changes shall be accomplished by
appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes,
ordinances, building codes, and rules and regulations without such notice to Facilities
Development and Owner, the Contractor shall assume full responsibility for such Work
and shall bear the attributable costs.
3.9 Superintendent
3.9.1 The Contractor shall employ a competent superintendent and necessary
assistants who shall be in attendance at the Project site during performance of the Work.
The superintendent shall represent the Contractor, and communications given to the
superintendent shall be as binding as if given to the Contractor. Important
communications shall be confirmed in writing. Other communications shall be similarly
confirmed on written request in each case. The superintendent shall be satisfactory to
Facilities Development and shall not be changed except with the consent of Facilities
Development, unless the superintendent proves to be unsatisfactory to the Contractor or
ceases to be in his employ.
3.10 Contractor's Construction Schedule
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and
submit for the Owner's information and Facilities Development's approval a Contractor's
Construction Schedule for the Work. Such schedule shall not exceed time limits current
under the Contract Documents, shall be revised as appropriate intervals as required by
10/12/2006
General Conditions of the Contract for Construction
00750-17
Big Pine Key Park Wall & Basin
the conditions of the Work and Project, shall be related to the entire Project construction
schedule to the extent required by the Contract Documents, and shall provide for
expeditious and practicable execution of the Work. This schedule, to be submitted
within fourteen (14) days after Contract Award, shall indicate the dates for the starting
and completion of the various stages of construction, shall be revised as required by the
conditions of the Work, and shall be subject to Facilities Development's approval.
3.10.2 The Contractor shall cooperate with Facilities Development in scheduling and
performing the Contractor's Work to avoid conflict, delay in or interference with the Work
of other Contractors or the construction or operations of the Owner's own forces.
3.10.4 The Contractor shall conform to the most recent schedules.
3.10.5 Facilities Development will conduct a weekly scheduling meeting which the
Contractor shall attend. At this meeting, the parties can discuss jointly such matters as
progress, scheduling, and problems.
3.11 Documents and Samples at the Site
3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the
Drawings, Specifications, addenda, Change Orders and other Modifications, in good
order and marked currently to record changes and selections made during construction,
and in addition approved Shop Drawings, Product Data, Samples and similar required
submittals. These shall be available to Facilities Development and shall be delivered to
Facilities Development for submittal to the Owner upon completion of the Work.
3.12 Shop Drawings, Product Data and Samples
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially
prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor,
manufacturer, supplier or distributor to illustrate some portion of the Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the Contractor to
illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or
workmanship and establish standards by which the Work will be judged.
3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract
Documents. The purpose of their submittal is to demonstrate for those portions of the
Work for which submittals are required the way the Contractor proposes to conform to
the information given and the design concept expressed in the Contract Documents.
Review by Facilities Development is subject to the limitations of Subparagraph 4.6.12.
3.12.5 The Contractor shall review, approve and submit to Facilities Development, in
accordance with the schedule and sequence approved by Facilities Development, Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents. The Contractor shall cooperate with Facilities Development in the
coordination of the Contractor's Shop Drawings, Product Data, Samples and similar
submittals with related documents submitted by other Contractors. Submittals made by
the Contractor which are not required by the Contract Documents may be returned
without action.
10/12/2006
General Conditions of the Contract for Construction
00750-18
Big Pine Key Park Wall & Basin
3.12.6 The Contractor shall perform no portion of the Work requiring submittal and
review of Shop Drawings, Product Data, Samples or similar submittals until the
respective submittal has been approved by Facilities Development. Such Work shall be
in accordance with approved submittals.
3.12.7 By approving and submitting Shop Drawings, Product Data, Samples and similar
submittals, the Contractor represents that the Contractor has determined and verified
materials, field measurements and field construction criteria related thereto, or will do so,
and has checked and coordinated the information contained within such submittals with
the requirements of the Work and of the Contract Documents.
3.12.8 The Contractor shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by Facilities Development's approval of Shop
Drawings, Product Data, Samples or similar submittals unless the Contractor has
specifically informed Facilities Development in writing of such deviation at the time of
submittal and Facilities Development has given written approval to the specific deviation.
The Contractor shall not be relieved of responsibility for errors or omissions in Shop
Drawings, Product Data, Samples or similar submittals by Facilities Development's
approval thereof.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop
Drawings, Product Data, Samples or similar submittals, to revisions other than those
requested by Facilities Development on previous submittals.
3.12.10 Informational submittals upon which Facilities Development are not expected to
take responsive action may be so identified in the Contract Documents.
3.12.11 when professional certification of performance criteria of materials, systems or
equipment is required by the Contract Documents, Facilities Development shall be
entitled to rely upon the accuracy and completeness of such calculations and
certifications.
3.12.12 If materials specified in the Contract Documents are not available on the present
market, the Contractor may submit data on substitute materials to Facilities
Development for approval.
3.13 Use of Site
3.13.1 The Contractor shall confine operations at the site to areas permitted by law,
ordinances, permits and the Contract Documents and shall not unreasonably encumber
the site with materials or equipment.
3.13.2 The Contractor shall coordinate the Contractor's operations with, and secure the
approval of, Facilities Development before using any portion of the site.
3.14 Cutting and Patching
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to
complete the Work or to make its parts fit together properly; He shall also provide
protection of existing work as required.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or
partially completed construction of the Owner's own forces or of other Contractors by
cutting, patching, excavating or otherwise altering such construction. The Contractor
shall not cut or otherwise alter such construction by other Contractors or by the Owner's
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own forces except with written consent of the Facilities Development, Owner and such
other contractors: such consent shall not be unreasonably withheld. The Contractor
shall not unreasonably withhold from the other Contractors or the Owner the
Contractor's consent to cutting or otherwise altering the Work. When structural
members are involved, the written consent of Facilities Development shall also be
required. The Contractor shall not unreasonably withhold from Facilities Development or
any separate contractor his consent to cutting or otherwise altering the Work.
3.14.3 The Contractor shall arrange for any blockouts cutout, or opening required for the
installation of his materials and equipment and the execution of his work, whether or not
shown or indicated on the Drawings. The Contractor shall be further responsible for
sealing and/or finishing, in an acceptable fashion and meeting any applicable code
requirements, and such block-out, cutout opening, or other hole in any fire-related floor,
ceiling, wall, security wall, or any other finished surface.
3.15 Cleaning Up
3.15.1 The Contractor shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations under the Contract. At
completion of the Work the Contractor shall remove from and about the project waste
materials rubbish, the Contractor's tools, construction equipment, machinery and surplus
materials. Clean up shall be performed to the satisfaction of the Owner or Facilities
Development.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents,
Facilities Development may do so with the Owner's approval and the cost thereof shall
be charged to the Contractor.
3.16 Access to Work
3.16.1 The Contractor shall provide the Owner and Facilities Development access to the
Work in preparation and progress wherever located.
3.17 Royalties and Patents
3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall
defend suits or claims for infringement of patent rights and shall hold the Owner and
Facilities Development 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 Documents.
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.
3.18 Indemnification and Hold Harmless
3.18.1 The Contractor covenants and agrees to indemnify and hold harmless Monroe
County and Monroe County Board of County Commissioners from any and all claims for
bodily injury (including death), personal injury, and property damage (including property
owned by Monroe County) and any other losses, damages, and expenses (including
attorney's fees) which arise out of, in connection with, or by reason of services provided
by the Contractor or any of its subcontractors in any tier, occasioned by the negligence
or the wrongful act or omission of the Contractor or its subcontractors in any tier, their
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employees, or agents. The first ten dollars ($10.00) of remuneration paid to the
Contractor is for the indemnification provided for the above. The extent of liability is in
no way limited to, reduced, or lessened by the insurance requirements contained
elsewhere within this agreement. This provision shall survive the expiration or earlier
termination of this Contract.
ARTICLE 4
ADMINISTRATION OF THE CONTACT
4.1 Not Used
4.2 Facilities Development
4.2.1 Facilities Development is the person or entity identified as such in the Agreement
and is referred to throughout the Contract Documents as if singular in number. The term
"Facilities Development" means Facilities Development of Monroe County or Facilities
Development's authorized representative.
4.3 Duties, responsibilities and limitations of authority of Facilities Development as
set forth in the Contract Documents shall not be restricted, modified or extended without
written consent of the Owner, Facilities Development, and Contractor. Consent shall not
be unreasonably withheld.
4.4 Not Used
4.5 Not Used
4.6 Administration of the Contract
4.6.1 Facilities Development will provide administration of the Contract as described in
the Contract Documents, and will be the Owner's representatives (1) during
construction, (2) until final payment is due and (3) with the Owner's concurrence, from
time to time during the correction period described in Paragraph 12.2. Facilities
Development will advise and consult with the Owner and will have authority to act on
behalf of the Owner only to the extent provided in the Contract Document, unless
otherwise modified by written instrument in accordance with other provisions of the
Contract.
4.6.2 Facilities Development will determine in general that the Work is being performed
in accordance with the requirements of the Contract Documents, will keep the Owner
informed of the progress of the Work, and will endeavor to guard the Owner against
defects and deficiencies in the Work.
4.6.3 Facilities Development will provide for coordination of the activities of other
Contractors and of the Owner's own forces with the Work of the Contractor, who shall
cooperate with them. The Contractor shall participate with other Contractors and
Facilities Development and Owner in reviewing their construction schedules when
directed to do so. The Contractor shall make any revisions to the Construction schedule
deemed necessary after a joint review and mutual agreement. The construction
schedules shall constitute the schedules to be used by the Contractor, other
Contractors, Facilities Development and the Owner until subsequently revised.
4.6.4 Not Used
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4.6.5 Not Used
4.6.6 Facilities Development will not have control over or charge of and will not be
responsible for construction means, method, techniques, sequences or procedures, or
for safety precautions and programs in connection with the Work, since these are solely
the Contractor's responsibility as provided in Paragraph 3.3, and neither will be
responsible for the Contractor's failure to carry out the Work in accordance with the
Contract Documents. Facilities Development will not have control over or charge of or
be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the Work.
4.6.7 Communications Facilitating Contract Administration. Except as otherwise
provided in the Contract Documents or when direct communications have been specially
authorized, the Owner and Contractor shall communicate through Facilities
Development. Communications by and with Subcontractors and material suppliers shall
be through the Contractor. Communications by and with other Contractors shall be
through Facilities Development.
4.6.8 Facilities Development will review and approve all Applications for Payment by
the Contractor, including final payment. Facilities Development will assemble each of
the Contractor's Applications for Payment with similar applications from other
Contractors. After reviewing the amounts due the contractors, the Application for
Payment will be processed by Facilities Development.
4.6.9 Based on Facilities Development's observations and evaluations of Contractors'
Applications for Payment, Facilities Development will approve the contractor's
Application for Payment.
4.6.10 Facilities Development will have authority to reject Work which does not conform
to the Contract Documents, and to require additional inspection or testing, in accordance
with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed
or completed, but will take such action only after notifying the Owner. Subject to review,
Facilities Development will have the authority to reject Work which does not conform to
the Contract Documents. Whenever Facilities Development considers it necessary or
advisable for implementation of the intent of the Contract Documents, Facilities
Development will have authority to require additional inspection or testing of the work in
accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is
fabricated, installed or completed. However, Facilities Development's authority to act
under this Subparagraph 4.6.10 or a decision made by them in good faith either to
exercise or not to exercise such authority shall not give rise to a duty or responsibility of
Facilities Development to the Contractor, Subcontractors, material and equipment
suppliers, their agents or employees, or other persons performing any of the Work.
4.6.11 Facilities Development will receive from the Contractor and review and approve
all Shop Drawings, Product Data and Samples, coordinate them with information
received from other Contractors. Facilities Development's actions will be taken with
such reasonable promptness as to cause no delay in the Work of the Contractor or in the
activities of other Contractors or the Owner.
4.6.12 Not Used.
4.6.13 Facilities Development will prepare Change Orders and Construction Change
Directives.
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4.6.14 Facilities Development will take appropriate action on Change Orders or
Construction Change Directives in accordance with Article 7 and will have authority to
order minor changes in the Work as provided in Paragraph 7.4.
4.6.15 Not Used.
4.6.16 The Contractor will assist Facilities Development in conducting inspections to
determine the dates of Substantial completion and final completion, and will receive and
forward to Facilities Development written warranties and related documents required by
the Contract and assembled by the Contractor. Facilities Development will process the
final Project Application for Payment upon compliance with the requirements of the
Contract Documents.
4.6.17 Not Used.
4.6.18 Not Used.
4.6.19 Not Used.
4.6.20 Not Used.
4.7 Claims and Disputes
4.7.1 Definition. A Claim is demand or assertion by one of the parties seeking, as a
matter of right, adjustment or interpretation of Contract terms, payment of money,
extension of time or other relief with respect to the terms of the Contract. The term
"Claim" also includes other disputes and matters in question between the Owner and
Contractor arising out of or relating to the Contract. Claims must be made by written
notice. The responsibility to substantiate Claims shall rest with the party making the
claim.
4.7.2 Meet and Confer. The Contractor and Facilities Development shall try to resolve
the claim or dispute with meet and confer sessions to be commenced within 15 days of
the dispute or claim. If the parties cannot resolve the dispute or claim, the matter shall be
presented to the Board of County Commissioners for Monroe County to resolve the
claim or dispute. Any claim or dispute that the parties cannot resolve shall be decided by
the Circuit Court, 16th Judicial Circuit, Monroe County, Florida.
4.7.3 Time Limits on Claims. Claims by either party must be made within 21 days
after occurrence of the event giving rise to such Claim or within 21 days after the
claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims
must be made by written notice. An additional Claim made after the initial Claim has
been implemented by Change Order will not be considered unless submitted in a timely
manner. This notice is not a condition precedent to any other legal action or suit.
4.7.4 Continuing Contract Performance. Pending final resolution of a Claim unless
otherwise agreed in writing the Contractor shall proceed diligently with performance of
the Contract and the Owner shall continue to make payments in accordance with the
Contract Documents.
4.7.5 Waiver of Claims: Final Payment. The making of final payment shall constitute
a waiver of Claim by the Owner except those arising from:
.1 liens, Claims, security interests or encumbrances arising out of the Contract
and unsettled;
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.2 failure of the Work to comply with the requirements of the Contract
Documents; or
.3 terms of special warranties required by the Contract Documents.
4.7.6 Claims for Concealed or Unknown Conditions. If conditions are encountered
at the site which are (1) subsurface or otherwise concealed physical conditions which
differ materially from those indicated in the Contract Documents or (2) unknown
physical conditions of an unusual nature, which differ materially from those ordinarily
found to exist and generally recognized as inherent in construction activities of the
character provided for in the Contract Documents, then notice by the observing party
shall be given to the other party promptly before conditions are disturbed and in no event
later than 21 days after first observance of the conditions. Facilities Development will
promptly investigate such conditions, and the parties will follow the procedure in
paragraph 4.7.2.
4.7.7 Claims for Additional Cost. If the Contractor wishes to make Claim for an
increase in the Contract Sum, written notice as provided herein shall be given before
proceeding to execute the Work. Prior notice is not required for Claims relating to an
emergency endangering life or property arising under Paragraph 10.3 If the Contractor
believes additional cost is involved for reasons including but not limited to (1) a written
order for a minor change in the Work, (2) failure of payment by the Owner, (3)
termination of the Contract by the Owner, (4) Owner's suspension or (5) other
reasonable grounds, Claim shall be filed in accordance with the procedure established
herein.
4.7.8 Claims for Additional Time.
4.7.8.1. If the Contractor wishes to make Claim for an increase in the Contract Time,
written notice as provided herein shall be given.
4.7.8.2 If adverse weather conditions are the basis for a Claim for additional time, such
Claim shall be documented by data substantiating that weather conditions were
abnormal for the period of time and could not have been reasonably anticipated, and
that weather conditions had an adverse effect on the scheduled construction.
4.7.9 Injury or Damage to Person or Property. If either party to the Contract suffers
injury or damage to person or property because of an act or omission of the other party,
of any of the other party's employees or agents, or of others for whose acts such party is
legally liable, written notice of such injury or damage, whether or not insured, shall be
given to the other party within a reasonable time not exceeding 21 days after first
observance. The notice shall provide sufficient detail to enable the other party to
investigate the matter. If a Claim for additional cost or time related to this Claim is to be
asserted, it shall be filed as provided in SUbparagraphs 4.7.7 or 4.7.8.
ARTICLE 5
SUBCONTRACTORS
5.1 Definitions
5.1.1 A Subcontractor is a person or entity who has a direct contract with the
Contractor to perform a portion of the Work at the site. The term "Subcontractor" is
referred to throughout the Contract Documents as if singular in number and means a
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Subcontractor or an authorized representative of the Subcontractor. The term
"Subcontractor" does not include other Contractors or subcontractors of other
Contractors.
5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract
with a Subcontractor to perform a portion of the Work at the site. The term "Sub-
subcontractor" is referred to throughout the Contract Documents as if singular in number
and means a Sub-subcontractor or an authorized representative of the Sub-
subcontractor.
5.2 Award of Subcontracts and Other Contracts for Portions of the Work
5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements,
the Contractor, as soon as practicable after award of the Contract, shall furnish in writing
to Facilities Development for review by the Owner, the names of persons or entities
(including those who are to furnish materials or equipment fabricated to a special design)
proposed for each principal portion of the Worle Facilities Development will promptly
reply to the Contractor in writing stating whether or not the Owner, or Facilities
Development, after due investigation, has reasonable objection to any such proposed
person or entity. Failure of Facilities Development to reply promptly shall constitute
notice of no reasonable objection.
5.2.2 The Contractor shall not contract with a proposed person or entity to whom the
Owner or Facilities Development has made reasonable and timely objection. The
Contractor shall not be required to contract with anyone to whom the Owner or Facilities
Development has made reasonable objection.
5.2.3 If the Owner or Facilities Development refuses to accept any person or entity on
a list submitted by the Contractor in response to the requirements of the Contract
Documents, the Contractor shall submit an acceptable substitute; however, no increase
in the Contract Sum shall be allowed for any such substitution.
5.2.4 The Contractor shall not change a Subcontractor, person or entity previously
selected if the Owner or Facilities Development makes reasonable objection to such
change.
5.3 Subcontractual Relations
5.3.1 By appropriate written agreement, the Contractor shall require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be
bound to the Contractor by terms of the Contract Documents, and to assume toward the
Contractor all the obligations and responsibilities which the Contractor, by these
Documents, assumes toward the Owner, and Facilities Development. Each subcontract
agreement shall preserve and protect the rights of the Owner and Facilities Development
under the Contract Documents with respect to the Work to be performed by the
Subcontractor so that subcontracting thereof will not prejudice such rights. When
appropriate, the Contractor sh911 require each Subcontractor to enter into similar
agreements with Sub-subcontractors. The Contractor shall make available to each
proposed Subcontractor, copies of the Contract Documents which the Subcontractor will
be bound, and, upon written request of the Subcontractor, identify to the Subcontractor
terms and conditions of the proposed subcontract agreement which may be at variance
with the Contract Documents. Subcontractors shall similarly make copies of applicable
portions of such documents available to their respective proposed Sub-subcontractors.
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5.4 Contingent Assignment of Subcontracts
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the
Contractor to the Owner provided that:
.1 assignment is effective only after termination of the Contract by the Owner for
cause pursuant to Paragraph 14.2 and only for those subcontract agreements which the
Owner accepts by notifying the Subcontractor in writing; and
.2 assignment is subject to the prior rights of the surety, if any, obligated under
public construction bond covering the Contract.
5.4.2 If the work has been suspended for more then 30 days, the Subcontractor's
compensation shall be equitably adjusted.
ARTICLE 6
CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS
6.1 Owner's Right to Perform Construction with Own Forces and to Award
Other Contracts
6.1.1 The Owner reserves the right to perform construction or operations related to the
Project with the Owner's own forces, which include persons or entities under separate
contracts. The Owner further reserves the right to award other contracts in connection
with other portions of the Project or other construction or operations on the site under
Conditions of the Contract identical or substantially similar to these including those
portions related to insurance and waiver or subrogation.
6.1.2 When the Owner performs construction or operations with the Owner's own
forces including persons or entities under separate contracts not administered by
Facilities Development, the Owner shall provide for coordination of such forces with the
Work of the Contractor who shall cooperate with them.
6.1.3 It shall be the responsibility of the Contractor to coordinate his work with the work
of other contractors on the site. The Owner and Facilities Development shall be held
harmless of any and all costs associated with improper coordination.
6.2 Mutual Responsibility
6.2.1 The Contractor shall afford the Owner's own forces, Facilities Development and
other Contractors reasonable opportunity for introduction and storage of their materials
and equipment and performance of their activities, and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract
Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon
construction or operations by the Owner's own forces or other Contractors, the
Contractor shall, prior to proceeding with that portion of the Work, promptly report to
Facilities Development apparent discrepancies or defects in such other construction that
would render it unsuitable for such proper execution and results. Failure of the
Contractor so to report shall constitute an acknowledgment that the Owner's own forces
or other Contractors' completed or partially completed or partial completed construction
is fit and proper to receive the Contractor's Work, except as to defects not then
reasonably discoverable.
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6.2.3 Costs caused by delays or by improperly timed activities or defective construction
shall be borne by the contractor.
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed or partially completed construction or to property of the Owner
or other Contractors as provided in Subparagraph 10.2.5.
6.2.5 Claims and other disputes and matters in question between the Contractor and
other Contractors shall be subject to the provisions of Paragraph 4.7 provided the other
Contractors have reciprocal obligations.
6.2.6 The Owner and other Contractors shall have the same responsibilities for cutting
and patching as are described for the Contractor in Paragraph 3.14.
6.2.7 Should the Contractor contend that he is entitled to an extension of time for
completion of any portion or portions of the work, he shall, within (72) hours of the
occurrence of the cause of the delay, notify Facilities Development in writing, of his
contention: setting forth (A) the cause for the delay, (B) a description of the portion or
portions of work affected thereby, and (C) all details pertinent thereto. A subsequent
written application for the specific number of days of extension of time requested shall
be made by the Contractor to Facilities Development within (72) hours after the delay
has ceased to exist.
.1 It is a condition precedent to the consideration or prosecution of any claim for
an extension of time that the foregoing provisions be strictly adhered to in each instance
and, if the Contractor fails to comply, he shall be deemed to have waived the claim.
.2 The Contractor agrees that whether or not any delay, regardless of cause,
shall be the basis for an extension of time he shall have no claim against the
Owner or Facilities Development for an increase in the Contract price, nor a claim
against the Owner or Facilities Development for a payment or allowance of any kind for
damage, loss or expense resulting from delays; nor shall the Contractor have any claim
for damage, loss or expense resulting from interruptions to, or suspension of, his work to
enable other contractors to perform their work. The only remedy available to the
Contractor shall be an extension of time.
6.3 Owner's Right to Clean Up
6.3.1 If a dispute arises among the Contractor, other Contractors and the Owner as to
the responsibility under their respective contracts for maintaining the premises and
surrounding area free from waste materials and rubbish as described in Paragraph 3.15,
the Owner may clean up and allocate the cost among those responsible as Facilities
Development determines to be just.
ARTICLE 7
CHANGES IN THE WORK
7.1 Changes
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and
without invalidating the Contract, by Change Order, Construction Change Directive or
order for a minor change in the Work, subject to the limitations stated in this Article 7 and
elsewhere in the Contract Documents.
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7.1.2 A Change Order shall be based upon agreement among the Owner, Facilities
Development, and Contractor; a Construction Change Directive require agreement by
the Owner and Facilities Development and mayor may not be agreed to by the
Contractor; an order for a minor change in the Work may be issued by Facilities
Development alone.
7.1.3 Changes in the Work shall be performed under applicable provisions of the
Contract Documents, and the Contractor shall proceed promptly, unless otherwise
provided in the Change Order, Construction Change Directive or order for a minor
change in the Work.
7.1.4 If unit prices are stated in the Contract Documents or subsequently agreed upon,
and if quantities originally contemplated are so changed in a proposed Change Order or
Construction Change Directive that application of such unit prices to quantities of Work
proposed will cause substantial inequity to the Owner or Contractor, the applicable unit
prices shall be equitably adjusted.
7.2 Change Orders
7.2.1 A change Order is a written instrument prepared by Facilities Development and
signed by the Owner, Facilities Development, and Contractor, stating their agreement
upon all of the following:
.1 a change in the Work;
.2 the amount of the adjustment in the Contract Sum, if any; and
.3 the extent of the adjustment in the Contract Time, if any.
7.2.2 The cost or credit to the Owner resulting from a change in the Work shall be
determined in one or more of the following methods:
.1 mutual acceptance of lump sum properly itemized and supported by sufficient
substantiating data to permit evaluation and payment, and approved by the appropriate
authority in writing;
.2 unit prices stated in the Contract Documents or subsequently agreed upon,
and approved by the appropriate authority in writing;
.3 cost to be determined in a manner agreed upon by the parties and a mutually
acceptable fixed or percentage fee;
.4 or by method provided in subparagraph 7.2.3.
7.2.3 If none of the methods set forth in Clauses 7.2.1 or 7.2.2 is agreed upon, the
Contractor, provided a written order signed by the Owner or Facilities Development is
received, shall promptly proceed with the Work involved. The cost of such Work shall
then be determined by daily force accounts in a form acceptable to the Owner and
Facilities Development. The daily force account forms shall identify Contractor and lor
Subcontractor personnel by name, total hours for each man, each piece of equipment
and total hours for equipment and all material(s) by type for each extra Work activity
claim. Each daily force account form shall be signed by the designated Facilities
Development's representative no later than the close of business on the day the Work is
performed to verify the items and hours listed. Extended pricing of these forms shall be
submitted to Facilities Development with all supporting documentation required by
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Facilities Development for inclusion into a change order. Unless otherwise provided in
the Contract Documents, cost shall be limited to the following: cost of materials,
including sales tax and cost of delivery; cost of labor, including social security, old age
and unemployment insurance, and fringe benefits required by agreement or custom;
works' or workmen's compensation insurance; and the rental value of equipment and
machinery. Markups for overhead and profit will be in accordance with subparagraph
7.2.4. Pending final determination of cost, payments on account shall be made as
determined by Facilities Development. The amount of credit to be allowed by the
Contractor for any deletion or change, which results in a net decrease in the Contract
Sum, will be the amount of the actual net cost as confirmed by Facilities Development.
When both additions and credits covering related Work or substitutions are involved in
anyone change, the allowance for overhead and profit shall be figured on the basis of
the net increase, if any with respect to that change.
7.2.4 The actual cost of Changes in the Work may include all items of labor or material,
power tools, and equipment actually used, utilities, pro rata charges for foreman, and all
payroll charges such as Public Liability and Workmen's Compensation Insurance. No
percentage for overhead and profit shall be allowed on items of Social Security and
Sales Tax. If deductions are ordered the credit shall be the net cost. Items considered
as overhead shall include insurance other than that mentioned above, bond or bonds,
superintendent, timekeeper, clerks, watchmen, use of small tools, miscellaneous
supplies, incidental job costs, warranties, and all general home/field office expenses.
The actual cost of Changes in the Work (other than those covered by unit prices set forth
in the Contract Documents) shall be computed as follows:
.1 if the Contractor performs the actual Work, the maximum percentage mark-up
for overhead shall be five percent (5%) and the maximum percentage for profit shall be
five percent (5%);
.2 if the Subcontractor performs the actual Work, the percentage mark-up for
overhead and profit shall be a maximum addition of ten percent (10%). If the Contractor
does not perform the Work, the maximum mark-up for managing the Work will be five
percent (5%);
3. if the Subcontractor performs part of the actual Work, his percentage mark-up
for overhead and profit shall be a maximum addition of ten percent (10%) on his direct
Work only. If the Contractor performs part of the actual Work, his percentage mark-up for
overhead and profit shall be a maximum addition of ten percent (10%) on his direct Work
only.
7.2.5 The Contractor shall furnish to the Owner through Facilities Development, an
itemized breakdown of the quantities and prices used in computing the value of any
change that might be ordered. Any additional supporting documentation requested by
Facilities Development such as certified quotations or invoices shall be provided by the
Contractor to Facilities Development at no additional cost to the Owner.
7.2.6 If the Contractor claims that any instructions given to him by Facilities
Development, by drawings or otherwise, involve extra Work not covered by the Contract,
he shall give Facilities Development written notice thereof within five (5) days after the
receipt of such instructions and before proceeding to execute the work, except in
emergencies endangering life or property, in which case the Contractor shall proceed in
accordance with Paragraph 10.3.
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.1 The written notice to Facilities Development for the Extra Work shall include a
complete description of the extra Work, the total cost and a detailed cost breakdown by
labor, material and equipment for each additional activity required to be performed.
Mark-ups shall be limited as specified elsewhere in this Article.
.2 Except as otherwise specifically provided, no claim for additional cost shall be
allowed unless the complete notice specified by this subparagraph is given by the
Contractor.
7.2.7 Unless otherwise agreed in writing, the Contractor shall carry on the Work and
maintain its progress during any dispute or claim proceeding, and Owner shall continue
to make payments to the Contractor in accordance with the Contract Documents.
Disputes unresolved shall be settled in accordance with subparagraph 4.7. The
Contractor shall maintain completed daily force account forms in accordance with
subparagraph 7.2.3 for any dispute or claim item.
7.4 Authority
7.4.1 Facilities Development will have authority to order minor changes in the Work not
involving adjustment in the Contract sum or extension of the Contract Time and not
inconsistent with the intent of the Contract Documents. Such changes shall be effected
by written order issued through Facilities Development and shall be binding on the
Owner and Contractor. The Contractor shall carry out such written order promptly.
ARTICLE 8
TIME
8.1 Definitions
8.1.1 Unless otherwise provided, Contract Time is the period of time, including
authorized adjustments, allotted in the Contract Documents for Substantial Completion
of the Work.
8.1.2 The date of commencement of the Work is the date established in the
Agreement. The date shall not be postponed by the failure to act of the Contractor or of
persons or entities for whom the Contractor is responsible.
8.1.3 The date of Substantial Completion is the date certified Facilities Development in
accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day
unless otherwise specifically defined.
8.1.5 The Owner/Facilities Development shall be the final judge as to whether
Substantial Completion has been achieved and certifies the date to the Contractor.
8.2 Progress and Completion
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract.
By executing the Agreement the Contractor confirms that the Contract Time is a
reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the
Owner in writing, prematurely commence operations on the site or elsewhere prior to the
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effective date of insurance required by Article 11 to be furnished by the Contractor. The
date of commencement of the Work shall not be changed by the effective date of such
insurance.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall
achieve Substantial Completion within the Contract Time.
8.3 Delays and Extensions of Time
8.3.1 If the Contractor is delayed, at any time, in the progress of the Work by any act or
neglect of the Owner, Facilities Development, or by any employee of either, or by any
separate contractor employed by the Owner, or by changes ordered in the Work, or by
fire, unusual delay in transportation, adverse weather conditions not reasonably
anticipatable, unavoidable casualties or any causes beyond the Contractor's control, or
by delay authorized by the Owner, Facilities Development, or by any other cause which
Facilities Development determines may justify the delay, then the Contract Time shall be
extended by no cost Change Order for such reasonable time as Facilities Development
may determine, in accordance with subparagraph 6.2.7.
8.3.2 Any claim for extension of time shall be made in writing to Facilities Development
not more than seventy-two (72) hours after the commencement of the delay in
accordance with paragraph 6.2.7; otherwise it shall be waived. Any claim for extension
of time shall state the cause of the delay and the number of days of extension
requested. If the cause of the delay is continuing, only one claim is necessary, but the
Contractor shall report the termination of the cause for the delay within seventy-two (72)
hours after such termination in accordance with paragraph 6.2.7; otherwise, any claim
for extension of time based upon that cause shall be waived.
8.3.3 No claim for an increase in the Contract Sum for either acceleration or delay will
be allowed for extensions of time pursuant to this Paragraph 8.3 or for other changes in
the Construction Schedules.
8.3.4 If the Project is delayed as a result of the Contractor's refusal or failure to begin
the Work on the date of commencement as defined in Paragraph 8.1.2, or his refusal or
failure to carry the Work forward expeditiously with adequate forces, the Contractor
causing the delay shall be liable, but not limited to, delay claims from other Contractors
which are affected.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 Contract Sum
9.1.1 The Contract Sum is stated in the Agreement and, including authorized
adjustments, is the total amount payable by the Owner to the Contractor for performance
of the Work under the Contract Documents.
9.2 Schedule of Values
9.2.1 Before the first Application for Payment, the Contractor shall submit to Facilities
Development, a schedule of values allocated to various portions of the Work, prepared
in such form and supported by such data to substantiate its accuracy as Facilities
Development may require. This schedule, unless objected to by Facilities Development
shall be used as a basis for reviewing the Contractor's Applications for Payment.
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9.3 Applications for Payment
9.3.1 At least fifteen days before the date established for each progress payment, the
Contractor shall submit to Facilities Development an itemized Application for Payment
for Work completed in accordance with the schedule of values. Such application shall
be notarized and supported by such data substantiating the Contractor's right to
payment as the Owner and Facilities Development may require, such as copies of
requisitions from Subcontractors and material suppliers, and reflecting retainage if
provided for elsewhere in the Contract Documents.
.1 Such applications may include request for payment on account of changes in
the Work which have been properly authorized by Construction Change Directives but
not yet included in Change Orders.
.2 Such applications may not include requests for payment of amounts the
Contractor does not intend to pay to a Subcontractor or material supplier because of a
dispute or other reason.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made
on account of materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the Work. If approved in advance by the Owner, payment
may similarly be made for materials and equipment suitably stored off the site at a
location agreed upon in writing. Payment for materials and equipment stored on or off
the site shall be conditioned upon compliance by the Contractor with procedures
satisfactory to the Owner to establish the Owner's title to such materials and equipment
or otherwise protect the Owner's interest, and shall include applicable insurance, storage
and transportation to the site for such materials and equipment stored off the site.
9.3.3 The Contractor warrants 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
have been previously issued and payments received from the Owner shall, to the best of
the Contractor's knowledge, information and belief, be free and clear of liens, claims
security interests or encumbrances in favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having provided
labor, materials and equipment relating to the Work. All Subcontractors and Sub-
subcontractors shall execute an agreement stating that title will so pass, upon their
receipt of payment from the Contractor. The warranties are for the administrative
convenience of the Owner only and do not create an obligation on the part of the Owner
to pay directly any unpaid subcontractor, laborer or materialmen. Such persons must
seek payment from the Contractor or his public construction bond surety only.
9.4 Approval for Payment
9.4.1 Facilities Development will assemble an Application for Payment by combining
the Contractor's applications with similar applications for progress payments from other
Contractors and approve the amounts due on such applications.
9.4.2 Facilities Development will either approve an Application for Payment, with a
copy to the Contractor, for such amount as Facilities Development determines is
properly due, or notify the Contractor in writing of Facilities reasons for withholding
approval in whole or in part as provided in Subparagraph 9.5.1.
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9.4.3 The issuance of a separate Approval for Payment will constitute representations
made separately by Facilities Development to the Owner, based on their individual
observations at the site and the data comprising the Application for Payment submitted
by the Contractor, that the Work has progressed to the point indicated and that, to the
best of Facilities Development's knowledge, information and belief, quality of the Work is
in accordance with the Contract Documents. The foregoing representations are subject
to an evaluation of the Work for conformance with the Contract Documents upon
Substantial Completion, to results of subsequent tests and inspections. to minor
deviations from the Contract Documents correctable prior to completion and to specific
qualifications expressed by Facilities Development. The issuance of a separate
Approval for Payment will further constitute a representation that the Contractor is
entitled to payment in the amount approved. However, the issuance of a separate
Approval for Payment will not be a representation that Facilities Development has (1)
made exhaustive or continuous on-site inspections to check the quality or quantity of the
Work, (2) reviewed the Contractor's construction means, methods, techniques,
sequences or procedures, (3) reviewed copies of requisitions received from
Subcontractors and material suppliers and other data requested by the Owner to
substantiate the Contractor's right to payment or (4) made examination to ascertain how
or for what purpose the Contractor has used money previously paid on account of the
Contract Sum.
9.5 Decisions to Withhold Approval
9.5.1 Facilities Development may decline to approve an Application for Payment if, in
his opinion, the application is not adequately supported. If the Contractor and Facilities
Development cannot agree on a revised amount, Facilities Development shall process
the Application for the amount it deems appropriate. Facilities Development may also
decline to approve any Application for Payment because of subsequently discovered
evidence or subsequent inspections. It may nullify, in whole or part, any approval
previously made to such extent as may be necessary in its opinion because of: (1)
defective Work not remedied; (2) third party claims filed or reasonable evidence
indicating probable filing of such claims; (3) failure of the Contractor to make payments
properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence
that the Work cannot be completed for the unpaid balance of the Contract Sum; (5)
damage to Facilities Development, the Owner, or another contractor working at the
project; (6) reasonable evidence that the Work will not be completed within the contract
time; (7) persistent failure to carry out the Work in accordance with the Contract
Documents.
No payment shall be made to the Contractor until certificates of insurance or other
evidence of compliance by the Contractor, with all the requirements of Article 11, have
been filed with the Owner and Facilities Development.
9.5.2 When the above reasons for withholding approval are removed, approval will be
made for amounts previously withheld.
9.6 Progress Payments
9.6.1 After Facilities Development has received an Approved Application for Payment,
the Owner shall make payment in the manner and within the time provided in the
Contract Documents, and shall so notify Facilities Development. From the total of the
amount determined to be payable on a progress payment, ten percent (10%) of such
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total amount will be deducted and retained by the Owner until the final payment is made.
The balance ninety percent (90%) of the amount payable, less all previous payments,
shall be approved for payment.
.1 It is understood and agreed that the Contractor shall not be entitled to
demand or receive progress payment based on quantities of Work in excess of those
provided in the proposal or covered by approved change orders, except when such
excess quantities have been determined by Facilities Development to be a part of the
final quantity for the item of Work in question.
.2 No progress payment shall bind the Owner to the acceptance of any materials
or Work in place, as to quality or quantity. All progress payments are subject to
correction at the time of final payments.
9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment
from the Owner, out of the amount paid to the Contractor on account of such
Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled,
reflecting percentages actually retained from payments to the Contractor on account of
such Subcontractor's portion of the Work. The Contractor shall, by appropriate
agreement with each Subcontractor, require each Subcontractor to make payments to
Sub-subcontractors in similar manner.
9.6.3 Facilities Development will, on request, furnish to a Subcontractor, if practicable,
information regarding percentages of completion or amounts applied for by the
Contractor and action taken thereon by the Owner and Facilities Development on
account of portions of the Work done by such Subcontractor.
9.6.4 Neither the Owner, nor Facilities Development shall have an obligation to payor
to see to the payment of money to a Subcontractor except as may otherwise be required
bylaw.
9.6.5 Payment to material suppliers shall be treated in a manner similar to that
provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4.
9.6.6 A progress payment, or partial or entire use or occupancy of the Project by the
Owner shall not constitute acceptance of Work not in accordance with the Contract
Documents.
9.6.7 All material and work covered by partial payments made shall thereupon become
the sole property of the Owner, and by this provision shall not be construed as relieving
the Contractor from the sole responsibility for the materials and Work upon which
payments have been made or the restoration for any damaged material, or as a waiver
of the right of the Owner or Facilities Development to require the fulfillment of all the
terms of the Contract.
9.6.8 Except in case of bona fide disputes, or where the Contractor has some other
justifiable reason for delay, the Contractor shall pay for all transportation and utility
services not later than the end of the calendar month following that in which services are
rendered and for all materials, tools, and other expendable equipment which are
delivered at the site of the Project. The Contractor shall pay to each of his
Subcontractors, not later than the end of the calendar month in which each payment is
made to the Contractor, the representative amount allowed the Contractor on account of
the Work performed by the Subcontractor. The Contractor shall, by an appropriate
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agreement with each Subcontractor, also require each Subcontractor to make payments
to his suppliers and Sub-subcontractors in a similar manner.
9.8 Substantial Completion
9.8.1 Substantial Completion is the stage in the progress of the Work when the Work
or designated portion thereof is sufficiently complete in accordance with the Contract
Documents so the Owner can occupy or utilize the Work for its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the
Owner agrees to accept separately, is substantially complete, the Contractor and
Facilities Development shall jointly prepare a comprehensive list of items to be
completed or corrected. The Contractor shall proceed promptly to complete and correct
items on the list. Failure to include an item on such list does not alter the responsibility
of the Contractor to complete all Work in accordance with the Contract Documents.
Upon completion of the list, Facilities Development will make an inspection to determine
whether the Work or designated portion thereof is substantially complete. If the
inspection discloses any item, whether or not included on the list, which is not in
accordance with the requirements of the Contract Documents, the Contractor shall,
before issuance of the Certificate of Substantial Completion, complete or correct such
item upon notification. The Contractor shall then submit a request for another inspection
by Facilities Development, to determine Substantial Completion. When the Work or
designated portion thereof is substantially complete, Facilities Development will prepare
a Certificate of Substantial Completion, and shall establish responsibilities of the Owner
and Contractor for security, maintenance, heat, utilities, damage to the Work and
insurance, and shall fix the time within which the Contractor shall finish all items on the
list accompanying the Certificate. Warranties required by the Contract Documents shall
commence on the date of Substantial Completion of the Work or designated portion
thereof unless otherwise provided in the Certificate of Substantial Completion. The
Certificate of Substantial Completion shall be submitted to the Owner and Contractor for
their written acceptance of responsibilities assigned to them in such Certificate.
9.8.3 Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Contractor and certification by Facilities Development, the Owner shall
make payment, reflecting adjustment in retainage, if any, for such Work or portion
thereof as provided in the Contract Documents.
9.9 Partial Occupancy or Use
9.9.1 The Owner may occupy or use any completed or partially completed portion of
the Work at any stage when such portion is designated by separate agreement with the
Contractor, provided such occupancy or use is consented to by the insurer as required
under Subparagraph 11.3.1 and authorized by public authorities having jurisdiction over
the Work. Such partial occupancy or use may commence whether or not the portion is
substantially complete, provided the Owner and Contractor have accepted in writing the
responsibilities assigned to each of them for payments, retainage if any, security,
maintenance, heat, utilities, damage to the Work and insurance, and have agreed in
writing concerning the period for correction of the Work and commencement of
warranties required by the Contract Documents. When the Contractor considers a
portion substantially complete, the Contractor and Facilities Development shall jointly
prepare a list as provided under Subparagraph 9.8.2. Consent of the Contractor to
partial occupancy or use shall not be unreasonably withheld. The stage of the progress
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of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, by decision of Facilities Development.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Facilities
Development, and Contractor shall jointly inspect the area to be occupied or portion of
the Work to be used in order to determine and record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions
of the Work shall not constitute acceptance of Work not complying with the requirements
of the Contract Documents.
9.10 Final Completion and Final Payment
9.10.1 Upon completion of the Work, the Contractor shall forward to Facilities
Development a written notice that the Work is ready for final inspection and acceptance
and shall also forward to Facilities Development a final Contractor's Application for
Payment. Upon receipt, Facilities Development will promptly make such inspection.
When Facilities Development finds the Work acceptable under the Contract Documents
and the Contract fully performed, Facilities Development will promptly issue a final
Approval for Payment stating that to the best of their knowledge, information and belief,
and on the basis of their observations and inspections, the Work has been completed in
accordance with terms and conditions of the Contract Documents and that the entire
balance found to be due the Contractor and noted in said final Approval is due and
payable. Facilities Development's final Approval for Payment will constitute a further
representation that conditions listed in Subparagraph 9.10.2 as precedent to the
Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due
until the Contractor submits to Facilities Development (1) an affidavit that payrolls, bills
for materials and equipment, and other indebtedness connected with the Work for which
the Owner or the Owner's property might be responsible or encumbered (less amounts
withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing
that insurance required by the Contract Documents to remain in force after final payment
is made, is currently in effect and will not be canceled or allowed to expire until at least
30 days' prior written notice has been given to the Owner, (3) a written statement that
the Contractor knows of no substantial reason that the insurance will not be renewable
to cover the period required by the Contract Documents, (4) consent of surety, if any, to
final payment and (5), if required by the Owner, other data establishing payment or
satisfaction of obligations, such as receipts, releases and waivers of liens, claims,
security interests or encumbrances arising out of the Contract.
9.10.3 Not Used.
9.10.4 Acceptance of final payment by the Contractor, a Subcontractor or material
supplier shall constitute a waiver of claims by that payee except those previously made
in writing and identified by that payee as unsettled at the time of final Application for
Payment. Such waivers shall be in addition to the waiver described Subparagraph 4.7.5.
9.11 Payment of Subcontractors
9.11.1 Any requirement of this Article 9 that the Contractor furnish proof to the Owner
and Facilities Development that the subcontractors and materialmen have been paid is
for the protection and convenience of the Owner only. Unpaid subcontractors and
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materialmen may only seek payment from the Contractor and the surety that provided
the Contractor's Public Construction Bond. The Contractor must insert this
paragraph 9.11 in all its contracts with subcontractors and materialmen.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 Safety Precautions and Programs
10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs in connection with the performance of the Contract.
The Contractor shall submit the Contractor's safety program to Facilities Development
for review and coordination with the safety programs of other Contractors.
10.1.2 In the event the Contractor encounters on the site material reasonably believed
to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered
harmless, the Contractor shall immediately stop Work in the area affected and report the
condition to the Owner and Facilities Development in writing. The Work in the affected
area shall not thereafter be resumed except by written agreement of the Owner and
Contractor if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has
not been rendered harmless. The Work in the affected area shall be resumed in the
absence of asbestos or polychlorinated biphenyl (PCB), or when it has been rendered
harmless, by written agreement of the Owner and Contractor.
10.1.3 The Contractor shall not be required pursuant to Article 7 to perform without
consent any Work relating to asbestos or polychlorinated biphenyl (PCB).
10.1.5 If reasonable precautions will be inadequate to prevent foreseeable bodily injury
or death to persons resulting from a material or substance encountered on the site by
the Contractor, the Contractor shall, upon recognizing the condition, immediately stop
Work in the affected area and report the condition to the Owner and Facilities
Development in writing. The Owner, Contractor and Facilities Development shall then
proceed in the same manner described in Subparagraph 10.1.2.
10.1.6 The Owner shall be responsible for obtaining the services of a licensed
laboratory to verify a presence or absence of the material or substance reported by the
Contractor and, in the event such material or substance is found to be present, to verify
that it has been rendered harmless. Unless otherwise required by the Contract
Documents, the Owner shall furnish in writing to the Contractor and Facilities
Development the names and qualifications of persons or entities who are to perform
tests verifying the presence or absence of such material or substance or who are to
perform the task of removal or safe containment of such material or substance. The
Contractor and Facilities Development will promptly reply to the Owner in writing stating
whether or not any of them has reasonable objection to the persons or entities proposed
by the Owner. If the Contractor or Facilities Development has an objection to a person
or entity proposed by the Owner, the Owner shall propose another to whom the
Contractor and Facilities Development have no reasonable objection.
10.2 Safety of Persons and Property
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
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.2 the Work and materials and equipment to be incorporated therein, whether in
storage on or off the site, under care, custody or control of the Contractor or the
Contractor's Subcontractors or Sub-subcontractors;
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction; and
.4 construction or operations by the Owner or other Contractors.
10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on safety of persons or
property or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent sites and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or equipment or
unusual methods are necessary for execution of the Work, the Contractor shall exercise
utmost care and carry on such activities under supervision of property qualified
personnel.
10.2.5 The Contractor shall promptly remedy damage and loss to property referred to in
Clauses 10.2.1.2, 10.2.1.3, 10.2.1.4 caused in whole or in part by the Contractor, a
Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of
them, or by anyone for whose acts they may be liable and for which the Contractor is
responsible under Clauses 10.2.1.2, 10.2.1.3 and 10.2.1.4, except damage or loss
attributable to acts or omissions of the Owner, Facilities Development or anyone directly
or indirectly employed by any of them, or by anyone for whose acts any of them may be
liable, and not attributable to the fault or negligence of the Contractor. The foregoing
obligations of the Contractor are in addition to the Contractor's obligations under
Paragraph 3.18.
10.2.6 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This person
shall be the Contractor's superintendent unless otherwise designated by the Contractor
in writing to the Owner and Facilities Development.
10.2.7 The Contractor shall not load or permit any part of the construction or site to be
loaded so as to endanger its safety.
10.3 Emergencies
10.3.1 In an emergency affecting safety of persons or property, the Contractor shall act,
at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional
compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Paragraph 4.7 and Article 7.
ARTICLE 11
INSURANCE AND BONDS
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11.1.1 Prior to commencement of Work governed by this contract (including the
prestaging of personnel and material), the Contractor shall obtain, at its own expense,
insurance as specified in the schedule set forth in Section 00110 Proposal Form which
are made part of this Agreement. The Contractor will ensure that the insurance obtained
will extend protection to all subcontractors engaged by the Contractor. As an alternative
the Contractor may require all subcontractors to obtain insurance consistent with the
attached schedules.
11.1.2 The Contractor will not be permitted to commence Work governed by the
Agreement (including pre-staging of personnel and material) until satisfactory evidence
of the required insurance has been furnished to the County as specified below. Delays
in the commencement of Work resulting from the failure of the Contractor to provide
satisfactory evidence of the required insurance shall not extend deadlines specified in
this Agreement and any penalties and failure to perform assessments shall be imposed
as if the Work commenced on the specified date and time, except for the Contractor's
failure to provide satisfactory evidence of insurance.
11.1.3 The Contractor shall maintain the required insurance throughout the entire term
of this contract and any extensions specified in any attached schedules. Failure to
comply with this provision may result in the immediate suspension of all Work until the
required insurance has been reinstated or replaced. Delays in the completion of Work
resulting from the failure of the Contractor to maintain the required insurance shall not
extend deadlines specified in this Agreement and any penalties and failure to perform
assessments shall be imposed as if the Work commenced on the specified date and
time, except for the Contractor's failure to provide satisfactory evidence of insurance.
11.1.4 The Contractor shall provide, to the County in care of Facilities Development, as
satisfactory evidence of the required insurance, either:
Certificate of Insurance
or
A certified copy of the actual insurance policy
11.1.5 The County, at its sole option, has the right to request a certified copy of any or
all insurance policies required by this Contract.
11.1.6 All insurance policies must specify that they are not subject to cancellation,
nonrenewal, material change, or reduction in coverage unless a minimum of thirty (30)
days prior notification is given to the County by the insurer.
11.1.7 The acceptance and/or approval of the Contractor's insurance shall not be
construed as relieving the Contractor from any liability or obligation assumed under this
contract or imposed by law.
11.1.8 The Monroe County Board of County Commissioners, its employees and officials
will be included as "Additional Insured" on all policies, except for Worker's
Compensation.
11.1.9 In addition, the County will be named as an additional insured and loss payee on
all policies covering County -owned property.
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11.1.10 Any deviations from these General Insurance Requirements must be requested
in writing on the County prepared form entitled "Request for Waiver of Insurance
Requirements" and approved by the Monroe County's Risk Manager.
11.2 Builder's Risk Insurance
11.2.1 Ouildel's Risk Insuranciil is to be provided by 1I1e C~ @ M 2;.
11.3 Public Construction Bond
11.3.1 The Owner shall require the Contractor to furnish a Public Construction Bond in
the form provided by the Owner as a guarantee for the faithful performance of the
Contract (including guarantee and maintenance provisions) and the payment of all
obligations arising thereunder. The Public Construction Bond shall be in an amount at
least equal to the contract price. This contract is subject to the provisions of Section
255.05, Florida Statutes, which are incorporated herein.
ARTICLE 12
UNCOVERING AND CORRECTION OF WORK
12.1 Uncovering of Work
12.1.1 If a portion of the Work is covered contrary to Facilities Development's request or
to requirements specifically expressed in the Contract Documents, it must, if required in
writing by either Facilities Development or the Owner, be uncovered for their observation
and be replaced at the Contractor's expense without change in the Contract Time.
12.1.2 If a portion of the Work has been covered which Facilities Development has not
specifically requested to observe prior to its being covered, Facilities Development may
request to see such Work and it shall be uncovered by the Contractor, if such Work is in
accordance with the Contract Documents, costs of uncovering and replacement shall, by
appropriate Change Order, be charged to the Owner, if such Work is not in accordance
with the Contract Documents, the Contractor shall pay such costs unless the condition
was caused by the Owner or one of the other Contractors in which event the Owner shall
be responsible for payment of such costs.
12.2 Correction of Work
12.2.1 The Contractor shall promptly correct Work rejected by Facilities Development or
failing to conform to the requirements of the Contract Documents, whether observed
before or after Substantial Completion and whether or not fabricated, installed or
completed. The Contractor shall bear costs of correcting such rejected Work, including
additional testing and inspections and compensation for Facilities Development's
services and expenses made necessary thereby.
12.2.2 If, within one year after the date of Substantial Completion of the Work or
designated portion thereof, or after the date for commencement of warranties
established under Subparagraph 9.9, or by terms of an applicable special warranty
required by the Contract Documents, any of the Work is found to be not in accordance
with the requirements of the Contract Documents, the Contractor shall correct it promptly
after receipt of written notice from the Owner to do so unless the Owner has previously
given the Contractor a written acceptance of such condition. This period of one year
shall be extended with respect to portions of Work first performed after Substantial
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Completion by the period of time between Substantial Completion and the actual
performance of the Work. This obligation under this Subparagraph 12.2.2 shall survive
acceptance of the Work under the Contract and termination of the Contract. The Owner
shall give such notice promptly after discovery of the condition.
12.2.3 The Contractor shall remove from the site portions of the Work which are not in
accordance with the requirements of the Contract Documents and are neither corrected
by the Contractor nor accepted by the Owner.
12.2.4 If the Contractor fails to correct nonconforming Work within a reasonable time,
the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not
proceed with correction of such nonconforming Work within a reasonable time fixed by
written notice from Facilities Development, the Owner may remove it and store the
salvable materials or equipment at the Contractor's expense. If the Contractor does not
pay costs of such removal and storage within ten days after written notice, the Owner
may upon ten additional days' written notice sell such materials and equipment at
auction or at private sale and shall account for the proceeds thereof, after deducting
costs and damages that should have been borne by the Contractor, including
compensation for Facilities Development's services and expenses made necessary
thereby. If such proceeds of sale do not cover costs which the Contractor should have
borne, the Contract Sum shall be reduced by the deficiency. If payments then or
thereafter due the Contractor are not sufficient to cover such amount, the Contractor
shall pay the difference to the Owner.
12.2.5 The Contractor shall bear the cost of correcting destroyed or damaged
construction, whether completed or partially completed, of the Owner or other
Contractors caused by the Contractor's correction or removal of Work which is not in
accordance with the requirements of the Contract Documents.
12.2.6 Nothing contained in this Paragraph 12.2 shall be construed to establish a period
of limitation with respect to other obligations which the Contractor might have under the
Contract Documents. Establishment of the time period of one year as described in
Subparagraph 12.2.2, relates only to the specific obligation of the Contractor to correct
the Work, and has no relationship to the time within which the obligation to comply with
the Contract Documents may be sought to be enforced, nor to the time within which
proceedings may be commenced to establish the Contractor's liability with respect to the
Contractor's obligations other than specifically to correct the Work.
12.3 Acceptance of Nonconforming Work
12.3.1 If the Owner prefers to accept Work which is not in accordance with the
requirements of the Contract Documents, the Owner may do so instead of requiring its
removal and correction, in which case the Contract Sum will be reduced as appropriate
and equitable. Such adjustment shall be effected whether or not final payment has been
made.
ARTICLE 13
MISCELLANEOUS PROVISION
13.1 Governing Law
13.1.1 The contract shall be governed by the laws of the State of Florida. Venue for any
claims or disputes arising under this contract shall be in the Circuit Court of the 16th
Judicial Circuit of the State of Florida.
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13.2 Successors and Assigns
13.2.1 The Owner or Facilities Development (as the case may be) and the Contractor
each binds himself, his partners, successors, assigns, and legal representatives of such
other party in respect to all covenants, agreements, and obligations contained in the
Contract Documents. Neither party to the Contract shall assign the Contract without the
written consent of the other.
13.2.2 The Contractor shall not assign any monies due or to become due under this
Contract without prior written consent of the Owner or Facilities Development.
13.3 Written Notice
13.3.1 Anny written notices or correspondence given pursuant to this contract shall be
sent by United States Mail, certified, return receipt requested, or by courier with proof of
delivery. Notice shall be sent to the following persons:
For Contractor:
Charley Toppino & Sons
P.O. Box 787
Key West. FL 33041
For Owner: Director of Facilities Development
1100 Simonton St.. Room 2-216
Tom Willi. County Administrator
1100 Simonton St.
Key West. Florida
33040
Key West Florida
33040
13.4 Rights and Remedies
13.4.1 Duties and obligations imposed by the Contract Documents and rights and
remedies available thereunder shall be in addition to and not a limitation of duties,
obligations, rights and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Facilities Development, or Contractor
shall constitute a waiver of a right or duty afforded them under the contract, nor shall
such action or failure to act constitute approval of or acquiescence in a breach
thereunder, except as may be specifically agreed in writing.
13.5 Tests and Inspections
13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract
Documents or by laws, ordinances, rules, regulations or orders of public authorities
having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the
Contractor shall make arrangements for such tests, inspections and approvals with an
independent testing laboratory or entity acceptable to the Owner, or with the appropriate
public authority, and shall bear all related costs of tests, inspections and approvals. The
Contractor shall give Facilities Development timely notice of when and where tests and
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inspections are to be made so Facilities Development may observe such procedures.
The Owner shall bear costs of test, inspections or approvals which do not become
requirements until after bids are received or negotiations concluded.
13.5.2 If Facilities Development, the Owner or public authorities having jurisdiction
determine that portions of the Work require additional testing, inspection or approval not
included under Subparagraph 13.5.1, Facilities Development will, upon written
authorization from the Owner, instruct the Contractor to make arrangements for such
additional testing, inspection or approval by an entity acceptable to the Owner, and the
Contractor shall give timely notice to Facilities Development of when and where tests
and inspections are to be made so Facilities Development and may observe such
procedures. The Owner shall bear such costs except as provided in Subparagraph
13.5.3.
13.5.3 If such procedures for testing, inspection or approval under Subparagraphs
13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements
established by the Contract Documents, the Contractor shall bear all costs made
necessary by such failure including those of repeated procedures and compensation for
Facilities Development's services and expenses.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise
required by the Contract Documents, be secured by the Contractor and promptly
delivered to Facilities Development.
13.5.5 If Facilities Development is to observe tests, inspections or approvals required by
the Contract Documents, Facilities Development will do so promptly and, where
practicable, at the normal place of testing.
13.5.6 Test or inspections conducted pursuant to the Contract Documents shall be
made promptly to avoid unreasonable delay in the Work.
13.7 Commencement of Statutory Limitation Period
13.7.1 The statute of limitations applicable to this contact are as provided in Section
95.11 (3) (C), Florida Statutes.
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 Termination by the Owner for Cause
14.1.1 The Owner may terminate the Contract if the Contractor:
.1 persistently or repeatedly refuses or fails to supply enough properly skilled
workers or proper materials;
.2 fails to make payment to Subcontractors for materials or labor in accordance
with the respective agreements between the Contractor and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or orders of a
public authority having jurisdiction;
.or
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.4 otherwise is guilty of substantial breach of a provision of the Contract
Documents.
14.1.2 When any of the above reasons exist, the Owner, after consultation with
Facilities Development, may without prejudice to any other rights or remedies of the
Owner and after giving the Contractor and the Contractor's surety, if any, 72 hours
written notice, terminate employment of the Contractor and may, subject to any prior
rights of the surety:
.1 take possession of the site and of all materials, equipment, tools, and
construction equipment and machinery thereon owned by the Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
.3 finish the Work by whatever reasonable method the Owner may deem
expedient.
14.1.3 When the Owner terminates the Contract for one of the reasons stated in
Subparagraph 14.1.1, the Contractor shall not be entitled to receive further payment until
the Work is finished.
14.1.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work,
including compensation for Facilities Development's services and expenses made
necessary thereby, such excess shall be paid to the Contractor. If such costs exceed
the unpaid balance, the Contractor shall pay the difference to the Owner. The amounts
to be paid to the Contractor or Owner, as the case may be, shall, upon application, be
certified by Facilities Development, and this obligation for payment shall survive
termination of the Contract.
14.2 Suspension or Termination by the Owner for Convenience
14.2.1 The Owner may, without cause, order the Contractor in writing to terminate,
suspend, delay or interrupt the Work in whole or in part for such period of time as the
Owner may determine.
14.2.2 In the event of Termination the Owner shall pay for work completed to date of
Termination.
END OF SECTION 00750
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