HomeMy WebLinkAboutW&J Construction - MGF+CAPE Ctr 20201007MASTER CONSTRUCTION AGREEMENT
MULTI -GENE '` m;ONAL FACIU AND CAPE CENTER
PROJECT No. RFQ #2020-01
THIS MASTER CONSTRUCTION AGREEMENT MADE THIS of October,
2020 between the CITY OF CAPE CANAVERAL, a Florida municipal corporation (herein
referred to as "OWNER" or "City") and W & J CONSTRUCTION CORPO ON, a Florida
corporation authorized and duly licensed to do business in the State of Florida (herein referred
to as "CONTRACTOR"), as follows:
WHEREAS, the City desires to obtain construction manager at -risk (CMAR) services
to include construction phase services for the construction of the Multi -Generational Facility
and Culture, Arts, Preservation and Enrichment Center ("Cape Center") Projects ("Projects');
and
WHEREAS, the City has followed the selection and negotiation process set forth in
the Florida's Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes
specifically for the projects that are identified in RFQ #2020-01 and set forth herein; and
WHEREAS, CONTRACTOR participated in the selection and negotiation process under
RFQ #2020-01 and desires to provide CMAR services to the City to complete the construction
of the Projects; and
WHEREAS, CONTRACTOR is willing to provide such CMAR services to the City under
the terms and conditions stated herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties covenant and agree as follows:
1. DESCON OF WORK - CONTRACTOR shall perform the work (the "Work" or
"Services"), in accordance with the Contract Documents for the construction of the
new Multi -Generational Facility to be located at 7920 Orange Avenue, Cape Canaveral,
Florida and Cape Center to be located at 105 Polk Avenue, Cape Canaveral, Florida
(the "Projects" or "Project Sites"). The CONTRACTOR agrees to furnish its best skill
and judgment and to cooperate with the City's Project Manager, where applicable, in
furthering the interests of the City. The CONTRACTOR shall furnish efficient business
administration and superintendence and to use its best efforts to complete the Work
in an expeditious and economical manner consistent with the interests of the City. The
CONTRACTOR agrees to furnish construction services as set forth herein and required
for completion of the Work on a guaranteed maximum price basis. The CONTRACTOR
represents that it is thoroughly familiar with and understands the requirements of the
referenced Projects and that it is experienced in the administration and construction
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of building projects of the types and scopes referenced above. The CONTRACTOR
represents to the City that it has all necessary construction education, skill, knowledge,
and experience required for these Projects and will maintain, at all times during the
term of this Agreement, such personnel on its staff to provide and conduct the Work
contemplated hereby within the time periods required for each Project. In addition,
CONTRACTOR represents that it has, and all of the Subcontractors performing Work
under this Agreement will have, all applicable licenses required by the State of Florida
to perform such Work.
C.ON CT DOCUMENTS E- The Contract Documents are complementary, and what
is called for by any one shall be as binding as if called for by all. The intent of the
Contract Documents is to include all labor, materials, equipment, transportation, taxes,
fees and incidentals necessary for the proper and complete execution of the Work for
each Project. Materials or Work described in words which so applied have a well-
known technical or trade meaning shall be held to refer to such recognized standards.
Any discrepancies or omissions found in the Contract Documents shall be reported to
the City's Project Manager immediately. The City's Project Manager will clarify
discrepancies or omissions, in writing, within a reasonable time. In the event of
discrepancies among the Contract Documents, priority shall be given in the following
order:
First This Master Agreement, including all Exhibits
Second Proposal
Third Special Provisions
Fourth Instructions to Bidders
Fifth Technical Provisions and Project Specifications Manual (see Section
12(d))
Sixth Drawings and Construction Plans (see Section 12(d))
Seventh Performance and Payment Bonds
a. Guaranteed Maximum Price (GMP)._ The City will pay the CONTRACTOR
the GMP for the construction of the Projects in the total amount of Seven Million
Nine Hundred and Ninety -Eight Thousand One Hundred Ninety -Three and
No/100 Dollars ($7,998,193.00) C'G P"). The GMP is the construction price
agreed to between the CONTRACTOR and the City (as more specifically detailed and
set forth in Exhibit "A," which is attached hereto and incorporated herein by this
reference.) and is the maximum total price that the CONTRACTOR guarantees not to
exceed for the construction of the Projects. The GMP is itemized for the two Projects
as Six Million Two Hundred Eighty -One Thousand Nine Hundred Twenty -Three
Thousand and No/100 ($6,281,923.00) for the construction of the Multi -Generational
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Facility (including associated park improvements) and One Million Seven Hundred
Sixteen Thousand Two Hundred Seventy and No/100 Dollars ($1,716,270.00) for the
Cape Center. The CONTRACTOR guarantees that the contract sum shall not exceed
the GMP, as it may be modified in writing from time to time. To the extent the cost of
the Work exceeds the GMP, the CONTRACTOR shall bear such costs in excess of the
GMP without reimbursement or additional compensation from the City. The GMP is
subject to additions and deductions by Change Order as provided in the Contract
Documents. Notwithstanding the stipulated GMP, the Contractor shall maintain a true
"open book" method of disclosure and cooperation with the City. As such, during the
execution of the Work required under this Agreement, the Contractor's entire process
of budgeting, contract negotiations, subcontracts, Project expenses and related
records, and change order negotiations shall be completely transparent and open to
review, analysis, input, and approval by the City during regular Project team meetings
or upon request of the City.
b. CON.,crows Contingency. The CONTRACTOR'S contingency,
established in the GMP, may be utilized, with the City's concurrence, for the following
reasons:
(i) errors and omissions in the CONTRACTOR's bidding and scoping
processes;
(ii) reasonable schedule recovery;
(iii) means, methods, and materials reasonably inferred from the
Contract Documents;
(iv) subcontractor non-performance or default;
(v) Work not included in the Contract Documents that is necessary
to cause the Projects to conform to applicable building codes but was
not identified as missing during the review of Contract Documents
(through no fault of the CONTRACTOR), but expressly excluding any
legal costs and expenses, including, without limitation, attorneys' fees
and costs, associated with the Projects;
(vi) other costs incurred by the CONTRACTOR that are not cost of
the Work, for provision of management services necessary to complete
the Projects in an expeditious and economical manner consistent with
the Contract Documents and the best interests of the City, but expressly
excluding any legal costs and expenses, including, without limitation,
attorneys' fees and costs, associated with the Assigned Project.
If upon completion of seventy-five percent (75%) of the Work, the
remaining amount of contingency exceeds one-half of the amount of the initial
post -buyout contingency, such excess shall be transferred via Change Order to
the City.
c. Buyout Savings.
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(I) If Construction Manager receives bids for portions of the Work
that are less than the amounts budgeted in the GMP proposal approved
by City for such portions of the Work, such buyout savings shall be
transferred to contingency and first be utilized to offset shortfalls on other
bid packages.
(ii) If, after offsetting any shortfalls, buyout savings remain, at the
time provided in the Project schedule for the award of subcontracts, all
buyout savings shall be returned to the City via "no cost" Change Order.
(iii) The net amount of buyout savings and savings from City's
purchase of Direct Purchase Materials may be utilized by the City for the
following or other reasons:
1. City's or the City's Project Manager's requested changes;
2. Additive bid alternates and deductive credits;
3. Design errors or omissions in the Contract Documents
that were not detected by the CONTRACTOR through no fault of
CONTRACTOR, including Work necessary to cause the Projects
to conform to applicable building codes;
4. Differing/unforeseen existing conditions, as permitted by
the Contract Documents.
d. Progress Payments. CONTRACTOR shall provide an accounting for each
Project separately for payment purposes based on the completed Work for each
Project. Partial payments calculated from completed Work in place and acceptable to
the City at the unit bid prices or agreed -upon schedule of values will be made on or
about the fifteenth (15th) of each month on pay estimates based on the previous
month's progress. The CONTRACTOR shall, after the first of each month, submit an
invoice for materials used and Work performed for the previous month. A form of pay
estimate, stating that the bill is fair and equitable and in exact accord with contract
prices, will be utilized for pay purposes. Once the construction phase of the Work
commences, ten percent (10%) of the amount due and payable to the CONTRACTOR
will be retained from each month's partial payment ("Retainage") until such time the
City's Project Manager determines that Contractor has completed at least fifty percent
of the construction services required to complete each of the Projects pursuant to this
Agreement, then upon such determination for each Project, the Retainage will be
reduced to five percent (5%) for the remaining payments for each Project. Final
payment for each Project will be accomplished as prescribed in the Contract
Documents and will be based on complete Work in place for the respective Project.
The CONTRACTOR shall (i) provide satisfactory evidence that it has acquired title to
the materials, that materials have been paid for, and that the material will be used to
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perform Work for the Projects, and (ii) provide a Consent of Surety for the progress
payments.
e. Florida Prompt Payment Act. All payments to be made hereunder shall be
due and payable as provided by the Florida Prompt Payment Act, Section 218.70 et.
seq., Florida Statutes.
4. PROJECT T M — The CONTRACTOR, the City, and the City's Project Manager,
Architect and other consultants (if any) will work as a team through construction
completion of each Project. The City shall designate a Project Manager as its
representative authorized to act on its behalf with respect to each Project. The
CONTRACTOR shall provide leadership to the Project Team on all matters relating to
construction. The Project Manager will provide leadership to the Project Team on all
matters relating to design. When performing any Services under this Agreement, the
CONTRACTOR shall utilize the key personnel described in the Proposal. In the event
any such personnel discontinue employment with CONTRACTOR, CONTRACTOR shall
promptly replace such personnel with individuals approved by the City, in writing,
which approval will not be unreasonably withheld.
5. CITY REVIEWS AND STATUS- The City's review, inspection, or approval of any
Work, applications for payment, or other submittals shall be solely for the purpose of
determining whether the same are generally consistent with the City's scope and
requirements for the Projects. No review, inspection, or approval by the City of such
Work or documents shall relieve the CONTRACTOR of its responsibility for the
performance of its obligations under the Contract Documents or the accuracy,
adequacy, fitness, suitability, or coordination of the Work. Approval by any
governmental or other regulatory agency or other governing body of any Work, design
document, or construction document shall not relieve CONTRACTOR of responsibility
for the performance of its obligations under the Contract Documents. Payment by the
City pursuant to the Contract Documents shall not constitute a waiver of any of the
City's rights under the Contract Documents or at law, and CONTRACTOR expressly
accepts the risk that defects in its performance, if any, may not be discovered until
after payment, including final payment, is made by the City. Notwithstanding the
foregoing, prompt written notice shall be given by the City or City Project Manager to
the CONTRACTOR if the City becomes aware of any fault or defect in the Projects or
non-conformance with the Contract Documents. Furthermore, the City shall not have
control or charge of construction means, methods, techniques, sequences, or
procedures, or for safety precautions and programs in connection with the Work, nor
shall the CONTRACTOR, for any of the foregoing purposes, be deemed the agent of
the City.
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6. Aq11 EMENT INTERPRETATION - At its discretion, during the course of the Work,
should any errors, ambiguities, or discrepancies be found in the Contract Documents,
the CITY at its sole discretion will interpret the intent of the Contract Documents and
work descriptions and the CONTRACTOR hereby agrees to abide by the CIZY's
interpretation and agrees to carry out the work in accordance with the decision of the
CITY. Whenever Materials or Equipment are specified or described in the Contract
Documents by using the name of a proprietary item or the name of a particular
supplier, the naming of the item is intended to establish the type, function and quality
required. The CONTRACTOR will be responsible for all coordination necessary to
accommodate the material, article, or equipment being provided without additional
cost to the CITY. Unless the name is followed by words indicating that no substitution
is permitted, a substitute material, article, or equipment is allowed if it is reasonably
equivalent to the brand name specified, and CONTRACTOR certifies in writing that the
proposed substitute will perform adequately the functions called for by the general
design, be similar and of equal substance to that specified and be suited to the same
use and capable of performing the same function as that specified. The CITY has full
discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR
must notify the CITY prior to use of the substitute for a specified brand name and
allow the CITY to make a determination before CONTRACTOR uses the substitute.
7§RAND NAME- Whenever Materials or Equipment are specified or
described in the Drawings or Specifications by using the name of a proprietary item or
the name of a particular Supplier, the naming of the item is intended to establish the
type, function and quality required. The CONTRACTOR will be responsible for all
coordination necessary to accommodate the material, article, or equipment being
provided without additional cost to the CITY. Unless the name is followed by words
indicating that no substitution is permitted, a substitute material, article, or equipment
is allowed if it is reasonably equivalent to the brand name specified and CONTRACTOR
certifies in writing that the proposed substitute will perform adequately the functions
called for by the general design, be similar and of equal substance to that specified
and be suited to the same use and capable of performing the same function as that
specified. . The CITY has full discretion to decide whether a substitute is reasonably
equivalent. CONTRACTOR must notify the CITY in writing prior to use of the substitute
for a specified brand name and allow the CITY to make a determination before
CONTRACTOR uses the substitute.
8. PRWECT PHASES - CONTRACTOR acknowledges that the Work will consist of two
phases:
Phase 1 - Completion of Construction of the Multi -Generational Facility in accordance
with the approved drawings and construction plans ("Phase I"); and
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Phase II - Completion of Construction of the Cape Center in accordance with the
approved drawings and construction plans ("Phase II").
Phase I and Phase II shall each be completed by the substantial and final completion
dates specified in the Agreement.
9. CON CT TIME A O
AIL_
a. The CONTRACTOR shall at all times carry out its duties and responsibilities as
expeditiously as possible and in accordance with the Project schedule, subject to delays
in the schedule not the fault of the CONTRACTOR or its Subcontractors. Time is of the
essence in the performance of this Agreement.
b. All provisions regarding the Project Schedule are essential to the performance
of this Contract.
c. The Work shall be completed within the following Project Schedule:
(i) Construction Phase I shall be substantially complete within 330
calendar days from the issuance of a building permit(s) sufficient to
commence and allow physical construction and the issuance of a written
Notice to Proceed by the CITY.
(ii) Construction Phase II shall be substantially complete within 180
calendar days from the issuance of a building permit(s) sufficient to
commence and allow physical construction and the issuance of a written
Notice to Proceed by the CITY.
(iii) The Work shall be finally completed for Construction Phase I and
II respectively, ready for Final Payment in accordance with the Contract
Documents, within 30 calendar days after the actual date of Substantial
Completion of Construction Phase I and II respectively.
d. The parties acknowledge that the Contract Time provided in the Contract
Documents includes consideration of adverse weather conditions common to
Central Florida's east coast, including the possibility of hurricanes and tropical
storms.
e. If applicable to the particular Work required by this Agreement, Float time is
allocated specifically to the CONTRACTOR's responsibility for coordination of
any utility relocations required to complete the Work. CITY will not consider
any Contract Time extensions related to utility coordination matters including,
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but not limited to, utility relocations and conflicts, unless the utility relocation
delays exceed the float time and also extend the Project Schedule's Critical
Path.
f. The date of substantial completion of the Work is the date certified by the CITY,
in writing, when (1) construction is sufficiently complete, in accordance with
the Contract Documents, so the CITY can occupy the Work for its intended
purposes, as expressed by the Contract Documents, and (2) any additional
Project -specific requirements or milestones for "substantial completion"
identified in the general or special conditions or drawings/construction plans
have been satisfied.
g.
The issuance of the written Notice to Proceed for each respective Project shall
be at the CITY's sole discretion after the issuance of the building permits for
the respective Project.
10. EPA / F C The CONTRACTOR shall, among other
things, (i) visit and thoroughly inspect the Project Sites and any structure(s) or other
man-made features to be modified and become familiar with local conditions under
which the Projects will be constructed and operated; (ii) if applicable, familiarize itself
with the survey, including the location of all existing buildings, utilities, conditions,
streets, equipment, components, and other attributes having or likely to have an
impact on the Projects; (iii) familiarize itself with the City's layout and design
requirements, conceptual design objectives, and budget for the Projects; (iv)
familiarize itself with pertinent Project dates, including the Project Schedule; (v) review
and analyze all Project geotechnical, hazardous substances, structural, chemical,
electrical, mechanical, and construction materials tests, investigations, and
recommendations; and (vi) gather any other information necessary for a thorough
understanding of the Projects. If the Projects involve modifications to any existing
structure(s) or other man-made feature(s) on the Project Site, the CONTRACTOR shall
also review all as -built and record drawings, plans, and specifications of which the
CONTRACTOR has been informed by the City, and shall thoroughly inspect the existing
structure(s) and man-made feature(s) to identify existing deficiencies and ascertain
the specific locations of pertinent structural components. Claims by the CONTRACTOR
resulting from its failure to familiarize itself with the Project Sites or pertinent
documents shall be deemed waived.
11. LIQUIDATED DAMAGE$ - Inasmuch as failure to substantially complete the Work
according to the Project schedule for each Project will result in injury to the City, and
as damages arising from such failure cannot be calculated with any degree of certainty,
it is agreed that if the Work is not substantially completed within the time provided by
the Project schedule, or within such further time, if any, as shall be allowed for time
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extensions in accordance with the provisions of the Contract Documents, the
CONTRACTOR shall pay to the City as liquidated damages for such delay, and not as
a penalty, the amount set forth herein for each calendar day elapsing between the
date fixed for substantial completion and the date such substantial completion is fully
accomplished, as well for each calendar day elapsing between the date fixed for final
completion and the date such final completion is fully accomplished. The parties agree
that said liquidated damages are reasonable given existing circumstances, including,
without limitation, the range of harm that is foreseeable and the anticipation that proof
of damages would be costly and impractical, and accordingly CONTRACTOR shall pay
CITY:
a. $500.00 for each calendar day that expires after the time specified in the
Agreement for Substantial Completion of Phase I until Phase I is Substantially
Complete;
b. $200.00 for each calendar day that expires after the time specified in the
Agreement for Substantial Completion of Phase II until Phase II is Substantially
Complete; and
c. $500.00 for each calendar day that expires after the time specified in the
Agreement for Final Completion of the Work until the Work is finally complete.
The liquidated damages shall be payable in addition to any excess expenses or
costs payable by the CONTRACTOR to the City under the Contract Documents, and
shall not preclude the recovery of damages by the City under other provisions of the
Contract Documents, except claims related to CONTRACTOR's delays in substantial
completion. The City's right to receive liquidated damages shall in no manner affect
the City's right to terminate the Contract Documents, as provided in this Agreement or
elsewhere in the Contract Documents. The City's exercise of the right to terminate
shall not release the CONTRACTOR from the obligation to pay said liquidated damages.
When the City reasonably believes (i) that substantial completion will be
inexcusably delayed; or (ii) that the CONTRACTOR will fail to achieve final completion
by the date of final completion, the City shall be entitled, but not required, to withhold
from any amounts otherwise due the CONTRACTOR the daily amount specified for
liquidated damages for each calendar day of the unexcused delay. If and when the
CONTRACTOR overcomes the delay in timely achieving substantial completion or final
completion, or any part thereof, for which the City has withheld payment, the City shall
promptly release to the CONTRACTOR those funds withheld, but no longer applicable,
as liquidated damages.
12. GENERAL TERMS CO
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a. Detail Drawings and Instructions. The City's Project Manager will furnish,
with reasonable promptness, additional instructions by means of drawings or
otherwise, necessary for the proper execution of the Work. All such drawings and
instructions will be consistent with the Contract Documents, true developments
thereof, and reasonably inferable therefrom.
b. Copies of Drawings Furnished. Unless otherwise provided in the Contract
Documents, the City will fumish to CONTRACTOR, free of charge, electronic copies of
drawings and specifications reasonably necessary for the execution of the Work.
c. Order of Completion. Prior to the start of the Work, CONTRACTOR shall
submit schedules that show the order in which the CONTRACTOR proposes to carry
on the Work with dates at which the CONTRACTOR will start the several parts of the
Work and estimated dates of completion of the several parts. The City's Project
Manager may order the schedule to be supplemented or amended as necessary to
afford proper continuity of the Work.
d. Drawings and Specifications on the Work. The CONTRACTOR and CITY
acknowledge and agree that at the effective date of this Agreement, the drawings and
specifications of the Work are described in the original drawings and specifications
prepared by the CITY's Architect for each Project, described as Architect Job No. 2018-
11 (Cape Center) and Job No. 2018-12 (Multi -Generational Facility) and dated May 5,
2020, as modified in redline format by the value engineering set prepared by the City's
Architect ("V.E. Set"). The CITY shall authorize the CITY's Architect to promptly
provide a final set of drawings and specifications for each respective Project before the
applicable Notice to Proceed is issued under this Agreement consistent with the original
drawings and specifications as modified by the V.E. Set, the GMP and the other terms
and conditions of this Agreement ("Final Drawings and Construction Plans"). The
Architect shall deliver the Final Drawings and Construction Plans for the Multi -
Generational Facility first and the Final Drawings and Construction Plans for the
Projects shall be the final set of plans to be utilized by CONTRACTOR to complete the
Work required hereunder. Additionally, the CITY's Architect shall prepare the Technical
Provisions and Project Specifications Manual to supplement and complement the Final
Drawings and Construction Plans for each Project. Upon completion of the Final
Drawings and Construction Plans and Technical Provisions and Project Specifications
Manual for each Project, the Final Drawings and Construction Plans and Technical
Provisions and Project Specifications Manual for each Project shall be delivered to the
CONTRACTOR and CITY. The CONTRACTOR shall promptly notify the CITY and
Architect of any inconsistencies between V.E. Set and Final Drawings and Construction
Plans. The CONTRACTOR shall keep one paper copy of all Final Drawings and
Construction Plans of the Work with any CONTRACTOR field mark-ups in good
condition available to the City and its representatives. Contractor will continually
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update said copy for all Work performed by the Contractor including, but not limited
to any concealed work or modifications, for purposes of producing an accurate "as -
built" set of plans for each Project. Upon completion of the Work, the paper copy shall
be electronic scanned and a copy shall be provided to the City's Architect so the
Architect can incorporate all Work completed into "as -built" drawings for the City. In
addition, the CONTRACTOR shall be required to provide the City with an "as -built"
survey of the completed Phase I Project site including, but not limited to, the location
of all buildings, structures and utilities as well as all site features and topographical
information.
e. Ownership of Drawings. All drawings, specifications, and copies thereof
fumished by the City are its property. They are not to be used on other work and,
with the exception of the signed contract set, are to be returned to the City on request,
at the completion of the Work.
f. CON &,CTOR's Understanding„ It is understood and agreed that at such
time as CONTRACTOR is authorized to proceed with the Projects by the City, the
CONTRACTOR shall carefully examine the Contract Documents and Project Site, satisfy
itself as to the nature and location of the Work, the conformation of the ground, the
character, quality, and quantity of the materials to be encountered, the character of
the equipment and facilities needed preliminary to and during the prosecution of the
Work, the general and local conditions, and all other matters which can in any way
affect the Work under the Contract Documents. No verbal agreement or conversation
with any officer, agent, or employee of the City, either before or after the execution of
this Agreement shall affect or modify any of the terms or obligations contained in the
Contract Documents.
g. Materials; Appliances; Employees. Unless otherwise stipulated, the
CONTRACTOR shall provide and pay for all materials, fuel, labor, water, tools, sanitary
facilities, power, transportation, and other facilities necessary for the execution and
completion of the Work. Unless otherwise specified, all materials shall be new, and
both workmanship and materials shall be of good quality. The CONTRACTOR shall not
use or allow subcontractors to use any hazardous materials including, but not limited
to, asbestos and lead based paint. The CONTRACTOR shall, if required, fumish
satisfactory evidence as to the kind and quality of materials. The City of Cape
Canaveral proudly supports and encourages buying USA domestic materials. Products
incorporated into the Work shall be produced or manufactured in the United States of
America as defined by the American Recovery and Reinvestment Act of 2009 (ARRA).
This Project is not funded by the ARRA. The City will not pay for material stored in
place. The CONTRACTOR shall at all times enforce strict discipline and good order
among its employees and shall not employ on the Work any unfit person or anyone
not skilled in the work assigned to him.
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h. Royalties and Patents. The CONTRACTOR shall pay all royalties and license
fees. The CONTRACTOR shall defend all suits or claims for infringement of any patent
rights and shall save the City harmless from loss on account thereof except that the
City shall be responsible for all such loss when a particular process or the product of a
particular manufacturer or manufacturers is specified, unless the City has notified the
CONTRACTOR prior to the signing of this Agreement or included in the specifications
a proviso that there may be a patented process or product included in the Projects.
i. Surveys, Permits, and Regulations. The CONTRACTOR will furnish all
surveys unless otherwise specified. Permits and licenses necessary for the prosecution
of the Work shall be secured and paid for by the CONTRACTOR. The CONTRACTOR
shall give all notices and comply with all laws, ordinances, rules, and regulations
bearing on the conduct of the Work as drawn and specified. If the CONTRACTOR
observes that the drawings and specifications are at variance therewith, it shall
promptly notify the City in writing and any necessary changes shall be adjusted as
provided in the contract for changes in the Work. If the CONTRACTOR performs any
work knowing it to be contrary to such laws, ordinances, rules, and regulations and
without such notice to the City, the CONTRACTOR shall bear all costs arising therefrom.
The CONTRACTOR shall continuously maintain adequate protection for all of its Work
from damage and shall protect the City's property from injury or loss. The
CONTRACTOR shall make good any such damage, injury, or loss. The CONTRACTOR
shall adequately protect adjacent property as provided by law and the Contract
Documents and shall provide and maintain all guard fences, lights, and other facilities
for protection required by public authority or local conditions.
j. Inspection of Work. The City and its representatives shall at all times have
access to the Work. The Work will be conducted under the general direction of the
City and is subject to inspection by its appointed inspectors to ensure compliance with
the terms of the Contract Documents. No inspector is authorized to change any
provision of the specifications without written authorization of the City's Project
Manager, nor shall the presence or absence of an inspector relieve the CONTRACTOR
from any requirements of the Contract Documents.
If the specifications, the City's instructions, laws, ordinances, or any public authority,
require any work to be specially tested or approved, the CONTRACTOR shall give the
City timely notice of its readiness for inspection, and of the date fixed for such
inspection. Inspections by the City's Project Manager will be promptly made.
Re-examination of requested work may be ordered by the City. If such work is found
in accordance with the Contract Documents, the City will pay the cost of re-
examination and replacement provided the CONTRACTOR makes a claim therefor. If
such work is found not in accordance with the Contract Documents, the CONTRACTOR
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shall pay such cost, including compensation for professional services, and an
appropriate deductive Change Order shall be issued.
k. Superintendent Supervision. The CONTRACTOR shall keep on the Project
Site during its progress a competent superintendent satisfactory to the City. The
superintendent shall not be changed except with the written consent of the City, unless
the superintendent proves to be unsatisfactory to the CONTRACTOR and ceases to be
in its employ. The superintendent shall represent the CONTRACTOR and all directions
given to him shall be binding. Important directions will be confirmed in writing to the
CONTRACTOR. Other directions will be so confirmed on written request in each case.
If the CONTRACTOR, in the course of the Work, finds any discrepancy between the
drawings and the physical conditions of the locality, or any errors or omission in the
drawings or in layout as given by points and instruction, it shall be the CONTRACTOR's
duty to immediately inform the City and the Architect, in writing, and the City and
Architect will promptly verify the same. Any work done after such discovery, until
authorized by the City pursuant to Section 6.0 herein, will be done at the
CONTRACTOR's risk.
Neither party shall employ or hire any employees of the other party without the other
parry's consent.
I. Changes in the Work. The City, by written change order and without
invalidating the Agreement, may order extra Work or make changes by altering, adding
to, or deducting from the Work, the contract sum being adjusted accordingly.
Additional time required for any change in Work must be included with the requested
Change Order.
In giving instructions, the City's Project Manager will have authority to make minor
changes in the Work, not involving extra cost or time, and not inconsistent with the
purpose of the Work, but otherwise, except in an emergency endangering life or
property, no extra work or change will be made unless it goes through the City's written
Change Order process and is approved by the City, and no claim for an addition to the
contract sum or time will be valid unless so ordered in writing.
The value of any such extra Work or change will be determined in one or more of the
following ways:
1. By mutual acceptance of a lump sum.
2. By unit prices named in the contract or subsequently agreed upon.
3. By cost and percentage or by cost and a fixed fee.
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If none of the above methods is agreed upon, the CONTRACTOR, provided it receives
an order as above, shall proceed with the work. In such case and also under case (3)
above, the CONTRACTOR shall keep and present in such form as the City's Project
Manager may direct, a correct account of the net cost of labor and materials, together
with vouchers. In any case, the City's Project Manager will certify to the amount,
including reasonable allowances for overhead and profit, due to the CONTRACTOR.
Pending final determination of value, payments on account of changes will be made
on the City's Project Manager's estimate.
m. Claims for Extra Cost. If the CONTRACTOR claims that any instructions by
drawings or otherwise involve extra cost under the Contract Documents, it shall give
the City written notice thereof within ten (10) days after the receipt of such
instructions, and in any event before proceeding to execute the work, except in
emergency endangering life or property, and the procedure shall then be as provided
in Section 12 (I) above (Changes in the Work). Claims will not be processed unless
filed in writing before any work has commenced.
n. Deductions for Uncorrected Work. If the City's Project Manager deems it
inexpedient to correct work injured or done not in accordance with the Contract
Documents, an equitable deduction from the contract price will be made therefor by
Change Order.
o. Delays and Extensions of Time. If the CONTRACTOR is delayed at any
time in the progress of the Work by an act of neglect of the City or of its employees,
or by any other contractor employed by the City, or by changes ordered in the Work
or by strikes, lockouts, fire, unusual delay in transportation, unavoidable casualties or
any causes beyond the CONTRACTOR's control, or by delay authorized by the City's
Project Manager pending arbitration, or by any cause which the City's Project Manager
may decide to justify the delay, then the time of completion will be extended for such
reasonable time as the City's Project Manager may decide.
No such extension will be made for delay occurring more than seven (7) days before
the claim is made in writing to the City's Project Manager. In the case of a continuing
cause or delay, only one claim is necessary.
If no schedule or agreement stating the dates upon which drawings shall be furnished
is made, then no claim for delay will be allowed on account of failure to furnish
drawings until two (2) weeks after demand for such drawings and not then unless
such claim be reasonable.
Notwithstanding the above, an extension of contract time, so granted, shall be the
CONTRACTOR's sole and exclusive remedy for delay, disruption, interference,
inefficiency, acceleration, hindrance, and costs thereto.
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p. Correction of Work before Final Payments. The CONTRACTOR shall
promptly correct all work condemned by the City's Project Manager as failing to
conform to the Contract Documents, shall promptly replace and re -execute its own
Work in accordance with the Contract Documents and without expense to the City,
and shall bear the expense of making good all Work.
If the CONTRACTOR does not correct such condemned Work and material within ten
(10) working days' time as fixed by written notice (punch list), the City may correct it
at the expense of the CONTRACTOR. If the CONTRACTOR does not pay the expense
of such correction within ten (10) days thereafter, the City may, upon ten (10) days
written notice, deduct all the cost and expenses that should have been borne by the
CONTRACTOR.
q. Suspension of Work. The City may at any time suspend the Work or any
part thereof, by giving five (5) days' notice to the CONTRACTOR in writing. The Work
shall be resumed by the CONTRACTOR within ten (10) days after the date fixed in a
written notice to resume the Work from the City to the CONTRACTOR. The City will
reimburse the CONTRACTOR for expenses incurred in connection with the Work under
the Contract Documents as a result of such suspension unless the suspension was
ordered by the City's Project Manager to enforce the terms of the Contract Documents
or for any violation of the Contract Documents.
r. City's Right to Reassign Work. If the CONTRACTOR should neglect to
prosecute the Work properly or fail to perform any provision of the Contract
Documents, the City, after three (3) days written notice to the CONTRACTOR, may,
without prejudice to any other remedy it may have, make good such deficiencies at
the CONTRACTOR's expense.
s. Removal of Equipment. In the case of annulment of this Agreement as to
the Projects before completion, from any cause whatever, the CONTRACTOR, if
notified to do so by the City, shall promptly remove any part or all of its equipment
and supplies from the property of the City, failing which the City will have the right to
remove such equipment and supplies at the expense of the CONTRACTOR, and the
City shall have the right to store such equipment and supplies at the CONTRACTOR's
expense. The City shall incur no liability to the CONTRACTOR for loss or damage to
the supplies and equipment so removed and/or stored.
t. Use of Completed Portions. The City will have the right to take possession
of and use any substantially completed portion of the Work, notwithstanding the fact
that the time for completing the entire Work or such portions may not have expired,
but such taking possession and use will not be deemed an acceptance of any Work
not completed in accordance with the Contract Documents. If such prior use increases
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the cost of or delays the Work, the CONTRACTOR will be entitled to such extra
compensation, or extension of time, or both, as the City's Project Manager may
determine.
u. Payments Withheld. The City may withhold or, on account of subsequently
discovered evidence, nullify the whole or a part of any payment request to such an
extent as may be necessary to protect itself from loss on account of:
1. Defective work not remedied.
2. Claims filed or reasonable evidence indicating probable filing of claims.
3. Failure of the CONTRACTOR to make payment properly to
Subcontractors or for materials or labor.
4. The City's Project Manager's opinion that the contract cannot be
completed for the balance then unpaid.
5. Failure to maintain adequate progress.
When the above grounds are removed, payment will be made for amounts withheld
because of them.
v. Safety and Protection. The CONTRACTOR shall be responsible for initiating,
maintaining, and supervising all safety precautions and programs in connection with
the Work. The CONTRACTOR shall take all necessary precautions for the safety of,
and shall provide the necessary protection to prevent damage, injury, or loss to:
1. All employees on the Project Site and other persons who may be
affected thereby.
2. All the Work and all materials or equipment to be incorporated therein,
whether in storage on or off the Project Site.
3. Other property at the Project Site or adjacent thereto.
CONTRACTOR shall comply with all applicable Federal Occupational Safety and Health
Administration (OSHA) and Florida Department of Transportation safety standards and
shall assure and monitor the compliance of its Subcontractors with those same
standards.
Further, CONTRACTOR shall work in compliance with the OSHA Hazardous
Communication Standard and Florida Department of Environmental Protection
guidelines, and shall supply all information about hazardous chemical being brought
onto City property as required by the City's Safety and Loss Control Program.
w. Damages. Any claim for damage arising under the Contract Documents shall
be made in writing to the party liable within ten (10) days after the first observance of
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such damage and not later than the time of final payment, except as expressly
stipulated otherwise in the case of faulty work or materials.
x. Liens. Anything contained in any of the Contract Documents notwithstanding,
all progress payments and the final payment shall be paid by the City to the
CONTRACTOR in compliance with the provisions of the Laws of Florida. The City shall
withhold ten percent (10%) of the amount of each progress payment. The last
payment due under the Contract Documents shall be paid by the City to the
CONTRACTOR only after the CONTRACTOR has furnished the City with an affidavit
stating that all persons, firms, or corporations who have furnished labor or materials,
employed directly or indirectly in the Work, have been paid in full, and in addition,
before the CONTRACTOR shall have the right to receive the final payment due under
the contract, the CONTRACTOR shall furnish the City with releases of lien executed by
all persons, firms, or corporations who have performed or furnished labor, services, or
materials, directly or indirectly, used in the Work. The City shall have the right to
demand and receive from the Construction Manager before it shall receive any
progress payment, receipt bills showing payment in full for all labor, services, and
materials incorporated into the Work, for the period of time for which the progress
payment is due. Likewise, as a condition to receiving any progress payment, the City
may require the CONTRACTOR to furnish any partial releases of lien executed by all
persons, firms, and corporations who have furnished labor, services, or materials
incorporated into the Work during the period of time for which the progress payment
is due, releasing such lien rights as these persons, firms, or corporations may have for
that period. If any of the laborers, subcontractors, or material men shall serve upon
the City a "Notice to Owner" or shall otherwise put the City on notice that they are
owed any unpaid money by the CONTRACTOR, the City shall have the right to pay
these persons directly in the manner provided by Florida's Mechanic's Lien Law, and
the City shall receive a credit therefor upon the contract price accordingly. The
CONTRACTOR does hereby release, remise, and quit claim any and all rights it would
have otherwise enjoyed to perfect a mechanic's lien or any other type of statutory
common law or equitable lien against the Work.
y. Subcontracts. The CONTRACTOR shall, as soon as practicable after signing
this Agreement, notify the City in writing of the names of subcontractors proposed for
the Work and the description of work to be performed by each subcontractor. The
CONTRACTOR shall not employ subcontractors unless they are approved in writing by
the City.
The CONTRACTOR agrees that it is as fully responsible to the City for the acts and
omissions of its Subcontractors and of persons either directly or indirectly employed
by them as it is for the acts and omissions of persons directly employed by the
CONTRACTOR. Nothing contained in the Contract Documents shall create any
contractual relation between any Subcontractor and the City.
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z. Points and Instructions. The CONTRACTOR shall provide reasonable and
necessary opportunities and facilities for setting points and making measurements. It
shall not proceed until he has made timely demand upon the City's Project Manager
for, and has received from him such points and instructions as may be necessary as
the Work progresses. The Work shall be done in strict conformity with such points
and instructions.
aa. City's Project Manager's Status. The City's Project Manager will have
general supervision and direction of the Work. He or she has authority to stop the
Work whenever such stoppage may be necessary to ensure the proper execution of
the contract. He or she will also have authority to reject all work and materials that
do not conform to the Contract Documents, to direct the application of forces to any
portion of the Work, as in his judgment is required, to order the force increased or
diminished, and to decide questions that arise in the execution of the Work.
bb. City's Project Manager's Decisions. The City's Project Manager will, within
reasonable time after their presentation to him, make decisions in writing on all claims
of the CONTRACTOR and on all other matters relating to the execution and progress
of the Work or the interpretation of the Contract Documents. All such decisions of the
City's Project Manager shall be final.
cc. One Year Correction Period. If within one (1) year after the date of
substantial completion of the Projects or such longer period of time as may be
prescribed by law or by the terms of any applicable special guarantee required by the
Contract Documents or by any specific provision of the Contract Documents, any Work
is found to be defective, the CONTRACTOR shall promptly, without cost to the City and
in accordance with the City's written instruction, either correct such defective work, or,
if it has been rejected by the City, remove it from the Project Site and replace it with
non -defective work. If the CONTRACTOR does not promptly comply with the terms
of such instructions, or in an emergency where delay would cause serious risk of loss
or damage, the City may have the defective Work corrected or the rejected Work
removed and replaced, and all direct and indirect costs of such removal and
replacement, including compensation for additional professional services, shall be paid
by the CONTRACTOR.
dd. City Utilities. The CONTRACTOR shall be responsible to provide and pay for
consumption of, and connections to, utilities required for temporary service and
construction unless otherwise directed by the City.
ee. Direct Purchase Program. The City may elect to implement a direct
purchase program whereby it may purchase materials and equipment included in any
subcontractor's bid for a portion of the Work directly from the supplier of such materials
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or equipment in order to achieve sales tax savings. Such materials and equipment are
referred to as "Direct Purchase Materials." If City elects to implement a direct purchase
program, it shall so notify CONTRACTOR in writing, and the terms of this subsection
shall govem, along with City's policies on the subject in effect at the time
CONTRACTOR commences construction of the Projects. The minimum value for a
direct purchase shall be $5,000.00. The CONTRACTOR shall obtain Builder's Risk
insurance on the Direct Purchase Materials naming the City as the insured or an
additional insured, provided City shall reimburse CONTACTOR for the cost of such
insurance as provided by this Agreement. CONTRACTOR shall be responsible for
safeguarding all Direct Purchase Materials on the Project Site on City's behalf.
ff. Warranties and Guarantees. The CONTRACTOR warrants to the CITY and
Architect that: (1) materials and equipment fumished under the Agreement will be
new and in a good and workmanlike manner unless otherwise required or permitted
by the Contract Documents; (2) the Work will be free from defects not inherent in the
quality required or permitted; and (3) the Work will conform to the requirements of
the Contract Documents. Unless otherwise provided in the Technical Provisions and
Project Specifications Manual, this warranty shall run for a period of one (1) year for
each Project from the date that the Project is deemed Finally Completed by the CITY.
Warranties and guarantees related to the Work performed by CONTRACTOR and its
subcontractors may be more specifically set forth in the Technical Provisions and
Project Specifications Manual. Additionally, with respect to all warranties and
guarantees from manufacturers or suppliers for Work performed and materials
furnished under this Agreement, the CONTRACTOR shall obtain all warranties and
guarantees that would be given in normal commercial practice, require all warranties
and guarantees to be executed, in writing, for the benefit of the CITY, if directed by
the CITY's Project Manager, and enforce all warranties and guarantees for the benefit
of the CITY, if directed by the CITY's Project Manager. Furthermore, the
CONTRACTOR shall remedy at the CONTRACTOR's expense any damage to CITY -
owned or controlled real or personal property, when damage is the result of either the
CONTRACTOR's failure to conform to the Contract Documents; or any defect of
equipment, material, workmanship, or design furnished by CONTRACTOR or its
subcontractors.
13. AUDIT G The City may, upon reasonable notice, audit the records of the
CONTRACTOR and its Subcontractors and suppliers during regular business hours,
during the term of this Agreement and for a period of three (3) years after final
payment is made by the City to CONTRACTOR for an Assigned Project or longer, if
required by law. Such audits may be performed by a representative of the City or an
outside representative engaged by City.
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For purposes hereof, CONTRACTOR's "records" means any and all information,
materials, and data of every kind and character, whether hard copy or in electronic
form, which may, in City's judgment, have any bearing on or pertain to the Contract
Documents, including, without limitation, books, subscriptions, recordings,
agreements, purchase orders, leases, contracts, commitments, arrangements, notes,
daily diaries, written policies and procedures, time sheets, payroll registers, payroll
records, cancelled payroll checks, subcontract files (e.g., including proposals of
successful and unsuccessful bidders, bid recap), original estimates, estimating work
sheets, correspondence, Change Order files (including documentation covering
negotiated settlements), back -charge logs and supporting documentation, invoices
and related payment documentation, general ledgers, records detailing cash and trade
discounts earned, insurance rebates and dividends, superintendent reports, drawings,
receipts, vouchers, and memoranda.
City's authorized representative shall have reasonable access to the CONTRACTOR's
facilities, shall be allowed to interview all current or former employees to discuss
matters pertinent to the Contract Documents, shall be provided adequate and
appropriate work space at CONTRACTOR's facilities, may count employees at the Site,
may be present for the distribution of payroll and shall have such other rights of access
as may be reasonably necessary to carry out an audit.
If an audit discloses overpricing or overcharges, CONTRACTOR shall refund the
overpayment. If an audit discloses overpricing or overcharges of one percent (1%) of
the total amount paid hereunder, but in any event more than $200,000, whichever is
Tess, in addition to making adjustments for the overcharges, the reasonable actual cost
of the City's audit shall be reimbursed to the City by the CONTRACTOR. Any
adjustments and/or payments that must be made as a result of any such audit or
inspection of the CONTRACTOR's invoices and/or records shall be made within ninety
(90) calendar days from presentation of City's findings to CONTRACTOR.
CONTRACTOR shall ensure notice of City's audit rights is provided to its
Subcontractors, suppliers, and any other vendor providing services or materials for
each Assigned Project and shall ensure that each agreement it enters into pursuant
hereto includes the provisions of this Section 13.
14. In the event any portion or part thereof of the Contract Documents
is deemed invalid, against public policy, void, or otherwise unenforceable by a court of
law, the parties, at the sole discretion and option of the CITY, shall negotiate an
equitable adjustment in the affected provision of the Contract Documents. The validity
and enforceability of the remaining parts of the Contract Document shall otherwise be
fully enforceable.
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15. PROGRESS MEETINGS— CITY'S Project Manager may hold periodic progress
meetings on a monthly basis, or more frequently if required by the CITY, during the
term of work entered into under this Agreement. CONTRACTOR's Project Manager and
all other appropriate personnel shall attend such meetings as designated by the CITY'S
Project Manager.
16. THIRD PARTY RIGHTS - Nothing in the Contract Documents shall be construed to
give any rights or benefits to anyone other than CITY and CONTRACTOR, unless the
Contract Documents expressly provide otherwise.
17. P^ 'IB ON AGAINST ONTI GENT FEES - CONTRACTOR warrants that it
has not employed or retained any company or person, other than a bona fide employee
working solely for the CONTRACTOR, to solicit or secure this Master 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 the CONTRACTOR, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Master Agreement.
18. NO JOINT YE - Nothing herein shall be deemed to create a joint venture or
principal -agent relationship between CITY and CONTRACTOR, and neither party is
authorized to, nor shall either party act toward third persons or the public in any
manner which would indicate any such relationship with the other party.
19. goRpo TE REPRESENTATIONS Y CON eFOR
represents and warrants to the CITY the following:
CONTRACTOR hereby
a. CONTRACTOR is duly registered and licensed to do business in the State of
Florida and is in good standing under the laws of Florida, and is duly qualified
and authorized to carry on the functions and operations set forth in the Contract
Documents.
b. The undersigned signatory for CONTRACTOR has the power, authority, and the
legal right to enter into and perform the obligations set forth in the Contract
Documents and all applicable exhibits thereto, and the execution, delivery, and
performance hereof by CONTRACTOR has been duly authorized by the board
of directors and/or president of CONTRACTOR. In support of said
representation, CONTRACTOR agrees to provide a copy to the CITY of a
corporate certificate of good standing provided by the State of Florida prior to
the execution of this Agreement.
c. CONTRACTOR is duly licensed under all local, state and federal laws to provide
the Work stated in Section 1.0 herein. In support of said representation,
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CONTRACTOR agrees to provide a copy of all said licenses to the CITY prior to
the execution of this Master Agreement.
20. - CONTRACTOR shall supply a materials, performance and payment bond(s)
in accordance with Florida law and in substantially in conformance with the form
attached to the Agreement Exh i it " and approved by the City Attorney. The
materials, performance, and payment amounts shall be in an amount equal to the total
Guaranteed Maximum Price for the Work. The issuance of bonds required under this
Agreement shall not relieve Contractor of any liability under the Agreement.
Contractor shall remain jointly and severally liable with any surety issuing a bond under
the Contract. The premium for such bonds shall be paid by the CONTRACTOR.
21. - During the term of this Agreement, CONTRACTOR shall be responsible
for providing the types of insurance and limits of liability as set forth below.
a. Gerler �L�bili The CONTRACTOR shall maintain comprehensive general
liability insurance in the minimum amount of $2,000,000 as the combined single limit
for each occurrence, with a deductible no greater than $5,000, unless a higher
deductible is pre -approved by the City Manager, to protect CONTRACTOR from claims
of property damages and personal injury which may arise from any Services performed
under the Contract Documents, whether such Services are performed by
CONTRACTOR or by anyone directly employed by or contracting with CONTRACTOR.
b. Psutompb le L lliy. The CONTRACTOR shall maintain comprehensive
automobile liability insurance in the minimum amount of $2,000,000 per occurrence
combined single limit for bodily injury, including wrongful death, and property damage,
which may arise from the ownership, use, or maintenance of owned and non -owned
automobiles, including rented automobiles, whether such operations be by
CONTRACTOR or by anyone directly or indirectly employed by CONTRACTOR.
c. Worse ' Com ensation. The CONTRACTOR shall maintain, during the life of
this Agreement, adequate Workers' Compensation Insurance and Employers' Liability
Insurance in at least such amounts as are required by law for all of its employees
performing Work for the City pursuant to this Agreement.
d. EnYvir r rrien�at_ I ImpairmentwwInsurance Mi ° imum Re uirements. If the
CONTRACTOR will be locating portable fuel or lubricant storage tanks at the job site
or will be storing or using hazardous chemicals on the job site, it shall maintain
Environmental Impairment Insurance or "Pollution Insurance" with a limit of not less
than $1,000,000 per occurrence and submit proof of same in the form of a certificate
of insurance or an endorsement to its General Liability policy showing a pollution
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exclusion exception for each specific work product or storage container before work is
begun.
e.Builder's Risk Insurance. If City and CONTRACTOR agree to proceed to
construction of the Projects, then the CONTRACTOR shall, before any construction,
acquire and maintain throughout the course of construction, Builder's Risk Insurance
in a dollar amount equal to the full insurable value of the Work under the contract,
which shall include "All Risk" coverage. The City shall be named as a "Loss Payee".
The CONTRACTOR shall be responsible for equipment, materials, and supplies, to
include the City's Direct Purchase equipment, until completion of the Assigned Project
and acceptance by the City.
f. S eclat Re uirements., Current, valid insurance policies meeting the
requirements herein identified shall be maintained during the term of this Agreement.
Renewal certificates shall be sent to the City thirty (30) days prior to any expiration
date. There shall also be a thirty (30) day advance written notification to the City in
the event of cancellation or modification of any stipulated insurance coverage. The
City shall be an additional named insured on stipulated insurance policies included in
Section 21. a, b, and c herein, as its interest may appear, from time to time.
g. Cancellation Chan e or Non -Renewal. The insurance required by this
Agreement shall include the liability and coverage provided herein, or as required by
law, whichever requirements afford greater coverage. All of the policies of insurance
so required to be purchased and maintained shall contain a provision or endorsement
that the coverage afforded will not be canceled, materially changed, or renewal refused
until at least thirty (30) days' prior written notice has been given to the City and
CONTRACTOR by certified mail, return receipt requested. All such insurance shall
remain in effect until final payment. In the event that CONTRACTOR shall fail to
comply with the foregoing requirement, the City is authorized, but in no event shall be
obligated, to purchase such insurance, and the City may bill CONTRACTOR. The
CONTRACTOR shall immediately forward funds to the City in full payment for said
insurance. It is expressly agreed that neither the provision of the insurance referred
to in this Agreement nor the City's acceptance of the terms, conditions, or amounts of
any insurance policy shall be deemed a warranty or representation as to adequacy of
such coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's
Rating Guide (or equivalent rating and rating service as reasonably determined by the
City Manager) and licensed by the State of Florida to engage in the business of writing
of insurance or provided through the London Market for Professional Liability
Insurance. The CONTRACTOR shall cause its insurance carriers, prior to the effective
date of this agreement to furnish insurance certificates specifying the types and
amounts of coverage in effect pursuant hereto, the expiration dates of such policies,
and a statement that no insurance under such policies will be canceled without thirty
(30) days' prior written notice to the City in compliance with other provisions of this
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Agreement. Further copies of all relevant policies will be provided to the City within
thirty (30) days of the effective date of this agreement. If the City has any objection
to the coverage afforded by or other provision of the insurance required to be
purchased and maintained by CONTRACTOR in accordance with this Section 21 on the
basis of its not complying with the Agreement, the City shall notify CONTRACTOR in
writing thereof within thirty (30) days of the date of delivery of such certificates to the
City. For all Work performed pursuant to this Agreement, CONTRACTOR shall
continuously maintain such insurance in the amounts, type, and quality as required by
the Agreement.
h. Independent Associates and Consultants All independent associates and
consultants employed by CONTRACTOR to perform any Services hereunder shall fully
comply with the insurance provisions contained in this Section 21.
22QOVERNING ;MEDIATION - This Master Agreement is made and
shall be interpreted, construed, governed, and enforced in accordance with the laws
of the State of Florida. Venue for any state action or litigation shall be Brevard County,
Florida. Venue for any federal action or litigation shall be in the United States District
Court for the Middle District of Florida, Orlando Division. However, the parties agree
that should any dispute arise between them regarding the terms or performance of
this Agreement, both parties will first participate in mediation unless waived by mutual
written agreement. The parties agree to equally share the cost of the mediator. Should
the parties fail to resolve their differences through mediation, then any cause of action
filed hereunder shall be filed in the venue referenced herein.
23 E ' F - Should either party bring an action to enforce any of the terms
of the Contract, each party shall bear their own attorney's fees and costs.
24. E - Any notice or approval under this Master Agreement shall be sent, postage
prepaid, to the applicable party at the following address:
City of Cape Canaveral
100 Polk Avenue
Cape Canaveral, Florida 32920
ATTN: City Manager
W & J Construction Corporation
1005 Viera Blvd. Suite 202
Rockledge, FL 32955
ATTN
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Either party may change the notice address by providing the other party written notice
of the change.
25. T. RT I - With regard to any and all Work performed
hereunder, it is specifically understood and agreed to by and between the parties
hereto that the contractual relationship between the CITY and CONTRACTOR is such
that the CONTRACTOR is an independent contractor and not an agent of the CITY.
The CONTRACTOR, its contractors, partners, agents, and their employees are
independent contractors and not employees of the CITY. Nothing in this Master
Agreement shall be interpreted to establish any relationship other than that of an
independent contractor, between the CITY, on one hand, and the CONTRACTOR, its
contractors, partners, employees, or agents, during or after the performance of the
Work under this Agreement.
26. ENT P BLI RE ORD Pursuant to Section 119.0701, Florida Statutes,
and other applicable public records laws, CONTRACTOR agrees that any records,
documents, transactions, writings, papers, letters, computerized information and
programs, maps, books, audio or video tapes, films, photographs, data processing
software, writings or other material(s), regardless of the physical form, characteristics,
or means of transmission, of CONTRACTOR related, directly or indirectly, to the
services provided to the City under this Agreement and made or received pursuant to
law or ordinance or in connection with the transaction of official business by the City,
may be deemed to be a public record, whether in the possession or control of the City
or CONTRACTOR. Said records, documents, transactions, writings, papers, letters,
computerized information and programs, maps, books, audio or video tapes, films,
photographs, data processing software, writings or other material(s), regardless of the
physical form, characteristics, or means of transmission of CONTRACTOR are subject
to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without
the specific written approval of the City's designated custodian of public records.
IF THE CONTCTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CON OR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK, AT (321) 868-
1220 x.207, m.goforth@cityofcapecanaveral.org, City Clerk's Office, 100
Palk Avenue, Cape Canaveral, FL 32920.
CONTRACTOR is required to and agrees to comply with public records laws.
CONTRACTOR shall keep and maintain all public records required by the City to
perform the services as agreed to herein. CONTRACTOR shall provide the City, upon
request from the City Clerk, copies of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost
provided by law. CONTRACTOR shall ensure that public records that are exempt or
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confidential and exempt from public records disclosure requirements are not disclosed
except as authorized by law for the duration of the Agreement term. Upon completion
of the Agreement, CONTRACTOR shall transfer to the City, at no cost, all public records
in possession of CONTRACTOR, provided the transfer is requested in writing by the
City Clerk. Upon such transfer, CONTRACTOR shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. However, if the City Clerk does not request that the public records be
transferred, CONTRACTOR shall continue to keep and maintain the public records upon
completion of the Agreement and shall meet all applicable requirements for retaining
public records. All records stored electronically must be provided to the City, upon
request from the City Clerk, in a format that is compatible with the information
technology systems of the City. Should the City not possess public records relating to
this Agreement which are requested to be inspected or copied by the City or any other
person, the City shall immediately notify CONTRACTOR of the request and
CONTRACTOR shall then provide such records to the City or allow the records to be
inspected or copied within a reasonable time. If CONTRACTOR does not comply with
a public records request, the City may enforce this Section to the extent permitted by
law. CONTRACTOR acknowledges that if CONTRACTOR does not provide the public
records to the City within a reasonable time, CONTRACTOR may be subject to penalties
under Section 119.10, Florida Statutes. The CONTRACTOR acknowledges that if a civil
action is filed against CONTRACTOR to compel production of public records relating to
this Agreement, the court may assess and award against CONTRACTOR the
reasonable costs of enforcement, including reasonable attorney fees. All public records
in connection with this Agreement shall, at any and all reasonable times during the
normal business hours of CONTRACTOR, be open and freely exhibited to the City for
the purpose of examination, audit, or otherwise. Failure by CONTRACTOR to grant
such public access and comply with public records laws and/or requests shall be
grounds for immediate unilateral cancellation of this Agreement by the City upon
delivery of a written notice of cancellation. If CONTRACTOR fails to comply with this
Section, and the City must enforce this Section, or the City suffers a third party award
of attomey's fees and/or damages for violating Chapter 119, Florida Statutes, due to
CONTRACTOR's failure to comply with this Section, the City shall collect from
CONTRACTOR prevailing party attorney's fees and costs, and any damages incurred
by the City, for enforcing this Section against CONTRACTOR. And, if applicable, the
City shall also be entitled to reimbursement of all attorneys' fees and damages which
the City had to pay a third party because of CONTRACTOR's failure to comply with this
Section. The terms and conditions set forth in this Section shall survive the termination
of this Agreement.
Reuse of Documents. All documents, including but not limited to, drawings,
specifications, and data or programs stored electronically or otherwise, prepared by
CONTRACTOR and its independent contractors and associates pursuant to this
Agreement or related exclusively to the Services described herein shall be owned by
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the City and may be reused by the City for any reason or purpose at any time.
However, the City agrees that the aforesaid documents are not intended or
represented to be suitable for reuse by the City or others on any undertaking other
than the Work outlined in this Agreement. Any reuse for an undertaking other than
for the Work without verification or adaptation by CONTRACTOR, or its independent
contractors and associates if necessary, to specific purposes intended will be at the
City's sole risk and without liability or legal exposure to CONTRACTOR.
Ownership_of N o u n n s,. The City and CONTRACTOR agree that upon payment of
fees due to CONTRACTOR by the City for a particular design, report, inventory list,
compilation, drawing, specification, model, recommendation, schedule, or otherwise,
said design, report, inventory list, compilation, drawing, specification, technical data,
recommendation, model, schedule, and other instrument produced by CONTRACTOR
in the performance of this Agreement, or any Work hereunder, shall be the sole
property of the City, and the City is vested with all rights therein. The CONTRACTOR
waives all rights of copyright in said design, report, inventory list, compilation, drawing,
specification, technical data, recommendation, model, schedule, and other instrument
produced by CONTRACTOR in the performance of this Agreement, and hereby assigns
and conveys the same to the City whether in the possession or control of
CONTRACTOR or not.
_ir existin Ornershi Rights to Iocumenj. Notwithstanding any provisions to the
contrary contained in this Agreement, CONTRACTOR shall retain sole ownership to its
preexisting information not produced and paid for by the City under this Agreement
including, but not limited to, computer programs, software, standard details, figures,
templates and specifications.
27. SOVEREIG IM - The City intends to avail itself of the benefits of Section
768.28, Florida Statutes and any other statutes and common law governing sovereign
immunity to the fullest extent possible. Neither this provision nor any other provision
of this Agreement shall be construed as a waiver of the City's right to sovereign
immunity under Section 768.28, Florida Statutes, or other limitations imposed on the
City's potential liability under state or federal law. CONTRACTOR agrees that City shall
not be liable under this Agreement for punitive damages or interest for the period
before judgment. Further, City shall not be liable for any claim or judgment, or portion
thereof, to any one person for over two hundred thousand dollars ($200,000.00), or
any claim or judgment, or portion thereof, which, when totaled with all other claims
or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds three hundred thousand dollars ($300,000.00).
Nothing in this Agreement is intended to inure to the benefit of any third party for the
purpose of allowing any claim which would otherwise be barred under the doctrine of
sovereign immunity or by operation of law. This Section shall survive termination of
this Agreement.
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28. INDEMNIFION AND umrrATIONOF ;>> wB
The CONTRACTOR shall defend, indemnify, and hold harmless the City, its officers,
employees, agents, and volunteers, from liabilities, damages, losses, and costs,
including, but not limited to, reasonable attorneys' fees, to the extent caused by the
negligence, recklessness, or intentionally wrongful conduct of CONTRACTOR and other
persons employed or utilized by CONTRACTOR in the performance of this Agreement
and all Contract Documents.
The CONTRACTOR specifically assumes potential liability for actions brought by
CONTRACTOR's own employees against the City and, solely for the purpose of this
indemnification and defense, CONTRACTOR specifically waives its entitlement, if any,
to immunity under Section 440.11, Florida Statutes. This waiver has been specifically
and mutually negotiated by the parties.
The indemnity provisions set forth in this Section shall survive termination of this
Agreement.
For other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, CONTRACTOR expresses its willingness to enter into this
Agreement with the knowledge that CONTRACTOR's recovery from the City to any
action or claim arising from the Agreement is limited to a maximum amount of the
sum of any Agreement amount that is owed by the City for Services actually performed
by CONTRACTOR to the City's complete satisfaction, and in no case shall exceed the
amount provided in Section 27 herein. Nothing contained in this paragraph or
elsewhere in this Agreement is in any way intended either to be a waiver of the
limitation placed upon the City's liability as set forth in Section 768.28 Florida Statutes,
or to extend the City's liability beyond the limits established in said Section 768.28
Florida Statutes; and no claim or award against the City shall include attorney's fees,
investigative costs, expert fees, suit costs, or pre -judgment interest.
PURSUANT TO SECTION 558.0035, FLORIDA STATUTES, AN INDIVIDUAL EMPLOYEE
OR AGENT OF THE CONTRACTOR MAY NOT BE HELD INDNIDUALLY LIABLE FOR
ECONOMIC DAMAGES RESULTING FROM NEGLIGENCE UNDER THIS AGREEMENT IF
THE CONDITIONS OF SECTION 558.0035 ARE SATISFIED.
29. DEFAULT BY CONC s rtgmgons
In addition to the City's right to terminate this Agreement for convenience under
Section 30.0 of this Agreement, the City also reserves the right to revoke and terminate
this Agreement for a default and to rescind all rights and privileges associated with this
Agreement, without penalty, based on a default including, but not limited to, any of
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the following circumstances, each of which shall represent a default and breach of this
Agreement:
a. The CONTRACTOR defaults in the performance of any material covenant or
condition of this Agreement and does not cure such other default within thirty (30)
calendar days after written notice from the City specifying the default complained of,
unless, however, the nature of the default is such that it cannot, in the exercise of
reasonable diligence, be remedied within thirty (30) calendar days, in which case
CONTRACTOR shall have such time as is reasonably necessary to remedy the default,
provided CONTRACTOR promptly takes and diligently pursues such actions as are
necessary therefore; or
b. The CONTRACTOR is adjudicated bankrupt or makes any assignment for the
benefit of creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to
pay its debts; or
c. A writ of garnishment shall be served on the City, seeking to reach funds due
or to become due to CONTRACTOR; or
d. The Government of the United States or any state or county shall garnish,
distrain, attach, or seek to reach funds due or to become due to the CONTRACTOR;
The CONTRACTOR persistently or repeatedly refuses or fails, except in cases of which
extension of time is provided, to supply enough properly skilled workmen or proper
materials; or
e. The CONTRACTOR fails to make prompt payment to Subcontractors or for
material or labor; or
f. The CONTRACTOR persistently disregards laws, ordinances, or the instructions
of the City's Project Manager; or
g. The CONTRACTOR has acted grossly negligent, as defined by general and
applicable law, in performing the Services hereunder; or
h. The CONTRACTOR has committed any act of fraud upon the City; or
i. The CONTRACTOR has made a material misrepresentation of fact to the City
while performing its obligations under this Agreement; or
j. The CONTRACTOR has assigned this Agreement or any Contract Documents
without the City's prior written consent.
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Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the
City shall have the right to exercise any other remedy the City may have by operation
of law, without limitation, and without any further demand or notice.
In the event of such termination upon default and breach of this Agreement, the City
may take possession of the Project Site and of all materials, tools, and appliances
thereon and finish the work by whatever method the City may deem expedient. Any
completed services performed by CONTRACTOR under this Agreement shall, at the
option of the City, become the City's property and CONTRACTOR shall be entitled to
receive equitable compensation for any Work completed to the satisfaction of the City.
The CONTRACTOR, however, shall not be relieved of liability to the City for damages
sustained by the City by reason of any breach of the Agreement, and the City may
withhold any payments to CONTRACTOR for the purpose of setoff until such time as
the amount of damages due to the City from CONTRACTOR can be determined.
30. TERMINATION
Notwithstanding any other provision of this Agreement, the City may, upon written
notice to CONTRACTOR, terminate this Agreement, without penalty, if: (a)
CONTRACTOR is in default pursuant to Section 29 Default; (b) CONTRACTOR makes
a general assignment for the benefit of its creditors; (c) CONTRACTOR fails to comply
with any condition or provision of this Agreement; or (d) CONTRACTOR is experiencing
a labor dispute which threatens to have a substantial, adverse impact upon
performance of this Agreement, without prejudice to any other right or remedy the
City may have under this Agreement.
If the Work should be stopped under an order of any court, or other public authority
for a period of three (3) months, through no act or fault of the CONTRACTOR or
anyone employed by it, or if the City's Project Manager should fail to issue any estimate
for payment within seven (7) days after it is due, or if the City fails to pay the
CONTRACTOR within twenty (20) days of its maturity and presentation, any sum
certified by the Project Manager or awarded by arbitrators, then the CONTRACTOR
may, upon seven (7) days written notice to the City, stop work or terminate this
contract and recover from the City payment for all Work executed and any loss
sustained upon any plant or materials and reasonable profit and damages.
In addition, the City may terminate for convenience without penalty at any time upon
thirty (30) days advance written notice.
In the event of termination, City shall be liable only for the payment of all unpaid
charges, determined in accordance with the provisions of this Agreement, for Work
properly performed prior to the effective date of termination.
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31. SIGNMENT
The CONTRACTOR shall not assign or subcontract this Agreement, any Contract
Documents hereunder, or any rights or any monies due or to become due hereunder
without the prior, written consent of the City. Any Subcontractors employed by
CONTRACTOR for any Work required under this Agreement shall require prior written
approval from the City, unless previously approved in the Contract Documents. Any
attempt to assign or subcontract the responsibilities and payments under this
Agreement without the express prior written consent of the City shall be grounds for
termination of the Agreement.
If upon receiving written approval from the City, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to the City
for all acts and/or omissions performed by the subcontractor as if no subcontract had
been made.
If the City determines that any Subcontractor is not performing in accordance with this
Agreement, the City shall so notify CONTRACTOR who shall take immediate steps to
remedy the situation.
The CONTRACTOR, prior to the commencement of any Work by any Subcontractor,
CONTRACTOR shall require the Subcontractor to provide the City and its affiliates with
insurance coverage as set forth by the City.
32. HEADIN - Paragraph headings are for the convenience of the parties only and are
not to be construed as part of the Master Agreement.
33. .; MODIFICA"" j - The drafting, execution, and delivery of the
Contract by the Parties has not been induced by any representations, statements,
warranties, or agreements other than those expressed herein. The Contract embodies
the entire understanding of the parties, and there are no further or other agreements
or understandings, written or oral, in effect between the parties relating to the subject
matter hereof unless expressly referred to herein. Modifications of the Contract shall
only be made in writing signed by both parties.
34. ER AN ELE E IE - Waiver by either party of any terms, or
provision of the Contract Documents shall not be considered a waiver of that term,
condition, or provision in the future. No waiver, consent, or modification of any of the
provisions of the Contract Documents shall be binding unless in writing and signed by
a duly authorized representative of each party hereto. The Contract Documents may
be executed in any number of counterparts, each of which when so executed and
delivered shall be considered an original agreement; but such counterparts shall
together constitute but one and the same instrument.
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35. D! G - CITY and CONTRACTOR each represent that they have both shared
equally in drafting the Contract Documents and no party shall be favored or disfavored
regarding the interpretation of the Contract Documents in the event of a dispute in
court of competent jurisdiction between the parties. Nothing in this Section is intended
to abrogate or conflict with the City's rights to interpret the Contract Documents
pursuant to Section 6.
Signed, Sealed and Delivered in the presence of:
CONTRACTOR:
W & J CONSTRUCTION CORPORATION
V
Print Name and Title
Date t O ] .
OWNER:
CITY OF CAPE CANAVERAL
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