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Res No 157-11-13471RESOLUTION NO.: 157-11-13471 A Resolution authorizing the City Manager to execute construction contract with Acosta Tractor, Inc. in the amount of $ 208,573.87 for the SW 66th Street Improvement Project Phase II to be charged to the Capitol Outlay Account 106- 3303 - 541 -6440. WHEREAS, the Mayor and City Commission wishes to provide drainage and street improvements along SW 66th Street from SW 59th Place to SW 61St Court. WHEREAS, the City requested and received bids from Florida Engineering & Development in the amount of $220,026.02, Horizon Contractors, Inc. in the amount of $224,875.00, Team Contracting in the amount of $258,664.83 and Caribe Utilities in the amount of $319,605.60. WHEREAS, Acosta Tractors, Inc. submitted a bid of $208,573.87, which was the lowest, most responsive and most responsible bidder for SW 66th Street Improvements Phase II. WHEREAS, the total construction cost is $208,573.87, funded by Capitol Outlay from Account Number 106 - 3303 - 541 -6440; WHEREAS, the Mayor and City Commission desires to authorize the City Manager to execute a construction contract with Acosta Tractors, Inc. for the SW 66th Street Improvements Phase II for the amount of $208,573.87. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI, FLORIDA THAT: Section 1: The City Manager is hereby authorized to execute the construction contract and issue a Purchase Order to Acosta Tractors, Inc. for the SW 66th Street Improvements Phase II in the amount not to exceed $208,573.87. Section 2: The expenditure shall be charged to the Capitol Outlay Account Number 106 - 3303 - 541 -6440, that has an account balance of $335,500, before this resolution is adopted. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND ADOPTED this 20tbday of September 2011. ATTEST: APPROVED: CITY CLERK MAYOR READ A OVED AS O COMMISSION VOTE: 4 -0 L GE E�GALITY AN Mayor Stoddard: Yea XEC T HEREOF Vice Mayor Newman: Yea Commissioner Beasley: Yea Commissioner Palmer: Yea ,CITY AT-I] RN Y Commissioner Harris: absent South Miami % All fimeticaCils' p V rp � 2;&W n ' CITY OF SOUTH MIAMI , tQli,Q OFFICE OF THE CITY MANAGER INTER- OFFICE MEMORANDUM zuot To: The Honorable Mayor and Members of the ity Commission Via: Hector Mirabile, Ph.D, City Manager) From: Keith A, Ng, CFM, Operations Manage Public Works & Engineering and Construction Di/ TV Date: August 29, 2011 Agenda Item No.: Subject: Construction Contract with Acosta Tractors, Inc. for SW 66 Street Improvement Phase II. Resolution: A Resolution of the Mayor and City Commission of the City of South Miami, Florida, authorizing the City Manager to execute construction contract with Acosta Tractors, Inc. in the amount of $208,573.87 for the SW 66 Street Improvement Phase II to be charged to the Capitol Outlay Account 106 -3303- 541 -6440. Background: On August 3, 2011, the City of South Miami received 5 -bids in response to the solicitation. Bids were received from Acosta Tractors, Inc. for $208,573.87, Florida Engineering & Development in the amount of $220,026.02, Horizon Contractors, Inc. in the amount of $224,875.00, Team Contracting in the amount of $258,664.83 and Caribe Utilities in the amount of $319,605.60. Acosta Tractors, Inc. was determined to be the lowest responsive and responsible bidder for SW 66th Street Improvements Phase II. Expense: $208,573.87 Account: The expenditure to be charged to the Capital Outlay Account Number 106 - 3303 -541 -6440 with an account balance of $332,500 before this request. Backup Documentation: ❑ Proposed Resolution ❑ Tabulated Bids ❑ Bid Proposals- Schedule of Values d ,Q a m s a c a ar a> o � � fUNs �i Z E E F Z m .4w- k(): 'r k Ta Az) r5 Item # Descri tlon Unit Qty Unit Price Amount . TE' DEVELO . MENT SI P 1 Mobilization LS 1 11,977.78 11,977.78 2 Dust Control LS 1 1,222.22 1,222,22 3 Clearing And Grubbing LS 1 10,723.09 10,723.09 4 Removal of Existing Asphalt SY 12,230. 3.24 7,225.20 5 Removal of Existing Concrete SY 1 770 10,00 7,700.00 6 Removal of Existfng Drainage Structure PA 3 500.00 1,500.00 7 Type S -II1 Asphalt SY 1,360 12.44 16,918.40 8 Concrete Sidewalk 6" Thick SY 600 37.81 30 248.00 9 Colored Concrete 6" Thick SY 90 40.06 3,605.40 10 Brick Pavers SY 290 49.99 14,497.10 11 Curb and Gutter LF 11,106 15.56 17,193.80 12 Drop Curb LF 15 13.89 208.35 iu cGi 7. " - �-{o]'er�" jArr,/'''++ r**` ca- a. 3 .. _ , , "],•;,y, y s rw, + rz, pj*% -qA 13 18" HDPE Pip LF 37 64.26 2,377.62 14 18" French Drain LF 24 200.40 4,809.60 15 Curb Inlet with J Bottom EA 4 3,236.99._ 12,947.96 16 Storm Manhole EA 1 1 3,051.86 3,051.86 C c SiNfS k +t s lt:?u9 }P •�El�ic��;rxFra'i r, r.e�F,:r tistilzl'�a ui 7� T 17 24" White: Therrno fastic Stripe LF 35 4.44 155.40 18 18" White Thermoplastic St 2e LF 46 4.11 189.06 '19 12" White Thermoplastic Stripe LF 107 2.78 2107.46 20 6" White Thermoplastic Stri e LF 213 1.06 225,78 21 6" Yellow Thermoplastic Stripe, Skip GM 0.07 2,777.78 194.44 22 6" Double Yellow Thermoplastic Stripe LF 75 1 2.22 166.50 23 Reflective Pavement Markings RPMs EA 20 1 3.44 68.80 24 Maintenance of Traffic LS 1 3,400.00 3;400.00 25 Detectable Warning Surface EA 8 48.89 391.12 ,.wR6 Si na a LS 1 22,227.78 22,227.78 �S �y?T �1 -'a', + i. ;.. ��ir 'r tJ,,v?lx��ll.1V �`., =n- 7� "4,F ..r -€ � +��._ ;� �xA �'ta .ii; � .r• ..,s4�.�'� - 27 M rclanthes Fran raps EA 9 161.11 1,449.99 28 Thrinaz Radiata EA. 17 283.33 4,816.61 29 Ficus Green Island EA 860 8.89 7,645.40 30 Mulch SF 325 1.89 614.25 31 Performance and Payment Bond LS 1 1,720.00 1,720.00 32 Contingency (10 %) - An allowance for Unforseen Conditions LS 1 18,804.90 18,804.90 .eam�p sal•'r� �d: GRAND ., f3T�A;� r{7 t7 yr h. Below is a revised'Schedule of Values for SW 66th Street Phase 11 Improvements. item # 13escri tion U Unit I Q Unit Price I I Amount s.W 1 Mobilization L LS 1 1 1 S SCI. c cc 2. Dust Control L LS 1 1 ° ° 2,6M G 3 Clearing And Grubbing_ L L$ 1 1 / / oQ , c 1 1 4 Removal of Exlstin2 Asphalt S SY 2 2,230 - -° _ _ .3 5 Removal of Existing. Concrete S SY 7 770 a a 0 0 6 Removal of Exl!§tinq Dralna a Structure E EA 3 3 6 6030• 7 Type S••II I As halt _ S SY 1 1, 360.. . .//-9S 8 Concrete Sidewalk 6" Thick S SY 8 800 q q o o 9 Cofared Concrete 6" Thick) S SY 9 90 1 10q.,50 l l'.#'.` 10 Brick Pavers S SY 2 290 6 6 . 80 J Jq 66 11 CurbVffd Gutter ' 'LF : : 1,105 - -150 3 3,37--'a 12 Dfd Curb' L LF 1 15 - - W W, 5 n` ' ' ` N NN t .1 13 18'.' � LF 3 37 q q6, A A 9,02- , 14 18" French Drain L LF 2 24 1 1. 2 2,699- 15 Curb Inlet with J• Bottom E EA 4 4 2 200.0 1 1 .16 .!Storm i EA 1 1 3 31. iManhole E 17� 2*1-White Thermo las6c'Strt a L LF 3 35 • •°r' Z ZIQ;�' 18 18" White Thermoplastic Stripe L LF 4 46 6 6 • . .Z30 , 19 12" White Thermo lestic Stripe L LF 1 107 S S •_ o 20' 6" White Thermo plastic Stripe L LF 2 213 3 3 3.'F 21 6" Yellow Thermo Iastic Stri a Skip G GM 0 0.07 6 6W,00 . Z ZZ- 22 6" 'DoUble Yellodv Thermo lastic Strip-2- L LF 7 75 4 42, 23 Reflective Pavement Markings RPMs E EA 2 20 ° °D 24 Maintenance. of Traffic L LS 1 1 ' ' 3 3 00WO - .25 Detectable Warnlnij Surface E EA 8 8 � �3 ` 26 Slag L LS 1 1 3 3,60 oo 3 3:, o Y 2 27. M rclanthes Fran grans EA 9 9 3 3 28 Thdriaz Radlata . EA 1 17 f f O 29 Ficus Green Island EA 8 860 _ 7 7,912,op 30 Mulch - SF 3 325 1 0 0-G01 31' . Performance and Payment Bond L LS 1 1 32 Cnritingency (10 %) - An'a[IoWance for L LS 1 1 �r Updated 7/22/2011. This form must be utilized to render a responsive bid. /-. Ham b'O Below Is a revised Schedule of Values for SW 66th Street Phase 11 Improvements. I Item # Deserl Lion I Unit I Qty Unit Price Amount) 46 9...00 on I Mobilization LS 1 1430 11 (1-4 2 Dust Control LS 1 1-2- 00 Cs Po . d ab.ao 3 Cleadnq And Grubbing LS I I Al-,S.- . -Ir-00. oo 4 Removal of Existing Asphalt SY 2 230 . ckd I L 5 Removal 61' Existing Concrete SY 770 k o ncs c1c. a Removal of Exls!!n Drainage Structure EA 3. Mtn oa 26 7 'Type S-111 Asphalt SY 1,360 MEO NOM 8 Concrete Sidewalk f6" Thick SY 800 ao .- 4W a.1111,?.RM1151=1 " 1 N—?, I ' L\1 Im k14 - . • 17 241 White Thermoplastic Strioe '11�R N* " `,Yvr " " -% LF - `Ff. i - 1W j 35 I'll as s *. 66 IS-- IS" White Thermopjastic Stripe LF 46 9...00 on 19 . 12" White ThermopJastic Stripe LF 10& 6,00 6 L. ao 20 6" White Thermo2lastic Strl2e LF 213 0 !,1 nj - 21 161 Yellow Thermopla§Uc Stripe, Skip GM 0.07 Alk. oa 22 6' Double Yellow ThermoplastiG Stri pe LF 76 0 ths A— _ L -9. 23 Reflective Pavement Markings (RPMs)- EA 20 ?,., ao 24 Maintenance of Traffic ILS I 26 Detectable Warning Surface EA 8 Mtn oa 26 1 SWnage LS 1 MEO NOM 27 M rcianthes FTaMmu EA 9 4W ia Cie 28 Thrinaz Radiata EA 17 !1660A 1-4 I.M.00 29 Ficus Green Island EA 860 1 ot - 46- w 30 Mulch SF 325 v �s IL 31 Performance and Payment Bond LS Ia. aw,co 32 I Contingency (10%) - An allowance for Unforseen Conditions I LS 1 1�%bc6l3 , ck Q O Updated 7/22/2011. This form must be utilized to render a responsive bid. Below is a revised Schedule of Values for SW 66th Street Phase 11 Improvements. Item # 'Description 35 Unit O.b6 Qty lunilt Price Amount m e -P r ar c 0 �_ } LF .�y �W; �� =k. 1 Mobilization LF LS IS6 1 i bb,u QA66.06 2 Dust Control 15.06 LS 22 6" Double Yellow Thermo lastic Stri e 1 a.i�U O 000 -00 3 Clearing And Grubbing 23 Reflective Pavement Markings RPMs LS 20 1 IS, pup go IS, da).d 17 24" White Thermoplastic Stripe LF 35 p O.b6 18 18" White Thermo iaslic -StJfi "e L.F 46 t- 0 19 12" White Thermoplastic Stripe LF 107 3.60 20 6" White Thermoplastic Stripe LF 213 IS6 21 6" Yellow Thermo lastic Strl e, Ski - {zM 0.07 15.06 W.,M, 22 6" Double Yellow Thermo lastic Stri e l_F 75 M 23 Reflective Pavement Markings RPMs EA 20 .00 24 Maintenance of Traffic LS 1 ISMOv 1. IKM.00 25 .D6tectabl6 Warnln Surface. EA a WHO 26 Sl na a LS - .. w.. 27 M rcianthes Fran rans EA 9 6t5 S,Ot 28 Thrinaz Radiata EA 17 S +J 29 Pious Green Island EA 860 4.so Q, 30 1 Mulch SF 325 00 MI �?[ N.ic' t ^ ii °. �c4 "•$ Yy K v f w p. 31 Performance and Pavment Bond LS 1 b.tl 5�s7: 14 `J a 32 Contingency (10 %) - An allowance for Unforseen Conditions LS 1 jx"51111y, �' t.�15I` • Y Updated 7/2212011. This form must be utilized to render a responsive bid. �} `r �f3,c Gr b� Lk,�i L.. A- e6 4— Below is a revised Schedule of Values WSW 661h Street phase 11 Improvements. 28 Thrinaz Radista CA 17 706.44 12,008.56 29 Ficus {Green Island. EA 860 15.44 13,275.523 30 Mulch SF 325 15.35 4,98911 ate"±; 31 Performance and Payment Bond LS 1 1o,723.78 10,7D.78 32 Contingency (1 a ° /n) - An a1lowance for IUnfors'eert Conditions LS 1 29,6.36.83 29,636.83 --u. wa ��a�.- ',..o. `,°.. MA-1299- - �i '.'y%- :�'.'��` Updated 7/22/2011. This form muse be utilized io render a responsive bid. CONTRACT SW 66"' Street Improvements Project Phase II THIS CONTRACT was made and entered into on this 11-0 day of 2011, by and between Acosta Tractors, Inc., hereafter referred to as "Contractor ", and the City of South Miami, hereafter referred to as "Owner ". WITNESETH: That, the Contractor, for the consideration hereinafter fully set out, hereby agrees with the Owner as follows: 1. The Contractor shall furnish all labor, materials, equipment, machinery, tools, apparatus, and transportation necessary to perform all of the work shown on the Drawings and described in the Project Manual the Contractor shall furnish all the materials, and perform all of the Work as provided for in the Bid Documents and Construction Documents, drawings, plans, specifications and documents and shall do everything required by this Contract and the other Contract Documents. 2. The Contractor shall commence the Work to be performed under this Contract on a date to be specified in a written order of the Owner and shall complete all Work hereunder within the length of time stipulated in the Bid. 3. The Owner hereby agrees to pay to the Contractor for the faithful performance of this Contract, subject to additions and deductions as provided in the Bid Form, in lawful money of the United States, the amount of: Two hundred and eight thousand five hundred sevens -three and 8711 00 Doiiars; ($208,573.87), Lump Sum. 4. The Owner shall make monthly partial payments to the Contractor on the basis of a duly certified and approved estimate of Work performed during each calendar month by the Contractor, less the retainage provided in the General Conditions, which is to be withheld by the Owner until completion and acceptance of the complete project in accordance with this Contract and until such Work has been accepted by the Owner. 5. Upon submission by the Contractor of evidence satisfactory to the Owner that all payrolls, materials bills, and other costs incurred by the Contractor in connection with the construction of the Work have been paid in full, final payment on account of this Contract shall be made within sixty (60) days after the completion by the Contractor of all Work covered by this Contract and the acceptance of such Work by the Owner. 6. In the event that the Contractor shall fail to complete the Work within the time limit stipulated on the Bid Form in #5, or the extended time limit agreed upon, as more particularly set forth in the Contract Documents, liquidated damages shall be paid at the rate of $566 dollars per day, plus any monies paid by the City to the Consultant for additional engineering and inspection services associated with such delay. 7. It is further mutually agreed between the parties hereto that if, at any time after the execution of this Contract and the Surety Bond hereto attached for its faithful performance and payment, the Owner shall deem the Surety or Sureties upon such bond to be unsatisfactory, or if, for any reason such bond ceases to be adequate to cover the performance of the Work, the Contractor shall, at its expense within five (5) days after the receipt of notice from the Owner so to do, furnish an additional bond or bonds in such form and amount and with such Surety or Sureties as shall be satisfactory to the Owner. In such event, no further payment to the Contractor shall be deemed to be due under this Contract until such new or additional security for the faithful performance of the Work is furnished in manner and form satisfactory to the Owner: 8. No additional Work or extras shall be done unless the same is duly authorized by appropriate action by the Party of the Owner. © thomastpepe- 09 -13 -1 1 IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day and date first above written, in five (5) counterparts, each of which shall, without proof or accounting for the other counterpart be deemed an original Contract. AUTHENTICATION: Signature/1 . Maria Menendez City Clerk I © thomastpepe- 09 -13 -1 1 CONTRACTOR: Signature:_ Name: Felix Acosta Title: President OWNER: CITY OF SOUTH MIAMI Signature: / Dr. HectoKMirabile City Manager GENERAL CONDITIONS—_,_ SW 66th Street Improvements Project Phase II ARTICLE I — DEFINITIONS Whenever used in these General Conditions or in the other Contract Documents, the following terms shall have the meaning indicated. These definitions shall always apply when the section of the Contract specifically refers to this article for the purpose of interpreting a word or group of words in that section of the Contract Documents. However, when the section of the Contract, where the word to be defined is used, does not specifically refers to this article to define the word or group of words, these definitions shall not apply unless the word, in the context of its use in the Contract Document in question, is ambiguous and open for interpretation. In addition, these definitions shall also not apply to contradict a definition that is given in a specific provision of a Contract Document: Addenda: Written or graphic documents issued prior to the Bid Opening which modify or interpret the Contract Documents, Drawings and Specifications, by addition, deletions, clarifications or correction. Application' for Payment: The form furnished by the CONSULTANT which is to be used by the CONTRACTOR in requesting progress payments. Bid: the offer or proposal of the BIDDER submitted on the prescribed form setting forth the prices for the Work to be performed. BIDDER: Any person, firm or corporation submitting a Bid for Work. Bonds: Bid, performance and payment bonds and other instruments of security, furnished by the CONTRACTOR and their surety in accordance with the Contract Documents and in accordance with the law of the State of Florida. Change Order: A written order to the CONTRACTOR signed by the City authorizing an addition, deletion or revision in the Work, or an adjustment in the Contract Price of the Contract Time issued after execution of the Contract. CITY: City of South Miami, 6130 Sunset Drive, South Miami, FL 33143. Construction Observer: An authorized representative of the CONSULTANT assigned to observe the Work performed and materials furnished by the CONTRACTOR or such other person as may be appointed by the CITY as his representative. The CONTRACTOR shall be notified in writing of the identity of this representative. Contract Documents: The Contract Documents shall include the Contract between the Owner and the Contractor, other documents listed in the Contract and modifications issued after execution of the Contract all Bid Documents including but not limited to the Invitation to Bid, CONTRACTOR'S Bid, the Bonds Insurance Certificates and the Notice of Award, the Notice to Proceed, these General Conditions, Special Conditions, if any, any Supplementary Conditions, the Technical Specifications, Drawings, including any incorporated specifications, addenda to the drawings issued prior to execution of the Contract, Change Orders, Construction Change Directives and any written order for a minor change in the Work, and written modifications to any of the Contract Documents and Acknowledgment of Conformance with the City of South Miami. Contract Price: The total moneys payable to the CONTRACTOR pursuant to the terms of the Contract Documents. Contract Time: The number of calendar days stated in the Contract for the completion of the Work. Contracting Officer: The individual who is authorized to sign the contract documents on behalf of the CITY'S governing body. CONTRACTOR: The person, firm or corporation with whom the CITY has executed the Contract. CONSULTANT: The person identified as the CONSULTANT in the Supplementary Conditions or as designated by the CITY in writing and delivered to the CONTRACTOR. Day: A calendar day of twenty -four hours measured from the beginning of the day at 12:01 a.m. Days The number of twenty -four (24) hour periods following the event to which the word "days" refers commencing at 12:01 a.m. at the start of the next day. Therefore, in computing any period of time prescribed or allowed by the Contract Documents, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next business day that is not a Saturday, Sunday or legal holiday. Defective Work: Work that is unsatisfactory, faulty, or deficient in that it does not conform to the Contract Documents, or does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to the CONSULTANT'S recommendation of final payment (unless responsibility for the protection thereof has been delegated to the City); © thomasfpepe- 09 -28 -1 I Page 33 of 58 substitutions that are not properly approved and authorized, any deficiency in the Work, materials and equipment; materials and equipment furnished under the Contract that are not good quality and new unless otherwise required or permitted by the Contract Documents. Drawings: The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by the CONSULTANT and are referred to in the Contract Documents. Field Order: A written order issued by the CONSULTANT which clarifies or interprets the Contract Documents in accordance with Paragraph 9.3 or orders minor changes in the Work in accordance with paragraph 10.2. Modification: (a) A written amendment of the Contract Documents signed by both parties, (b) a Change Order signed by both parties, (c ) a written clarification or interpretation if issued by the CONSULTANT in accordance with paragraph 9.3 or (d) a written order for minor change or alteration in the Work issued by the CONSULTANT pursuant to Paragraph 10.2. A modification may only be issued after execution of the Contract, it must be in writing and signed by the party against whom the modification is sought to be enforced. Notice of Award: The written notice by CITY to the apparent successful BIDDER stating that upon compliance with the conditions precedent to be fulfilled by it within the time specified, CITY will execute and deliver the Contract to him. Notice to Proceed: A written notice given by CITY to CONTRACTOR (with copy to CONSULTANT) fixing the date on which the Contract Time shall commence to run and on which CONTRACTOR shall start to perform its obligations under the Contract Documents. Person: An individual or legal entity. Project: The entire construction operation being performed as delineated in the Contract Documents. Shop Drawings: All drawings, diagrams, illustrations, brochures, schedules and other data which are prepared by the CONTRACTOR, a Subcontractor, manufacturer, supplier, or distributor, and which illustrate the equipment, material or some portion of the work and as required by the Contract Documents. Samples: Physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. Specifications: Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work. Subcontractor: An individual, firm or corporation having a direct contract with CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the construction site. Substantial Completion: The date, as certified by the CONSULTANT, when the construction of the Project or a certified part thereof is sufficiently completed, in accordance with the Contract Documents, so that the Project, or a substantial part, can be utilized for the purposes for which it was intended without restriction or limitation to any degree, other than for the repair of minor "punch list" items; or if there be no such certification, the date when final payment is due in accordance with paragraph 14.9.. However, in no event shall the project, or portion thereof, be deemed to be substantially completed until a certificate of occupancy or certificate of use is lawfully issued by the applicable governmental agency. A certificate of Substantial Completion, issued by the CONSULTANT, shall be null and void if it is based on false, misleading or inaccurate information, from any source, or when it would not have been issue but for the consideration of Work that is thereafter found to be defective to a degree greater than that which would normally to be considered by architects and engineers to be minor "punch list" work. Supplier: Any person or organization who supplies materials or equipment for the Work, including the fabrication of an item, but who does not perform labor at the site of the Work. Surety: The individual or entity who is an obligor on a Bond and who is bound with the CONTRACTOR for the full and faithful performance of the Contract and for the payment of all labor, services and materials used on the project. Work: Any and all obligations, duties and responsibilities necessary for the successful performance and completion of the Contract. Notice: The term "Notice" as used herein shall mean and include all written notices, demands, instructions, claims, approvals and disapprovals required to obtain compliance with Contract requirements. Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or to an authorized representative of such individual, firm, or corporation, or if delivered at or sent by registered mail to the last known business address. Unless otherwise stated in writing, any notice to or demand upon the CITY under this Contract shall be delivered to the CITY's Manager and the CONSULTANT. © thomasfpepe- 09 -28 -1 I Page 34 of 58 ARTICLE 2— PRELIMINARY MATTERS Award: 2.1 The CITY reserves the right to reject any and all Bids at its sole discretion. Bids shall be awarded by the CITY to the lowest responsive and responsible BIDDER. No Notice of Award shall be given until the CITY has concluded such investigations as it deems necessary to establish the responsibility, qualifications and financial ability of the BIDDER to complete the Work in accordance with the Contract Documents to the satisfaction of the CITY within the time prescribed. The CITY reserves the right to reject the Bid of any BIDDER who does not pass such investigation to the CITY'S satisfaction. In analyzing a Bid, the CITY may also take into consideration alternate and unit prices, if requested by the Bid forms. If the Contract is awarded, the CITY shall issue the Notice of Award and give the successful BIDDER a Contract for execution within ninety (90) day after opening of Bids. Execution of Contract: 2.2 At least four counterparts of the Contract, the Performance and Payment Bond, the Certificates of Insurance, the written notice of designated supervisor or superintendent as provided in Section 6.1 of the General Conditions and such other Documents as required by the Contract Documents shall be executed and delivered by CONTRACTOR to the CITY within ten (10) calendar days of receipt of the Notice of Award. A Contract Document that requires the signature of a party may be executed in counterparts separately by each of the parties and, in such event, each counterpart separately executed shall, without proof or accounting for the other counterpart be deemed an original Contract Document. Forfeiture of Bid Security /Performance and Payment Bond: 2.3 Within ten (10) calendar days of being notified of the Award, CONTRACTOR shall furnish a Performance Bond and a Payment Bond containing all the provisions of the Performance Bond and Payment Bond attached. 2.3.1 Each Bond shall be in the amount of one hundred _percent (100 %) of the Contract Price guaranteeing to CITY the completion and performance of the Work covered in such Contract as well as full payment of all suppliers, material man, laborers, or Subcontractor employed pursuant to this Project. Each Bond shall be with a Surety company whose qualifications meet the requirements of Sections 2.3.4, 2.3.5, and 2.3.6. 2.3.2 Each Bond shall continue in effect for five year after final completion and acceptance of the Work with the liability equal to one hundred percent (100 %) of the Contract Sum. The Performance Bond shall be conditioned that CONTRACTOR shall, upon notification by CITY, correct any patent defective or faulty Work or materials which appear within one year after final completion of the Contract and shall, upon notification by CITY, correct any latent defective or faulty Work or materials which appear within five year after final completion of the Contract. 2.3.3 Pursuant to the requirements of Section 255.05(1), Florida Statutes, CONTRACTOR shall ensure that the Bond(s) referenced above shall be recorded in the public records of Miami -Dade County and provide CITY with evidence of such recording. 2.3.4 Each Bond must be executed by a surety company authorized to do business in the State of Florida as a surety, having a resident agent in the State of Florida and having been in business with a record of successful continuous operation for a least five (5) years. 2.3.5 The surety company shall hold a current certificate of authority as acceptable surety on federal bonds in accordance with the United States Department of Treasury Circular 570, current revisions. 2.3.6 The CITY will accept a surety bond from a company with a rating A. VII or better. 2.3.7 Failure of the successful BIDDER to execute and deliver the Contract and deliver the required bonds and Insurance Certificates as stipulated in Paragraph 2.2 shall be cause for the CITY to annul the Notice of Award and declare the Bid and any security therefore forfeited. Contractor's Pre -Start Representation: 2.4 CONTRACTOR represents that it has familiarized itself with, and assumes full responsibility for having familiarized itself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions and federal, state and local laws, ordinance, rules and regulations that may in any manner affect performance of the Work, and represents that it has correlated its study and observations with the requirements of the Contract Documents. CONTRACTOR also represents that it has studied all surveys and investigations, reports of subsurface and latent physical conditions referred to in the specifications and made such additional surveys and investigations as it deems necessary for the performance of the © thomasfpepe- 09 -28 -1 I Page 35 of 58 IL Work reflected in the Contract Documents and that he has correlated the results of all such data with the requirements of the Contract Documents. Commencement of Contract Time: 2.5 The Contract Time shall commence to run on the date stated in the Notice to Proceed. Starting the Project: 2.6 CONTRACTOR shall start to perform its obligations under the Contract Documents on the date the Contract Time commences to run. No Work shall be done at the site (as defined in Article 1), prior to the date on which the Contract Time commences to run,.except with the written consent of the CITY Before Starting Construction: 2.7 Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. It shall at once report in writing to CONSULTANT any conflict, error, or discrepancy which it may discover; however, it shall not be liable to CITY or CONSULTANT for its failure to discover any conflict, error, or discrepancy in the Drawings or Specifications. Schedule of Completion: 2.8 Within Five (5) days after delivery of the Notice to Proceed by CITY to CONTRACTOR, CONTRACTOR shall submit to CONSULTANT for approval, an estimated construction schedule indicating the starting and completion dates of the various stages of the Work, and a preliminary schedule of Shop Drawing submissions. The CONSULTANT shall approve this schedule or requireIrevisions thereto within seven (7) days of its submittal. If there is more than one CONTRACTOR involved in the Project, the responsibility for coordinating the Work of all CONTRACTORS shall be provided in the Special Conditions. 2.9 Within five (5) days after delivery of the executed Contract by CITY to CONTRACTOR, but before starting the Work at the site, a pre- construction conference shall be held to review the above schedules, to establish procedures for handling Shop Drawings and other submissions, and for processing Applications for Payment, and to establish a working understanding between the parties as to the Project. Present at the conference will be the CITY'S representative, CONSULTANT, Resident Project Representatives, CONTRACTOR and its Superintendent. Oualifications of Subcontractors. Material men and Suppliers: 2:10 Within five (5) calendar days after bid opening, the apparent lowest responsive and responsible BIDDER shall submit to the CITY and the CONSULTANT for acceptance a list of the names of Subcontractors and such other persons and organizations (including those who are to furnish principal items of materials or equipment) proposed for those portions of the Work as to which the identity of Subcontractors and other persons and organizations must be submitted as specified in the Contract Documents. Within thirty (30) working days after receiving the list, the CONSULTANT will notify the CONTRACTOR in writing if either the CITY or the CONSULTANT has reasonable objection to any Subcontractor, person, or organization on such list. The failure of the CITY or the CONSULTANT to make objection to any Subcontractor, person, or organization on the list within thirty (30) days of the receipt shall constitute an acceptance of such Subcontractor, person or organization. Acceptance of any such Subcontractor, person or organization shall not constitute a waiver of any right of the CITY or the CONSULTANT to reject defective Work, material or equipment, or any Work, material or equipment not in conformance with the requirements of the Contract Documents. 2.11 If, prior to the Notice of Award, the CITY or the CONSULTANT has reasonable objection to any Subcontractor, person or organization listed, the apparent low BIDDER may, prior to Notice of Award, submit an acceptable substitute without an increase in its bid price. RTICLE 3— CORRELATION Ii4TERPRETA ION AND INTENT OF CONTRACT DOCUMENTS 3.1 It is the intent of the Specifications and Drawings to describe a complete Project to be constructed in accordance with the Contract Documents. The Contract Documents comprise the entire Contract between the CITY and the CONTRACTOR. They may be altered only by a modification as defined in Article I. 3.2 The Contract Documents are complementary, what is called for by one is as binding as if called for by all the documents. If CONTRACTOR finds a conflict, error or discrepancy in the Contract Documents, it shall, before proceeding with the Work affected thereby, immediately call it to the CONSULTANT's attention in writing. The various Contract Documents are complementary; in case of conflict, error or discrepancy, the more stringent interpretation and requirement that shall provide the maximum benefit to the City shall apply © thomasfpepe- 09 -28 -1 I Page 36 of 58 3.3 The words "furnish" and "furnish and install ", "install ", and "provide" or words with similar meaning shall be interpreted, unless otherwise specifically stated, to mean "furnish and install complete in place and ready for service ". 3.4 Miscellaneous items and accessories which are not specifically mentioned, but which are essential to produce a complete and properly operating installation, or usable structure, providing the indicated functions, shall be furnished and installed without change in the Contract Price. Such miscellaneous items and accessories shall be of the same quality standards, including material, style, finish, strength, class, weight and other applicable characteristics, as specified for the major component of which the miscellaneous item or accessory is an essential part, and shall be approved by the CONSULTANT before installation. The above requirement is not intended to include major components not covered by or inferable from the Drawings and Specifications. 3.5 The Work of all trades under this Contract shall be coordinated by the CONTRACTOR in such a manner as obtain the best workmanship possible for the entire Project, and all components of the Work shall be installed or erected in accordance with the best practices of the particular trade. 3.6 The CONTRACTOR shall be responsible for making the construction of habitable structures under this Contract rain proof, and for making equipment and utility installations properly perform the specified function. If he is prevented from so doing by any limitations of the Drawings or Specifications, the CONTRACTOR shall immediately notify the CONSULTANT in writing of such limitations before proceeding with construction in the area where the problem limitation exists. . 3.7 Manufacturer's literature, when referenced, shall be dated and numbered and is intended to establish the minimum requirements acceptable. Whenever reference is given to codes, or standard specifications or other data published by regulating agencies or accepted organizations, including but not limited to National Electrical Code, applicable State Building Code, Florida Building Code, Federal Specifications, ASTM Specifications, various institute specifications, and the like, it shall be understood that such reference is to the latest edition including addenda in effect on the date of the Bid. 3.8 Brand names where used in the technical specifications, are intended to denote the standard or quality required for the particular material or product. The term "equal" or "equivalent ", when used in connection with brand names, shall be interpreted to mean a material or product that is similar and equal in type, quality, size, capacity, composition, finish, color and other applicable characteristics to the material or product specified by trade name, and that is suitable for the same use capable of performing the same function, in the opinion of the CONSULTANT, as the material or product so specified. Proposed equivalent items must be approved by CONSULTANT before they are purchased or incorporated in the Work. (When a brand name, catalog number, model number, or other identification, is used without the phrase "or equal ", the CONTRACTOR shall use the brand, make and model specified). 3.9 Throughout this agreement the male pronoun may be substituted for female and neuter and vice versa and the singular words substituted for plural and plural words substituted for singular wherever applicable. 3.10 All technical interpretations shall be made by the CONSULTANT as set forth in Section 9.3 below. 3.11 In the event that there is a conflict between or among the Contract Documents, only the latest version shall apply and the latest version of following documents are set forth in the order of their precedence so that all the documents listed above a given document shall have precedence over all the documents listed below it. (a) Amendments and Change Orders (b) Addenda, with those; (c) Drawings (d) Drawings of a larger scale (e) Drawings of a smaller scale (f) Written dimensions (g) Scaled dimensions (h) Specifications, having; (i) Contract with all Exhibits thereto (j) Special Conditions; and (k) General Conditions. © thomasfpepe- 09 -28 -1 I Page 37 of 58 ARTICLE 4 -- AVAILABILITY OF ,LANDS SUBSURFACE CONDITIONS_ REFERENCE POINTS Availability of Lands: 4.1 The CITY shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be done, rights -of -way for access thereto, and such other lands which are designed for the use of the CONTRACTOR. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the CITY, unless otherwise specified in the Contract Documents. Other access to such lands or rights -of -way for the CONTRACTOR'S convenience shall be the responsibility of the CONTRACTOR. The CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of material and equipment. 4.2 The CITY will, upon request, furnish to the BIDDERS, copies of all available boundary surveys and subsurface tests at no cost. Subsurface Conditions: 4.3 The CONTRACTOR acknowledges that he has investigated prior to bidding and satisfied himself as to the conditions affecting the Work, including but not limited to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides, water tables or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the Work. The CONTRACTOR further acknowledges that he has satisfied himself as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the CITY/ CONSULTANT on the site or any contiguous site, as well as from information presented by the Drawings and Specifications made part of this Contract, or any other information made available to it prior to receipt of bids. Any failure by the CONTRACTOR to acquaint itself with the available information shall not relieve it from responsibility for estimating properly the difficulty or cost of successfully performing Work. The CITY assumes no responsibility for any conclusions or interpretations made by the CONTRACTOR on the basis of the information made available by the CITY/ CONSULTANT. Differing Site Conditions: 4.4 The CONTRACTOR shall within forty eight (48) hours of its discovery, and before such conditions are disturbed, notify the CITY in writing, of 4.4.1 Subsurface or latent physical conditions at the site differing materially from those indicated in the Contract Documents, and 4.4.2 Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally inherent in Work of the character provided for in this Contract. The CITY shall promptly investigate the conditions, and if it finds that such conditions do materially differ to the extent as to cause an increase or decrease in the CONTRACTOR'S cost of, or the time required for, performance of any part of the Work under this Contract, an equitable adjustment shall be made and the Contract modified in writing accordingly. 4.5 No claim of the CONTRACTOR under this clause shall be allowed unless the CONTRACTOR has given the notice required in 4.4 above; provided, however, the time prescribed therefore may be extended by the CITY, but only if done in writing signed by the City Manager or the CONSULTANT. ARTICLE 5 — INSURANCE AIA INSUANCE PROVISION 5.0 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: 5.0.1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; 5.0.2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees; 5.0.3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; © thomasfpepe- 09 -28 -1 I Page 38 of 58 5.0.4 claims for damages insured by usual personal injury liability coverage; 5.0.5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting there from; 5.0.6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; 5.0.7 claims for bodily injury or property damage arising out of completed operations; and 5.0.8 claims involving contractual liability insurance applicable to the Contractor's obligations under Contractor's Liability Insurance: 5.1 CONTRACTOR shall provide and maintain in force until all the Work to be performed under this Contract has been completed and accepted by CITY (or for such duration as is otherwise specified hereinafter), the insurance coverage set forth below: 5.1.1 Worker's Compensation insurance at the statutory amount as to all employees in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws. In addition, the policy(ies) must include: Employers' Liability at the statutory coverage amount. The CONTRACTOR shall further insure that all of its Subcontractors maintain appropriate levels of Worker's Compensation Insurance. 5.1.2 Comprehensive General Liability with minimum limits of 1000000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: 5.1.2 (a) Premises and Operation 5.1.2 (b) Independent Contractors 5.1.2 (c) Products and /or Completed Operations Hazard 5.1.2 (d) Explosion, Collapse and Underground Hazard Coverage 5.1.2 (e) Broad Form Property Damage 5.1.2(f) Broad Form Contractual Coverage applicable to this specific Contract, including any hold harmless and /or indemnification agreement. S. 1.2 (g) Personal Injury Coverage with Employee and Contractual Exclusions removed, with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. 5.1.3 Business Automobile Liability with minimum limits of Two Million Dollars ($2,000,000.00) plus an additional Two Million Dollar ($2,000,000.00) umbrella per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: 5.1.3 (a) Owned Vehicles. 5. 1.3 (b) Hired and Non -Owned Vehicles 5.1.3 (c) Employers' Non - Ownership 5.2 Before starting the Work, the CONTRACTOR, shall file with the CITY, COUNTY and CONSULTANT certificates of such insurance, acceptable to the CITY, the name, address and telephone number of the insurance agent or broker through whom the policy was obtained; these certificates shall contain a provision that the coverage afforded under the policies shall not be canceled or materially changed until at least thirty (30) days prior written notice has been given by the insurer to the CITY and CONSULTANT by certified mail. The insurer shall be rated A.VII or better per A.M. Best's Key Rating Guide, latest edition and authorized to issue insurance in the State of Florida. 5.3 The CONTRACTOR agrees that if any part of the Work under the Contract is sublet, the subcontract shall contain the same insurance provision as set forth in section 5.1 and 5.2 above and substituting the word SUBCONTRACTOR for the word CONTRACTOR where applicable. Fire and Extended Coverage Insurance (Builders' Risk): 5.4 The CONTRACTOR shall maintain, as applicable, in an Insurance Company or Insurance Companies acceptable to the CITY, Fire, Extended Coverage and Vandalism & Malicious Mischief Insurance on buildings and structures, while in the course of construction, including foundations, additions, attachments and all permanent fixtures belonging to and constituting a part of said buildings or structures. The policy or policies shall also cover machinery, if the cost of machinery is included in the Contract, or if the © thomadpepe- 09 -28 -1 I Page 39 of 58 machinery located in a building that is being renovated by reason of this contract. The amount of insurance must at all times be at least equal to the actual cash value of the insured property. The policy shall be in the name of the CITY and the CONTRACTOR, as their interest may appear, and shall also cover the interests of all Subcontractors performing Work. 5.5 The CONTRACTOR shall provide the CITY with satisfactory evidence certifying that the foregoing insurance is in force; and such evidence shall include provisions that the insurance shall not be canceled or materially changed until at least thirty (30) days prior written notice has been given by the insurer to the CITY by certified mail. Cancellation and Re- Insurance: 5.6 If any notice of cancellation of insurance or changed by the insurance company or should any insurance have an expiration date that will occur during the period of this contract, the CONTRACTOR shall be responsible for securing other acceptable insurance prior to such cancellation, change, or expiration so as to provide continuous coverage as specified in this section and so as to maintain coverage during the life of this Contract. 5.7 All deductibles must be declared by the CONTRACTOR and must be approved by the CITY. At the option of the CITY, either the CONTRACTOR shall eliminate or reduce such deductible or the CONTRACTOR shall procure a Bond, in a form satisfactory to the CITY covering the same. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES Supervision and Superintendence: 6.1 The CONTRACTOR shall supervise and direct the Work. It shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The CONTRACTOR shall employ and maintain a qualified supervisor or superintendent (hereinafter referred to as "Supervisor" at the Work site who shall be designated in writing by the CONTRACTOR, before the CONTRACTOR commences the Work and within the time required by the Contract, as the CONTRACTOR'S representative at the site. The Supervisor or so designated shall have full authority to act on behalf of the CONTRACTOR and all communications given to the Supervisor shall be as binding as if given to the CONTRACTOR. The Supervisor(s) shall be present at each site at all times as required to perform adequate supervision and coordination of the Work. (Copies of written communications given to the Supervisor shall be mailed to the CONTRACTOR'S home office). 6.1.1 The CONTRACTOR shall keep one record copy of all Specifications, Drawings, Addenda, Modifications and Shop Drawings at the site at all times, in good order and annotated to show all changes made during the construction process. These shall be available to the CONSULTANT and any CITY Representative at all reasonable times. A set of "As- Built" drawings, as well as the original Specifications, Drawings, Addenda, Modifications and Shop Drawings with annotations, shall be delivered to the CITY upon completion of the Project and be made available at all times. Labor, Materials and Equipment: 6.2 The CONTRACTOR shall provide competent, suitably qualified personnel to lay out the Work and perform construction as required by the Contract Documents. It shall at all times maintain good discipline and order at the site. 6.3 The CONTRACTOR shall furnish all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, local telephone, water and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial operation and completion of the Work. 6.4 All materials and equipment shall be new, except as otherwise provided in the Contract Documents. When special makes or grades of material which are normally packaged by the supplier or manufacturer are specified or approved, such materials shall be delivered to the site in their original packages or containers with seals unbroken and labels intact. 6.5 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, or processors, except as otherwise provided in the Contract Documents. Materials, Equipment, Products and Substitutions: 6.6 Materials, equipment and products incorporated in the Work must be approved for use before being purchased by the CONTRACTOR. The CONTRACTOR shall submit to the CONSULTANT a list of proposed materials, equipment or products, together with such samples as may be necessary for them to © thomasfpepe- 09 -28 -1 I Page 40 of 58 IL determine their acceptability and obtain their approval, within ninety (90) calendar days after award of Contract unless otherwise stipulated in the Special Conditions. No request for payment for "or equal" equipment will be approved until this list has been received and approved by the CONSULTANT. 6.6.1 Whenever a material, article or piece of equipment is identified on the Drawings or Specifications by reference to brand name or catalog number, it shall be understood that this is referenced for the purpose of defining the performance or other salient requirements and that other products of equal capacities, quality and function shall be considered. The CONTRACTOR may recommend the substitution of a material, article, or piece of equipment of equal substance and function for those referred to in the Contract Documents by reference to brand name or catalog number, and if, in the opinion of the CONSULTANT, such material, article, or piece of equipment is of equal substance and function to that specified, the CONSULTANT may approve its substitution and use by the CONTRACTOR. Incidental changes or extra component parts required to accommodate the substitute will be made by the CONTRACTOR without a change in the Contract Price or the Contract Time. 6.6.2 No substitute shall be ordered or installed without the written approval of the CONSULTANT who shall be the judge of quality. 6.6.3 Delay caused by obtaining approvals for substitute materials shall not be considered justifiable grounds for an extension of construction time. 6.6.4 Should any Work or materials, equipment or products not conform to requirements of the Drawings and Specifications or become damaged during the progress of the Work, such Work or materials shall be removed and replaced, together with any Work disarranged by such alterations, at any time before completion-and acceptance of the Project. All such Work shall be done at the expense of the CONTRACTOR. 6.6.5 No materials or supplies for the Work shall be purchased by the CONTRACTOR or any Subcontractor subject to any chattel mortgage or under a conditional sale or other agreement by which an interest is retained by the Seller. The CONTRACTOR warrants that they have good title to all materials and supplies used by them in the Work. Concerning Subcontractors: 6.7 The CONTRACTOR shall not employ any Subcontractor, against whom the CITY or the EAC Consulting Inc. may have reasonable objection, nor will the CONTRACTOR be required to employ any Subcontractor who has been accepted by the CITY and the CONSULTANT, unless the CONSULTANT determines that there is good cause for doing so. 6.8 The CONTRACTOR shall be fully responsible for all acts and omissions of its Subcontractors and of persons and organizations directly or indirectly employed by it and of persons and organizations for whose acts any of them may be liable to the same extent that they are responsible for the acts and omissions of persons directly employed by them. Nothing in the Contract Documents shall create any contractual relationship between CITY or CONSULTANT and any Subcontractor or other person or organization having a direct contract with CONTRACTOR, nor shall it create any obligation on the part of CITY or CONSULTANT to pay or to see to payment of any persons due subcontractor or other person or organization, except as may otherwise be required by law. CITY or CONSULTANT may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to the CONTRACTOR on account of specified Work done in accordance with the schedule values. 6.9 The divisions and sections of the Specifications and the identifications of any Drawings shall not control the CONTRACTOR in dividing the Work among Subcontractors or delineating the Work performed by any specific trade. 6.10 The CONTRACTOR agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of the CITY. 6.11 All Work performed for the CONTRACTOR by a Subcontractor shall be pursuant to an appropriate agreement between the CONTRACTOR and the Subcontractor. 6.12 The CONTRACTOR shall be responsible for the coordination of the trades, Subcontractors material and men engaged upon their Work. 6.12.1 The CONTRACTOR shall cause appropriate provisions to be in in all subcontracts relative to the Work to bind Subcontractors to the CONTRACTOR by the terms of these General Conditions and other Contract Documents insofar as applicable to the Work of Subcontractors, and give the CONTRACTOR the same power as regards to terminating any © thomasfpepe- 09 -28 -1 I Page 41 of 58 subcontract that the CITY may exercise over the CONTRACTOR under any provisions of the Contract Documents. 6.12.2 The CITY or CONSULTANT will not undertake to settle any differences between the CONTRACTOR and their Subcontractors or between Subcontractors. 6.12.3 If in the opinion of the CONSULTANT, any Subcontractor on the Project proves to be incompetent or otherwise unsatisfactory, they shall be promptly replaced by the CONTRACTOR if and when directed by the CONSULTANT in writing. Patent Fees and Royalties: 6.13 The CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use of any invention, design, process or device which is the subject of patent rights or copyrights held by others. He shall indemnify and hold harmless the CITY and the CONSULTANT and anyone directly or indirectly employed by either of them from against all claims, damages, losses and expenses (including attorney's fees) arising out of any infringement of such rights during or after the completion of the Work, and shall defend all such claims in connection with any alleged infringement of such rights. 6.14 The CONTRACTOR shall be responsible for determining the application of patent rights and royalties materials, appliances, articles or systems prior to bidding. However, he shall not be responsible for such determination on systems which do not involve purchase by them of materials, appliances and articles. Permits: 6.15 The CONTRACTOR shall secure and pay for all construction permits and licenses and shall pay for all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of his Bid. When such charges are normally made by the CITY and when so stated in the Special Conditions, there will be no charges to the CONTRACTOR. The CITY shall assist the CONTRACTOR, when necessary, in obtaining such permits and licenses. The CONTRACTOR shall also pay all public utility charges. Electrical Power and Lighting: 6.16 Electrical power required during construction shall be provided by each prime CONTRACTOR as required by it. This service shall be installed by a qualified electrical Contractor approved by the CONSULTANT. Lighting shall be provided by the CONTRACTOR in all spaces at all times where necessary for good and proper workmanship, for inspection or for safety. No temporary power shall be used off temporary lighting lines without specific approval of the CONTRACTOR. Laws and Regulations: 6.17 The CONTRACTOR shall comply with all notices, laws, ordinances, rules and regulations applicable to the Work. If the CONTRACTOR observes that the Specifications or Drawings are at variance therewith, it shall give the CONSULTANT prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate modification. If the CONTRACTOR performs any Work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the CONSULTANT, it shall bear all costs arising there from; however, it shall not be its primary responsibility to make certain that the Drawings and Specifications are in accordance with, such laws, ordinances, rules and regulations. Taxes: 6.18 Cost of all applicable sales consumer use, and other taxes for which the CONTRACTOR is liable under the Contract shall be included in the Contract Price stated by the CONTRACTOR. Safety and Protection: 6.19 The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions ' and programs in connection with the Work. They shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 6.19.1 All employees and other persons, who may be affected thereby, 6.19.2 All the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site, and 6.19.3 Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 6.20 The CONTRACTOR shall designate a responsible member of their organization at the site whose duty shall be the prevention of accidents. This person shall be the CONTRACTOR'S Superintendent unless otherwise designated in writing by the CONTRACTOR to the CITY. Emergencies: 6.21 In emergencies affecting the safety of persons or the Work or property at the site or adjacent thereto, the CONTRACTOR, without special instruction or authorization from the CONSULTANT or CITY, is 0 thomasfpepe- 09 -28 -1 I Page 42 of 58 obligated to act, at his discretion, to prevent threatened damage, injury or loss. He shall give the CONSULTANT prompt written notice of any significant changes in the Work or deviations from the Contract Documents caused thereby. If the CONTRACTOR believes that additional Work done by him in an emergency which arose from causes beyond his control entitles him to an increase in the Contract Price or an extension of the Contract Time, he may make a claim therefore as provided in Articles I I and 12. Shop Drawings and Samples: 6.22 After checking and verifying all field measurements, the CONTRACTOR shall submit to the CONSULTANT for review, in accordance with the accepted schedule of shop drawing submissions, six (6) copies (or at the CONSULTANT option, one reproducible copy) of all Shop Drawings, which shall have been checked by and stamped with the approval of the CONTRACTOR. The Shop Drawings shall be numbered and identified as the CONSULTANT may require. The data shown on the Shop Drawings shall be complete with respect to dimensions, design criteria, materials of construction and the like to enable the CONSULTANT to review the information without any unnecessary investigation. 6.23 The CONTRACTOR shall also submit to the CONSULTANT for review, with such promptness as to cause no delay in Work, all samples required by the Contract Documents. All samples shall have been checked by and stamped with the approval of the CONTRACTOR, identified clearly as to material, manufacturer, any pertinent catalog numbers and the use for which intended. 6.24 At the time of each submission, the CONTRACTOR shall notify the CONSULTANT, in writing, of any deviations between the Shop Drawings or samples and the requirements of the Contract Documents. 6.25 The CONSULTANT shall review with responsible promptness Shop Drawings and Samples, but his review shall be only for conformance with the design concept of the Project and for compliance with the information given in the Contract Documents. The review of a separate item as such will not indicate review of the assembly in which the items functions. The CONTRACTOR shall make any corrections required by the EAC_ Consulting Inc. and shall.. return the required_ number of corrected copies of Shop Drawings and resubmit new samples until the review is satisfactory to the CONSULTANT. The CONTRACTOR shall notify the CONSULTANT, in writing, of any prior Shop Drawing or revisions to Shop Drawings that are in conflict with each submission or re- submission. The CONTRACTOR'S stamp of approval on any Shop Drawings or sample shall constitute representation to the CITY and the CONSULTANT that the CONTRACTOR has either determined and /or verified all quantities, dimension, field construction criteria, materials, catalog numbers and similar data or they assume full responsibility for doing so, and that they have reviewed or coordinated each Shop Drawing or sample with the requirements of the Work and the Contract Documents. 6.26 No Work requiring a submittal of a Shop Drawing or sample shall be commenced until the submission has been reviewed and approved in writing by the CONSULTANT. A copy of each Shop Drawing and each approved sample shall be kept in good order, in a book or binder, in chronological order or in such other order required by the CONSULTANT in writing, by the CONTRACTOR at the site and shall be available to the CONSULTANT. 6.27 The CONSULTANT's review of Shop Drawings or samples shall not relieve the CONTRACTOR from his responsibility for any deviations from the requirements of the Contract Documents unless the CONTRACTOR has informed the CONSULTANT, in writing, to each deviation at the time of submission and the CONSULTANT has given written approval to the specific deviation, nor shall any review by the CONSULTANT relieve the CONTRACTOR from responsibility for errors or omissions in the Shop Drawings or samples. 6.271 The CONTRACTOR shall be liable to the CITY for any additional cost or delay that is caused by its failure to notify the CONSULTANT of any of said deviations or conflicts between Shop Drawings or due to errors in the Shop Drawings or samples. Cleaning Up: 6.28 The CONTRACTOR shall clean up behind the Work as much as is reasonably possible as the Work progresses. Upon completion of the Work, and before acceptance of final payment for the Project by the CITY, the CONTRACTOR shall remove all his surplus and discarded materials, excavated, material and rubbish as well as all other material and equipment that does not form a part of the Work, from the property, roadways, sidewalks, parking areas, lawn and all adjacent property. In addition, the CONTRACTOR shall clean his portion of Work involved in any building under this Contract, so that no further cleaning by the CITY is necessary prior to its occupancy and he shall restore all property, both public and private, which has been disturbed or damaged during the prosecution of the Work so as to leave the whole Work and Work Site in a neat and presentable condition. 0 thomasfpepe- 09 -28 -1 I Page 43 of 58 6.29 If the CONTRACTOR does not clean the Work site, the CITY may clean the Work Site of the materials referred to in paragraph 6.28 and charge the cost to the CONTRACTOR. Public Convenience and Safety: 6.30 The CONTRACTOR shall, at all times, conduct the Work in such a manner as to insure the least practicable obstruction to public travel. The convenience of the general public and of the residents along and adjacent to the area of Work shall be provided for in a satisfactory manner, consistent with the operation and local conditions. "Street Closed" signs shall be placed immediately adjacent to the Work, in a conspicuous position, at such locations as traffic demands. At any time that streets are required to be closed, the CONTRACTOR shall notify law enforcement agencies and in particular, the City of South Miami Police Department, before the street is closed and again as soon as it is opened. Access to fire hydrants and other fire extinguishing equipment shall be provided and maintained at all times. Sanitary Provisions: 6.31 The CONTRACTOR shall provide on -site office, and necessary toilet facilities, secluded from public observation, for use of all personnel on the Work Site, whether or not in his employ. They shall be kept in a clean and sanitary condition and shall comply with the requirements and regulations of the Public Authorities having jurisdiction. They shall commit no public nuisance. Temporary field office and sanitary facilities shall be removed upon completion of the Work and the premises shall be left clean. Indemnification: 6.32 Unless prohibited by law, or by the terms of applicable and viable insurance policies required by the Contract Documents, of a solvent insurer whose policy covers the same matters as described herein, the Contractor shall indemnify and hold harmless the CITY, COUNTY, the CONSULTANT, their official and employees, as well as their agents and employees or any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, received or sustained by any person or persons during or on account of or arising out of any operations connected with the Work, but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they are liable. In consideration of the separate sum of One Hundred Dollars ($100.00) or other valuable consideration, CONTRACTOR shall indemnify and hold harmless the CITY and the CONSULTANT from any claim, damage, loss or expense that is caused in part by a party indemnified hereunder. This indemnification provision is cumulative with all other remedies or other indemnification provisions contained in the Contract Documents. 6.33 In the event that any action or proceeding is brought against CITY, COUNTY, CONSULTANT, their officials and employees, by reason of any such claim or demand, CONTRACTOR, upon written notice from CITY shall defend such action or proceeding by counsel satisfactory to CITY. The indemnification provided above shall obligate CONTRACTOR to defend at its own expense or to provide for such defense, at CITY'S option, any and all claims of liability and all suits and actions of every name and description that may be brought against CITY or EAC Consulting Inc., excluding only those claims that allege that the injuries arose out of the sole negligence of CITY or CONSULTANT. 6.34 The obligations of the CONTRACTOR under paragraph 6.33 shall not extend to the liability of the CONSULTANT, its agents or employees arising out of (a) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications or (b) the giving of or the failure to give directions or instructions by the CONSULTANT, its agents or employees provided such act or omission is the primary cause of injury or damage. 6.35 All of the forgoing indemnification provisions shall survive the term of the Contract to which these General Conditions are a part. Responsibility for Connection to Existing Work: 6.35 It shall be the responsibility of the CONTRACTOR to connect its Work to each part of the existing Work, existing building or structure or Work previously installed as required by the Drawings and Specifications to provide a complete installation. 6.36 Excavations, grading, fill, storm drainage, paving and any other construction or installations in rights -of- ways of streets, highways, public carrier lines, utility lines, either aerial, surface or subsurface, etc., shall be done in accordance with requirements of the special conditions. The CITY will be responsible for obtaining all permits necessary for the Work described in this paragraph 6.36. Upon completion of the Work, CONTRACTOR shall present to CONSULTANT certificates, in triplicate, from the proper authorities, stating that the Work has been done in accordance with their requirements. 6.36.1 The CITY will cooperate with the CONTRACTOR in obtaining action from any utilities or public authorities involved in the above requirements. ©thomasfpepe- 09 -28 -1 I Page 44 of 58 6.36.2 The CONSULTANT shall be responsible for obtaining elevations of curbs and gutters, pavement, storm drainage structures, and other items which must be established by governmental departments as soon as grading operations are begun on the site and, in any case, sufficiently early :in the construction period to prevent any adverse effect on the Project. Cooperation with Governmental Departments. Public Utilities. 'Etc.: 6.37 The CONTRACTOR shall be responsible for making all necessary arrangements with governmental departments, public utilities, public carriers, service companies and corporations (hereinafter referred to as "third parties ") owning or controlling roadways, railways, water, sewer, gas, electrical conduits, telephone, and telegraph facilities such as pavements, tracks, piping, wires, cables, conduits, poles, guys, etc., including incidental structures connected therewith, that are encountered in the Work in order that such items are properly shored, supported and protected, that their location is identified and to obtain authority from 'these third parties for relocation if the CONTRACTOR desires to relocate the item. The CONTRACTOR shall give all proper notices, shall comply with all requirements of such third parties in the performance of his Work, shall permit entrance of such third parties on the Project in order that they may perform their necessary work, and shall pay all charges and fees made by such third parties for their work. 6.37.1 The CONTRACTOR'S attention is called to the fact that there may be delays on the Project due to work to be done by governmental departments, public utilities, and others in repairing or moving poles, conduits, etc. The CONTRACTOR shall cooperate with the above parties in every way possible, so that the construction can be completed in the least possible time. 6.37.2 The CONTRACTOR shall have made itself familiar with all codes, laws, ordinances, and regulations which in any manner affect those engaged or employed in the Work, or materials and equipment use in or upon the Work, or in any way affect the conduct of the Work, and no plea of misunderstanding will be considered on. account of damage or delay caused by his ignorance thereof. Use Premises: 6.38 CONTRACTOR shall confine its apparatus, storage of materials, and operations of its workmen to the limits indicated by law, ordinances, permits and directions of CONSULTANT and CITY, and shall not unnecessarily encumber any part of the site or any areas off site. 6.38.1 CONTRACTOR shall not overload or permit any part of any structure to be loaded with such weight as will endanger its safety, nor shall it subject any work to stresses or pressures that will endanger it. 6.38.2 CONTRACTOR shall enforce the rules and regulation promulgated by the CONSULTANT and CITY as well as their instructions with regard to signs, advertisements, fires and smoking. 6.38.3 CONTRACTOR shall arrange and cooperate with CITY in routing and parking of automobiles of its employees, subcontractors and other personnel, as well as that of the material delivery trucks and other vehicles that come to the Project site. 6.38.4 The City will designate specific areas on the site for storage, parking, etc. and the job site shall be fenced to protect the job site and the general public. 6.38.5 The CONTRACTOR shall furnish, install and maintain adequate construction office facilities for all workers employed by it or by its Subcontractors. Temporary offices shall be provided and located where directed and approved by the CONSULTANT. All such facilities shall be furnished in strict accordance with existing governing regulations. Field offices shall include telephone facilities. Protection of Existing Property Improvements: 6.39 Any adjacent or nearby property, existing surface or subsurface improvements, such as pavements, curbs, sidewalks, pipes or utilities, footings, or structures (including portions thereof), trees and shrubbery, not indicated on the Drawings or noted in the Specifications as being removed or altered shall be protected from damage during construction of the Project. Any such improvements damaged during construction of the Project shall be restored at the expense of the CONTRACTOR to a condition equal to that existing at the time of award of Contract. ARTICLE 7 — WORK BY OTHERS 7.1 The CITY may perform additional Work related to the Project or may let other direct contracts therefor which shall contain General Conditions similar to these. The CONTRACTOR shall afford the other contractors who are parties to such direct contracts (or the CITY, if it is performing the additional Work itself), reasonable opportunity for the introduction and © thomasfpepe- 09 -28 -1 I Page 45 of 58 storage of materials and equipment and the execution of Work, and shall properly connect and coordinate its Work with theirs. 7.2 If any part of the CONTRACTOR'S Work depends upon proper execution or results of the Work of any other contractor or the CITY, the CONTRACTOR shall promptly report to the CONSULTANT in writing any defects or deficiencies in such Work that render it unsuitable for the CONTRACTOR's Work. 7.3 The CONTRACTOR shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and fit to receive or be received by such other Work. The CONTRACTOR shall not endanger any Work of others by cutting, excavating or otherwise altering their Work and shall only cut or alter their Work with the written consent of the CONSULTANT and of the other contractor whose work will be affected. 7.4 If the performance of additional Work by other contractors or the CITY is not noted in the Contract Documents prior to the execution ' of the Contract, written notice thereof shall be given to the CONTRACTOR prior to starting any such additional Work. If the CONTRACTOR believes that the performance of such additional Work by the CITY or others will cause the CONTRACTOR additional expense or entitles him to an extension of the Contract Time, he may make a claim therefore as provided in Articles I I and 12. 7.5 Where practicable, the CONTRACTOR shall build around the work of other separate contractors or shall leave chases, slots and holes as required to receive and to conceal within the general construction Work the work of such other separate contractors as directed by them. Where such chases, slots, etc., are impracticable, the Work shall 'require specific approval of the CONSULTANT. 7.6 Necessary chases, slots, and holes not built or left by the CONTRACTOR shall be cut by the separate contractor requiring such alterations after approval of the CONTRACTOR. The CONTRACTOR shall do all patching and finishing of the work of other contractors where it is cut by them and such patching and finishing shall be at the expense of CONTRACTOR 7.7 Cooperation is required in the use of site facilities and in the detailed execution of the Work. Each contractor shall coordinate their operation with those of the other Contractors for the best interest of the Work in order to prevent delay in the execution thereof. 7.8 Each of several contractors working on the Project Site shall keep themselves informed of the progress of the work of other contractors. Should lack of progress or defective workmanship on the part of other contractors interfere with the CONTRACTOR's operations, the CONTRACTOR shall notify the CONSULTANT immediately and in writing. Lack of such notice to the CONSULTANT shall be construed as acceptance by the CONTRACTOR of the status of the work of other contractors as being satisfactory for proper coordination of CONTRACTOR's own Work. 7.9 The cost of extra Work resulting from lack of notice, untimely notice, failure to respond to notice, Defective Work or lack of coordination shall be the CONTRACTOR's cost. ARTICLE 8 — CITY'S RESPONSIBILITIES 8.1 The CITY will issue all City permits and communications to the CONTRACTOR through the CONSULTANT. 8.2 In cases of termination of employment of the CONSULTANT, the CITY will appoint a CONSULTANT whose status under the Contract Documents shall be that of the former CONSULTANT. 8.3 The CITY shall promptly furnish the data required of them under the Contract Documents. 8.4 The CITY'$ duties in respect to providing lands and easements are set forth in Paragraphs 4.1 and 4.2. 8.5 The CITY shall have the right to take possession of and use any completed or partially completed portions of the Work, notwithstanding the fact that the time for completing the entire Work or any portion thereof may not have expired; but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. ARTICLE 9 — CONSULTANTS' STATUS DURING CONSTRUCTION City's Representative: 9.1 The CONSULTANT shall be the CITY'S representative during the construction period. The duties and responsibilities and the limitations of authority of the CONSULTANT as the CITY'S representative during construction are set forth in Articles I through 16 of these General Conditions and shall not be extended without written consent of the CITY and the CONSULTANT. 9.1.1 The CONSULTANT's decision, in matters relating to aesthetics, shall be final, if within the terms of the Contract Documents. © thomasfpepe- 09 -28 -1 I Page 46 of 58 9.1.2 Except as may be otherwise provided in this contract, all claims, counterclaims, disputes and other matters in question between the CITY and the CONSULTANT arising out of or relating to this Contract or the breach thereof, shall be decided in a court of competent jurisdiction within the State of Florida. Visits to Site: 9.2 The CONSULTANT shall provide an inspector to make periodic visits to the site at each phase of construction to observe the progress and quality of the executed Work and to determine if the Work is proceeding in accordance with the Contract Documents. His efforts shall be directed toward providing assurance for the CITY and all applicable regulatory agencies that construction is in compliance with the Construction Documents and applicable laws, rules and regulations. On the basis of these on site - observations as an experienced and qualified design professional, he shall keep the CITY informed of the progress of the Work and shall guard the CITY against defects and deficiencies in the Work of CONTRACTOR. Clarifications andl Interpretations: 9.3 The CONSULTANT shall issue, with reasonable promptness, such written clarifications or interpretations of the Contract Documents (in the form of Drawings or otherwise) as it may determine necessary, which shall be consistent with, or reasonably inferable from, the overall intent of the Contract Documents. If the CONTRACTOR seeks an increase in the Contract Price or extension of Contract Time based on a written clarification and /or interpretation it shall be required to submit a timely claim as provided in Articles I I and 12. Measurement of Quantities: 9.4 All Work completed under the Contract shall be measured by the CONSULTANT according to the United States Standard Measures. All linear surface measurements shall be made horizontally or vertically as required by the item measured. Rejecting Defective Work: 9.5 The CONSULTANT shall have authority to disapprove or reject Work that is "Defective Work" as defined in Article I. It shall also have authority to require special inspection or testing of the Work including Work fabricated on or off site, installed or completed as provided. In the event that the CONSULTANT requires testing of completed Work, the cost of such inspections and /or testing shall be approved in writing by the CITY. All consequential cost of such inspections and testing, including but not limited to the cost of testing and inspection, the cost of repairing any of the Work, or the work of others, the cost to move furniture and equipment and /or.the cost to provide alternative facilities until the repair work can be completed, shall paid by the CONTRACTOR if the Work is found to be Defective Work. Shop Drawings Change Orders and Payments: 9.6 In connection with the CONSULTANT responsibility as to Shop Drawings and samples, see paragraphs 6.25 through 6.28, inclusive. 9.7 In connection with the CONSULTANT's responsibility for Change Orders see Articles 10, 11, and 12. 9.8 In connection with the CONSULTANT responsibilities with respect to the Application for Payment, etc., see Article 14. Decisions on Disagreements: 9.10 The CONSULTANT shall be the initial interpreter of the Construction Documents. Limitations on Consultant's Responsibilities: 9.11 The CONSULTANT will not be responsible for the construction means, methods, techniques, sequences or procedures, or the safety precautions and programs incident thereto. 9.12 The CONSULTANT will not be responsible for the acts or omissions of the CONTRACTOR, or any Subcontractors, or any of their agent, servants or employees, or any other person performing any of the Work under or through them. ARTICLE 10 -CHANGES IN THE WORK 10.1 Without invalidating the Contract, the CITY may, at any time or from time to time, order additions, deletions or revisions in or to the Work which shall be authorized by written Change Orders. Upon receipt of a Change Order, the CONTRACTOR shall proceed with the Work involved. All such Work shall be performed under the applicable conditions of the Contract Documents. If any Change Order causes an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, an equitable adjustment will be made as provided in Article I I or Article 12. A Change Order signed by the CITY MANAGER and the CONTRACTOR indicates their agreement to the terms of the Change Order. All Change Orders shall be certified by the CONSULTANT as to the appropriateness and value © thomadpepe- 09 -28 -1 I Page 47 of 58 of the change in the Work as well as to any change in the time to complete the Work under the circumstances. 10.2 The CONSULTANT may authorize minor changes or alterations in the Work not involving extra cost and not inconsistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order. If the CONTRACTOR believes that any minor change or alteration authorized by the CONSULTANT's Field Order entitles the CONTRACTOR to an increase in the Contract Price or extension of Contract Time, he must make a timely claim as provided in Articles I I and 12 or otherwise the CONTRACTOR shall be deemed to have waived such claim. 10.3 Additional Work performed by the CONTRACTOR without authorization of a written Change Order shall not entitle it to an increase in the Contract Price or an extension of the Contract Time, except in the case of an emergency as provided in paragraph 6.22 and except as provided in paragraph 10.2. 10.4 The CITY will execute appropriate Change Orders prepared by the CONSULTANT covering changes in the Work, to be performed as provided in paragraph 4.4, and Work performed in an emergency as provided in paragraph 6.22 and any other claim of the CONTRACTOR for a change in the Contract Time or the Contract Price which is approved by the CONSULTANT. 10.5 It is the CONTRACTOR'S responsibility to notify its Surety of any changes affecting the general scope of the Work or change in the Contract Price or Contract Time and the amount of the applicable bonds shall be adjusted accordingly. The CONTRACTOR shall furnish proof of such an adjustment to the CITY before commencement of the Change Order Work. The Work shall be stopped until the CONTRACTOR provides such proof of adjustment in the Bond amount and any such delay shall be charged to the CONTRACTOR. ARTICLE I I — CHANGE OF CONTRACT PRICE 11.1 The Contract Price constitutes the total compensation payable to the CONTRACTOR for Performing the Work. All duties, responsibilities and. obligations assigned to or undertaken by the CONTRACTOR shall be at its expense without changing the Contract Price. 11.2 The CITY may, at any time, without written notice to the sureties, by written order designated or indicated to be a Change Order, make any change in the Work within the general scope of the Contract, including but not limited to changes to or in: 11.2.1 specifications (including drawings and designs); 11.2.2 method or manner of performance of the Work. 11.2.3 CITY - furnished facilities, equipment, materials, services, or site; or 11.2.4 acceleration in the performance of the Work. 11.3 Except as provided in this section, or sections referred to in this section, no order, statement, or conduct of the CITY shall be treated as a Change Order or entitle the CONTRACTOR to an equitable adjustment unless and until the change in the Work is specifically and expressly provided for in a written Change Order, or as otherwise provided in another section of the Contract Documents. 11.4 When a Change Order is issued by the CONSULTANT and signed by the CITY or issued by the CITY in writing, the CONTRACTOR shall perform the Work even if the CONTRACTOR does not agree with the dollar amount of the Change Order. If any Change Order causes an increase or decrease in the CONTRACTOR'S cost of, or the time required for, the performance of any part of the Work under this Contract, for which the CITY and the CONTRACTOR cannot reach a timely agreement, an equitable adjustment based on the cost of the Work shall be made and the Contract modified accordingly. 11.5 If the CONTRACTOR intends to assert a claim for an equitable adjustment or contest the equitable adjustment made by the CONSULTANT, it shall, within ten (10) days after receipt of a written Change Order, submit to the CITY and CONSULTANT a written notice including a statement setting forth the general nature and monetary extent of such claim for equitable adjustment, time extension requested and supporting data. In determining the cost of the Change Order, the costs shall be limited to those listed in section 11.7 and 11.8. 11.6 No claim by the CONTRACTOR for an equitable adjustment hereunder shall be allowed if not submitted in accordance with this section or if asserted after final payment under this Contract. 11.7 The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways: 11.7.1 By negotiated lump sum. 11.7.2 On the basis of the reasonable cost and savings that results from the change in the Work plus a mutually agreed upon fee to the CONTRACTOR to cover overhead and profit not to exceed © thomasfpepe- 09 -28 -1 I Page 48 of 58 15 %. If the CONTRACTOR disagrees with the CONSULTANTs determination of reasonable costs, the CONTRACT shall provide a list of all costs together with backup documentation 11.8 The term cost of the Work means the sum of all direct extra costs necessarily incurred and paid by the CONTRACTOR in the proper performance of the Change Order. Except as otherwise may be agreed to in writing by CITY, such costs shall be in amounts no higher than those prevailing in Miami -Dade County and shall include only the following items: 11.8.1 Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the Work described in the Change Order under schedules of job classifications agreed upon by CITY and CONTRACTOR. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall be limited to: salaries and wages, plus the costs of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, sick leave, vacation and holiday pay applicable thereto. Such employees shall include superintendents and foremen at the site. The expenses of performing Work after regular working hours, on Sunday or legal holidays shall be included in the above only if authorized by CITY and provided it was not in any way, whether in whole or in part the result of the fault of the CONTRACTOR due to negligence of the CONTRACTOR or those acting by or through him or due in whole or in part to Defective Work of the CONTRACTOR. 11.8.2 Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage, and manufacturers' field services required in connection therewith. The CONTRACTOR shall notify the CITY of all cash discounts that are available and offer the CITY the opportunity to deposit funds with the CONTRACTOR for the payment for items that offer a discount. Cash discounts shall accrue to CONTRACTOR unless the CONTRACTOR fails to timely notify the CITY of the discounts or if the CITY deposits funds with CONTRACTOR with which to make payments in which cases the cash discounts shall accrue to the CITY. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to CITY, and CONTRACTOR shall make provisions so that they may be obtained. 11.8.3 Payments made by CONTRACTOR to the Subcontractors for Work performed by Subcontractors. If required by CITY, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to him and shall deliver such bids to CITY who will then determine, with the advice of the CONSULTANT, which Bids will be accepted. No subcontract shall be a cost plus contract unless approved in writing by the CITY. If a Subcontract provides that the Subcontractor is to be paid on the basis of Cost of Work plus a fee, the cost of the Work shall be determined in accordance this section 11.8 and in such case the word "Subcontractor" shall be substituted for the word "CONTRACTOR ". 11.8.4 Rentals of all construction equipment and machinery, except hand tools, and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by CITY with the advice of CONSULTANT, and the costs of transportation, loading, unloading, installation, dismantling and removal thereof - all in accordance with terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Work. 11.8.5 Sales, use or similar taxes related to the Work, and for which CONTRACTOR is liable, imposed by any governmental authority. 11.8.6 Payments and fees for permits and licenses. Costs for permits and licenses must be shown as a separate item. Contractor is responsible for the cost of permits and licenses. The City pays for fees associated with this project. 11.8.7 The cost of utilities, fuel and sanitary facilities at the site. 11.8.8 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the Work. 11.8.9 Cost of premiums for additional Bonds and insurance required solely because of changes in the Work, not to exceed two percent (2%) of the increase in the Cost of the Work. 11.9 The term Cost of the Work shall NOT include any of the following: 11.9.1 Payroll costs and other compensation of CONTRACTOR'S officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, lawyers, agents, expediters, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in its principal or a branch office for general © thomadpepe- 09 -28 -1 I Page 49 of 58 administration of the Work and not specifically included in the schedule referred to in Subparagraph 11.5. 11.9.2 Expenses of CONTRACTOR'S principal and branch offices other than its office at the site. 11.9.3 Any part of CONTRACTOR'S capital expenses, including interest on CONTRACTOR'S capital employed for the Work and charges against CONTRACTOR for delinquent payments. 11.9.4 Cost of premiums for all bonds and for all insurance policies whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same (except as .otherwise provided in Subparagraph 11.8.9). 11.9.5 Costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied and making good any damage to property. 11.9.6 Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraph 11.8. 11.10 The CONTRACTOR'S fee which shall be allowed to CONTRACTOR for its overhead and profit shall be determined as follows: 1 1.10.1 A mutually acceptable firm fixed price; or if none can be agreed upon. 1 1.10.2 A mutually acceptable fixed percentage (not to exceed 15 %). 1 1.1 1 The amount of credit to be allowed by CONTRACTOR to CITY for any such change which results in a net decrease in cost will be the amount of the actual net decrease in costs calculated in the same manner as provided in 11.8. When both additions and credits are involved in any one change, the net shall be computed to include overhead and profit, identified separately, for both additions and credit, provided however, the CONTRACTOR shall not be entitled to claim lost profits for any Work not performed. ARTICLE 12 - TIME FOR COMPLETIONS LIQUIDATED DAMAGES AND CHANGE OF THE CONTRACT TIME 12.1 The date of beginning and the time for completion of the Work are essential conditions of the Contract Documents and the Work shall be commenced on the date specified in the Notice to Proceed and completed within the time specified for completion of the work. 12.2 The CONTRACTOR shall proceed with the Work at such rate of progress to ensure full completion within the Contract Time. It is expressly understood and agreed, by and between -the CONTRACTOR and the CITY, that the Contract Time for the completion of the Work described herein is a reasonable time, taking into consideration the average climatic and economic conditions and other factors prevailing in the locality of the Work. No extension of time shall be granted due conditions that the Contractor knew of or should have known of before bidding on the project or due to inclement weather, except as provided in section 12.7. 12.3 If the CONTRACTOR shall fail to complete the Work within the Contract Time, or extension of time granted by the CITY, then the CONTRACTOR shall pay to the CITY the amount of liquidated damages as specified in the Contract Documents for each calendar day after the scheduled date for completion as adjusted by written Change Orders that extended the completion date. 12.3.1 These amounts are not penalties but are liquidated damages incurred by the CITY for its inability to obtain full use of the Project. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained as a consequence of such delay, and both parties desiring to obviate any question or dispute concerning the amount of said damages and the cost and effect of the failure of CONTRACTOR to complete the Contract on time. The above - stated liquidated damages shall apply separately to each phase of the Project for which a time for completion is given. 12.3.2 CITY is authorized to deduct the liquidated damages from monies due to CONTRACTOR for the Work under this Contract. 12.4 The Contract Time may only be changed by a written Change Order. Any claim for an extension in the CONTRACT TIME shall be based on written notice delivered to the CITY and CONSULTANT within five (5) days of the occurrence of the event giving rise to the claim and stating the general nature of the claim including supporting data. All claims for adjustment in the Contract Time shall be evaluated and recommended by the CONSULTANT, with final approval by the CITY'S representative. Any change in the Contract Time resulting from any such claim shall be incorporated in a written Change Order. 12.5 All time limits stated in the Contract Documents are of the essence of the Contract. 12.6 No claim for delay shall be allowed because of failure to furnish Drawings before the expiration of fourteen (14) days after demand has been made in writing to the CONSULTANT for such Drawings. © thomasfpepe•09 -28 -1 I Page 50 of 58 Furthermore, there shall be no monetary compensation for such delay and the CONTRACTOR's sole remedy shall be an extension of time for the period of delay. 12.7 Extensions to the Contract Time for delays caused by the effects of inclement weather shall not be granted unless the weather was unusual for South Florida and could not have been anticipated, the abnormal weather is documented by records from the national weather service and the abnormal weather is documented to have had a substantial affected on the construction schedule. 12.8 No Damages for Delay: The CONTRACTOR agrees that he shall not have any claim for damages due to delay unless the delay exceeds 6 months, whether individually or cumulatively, and then the damages shall be limited to increased cost of materials that were unanticipated and that would not have been incurred but for the delay. Other than as set forth above, the only remedy for any delay shall be limited to an extension of time as provided for in Section 12.4 which shall be the sole and exclusive remedy for such resulting delay. Other than as set forth above, CONTRACTOR shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from CITY for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to, costs of acceleration or inefficiency, overhead or lost profits, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable. ARTICLE 13 - GUARANTEE 13.1 The CONTRACTOR shall guarantee and unconditionally warrant through either the manufacturer or the CONTRACTOR directly, all materials and equipment furnished and Work performed for patent Defective Work for a period of one (1) year from the date of Final Acceptance as indicated in the CONSULTANT Letter of Recommendation of Acceptance or from the date when the defect was first observable, whichever is later. The same guarantee and unconditional warranty shall be extend for five fro_m the Final _Acceptance as indicated- _in _ the CONSULTANT_ Letter_ _ of Recommendation of Acceptance for latent Defective Work. The CITY will give notice of observed defects with reasonable promptness. In the event that the CONTRACTOR should fail to commence to correct such Defective Work within ten (10) days after having received written notice of the defect, or should the CONTRACTOR commence the corrective work, but fail to prosecute the corrective work continuously -and diligently and in accordance with the Contract Documents, applicable law, rules and regulations, the CITY may declare an event of default, terminate the Contract in whole or in part and cause the Defective Work to be removed or corrected and to complete the Word at the CONTRACTOR's expense, and the CITY shall charge the CONTRACTOR the cost thereby incurred. The Performance Bond shall remain in full force and effect through the guarantee period. 13.2 The specific warranty periods listed in the Contract Documents, if different from the period of time listed in Section 13. 1, shall take precedence over Section 13.1. ARTICLE 14 - PAYMENTS AND COMPLETION Payments to Contractor 14.1 At least ten (10) days before each progress payment falls due (but not more often than once a month), the CONTRACTOR shall submit to the CONSULTANT a partial payment estimate filled out and signed by the CONTRACTOR covering the Work performed during the period covered by the partial payment estimate and supported by such data as the CONSULTANT may reasonably require. All progress payment applications after the first progress payment shall be accompanied by 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 previous progress payment was made, releasing such claims and lien rights, if any, of those persons. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at or near site, the partial payment estimate shall also be accompanied by such supporting data, satisfactory to the CITY, which establishes the CITY'S title to the material and equipment as well as certificates of insurance providing coverage for 100% of the value of said material and equipment covering the material and equipment from all casualties as well as theft, vandalism, fire and flood. The CONTRACTOR shall replace at its expense any stored materials paid for which are either damaged or stolen before installation. The CONSULTANT will within ten (10) days after receipt of each partial payment estimate, either certifying in writing its approval of payment and present the partial payment estimate to the CITY, or return the partial payment estimate to the CONTRACTOR, indicating in writing his reasons for refusing to approve payment. In the latter case, the CONTRACTOR may make © thomasfpepe- 09 -28 -1 I Page 51 of 58 the necessary corrections and resubmit the partial payment estimate. The CITY, will within thirty (30) days of presentation to it of any approved partial payment estimate, pay the CONTRACTOR a progress payment on the basis of the approved partial payment estimate. The CITY shall retain ten (10 %) percent of the amount of each payment until Final Completion and Acceptance of all Work covered by the Contract Documents. Any interest earned on the retainage shall accrue to the benefit of the CITY. 14.2 The CONTRACTOR, before it shall receive final payment, shall deliver to the CITY and COUNTY a Contractor's Final Payment Affidavit as set forth in the Florida Construction Lien Statute as well as final releases of lien executed by all persons who have performed or furnished labor, services or materials, directly or indirectly, which was incorporated into the Work. If any person refuses to provide such a release or provides a conditional release, the CITY shall have the right to issue a joint check made payable to the CONTRACTOR and such person. Contractor's Warranty of Title 14.3 The CONTRACTOR warrants and guarantees that title to all Work, materials and equipment covered by an Application for Payment whether the Work, material or equipment is incorporated in the Project or not, shall have passed to the CITY prior to the making of the Application for Payment, free and clear of all liens, claims, security interest and encumbrances (hereafter in these General Conditions referred to as "Liens "); and that no Work, materials or equipment, covered by an Application for Payment, will have been acquired by the CONTRACTOR or by any other person performing the Work at the site or furnishing materials and equipment for the Project, under or pursuant to an agreement under which an interest therein or encumbrance thereon is retained by the seller or otherwise imposed by the CONTRACTOR or such other person. Approval of Payment 14.4 The CONSULTNT's approval of any payment requested in an Application for Payment shall constitute a representation by him to the CITY, based on the CONSULTANT's on site observations of the Work in progress _as_anexperienced, and qualified design_ professional_ and on his, review . of the Application for Payment and supporting data, that the Work has progressed to the point indicated in the Application for Payment; that, to the best his knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning Project upon substantial completion as defined in Article I, to the results of any subsequent tests called for in the Contract Documents and any qualifications stated in his approval); and that the CONTRACTOR is entitled to payment of the amount approved. However, by approving, any such payment the CONSULTANT shall not thereby be deemed to have represented that he made exhaustive or continuous on -site observations to check the quality or the quantity of the Work, or that he has reviewed the means, methods, techniques, sequences and procedures of construction or that he had made any examination to ascertain how or for what purpose the CONTRACTOR has used the moneys paid or to be paid to him on account of the Contract Price, or that title to any Work, materials, or equipment has passed to the CITY free and clear of any liens. 14.5 The CONTRACTOR shall make the following certification on each request for payment: "I hereby certify that the labor and materials listed on this request for payment have been used in the construction of this Work and that all materials included in this request for payment and not yet incorporated into the construction are now on the site or stored at an approved location, and payment received from the last request for payment has been used to make payments to all his Subcontractors and suppliers, except for the amounts listed below beside the names of the persons who performed work or supplied materials ". In the event that the CONTRACTOR withholds payment from a Subcontractor or Supplier, the same amount of money shall be withheld from the CONTRACTOR's payment until the issue is resolved by written agreement between them and then a joint check shall be made payable to the person in question and the CONTRACTOR in accordance with the settlement agreement, otherwise the money shall be held by the CITY until a judgment is entered in favor of the CONTRACTOR or the person, in which case the money shall be paid according with said judgment. Nothing contained herein shall indicate an intent to be any third persons who are not signatories to the Contract. 14.6 The CONSULTANT may refuse to approve the whole or any part of any payment if, in its opinion, it is unable to make such representations to the CITY as required this Section 14. It may also refuse to approve any payment, or it may void any prior payment application certification because of subsequently discovered evidence or the results of subsequent inspection or tests to such extent as may be necessary in its opinion to protect the CITY from loss because: 14.6.1 of Defective Work, or completed Work has been damaged requiring correction or replacement, © thomadpepe- 09 -28 -1 I Page 52 of 58 14.6.2 the Work for which payment is requested cannot be verified, 14.6.3 claims of Liens have been filed or received, or there is reasonable evidence indicating the probable filing or receipt thereof, 14.6.4 the Contract Price has been reduced because of modifications, 14.6.5 the CITY has correct Defective Work or completed the Work in accordance with Article 13. 14.6.6 of unsatisfactory prosecution of the Work, including failure to clean up as required by paragraphs 6.29 and 6.30, 14.6.7 of persistent failure to cooperate with other contractors on the Project and persistent failure to carry out the Work in accordance with the Contract Documents, 14.6.8 of liquidated damages payable by the CONTRACTOR, or 14.6.9 of any other violation of, or failure to comply with provisions of the Contract Documents. 14.7 Prior to Final Acceptance the CITY, with the approval of the CONSULTANT, may use any completed or substantially completed portions of the Work provided such use does not interfere with the CONTRACTOR's completion of the Work. Such use shall not constitute an acceptance of such portions of the Work. 14.8 The CITY shall have the right to enter the premises for the purpose of doing Work not covered by the Contract Documents. This provision shall not be construed as relieving the CONTRACTOR of the sole responsibility for the care and protection of the Work, or the restoration of any damaged Work except such as may be caused by agents or employees of the CITY. 14.9 Upon completion and acceptance of the Work the CONSULTANT shall issue a Certificate attached to the Final Application for Payment that the Work has been accepted by it under the conditions of the Contract Documents. The entire balance found to be due the CONTRACTOR, including the retained percentages, but except such sums as may be lawfully retained by the CITY, shall be paid to the CONTRACTOR within thirty (30) days of completion and acceptance of the Work. Acceptance of Final Payment as Release 14.10 The Acceptance by the CONTRACTOR of Final Payment shall be and shall operate as a release to the CITY and a waiver of all claims and all liability to the CONTRACTOR other than claims previously filed and unresolved. The waiver shall include all things done or furnished in connection with the Work and for every act and neglect of the CITY and others relating to or arising out of this Work. Any payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties from any obligations under the Contract Documents or the Performance Bond and Payment Bonds. 14.11 The CONSULTANT may void any certification of Substantial Completion or Final Completion of the Work as may be necessary in his opinion to protect the CITY from loss if he determines, because of subsequently discovered evidence or the results of subsequent inspection or tests, that: 14.1 1.1 the Work is defective, or that the completed Work has been damaged due to the fault of the CONTRACTOR or any individual or entity operating under or through it requiring correction or replacement to the extent that the project is no longer Substantially Completed, or in the case of Final Completion certification, is not longer Finally Competed. 14.11.2 the Work necessary to be completed for the purpose of certifying the work as being Substantially Completed or Finally Completed cannot be verified, 14.11.3 claims or Liens have been filed or received, or there is reasonable evidence indicating the probable filing or receipt thereof that, if valid and paid, would reduce the amount owing to the CONTRACTOR BY 20% in the case of Substantial Completion and 5% in the case of Final Completion. 14.1 1.5 there is Defective Work the value of which, if deducted from the contract price would reduce the amount owing to the CONTRACTOR BY 20% in the case of Substantial Completion and 5% in the case of Final Completion. ARTICLE 15 — SUSPENSION OF WORK AND TERMINATION 15.1 The CITY may, at anytime and without cause, suspend the Work or any portion thereof for a period of not more than ninety (90) days by notice in writing to the CONTRACTOR and the CONSULTANT, which shall fix the date on which Work shall be resumed. The CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to any suspension and if a claim is timely made and if it is allowed under the terms of Articles I I or Article 12. City May Terminate 15.2 If the CONTRACTOR is adjudged bankrupt or insolvent, or if he makes a general assignment for the benefit of its creditors, or if a trustee or receiver is appointed for the CONTRACTOR or for any its ©thomasfpepe- 09 -28 -1 I Page 53 of 58 property, or if he files a petition to take advantage of any debtor's act, or to reorganize under bankruptcy or similar laws, or if he repeatedly fails to supply sufficient skilled workmen or suitable materials or equipment, or if he repeatedly fails to make prompt payments to Subcontractors or for labor, materials or equipment or he disregards laws, ordinances, rules, regulations or orders of any public body having jurisdiction, or if he disregards the authority of the CONSULTANT, or if he otherwise violates any provision of, the Contract Documents, then the CITY may, without prejudice to any other right or remedy and after giving the CONTRACTOR and the Surety seven (7) days written notice, terminate the services of the CONTRACTOR and take possession of the Project and of all materials, equipment, tools, construction equipment and machinery thereon owned by the CONTRACTOR, and finish the Work by whatever method it may deem expedient. In such case the CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the direct and indirect costs of completing the Project, including compensation for additional professional services, such excess shall be paid to the CONTRACTOR. If such costs exceed such unpaid balance, the CONTRACTOR or the Surety on the Performance Bond shall pay the difference to the CITY. Such costs incurred by the CITY shall be determined by the CONSULTANT and incorporated in a Change Order. If after termination of the CONTRACTOR under this Section, it is determined by a court of competent jurisdiction for any reason that the CONTRACTOR was not in default, the rights and obligations of the CITY and the CONTRACTOR shall be the same as if the termination had been issued pursuant to Section 15.5 15.3 Where the CONTRACTOR'S services have been so terminated by the CITY said termination shall not affect any rights of the CITY against the CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of moneys by the CITY due the CONTRACTOR shall not release the CONTRACTOR from liability. 15.4 Upon seven (7) days-written notice to the CONTRACTOR and the CONSULTANT, the CITY may, _ without cause and without prejudice to any other right or remedy, elect to terminate the Contract for the convenience of the CITY. In such case, the CONTRACTOR shall be paid for all Work executed and accepted by the CITY as of the date of the termination, minus any deduction for damage or Defective Work. No payment shall be made for profit for Work which has not been performed. Removal of Equipment 15.5 In the case of termination of this Contract before completion for 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. Should the CONTRACTOR not remove such equipment and supplies, the CITY shall have the right to remove them at the expense of the CONTRACTOR and the CONTRACTOR agrees that the CITY shall not be liable for loss or damage to such equipment or supplies. Equipment and supplies shall not be construed to include such items for which the CONTRACTOR has been paid in whole or in part. Contractor May Stop Work or Terminate 15.6 If, through no act or fault of the CONTRACTOR, the Work is suspended for a period of more than ninety (90) days by the CITY or by order of other public authority, or under an order of court or the CONSULTANT fails to act on any Application for Payment within thirty (30) days after it is submitted, or the CITY fails to pay the CONTRACTOR any sum approved by the CONSULTANT, within thirty (30) calendar days of its approval, and presentation, then the CONTRACTOR may, upon twenty (20) calendar days written notice to the CITY and the CONSULTANT, terminate the Contract. The CITY may remedy the delay or neglect within the twenty (20) calendar days time frame. If timely remedied by the CITY the Contract shall not be considered terminated. In lieu of terminating the Contract, if the CONSULTANT has failed to act on an Application for Payment or the CITY has failed to make any payment as afore said, the CONTRACTOR may upon ten (10) calendar days notice to the CITY and the CONSULTANT stop the Work until it has been paid all amounts then due. Indemnification of Consultant. 15.7 The CONTRACTOR and the CITY hereby acknowledges that the CONSULTANT may be reluctant to rule on any disputes concerning the Contract Documents or on the performance of the CONTRACTOR or the CITY pursuant to the terms of the Contract Documents. Therefore, the CITY or the CONTRACTOR, at the CONSULTANT's request, agree to provide the CONSULTANT with a written indemnification and hold harmless agreement to indemnify and hold the CONSULTANT harmless before the CONSULTANT makes an interpretation, de- certifies a payment application, decertifies Substantial © thomasfpepe- 09 -28 -1 I Page 54 of 58 Completion, decertifies Final Completion, certifies an event of default, or approves any action which requires the approval of the CONSULTANT. ARTICLE 16 - MISCELLANEOUS 16.1 Whenever any provision of the Contract Documents requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last known business address. 16.2 The Contract Documents shall remain the property of the CITY. The CONTRACTOR and the CONSULTANT shall have the right to keep one record set of the Contract Documents upon completion of the Project. 16.3 The duties and obligations imposed by these General Conditions, Special Conditions and Supplemental Conditions, if any, and the rights and remedies available hereunder, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon CONTRACTOR by the Contract Documents and the rights and remedies available to the CITY and CONSULTANT thereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available by law, by special guarantee or by other provisions of the Contract Documents. 16.4 Should the CITY or the CONTRACTOR- suffer injury or damage to its person or property because of any error, omission, or act of the other or of any of their employees or agents or others for whose acts they are legally liable, claim shall be made in writing to the other party within twenty one (2 1) days of the first observance of such injury or damage. ARTICLE 17 -WAIVER OF JURY TRIAL 17.1 CITY and CONTRACTOR knowingly, irrevocably voluntarily and intentionally waive any right either may have to a trial by jury in State or Federal Court proceedings in respect to any action, proceeding, lawsuit or counterclaim arising out of the Contract Documents or the performance of the Work thereunder. ARTICLE 18 - ATTORNEYS FEES JURISDICTION / VENUE / GOVERNING LAW 18.1 The Contract shall be construed in accordance with and governed by the law of the State of Florida. 18.2 The parties submit to the jurisdiction of any court of competent jurisdiction in Florida regarding any claim or action arising out of or relating to the Contract or Contract Documents. Venue of any action to enforce the Contract shall be in Miami -Dade County, Florida. 18.3 If either the CITY or CONTRACTOR seeks to enforce the terms of the Contract by court proceedings, the prevailing party shall be entitled to recover all such costs and expenses, including, but not limited to, court costs, and reasonable attorney's fees. 18.4 Except as may be otherwise provided in the Contract Documents, all claims, counterclaims, disputes and other matters in question between the CITY and the CONTRACTOR arising out of or relating to this Contract or the breach thereof, shall be decided in a court of competent jurisdiction within the State of Florida. ARTICLE 19 - PROJECT RECORDS 19.1 The CITY shall have right to inspect and copy during regular business hours at CITY'S expense, the books and records and accounts of CONTRACTOR which relate in any way to the Project, and to any claim for additional compensation made by CONTRACTOR, and to conduct an audit of the financial and accounting records of CONTRACTOR which relate to the Project. CONTRACTOR shall retain and make available to CITY all such books and records and accounts, financial or otherwise, which relate to the Project and to any claim for a period of three (3) years following final completion of the Project. During the Project and the three (3) year period following final completion of the Project, CONTRACTOR shall provide CITY access to its books and records upon five (5) days written notice. ARTICLE 20 - SEVERABILITY 20.1 If any provision of the Contract or the application thereof to any person or situation shall to any extent, be held invalid or unenforceable, the remainder of the Contract, and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable shall not be affected thereby, and shall continue in full force and effect, and be enforced to the fullest extent permitted by law. © thomasfpepe- 09 -28 -1 I Page 55 of 58 ARTICLE 21 — INDEPENDENT CONTRACTOR 21.1 The CONTRACTOR is an independent CONTRACTOR under the Contract. Services provided by the CONTRACTOR shall be by employees of the CONTRACTOR and subject to supervision by the CONTRACTOR, and not as officers, employees, or agents of the CITY. Personnel policies, tax responsibilities, social security and health insurance, employee benefits, purchasing policies and other similar administrative procedures, applicable to services rendered under the Contract'shall be those of the CONTRACTOR. IN WITNESS WHEREOF, the parties hereto have executed the General Conditions to acknowledge their inclusion as part of the Contract dated the I I `h day of October , 2011 (print. name of Witness) (print name of Witness) AUTHENTICATION: Signature: aria Menendez, City Clerk CONTRACT r Signatu Name: Title: Name: Title: Felix Acosta President OWNER: CITY OF SQUTK, MIAMI Signature: D . Hector Mirabi City Manager thomasfpepe- 09 -28 -1 I Page 56 of 58